MZXOT v Minister for Immigration & Citizenship [2008] HCATrans 97 (27 February 2008)

Last Updated: 27 February 2008

[2008] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M36 of 2007

B e t w e e n -

MZXOT

Plaintiff

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Defendant

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 27 FEBRUARY 2008, AT 2.17 PM

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC: If the Court pleases, I appear with my learned friends, MS L.G. DE FERRARI and MR C.P. YOUNG, on behalf of the plaintiff. (instructed by Victoria Legal Aid (Civil Law Section))

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR S.P. DONAGHUE, for the defendant and for the Attorney-General of the Commonwealth, intervening. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Ms Mortimer.

MS MORTIMER: Your Honours, I propose to make my submissions in the following order. Firstly, if the Court pleases, at the risk of provoking some questions early on, I propose to give a brief summary of our argument and take your Honours to the case stated and the questions asked because we do have some submissions we need to make about the form of the questions. Secondly, then I propose to take your Honours to the scheme of the Migration Act. Although the parties before the Court are agreed on the answer to the first question in the case stated it is, of course, necessary to take your Honours through the scheme of the Act.

I will then make some submissions about the nature of the power of remitter, which we submit is an incident of the judicial power, and take your Honours to some instances where recognition has been given to that power by different courts. I will then take your Honours through the sections in the Constitution from which we submit the implication can be drawn and, if it is necessary at the end, I will draw those threads together and take your Honours back to the scheme to make good the proposition for which we contend about invalidity.

If the Court pleases, I do not propose to take your Honours to the facts of the case stated, which are not contentious and straightforward. Unless your Honours have any particular questions on the facts, I will move directly to the summary of our argument. That is set out and remains as we have put it in paragraph 11 of our written outline. If I can just ask your Honours to turn to paragraph 11, that remains the proposition for which we contend, if the Court pleases. That is a proposition which we accept is best understood as directed at question 3 of the case stated.

I might ask your Honours also to turn up in the case stated book the questions, which appear on pages 8 and 9. Question 3, to which our paragraph 11 is directed, in our submission, puts the question in two ways. Question 3A is directed at, or looks at, the law which imposes the prohibition on this Court. Question 3B looks at the law which prevents the exercise of any jurisdiction by a receiving court.

Now, the scheme to which I will take your Honours is one which, in our submission, offends both of those. But what we have said in our written submissions is that it may be possible to impair the operation of the implied power by either only doing one or the other, not necessarily both. But this is a scheme which, we submit, does both.

KIRBY J: You have to have an implication.

MS MORTIMER: We do, your Honour.

KIRBY J: Where is the best statement by this Court on what is required to read an implication into the Constitution?

MS MORTIMER: Your Honour, we accept the statement of this Court in Lange which appears in the respondent’s submissions in paragraph 21.

KIRBY J: It is a pretty, shall we say, rigorous test.

MS MORTIMER: It is, your Honour.

KIRBY J: So that we do not go round seeing implications day and night that are not spelt out.

MS MORTIMER: Your Honour, that is so. If I might take the opportunity now that your Honour has put that to me to make this plain, the parties agree, if the Court pleases, that the Parliament is able to confer by way of statute a power of remitter, as it has done in section 44 of the Judiciary Act, on this Court and it is implicit, in our submission, in the recognition that such a conferral is valid that it is supported by the incidental power in 51(xxxix). So that, in our submission, it must be the proposition that the power to remit a matter which is within the original jurisdiction of this Court can be conferred by statute because it is incidental to the exercise of the judicial power of the Commonwealth.

That, we would take it, would be a proposition with which the Commonwealth would agree. Therefore, the difference – this is to come back to your Honour Justice Kirby’s question about how the test is posed in Lange – between the parties, in our submission, is whether a remitter power ought to be seen at that level as only incidental or as necessary to the exercise of the judicial power of this Court.

GUMMOW J: It is not only a question of remitter power, it is a question of reception obligation, is it not?

MS MORTIMER: I am sorry, of what, your Honour?

GUMMOW J: It is a question of reception obligation. It has to go somewhere.

MS MORTIMER: On the receiving court, your Honour?

GUMMOW J: Yes, it has to go somewhere else.

MS MORTIMER: Yes, your Honour, that is so.

KIRBY J: They have to have jurisdiction and power to deal with it.

MS MORTIMER: Your Honour, they have to have the ability to deal with it. Now, there is a question, which we will come to in the discussion of some of the authorities and particularly Johnstone - - -

KIRBY J: Parliament has tried to close that off in this case.

MS MORTIMER: Yes, that is so, your Honour, and that is why we - - -

KIRBY J: So we have the remitter hanging there looking for a receptacle.

MS MORTIMER: That is why we submit, your Honour, that the interference could be in one of two ways. It could be by a blanket prohibition on the exercise of the remitter power or it could be by removing any possible receiving court. Either way, in our submission, the effect which is produced is one which the Constitution does not contemplate and that is that the Commonwealth, through a law of the Parliament, can force this Court to exercise all its original jurisdiction itself.

KIRBY J: But you need more than “does not contemplate”. You need “which the Constitution forbids”.

MS MORTIMER: Forbids, yes, your Honour.

GLEESON CJ: Do you mean that in the beginning the Parliament was bound to enact legislation giving a possible receptacle – creating a possible receptacle?

MS MORTIMER: No, your Honour, because in our submission, when one looks at the Constitution as a whole, starting with covering clause 5 and working through Chapter III, it was contemplated that the courts of the States would be bound to apply the laws of the Commonwealth and apply the laws of the Constitution and in that sense would be able to receive a matter from this Court.

KIRBY J: Just wait a moment there. My understanding is the courts of the States cannot be receptacles unless the Federal Parliament confers federal jurisdiction upon them and that this is a mistake that is sometimes assumed that the courts of the States get their power to receive federal cases of their own large jurisdiction as courts from colonial times, but I thought this Court has said many times that they only get it insofar as the Federal Parliament confers federal jurisdiction, as it can, on the courts of the States.

MS MORTIMER: Your Honour, certainly in terms of federal jurisdiction that is right and perhaps I did not express myself clearly enough. There has been a distinction made by this Court in Johnstone v The Commonwealth, to which I will come, if the Court pleases, a little later in my submissions, to the effect that when this Court remits a matter – admittedly Johnstone deals with the remitter power under section 44 of the Judiciary Act, but when this Court is exercising a power of remitting something from its original jurisdiction to another court it is not necessary, a majority of the Court held in that case, for the receiving court to possess federal jurisdiction or the identical jurisdiction. So long as it has a jurisdiction over subject matter and parties which, in our submission, is the kind of jurisdiction that State courts had ordinarily at the time of Federation, that is sufficient.

Johnstone does assume some importance in our argument because it does, in our submission, mean that prior to the establishment of any federal courts the implied power for which we contend could have been exercised and could have been exercised by this Court to send a matter from its original jurisdiction to a State court.

GLEESON CJ: But it is not an implied duty to legislate?

MS MORTIMER: No, your Honour. No, absolutely not. No.

KIRBY J: But unless there is legislation to confer the power on the States to receive then there is no receptacle that can receive the case.

MS MORTIMER: Our submission, your Honour, is that the State courts are there to receive the case in the exercise of their ordinary jurisdiction, absent any interference from Parliament with it.

KIRBY J: As I understand it, your argument really goes to the point of saying test it this way. If the Federal Parliament attempted to stop this Court remitting an overwhelming jurisdiction, say it diverted all the migration cases from the Tribunal to us, we feel as though we have had our fair share, but assume that happened, there must then in the Constitution be the power in this Court to send those cases somewhere else in order to protect the Court and ensure that it can fulfil its constitutional mandate.

