MZXOT v Minister for Immigration & Citizenship [2008] HCATrans 98 (28 February 2008)

Last Updated: 28 February 2008

[2008] HCATrans 098

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 THURSDAY, 28 FEBRUARY 2008, AT 10.18 AM

(Continued from 27/2/08)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Ms Mortimer.

MS MORTIMER: If the Court pleases, might I begin this morning by following up on your Honour Justice Kirby’s question to us about what the extrinsic material reveals in relation to Part 8. We have provided your Honours with a copy of both the second reading speech and the explanatory memorandum. I ask your Honours to turn to the second reading speech at page 3 of the extract. There are four passages on the left-hand side of that page that I will draw the Court’s attention to. The first is where the Attorney says at the top of the left-hand side:

A key feature of the bill is to enhance the role of the Federal Magistrates Court in migration cases. The court was established to deal with a high volume of shorter and less complex matters, making it a suitable forum for most migration cases . . .

The bill provides that the Federal Magistrates Court has the same jurisdiction under the Migration Act as the High Court under paragraph 75(v) of the Constitution -

which we submit is too broad a statement. Certainly that is the effect of section 476(1), but that is then limited by subsection (2). Nevertheless, those two statements taken together support what we submit is the obvious proposition from the scheme when it is examined itself – that is that the Federal Magistrates Court is intended to be the first instance repository for the determination of these matters.

Then if I could take your Honours to the last paragraph in that column, the Attorney says:

Migration cases filed in the High Court’s original jurisdiction and remitted will be directed to the Federal Magistrates Court. Further, the bill expressly provides the High Court may remit on the papers . . . The High Court is the apex of our judicial system. It should not be burdened with cases that are more appropriately handled by a lower court.

So the second reading speech gives the impression that the entirety of this Court’s jurisdiction is available to the Federal Magistrates Court which is not, as we have seen from the scheme, quite accurate. Nevertheless, it supports the intention of the scheme which I outlined yesterday.

Now, if the Court pleases, if I can turn from that issue to another matter that was raised with us yesterday in the context of Pirrie v McFarlane and the then scheme of the Judiciary Act in relation to compulsory removals to this Court of inter se questions under the then section 40A of the Judiciary Act.

We have provided to the Court copies of the provisions as we understood they stand at the time. Do your Honours have copies of that? It is on our supplementary list, hand-up list item 3. The discretionary removal under section 40 existed and under section 40A there was a compulsory removal limited to inter se questions. Upon such a removal the provisions of section 42, as the Act then stood, operated, that is once a matter which had been removed pursuant to section 40A was in the High Court, section 42 purported to direct this Court, if it was read literally, in our submission, once the Court had decided that there was really and substantially no inter se question, to proceed no further, but to dismiss the cause or remit it “to the court from which it was removed”.

There are two submissions that I wish to make about that provision. Firstly, if it was read literally, it could be read as a command to this Court about how it was to exercise its jurisdiction and therefore a command about the manner in which it was to exercise its jurisdiction which, since 1992, this Court, under the authority of Lim, might find to be bad.

KIRBY J: The section has really followed the language of command in section 41, shall proceed therein as if the cause had been originally commenced in that Court, so it is simply saying what is to happen when certain preconditions are fulfilled.

MS MORTIMER: Yes, your Honour, but it is a command unlike section 40A which is a command to a lower court. It is a command to this Court about what this Court is doing.

GLEESON CJ: One of the competing possibilities that you would say the High Court may proceed no further?

MS MORTIMER: That the High Court retains a discretion under section 42 to deal with the matter itself wholly even if it determines there is no inter se question, or remit it, but not necessarily remit it pursuant to section 42. There are three authorities about the construction of section 42. Now, your Honours, we came across these only this morning so I begin this part of my submission with an apology if I am not as familiar with them as I should be, but it appears that even at the time that this provision was in operation, it was not seen by this Court as compelling a particular outcome and, indeed, this Court took the view that it retained a non-statutory discretion to remit a matter which had been removed under section 40A, a non-statutory discretion not sourced in section 42.

