EDELMAN J.
Introduction
The circumstances of, and background to, this appeal are described in the joint judgment. The central issue is the construction of s 79(1) of the Judiciary Act 1903 (Cth). The appellant was tried in Western Australia for two offences under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). Since he was not a resident of Western Australia, his trial, prosecuted by the State of Western Australia, was in federal jurisdiction. He was convicted of each offence by a guilty verdict of 11 of the 12 jurors. The Criminal Procedure Act 2004 (WA) permitted a conviction without unanimity of the jurors. The appellant submitted that unanimity was required because s 80 of the Constitution requires a unanimous verdict in a trial of an "offence against any law of the Commonwealth". He submitted that his trial was for offences against a law of the Commonwealth because his trial was in federal jurisdiction, so s 6(1)(a) of the Misuse of Drugs Act could only apply if it was "picked up" as a law of the Commonwealth by s 79(1) of the Judiciary Act.
The Court of Appeal of the Supreme Court of Western Australia held that s 79(1) of the Judiciary Act did not "pick up" s 6(1)(a) of the Misuse of Drugs Act. The appellant submitted that this conclusion was an error. The appeal to this Court can only be allowed if the appellant's construction of s 79(1) is accepted.
The appellant's construction, which I describe as the first construction, has significant support in a number of decisions of this Court. However, none of those decisions explore any of the relevant alternative constructions of s 79(1). There are at least four possible constructions of s 79(1) of the Judiciary Act, two of which are viable alternatives to the first construction. In these reasons I describe these two viable alternatives as the second and third constructions. The difference between these alternatives was not explored in written or oral argument. Some of the submissions of the respondent and the interveners were more consistent with the second construction. Some were more consistent with the third.
Each of the first three constructions is based upon a different assumption. Those assumptions are broadly as follows. The first construction assumes that all laws in federal jurisdiction must be federal laws. The second construction assumes that all courts exercising federal jurisdiction are effectively federal courts. The third construction assumes only that all authority by which courts exercise federal jurisdiction is federal authority. Of these three constructions, the first requires s 79(1) to have the broadest operation and the third requires the narrowest operation.
It is not necessary in these reasons to reach a final conclusion about which of the second or third constructions should be preferred because, on balance, after taking into account the strength of authority in support of the first construction, I consider that each should be preferred to the first construction, which is the construction that the appellant advanced. However, in circumstances in which the reasons of the other members of the Court in this appeal adopt the second construction, I explain in these reasons why the second construction presents significant obstacles and, if submissions had been made on the point and it were necessary to decide, why I would adopt the third construction. In any event, all members of the Court have concluded that the appellant's construction cannot be accepted.
The appeal must be dismissed.
Four constructions of s 79(1) of the Judiciary Act
Section 79(1) of the Judiciary Act provides:
"The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."
With the exception of the addition of the reference to a Territory in 1979, s 79(1) has remained unamended over the 114 years of its existence. It has been relied upon in many cases in this Court. Yet, there still remains considerable doubt about what is meant by "[t]he laws of each State or Territory". It is well established that since there is only one common law of Australia, the "laws of each State or Territory" can refer only to statute law. There is no issue in this appeal concerning the application of State or Territory laws in federal courts by s 79(1). The focus of the appeal, and these reasons, is only upon the relationship between two of the types of jurisdiction or authority exercised by State courts, being State and federal jurisdiction. Other sources of jurisdiction, and the particular issues concerning Territory courts, can be put to one side. The issue in this appeal, and the doubt concerning the meaning of the "laws of each State or Territory", arises when s 79(1) is needed to apply State statutory laws to State courts exercising federal jurisdiction. There are, at least, four possible constructions available. They are summarised in broad detail below.
The first construction
The first construction is that the laws to which s 79(1) refers are all the statutory laws of a State. This is the broadest construction available. On this construction, when a State court exercises federal jurisdiction, s 79(1) operates to make binding all the laws of that State, except as otherwise provided by the Constitution or the laws of the Commonwealth. Subject to that exception, all putative laws of that State become Commonwealth laws in federal jurisdiction. This first construction was advanced by the appellant. Unless the appellant can establish this construction the appeal cannot succeed. This Court unanimously rejects the first construction in this appeal.
The second construction
The second construction is that the laws to which s 79(1) refers are those statutory laws which confer powers on courts or which govern or regulate a court's powers. This is the construction adopted on this appeal in the other judgments of this Court.
As to the conferral of powers, the second construction assumes that in the absence of s 79(1) a State court has no operative powers when the source of its authority to decide is federal. Section 79(1) is needed, on the second construction, to confer every power upon the State court in such cases. Except as otherwise provided by the Constitution or the laws of the Commonwealth, s 79(1) would, on this construction, confer power upon a State court to make orders including the granting of declarations, the making of any interlocutory and final orders, and the imposition of penalties and sentences.
On this construction, s 79(1) would not be needed for a State law which created a duty or liability but did not confer any power on a State court. Hence, s 79(1) would not be needed for, and would not apply to, a State law which created an obligation not to traffick a drug of dependence. But there may be difficulties on this construction with the application of s 79(1) to a law, drafted as a single State law, which provides that a person is liable for 15 years' imprisonment for trafficking in a drug of dependence. Assuming, as this construction does, that the provision for a sentence of up to 15 years' imprisonment can be understood as a law binding on a court, the difficulty is that the single provision creates the duty not to traffick and confers a power for the court to impose the particular sentence. It may be that, on this construction, s 79(1) could not apply to the latter without application to the former. There might also be difficulty even if the trafficking law and the power of the court are contained in separate provisions if those separate provisions are seen as practically "inseparable". Another difficulty that arises from the inclusion of conferral of powers in this construction is the applicable law for federal jurisdiction. This difficulty arises because this construction would mean that only legal obligations, but not applicable orders, could be imposed upon a litigant in one State court by the statute law of a different State.
As to the governing or regulation of powers, on the second construction s 79(1) applies to the statutory laws which govern or regulate the court's authorisation to exercise power. This includes laws regulating the territory, persons, and subject matter over which the power is exercised. Examples of laws concerning regulation of the exercise of authority over persons include laws concerning standing or the joinder of parties. Examples concerning the regulation of the court's authority over the subject matter are laws which bar the exercise of authority over that subject matter after the lapse of a period of time, or laws concerning procedure or evidence in the course of adjudicating over that subject matter.
The third construction
The third construction is that the laws to which s 79(1) refers are only those statutory laws which govern or regulate the powers that a court (in this case, a State court) exercises as part of its authority to decide. This construction recognises that an assumption underlying s 79(1) is that power is already vested in courts exercising federal jurisdiction. When the authority to exercise that power becomes federal then it is federal law which must regulate the exercise of that power. But the State court's power is not removed and replaced with a new federal power.
Authority to decide (ie jurisdiction) is an authorisation to exercise power. To be "exercising federal jurisdiction" is to be exercising power where the source of the authority to do so is federal. On the third construction, the power being exercised need not itself derive from a federal source, although the authority to exercise it would be federal. For instance, a source of power can be a combination of State laws which create duties and State laws which enable courts to enforce those duties. Laws which are "binding on ... Courts" that are "exercising" federal jurisdiction are laws concerned with the authorisation to exercise that existing power. They are laws which govern or regulate the exercise of existing power (including existing, but newly created, power). This construction therefore draws a fundamental distinction between (i) laws which regulate the authority to decide of a court which has existing powers, and (ii) laws which are concerned with the conferral of powers that a court might exercise. The basic distinction is between jurisdiction, or authority to exercise power, and the power itself.