MS MORTIMER: Yes, your Honour. We place some considerable emphasis on what we submit has been recognised as this Court’s principal role as the ultimate appellate court in the Commonwealth and as I will take your Honours through the relevant provisions in the Constitution, essentially what we submit is that the Constitution contemplates a distribution of jurisdiction between this Court, inferior Federal Courts and State courts. It is that distribution for which the powers in section 77 are given, but the Constitution does not contemplate the exercise of those legislative powers to force this Court to hear everything that Parliament decides should be within its original jurisdiction, as well as what the Constitution decides should be within its - - -

GUMMOW J: As the Chief Justice put to you, looking at it 100 years ago, if the State courts receive this work from this Court, would an appeal have laid directly to the Privy Council on the basis that the State court was not exercising federal jurisdiction because I think your theory has to be the State courts would have been exercising something anterior to the Constitution.

MS MORTIMER: That is right, your Honour. That must be right. That must follow, yes. Now, your Honours, before I go back to developing this and taking - - -

KIRBY J: Can I just put a footnote to Justice Gummow’s question?

MS MORTIMER: Yes.

KIRBY J: At least one possibility would be if this Court on your construction has a constitutional power to remit, then the federal jurisdiction goes with the remitter from this Court.

MS MORTIMER: That is so, your Honour. That is, in our submission, how, although we accept it was a matter of statutory construction, that is the view that the majority of the Court took in Johnstone. I will take your Honours to this. The language used by the majority Justices in that case was that the exercise of a remitter power confers jurisdiction on the receiving court.

GUMMOW J: That is right. What they were saying was section 44 had a double aspect and its other aspect was that it was a law under section 77. Is that not what they were saying?

MS MORTIMER: I do not think so, your Honour. I do not think so. Your Honour, we can go through that more carefully when we come to Johnstone, if that is convenient. Now, I must deal with the questions in the case stated, if the Court pleases.

GUMMOW J: Yes. Looking at those orders you seek on page 13 of your submissions, is it only section 476(2)(a) that is said to be invalid?

MS MORTIMER: Your Honour, I need to correct that. It is 476(2)(a) and 476(2)(d).

GUMMOW J: That is for both 2 and 3?

MS MORTIMER: That is so, your Honour.

KIRBY J: Which question is this?

MS MORTIMER: Your Honour, this is in our written submissions on page 13, where we deal with the orders sought and the answers to the questions.

GUMMOW J: What is the reason for the choice of the Magistrates Court?

MS MORTIMER: Your Honour, an application of section 15A of the Acts Interpretation Act, that it is – and I will develop this in a moment – overwhelming, in our submission, that the scheme which Parliament intended to create through Part 8 of the Migration Act was to make the Federal Magistrates Court the receiving court for this Court’s remitter power. If that is right, then applying section 15A, if our argument succeeds, this Court ought to preserve so much of the scheme and so much of Parliament’s intention as it can as is constitutionally valid.

So we do not seek to disrupt the scheme any more than is necessary to preserve the constitutional validity. It has nothing to do, as our learned friends for the Commonwealth suggested, with any tactical purpose; it has to do with an application of 15A and preservation of constitutional validity and taking cognisance of Parliament’s intention.

KIRBY J: If we get to that point, a question would arise as to whether or not what you are asking us to do in invalidating part of what appears to be an integrated scheme is to recreate the legislation in a design that the Parliament would not really foresee.

MS MORTIMER: We accept that and we accept that we have taken what might be described as a minimalist approach. It might be that, if we succeed, the Court is not persuaded that those provisions are severable from the remainder of the scheme. Your Honour, that is the view of the minority in Abebe. So we accept that that is possible. It is not our principal contention.

Now, your Honours, the questions in the case stated, question 2, it was put against us by the Commonwealth that we abandon that and we quarrelled with that proposition. But, as I stand here, I accept that in our written submissions we have not developed an argument which would address what is necessary to address in order to answer that question. Our position is, if the Court pleases, that we do not seek that the Court answer that question.

GUMMOW J: What do we do with question 2?

MS MORTIMER: We accept it is not necessary to answer it on the argument put by the plaintiff.

GUMMOW J: So question 2 will be unnecessary to answer.

MS MORTIMER: Yes, your Honour.

KIRBY J: Which question is that?

MS MORTIMER: Your Honour, that is the one that appears on page 8 of the case stated book.

KIRBY J: Number?

MS MORTIMER: I am sorry, your Honour, page 8.

HEYDON J: Question 2.

MS MORTIMER: Question 2. Yes, your Honour, it is page 7 of the document, page 8 of the court book. That is a question as posed, if the Court pleases, that raises the possibility of different constitutional implications and it is not one that our argument has been developed to meet and, your Honour, if the Court pleases, I accept responsibility for that. Unless your Honours have any other questions, I will turn to the statutory scheme.

KIRBY J: Do we have the ministerial speech that explains what was said to Parliament to justify this scheme?

MS MORTIMER: Your Honour, it is not in the materials produced by us and I do not understand it to be in the materials produced by the Commonwealth or the Attorney.

KIRBY J: It is a public record matter that we can look at if there is any doubt about what the purpose of the scheme is and, for myself, I would like to have that, not necessarily now, but at some later stage.

MS MORTIMER: We will have it made available, your Honour. If the Court pleases, as I had said, the parties agree the - - -

KIRBY J: Would it be fair to say, just looking at the matter overall, that the courts know and we certainly know in the High Court that there is a very large bulk of jurisdiction in multiple cases which wend their way through the courts and sometimes come to the courts once, twice, three times, more and that the scheme is the scheme of the Federal Parliament to try to rope in this bulk of jurisdiction which, apart from anything else, is stressful to the parties to the litigation but also expensive to the community and that, therefore, the idea behind it, valid or not, is to have some definite limitations and to restrict multiple proceedings and uncertain proceedings, including proceedings out of time which of necessity then involve questions of discretion to open the time bar.

MS MORTIMER: Your Honour, we accept that there are - - -

KIRBY J: All of which would be legitimate purposes of the Federal Parliament, one would think.

MS MORTIMER: Yes, your Honour. Policy considerations which control access to the courts we accept are matters in a broad sense upon which Parliament might form a view and pass legislation in pursuit of that view. We accept that.

KIRBY J: For instance, in this case there was quite a significant delay, about a year I think, between the time when the time expired on your client and the time he actually approached the courts.

MS MORTIMER: Yes, of course, your Honour, that is because he did not know about the decision. That is the explanation, but your Honour is absolutely correct that there is a time lag.

KIRBY J: Even if he did not know about the section, one would - - -

MS MORTIMER: No, he did not know about the decision, your Honour.

KIRBY J: I see.

MS MORTIMER: He did not know about - was not in fact notified of the primary decision.

KIRBY J: He moved, did he, promptly after receiving legal aid?

MS MORTIMER: Yes, your Honour, he did. In fact, he moved unrepresented and commenced a proceeding in the Federal Magistrates Court, as I understand it, going on what might be described as folklore amongst people in his position that that is the court that one approaches. There was an objection to competency, properly taken, on the basis of section 476 and it was at that point that he obtained a grant of assistance from Victoria Legal Aid.

Your Honour, we do not cavil with the proposition that there may be policy reasons why Parliament might choose to modify the jurisdiction of a statutory court and modify the federal jurisdiction of a State court and those are not the kinds of considerations – and we do wish to place some emphasis on this – which are limited to the migration area. Your Honours, take section 76(i) of the Constitution. It is not inconceivable that Parliament might take the view that other courts should stop making decisions about this Constitution and only this Court ought to make decisions about matters arising under the Constitution.

KIRBY J: Well, for a very long time in our youth there was such a provision requiring the removal of inter se matters to this Court.

MS MORTIMER: Yes, your Honour. That is right.

KIRBY J: No one as far as I know questioned the validity of that provision.

MS MORTIMER: No, that is so, your Honour.

KIRBY J: Is that so, that in the 50 or more years that that was applicable, that that was never challenged, the obligation?

MS MORTIMER: The obligation to remove?

KIRBY J: Yes.