Now, as I have submitted, there are three cases that appear to stand for that proposition. The first of them is O’Neill v O’Connell & Anor [1946] HCA 59; (1946) 72 CLR 101, if I can take your Honours to that, please. This was a case which was removed pursuant to section 40A into this Court and which this Court decided wholly for itself despite the fact that it reached the view that there was no inter se question which was raised by it. The relevant passage that I want to take the Court to is in the judgment of his Honour, Justice Dixon at page 124. At page 124 in the last full paragraph his Honour describes how the matter came up into the Court, that it was removed pursuant - - -

GLEESON CJ: No, no, removed by it.

MS MORTIMER: Yes, your Honour, removed by. Yes, I accept that. Over the page at page 125 his Honour describes the position that then faces this Court:

But once the “cause” is lawfully removed here, then the determination of the cause lies within the jurisdiction of this Court, which, unless it exercises the power conferred by s.42 or exercises its discretion to remit the whole or any part of it, may dispose of the matters in controversy and give what judgment and make what order appears right upon the facts and the law.

Now, that, in our submission, suggests that his Honour saw this Court as having a discretionary power not sourced to section 42 to remit the cause if it saw fit.

His Honour confirmed that view in the second case that I wish to take the Court to, which is No 1 on our hand-up list – Lambert v Weichelt (1954) 28 ALJ 282. That was a case removed under section 40 of the Judiciary Act, not under section 40A. On page 283 of the report at the top of the left-hand column his Honour makes, on behalf of the Full Court, the same observation:

We must decide the whole cause in fact and in law, unless under the power conferred by s.42 of the Judiciary Act or otherwise we remit it for consideration to the Court from which it has been removed.

This was a case that, absent any inter se question, involved no aspect of federal jurisdiction. So it could not have been a reference to section 45 of the Judiciary Act. It is a reference to, in our submission, again, a non-statutory power to remit a matter that has been brought here, if the Court sees fit.

KIRBY J: I am still puzzled as to how one can remit to a court that is not given by Parliament the federal jurisdiction to receive.

MS MORTIMER: In these cases, of course, your Honour – and I am sure this is what will be said against us – these are cases that were begun in another Court, properly seized of jurisdiction, removed into this Court and then the question was whether they should be remitted back there. So, in that sense, the remitter power is not operating - - -

KIRBY J: The problem did not arise in that case because what came up could go back.

MS MORTIMER: That is right, your Honour.

KIRBY J: But where Parliament has closed off the receptacle, then the question is then presented as to whether the receptacle can receive solely under the constitutional authority of this Court to remit in its residual constitutional power to remit even though it otherwise has no express conferral of federal jurisdiction.

MS MORTIMER: Alternatively, your Honour, that one of the laws in a scheme which entirely removes jurisdiction from all available lower courts must fall.

KIRBY J: But the Federal Magistrates Court is, always has been and always will be a creature of statute. There is a theory about that State Supreme Courts are, though continued under statute, creatures that originally arose out of the royal prerogative and as successors to the Kings Bench or Queens Bench and that therefore they enjoyed, by the common law, the residuum of the royal prerogative to do justice and in that way to be able to do anything.

This is a view, by the way, that is taken in India of the Presidency Courts of Bombay, Madras and Calcutta. So, it is just a question of whether, even if Parliament has not conferred federal jurisdiction, in the field of federal jurisdiction, which itself is a creature of the Constitution, a State Supreme Court has some residuum to exercise federal jurisdiction if this Court remits a matter to it. I am just puzzled as to how the Federal Magistrates Court can do anything if Federal Parliament has not given that creature of statute the power to.

MS MORTIMER: It cannot, your Honour, and we do not contend it can. What we contend is that the Constitution contemplates, through Chapter III firstly, that there is a power in this Court to remit a matter in its original jurisdiction and if it contemplates – not sourced in statute but as part of – that is a necessary part for the effective exercise of the judicial power of the Commonwealth in this Court and if that is right then there must at all times be maintained a receiving court for the exercise of that power.

