MZXOT v Minister for Immigration and Citizenship

MZXOT v Minister for Immigration and Citizenship - [2008] HCA 28 - HCA 2008 case summary — Zoe

[30]

The plaintiff was born in Nigeria in 1960 and is a Nigerian citizen. On 14 March 2006, whilst lawfully present in Australia as the holder of a Business (Short Stay) visa, he made an application for a protection visa. That application was refused by a delegate of the Minister on 18 April 2006. A copy of the decision of the delegate was sent under cover of a registered letter dated 18 April 2006. The letter was addressed to the plaintiff at the last address the plaintiff had given. There followed after an interval of some nine months a series of litigious forays which have culminated in an action in the original jurisdiction of this Court.
On 6 February 2007 and after he had been contacted by telephone by an officer of the Minister's Department, the plaintiff instituted in the FMC an application for judicial review of the decision of the delegate. It was only on 16 March 2007 that the plaintiff first received a copy of the letter dated 18 April 2006 and of the decision of the delegate. On 28 March 2007 the Minister filed an objection to the competency of the application made on 6 February 2007 and relied upon various grounds of objection. One was that by reason of par (a) of s 476(2) of the Act the FMC had no jurisdiction in the matter. The substance of this objection was that the decision of the delegate would have been reviewable elsewhere, namely by the Refugee Review Tribunal ("the RRT") under Pt 7 of the Act, if application had been made to the RRT within time. The FMC proceeding was discontinued on 3 May 2007.
In the meantime, on 29 March 2007 the plaintiff made an application to the RRT. On 25 May 2007 the RRT determined it had no jurisdiction. Paragraph (b) of s 412(1) of the Act required that an application for review be made to the RRT within the prescribed period. In the present case this required the lodgement of the application for review at a registry of the RRT within a period not later than 28 days after the day on which the applicant received notice of the decision. The plaintiff was taken to have received on 28 April 2006 the notice of the decision sent by registered post on 18 April 2006. The time limit operated in this way although in fact the plaintiff had received the notification and a copy of the decision only on 16 March 2007. The result was that the 28 day period within which the application had to be lodged with the RRT had ended on 26 May 2006. The application made by the plaintiff had not been received by the RRT until many months later, on 29 March 2007.
In anticipation of this outcome in the RRT, the plaintiff on 11 April 2007 invoked the original jurisdiction of this Court conferred by s 75(v) of the Constitution. As later amended, the relief sought in the plaintiff's application for an order to show cause includes certiorari to quash the decision of the delegate of the Minister made 18 April 2006 and mandamus directing the Minister to determine according to law the plaintiff's application for a protection visa. Certiorari is not listed in s 75(v), but may issue as ancillary to the constitutional writ of mandamus[8]. The High Court Rules 2004[9] specify time limits within which applications for certiorari and mandamus must be made, but these, unlike those imposed by statute on the FMC and the RRT, are not absolute. The plaintiff seeks an enlargement of time under the High Court Rules[10].

[45]

That which "belongs to" the State courts within the meaning of s 77(ii) is the authority they possess to adjudicate under the constitutions and laws of the States[20]. So long as ss 38 and 39(1) of the Judiciary Act stand unrepealed then, with respect to matters falling within the jurisdiction of the High Court, and in the words of Isaacs J, "no State jurisdiction can exist"[21]. However, as Taylor J and Menzies J indicated in Williams v Hursey[22], this does not deny the existence of State jurisdiction in a suit which could not be tried in the exercise of federal jurisdiction[23].
The accepted view is that the denial of jurisdiction which otherwise "belongs to" the courts of the States manifests the operation of s 109 of the Constitution (with respect to the Judiciary Act provisions) upon the State laws which otherwise provide for the jurisdiction of the courts of the States[24]. Those State laws are rendered "inoperative"[25]. If this reasoning be applied to the present situation, it is by operation of s 109 of the Constitution that there is denied the competency of any State court, in the absence of a federal law investing it with federal jurisdiction, to adjudicate upon the action the plaintiff brings against the Minister for judicial review.
But there is a further ground for that outcome. It proceeds from an appreciation of the federal structure established by the Constitution and may be explained as follows. Perusal of the nine paragraphs of ss 75 and 76 of the Constitution discloses that while some identify controversies well known in the anterior body of general jurisprudence in the colonies (for example, actions in tort or contract between residents of the former colonies[26]), that was not so with respect to other heads of federal jurisdiction[27]. How then could the adjudication of these controversies be said to "belong to" State jurisdiction? If they could not be so described, there was no occasion for any later federal law to rely upon s 77(ii) and for s 109 of the Constitution then to render inoperative that which did not otherwise exist.
The distinction was apparent to Inglis Clark, who wrote in 1901 and in advance of the enactment of the Judiciary Act. He observed[28]:

[52]

Shortly thereafter, but also before the commencement of the Judiciary Act[30], the New South Wales Full Court decided in Ex parte Goldring[31] that a State court had no power to grant a mandamus to compel an officer of the Commonwealth (the Collector of Customs at Sydney) to perform duties imposed upon the officer by federal law, even if the duties were to be performed in the State in question[32]. Counsel for the Collector in Goldring (Sir Julian Salomons KC) had cited McClung v Silliman. A recently affirmed corollary of the reasoning in Goldring is that a State law cannot unilaterally vest functions under that law in officers of the Commonwealth, whose offices are created by federal law and who have the powers vested in them by that law[33].
In the United States, the circumstance that a State court had inherited the jurisdiction of the Court of King's Bench with respect to mandamus, and the operation of the Supremacy Clause in Art VI and the reservation of powers to the States by the 10th Amendment, did not have the consequence that mandamus might issue from that State court to a federal officer. In Australia the same may be said of covering cl 5 of the Constitution.
Writing after Goldring, in the second edition of The Constitution of The Commonwealth of Australia[34] Harrison Moore gave several instances where, in the absence of a conferral of federal jurisdiction, State courts could not have power to adjudicate under State law. These included the issue of mandamus to a federal officer to perform a federal duty and the issue of habeas corpus to a federal officer.
It is unnecessary to determine whether there holds true all of the instances given by Inglis Clark and Harrison Moore of the absence of jurisdiction which "belongs to ... the courts of the States", so that in those cases there is no occasion or need for exclusion by federal law based upon s 77(ii) of the Constitution. It is sufficient for the present case to point to the clear authority since Goldring[35] that the mandamus the plaintiff seeks against the Minister here is one such instance.
The plaintiff fails to make good the submission that his application may be dealt with by this Court on the footing that, federal jurisdiction apart, the State courts have jurisdiction with respect to the subject matter which "belongs to" them by reason of covering cl 5 of the Constitution. There remains for consideration the plaintiff's submissions respecting an implied power of remitter from the High Court.