MS MORTIMER: Your Honour, I am not sure if it was an obligation or whether it was an order that was made in the exercise of this Court’s discretion, that an application was made - - -

GUMMOW J: No, section 40 operated immediately.

MS MORTIMER: I am sorry, your Honour, I might be wrong.

KIRBY J: You had to stop.

GUMMOW J: It was instant death.

KIRBY J: A similar provision was adopted in South Africa requiring all matters to go to the Constitutional Court.

GUMMOW J: No running off to the Privy Council before the other side had a chance to come here.

MS MORTIMER: Yes. I accept that, your Honour, but the point I want to make is that we do not contend that the implication is something that is restricted to this Court’s 75(v) jurisdiction. That is the point, that it is an implication that we say ought to be made in respect of all this Court’s original jurisdiction, not just 75(v) jurisdiction. So, to that extent, it is not something that is particular to the policy reasons which led to the enactment of this scheme.

KIRBY J: We had better have reference to that provision in the Judiciary Act that required matters to be removed to this Court. I think you are being shown the provision. I do not ask you to analyse it now, but if you just give a reference to it.

MS MORTIMER: Yes, your Honour. We will look at that. Now, if I can take your Honours to the scheme under Part 8 of the Migration Act, Reprint 10. Part 8 starts on page 547 of the reprint. Before taking your Honours through the jurisdiction provisions, we need to address four definitions that are critical to the scheme. I do not propose to spend long on this because I expect your Honours are reasonably familiar with this. The first definition is that of “migration decision” which is in section 5, page 12 of the reprint. That is the more general of the definitions. That encompasses then three kinds of decisions underneath that, the “privative clause decision”, the “purported privative clause decision” and a “non-privative clause decision”.

To take your Honours to each of those, a “privative clause decision” is defined in section 474(2) and, as this Court has held, that is a definition which is restricted to decisions otherwise defined in subsection (2) which are made within jurisdiction. By reason of this Court’s decision in S157 another concept of “decision” was introduced into the Act and that is “purported privative clause decision”, which your Honours will find in section 5E, a definition that was inserted, as I have submitted, to deal with Plaintiff S157 and to bring into the scheme decisions that are in law no decisions at all.

Then the third category of migration decision is that category of non-privative clause decision and your Honours will find that in section 474(6) which takes one back to the previous two subsections, subsection (4) and subsection (5). Essentially, a raft of decisions made in pursuance of some statutory power under the Migration Act generally, if I might try and describe them, if the Court pleases, not closely connected to the grant or refusal of a visa. So, the decisions that come within the privative clause area, and certainly, in our submission, the heart of them have to do with decisions to grant or refuse visas and a raft of other kinds of decisions made under the authority of this Act are grouped together as non-privative clause decisions.

If could take your Honours to Division 2 of Part 8, which is where the conferral of jurisdiction begins, section 476(1) in our submission demonstrates a clear parliamentary intention that the Federal Magistrates Court should be the principal forum for the exercise of the 75(v) jurisdiction outside this Court over migration decisions. So what subsection (1) does, subject to subsection (2), is to confer the whole of the 75(v) jurisdiction of this Court on the Federal Magistrates Court.

Having done that it then takes away four aspects of that jurisdiction. Subsection (2)(b) and (c) are taken away but your Honours will see are given to the Federal Court under section 476A. So, the only two categories of decision making which would otherwise be within the Federal Magistrates Court jurisdiction that are taken away and given to no one are primary decisions and privative clause decisions or purported privative clause decisions mentioned in section 474(7). To give your Honours what is a regular example of the section 474(7) category, a personal decision of the Minister to grant or withhold a visa under section 417, which is a regularly invoked discretion. So those two categories are withdrawn from the Federal Court and not otherwise given to anyone else.

If I can take your Honours then to the Federal Court – I should take your Honours first to the definition of “primary decision” just to elucidate that. Essentially, as my learned friends have pointed out in their written submissions, the policy behind that definition appears to be to try and encourage people to seek merits review rather than come directly to any court for judicial review and, indeed, to preclude them coming to any court other than this Court unless they have sought merits review.

Section 476A in pursuance, we submit, of the plain policy option of making the Federal Magistrates Court the principal receiving court confers a very limited jurisdiction on the Federal Court. Subsection (a) transfers the proceedings, subsections (b) and (c) being ones that have either gone to the Administrative Appeals Tribunal or are decisions made personally by the Minister and then the preservation of some jurisdiction in relation to AAT appeals and AAT referrals under subsection (d).

The next section, 476B, if the Court pleases, is also important in our argument. Section 476B(1) controls, in our submission, the forum to which a matter may be sent by this Court and it exercises that control by prohibiting this Court from sending a matter anywhere else but the Federal Magistrates Court. Your Honours dealt with the construction of the words “relates to a migration decision” in Bodruddaza at paragraphs 21 to 25 but I will not - - -

KIRBY J: What was that case?

MS MORTIMER: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14; (2007) 228 CLR 651 at paragraphs 21 to 25. It is on our list of authorities, item 2. Section 476B(2) is the mirror to 476(2)(a) and (2)(d), that is, 476(2)(a) and (2)(d) are the provisions which withdraw the jurisdiction of the receiving court in the language of our submission and 476B(2) is the provision which imposes the prohibition on this Court. If, in our submission, 476B(2) stood alone and 476(1) stood alone, there would be no issue of the kind that we raise in this proceeding and that is because all that would be being done by Parliament would be to regulate the exercise of this Court’s remitter power, not to prohibit it, and that is the distinction we seek to draw.

So, in our submission, that is why, if we are correct about the implication, there is not a great deal of violence that needs to be done to the scheme in terms of severance to bring it within the realms of constitutional validity because 476B(2) does not offend any constitutional implication. All it does is control the exercise of this Court’s power, regulate it, in terms of where a matter can be sent rather than saying you cannot send it anywhere. It is only when that subsection is read with the elimination of the jurisdiction in 476(2) that we submit the constitutional problem arises.

Finally, your Honours, the last provision in the scheme that I just want to draw your Honours’ attention to is section 484 which is the provision which excludes State courts from exercising jurisdiction under this Act, but again, so far as our argument is concerned and if we are right what we say about severance, then we say there is no need to impugn that provision.

If the Court pleases, that completes what I want to say about the scheme. I want to turn now to some propositions which we draw from a variety of sources dealing with remitter and powers like remitter.

GUMMOW J: The validity of the old section 40A of the Judiciary Act was upheld in Pirrie v McFarlane [1925] HCA 30; 36 CLR 170.

MS MORTIMER: Yes, your Honour. Your Honour, I will deal with that, if I might. That is a point that is made against us and so I might hear how my learned friend develops that and I will deal with it. What I want to do now, if the Court pleases, is to – and we accept that, in a sense, what we need to do for this implication not only of course to draw it from the Constitution but the other component of our argument is that this kind of power and this kind of power implied is something, firstly, that has been recognised as an incident of judicial power - - -

GUMMOW J: Wait a minute. You have the same problem against you as in fact directed the result in the Boilermakers’ Case. In other words, section 71 says:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

Now, what they said in the Boilermakers’ Case was the judicial power of the Commonwealth shall be vested in those bodies and nothing else but the judicial power of the Commonwealth shall be invested in those bodies. Right?

MS MORTIMER: Yes, your Honour.

GUMMOW J: There was an implicit negative. The implicit negative here is that apart from the High Court itself, which is section 75, it is the Parliament that does the vesting.

MS MORTIMER: Yes, your Honour. That is right. That is one way - - -

GUMMOW J: You have to find an Act. You want to send this to the Federal Magistrates Court. Where is the statute? It does not postulate delegation by the Court of its work.

MS MORTIMER: Our submission is it does, your Honour. That is the point. We say it does postulate delegation for this Court to work. For this Court to function it postulates that this Court is able to, in an exercise of its discretion, not at the demand of Parliament, to command another court to exercise its jurisdiction.

GLEESON CJ: How did this work prior to the creation of the Federal Court of Australia and the Federal Magistrates Court? That is, how did this work for most of the 20th century?