CRENNAN J: Why should that be so? I mean, years ago the High Court had original jurisdiction in all patent matters, revocation of petitions or infringement actions, and there was no power to remit those matters, whatever burdens they imposed on the Court, until I think around 1976 with the institution of the Federal Court, which resulted then in a redefinition of prescribed courts for patent matters. There was just no possibility or remitting in circumstances where there was no receiving court. As I recollect it, and I may be wrong, there were then some powers of remittal of transitional matters because there was a receiving court which had the jurisdiction in respect of those matters which were once within the original jurisdiction of the High Court for many decades.

MS MORTIMER: Your Honour, if I am correct in understanding that position, when your Honour says there was no receiving court, that is because there was no State court which had been invested with any federal jurisdiction and there was - - -

CRENNAN J: That is right, and no Federal Court.

MS MORTIMER: No Federal Court in existence, yes, your Honour, and by reason of the operation of section 39(2) of the Judiciary Act there was no State court that had any federal jurisdiction.

CRENNAN J: A bit like the position you are in where the Federal Magistrates Court simply does not have the requisite jurisdiction.

MS MORTIMER: Yes, and the question may well have been, though, whether a State court could exercise its ordinary jurisdiction based on subject matter and parties if it had not been divested - - -

GUMMOW J: What do you mean by “ordinary jurisdiction”?

MS MORTIMER: Your Honour, a State Supreme Court has territorial jurisdiction over those - - -

GUMMOW J: What, to try a patent revocation case in 1960?

MS MORTIMER: In the terms of covering clause 5 - - -

GUMMOW J: That would have been a bit of a thunderclap to everyone who practised in that field in 1960.

MS MORTIMER: Of course, your Honour, because the effect of the Judiciary Act, section 39(2) at that stage, was to remove the capacity to commence a matter in State courts. There was no capacity to commence such a proceeding in a State court. So the question would, as your Honour puts it, come as a thunderclap. We accept that.

We accept that this kind of implication, when one starts looking backwards over the statutory scheme at various times, it is not necessarily possible to reconcile it. But that is the same – and I have given your Honours an example – with the Lim implication. One could trawl through the laws of the Commonwealth up until 1992 and perhaps find other statutes that had directed this Court about how it might exercise its power. But that is not the prism through which we submit the matter should be approached.

GLEESON CJ: Another example is the original jurisdiction that this Court used to exercise in relation to acquisition of land by the Commonwealth. They used to do valuation cases. They had a big case here about Lanyon outside Canberra in the 1950s or 1960s. Could that have been remitted?

MS MORTIMER: If there was a State court that had jurisdiction either over that subject matter or - - -

GUMMOW J: What do you mean by “subject matter”?

MS MORTIMER: Whether it was a cause of action in contract, a cause of action in property law or whether there was territorial jurisdiction or - - -

KIRBY J: But under the Lands Acquisition Act that is a particular statutory regime and particular statutory rights which only exist if Parliament provides in the High Court at that time or in a Federal Court which follows through, presumably, a scheme that the Federal Parliament thought it would be better if it had federal judges deciding those matter, judges whom they appointed.

MS MORTIMER: We accept that if the proposition is that there was no State court that had jurisdiction over that subject matter and those parties, then the implication for which we contend, the remitter could not be made. That is so. So there may be some categories of cases where that might fail. Where that places the power to remit is, in our submission, uncertain. It appears to place it – and if we concentrate for a moment, if the Court pleases, on what that power is. It is a power to take something out of this Court that is properly here and give it away to another court and command another court to deal with it. Now, in some of the examples that we have given to your Honours, both through procedendo and through the cases that I have just taken your Honours to - - -

GUMMOW J: You said there was a third case. We have two.

MS MORTIMER: Felton v Mulligan, your Honour. It is in the judgment of his Honour Justice Gibbs who was in dissent in that case. That your Honours will find behind tab 6 of the Commonwealth’s book of authorities. It is right on the last page of the report – page 420. Of course, his Honour was in dissent in that case on the question of whether the jurisdiction that the State Court was exercising was federal or not. His Honour found it was not, but he says on the last page of his judgment:

No doubt the whole cause has been removed and this Court has authority to determine it completely. However, this Court is not, in my opinion, bound to determine a cause removed under s. 40 but may in its discretion remit it to the Court in which it originated. The view seems to have been taken that the power of this Court to remit a cause removed under s. 40 is not limited to that conferred by s. 42 of the Judiciary Act -

and he refers to Lambert and O’Neill -

and I find it impossible to regard s. 42 as defining exclusively the circumstances in which a cause so removed may be remitted.