[53]

The statement that "the High Court shall have original jurisdiction", which is made in s 75 of the Constitution with respect to the matters listed in that section, brings with it such powers as are incidental and necessary to the exercise of the jurisdiction[36]. The same result follows from the vesting by s 71 of the Constitution of "[t]he judicial power of the Commonwealth" in the High Court[37].
What is incidental and necessary in this context has not been, and perhaps cannot be, exhaustively detailed. A power to deal with contempt is included[38]. So also is the power to stay orders, which is necessary to effectuate the grant of appellate jurisdiction by s 73[39]. A broad power to protect the procedures of the Court against abuse may well also be included[40].
This Court has said that the exercise by the Parliament of its powers under s 76 of the Constitution to confer further additional original jurisdiction upon the Court is a matter of "great significance", because the result may be to "impair its ability to discharge its major functions with despatch"[41]. Those major functions are, as to the original jurisdiction, the disposition of certain matters arising under or involving the interpretation of the Constitution, and as to the appellate jurisdiction the role, subject to the grant of special leave, as the final court of general appeal for the whole country[42]. Further, with respect to jurisdiction directly conferred by s 75 the Court has indicated that relief may be refused where there is another court with jurisdiction in the matter[43].
The Parliament recognised from the time of the enactment of the Judiciary Act over a century ago that it would overburden the High Court to leave it as the only court with the whole of the jurisdiction conferred by s 75 and the whole of the jurisdiction which might be conferred by the Parliament pursuant to s 76. The immediate answer was the use of the power conferred by s 77(iii) to enact the broadly expressed conferral by s 39 of the Judiciary Act of jurisdiction upon the several courts of the States. Section 39 is expressed in terms that do not distinguish between civil and criminal matters. Section 68 deals specifically with criminal jurisdiction and was adapted from s 2 of the temporary legislation the Punishment of Offences Act 1901 (Cth)[44]. In more recent times legislation consequent upon the establishment of other federal courts has diverted from the High Court what had become a burdensome jurisdiction conferred particularly by a range of laws supported by s 76(ii).
The Commonwealth Solicitor‑General, who appeared for both the Minister and, as intervener, the Attorney‑General, in oral argument contended that there was no restraint upon the power of the Parliament to enact a repeal of all these measures and thereby burden exclusively the High Court with the full weight of original jurisdiction in federal matters. Such a state of affairs would, among other things, stultify the exercise of the appellate jurisdiction which is entrenched by s 73 of the Constitution. It would undermine the operation of Ch III which places this Court (subject to the obsolete provisions in s 74) at the apex of the judicial structure[45].
It is well recognised in the decisions of the Court that the powers of the Parliament conferred by the various heads of power conferred by the Constitution are not to be interpreted on the footing that the ends sought to be achieved by their exercise must appear desirable rather than absurd or inconvenient[46]. But a law, apparently based upon s 77(iii), which repealed ss 39 and 68 of the Judiciary Act would appear to strike at the effective exercise of the judicial power of the Commonwealth which is vested directly in the High Court by s 71 of the Constitution. Nor would it necessarily be decisive in this situation to invoke the principle that the legislative powers conferred by s 51 extend to the repeal of the whole or part of that which has been enacted[47]; the legislative powers conferred within Ch III may require special consideration. It is sufficient to conclude now that the submission put for the Commonwealth can hardly be said to be self‑evidently correct.
But the foregoing considerations do not render it incidental and necessary to the exercise of jurisdiction directly conferred upon this Court by s 75 of the Constitution that, in the absence of a law made by the Parliament under s 77 which confers on another court concurrent federal jurisdiction with respect to a particular class of case such as that involved here, the High Court has the power to decline itself to exercise its jurisdiction by remittal to another court selected by the High Court for the exercise of its jurisdiction. It is for the existence of such a power that the plaintiff contends.
The plaintiff accepted the statement as to the making of implications which appears in Lange v Australian Broadcasting Corporation[48]. However, this would mean that an implication supporting that power of remitter could extend only so far as necessary to give effect to the provisions of Ch III and would have to be inherent in the constitutional text and structure. The text and structure of Ch III point away from the direction to which the plaintiff urges the Court.
In Gould v Brown[49] McHugh J, in a passage indicative of what was to be the reasoning in Re Wakim; Ex parte McNally[50], said[51]:

[55]

That reasoning is applicable here. With respect to any of the matters mentioned in s 75 (and s 76) it is the Parliament which may make laws defining the jurisdiction of any other federal court and investing a State court with federal jurisdiction. It would be at variance with the scheme of Ch III for the High Court in effect to delegate the exercise of its jurisdiction to resolve the controversy represented by a s 75(v) matter to another federal court or to a State court, in either instance selected by the High Court itself.
It is true that the usual consequence of the exercise by the High Court of its statutory power of remitter is that the Court, after making the order for remitter, is taken thereby to choose not to exercise further its original jurisdiction, at least where the whole of the matter has been remitted. In due course thereafter it may be that the appellate jurisdiction under s 73 of the Constitution is invoked but that will be the last step in a sequence following the investment or conferral of original jurisdiction in the federal or State court concerned. That investment or conferral of jurisdiction occurs by operation of the statute, not by a decision of this Court.
Since its commencement, the Judiciary Act has contained provisions both for the removal of causes into the High Court and for the remittal both of causes which should not have been removed and of actions commenced in the original jurisdiction.
The provisions originally enacted as ss 40‑44 of the Judiciary Act for removal of causes and for remittal of causes removed were derived immediately from United States precedent. This was found in the Act of March 3, 1875 Ch 137[52]. That statute provided for the removal of certain causes from State courts into the circuit courts of the United States and for the remanding to the original court of causes which should not have been removed.
Some analogy in the procedures of the common law superior courts of record had been provided by the writ of procedendo. Where a cause had been removed into one of the Court of King's Bench, Common Pleas or Exchequer by certiorari from an inferior court and it transpired that the cause ought not to have been removed, then on the application of the aggrieved party the writ of procedendo might issue, addressed to the inferior court and requiring it to proceed with the cause from the stage it had reached when the writ of certiorari had been issued[53]. The occasion for this remedy in modern systems of procedure was considered by Lord Atkin in Great Western Railway Co v West Midland Traffic Area Licensing Authority[54] and by McPherson JA in R v T[55].
Section 45 of the Judiciary Act, as enacted, went further than the United States precedent. It provided:

[70]