MS MORTIMER: Your Honour, can I just ask, when your Honour says “How did this work”, how did the - - -

GLEESON CJ: The implication for which you contend.

MS MORTIMER: From the beginning there was some remitter power given to this Court through the Judiciary Act, section 45, and there was no attempt made to confine access.

GUMMOW J: Wait a minute. At the beginning of section 38 of the Judiciary Act it is said that this Court was “exclusive” of 75(v), did it not?

MS MORTIMER: Yes, your Honour. That is right.

GUMMOW J: It could not go anywhere else. You would say that was invalid, would you?

MS MORTIMER: We would say that if the implication is right, then any given statutory scheme at a particular point of time needs to be assessed against that implication. Now, without going back in time and looking at the statutory scheme, there may not be a definitive answer that can be given. Your Honour, that is no different, in our submission, to any other development - - -

GUMMOW J: Just a minute. You have then to face section 77(ii). Section 38 said the only court you could come to if you had a section 75(v) application was this Court. That was based on 77(ii), namely the power for the Parliament to make it exclusive.

MS MORTIMER: Yes, your Honour, as original jurisdiction.

GUMMOW J: Yes, but it is in the line of that structure that you want to draw this implication.

MS MORTIMER: That is right, your Honour, and what we want to be able to say is not - - -

GUMMOW J: Which would cut down the efficacy of the exercise under 77(ii).

MS MORTIMER: I am sorry, your Honour, that our argument cuts down?

GUMMOW J: Yes.

MS MORTIMER: No, your Honour, in our submission, it does not. I understand that what is put against us is that this implication has the result of this Court overriding the choice that is made by Parliament about which court ought to exercise jurisdiction. That is what is put against us, that if a power such as this is implied - - -

GUMMOW J: I know, but the implication comes from the text and structure and part of the text and structure is 77(ii).

MS MORTIMER: Yes, your Honour, but only - - -

GUMMOW J: Which produced section 38 which has been around for over a hundred years.

MS MORTIMER: That is so, your Honour, but, in our submission, it is - - -

GUMMOW J: All these new provisions in the Migration Act are all well and good but there is nothing new in heaven and earth.

MS MORTIMER: No, your Honour.

GUMMOW J: At least since 1903.

MS MORTIMER: We accept that, but the point that we would make is that if the implication ought to be made, the existence of a statutory scheme which might at some point in time have had an aspect of invalidity because of that implication is no reason not to make it. Just because in the past the Parliament - - -

GUMMOW J: No, no, we want some reasons to make it.

MS MORTIMER: Yes, your Honour.

GUMMOW J: Not the reason for not making it.

MS MORTIMER: I understand that, your Honour, and I want to develop that in two ways. I want to develop it by going through the provisions of the Constitution, but first I want to develop it by taking the Court to a variety of propositions and cases about a remitter is because one of the things that we rely on is that it is the kind of power that has always formed part of an exercise of judicial power. We are not going to be able to take your Honours to something that is identical to what we contend for, but we can take your Honours to a variety of things to demonstrate that a superior court has always had a kind of remitter power, that is, that it is seen as an element of judicial power and, in that sense, not something that one ought to immediately react against implying; quite the contrary.

If I can take your Honours firstly to some submissions that we want to make about the writ of procedendo and we have said something about that in our written submissions.

GUMMOW J: What do you say about the Commonwealth’s reply to it?

MS MORTIMER: Your Honour, that that is not right, that the writ of procedendo was available in circumstances other than where a matter had been improperly removed. That is what we say about that, your Honour, but can I develop that a little bit firstly by characterising what the writ did. We have given the Court some extracts about that in our list of authorities. Can I ask your Honours to turn to the extract from Archbold’s Practice which is item 21 on our list of authorities.

We have extracted two descriptions of the writ, one from Archbold and one from Tidd. I do not need to take your Honours to both of them. If I could just take your Honours to Archbold at page 1156 in the extract we have given.

KIRBY J: Where is this document you are referring to now in the documents that our associates have, because some of us cannot find them?

HAYNE J: It seems to be in a bundle marked “List of Authorities of the Defendant and the Commonwealth Attorney-General (Intervening)” behind tab 4.

MS MORTIMER: Yes, your Honour, that is another source. At page 1156 of that extract there is a heading about two-thirds of the way down, “Procedendo”. This, of course, is a passage that supports the proposition for which the Commonwealth contends that the writ was limited to circumstances where a cause had been removed from an inferior court.

GUMMOW J: Yes. This is saying send it back.

MS MORTIMER: It is, your Honour, and we accept that that is the circumstance. It is saying send it back, your Honour, but it is saying that in the context of an exercise – a previous exercise of original jurisdiction by that superior court. That superior court had issued a writ of certiorari or habeas corpus and after that exercise of jurisdiction then commands the inferior court to deal with the matter again.

GUMMOW J: Yes, but it assumes that the inferior court then has the jurisdiction because it should not have been removed from it, is that not the idea?

MS MORTIMER: Not necessarily, because it should not have been removed from it, your Honour. Some of the cases show, and the case that is on our list of authorities at item 16 is an example, Harrison v Alexander (1754) Say Rep 156[1790] EngR 641; , 96 ER 836.

KIRBY J: Is the premise in this – I thought as I read the written submissions – a premise of an originalist interpretation of the Constitution that we are fixed with what was intended for the writs at the time of Federation?

MS MORTIMER: No, your Honour.

KIRBY J: What is the premise?

MS MORTIMER: The premise is that in understanding what kind of an implication might be drawn about the nature of this Court’s judicial power and the way that it exercises its original jurisdiction one goes principally to the text of the Constitution, we accept, but the analysis can be informed by looking at what was the content of judicial power at the time of Federation. Was the kind of power for which it - - -

GUMMOW J: No, the judicial power of the Commonwealth, which is not co-extensive.

MS MORTIMER: No, I accept that, your Honour. We do not seek to do with this any more really than the kind of exercise that the Court engaged in in Bodruddaza which is to look back at what was the situation in England and Bodruddaza’s Case about the discretion – the time limits and the way the courts dealt with applications for writs that were out of time to understand what is necessary for the exercise of judicial power and what is not.

KIRBY J: Is the submission that whatever has been the development and expansion of those writs to meet the needs of changing times over the history of Federation, they cannot be diminished from what existed at the time of Federation, is that how it is put, because you can take it from me, Ms Mortimer that I am not, myself – and I speak only for myself – inclined to shackle the Constitution with notions that existed at the time of Federation.

MS MORTIMER: No, your Honour, and we accept that we will not get anywhere in this Court by saying there was a power in the English courts to do something and therefore this Court has it. We do not put it like that but what we do say is this, that the notion - - -

GUMMOW J: I thought there was a power in the English courts in the 1900s to do all this. The Judicature Act had come along, had it not?

MS MORTIMER: I am not sure, your Honour.

GUMMOW J: It had.

MS MORTIMER: It had. Your Honour, the point that I want to make about procedendo is that it was a recognised writ in the same way that certiorari, habeas corpus were, not one that gets referred to in the Constitution. But that does not mean that it was not one that this Court could exercise in its original jurisdiction in the same way that this Court could grant certiorari - - -

KIRBY J: But that is done under statute. Parliament has conferred on the Court the power to issue writs of certiorari. It is in the Judiciary Act.

MS MORTIMER: Your Honour, this Court has held in Aala that - - -

KIRBY J: Even if that had not been done, it would have had the power to quash.

MS MORTIMER: That is so, your Honour. That is so.

KIRBY J: Not necessarily to issue a writ of certiorari so named.

MS MORTIMER: That is so, your Honour. But a power of that nature was necessary for the proper exercise of this Court’s jurisdiction.

GLEESON CJ: The power exercised in this writ, which is said to be where a cause has been removed when it ought not to have been, was not a power that could ever be exercised because the court exercising it was too busy, was it?