The fourth construction
The fourth possible construction is that the laws to which s 79(1) refers are laws concerning procedure rather than substantive laws. The fourth construction was adopted by the Court of Appeal of the Supreme Court of Western Australia in this case. This construction had some support in early decisions of this Court. For example, in Lady Carrington Steamship Co Ltd v The Commonwealth, Higgins J interpreted s 79 as applying only to procedural laws, which led to his doubt "as to the applicability of sec 79 of the Judiciary Act to the High Court at all" because the procedure of the High Court was governed by the High Court Procedure Act 1903 (Cth). However, the view that s 79 should be confined to matters of procedure has subsequently been rejected. The distinction introduces an unnecessary gloss upon the statutory language. On appeal to this Court, no party or intervener supported the fourth construction.
The methodology and structure of these reasons
As to the first three constructions, it is impossible to reconcile all of the reasoning in the various judgments in this Court in cases concerning s 79(1). It is possible to point to reasoning in this Court which supports any of them; although the majority of cases assume that the construction to be applied is the first construction. It is also difficult to identify any case which would be decided differently once, as I explain below, it is accepted that State laws which do not fall within s 79(1) will usually apply of their own force. Indeed, some decisions simply relied upon the relevant State law operating either by its own force or through the effect of s 79. In Pedersen v Young, Kitto J said that the "received opinion as to the operation of ss 79 and 80" was that "subject to the Constitution and to the laws of the Commonwealth, all Queensland laws must be treated as binding in this Court, as federal law if not by their own force" (emphasis added). Since the reasoning in most previous cases cannot be determinative, the issue in this appeal must be approached as a matter of principle and with an eye to consistency with the results of previous cases.
The remainder of these reasons is divided as follows:
A. |The fundamental distinction between "jurisdiction" and "power"|[125]|
B. |The scheme of ss 38 and 39 of the Judiciary Act|[135]|
C. |The need for s 79(1) of the Judiciary Act|[144]|
D.|The text and context of s 79(1) of the Judiciary Act|[145]|
E.|The history of s 79 of the Judiciary Act|[153]|
F.|Authorities supporting the first construction|[164]|
G.|Reasons to prefer the third construction|[181]|
|The text, context, and purpose of s 79(1) support the third construction|[183]|
|Constitutional restrictions on power favour the third construction|[188]|
|Applicable law principles favour the third construction|[192]|
Conclusion|[198]|
A. The fundamental distinction between "jurisdiction" and "power"
The essence of the distinction between the second and third constructions of s 79(1) turns upon the fundamental distinction between "jurisdiction" and "power".
In 1824, Du Ponceau, whose writing was influential in the development of United States federal law jurisprudence, explained that the term "jurisdiction" has been used in a general sense to mean power as well as in a "more limited sense":
"Jurisdiction, in its most general sense, is the power to make, declare, or apply the law; when confined to the judiciary department, it is what we denominate the judicial power. It is the right of administering justice through the laws, by the means which the laws have provided for that purpose. In its more limited sense, which is that in which we are now viewing it, it is still the judicial power; but considered in relation to its extent and to the subjects which it embraces or upon which it acts." (emphasis in original)
The first, "general", meaning to which Du Ponceau referred was the powers that a court might exercise. The second, "limited", meaning was the authority to adjudicate (and therefore authority to exercise those powers). The difference between these two central meanings of jurisdiction has been important in the development of Australian jurisprudence. The Constitution and the Judiciary Act generally use the word "jurisdiction" in its "more limited" sense, preferring the word "power" for the broader sense. As Isaacs J said in Baxter v Commissioners of Taxation (NSW), speaking of the reference to "jurisdiction" in s 39 of the Judiciary Act and s 77(ii) of the Constitution, the word "signifies in this connection authority to adjudicate". Federal jurisdiction, as "jurisdiction derived from a federal source", signifies the exercise of an authority to decide which has a federal source.
More than 80 years after Isaacs J enunciated this point in Baxter v Commissioners of Taxation (NSW), in a now commonly quoted passage in Harris v Caladine, Toohey J described jurisdiction as the authority to decide the range of matters that can be litigated before a court, contrasting it with the powers that can be exercised in deciding such matters (the broader, general sense of jurisdiction). Hence, as Toohey J explained in Jackson v Sterling Industries Ltd, where the issue concerns "the power of the Court to make the orders it did" then the question is one of power, not jurisdiction.
Jurisdiction, in the sense of an authority to adjudicate, has a number of dimensions, as Du Ponceau recognised. It has a geographic dimension ("over which territory does the authority to exercise power extend?"); a personal dimension ("over which persons does the authority to exercise power extend?"); and a subject matter dimension ("over which subject matters does the authority to exercise power extend?").
As for power, the power exercised within the authority to decide is the power "to make, declare, or apply the law" by an act of the court. It is sometimes said that in federal jurisdiction an "immediate right, duty or liability" is established "by the determination of the Court". However, it will often be more accurate to say that the exercise of power gives effect to a right, duty or liability because in many cases the right, duty or liability exists before the determination of the court gives effect to it.
Jurisdiction, in the sense of an authority to decide, is related to power because power is usually exercised in the course of an authority to decide. The fundamental point is that, as French CJ, Gummow and Bell JJ said in Osland v Secretary to Department of Justice [No 2], "[t]he distinction between jurisdiction and power has been made repeatedly in this Court".
The distinction between the authority to decide and the power to make orders in the exercise of that authority is consistent with the broad and general definition of judicial power given by Griffith CJ, 108 years ago, in Huddart, Parker & Co Pty Ltd v Moorehead and cited on many occasions since. The Chief Justice said:
"I am of opinion that the words 'judicial power' as used in sec 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action."
Jurisdiction is concerned with the subject matter, persons, and territory over which the "binding and authoritative decision" can be given. The exercise of judicial power about which Griffith CJ spoke involves not merely the making of orders but:
"involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist."
As I explain below, in ss 38, 39, and 79 of the Judiciary Act, the reference to jurisdiction is to its limited sense of authority to decide; it is not a reference to the powers a court may exercise. As Toohey J observed in Kable v Director of Public Prosecutions (NSW), quoting from Professor Lane, the same distinction between jurisdiction and power is made in Ch III of the Constitution. For instance, s 71 of the Constitution speaks of the "judicial power of the Commonwealth" but ss 76 and 77 speak of the "jurisdiction" of the High Court and federal courts. The distinction can also be seen in a provision such as s 22 or s 23 of the Federal Court of Australia Act 1976 (Cth) which "arms the Court with power" but which "does not invest the Court with jurisdiction".
B. The scheme of ss 38 and 39 of the Judiciary Act
Although ss 38 and 39 of the Judiciary Act have been amended in some respects, the scheme introduced by those sections remains the same as it was when they were enacted. It is convenient to consider ss 38 and 39 as they were initially enacted in order to understand the operation of s 79, which was enacted at the same time.