KIRBY J. These proceedings, on a stated case[65], raise questions about the Constitution that have not previously been decided. The first question is whether this Court, in the exercise of its original jurisdiction, has an implied power to remit proceedings to another court where to do so is necessary to attain justice and to protect the constitutional character and functions of the Court.
If the answer to that question is affirmative, the second question concerns the validity of recent federal legislation. In its terms, such legislation restricts the broad statutory power of remittal, long enjoyed by this Court[66], and purports to prohibit remittal to a federal court of proceedings commenced in this Court's original jurisdiction[67].
Depending on the answer to these questions, a third question arises as to whether, either by federal law, State law or the Constitution itself, another court has jurisdiction to receive any such remittal from this Court. Without a court that is legally authorised to receive the matter, a constitutionally implied power of remittal could not exist. In that sense, the existence of a receiving court is the other side of the coin of the power in this Court to remit proceedings begun in its original jurisdiction.
Ultimately, I have reached the same dispositive orders as the other members of this Court. Specifically, I agree in the conclusion expressed by Gleeson CJ, Gummow and Hayne JJ that "the present magnitude of the burden … placed on this Court is not such as to impair to a sufficiently significant degree the discharge of the other jurisdiction of the Court as to call into question the validity of the changes made"[68] in the legislation which the plaintiff attacks to found his argument of an implied constitutional power of remittal. I therefore agree that the case for the existence of a "non-legislatively based remitter power of this Court" has "not been made out"[69]. This conclusion means that it is inessential to decide whether, had my conclusion been otherwise, the plaintiff had established the existence of a relevant receiving court.
Although the plaintiff fails, his arguments are not meritless. Eventualities can be conceived where a power of remittal, beyond that conferred by legislation, might need to be implied in order to protect the essential constitutional character and functions of this Court. This would then require a valid receiving court. The recognition, ambit and consequences of any such power must be left to a future occasion. These reasons will explain my conclusions, expressed in that qualified way.

[71]

The facts: The relevant facts and history of the proceedings are set out in other reasons[70]. The plaintiff invoked these facts to lay the foundations for his argument of injustice.
The plaintiff applied unsuccessfully for a refugee protection visa. He contended that he did not receive actual notice of an adverse administrative decision made against him by a delegate of the respondent Minister. Due to innocent time default, he was denied any possible review on the merits, by the Refugee Review Tribunal, of his claim to be a "refugee"[71] or consideration under the constitutional writs[72] (or their statutory equivalents and supplements[73]) in the Federal Magistrates Court ("the FMC") or the Federal Court of Australia ("the FCA"). He submitted that this was the result of the scheme of legislation introduced by the Migration Litigation Reform Act 2005 (Cth) ("the 2005 Act") which aimed to limit the jurisdiction of the FCA and the FMC.
The plaintiff argued that the constitutional offence presented by this legislative exclusion of the jurisdiction of those federal courts was rendered clear by the decision of this Court in Bodruddaza v Minister for Immigration and Multicultural Affairs[74]. This Court there held that s 486A of the Migration Act 1958 (Cth) ("the Act") was invalid so far as it purported to curtail or limit the entitlement of an applicant to seek relief in this Court under s 75(v) of the Constitution. The section was inconsistent with the irreducible jurisdiction there conferred on this Court[75]. Section 486A was also held to be invalid so far as it purported to prevent this Court from affording relief by way of statutory certiorari in determining a "matter" for which jurisdiction was conferred by s 75(v) of the Constitution[76].
This was the factual starting point for the plaintiff's argument. In the exercise of this Court's constitutional powers to issue the writs named in s 75(v) of the Constitution (and, possibly, ancillary public law remedies to make such writs effective), the Parliament was not entitled to impose inconsistent restrictions on this Court. If that is so, was it then possible for the Parliament to block all avenues available to this Court to remit to other courts (and by which those courts could receive) such matters as were appropriate for remittal? Was such a legislative scheme constitutionally valid? Was preventing access to any other court constitutionally permissible for every instance where there had been a statutory time default, no matter how trivial, self-evidently meritorious or otherwise legally insignificant? To protect this Court's essential constitutional character and functions, was it necessary to imply a constitutional power to remit to another court and to find a statutory or constitutional power for such a court to receive the remitted "matter"?
Explained in this way, the plaintiff's arguments assume a constitutional attractiveness and it is appropriate to explore them.
The proceedings and case stated: The other reasons in this matter describe the comparatively prompt response of the plaintiff, once he was made aware of the decision of the delegate, to assert his propounded status as a "refugee" and to challenge the delegate's determination adverse to his application. Although without legal representation, the plaintiff first endeavoured to challenge the decision by initiating proceedings in the FMC. When difficulties arose, inherent in the scheme of the Act as amended by the 2005 Act[77], the plaintiff (by now with legal representation) applied to the Refugee Review Tribunal. It held that it lacked jurisdiction because of the failure to comply with the specified time provisions. In this Court, the plaintiff challenges the validity of that legislative scheme, which purports to curtail the power of this Court to remit to another court an application for relief by way of the constitutional writs and supporting public law remedies (certiorari or a declaration), commenced in this Court's original jurisdiction.
The plaintiff's challenge led to the case stated in the terms described by my colleagues[78]. As noted, the questions were further confined during oral argument[79]. Additional constitutional questions arose during oral argument that were inherent to those formulated in the stated case. Such questions emerged as potential difficulties, even barriers, for the hypotheses of the argument advanced by the plaintiff concerning the ambit of the implied non-statutory power of remittal said to be enjoyed by this Court.
Specifically, the necessity of a "receiving" court loomed larger during argument. It became clear that a constitutional power of remittal would only be effective and useful if a repository court existed (either federal, Territory or State). Such a court needed, by statute, or by the Constitution itself, to have the jurisdiction and power to determine the "matter" remitted to it.
The legislation: The relevant provisions of the Act, as amended by the 2005 Act, appear in the reasons of Heydon, Crennan and Kiefel JJ[80]. By the end of oral argument it was common ground that, according to the Act as so amended, of the federal courts named in s 484(1) of the Act, only this Court was afforded jurisdiction under the Act in respect of a "primary decision"[81]. This conclusion requires an affirmative answer to question 1 of the stated case. However, the plaintiff submitted that this conclusion was necessarily incompatible with the requirements of the Constitution.

[86]