MS MORTIMER: No, your Honour, that is so. That is why we do not say it is an exact analogy, but what we say is that it was recognised that without statute, this Court could grant a remedy that was in the nature of a command to another court to exercise jurisdiction. Your Honour, if the Court pleases, it was recognised in the original Rules of this Court. Procedendo was recognised in the original Rules of this Court and we have copies of that. Your Honours should have copies of - - -

KIRBY J: Is that all there is on that quaint writ? I mean, it is quite interesting historically and I can just see some clerk in Dickens’ time wandering around between the courts to get the different signatures, but is that all there is about it?

MS MORTIMER: Your Honour, there are plenty of examples of it being issued, but, as it appears to us, it was always issued as a consequence of the issuing of a writ of prohibition. As we understand it, the situation appears to have been that firstly the superior court having exercised its jurisdiction to prohibit an inferior tribunal from exceeding its jurisdiction and, therefore, freezing, in a sense, what the inferior court could do, it then had to take the next step and say, “All right, well, you cannot exceed your jurisdiction but we are going to command you to proceed to hear the matter”, so the next step in the command process from a superior court to an inferior court.

I was going to take your Honours to the recognition of the writ in the High Court Rules. Now, that is something that I think we have provided copies of to your Honours in a hand-up and a hand-up authorities list at item 4 under “Legislation” and your Honours will see on page 695 of the extract that we have given - now, this is an example and this is one of the reasons why, in our submission, we say that it is too narrow an approach to the circumstances in which this writ would be issued to characterise it as only available when a matter had been improperly removed. That is not what this rule contemplates at all, in our submission, but it does contemplate that there will be an additional command needed by the supervising court to the inferior court for it “to proceed to hear or determine the matter”.

KIRBY J: Is there any record of that writ being issued out of this Court?

MS MORTIMER: Out of this Court - not that we have been able to find, but there is an example which we have given again in our hand-up list at item 3 of the writ being issued out of the Supreme Court of Queensland. If I can just take your Honours to that case. That is a case of T (A Child) [1994] QCA 326; (1994) 74 A Crim R 526, a decision of the Court of Appeal of Queensland. If I can take your Honours to the opening remarks of his Honour Justice McPherson at the bottom of page 526, there was an application for leave to appeal which raised a question about whether there was a precondition, in a sense, to a District Court judge passing a valid sentence on a child, the precondition being that there had to be a presentence report obtained. His Honour finds, as do the other justices on the Court, that there was such a precondition – that is on page 527 in the first paragraph. As his Honour says in the next paragraph:

It follows that the sentence cannot stand.

So regulation appellate jurisdiction at the moment, and his Honour says:

It must be quashed in the exercise either of the appellate power of this Court, or of the power to issue certiorari under the general jurisdiction of the Court -

His Honour then gets to the problem:

Once quashed, the problem is to decide what course may then be followed.

As his Honour points out in the next sentence, the court on appeal did not have access to the necessary report and therefore the rational course, as his Honour points out, would be to remit the matter to the District Court to proceed to sentence the applicant. Down the bottom of that page, if the Court pleases, his Honour makes the point that:

Until the enactment of the Supreme Court of Queensland Act 1991 (Qld), there was no general statutory power exercisable on appeal to remit matters . . . The power so conferred is not confined to civil proceedings, but it is limited to remitting a proceeding, or a particular question in it, to the Trial Division of the Supreme Court. The possibility of remitter to the District Court is not mentioned in the Act.

That is the statutory limit that gave rise to the dilemma his Honour saw. The solution that his Honour provided was to return to the courts power at general law and to a writ of procedendo. That is what his Honour discusses on page 528 from about the middle of that page downwards.

In the final paragraph on that page his Honour recognises that the power to direct a writ of procedendo following prohibition was recognised in Order 81, rule 30. Your Honours, that rule is in identical form to the one that appears in the High Court Rules.

That is the only example we have been able to find of a court in this country issuing a writ of procedendo, but what it does support, in our submission, put with what this Court said in Aala about there not being a need to find a statutory source for these kinds of remedies, is that the notion of this Court exercising a power to command another court to exercise jurisdiction is one that was accepted as being part of this Court’s jurisdiction. Of course it is not a direct parallel, but it does mean, in our submission, that we can say it is not a foreign kind of power and it is not simply something that has always been given by statute. So that is the extent to which we seek to use the analogy with the writ of procedendo, if the Court pleases.

Your Honours, in our submission, the same analysis applies to the remitter powers which, in our submission, must by implication and not necessarily simply because of statute, exist in this Court when it exercises its appellate jurisdiction and we accept again that this is something that the Judiciary Act dealt with in section 37. But the submission we make is that just like section 44, the remitter power, if it had not been dealt with expressly in the Judiciary Act, then the power of this Court to remit a matter, having exercised its appellate jurisdiction, would be one that was a necessary implication in order to make the exercise of the appellate jurisdiction effective.

So there is another example, in our submission, of a circumstance in which, although Parliament has conferred the power by statute, a like power, a power to remit, would also be implied in order to make this Court’s exercise of appellate jurisdiction effective.

The next piece of supporting authority that I want to just draw your Honours’ attention to – we have referred to it in our written argument, but again just to make the point – the only authority that we have been able to find where there has been an implication of a power of remitter to a statutory court is the decision of the United States Supreme Court in Carnegie-Mellon University v Cohill [1988] USSC 12; 484 US 343 (1988). That is item 14 on our list of authorities. That is a circumstance where a claim was removed to the United States District Court and then the federal claims were abandoned and what that left was the pendent jurisdiction claims.

The District Court remanded, that is, remitted the proceeding back to the state court. There was no statutory authority for it to do that. Nevertheless, a majority of the Supreme Court held that there ought to be a power implied in the District Court or inherent in the District Court to do that. If I can take your Honours to the majority judgment at page 7.

HEYDON J: We do not have that. We are operating from United States Reports.

MS MORTIMER: I am sorry, your Honour.

HEYDON J: What does the paragraph that you want to refer to begin with? What words?

MS MORTIMER: It is a long paragraph that starts with “The modern doctrine of pendent jurisdiction stems from this Court’s decision”.

HEYDON J: Yes. It is Part II of the judgment.

MS MORTIMER: Thank you, your Honour. Now, the majority saw that court’s previous decision in the case of Gibbs as important because that was a case that recognised the power of Federal Courts to decide pendent jurisdiction claims on the basis of considerations of judicial economy, procedural convenience and the like. Essentially, what the majority in this case did, and the difference between the majority and the minority, is that the majority were prepared to extend those considerations to the point of implying a power to remit the matter back where the federal aspect of the claim was no longer pursued. At the end of that passage about Gibbs, their Honours say this:

Because in some circumstances a remand of a removed case involving pendent claims will better accommodate these values than will dismissal of the case, the animating principle behind the pendent jurisdiction doctrine supports giving a district court discretion to remand when the exercise of pendent jurisdiction is inappropriate.

So considerations of the most convenient forum, the business of the court, those sorts of things, are what the majority thought sufficient to support the exercise of such a discretion. The minority judgment given by his Honour Justice White really diverged from that, under Part II of that judgment, on the basis that there was no statute which authorises the exercise of such a discretion and that the courts had not ever recognised such an inherent power before.

So, your Honours, it is the kind of division that we accept faces the Court in this case, that either it is the kind of power that is within the gift of Parliament entirely and can therefore be interfered with as Parliament desires, or it is the kind of power which can be regulated by Parliament but not interfered with to the point of prohibiting, because it is necessary in order for the discharge of the jurisdiction. Your Honours, that is the only case we have been able to find where such an argument was successful.

KIRBY J: Given that we do not have any express authority that binds us to a particular conclusion, what are the reasons of principle from the point of view of constitutional doctrine that you say supports finding such an implication?