Immediately prior to the enactment of the Judiciary Act, State Parliaments had plenary power to legislate in relation to some, but perhaps not all, of the matters contained within ss 75 and 76 of the Constitution. Some of these matters, including s 75(iv), which is the reason for federal jurisdiction in this case, identified "controversies well known in the anterior body of general jurisprudence in the colonies".
Section 38 of the Judiciary Act involved an exercise of a "power to exclude" deriving from s 77(ii) of the Constitution. In relation to the five sub-sections of s 38, all of which fell within s 75 of the Constitution, the authority to decide these matters was made exclusive to the High Court. Section 39(1) was also an exercise of the power to exclude deriving from s 77(ii) of the Constitution. Section 39(1) provided that the jurisdiction of the High Court in matters not mentioned in s 38 "shall be exclusive of the jurisdiction of the several Courts of the States". The exception to this exclusivity was s 39(2), which, relying upon the power in s 77(iii) of the Constitution, "invested" the courts of the States with "federal jurisdiction" in all matters in which the High Court has, or could have, original jurisdiction, other than those matters within s 38.
Four matters are clear about the investing of federal jurisdiction in State courts under s 39(2) of the Judiciary Act. First, the "jurisdiction" to which s 39(2) referred was the court's authority to decide with the geographic, personal, and subject matter dimensions described above. It was not a vesting of power. That power already existed. The vesting of federal jurisdiction (authority to exercise the power) was expressed to be "within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise". Secondly, the vesting was subject to conditions, particularly the abolition of appeals to the Queen in Council. Thirdly, despite an early wrong turning, the "settled effect" of s 39(2) was that it excluded the operation of any concurrent State authority to decide. It did this by operation of s 109 of the Constitution. As I have explained, the pre-existing State authority to decide extended to exercising the powers of State Parliament over matters within ss 75 and 76 of the Constitution. Fourthly, the federal jurisdiction vested in State courts under s 39(2) was complemented by s 17 of the Judiciary Act, which provided, and still provides, that State Supreme Courts are invested with federal jurisdiction in any matter pending in the High Court which is not a matter in which the High Court has exclusive jurisdiction.
The focus in ss 38 and 39 upon jurisdiction rather than power illustrates that the concern was not to remove powers of State Parliaments, including powers conferred upon State courts by State Parliaments. Instead, it was to replace the source of authority for the exercise of the powers of State courts. To adapt the submission of Dixon KC in Booth v Shelmerdine Bros Pty Ltd, the "whole object" of provisions such as this "in taking away jurisdiction and then giving [new jurisdiction] back was to place conditions upon its exercise". Conditions were able to be placed by the Commonwealth Parliament upon the authority to decide because the "authority to exercise judicial power with regard to those matters springs from another source".
The important point is that by changing the source of the authority to decide matters under s 39(2) of the Judiciary Act, ss 38 and 39 were concerned only with regulating that authority to decide (ie the authority to exercise existing power). State Parliaments retained their powers to pass laws for the population including empowering State courts to make orders to give effect to those laws. The only effect of making federal jurisdiction exclusive was that, due to the operation of s 109 of the Constitution, the State courts had no operative State authority to exercise those existing powers in federal jurisdiction. As the authority to decide was no longer a State matter, the regulation of that authority to decide was also no longer a State matter.
There is another way to illustrate the point that the effect of ss 38 and 39 was not to remove any pre-existing or prospective State power. Section 107 of the Constitution provides for the continuation of "[e]very power" of a State Parliament unless, by the Constitution, the power is "exclusively vested" in the Commonwealth Parliament or withdrawn from the Parliament of the State. Various provisions of the Constitution expressly provide for the exclusive vesting of powers in the Commonwealth Parliament. Those provisions, such as ss 52 and 90, are expressed in clear terms providing that the "power" of the Commonwealth Parliament in those areas is exclusive. Section 77 of the Constitution is not such a provision for two reasons. First, s 77 is a power conferred upon the Commonwealth Parliament to define 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. It speaks of the "jurisdiction" of the federal court, not the "power" of the federal court. Secondly, s 77 is not a provision in which anything is made exclusive "by the Constitution". In other words, with the exception of provisions such as s 52 or s 90, the Constitution did not deprive State Parliaments of their powers to make laws. The exclusive vesting of jurisdiction in any federal court did not affect State powers. Instead, it meant that the State Parliaments could not regulate that federal authority to decide, just as State Parliaments could not confer upon federal courts an effective authority to adjudicate upon those federal subject matters.
If ss 38 and 39 were to be construed as an attempt to make exclusive both jurisdiction and power, in the sense explained above, then there could be questions concerning whether those provisions were inconsistent with s 107 of the Constitution. It is one thing to make exclusive the authority to adjudicate upon the federal matters concerned to "provide for and regulate the exercise of federal jurisdiction". But it is quite another thing to make exclusive the federal subject matters in ss 75 and 76, and thereby deny the power of a State Parliament to make valid laws in relation to those subject matters including laws conferring powers on State courts in relation to those subject matters. In Western Australia v The Commonwealth (Native Title Act Case), a joint judgment of six Justices said that if s 12 of the Native Title Act 1993 (Cth) were to result in the withdrawal of legislative power from State Parliaments then it would have diminished the legislative power confirmed by s 107 of the Constitution. As the joint judgment concluded, "that it cannot do".
In summary, ss 38 and 39 of the Judiciary Act did not convert State courts into federal courts. Nor did those sections withdraw a sphere of State legislative power. The power of State Parliaments to make laws in relation to federal subject matters in ss 75 and 76 of the Judiciary Act (including conferring powers on State courts in relation to those subject matters) was untouched. However, the effect of making the jurisdiction of the federal courts exclusive meant that the powers of State courts in relation to those matters could not be exercised without a grant to the State courts of authority to decide. As Windeyer J said in Felton v Mulligan, the jurisdiction to which s 39(2) referred depended upon "the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication". His Honour continued, describing a court to which a grant of jurisdiction has been made as "a court ... duly seised for adjudication of a matter".
C. The need for s 79(1) of the Judiciary Act
As I have explained, s 39(2) of the Judiciary Act did not remove the corpus of law upon which State courts could adjudicate. Nor did it remove the powers of State courts in the course of that adjudication. However, by making the source of the authority to decide matters into a federal authority, there remained a gap concerning the laws which would regulate the exercise of that federal authority. When the source of the authority to decide matters within s 39(2) of the Judiciary Act became federal, there needed to be laws that would regulate that federal authority to decide.
D. The text and context of s 79(1) of the Judiciary Act
There are three powerful textual indications that s 79(1) is concerned only with the regulation of a court's authority to decide (the third construction).
The first indication is the reference to the laws as "binding on ... Courts" rather than binding upon persons. That reference in s 79(1) is repeated in s 79(2). In a trivial sense, it could be said that all statutory laws are binding on courts. Courts must apply, and cannot ignore, statutory laws. But the history of s 79, to which I refer in the next section of these reasons, and the context of s 79, to which I refer immediately below, shows that the reference in s 79 to laws which are "binding on ... Courts" was used in a more limited way, which contrasted with laws binding on people. In this more limited sense, laws which are binding on courts are those laws which regulate a court's authority to decide (ie authority to exercise power). The same cannot be said of laws which subject persons to duties or liabilities, or which create powers that a court can exercise against persons to give effect to those duties. These are laws binding on persons.