There is no equivalent obligatory assignment of exclusive original jurisdiction to this Court. Section 75(ii) of the Constitution includes "matters … affecting consuls or other representatives of other countries" in the original jurisdiction of this Court. However, in any such matter the Parliament may make laws to define the jurisdiction of other federal courts[86] and to define the extent to which such jurisdiction shall be exclusive[87]. These provisions have helped Australia to avoid the problem that has arisen in the United States from the apparent purpose of the constitutional text to assign even trivial trials of offences by consuls to the Supreme Court itself[88].
The second distinctive feature of the Australian Constitution is s 77(iii) which empowers the Parliament to make laws investing any court of a State with federal jurisdiction. This so-called "autochthonous expedient"[89] has no equivalent in the United States Constitution. The provisions of s 77(iii), together with those envisaging the creation of federal courts below this Court[90], make it clear that an exclusive discharge by this Court of matters included by s 75 as within its original jurisdiction was not, as such, part of the necessary constitutional design. On the contrary, the envisaged facility for divesting such jurisdiction to other federal (including Territory) courts and to State courts, together with the large emphasis in Ch III upon the appellate jurisdiction of this Court[91], make it plain that it was always contemplated that this Court would be preoccupied by its appellate jurisdiction. This anticipation has been confirmed by the actual business of the Court since it commenced the exercise of its jurisdiction in 1903.
From this conception of the "Federal Supreme Court" for which the Constitution provides[92], the plaintiff argued that means must exist to protect this Court from becoming overwhelmed by cases that have no special national, federal or legal significance. To a large extent, it might be expected that such protection would be enacted by the Parliament. This could be achieved by providing this Court with a large general power to remit matters, which could then be received and disposed of by other federal (including Territory) or State courts. That has been done by enactment[93].
Other means have been used to divert to other courts matters lying within the original jurisdiction of this Court[94]. Whilst these initiatives of the Parliament were within the contemplation of the Constitution and aimed to protect this Court's jurisdiction, the plaintiff argued that this Court could not be left without a means of self-protection where that proved necessary. This was so at least where the protection by or under laws made by the Parliament proved inadequate or (as was suggested in this case) where the jurisdiction was distorted in a way that was bound to increase the number of cases in the original jurisdiction of this Court, without reserving any effective control to the Court itself. The plaintiff complained that this was the offence to the Constitution caused by the terms of the amendments to the Act, particularly the contested provisions of the 2005 Act. To overcome this problem, the plaintiff submitted that there was an implied power of remittal to divest this Court of excessive, inappropriate or unnecessary jurisdiction.
Test for implied powers: So far as the derivation of implications is concerned, the text of the Constitution pulls in opposite directions. The sparse language, the ever-changing political, economic and social conditions to which the text must respond and the extreme difficulty of achieving formal amendments lend support to a recognition of the existence of implications that expand upon the text, in ways not inconsistent with its language, structure, history and purposes.
On the other hand, once declared, such implications are themselves part of the Constitution and are extremely difficult to change. Because they lack, as such, the democratic endorsement that the text itself enjoys (having been endorsed by the electors[95]), this Court has exercised great restraint in deriving implications. Effectively, implications have been confined to those matters deemed truly necessary to give effect to the express constitutional provisions[96].
The plaintiff accepted this strict criterion for the derivation of an implied power of remittal in this Court. He contended that the necessity of a power of remittal could be seen as "logical or practical" or "implicit in the … structure" of Ch III and in the character and functions of this Court[97]. In the past, significant constitutional implications have been upheld by decisions of this Court[98]. Such implications have sometimes proved controversial[99] and some have been disputed within the Court[100].
For the plaintiff, it was self-evident, and certainly necessary to the text of the Constitution governing the original jurisdiction of this Court, that the Court would possess an ultimate power, implied from the Constitution, to protect itself from being diverted from its essential constitutional and appellate functions into determining matters that fall within s 75(v) of the Constitution, but which otherwise have no national, federal or legal import.
Particularly was this so where, virtually without precedent, the Federal Parliament had departed from a long line of statutory provisions designed to afford general discretionary powers to this Court to remit such matters. By the 2005 Act, the Parliament had chosen to enact measures clearly intended effectively to force people like the plaintiff into proceedings in the original jurisdiction of this Court. In such matters, other federal (including Territory) courts or State courts could much more easily perform the functions envisaged by s 75(v) of the Constitution. They had long done so. They could not therefore be lawfully deprived of that function where the imputed or apparent purpose of the statutory provision was to overburden this Court and to discourage or frustrate such proceedings, effectively preventing their proper determination.
If the necessity of protecting the essential constitutional and appellate functions of this Court was the touchstone for the derivation of an implied constitutional power of remittal, the plaintiff argued that it had been satisfied in his case. Whatever might have been the position at Federation, with a smaller population and economy, comparatively confined statute books and decisional authority and fewer cases to be heard, changes since then demonstrated the necessity of remedies for protecting the Court from the deliberate diversion of matters into its original jurisdiction that would not otherwise justify the exercise of such jurisdiction.
In short, the plaintiff submitted that this Court was not required simply to accept such a burden on its original jurisdiction without response. It was entitled, and obliged, to defend itself in order to continue to hear and determine those matters that had properly to be decided by the High Court in its original and appellate jurisdiction. To deny a power of ultimate control over the discharge of the Court's functions as envisaged by the Constitution would effectively surrender to the Parliament functions that constitutionally belonged to the Court itself.
Clarification of entrenched role: In his submissions, the plaintiff pointed to the unusual features introduced by the 2005 Act that diminish the statutory powers of remittal[101]. He also emphasised that the 2005 Act was enacted without knowledge of the later decision of this Court in Bodruddaza[102] that made clear what had perhaps earlier been left to inference[103]. Bodruddaza clarified the fact that s 75(v) of the Constitution could not be subjected to an inflexible time limit, as attempted in s 486A(1) of the Act, introduced by the 2005 Act. Thus the dynamics of the statutory scheme then provided were markedly changed[104].
As Gleeson CJ, Gummow and Hayne JJ point out, the legislative scheme of the 2005 Act failed to achieve the objective mentioned by the Attorney-General to support the further provisions now contested by the plaintiff[105]. It therefore remains for this Court to consider the further protective measure. This Court having invalidated the attempt to impose a rigid time limit upon its exercise of original jurisdiction, the plaintiff submitted that it was only a small step to invalidate the inter-connected attempts by the Parliament to prevent this Court from remitting its s 75(v) jurisdiction to the FCA or the FMC. It was a further small step to invalidate the laws that set out to deprive those federal courts of the jurisdiction and power to receive the remitted matters. For the plaintiff, all such provisions were infected with the vice revealed by Bodruddaza and should provoke a similarly firm judicial response.
Conformability with other implied powers: To rebut any suggestion that finding such an implied constitutional power to remit would involve taking a radical or unusual step, the plaintiff cited a broad range of other powers, not expressly stated in Ch III of the Constitution, or in legislation, which this Court has previously acknowledged, or assumed, to exist.
Such powers are collected in the reasons of Heydon, Crennan and Kiefel JJ[106]. I will not repeat them. It is fair to remark that, because a body is created by or under the Constitution as a "court", it will necessarily enjoy a range of powers so as to be able to discharge its functions accordingly. A court established under Ch III of the Constitution, as part of the integrated Judicature of the Commonwealth, will necessarily partake of certain features, enjoy certain powers and be subject to certain requirements implied from the essential character and functions of such courts[107]. The grant of any part of the judicial power of the Commonwealth necessarily carries with it the authority to do what is essential to effectuate the purposes of the court[108].
The plaintiff argued that the long list of implied powers accepted to date should make this Court less hesitant to add an implied constitutional power of remittal. If that power were necessary to protect the essential constitutional character and functions of this Court, it should be accepted and declared to exist along with the other implied powers previously discovered - and for similar reasons.
Conformability with historical orders: The plaintiff also submitted that, in creating the courts and legal procedures as expressed in Ch III of the Constitution, the purpose of the document was to establish (or continue) courts and legal procedures of a type generally found in the United Kingdom, from where Australia derived its judicial and legal traditions before and at the time of Federation[109].
English legal history reveals the existence of a writ, called Procedendo, which bears some similarity to the implied constitutional power of remittal for which the plaintiff argued. That writ was available under the hand of the respective Chief Justices of the several Royal Courts (or the Chief Baron of the Court of Exchequer) to command inferior courts, notwithstanding the earlier issue of a writ of prohibition, habeas corpus or otherwise, to[110]:

[88]

The writ of Procedendo is not expressly included in s 75(v) of the Constitution, nor is it mentioned within the public law remedies in the Judiciary Act 1903 (Cth) ("the Judiciary Act")[111], in other legislation[112], or in the present High Court Rules. In traditional courts of general jurisdiction, the survival of the writ continues to be a matter of debate[113].
There are important differences between the writ of Procedendo and the type of implied remittal for which the plaintiff argued. Specifically, Procedendo existed in a court to which proceedings had earlier been removed by another writ. It directed the court a quo to resume an interrupted hearing, notwithstanding the earlier order for removal. That is not the situation here. The suggested remittal is not to a court (the FMC) which, until interrupted by the superior court's writ, was hearing the plaintiff's proceedings. Instead, it is directed to that court where earlier proceedings had been started and discontinued by the plaintiff, acting in accordance with his then understanding of the validity and meaning of the legislation that is now challenged.
Nonetheless, the plaintiff relied on the writ of Procedendo to demonstrate that a prerogative or common law order in the nature of remittal was not, as such, alien to superior courts of the Anglo-Australian legal tradition, including in cases where writs of the kind provided by s 75(v) of the Constitution had earlier been made. To this limited extent, the point made by the plaintiff is a valid one. It is reinforced by the existence and exercise of the statutory power of remittal afforded by the Judiciary Act throughout most of the history of this Court.
Even at the time when questions as to the limit inter se of the constitutional powers of the Commonwealth and of the States were automatically removed into this Court by statute[114], power was retained by this Court to terminate the removal where it appeared that the cause "does not really and substantially arise under the Constitution or involve its interpretation". This Court would then dismiss the matter or "remit it to the Court from which it was removed as justice requires"[115]. The statutory power of remittal belonging to this Court has therefore always been very broad. To that broad statutory power the plaintiff argued that an implied constitutional power should be added, having at least some features in common with Procedendo.
Conformability with appeals: The plaintiff also relied on the care that had been taken by the Parliament when regulating appeals to this Court by special leave. This involved avoiding any actuality or appearance of statutory interference with this Court's discharge of its appellate functions and confining the legislative prescription to the "regulation" and "prescription" provided for by s 73 of the Constitution.
The plaintiff noted that this was the critical question before this Court in Carson v John Fairfax & Sons Ltd[116]. In upholding the validity of the new statutory provisions controlling the grant of special leave to appeal to this Court[117], one of the salient points made by the Court was that the last word in the determination of the Court's appellate jurisdiction was still reserved to the Court itself. If otherwise within the constitutional provision governing appeals, matters would thus only be excluded if this Court so decided. As the Court stated[118]:

[90]

By analogy, the plaintiff submitted that this Court had the final word as to whether it would hear or not hear matters, or would hear matters only after remittal to, and determination by, another court. Ultimately, this would only be possible if the power of remittal was perceived as inhering in the Court under the Constitution and was not necessarily reliant on federal legislative provisions. As demonstrated by the 2005 Act, such statutory provisions could occasionally reduce the ultimate power of the Court over the performance of its entire jurisdiction. Where this was the outcome, the plaintiff argued that this Court was empowered, out of necessity, to protect its own character and essential functions.
Conformability with final courts: The plaintiff also invoked decisions of two other final national courts, the Supreme Courts of the United States of America and India. He suggested that a decision from each court bore some analogy to the present problem and supported his argument for the existence of the implied constitutional power.
The United States decision was Carnegie-Mellon University v Cohill[119]. A federal District Court had held that there was an "inherent" (non-statutory) power in the federal judiciary to remit ("remand") cases that had earlier been removed from a State court to the federal District Court under its pendent jurisdiction. The power of remand was upheld for reasons of "economy, convenience, fairness, and comity"[120].
The relevant federal removal statute[121] explicitly authorised remand in only two situations. The parties to that case agreed that neither situation was applicable. The question in Carnegie-Mellon was therefore whether, in the absence of an express statutory provision to cover the type of case before the courts, the silence of the statute negated the existence of a curial power to remand. The majority held that it did not. They concluded that to remand the case would generally be preferable to dismissal, upon which order a statute of limitations would descend[122]. The majority thus held that remand was within the exercise by federal courts of their pendent jurisdiction. Whilst the source was not expressly spelt out, by inference, the power derived from the constitutional character of such courts.
The opinion of the Supreme Court was delivered by Marshall J[123]. A strong dissent was written by White J (with whom Rehnquist CJ and Scalia J agreed)[124]. The minority judges contested the power of the Court itself to grant federal District Courts "virtual carte blanche to remand pendent claims" and particularly "for the amorphous reasons" expressed[125]. They held that this action could not be reconciled with the earlier holding of the Supreme Court in Thermtron Products Inc v Hermansdorfer[126] "that cases cannot be remanded for nonstatutory reasons"[127].
Despite this earlier authority and the strong dissent in Carnegie-Mellon, the current doctrine of the United States Constitution is that a remand (remittal) power belongs to federal courts beyond the powers provided to such courts by Congress. Because the power was reposed in a federal court, there was thought to be no relevant risk of its misuse for improper reasons or "manipulative tactics"[128].
The Ch III provisions in the Australian Constitution are different from those of Art III in the United States Constitution. However, Carnegie-Mellon is arguably an important acknowledgment of the potential for the Constitution itself to sustain, in certain circumstances, an implied or "inherent" power to remand matters to other courts for reasons of broad requirements of justice and out of powers inhering in a court of the given character and functions.
The decision of the Supreme Court of India in P N Kumar v Municipal Corporation of Delhi[129] is different from the present case. That case did not involve remittal, as such, but rather a direction by the Supreme Court to the petitioners to approach the relevant State High Court for relief under Art 226 of the Indian Constitution. The petitioners had filed a writ petition before the Supreme Court of India under Art 32 of the Constitution. That article affords constitutional remedies for the enforcement of fundamental rights as provided in Pt III of the Indian Constitution. Notwithstanding Art 32, by Art 226, every High Court has power, within its jurisdiction, to issue writs of the same kind (including writs in the nature of mandamus, prohibition and certiorari).
The deflection of the petition to the relevant High Court in Kumar appears to have occurred by way of adjournment or postponement of the proceedings in the Supreme Court. Nevertheless, some remarks of the participating judges (E S Venkataramiah and K N Singh JJ) describe circumstances that, if replicated in Australia, would arguably present the necessity for an implied constitutional power of remittal to prevent the final court from being so overburdened in its original jurisdiction as to be incapable of fulfilling its character and discharging its functions[130]:

[95]

A discretionary refusal to enter upon undoubted jurisdiction is to be distinguished from an order of remittal or its functional equivalent. Nonetheless, the predicament of the Supreme Court of India, described in Kumar, indicates that, where necessary, such courts may feel obliged to find remedies for the gross over-crowding of their lists. This is especially so in final national courts, like this Court, where the discharge of their essential constitutional functions can be endangered by such over-crowding.
For example, if the Federal Parliament were to repeal the universal special leave arrangements governing the appellate jurisdiction of this Court[131], it would be likely that the supervening increase in appeals would oblige this Court to adopt non-statutory means to protect the discharge of its core constitutional functions. Likewise, within the original jurisdiction. If the Parliament were to prevent all possibility of judicial review in mass jurisdiction subjects (such as migration decisions), leaving only the remedies entrenched in this Court under s 75(v) of the Constitution, it is likely that other non-statutory procedures would have to be adopted by the Court to protect the fulfilment of its constitutional character and functions.
In effect, this was what the plaintiff argued. He submitted that the enactment by the Parliament of a statute that diverted his proceedings, and others like them, to this Court alone enlivened the necessity of a constitutional remedy by way of remittal. Once that power was derived from the Constitution itself, the question of whether circumstances had been demonstrated for the exercise of the power in the present case could be separately argued and decided.
Immaterial considerations: Against the foregoing presentation of his arguments, the plaintiff labelled a number of the contentions raised against him as immaterial to the implied power of remittal for which he contended.
Thus, the fact that no precedent existed which assisted him on the exact point[132] could be explained because, never before 2005, had the Parliament of the Commonwealth endeavoured in such a way to narrow this Court's statutory remittal power. Never, having granted a general jurisdiction to subordinate federal courts to provide judicial review, had that jurisdiction been cut back effectively to oblige such applications to be brought in this Court. Likewise, the plaintiff submitted that the absence of a present "flood" of cases was not determinative of the existence, or otherwise, of an implied power of remittal[133]. This was to be found, or not found, in the language, structure, history and purpose of the Constitution. A decision on the existence of the power was to be distinguished from a decision on the occasion of its suggested exercise.
Conclusion: an arguable concept: I have taken care to explain the plaintiff's arguments in order to demonstrate that his submission is far from unpersuasive. In circumstances that can be postulated, an implied constitutional power of remittal might be upheld, beyond the statutory power afforded by s 44 of the Judiciary Act. In his reasons for the Court in Lambert v Weichelt[134], Dixon CJ[135] appears to have contemplated the existence of wider powers of remittal beyond the Judiciary Act. He said, referring to a proceeding removed into this Court by order made under s 40 of the Judiciary Act[136]:

[105]

By inference, if in the circumstances of Carnegie-Mellon the relevant federal law had expressly provided for remand on specified conditions or had forbidden such remand, the reasoning suggests that the Supreme Court would have given effect to the statute according to its terms.
So why not do so here, where the Parliament has enacted a law expressly forbidding remand by the High Court to the FCA and the FMC? The answer provided by the plaintiff was that such a law purported to "define" the High Court's "original jurisdiction" in a matter that fell within the constitutional list (s 75) and thus fell outside the parliamentary power to make laws "defining the jurisdiction". Yet, such a conclusion would stretch the ambit of the constitutional grant of jurisdiction in s 75(v) to cover not only the exercise of that jurisdiction in this Court, but also its exercise in some other court to which the High Court, of suggested necessity, had remitted the matter pursuant to the implied constitutional power of remittal. Only in this way could the implied power of remittal invalidate the enacted exclusion of remittal. The case for adopting such a construction of s 75(v) has not been made out.
Legislative protection of jurisdiction: The scheme of the Constitution obviously envisages initiatives by the Parliament to protect and uphold the capacity of this Court to fulfil its essential constitutional character and functions. It does so both in the appellate and original jurisdiction of the Court. Over the years, laws have been enacted to provide "exceptions" and "regulations" in the determination of appeals[147], to "confer" original jurisdiction on this Court and to "define" the jurisdiction of other federal courts. This has been done to protect this Court from burdens that would frustrate the fulfilment of its essential constitutional character and functions[148].
This appears to be the way the Constitution was intended to operate, in an ongoing conversation between the Court and the Parliament, each respectful of the other's envisaged role. This Court has said many times that, in resolving particular constitutional questions, it does not need to postulate a chamber of legislative horrors, unlikely to be enacted by the elected Parliament of the Commonwealth[149]. On the other hand, a conviction that a constitutional offence will be rare is not a reason for ignoring it when it is shown to exist. That would be to betray the central function of this Court as the guardian of the Constitution and upholder of its requirements. We should not adopt a laissez-faire attitude to the validity of impugned legislation. Sometimes exceptional and apparently offensive legislation can signal a constitutional defect which it is the function of this Court to expose[150].
The plaintiff emphasised the uniquely restrictive character of the law which, he complained, was part of a scheme that was partially invalidated in Bodruddaza[151]. However, substantially coinciding with the 2005 Act, this Court took its own initiatives, pursuant to statutory power, to make new Rules of Court to cope with defined proceedings in the Court without oral hearings[152]. The consequent amendments to the Rules were not disallowed in the Parliament.
Therefore, the record does not sustain an inference (if such were suggested) that, by confining to this Court's original jurisdiction proceedings such as those of the plaintiff, the Parliament has deliberately or otherwise "swamped" this Court with unsuitable matters or set out to impair its capacity to discharge its jurisdiction in conjunction with the necessary performance of the appellate jurisdiction of the Court.
Rationale for the proceedings: During argument, I asked counsel for the plaintiff to resolve a puzzle[153]. Why, having commenced proceedings in this Court (where the statutory time limit would not debar him from relief), was the plaintiff anxious to have his matter remitted to the FMC? Why would he not expend the same resources and energy to pursue the available constitutional remedies in this Court under s 75(v)?
The answer provided was that, by decision of legal aid authorities in the State of Victoria, support for proceedings in the original jurisdiction of this Court would not be available to the plaintiff in a case such as the present. It was, however, available to contest the constitutional validity of the law under challenge.
Obviously, the necessity of an implied constitutional power of remittal cannot be determined, or even influenced, by such extraneous considerations. Nevertheless, for practical reasons, I am prepared to accept that the plaintiff and those advising him may have judged that, on the available statistics, his chances of securing a favourable disposition in this Court were small. As a matter of practicalities, his legal prospects, and those of people like him, would be improved if their applications for judicial review were heard in the first instance by the FMC. Certainly that Court would ordinarily have more time available to it for such a case than this Court would.
Nevertheless, an invocation of the original jurisdiction, which is what the plaintiff attempts, initiates a trial ultimately dependent on evidence. The plaintiff wishes to have that trial. The stated case is a means of deciding whether such a trial is viable or, constitutionally speaking, would be futile. Nothing in the record, which this Court may consider in understanding the stated case, supports a conclusion that the burden imposed on this Court by the impugned provisions of the Act, as introduced by the 2005 Act, would impair the capacity of this Court to perform its essential constitutional functions.
Moreover, those matters of which the Court may take judicial notice contradict any such conclusion. The experience of the Court, under the new Rules, evidences its capacity to cope with the present jurisdiction. The dispositions remain entirely subject to the power and decision of the Justices. The burdens on this Court, although large, are much less than those on the Supreme Court of India, as described in Kumar[154].
It follows that no foundation is afforded that could sustain a conclusion that an implied constitutional power of remittal from this Court to another court of the plaintiff's matter is necessary, in the sense of constitutionally essential, to protect the capacity of the Court to fulfil its constitutional character and to discharge its core constitutional functions.
Conclusion: remittal not established: Accordingly, upon his arguments on the stated case, the plaintiff has failed to make good his claim of a non-statutory power of remittal in this Court. Subject to what follows, I would not be prepared to exclude the possibility that such an implied constitutional power of remittal might exist, to be called forth in conceivable circumstances. The evidence presented in the case stated and knowledge available by judicial notice contradict the present existence of such extreme circumstances. It is enough, therefore, to say that the plaintiff has not made good his assertion of an implied constitutional power of remittal. The questions in the case stated should be answered accordingly, but upon that footing.