Instead his Honour prefers to base the discretion that his Honour sees exists on considerations of convenience. If we are wrong about the implication generally of a power to remit in this Court in relation to every aspect of its original jurisdiction, that is because, in our submission, this Court must find that it is not a necessary power to make effective the exercise of this Court’s jurisdiction.

What this line of cases reveals, in our submission, is that several Justices of this Court have found that, certainly in relation to cases removed into this Court, almost as an assumption and without analysis, their Honours have assumed that there is a non-statutory power to remit back to the court from which the matter was removed. So their Honours have assumed that, for some purposes in the exercise of this Court’s original jurisdiction, a power to remit is necessary.

What we submit is that there is no reason in principle and no reason to draw from the scheme in Chapter III to confine that notion of what is necessary to make this Court’s exercise of jurisdiction effective to confine it only to matters that are removed. Our submission, rather, is that - - -

HAYNE J: What is said by Justice Gibbs in Felton v Mulligan and the other two cases you mention about remitter may turn, may it not, more on the nature of an order for removal under section 40 in the sense that removal may be regarded as not a once for all event. It is not a determination of rights. It smacks of the interlocutory rather than the final and, like any interlocutory order, would remain under the control of the court making it. I am not sure how much mileage you get out of cases which permit or contemplate the possibility of departing from an order once made for removal, saying no; that order was improvidently made as now appears; therefore we, in effect, recall it and back it goes to where it started.

MS MORTIMER: Your Honour, except that what those cases that I have taken the Court to demonstrate is that it is not only been conceived as a power that exists where the High Court in the exercise of its discretion removes a matter into this Court, it is where the matter is removed by operation of law.

HAYNE J: The section 40A removal cases may perhaps better be considered, having regard to the combined operations of sections 42 and 45 of the Judiciary Act.

MS MORTIMER: Your Honour, if one looks at the statutory scheme that is a view one might take, but our point is that is not the view that was taken in those cases and it requires some, in our submission, straining of the language used by their Honours in those cases to see what they say as anything other than, well, independently of section 42, independently of statute we have a discretion to send this back. That is, in our submission, an ordinary assumption that Justices of this Court would make about the exercise of judicial power in which they are engaged, that they have the power to determine whether it is the appropriate court to continue to hear this matter or not.

Now, if there has been a non-statutory power recognised in those removal cases not dependent on the scheme under the Judiciary Act then we get to the point, in our submission, of whether there is a non-statutory power, generally, in relation to this Court’s original jurisdiction. May I put the sequence of events this way, if the Court pleases. Start with this Court’s appellate jurisdiction. Although there is a statutory power to remit we submit it is not contestable that if section 37 of the Judiciary Act were repealed it is the case that an order to make the exercise of this Court’s appellate jurisdiction effective it has a power to remit a matter once it has determined the component of the appeal that it needs to determine to remit the matter back to a lower court. That is a power that is necessary.

So, there is one category of remitter that we would submit without question exists in a non-statutory form as well as a statutory form. Then, there is a second category that we can now identify which relates to cases removed into this Court’s original jurisdiction where this Court is exercising original jurisdiction and, similarly, the authorities show a recognition of a non-statutory power to remit those kinds of cases. So where that leaves us, in our submission, is with a third category of cases, namely those commenced in this Court’s original jurisdiction either under section 75 or under section 76, if a law so confers it.

Therefore, the question is, in order for this Court effectively to exercise its jurisdiction in that category of cases, is it necessary to imply a power to remit those matters to another Court or - - -

KIRBY J: It would in a sense be certainly more comfortable for me to face that question if I considered that there was necessity. If, for example, the Court was swamped with a particular conferral of jurisdiction I presently have no doubt that there would be a power in the Court to protect its core functions under the Constitution, but we are hardly in that position today and therefore I stumble at the notion that out of necessity we have to protect the Court to assert the power to remit.