The contrast between the reference to laws "binding on ... Courts" and the language used in covering cl 5 of the Constitution is plain. Covering cl 5, which departed from the Supremacy Clause in Art VI(2) of the United States Constitution, refers to all laws made by the Parliament of the Commonwealth under the Constitution as "binding on the courts, judges, and people of every State and of every part of the Commonwealth" (emphasis added). In its focus upon laws binding on courts rather than laws to be applied by courts, s 79(1) may also be contrasted with s 24 of the Australian Courts Act 1828 (Imp), which provided that "all Laws and Statutes in force within the Realm of England ... shall be applied".
The second textual indication that s 79(1) is concerned only with laws which regulate the court's authority to decide is the specific examples in s 79(1) of laws relating to procedure, evidence, and the competency of witnesses. These examples need to be understood in context as well as in light of the history of s 79. The latter is the subject of the next section of these reasons. As to the context in which s 79 appeared in the Judiciary Act, the heading of the Part as well as the surrounding provisions all indicate a concern with subsidiary matters of regulation. Section 79 was included in Pt XI of the Judiciary Act, which was, and still is, entitled "Supplementary provisions". The first supplementary provision was, and remains, s 78, which corresponded loosely with s 35 of the United States Judiciary Act 1789. It provided, and still provides, for the manner in which parties may appear in the courts exercising federal jurisdiction.
As I have explained, s 79 was another "supplementary provision", which was needed to regulate the exercise of federal authority to decide. The federal court, in 1903, was the High Court. The Judiciary Act made detailed provision for the federal jurisdiction of the High Court as well as for laws to confer powers on the High Court. Part III was entitled, and concerned with, jurisdiction and powers of the High Court generally. But there remained matters involving the regulation of the jurisdiction of the High Court, that is, matters concerning the exercise of its existing powers, to which s 79 applied.
The importance of the examples of laws "relating to procedure, evidence, and the competency of witnesses" is further illuminated by the fact that seven years before the enactment of the Judiciary Act, Professor Dicey published his magisterial treatise on conflict of laws. Dicey explained the critical difference for the purposes of choice of law which then existed between matters of procedure and matters concerning the substance of a party's rights. Within the former he included matters such as "the whole field of practice" and "the whole law of evidence". Dicey distinguished those "procedural" matters from matters concerned with the substance of a party's rights:
"Whilst, however, it is certain that all matters which concern procedure are in an English Court governed by the law of England, it is equally clear that everything which goes to the substance of a party's rights and does not concern procedure is governed by the law appropriate to the case."
This is, emphatically, not to recognise a distinction within s 79(1) between substance and procedure. Instead, it is to recognise that in 1903 matters of procedure, evidence, and the competency of witnesses were matters widely seen as concerned with a court's authority to decide, and therefore governed by the law of the forum. That is, these three areas fell clearly within the dimensions of jurisdiction involving regulation of (i) the persons subject to the powers of the court, (ii) the subject matter over which powers are exercised, and (iii) the territory over which powers are exercised.
The third textual indication is the reference in s 79(1) to "all Courts exercising federal jurisdiction" (emphasis added). The exercising of federal jurisdiction involves the exercise of powers with federal authority. As five members of this Court explained in Solomons v District Court (NSW), the provision "operates only where there is already a court 'exercising federal jurisdiction', 'exercising' being used in the present continuous tense". In other words, s 79(1) does not seek to apply laws concerning the subject matter upon which a court is already adjudicating, or to confer new powers upon a court already exercising powers. Rather, it seeks to regulate the dimensions within which those laws are applied and the powers exercised.
E. The history of s 79 of the Judiciary Act
When enacted, the marginal note to s 79 of the Judiciary Act made reference to its source being s 721 of the United States Revised Statutes. Section 721 provided:
"The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."
Section 721 of the United States Revised Statutes was the 1873 re‑enactment of s 34 of the United States Judiciary Act 1789. Immediately after the enactment of s 34 of the Judiciary Act, Congress enacted the Process Act 1789, s 2 of which provided:
"That until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided, the forms of writs and executions, except their style, and modes of process and rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same."
There was a fundamental difference between the application of the Process Act and the application of s 34 of the Judiciary Act. The Process Act, and its successors until 1872, were interpreted to apply to the federal courts only statically. That is, they applied the forms of writs and executions and modes of process that existed in September 1789. On the other hand, s 34 of the Judiciary Act applied dynamically. Its reference to the laws of the States meant those laws as they existed from time to time.
There was another fundamental difference between these provisions in the Judiciary Act and in the Process Act. This difference was that although the Process Act was needed to apply State processes to federal courts, s 34 of the Judiciary Act was not a provision which was regarded as necessary. Although the scope of s 34 was sometimes disputed, including by a well-known United States Supreme Court decision relating to the expression "laws of a State" which was overruled in 1938, at the time of Australian Federation it was established that s 34 of the Judiciary Act was a provision which was merely declaratory of what would in any event have governed the federal courts. In 1945, Frankfurter J observed that this view of the declaratory nature of the section was one which had been held consistently for over 100 years. The lack of substantive operation of s 34 is perhaps unsurprising. As Professor Fletcher (later a Justice of the Ninth Circuit Court of Appeals) observed, s 34 had been added to the Judiciary Act as an afterthought, without any of the serious debate that might be expected for a provision with substantive effect. John Marshall had expressed the same view, independently of the provision, at the Virginia Convention to ratify the Constitution.
Until 1872, when the Process Act was reformed by the Conformity Act 1872, the difference between the static effect of the Process Act and the dynamic effect of the United States Judiciary Act meant that it was important to determine whether a law fell within the terms of the Process Act or within the terms of s 34 of the Judiciary Act. In 1872, by s 5 of the Conformity Act, Congress provided for the federal courts to follow the procedures of the States in relation to the "practice, pleadings, and forms and modes of proceeding" from time to time other than in equity and admiralty and subject to the rules of evidence under the laws of the United States. Section 5 of the Conformity Act was the progenitor of s 914 of the United States Revised Statutes.
After 1872, it was no longer as important to determine whether a law was one which fell within the "rules of decision" or the "practice, pleadings, and forms and modes of proceeding". In the United States, the courts began to treat the two provisions together, considering the latter as having "enlarged" the former. For instance, in 1885, the United States Supreme Court in Ex parte Fisk considered a case where a petitioner had refused to be examined in the federal court to which his case had been removed. A question before the Supreme Court was whether the New York laws concerning the examination of the petitioner applied in the federal court. The Supreme Court held that they did. The Supreme Court relied upon s 914 of the United States Revised Statutes (deriving from the Process Act and the Conformity Act) rather than s 721 (deriving from the Judiciary Act). Delivering the opinion of the Supreme Court, Miller J conflated the two provisions, saying that s 721 of the United States Revised Statutes had been "enlarged in 1872 by the provision found in s 914 of the Revision". Ultimately, however, the State statute in that case did not apply because it was in conflict with a federal law.
The development of s 721 of the United States Revised Statutes, which took place before Australian Federation, culminated in the decision of the Supreme Court of the United States in Camden and Suburban Railway Co v Stetson ("Camden"). That decision was cited by Dixon J in Huddart Parker Ltd v The Ship Mill Hill as evidence of the "long and controversial history" of s 721. The decision in Camden was effectively the culmination of the process by which the merely declaratory s 34 (later s 721 of the United States Revised Statutes) had been effectively expanded to include the "practice, pleadings, and forms and modes of proceeding", an expression which included the laws of evidence.