[108]

If the introductory words "[s]ubject to this section" were found invalid as an impermissible burden on an implied constitutional power of remittal belonging to this Court (and, possibly, if s 476(2) and (4) were invalidated for the same reason), the FMC would undoubtedly then enjoy jurisdiction and power under the Act to receive any such remittal from this Court.
Thus, to remit to a recipient federal court, with its jurisdiction "defined" by a law made by the Parliament, as s 77(i) of the Constitution contemplates, only comparatively minor surgery on the Act would be needed. This might have to be supplemented by a declaration that the provisions of s 476B of the Act, as would impede the exercise of the implied remittal power, were invalid under the Constitution. In the present case, with such limited surgery, a receiving court would validly exist. There would then be no need to explore the remaining issues of whether, under the Constitution, State Supreme Courts might (without federal legislation) receive any such remittal, supported only by the Constitution itself or by the orders of this Court carrying with them the requisite federal jurisdiction to make good the remittal[156].
Conclusion: unnecessary to answer: As the plaintiff did not succeed in his argument that an implied constitutional power of remittal exists in this Court, it is neither necessary, nor appropriate, to pursue further the possible existence of a receiving court with the jurisdiction and power to decide the plaintiff's matter.
It is sufficient to conclude that, had an implied constitutional remittal power been otherwise established, such power to receive the remittal would not have to be rejected in this case because of a lack of a court that could receive and determine the remitted matter. Like the ultimate question of the existence of an implied power of remittal, the resolution of that question can be postponed. Such issues may never arise to be answered. The experience of the Constitution to this time suggests that this will be the situation. Nothing in the plaintiff's stated case, or in otherwise available knowledge, establishes the contrary.

[148]

It is convenient at this juncture to mention a number of matters about this scheme. A decision to refuse to grant a visa is a "privative clause decision" (ss 474(2) and (3)(b)) unless it involves a jurisdictional error, in which case it is a "purported privative clause decision" (s 5E)[161].
Part 7 of the Act permits full merits review of a decision of the Minister's delegate before the Refugee Review Tribunal if an application for review is made within the time limits specified in s 412(1)(b) of the Act. The limitations on courts which have jurisdiction in respect of judicial review fall to be assessed within that context. It is only if an applicant for a protection visa does not seek merits review of a delegate's decision or fails to seek such review within the permitted time under s 412(1)(b) (as occurred here) that the legislative limitations on courts which have jurisdiction in relation to "primary decisions" are relevant.
Section 476A provides that the Federal Court has original jurisdiction in relation to a "migration decision", if and only if the decision falls within the four paragraphs, set out above, which do not include a "primary decision" as defined in s 476(4).
Whilst s 476(1) provides generally that the Federal Magistrates Court has the same original jurisdiction in migration decisions as this Court has under s 75(v) of the Constitution, s 476(2)(a) expressly excludes from that conferral of general jurisdiction, jurisdiction in relation to a "primary decision" and s 476(2)(d) decisions mentioned in s 474(7)[162]. The plaintiff characterised ss 476(2)(a) and (d) as withdrawing jurisdiction from a receiving court (said to be the Federal Magistrates Court), and the plaintiff characterised s 476B as "prohibiting" this Court from remitting a matter to the receiving court.
There is agreement that of the three courts set out in s 484(1) only this Court has jurisdiction conferred on it by the Act in respect of a "primary decision". Accordingly, the plaintiff, the defendant and the intervener are all agreed that Question 1 of the stated case should be answered "Yes". This answer is plainly correct.

[154]

It is incorrect to say that the jurisdiction of a State Supreme Court is "entrenched" or left as it previously stood before a conferral of federal jurisdiction in respect of the same subject matter is made under s 77(iii). Supreme Courts of the States did once possess jurisdiction in relation to some matters covered by s 75 of the Constitution but possession of that jurisdiction was authorised by State law operating independently of s 77(iii) of the Constitution.
As explained by Isaacs J in Baxter v Commissioners of Taxation (NSW)[168] the fact that State Supreme Courts may exercise jurisdiction in respect of subject matter once authorised by State law, is a circumstance which does not detract from or qualify in any way a later investing of a State court with federal jurisdiction under s 77(iii), which then is the source of federal jurisdiction in respect of that subject matter.
Further, in Pirrie v McFarlane[169] Knox CJ recognised that s 77(ii) authorised legislation that made the jurisdiction of this Court in certain matters exclusive of the State Supreme Courts.
Section 71 of the Constitution vests the judicial power of the Commonwealth in "three repositories"[170]: the High Court, such other federal courts as Parliament creates and such other courts as Parliament invests with federal jurisdiction. By ss 77(i) and (ii) Parliament is empowered to make the High Court the exclusive repository of the matters enumerated in ss 75 and 76 as it sees fit. Nothing in s 77 suggests Parliament can take away the jurisdiction set out in s 75(v).
Once a State Supreme Court is validly invested with federal jurisdiction, pursuant to s 77(iii), then under s 109 of the Constitution a State law conferring jurisdiction to do the same thing is no longer valid[171] or is inoperative[172]. Section 39(1) of the Judiciary Act operates to remove the jurisdiction of State Supreme Courts in all nine matters enumerated in ss 75 and 76 in which this Court has original jurisdiction, and additional jurisdiction conferred by Parliament, and then invests jurisdiction in those State courts in some, but not all, of those enumerated matters. Thereafter the jurisdiction of this Court (except as otherwise provided by s 39) is exclusive of that of State courts[173]. As explained in the joint judgment of Gleeson CJ, Gaudron and Gummow JJ in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd[174]:

[156]

As mentioned, the plaintiff also relied on the expansion of this Court's appellate role upon the creation of a number of federal courts (pursuant to s 71), from which appeals could be brought to this Court (s 73(ii)), as further demonstration of the need for this Court to remit matters falling outside what were described by the plaintiff as its "principal functions". That argument involved some tacit acknowledgement that for many decades matters within the original jurisdiction of this Court under s 75(v) were exclusively dealt with by this Court.
However narrowly the principal functions of the Court may be described for certain purposes, including the purpose of characterising the Court's current work, the importance of the Court's original jurisdiction under s 75(v) of the Constitution has never been doubted and that importance has been re‑emphasised recently in Bodruddaza v Minister for Immigration and Multicultural Affairs[175].
As a practical aside, it is worth mentioning that this Court's additional original jurisdiction under s 76 of the Constitution concerning patent matters[176] subsisted for many decades without any implied power to remit such matters, before such jurisdiction was conferred on other courts by Parliament. There is no doubt that the Federal Court set up by and under the Federal Court of Australia Act 1976 (Cth) owed its origins in part to a perceived need to relieve this Court of an excessive work load[177]. With the commencement of the Federal Court a great deal of the original jurisdiction conferred on the High Court by s 76 was invested in the Federal Court in matters like patents and taxation. Equally, there is no doubt that the Federal Magistrates Court was set up, in part, to relieve the excessive work load on the Federal Court in certain matters.
Relevantly, jurisdiction of the Federal Court to hear claims for prerogative relief, subject to some exceptions, is now conferred by and defined in s 39B(1) of the Judiciary Act which provides:

[166]

Undoubtedly there are exceptional circumstances in which this Court might decline to exercise jurisdiction in respect of a matter within its original jurisdiction, an obvious example being where the proceedings constitute an abuse of process. Further, the Court may decline to exercise its jurisdiction where a matter may be remitted pursuant to the statutory power in s 44 of the Judiciary Act[189]. A power to remit must be conditioned upon the basis that a receiving court has jurisdiction in respect of at least the subject matter[190].
The plaintiff also relied, by way of analogy, on the writ of procedendo permitting a remitter back to an inferior court by a superior court in circumstances where there had been an incorrect removal of a cause to the superior court on an application for certiorari or other prerogative relief including habeas corpus. The analogy is imperfect and unhelpful in the context of urging an implied power to remit, because the writ of procedendo operated to return a matter to an inferior court to enable it to resume the jurisdiction it undoubtedly possessed[191]. If anything, the writ more closely resembles, but then only somewhat, the powers of this Court under s 42(2) of the Judiciary Act.
Finally, it was asserted that an implied power to remit a matter within the original jurisdiction of this Court did not differ from various powers associated with the Court's power to protect and control proceedings before it. Examples given included powers to order a stay, pending a hearing of a special leave application[192], to grant an injunction pending a hearing[193] including a Mareva injunction, to grant bail[194], to punish for contempt[195] and to prevent an abuse of process[196]. An implied power to prevent an abuse of process does not extend a court's jurisdiction beyond that which is vested in it[197].
None of those considerations obliges the conclusion that the judicial power of the Commonwealth supports an implication of a power to remit, to another court, a matter within the original jurisdiction of this Court. First the implication of such a power is contrary to the express terms of s 77. Just as fundamentally, this Court's power to control proceedings before it and make orders to do all that is necessary to effectuate a grant of jurisdiction to it does not include preventing a person from invoking the jurisdiction of the Court[198]. Further, incidental powers in respect of issues such as contempt of court or concerning the preservation of the subject matter of proceedings are distinct from the power of remitter.
The power to invest original jurisdiction of this Court in another court, whether concurrently, partially, or wholly, is entirely a matter for Parliament as provided by s 71 and there is no fetter in s 77 as to how Parliament can define the federal jurisdiction of any federal court other than the High Court. This Court cannot remit a matter to the Federal Magistrates Court when Parliament has chosen not to invest that Court with relevant jurisdiction. The Federal Magistrates Court lacks the authority to deal with the subject matter and accordingly this Court lacks the authority to remit the matter to that Court.
To the extent that the plaintiff contended that a consideration of the judicial power of the Commonwealth obliges an implication that Parliament must ensure that there be a court other than this Court with concurrent jurisdiction in relation to every matter in which this Court has original jurisdiction under s 75(v), that contention is misconceived and must also fail.

[170]

Furthermore, in Abebe, as already noted, a majority of this Court upheld the validity of provisions[202] which restricted severely the jurisdiction of the Federal Court to review certain decisions of the Refugee Review Tribunal, which resulted in a significant number of proceedings being commenced in the original jurisdiction of this Court pursuant to s 75(v) of the Constitution. Nevertheless the majority saw nothing in ss 75, 76 and 77 of the Constitution which prevented the Parliament from enacting ss 476, 485 and 486 of the Act[203] and nothing in s 77(i) or Ch III which required Parliament to give a federal court authority to decide every aspect of a controversy merely because it had jurisdiction over some aspect of that controversy.
In relation to the challenge to validity in this proceeding, there is nothing in ss 71, 75, 76 or 77 of the Constitution which prevents the Parliament from enacting ss 476(2)(a) and (d) of the Act. Equally, it would be open to Parliament at some time in the future to vest to such extent as it could, and as it saw fit, jurisdiction in one of the federal courts created by it in respect of "primary decisions" as defined in the Act and in respect of decisions under s 474(7). The fetters on Parliament relevant to the arguments advanced are that it could not (in the absence of constitutional amendment) wholly divest this Court of its original jurisdiction set out in s 75(v) of the Constitution or, as already mentioned, vest jurisdiction in a federal court wider than the matters mentioned in ss 75 and 76[204].
The position in relation to the claims of invalidity of ss 476(2)(a) and (d) of the Act is clear, and no particular, or further, illumination is likely to be gained by considering the position in other jurisdictions, such as the United States of America, with different constitutional arrangements in relation to the original jurisdiction of the final court in the judicial hierarchy. It was recognised in Re Jarman; Ex parte Cook[205] that the Judiciary Act proceeds on the footing that this Court may refrain from exercising its original jurisdiction where another court is invested with relevant federal jurisdiction, and that the Supreme Court of the United States of America has developed a comparable doctrine but for the reasons already given, such doctrines are not relevant to the facts here.

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