MS MORTIMER: Your Honour, the burden line of argument is one reason why it might be said that the implication of such a power is necessary, but is not the only one. The other one, in our submission, is really about the manner of the exercise of jurisdiction and it comes back to the same principles that this Court addressed in Lim. If the power to remit goes to the manner in which this Court exercises its original jurisdiction, and we say that that is plain in the sense that – and his Honour Justice Gummow’s decision in McIntosh expresses the principle – a power of remitter is an exercise of jurisdiction, the Court is seized of the matter and it exercises its judicial power to make an order. The order is to remit.

So that if what is occurring in that consideration is the manner in which the original jurisdiction of this Court ought to be exercised - should it be exercised fully to hear and determine the matter or should it be exercised by a power of remitter – then a law of the Parliament that seeks to interfere with that is interfering with the manner in which the Court exercises its jurisdiction.

GUMMOW J: Now, can we just look again at the Judiciary Act in its earlier form which you gave to us?

MS MORTIMER: Yes, your Honour.

GUMMOW J: Can we look at that Lambert Case again? The paragraph at the top of page 283, the sentence:

We must decide the whole cause in fact and in law, unless under the power conferred by s. 42 of the Judiciary Act or otherwise –

What I want to put to you is that your “otherwise” is consistent with an operation of section 45 because section 41 says:

When a cause or part of a cause is removed into the High Court under the provisions of this Act, the High Court shall proceed therein as if the cause had been originally commenced –

Right?

MS MORTIMER: Yes, your Honour.

GUMMOW J: So you then read section 45 with 41 and there is a general power of remitter.

MS MORTIMER: The State court - - -

GUMMOW J: Because it was pending in the High Court even though not originally commenced there.

MS MORTIMER: That is so, your Honour. We accept that section 45 is intended to and does cover both matters removed and matters originally commenced, but it confines the power of remitter to one that is exercisable only where a court of a State has federal jurisdiction with regard to the subject matter and the parties.

GUMMOW J: Yes, that is right, as this was.

MS MORTIMER: In Lambert’s Case - - -

HAYNE J: But Lambert was.

GUMMOW J: Lambert was.

HAYNE J: It was a section 92 case.

GUMMOW J: Yes.

MS MORTIMER: No, your Honour. That was the matter that the Court found was not raised. That was the question that the Court found was not raised - - -

GUMMOW J: Yes, but they did not remit in Lambert. That is the point.

MS MORTIMER: No, your Honour - - -

GUMMOW J: They discharged the order nisi. They got rid of it.

MS MORTIMER: They did. That is so, your Honour, but they - - -

HAYNE J: Dismissed the proceeding.

MS MORTIMER: I am sorry, your Honour. I am cutting across your Honour. They recognised they had the power to remit.

GUMMOW J: Well, you say that.

MS MORTIMER: We do, your Honour.

GUMMOW J: What you need is a case in which they remitted it to a court that did not answer a description in section 45. I would be very surprised if you can find such a case. For example, Justice Crennan’s example would be the patent revocation action. A lot of grumbling used to go on and if there had been this power I am sure it would have been seized upon.

HAYNE J: Hence the scars of a few directions hearings.

GUMMOW J: That is right.

MS MORTIMER: Your Honour, the circumstances in which ultimately all factors coalesce to bring a matter before this Court means that some - - -

GUMMOW J: Maybe Sir Harry Gibbs is moving towards a big leap in Felton v Mulligan.

MS MORTIMER: No, your Honour. Recognising what was necessary to make the jurisdiction effective and as I have put - - -

GUMMOW J: Felton v Mulligan is in 1971, the Court was sending out all sorts of messages before the 1976 legislation.

MS MORTIMER: Your Honour, we have two categories.

GUMMOW J: There is a judgment of Sir Garfield Barwick in a patent case saying this cannot continue to go on.