The decision in Camden concerned whether a federal court could exercise a power conferred by State legislation to order a surgical examination of a plaintiff in a personal injury action. The decision of the majority was delivered by Peckham J. His Honour relied upon the decision in Ex parte Fisk in support of the application of State laws of evidence in the federal court. He applied s 721 of the United States Revised Statutes in the sense in which that section had been "enlarged" in Ex parte Fisk. His Honour held that the statute in question fell "within the principle of the decisions of this court holding a law of the State of such a nature binding upon Federal courts sitting within the State". The use of the expression "binding upon Federal courts" was important. The "nature" of the statute in question which was binding on federal courts was that it was one which "was intended to confer upon the courts of the United States the jurisdiction necessary to enable them to administer the laws of the States".
By 1900, therefore, the merely declaratory function of s 721 of the United States Revised Statutes, indicating that which would have been the law in any event, had been treated by combination with s 914 to give s 721 an expanded operation extending to the manner, or administration, of a court's authority to decide cases. In that sense, s 721 had progressed from being a merely declaratory provision, which referred to all State laws that were binding on the people, to a provision which applied to laws concerned with the authority to decide cases that were "binding on courts".
The decision in Camden was given shortly before the Bill containing what became s 79 the Judiciary Act was first drafted. When s 79 was enacted its focus was upon the "expanded" sense of s 721 of the United States Revised Statutes, including the operation of s 914. It was not focussed upon those matters included in the merely declaratory s 721. As Dixon J observed in Huddart Parker Ltd v The Ship Mill Hill, s 79 was more widely expressed than the United States provision. Section 79 did not use the language of "rules of decision in trials", preferring instead to refer to laws which, in the language of the Supreme Court in Camden, were "binding on all Courts exercising federal jurisdiction" in cases where they apply.
As I have explained, specific reference was made in s 79 to the laws relating to procedure, evidence, and the competency of witnesses. As the United States jurisprudence had shown, the three examples given in s 79 are classic examples of laws which were concerned with the regulation of the exercise of a court's existing powers. They are laws concerned with the authority to decide. They are not concerned with, for instance, creating rights or duties, nor with creating the court's powers to give effect to those rights or duties.
F. Authorities supporting the first construction
A strong focus of the submissions in this appeal concerned five decisions of this Court which the appellant said were authorities that supported what I have defined as the first construction of s 79(1). The appellant said that these authorities applied s 79(1) to laws which "created norms or imposed liabilities". In chronological order, each of those authorities is considered below.
The first case upon which the appellant relied was R v Oregan; Ex parte Oregan, a decision of Webb J exercising the original jurisdiction of the High Court, sitting in Victoria. The claim was brought by a wife, who was resident in Victoria, for custody of her child, who was living with her estranged husband in Tasmania. The matter was in federal jurisdiction under s 75(iv) of the Constitution. The relevant law of Victoria was different from the law of Tasmania. After setting out the facts of the case and the approach that he would take if the Victorian legislation would apply, his Honour turned to whether the applicable law was (i) the Victorian statute law, (ii) the Tasmanian statute law, or (iii) the common law.
The two relevant Victorian provisions were ss 136 and 145 of the Marriage Act 1928 (Vic). Section 136 was a norm creating provision. It was as follows:
"Where in any proceeding before any Court (whether or not a Court within the meaning of this Part) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof is in question, the Court in deciding that question shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father or any right at common law possessed by the father in respect of such custody upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."
The second provision, s 145 of the Marriage Act, was different from the norm creating nature of s 136. Section 145 was concerned with orders that the Court might make. Unlike s 136, s 145 was replicated in the equivalent Tasmanian legislation (s 10 of the Guardianship and Custody of Infants Act 1934 (Tas)). In oral argument before Webb J, senior counsel for the wife submitted that s 145 was relevantly identical to the Tasmanian provision. This was not disputed by senior counsel for the husband, and Webb J described the provisions as corresponding. The real argument concerned whether the norm creating Victorian provision, s 136, applied.
The ultimate result of the case was that the Victorian provisions, including s 136, were applicable due to the operation of s 80 of the Judiciary Act. However, the only reason why Webb J did not apply these provisions by relying upon s 79 of the Judiciary Act was that his Honour considered that the terms of the provisions did not extend to a person domiciled and residing in Tasmania who had the legal custody of the child in Tasmania. The application of s 79 to the norm creating provision in s 136 of the Victorian legislation supports the first construction of s 79. However, the reasoning of Webb J concerning why s 79 would apply was sparse. The point does not appear to have been a matter of substantial argument. His Honour simply said that "[t]he laws referred to in s 79 include, I think, substantive laws, embracing those dealing with the custody of infants".
The second authority upon which the appellant relied was Parker v The Commonwealth. That case involved a claim against the Commonwealth of Australia by Mrs Parker, the wife of a seaman who died as a result of the collision on the high seas of HMAS Melbourne and HMAS Voyager. The action was heard by Windeyer J in the original jurisdiction of the High Court, sitting in Victoria.
The difficulty for the claim by Mrs Parker was that the common law gave her no cause of action for losses suffered as a result of the death of her husband. That omission of the common law had been filled in England by the Fatal Accidents Act 1846 ("Lord Campbell's Act"), legislation which had been replicated in the States and Territories in Australia. Justice Windeyer recognised that the matter was in federal jurisdiction and that the "solution" must be sought by asking whether federal law "attracts and adopts State law, making it for purposes of an action in this Court the lex fori". His Honour held that the combination of ss 79 and 80 of the Judiciary Act applied the law of Victoria. This meant that the law to be applied was the Victorian equivalent of Lord Campbell's Act, the Wrongs Act 1958 (Vic).
It must immediately be acknowledged that the Victorian legislation applied in Parker v The Commonwealth went beyond the laws contemplated by the second or third constructions of s 79 of the Judiciary Act. The Wrongs Act did not merely confer powers on the Court or govern the Court's powers. It created an entirely new cause of action which did not exist under the common law. As Windeyer J explained, quoting from Commissioner of Stamp Duties (NSW) v Owens [No 2], it concerned the law by which the "rights of the parties to the lis are to be ascertained".
Three points should be made about the conclusion of Windeyer J. These three points show that the case is weak authority for the first construction of s 79. First, there was no dispute in that case that the law of Victoria was the applicable law. Secondly, the application of ss 79 and 80 to reach the conclusion that the law of Victoria applied was only an alternative approach suggested by Windeyer J. The first route that his Honour suggested was simply that common law choice of law rules would apply Victorian statute law to determine the rights arising from the high seas collision. Thirdly, the alternative approach was based on a combination of ss 79 and 80 of the Judiciary Act. Section 80, at that time, provided for the application of the common law of England, as modified by the Constitution and the statute law in force in Victoria (the State in which the Court was sitting). His Honour recognised that "constituting an entirely new right of action is not well described as a modification of the common law" but said that this would be "too narrow a view".