MS MORTIMER: Because the Constitution contemplates, in our submission, firstly that federal jurisdiction will be distributed between this Court, inferior Federal Courts and State courts exercising federal jurisdiction. That is apparent principally from section 71 of the Constitution read with section 77. Our construction of section 77 is that it is principally about the giving of legislative power to the Commonwealth to distribute jurisdiction between the various repositories that the Constitution contemplates. It is not a provision that is about restricting the jurisdiction of this Court, quite the contrary. It is about distributing the original jurisdiction that this Court either exercises through section 75 or exercises through section 76. In a nutshell, your Honour, that is how we put the contention.

KIRBY J: I suppose there is also the fact that the Court’s constitutional functions are fundamental and contemplated by the Constitution to be fulfilled and that it therefore could not be ultimately dependent on parliamentary legislation to provide it nor subject to parliamentary legislation denying it the capacity to fulfil its constitutional function.

MS MORTIMER: Yes, your Honour. One has to ask what are its constitutional functions and we submit its principal constitutional function, the one that Parliament contemplates nobody else can exercise, is its appellate jurisdiction.

GUMMOW J: That is not right.

MS MORTIMER: No, your Honour.

GUMMOW J: There is nothing in the Constitution that says only this Court can exercise constitutional jurisdiction.

MS MORTIMER: Appellate jurisdiction, your Honour, I am sorry, I may not have made myself clear. The function which the Constitution contemplates only this Court can exercise is its appellate jurisdiction.

KIRBY J: In one view, and certainly this was expressed in S395, I think, even more cardinal to the rule of law you could potentially perhaps get by in a federation with another arrangement for appellate jurisdiction, but you could not really get by without the umpire having the power to impose the rule of law on the units of the Federation and on all officers of the Commonwealth, as section 75(v) contemplates.

MS MORTIMER: Yes, your Honour, and to some considerable extent, section 75(iii). We do place some emphasis, and we have in our submissions, on the importance of the 75(v) jurisdiction and the maintenance of the rule of law across the Commonwealth. In our submission, that being recognised as important, and it being recognised by this Court that 75(v) has that fundamental importance, when one reads that together with section 71, in our submission there is no suggestion out of the Constitution that the declaration and enforcement of federal law in respect of the Executive, the legislature and in respect of other kinds of administrative decisions is something that Chapter III intends should be the concern only of this Court, quite the contrary. Chapter III intends, in our submission, that it is the concern of all section 71 courts and contemplated by covering clause 5 that State courts in their non-federal jurisdiction were also bound to enforce the Constitution and the laws of the Commonwealth.

Now, in our submission, it tends to diminish the maintenance of the rule of law to find that the Parliament can constrain so closely the courts that can exercise the powers necessary to maintain it as to force this Court to do it itself.

GLEESON CJ: This implication then runs contrary to any law of the Parliament that purports to confer exclusive jurisdiction on this Court.

MS MORTIMER: Without remitter, your Honour. It is not a question of whether a matter can only be commenced in this jurisdiction. That is the point of distinction which we seek to make.

GLEESON CJ: Suppose the Native Title Act said that only the High Court would deal with native title claims.

MS MORTIMER: If your Honour posits to me a provision that says, “A matter arising under the Native Title Act must be issued out of the High Court”, something like that, is that?

GLEESON CJ: A specific kind of matter, yes.

MS MORTIMER: Your Honour, that then depends on whether we are right or wrong about there being a power of the Court to remit it and whether that is something within the gift of Parliament or not. What a law like that does is to force an applicant, a litigant, to commence in this Court, but we are not contending for a state of affairs where Parliament must provide a mechanism for a litigant to commence in another court other than this Court.

What we are contending for is a state of affairs where Parliament can require a litigant to commence in this Court but thereafter it is for this Court to decide in accordance with its constitutional role, the discharge of its business, whether it is appropriate to exercise all the jurisdiction it has in relation to that matter or only to exercise a limited jurisdiction to remit the hearing and determination of the matter to another court.

So we do not contend that a law of the kind that your Honour Justice Gleeson has described to me would necessarily be invalid. It would depend on whether the Court retained, either by statute or by implication, a power to remit. If the Court pleases, the simple proposition - a little like section 37 and remitter in the appellate jurisdiction of this Court - we contend for is that section 44 is a statutory emanation of what this Court could do anyway. So we do draw a parallel in that sense with section 37.

Just as in exercise of its appellate jurisdiction, if section 37 were not there, this Court could decide an appeal and remit the matter for trial, so in the exercise of its original jurisdiction, this Court can have a proceeding issued and do no more in the exercise of its original jurisdiction than command another court to hear and determine the matter.

Your Honour Justice Gummow has held in the case of McIntosh v National Australia Bank [1988] FCA 72; (1988) 17 FCR 482 at page 483, a short proposition which we embrace, with respect, right at the bottom of page 483:

To remit or transfer a proceeding is to exercise jurisdiction in respect of it -

So that a matter commenced in this Court and then subject to what we submit is properly described as a command by this Court to another court to hear and determine it, is the exercise of jurisdiction by this Court.

HAYNE J: But it follows, does it, that section 45 of the Judiciary Act as originally enacted was invalid to the extent that it required or permitted remitter only to a court of a State having federal jurisdiction with regard to the subject matter and parties? It was invalid on this argument, was it, on the footing that the court could remit in any event regardless of the jurisdiction with respect to the matter?

MS MORTIMER: Your Honour, the proposition for which Johnstone v The Commonwealth stands is that it is not necessary for the receiving court to have federal jurisdiction.

GUMMOW J: How do you make that good?

MS MORTIMER: Might I take the Court to Johnstone v The Commonwealth?

HAYNE J: We begin Johnstone, do we not, by observing what the particular question was in Johnstone? The particular question was any Supreme Court or the Supreme Court of New South Wales?

MS MORTIMER: That is right, your Honour. That is right, because it was not contested that there was no – if I might use the word “original” - jurisdiction in the Supreme Court of New South Wales.

GUMMOW J: Federal jurisdiction. It was an action against the Commonwealth, was it not?

MS MORTIMER: Yes, your Honour.

GUMMOW J: In tort.

MS MORTIMER: Yes, your Honour. There was an objection raised by the Commonwealth about its immunity, but that is not a matter with which your Honours need be concerned. At page 401 - - -

GUMMOW J: I think it is. Yes, go on.

MS MORTIMER: At page 401 of the report the submission put by the Commonwealth appears at the bottom of the first paragraph:

The argument submitted on behalf of the Commonwealth is that this is in effect, the meaning of those words – that s 44 does not itself confer any jurisdiction and does no more than empower this court to remit a matter to a court that already has jurisdiction independently of s 44.

That was the proposition that was being put by the Commonwealth.

GUMMOW J: No, you have to read it with section 51, Ms Mortimer, at the bottom of the page before. It was an action in tort against the Commonwealth, right? Section 56(1), as it was read in those days:

if the claim arose in a State or Territory – in the Supreme Court of that State or Territory –

right, and this arose, did it not, in South Australia? The question was, how, consistently with section 56, could it be sent off to New South Wales? That was the debate.

MS MORTIMER: Yes, but the question – and we accept, your Honour, that in this case - - -

GUMMOW J: The question was whether there was federal jurisdiction in the Supreme Court of New South Wales or whether the only relevant conferral of federal jurisdiction in a State court was that of South Australia because of section 56. Is that not right?

MS MORTIMER: That is so, your Honour, but still - - -

GUMMOW J: Hence the need to rely on section 44 to get it to New South Wales.

MS MORTIMER: Hence the need to rely on section 44,your Honour, but the Commonwealth submitted it could not be relied upon and that is because there was no jurisdiction independently existing in that court so that the divergence - - -

GUMMOW J: What do you mean by “independently existing”?

MS MORTIMER: That a matter could be commenced there, your Honour.

GUMMOW J: A matter in federal jurisdiction?

MS MORTIMER: Yes.

GUMMOW J: Under what section? It is an action under section 75(iii) and you have to find some law of the Parliament under section 77 that gets you into a State, do you not?