GLEESON CJ: But Sir Harry Gibbs was not sending out a message that there should be a federal court created.

GUMMOW J: No.

MS MORTIMER: No. Your Honours, in our submission, I have probably reached the point where the choice is clear as between the position we put. We say there are two categories of jurisdiction in this Court where a power to remit is necessarily implied because it needs to make the jurisdiction effective, appellate jurisdiction and the removal jurisdiction. Now, if we are wrong about the remainder of the Court’s original jurisdiction then there is some disconformity, in our submission, in the scheme in Chapter III because the kind of powers that one implies as necessary for the effective exercise of this Court’s jurisdiction are different. You have two categories where you will imply power to remit and yet you have a third category of this Court’s jurisdiction where you will not.

GLEESON CJ: What about the jurisdiction conferred upon this Court as the Court of Disputed Returns in relation to federal elections? Now, I think I remember that in the current statutory scheme there is a power of remittal to the Federal Court. I am not sure about that but I think it. But, before the creation of the Federal Court, for most of the 20th century, what, if any, power of remitter was there in relation to the work of this Court as a Court of Disputed Returns?

MS MORTIMER: Your Honour, I cannot answer that question as I stand here, but we can give your Honours a note about that.

GLEESON CJ: Thank you.

MS MORTIMER: We ask your Honours to focus on that aspect that we have emphasised which is what is necessary to make the jurisdiction effective. If the Commonwealth are right and a power of remitter, as we apprehend they will say, outside those two categories that I have taken your Honours to, is not necessary to make this Court’s jurisdiction effective then it can be removed entirely by Parliament. That is the proposition which we submit this Court should find unacceptable. That is the consequence that we submit the Court must be left with if, in that third category, there is no such implication to be made.

KIRBY J: Your submission is that necessity is not judged in the here and now, it is judged in the nature of the function and power?

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

KIRBY J: Because, if it is judged in the here and now, there does not seem to be an urgent necessity to have this power. I mean, the Court could cope by organising its work but one could conceive circumstances where it could be necessary and, indeed, as the Court’s history has evolved it has reached forks in the road as it did in the special leave provisions in 1976 where it has had to take steps in order to protect itself and as it did in 2004, I think, when it moved under the Rules to deal with many special leave applications on the papers. Those forks are reached, but one could not say that a fork has been reached, of necessity, in the current circumstances to deal with the current case.

MS MORTIMER: In a factual sense, no, your Honour, but what is necessary, in our submission, is that the choice is left to this Court, that the choice about the appropriate forum for something that is in its original jurisdiction, that the choice is preserved in this Court. Chapter III, in our submission, contemplated the creation of Federal Courts. That is what has happened and what has happened under section 77 is an exercise of legislative power to distribute this Court’s jurisdiction and other federal jurisdictions between those courts and that is what the Constitution has contemplated. In those circumstances, in relation to this Court’s original jurisdiction, what is necessary is to preserve the effectiveness of the choice for this Court about whether to exercise or not.

GLEESON CJ: One of the things the Constitution contemplates is rational behaviour on the part of the legislature, and one of the things this Court needs to exercise its core jurisdiction happens to be money. That comes by Act of the legislature. You do not imply into the Constitution, do you, anything about money for this Court?

MS MORTIMER: No, your Honour. We accept that if this power cannot be seen as a necessary incident of the judicial power of the Commonwealth exercised by this Court, the implication cannot be made. It either comes within the categories that this Court has incrementally recognised – like a stay, like the grant of bail, like abuse of process; those sorts of things – or it does not. Either this Court will say that no, it is a different creature to those kinds of powers or it is the same creature. That is the choice.

KIRBY J: There have been cases in the United States where federal judges have challenged their salaries on the basis that the Congress has not provided sufficient salary. Those cases have been taken seriously and the Supreme Court has not denied to itself the power, if it came to that point, to order the Congress to make funds available, even though that involves a levy on the tax-raising of citizens.

MS MORTIMER: Your Honour, I accept that that is a good example of where at any given point in the progress of the discharge of a court’s jurisdiction and the way it functions, a situation may be reached where a court is forced to consider whether something ought to be implied or ought not to be implied.