The third authority upon which the appellant relied was Australian Securities and Investments Commission v Edensor Nominees Pty Ltd ("Edensor"). In that case, the Australian Securities and Investments Commission ("ASIC") alleged that various companies had contravened s 615 of the Corporations Law (Vic) by entering into a shareholders agreement. The primary judge made orders under ss 737 and 739 of the Corporations Law (Vic), including declarations of contravention. The Full Court of the Federal Court held that the primary judge lacked jurisdiction to make those orders. A majority of the High Court held that the primary judge did have jurisdiction.
The High Court held that the matter was within federal jurisdiction, and within the authority of the Federal Court, because ASIC, which was the applicant for relief, fell within the scope of "the Commonwealth" in s 75(iii) of the Constitution and s 39B(1A)(a) of the Judiciary Act. A joint judgment was given by Gleeson CJ, Gaudron and Gummow JJ, with whom Hayne and Callinan JJ generally agreed. The joint judgment of Gleeson CJ, Gaudron and Gummow JJ distinguished between three different types of laws: (i) those that create a norm of legal liability, (ii) those that confer a remedy, and (iii) those that provide a curial forum to administer the remedy.
In relation to this taxonomy of laws, s 615 of the Corporations Law (Vic) created a norm of legal liability. However, the focus of the decision was not upon s 615, because the submissions had been directed to the question of whether the orders made by the primary judge, under ss 737 and 739, were valid. Nevertheless, their Honours contemplated, without deciding, that if the action had been commenced in a different State where s 615 did not apply then s 79 of the Judiciary Act might have denied the applicability of s 615. Their assumption in posing this hypothetical scenario was that s 79 of the Judiciary Act was needed to apply s 615 of the Victorian law. In a separate judgment, McHugh J was explicit. His Honour held that s 615 was applied as a Commonwealth law by s 79. All members of the Court, apart from Kirby J, held that ss 737 and 739 were applied as Commonwealth laws by s 79 of the Judiciary Act.
Two points should be made about the decision in Edensor. First, although the Court's reasoning was consistent with the first construction of s 79, as submitted by the appellant, it was not argued in that case that any of ss 615, 737, or 739 applied of its own force. Secondly, unlike the appeal in this case, Edensor was heard in the Federal Court. Different issues arise when the question, such as that in Edensor, concerns the powers of federal courts in the application of State laws.
Although the present appeal does not concern the question of State laws operating in a federal court, I agree with the conclusion of the other members of this Court in this appeal that s 615 of the Corporations Law (Vic) applied of its own force in the Federal Court in a case in which the Federal Court had authority to decide. Section 615 provided the "case for relief". As for the relief under ss 737 and 739, those sections could be given effect by s 23 of the Federal Court of Australia Act, which provides that "[t]he Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate". This is a "broad power". Sections 737 and 739 of the Corporations Law (Vic) could apply not as State laws which conferred new powers on the Federal Court but as circumstances where the Federal Court thinks it "appropriate" to make orders that would otherwise be made if the matter were in State jurisdiction. In other words, unlike State laws which can confer new powers on State courts, or Commonwealth laws which can confer new powers on federal courts, the State laws in ss 737 and 739 could only regulate the existing powers of the Federal Court, by drawing new "boundaries" around federal powers. That regulation of power by ss 737 and 739 would require those laws to be applied, as Commonwealth laws, by s 79 of the Judiciary Act. Only to that extent would s 79 be required. As Dixon J said in Musgrave v The Commonwealth, s 79 applies "only where otherwise Federal law itself is insufficient".
The fourth authority upon which the appellant relied was Austral Pacific Group Ltd (In liq) v Airservices Australia. In that case, Austral Pacific was sued by Mr Crockford in the District Court of Queensland. It was assumed that the matter arose in federal jurisdiction either because the claim arose under a law made by the Commonwealth Parliament or because Airservices was the Commonwealth. Austral Pacific claimed contribution from Airservices. The issue was whether s 79 of the Judiciary Act applied to the contribution legislation in Queensland. That contribution legislation gave Austral Pacific a right to proceed against Airservices as well as providing for the manner in which contribution would be calculated. It was assumed by the parties that absent s 79, Austral Pacific had no right to contribution from Airservices. The High Court assumed that s 79 applied to both the law concerning the right to proceed and the law concerning the manner in which contribution would be calculated. Again, although this assumption affirmed the first construction, the matter was not the subject of any argument, nor were competing constructions considered. The third construction would have recognised, by application of their own force, the law giving a right to proceed and the law providing for the manner in which contribution would be calculated.
The fifth authority upon which the appellant relied was Macleod v Australian Securities and Investments Commission ("Macleod"). Mr Macleod was charged with offences under the Corporations Law (WA). The proceedings were instituted by ASIC (as it was later entitled). As ASIC was, relevantly, the Commonwealth, the proceedings were in federal jurisdiction. Mr Macleod was convicted of one count in the Court of Petty Sessions. His appeal to the Supreme Court of Western Australia was heard by a Commissioner. The appeal was allowed and his conviction was quashed. ASIC brought a further appeal to the Full Court of the Supreme Court of Western Australia, where the conviction was reinstated. The question before the High Court was whether ASIC had the power to bring that appeal. One alleged source of power was s 206A(2) of the Justices Act 1902 (WA), which permitted a party to an appeal to bring an application for leave to appeal to the Full Court of the Supreme Court. The High Court held that s 206A(2) did not fall within the ambit of s 79 of the Judiciary Act because the Australian Securities Commission Act 1989 (Cth) "otherwise provided". Therefore, ASIC had no power to appeal under that provision.
On this appeal, the focus of the appellant's submissions regarding Macleod concerned an apparently unqualified reference in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ to s 79 operating to "pick up" all State laws. The opening paragraph of the joint judgment commenced by describing the offences charged as being "offences against the law of Western Australia". Since the laws were made by the Parliament of Western Australia, not the Parliament of the Commonwealth of Australia, they were not laws to which s 68(2) of the Judiciary Act applied. However, soon after explaining this point, their Honours said, without qualification, that s 79 of the Judiciary Act operated to "pick up" the State law of Western Australia. This is yet another indication of support for the first construction of s 79. Again, however, the other constructions were not the subject of argument.
G. Reasons to prefer the third construction
The above discussion demonstrates that there is a dominant strand of authority in this Court which supports the appellant's construction (the first construction). In Commissioner of Stamp Duties (NSW) v Owens [No 2], a joint judgment of this Court said that the purpose of s 79 was, subject to the Constitution or federal law, to adopt the law of the State by which "the rights of the parties to the lis are to be ascertained and matters of procedure are to be regulated". In Pedersen v Young, Windeyer J said of s 79 that the law "binding upon courts" has been held to be "the whole body of the law of the State including the rules of private international law". In combination, the five authorities upon which the appellant relied support the conclusion that the dominant approach of this Court for decades has been to apply the first, and broadest, construction of s 79(1). The step that this Court takes today departs from those authorities.
However, the second and third constructions are not wholly new conceptions. Statements in some decisions of this Court can be marshalled in support of either or both of those constructions. More fundamentally, I am not aware of, and no counsel cited, any case where argument was directed to the distinction between the competing constructions of s 79(1) which are relevant in this appeal. As I have explained above, the result of each of the five cases relied upon by the appellant would be no different if the second or third construction were adopted. Apart from Edensor, in each case the laws which were applied as Commonwealth laws by s 79 would still have applied in federal jurisdiction, on the third construction, of their own force. In Edensor, the operation of ss 737 and 739 of the Corporations Law (Vic) would be given effect by s 23 of the Federal Court of Australia Act.