MS MORTIMER: Yes, your Honour.

GUMMOW J: On the face of it that would be section 39, but there is a problem with tort because of section 56.

MS MORTIMER: Yes, your Honour. Your Honour, in our submission, the proposition for which Johnstone is authority is that the exercise of a power of remitter can be lawfully undertaken to a court in relation to a matter where there was jurisdiction over the subject matter and the parties but not necessarily of the same character as the jurisdiction in the remitting court, so that you did not have to have an identity in the nature of the jurisdiction between the remitting court and the receiving court. You needed to have some authority in the receiving court and what the majority in this Court found was enough was authority over the subject matter and the parties and that, therefore, by exercising a power of remitter that was sufficient to confer – and that is the language that the majority uses, your Honour – to confer jurisdiction on the receiving court which it did not previously possess.

GUMMOW J: What about Justice Aickin, a member of the majority, is he not?

MS MORTIMER: Yes, your Honour, he is.

GUMMOW J: Last paragraph on page 408.

MS MORTIMER: Yes, his Honour is more confined and characterises the effect of the exercise of the section 44 power as conferring federal jurisdiction on State courts but, nevertheless, your Honour, it is still a recognition that the power that is exercised is substantive rather than procedural and by that command it enables the receiving court to do something that it had no jurisdiction to do if the claimant had come to it directly.

In terms of the matters about the nature of the remitter power, I have completed that part of my submissions and if I can move now to the terms of the Constitution. The sections which we rely on to draw the implication are covering clause 5, sections 71, 73, 75, 76 and 77 and, your Honours, we accept that what is really put against us is that one ought to begin and end at section 77 and look at the nature of the legislative power that is given by that section and work backwards from that to say therefore there can be no implication.

HAYNE J: Can I just take you back a moment to Johnstone.

MS MORTIMER: Yes, your Honour.

HAYNE J: Sorry to delay you.

MS MORTIMER: No, your Honour.

HAYNE J: The Court divided in that case, did it not?

MS MORTIMER: Yes, it did, your Honour.

HAYNE J: The division was between the minority who found the relevant conferral of jurisdiction in section 56 of the Judiciary Act, is that right, and therefore the only court which had the relevant federal jurisdiction was the Supreme Court of South Australia, that is Justices Stephen and Jacobs, is that right?

MS MORTIMER: Yes, your Honour.

HAYNE J: The majority of the Court found that section 44 was the source of federal jurisdiction, is that right? Before you answer that last question, is it not the common understanding of all five members of the Court that the question required identification of a statutory conferral of federal jurisdiction in the recipient court? The point of division was, is it section 56 or is it section 44? If it is 56, it is one court, if it is 44, according to its terms it is any Supreme Court.

MS MORTIMER: Your Honour, I accept it would be correct to say that because section 44 was in statutory form, the majority were able to identify that and it was, as it follows, a statutory source but we would submit that if we are right, section 44 is no more, like section 37, than a statutory recognition of what this Court could do anyway, that the decision of the majority in Johnstone would still follow.

HAYNE J: The debate in Johnstone was, you say, wholly unnecessary because the Court could send it anywhere regardless of statutory provision. That seems to me to be the point to which you have to go.

MS MORTIMER: It is necessary for the proper exercise of this Court’s jurisdiction that it be able to send a matter somewhere, your Honour, not necessarily anywhere but somewhere.

CRENNAN J: A court with jurisdiction generally in relation to the same kinds of parties and the same kinds of subject matter.

MS MORTIMER: That is so, your Honour, and, in our submission, that is exactly what was contemplated would exist by covering clause 5 at least; that the State courts would be bound to enforce the laws of the Commonwealth, would be bound to enforce the Constitution and in that sense, putting to one side historical, in our submission, issues about Crown liability or the liability for the Commonwealth, putting those to one side, the State courts, even in the absence of the creation of the Federal Court, would always have been available as a receiving court for the exercise of this kind of power.

GUMMOW J: Yes, but that theory covering clause 5 cannot survive, well, a number of cases; it cannot survive, in particular what Justice Walsh said in Felton v Mulligan [1971] HCA 39; 124 CLR 367 at 411 to 413, can it, what a number of the judges then said in Moorgate Tobacco [1980] HCA 32; 145 CLR 457 at 479? The structure of the Judiciary Act was to put an end to that for the very good reason that otherwise people would have been sneaking off to the Privy Council.

MS MORTIMER: At that time, your Honour, yes, that is right. There is always, in our submission - - -

GUMMOW J: They would have said it is a federal law but it applies throughout Australia covering clause 5, off we go.

MS MORTIMER: Your Honour, we recognise the difficulty in an argument that is founded on a constitutional implication which arises when one then looks back at earlier statutory schemes. That is not a problem, in our submission, that is peculiar to this implication. The freedom of communication implication, if one were to trawl back through legislation, one might well be able to find something which was at the time found to be valid but which would now be impugned because of the implied freedom of political communication but that is not, in our submission, the way that the analysis about the implication should proceed by starting at, starting with, a previous exercise of legislative power, even one that has stood for a long time, and asking whether because that also might fall for the implication, the implication should not be made.

Rather, one should look, in our submission, progressively through the Constitution from covering clause 5 through to Chapter III and ask, firstly, what is the principal function given to this Court and what did the Constitution envisage would occur about the distribution of judicial power amongst courts? Our submission is that the implication for which we contend firstly fits squarely within the notion of judicial power; it is not foreign to it. Although we cannot point to a precise analogy, we can point to powers of remitter that are recognised as part of it. Secondly, that it enables this Court properly to perform its principal function.

KIRBY J: Of course, you could say that the scheme of the Constitution envisaged that the Court would do its job and that Parliament would do its job and that Parliament would act responsibly in deploying the judicial power and make provisions for vesting federal jurisdiction and for remitter of proceedings in appropriate cases and non-remitter in other cases and that you really have to, as it were, dangle before us a chamber of horrors of the absence of suitable or reasonably appropriate legislation in order to persuade us to find an implication in this case when the whole world knows there was a real problem in Australia, and perhaps still is, of a swamping of courts of cases of this kind.

MS MORTIMER: Yes, your Honour. Just because, until recently, the Migration Act does stand out, aside from the Judiciary Act, as the principal example of Parliament trying to force matters into this Court. Rather than a chamber of horrors, your Honour, it is really, in our submission, the proposition that if it can be done, if it is within the gift of Parliament, it is within the gift of Parliament to withdraw as well. So that the proposition must run that all of the courts’ original jurisdiction could be forced into this Court and - - -

KIRBY J: This is when I say this is a chamber of horrors. You are positing the most horrible worst case scenario in order to frighten us so that we find your implication.

MS MORTIMER: No, your Honour. In order to test the proposition - - -

KIRBY J: We are not easily frightened up here.

MS MORTIMER: Your Honour, really in order to test the proposition and, in our submission, it often is a useful way to test a proposition, not to look at what the Commonwealth correctly characterises as a fairly mild attempt. The Commonwealth says in its written submissions, look, there is not really that many primary decisions that are forced into this Court, so it is not really a really a problem.

HEYDON J: I am surprised you accept that. It is quite common for people to fail to meet short time deadlines, especially if they are not familiar with the local governmental scene.

MS MORTIMER: Your Honour, it is common and if one were to look at it in a proportional sense against the number of people that apply for visas and are refused, in that sense it is a much smaller group, we accept, than the group that go through the merits review. What has been done with primary decisions could, on the Commonwealth’s argument, be done with merits review decisions. So Part 7 of the Migration Act could be abolished, merits review could be abolished and anybody that had applied for a visa and was unsuccessful could be forced to access only judicial review and only judicial review in this Court. So that would be perhaps in pursuit of perfectly legitimate policy objectives, a step along the way from where we are now under the current scheme.