KIRBY J: But prudence in the conversation between the court and the Parliament has normally led to the court postponing dealing with such matters until circumstances where it is truly necessary.

MS MORTIMER: That may be the explanation why, in the history of the Judiciary Act, the validity or otherwise of section 39(2) never had the occasion to be squarely raised in the way we raise it, because the distribution was not causing any particular difficulty and Parliament had not sought so plainly to prohibit this Court as it does in section 476B(2) to prohibit this Court from remitting.

The Migration Act is the first example, aside from the Judiciary Act, where the Commonwealth Parliament is doing that. That is why, in our submission, there is the question of an implication raised in a context in which it has not been raised before. Prior to this, the question of the way in which this Court dealt with its original jurisdiction may not have seemed so acute under section 39(2).

Once the Federal Courts were created, once the distribution through Acts of legislative power of the judicial power of the Commonwealth became broad, as the Constitution contemplated it would, then a prohibition on remitter comes to be seen, in our submission, in a very different light. When one looks at the matter as it stands in 2008, given the availability of receiving courts which have been created, as Chapter III contemplated they would be, now the Commonwealth comes with a prohibition on doing the very thing that, in our submission, was plainly contemplated by the Constitution, that this Court would choose the matters in its original jurisdiction that it would deal with.

So that is why we accept that we are not able to take your Honours back to any discussion about section 39(2) that is going to raise this point, because we are now at a point in the judicial and legislative history of this country where the question is real. There has been an express prohibition.

Now, either that can be effective because this Court does not need a remitter power in its original jurisdiction, or it is not effective. At the end of the day, in our submission, this case raises no different question to any other case and I take Lim as an example. Either the legislative power trumps the judicial power or vice versa. If the Court pleases, those are the submissions on behalf of the plaintiff.

GLEESON CJ: Thank you. Yes, Mr Solicitor.

MR BENNETT: If the Court pleases. I propose first to say some general words about the Constitution and the division of powers and talk about Johnstone’s Case, then some words about procedendo and the analogies there in the cases referred to this morning. Finally, I will deal with a question asked by Justice Gummow yesterday concerning the possible invalidity of a repeal and then the question of extreme examples and what could happen in I think what was described yesterday as the “chamber of horrors” situation.

The starting point with Chapter III is that it gives certain functions in relation to the judicature, to the Parliament, and certain functions to the courts themselves. There are also, of course, powers impliedly given to the Executive in relation to the provision with courthouses and staff and matters of that sort. The scheme of the Constitution involves that in relation to the judicial power, the - to show the Executive and the judiciary have certain functions and exercise them co-operatively and, to use language used in some cases in this Court, trusting each other.

Sections 75 to 77 are very clear in defining what is to occur in relation to the nine subject matters of original jurisdiction. In five of them “the High Court shall have original jurisdiction”. In four of them the “Parliament may make laws conferring original jurisdiction”. Then one has section 77 which first allows Parliament to define “the jurisdiction of any federal court other than the High Court” and one has to read into the word “any”, of course, the words “if there is one”.

For many years the only Federal courts other than this Court were the Federal Court of Bankruptcy and various industrial courts, when they survived challenges in this Court. There were certainly no Federal Courts of general federal jurisdiction as one might call it. Parliament had the power to define what jurisdiction, if any, those courts would have in relation to the nine matters. It then is given power to define “the extent to which the jurisdiction of any federal court” and we know from Pirrie v McFarlane that includes this Court “shall be exclusive” of “the courts of the States”.

GUMMOW J: Yes. Now, it is at this stage it seems to me that if your opponents had any footing, it is there. In other words, if there are any implied, to use their expression, restraints on the exercise of that power of definition, the exercise of which is brought about, I think, section 476, is it not?

MR BENNETT: Your Honour, first, if the Parliament confers original jurisdiction under section 76 - - -

GUMMOW J: By, for example, a wholesale repeal of section 39 of the Judiciary Act and section 68 of the Judiciary Act so all Commonwealth crime would be tried here on indictment and all actions in tort and contract involving the Commonwealth would be tried here. Is there any restraint upon that power to redefine?