The text, context, and purpose of s 79(1) support the third construction
The considerations of the text, context, and purpose of s 79(1) have been discussed above. Those matters all point against the first construction of s 79(1), by which s 79(1) applies to all State laws, irrespective of content. In my view, those considerations also favour the third, more narrow, construction over the second.
First, ss 38 and 39 of the Judiciary Act did not remove the powers of State Parliaments to pass laws for the population, including the power that they had conferred, and could confer, upon courts to make orders to create new rights or duties or to give effect to pre-existing rights or duties. Those powers of State Parliaments remained unaltered although the source of authority to adjudicate became federal. The need for s 79 was confined to laws which regulated the authority to decide.
Secondly, the first and second constructions assume an operation of s 79(1) which goes beyond those laws which are binding on courts such as laws concerning procedure, evidence, and the competency of witnesses. The first and second constructions include laws which confer, or had conferred, any powers on courts to make orders, in the broad sense which includes decrees and pronouncements. These were matters which fell within the merely declaratory aspect of s 721 of the United States Revised Statutes.
Thirdly, the second construction assumes that laws can be neatly divided into (i) those which are the norm or source of liability, and (ii) those which permit a sanction to be imposed or orders made as a consequence of that liability. There is little support textually for this division. Moreover, as Austral Pacific Group Ltd (In liq) v Airservices Australia illustrates, those two components are not easily separated. The nature, and coherence, of such a division was controversial in 1903. But, as Dixon J observed in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett, a common, but controversial, 19th century drafting technique was for a person's rights or duties to be expressed "to hinge upon the act of a court or other authority". The close association between the court order and the substantive liability reflected a dominant view, albeit powerfully criticised by Bentham, that in many cases, orders that the court makes merely replicate the source of rights or liability. This is what Blackstone meant by his description of a common order which depends "not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice". In the language of Dr Zakrzewski, the rights which flow from court orders often "replicate substantive rights".
Fourthly, the second construction awkwardly requires laws which empower orders that a court might make against a person to be construed as laws "binding on all Courts" rather than laws binding upon persons. An example is the law considered in Momcilovic v The Queen. That law was s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which provided that:
"A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum)."
Even assuming that the liability for imprisonment should be divorced from the offence upon which it was based although it is formally within the same law as the offence creating provision (s 71AC), the liability to a maximum of 15 years' imprisonment is a law which is better seen as binding upon a person by creating a liability to which that person is subject, rather than being a law which is binding on a court, within the dichotomy assumed in s 79(1).
Constitutional restrictions on power favour the third construction
Another reason why the third construction of s 79(1) is preferable to the first is that, as the respondent submitted, the first construction of s 79(1) would take it beyond the legislative power of the Commonwealth Parliament. It is not necessary to consider whether the second construction is within power. This was not the subject of submissions on this appeal. It suffices to say that I do not consider that the first construction would be within the power of the Commonwealth Parliament.
The first construction would permit the Commonwealth Parliament to legislate, without limit, to create any laws in relation to the subject matters in s 75 or s 76 of the Constitution. In Edensor, McHugh J expressed the view that, at least where the Commonwealth or a State was a party to the proceedings, "there would seem to be no limit to the State laws that the Parliament can make applicable in those proceedings". But neither s 75 nor s 76 of the Constitution is a conferral of general power on the Commonwealth Parliament to legislate with respect to the subject matters in those sections.
The strongest submission in support of the validity of s 79(1) on the first construction is that s 79(1) does not purport to rely upon a general power to legislate with respect to any subject matter in federal jurisdiction because it only operates to "pick up" the text of a State statute, and is designed only to ensure consistency between cases where courts exercise authority with a federal source and cases where courts exercise authority from other sources. However, underlying this submission is the misleading metaphor of s 79(1) only "picking up" a State law. The assumption of the first construction, and the need for s 79(1) on that construction, is that the State law is otherwise inoperative. The State statute merely supplies the (inoperative) text which becomes the Commonwealth law.
The appellant submitted that the source of power for the Commonwealth Parliament to apply, as Commonwealth law, inoperative State laws on almost unlimited subjects is the provisions of Ch III of the Constitution generally, combined with the power in s 51(xxxix) concerning matters incidental to the execution of powers of the Federal Judicature. It can be accepted that this is the source of power for s 79(1). But there is no express conferral of power in Ch III of the breadth required for the first construction of s 79(1) of the Judiciary Act. As for the incidental power, the constitutional question is whether this power is "necessary or proper" to render effective the exercise of federal authority. Section 51(xxxix) gives the Commonwealth Parliament power to make laws incidental to the execution of any power vested by the Constitution in the Federal Judicature. Writing in 1901, Quick and Garran observed that under the incidental power "the Parliament can legislate with respect to the practice and procedure of the Courts, the conduct of appeals, the admission and status of legal practitioners in the courts of federal jurisdiction, and so forth". These are obvious examples of incidental power. Other instances concerning the regulation of authority to decide would be included. But s 51(xxxix) does not confer an almost unlimited legislative power including the power to legislate upon many matters beyond the existing subject matter of Commonwealth legislative power.
Applicable law principles favour the third construction
It is clear from the wording of s 79(1) that the laws which the provision applies as Commonwealth law are the laws "binding on all Courts exercising federal jurisdiction in that State or Territory" (emphasis added) in which the court is sitting. One immediate difficulty with the first construction of s 79(1) is that, when read with s 80, it would create an applicable law rule which had the effect that, whenever a State or federal court adjudicated upon a matter within federal jurisdiction, the applicable statute law would be the statute law of the State in which the matter was heard. In the United States, even after Erie Railroad Co v Tompkins, it was very quickly noticed that there were areas where the application of State law was "singularly inappropriate" and would "lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states". In the Australian context, the first construction of s 79(1) could mean that the High Court could hear appeals involving identical facts which occurred in the identical place, but reach different conclusions if the trials had been heard in different States.
The second and third constructions are not generally subject to these vagaries. There are, however, difficulties in the second construction of s 79(1). On the assumption underlying the second construction, that laws conferring powers on State courts are not operative in federal jurisdiction, the rule of conduct provided by an applicable inter-State statute could be operative but no orders could be made. In other words, if the applicable State law is not the law of the State where the matter is heard then the only powers that the court could exercise would be created by the potentially different statute law of the State where the matter is heard. This surprising conclusion also sits uncomfortably with the reference in s 80 of the Judiciary Act to the "statute law in force" in a State, which would need to be construed as excluding any powers to make orders under inter-State statutes even if the obligations under those statutes could be in force.