GUMMOW J: You could reach a situation whereby, if the Parliament repealed or purported to repeal section 39 of the Judiciary Act, say, and the consequence was that this was the only Court that could try any action in tort against the Commonwealth of any sort, for example, the validity of that repeal might be called into question because there is some notion of balance that Justice Kirby was referring to, but we have not got that far yet, it seems to me.

MS MORTIMER: No, your Honour, and our proposition is not that it is a question of being - - -

GUMMOW J: I for myself would not foreclose that possibility but we have not reached that yet.

MS MORTIMER: That, your Honour, gets into the - - -

GUMMOW J: I think that is the Solicitor-General’s point. His appetite tends to grow with eating, but at the moment he says he is - - -

MS MORTIMER: We will no doubt hear, your Honour, whether the Commonwealth is prepared to concede that there would be a point at which forcing this - - -

GUMMOW J: In other words, the repeal might be invalid but you cannot force the Parliament to make laws.

MS MORTIMER: No, your Honour.

KIRBY J: You can be sure we will test the Solicitor on whether there will be a point at which, and once that is determined, as I would think, there is a point at which this Court has a constitutional entitlement, as the Supreme Court of the United States has said, to protect itself and to protect its central functions and once you get there, then the question becomes, how do you distinguish this case from that point? Is it distinguished somewhere along a spectrum of the chamber of horrors? This is perhaps an unfair sort of statutory provision but it is not horrific, but how do you articulate that in legal terms? How do you express that in a way that is principled and not simply an instinctual, intuitive feeling, which is not a good way to construe the Constitution?

MS MORTIMER: Whether this Court has to wait until there is an avalanche of litigants banging on the door such that the point is reached where it physically does not have the capacity to discharge its functions under the Constitution, is it only at that point that an exercise of legislative power becomes invalid and, if so, why if section 77 is as broad as the Commonwealth contends?

KIRBY J: This is what the Court had to face in Roach v Electoral Commissioner. At what point do you draw a line in disqualifying prisoners? Why is it three years but not five years? Drawing lines is what constitutional courts do all the time and you have to try to find a principled way to do it. In Roach there were many explanations, one of which was the electoral cycle but it was done, so it can be done to meet the needs of the particular case.

MS MORTIMER: Yes, your Honour, and the point at which we draw the line is the point at which the Commonwealth takes away the choice of this Court and in that sense we draw an analogy again with the appellate jurisdiction and the decision of this Court in Carson about special leave.

KIRBY J: Yes, but that was different because in Carson the Court said we retain the ultimate say.

MS MORTIMER: Precisely, your Honour, and that is our point. That is the point at which we submit the line is drawn. That is the central character of what the Court identified in Carson as integral to validity, that special leave, the grant or refusal thereof, remained a choice for this Court and was not something imposed on it by Parliament.

KIRBY J: But that is a slightly different case, or it is a significantly different case because that is the case where somebody has come into this Court, invoked its jurisdiction, stands at the table, wants to get into the appellate jurisdiction of the Court and this Court stands at the gateway, whereas in this case you are not only at the gateway but you have to have a repository and that is something which, unless the repository is created by the Court’s remitter, is normally provided by the Federal Parliament providing for another court to receive the federal jurisdiction.

MS MORTIMER: That is why, in our submission, your Honour, we recognise we have to accept that the implication of the power carries with it a limit on legislative power. It does both. It limits the extent to which Parliament can remove the jurisdiction of other courts as well. We accept that. It has to do both. In answer to your Honour’s question about where the line is drawn, our submission is that once one gets into the territory of trying to understand is it on the facts or on the circumstances presented before the Court a burden is imposed such that it cannot discharge, that becomes too ambiguous, too qualitative and not based on principle. Rather, in our submission, the basis and principle is, again by analogy with Carson, that the power of this Court to choose whether it is appropriate to exercise its original jurisdiction or whether it is appropriate to command another court to exercise that jurisdiction.

We say that when one looks for a principle going beyond that, beyond the issue of choice being retained by this Court, it is difficult to find a point at which a principle can be imposed and if that is right, then, although we accept on the facts of this case the chamber does not, your Honour Justice Kirby, look quite so horrible, one gets into difficulties of application if one tries to wait until a sufficiently horrible circumstance arises or is provided by Parliament.

CRENNAN J: The practical thing is that most seekers of judicial review do go through alternative processes rather than at the first instance concern themselves with the original jurisdiction of this Court.

MS MORTIMER: Because it is available, yes, your Honour. That is right.

CRENNAN J: Yes, that is right. They get into the Federal Magistrates Court, do they not, through the mechanisms under the administrative review legislation?

MS MORTIMER: Yes, your Honour, that is right.

CRENNAN J: It is not quite right to simply look at the sections we have been looking at and say the Federal Magistrates Court does not have jurisdiction in relation to primary decisions because as an applicant goes through the normal review processes, does not the Federal Magistrates Court in fact have at least jurisdiction once they have had one bite of the cherry under the administrative review legislation?

MS MORTIMER: Yes, your Honour, the scheme that the Act establishes is one that gives a fuller jurisdiction at the Federal Magistrates Court level once people have been through merits review and it is a scheme which plainly encourages people, if they want broader rights of judicial review, or easier rights of judicial review – that is a better way to put it – easier rights of judicial review to have their merits review first and if for some reason they do not do that, then the legislation forces them to come to this Court in a way that, in our submission, it is plainly designed to discourage that. Those are policy matters, your Honour, in our submission. It is not a question of impugning the policy behind the law, it is a question of looking at the effect of the law.

The policy might be quite legitimate just as any government might be able to come up with quite a legitimate policy about why this Court ought to exercise all of its original jurisdiction itself but that is not going to be the test of whether such an exercise of legislative power is valid.

KIRBY J: Can I ask you this, I am just a little puzzled and it is still worrying me so I think I will ask you, why was it that your side worked so hard to persuade Justice Hayne on the transcript, against his better – or at least his original inclination – to state a case instead of throwing yourself on the mercy of this Court, just coming up here under 75(v) and seeking the relief in this Court? Why do you want to go somewhere else?

HAYNE J: Be careful with your answer, Ms Mortimer.

KIRBY J: This Court has shown before, first of all, how important it regards section 75(v) of the Constitution, which is the central relief you are ultimately seeking from the Federal Magistrates Court, and, secondly, has shown itself more than able to deal with cases where the merits of the case justify the use of those great constitutional writs.

MS MORTIMER: Yes, your Honour. The unfortunate practical reality is for my client that but for this case stated, he would have thrown himself on the mercy of this Court unrepresented.

KIRBY J: Why you come in and all your team come in because there is this big constitutional question as distinct from a question on the merits of whether he was denied the opportunity to be heard by the delegate.

MS MORTIMER: Your Honour, such is the state of legal aid in Victoria.

HEYDON J: But if you get down to the Federal Magistrates Court, will you get legal aid there? You cannot get it from the High Court because you - - -

MS MORTIMER: He would not qualify on an application of the tests usually applied by Victoria Legal Aid.

KIRBY J: But we found that the pro bono assistance is generally available in important cases from the Bar throughout this nation and we have had many cases presented to us by counsel who I at least have always assumed are doing it out of a sense of obligation.

MS MORTIMER: Of course, your Honour, but there is a number of circumstances that need to combine in order for a person to be lucky enough to secure that representation. Somebody has to find out that they have got a case in the court. Somebody has to be able to find a barrister that can do it at the time. There are a number of things. That is why I describe my client’s situation as unfortunate that, absent the presentation of a constitutional issue for which A could be secured - - -

KIRBY J: That explains it then. Thank you for doing that.

MS MORTIMER: If your Honour pleases. I have been asked a number of questions which, with the leave of the Court, I will take on notice. I would not expect to be more than half an hour in the morning and then I will be completed, if that would be convenient to your Honours.

GLEESON CJ: All right. We will adjourn now until 10.15 tomorrow morning.

MS MORTIMER: If the Court pleases.

AT 4.12 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 28 FEBRUARY, 2008