An example can be given which illustrates this difficulty with the second construction. Suppose a matter concerning a tort claim in federal jurisdiction were heard in a court in New South Wales based upon a tort committed in Western Australia. The terms of the Civil Liability Acts, including provisions concerning the court's power to award damages, differ between those States. Assuming that the applicable law is the statute law of Western Australia then, on the assumption underlying the second construction of s 79(1), three possibilities arise. One unlikely possibility is that s 79(1) would apply the damages provisions from the New South Wales Act as the remedy for breach of the different provisions of the Western Australian Act. It is difficult to see how the New South Wales Act provisions concerning damages could be "applicable" within s 79(1). A second possibility is that the Western Australian law would apply but that the court could not make any orders under that legislation, because (i) the court is sitting in New South Wales so s 79(1) could not apply the laws of Western Australia, and (ii) on the second construction, the Western Australian laws conferring powers on courts could not apply in federal jurisdiction. A third possibility is that some rule, external to s 79(1), would operate to allow the court to apply the damages provisions in the Western Australian legislation. One such rule might be said to arise from s 118 of the Constitution, which requires that full faith and credit be given in New South Wales to the Western Australian law. But that conclusion would substantially undermine the assumption of the second construction that those State laws do not apply in federal jurisdiction.
This difficulty is further exacerbated by the possibility that a State court might move from exercising State jurisdiction to exercising federal jurisdiction during the course of adjudicating upon a matter. This might occur, for example, if a constitutional issue were raised during the hearing of the matter. If the applicable law were the law of a different State from the State in which the matter is being heard then the second construction might have the effect that a change of authority from State to federal would mean that the State court could no longer make any orders under the applicable statute.
The third construction provides a simple answer to these scenarios and an explanation for why a remittal from the High Court would not always have to be to the State whose law applied. In the example above, the statute law of Western Australia would apply, including the orders that the court can make. In Anderson v Eric Anderson Radio & TV Pty Ltd, an action for damages arising from negligence which occurred in the Australian Capital Territory was brought in the District Court of New South Wales. The scenario did not involve different statutes in the Territory and State, and a majority of the High Court held that the matter was not in federal jurisdiction. However, the case illustrates the context in which these questions might arise. In the course of discussing a submission that the source of the jurisdiction being federal could affect the applicable law, Kitto J said:
"[A]ll that is meant by saying that a court has federal jurisdiction in a particular matter is that the court's authority to adjudicate upon the matter is a part of the judicial power of the federation. To confer federal jurisdiction in a class of matters upon a State court is therefore not, if no more be added, to change the law which the court is to enforce in adjudicating upon such matters; it is merely to provide a different basis of authority to enforce the same law."
The same approach was taken by Evatt and McTiernan JJ in Musgrave v The Commonwealth, where a libel action was heard in the original jurisdiction of the High Court, sitting in New South Wales. The defendant relied upon a defence of privilege in s 377 of the Criminal Code (Q). The primary judge, Latham CJ, held that s 79 of the Judiciary Act required the law of New South Wales to be applied. On appeal, Rich and Dixon JJ did not need to decide whether s 79 required the application of the law of New South Wales. However, Evatt and McTiernan JJ held that s 79 did not require the application of the laws of New South Wales. It did not "introduce, for the purpose of determining the lawfulness of the publication complained of, the general body of New South Wales law, merely because the action, being instituted in the High Court, happens to have been heard at Sydney".
Conclusion
Although it is not necessary to express a final opinion, my view is that the third construction of s 79(1) of the Judiciary Act should be adopted. I do not express a final opinion because no party, and no intervener, drew a clear distinction between the second and third constructions. It suffices to say that of the two better constructions (the second and third constructions) there are reasons of history, text, context, and purpose to prefer the third construction. The third construction also aligns with the fundamental distinction between jurisdiction and power.
The third construction is that the laws to which s 79(1) refers are only those laws which, in the language used by the Attorney-General of the State of Queensland intervening, "are directed to the regulation of jurisdiction [in the sense of the authority to decide]". Section 79(1) is only needed, and only applies, for laws which regulate the exercise of the court's existing powers, including the manner and conditions upon which those powers can be exercised.
The submissions on this appeal did not need to, and did not, address a number of difficult issues which still remain in relation to the operation of s 79(1). One issue is the extent to which s 79(1) can apply the text of a State statute with a changed meaning. Another issue is the boundaries of laws which regulate an authority to decide. It will not always be a simple exercise to determine whether a State law is one which is binding on a court, involving the regulation of the court's authority to decide (ie regulation of the court's exercise of existing powers), or whether the law is one which is binding on a person or persons. However, at the core, some simple examples can be given. Laws concerning procedure, evidence, and the competency of witnesses all regulate the general manner of the court's authority to decide over its subject matter. In relation to State courts, they are laws which explain how State courts' powers should be exercised. They are not concerned with the rights or duties of persons. Section 114(2) of the Criminal Procedure Act 2004 (WA), which permitted the jury in the appellant's trial to return a verdict upon which 10 or more jurors were agreed, is one such law. Without s 79(1) of the Judiciary Act, the State court exercising federal jurisdiction would not be regulated by this law.
Another example of a law which regulates the subject matter of a court's authority to decide is a law which limits the time within which an action can be brought. These laws were described in 1893 by the United States Supreme Court as the laws which had been the most "steadfastly" and often recognised as falling within s 721 of the United States Revised Statutes. These laws are expressly recognised in s 79(3)(a) of the Judiciary Act. And the High Court of Australia has given regular recognition of laws which limit the time in which an action can be brought as laws which can fall within s 79(1) of the Judiciary Act.
Laws which limit the time in which an action can be brought are an example of laws which concern when a court can adjudicate upon rights falling within a particular subject matter. The limitation laws do not "bar" a person's rights. Instead, they provide a defence which precludes an effective adjudication upon those rights. Although this is no longer the case, at the time of the enactment of the Judiciary Act, it was "not to be questioned that laws limiting the time of bringing suit constitute a part of the lex fori of every country". The reason why such limitation provisions were considered to be part of the lex fori was that they regulated the subject matter upon which the court would adjudicate. In the language of the United States Supreme Court in the decade before the enactment of the Judiciary Act in 1903, limitation laws concern the "means which the law provides for prosecuting [a] claim". They were described in 1878 as "laws for administering justice; one of the most sacred and important of sovereign rights". This was then seen as a matter for the law of the forum.
Apart from laws which regulate the subject matter dimension of the court's authority to decide, s 79(1) will also apply to laws which regulate the personal dimension of the authority to decide such as laws which determine the persons who can appear before the court. So, in Macleod for instance, s 79 was needed to engage the operation of s 206A(2) of the Justices Act 1902 (WA). Section 206A(2) was a law concerned with the persons who could bring an appeal. Similarly, laws giving a court the power to stay proceedings are laws which regulate the authority to decide over the persons before the court.
On the other hand, laws which regulate a court's authority to decide will not usually include the general corpus of law which establishes the rights, privileges, powers, immunities, duties, disabilities, and liabilities of persons. This includes orders of a court, which usually give effect to these rights and duties. Section 6(1)(a) of the Misuse of Drugs Act 1981 (WA), upon which the appellant was convicted, is a law which created the duty to which he was subject. The provision in s 6(1)(a) that a person commits a crime if the person "with intent to sell or supply it to another, has in his [or her] possession ... a prohibited drug" is not concerned with the regulation of a court's authority to decide. It is a law binding on persons, not a law binding on courts. The same is true of s 34(1) of the Misuse of Drugs Act, which provides for the penalty for contravention of s 6(1)(a) of a fine not exceeding $100,000 or a term of imprisonment not exceeding 25 years or both. Since s 79(1) did not apply to these provisions, the appellant's trial was not for offences against a law of the Commonwealth. Section 80 of the Constitution was not engaged and conviction by a unanimous jury was not required.
The appeal must be dismissed.