MR BENNETT: No, your Honour.

GUMMOW J: Not at all?

MR BENNETT: There are defensive measures, if I can so describe them, which this Court could take in that situation, and I propose to list those at some stage, but those defensive measures do not include the power to do the very thing which is reserved to the Parliament in section 77 which is to define the jurisdiction of other Federal Courts.

KIRBY J: Do you say the defensive measures might be, for example, stay of proceedings or release of prisoners pending trial and trials long delayed because they were banking up in this Court? There is a list of them I think in the written submissions.

MR BENNETT: Yes. There are questions about stays and refusing to exercise jurisdiction, but some of the other things that can be done are these. The first and most obvious is to do what this Court has done on other occasions, which is to make it clear that the legislative situation is unsatisfactory and that in this Court’s view it would be desirable for Parliament to do certain things. If one looks at the Hansard in relation to the – I have copies of the relevant Hansard.

KIRBY J: This is before the 1976 amendments, is it, before the change in the special leave arrangements?

MR BENNETT: No, this was the amendment to section 44. I am sorry, I will have them to hand up in a moment. It is only really one sentence I need to read and that is that Mr Bowen, in his second reading speech to the Judiciary Amendment Bill at page 1284, in the second paragraph of his speech, said this:

The justices of the High Court have expressed concern about the effect of the increasing work load of the High Court on its capacity to function effectively as a final appellate court in Australia and as the interpreter of the Constitution. This Bill deals with two of the matters that have given rise to that concern.

So that is a very practical and very normal part of the co-operative working together of this Court and the government in the same way as courts often say in their judgments, courts at all levels, section so-and-so has this effect, that is highly unfortunate in this case and it would be desirable if it were amended. That is something courts do.

KIRBY J: Do not wax too lyrical. It does not happen all the time.

MR BENNETT: No, your Honour, but it is, we stress, a normal part of the process and it the first remedy which is open to the Court if an extreme situation develops. Another is for this Court to adapt its procedures in order to deal with matters of that sort and there are ways that can be done under the Rules. Among other things, the Court could use the Harris v Caladine approach of referring matters to registrars of certain types within the limits laid down by that case. It could decide cases in a way which involved less - - -

GLEESON CJ: Less orality.

MR BENNETT: Yes, less orality or less time taken in various ways. Length of submissions can be limited and so on. Ultimately, I suppose, in the situation described as “the chamber of horrors” situation, one might end up with a situation like that which is said to exist in India where there are very long delays of many years in hearing some cases and the court has to prioritise and no doubt it would be able to work out which cases get priority and which do not in accordance with normal principles.

But, of course, the central answer to that proposition is that one does not, as has been said many times, most recently in the Work Choices Case, that one does not hold that a power has to be limited because extreme and fanciful examples might involve abuses of that power. That has been said in relation to this very question. In Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170 Justice Isaacs in the course of his judgment said this at page 210 where he says at point 2 of the page:

It was suggested in argument that a soldier might, if unrestrained by traffic regulations, dash into traffic regardless of property and life. That is a double-edged objection. So might a policeman in pursuit of a criminal, or so might a fire brigade rushing to the scene of a fire. But the objection, which is of the ever-recurring type, has its standing answer, namely, that possibility of abuse is no argument against the existence of a power.

GLEESON CJ: It is almost impossible to imagine a power that cannot be abused.

MR BENNETT: Precisely, your Honour.

KIRBY J: Yes, but as against statements that say that there are statements that say you test the proposition that the power exists by the examples in which it can be used and if the use can lead to examples that are offensive to the Constitution then that leads you to the conclusion that that is not a true understanding of the power. That is the Immanuel Kant’s proposition about testing moral theories.

MR BENNETT: Yes. Sometimes that is a useful form of argument but in a case like this - - -

GUMMOW J: Wait a minute, Mr Solicitor, that notion has not readily been applied in Chapter III, has it?

MR BENNETT: No, your Honour.

GUMMOW J: Take Cockle v Isaksen 99 CLR, for example, does not the Court say there that looking at section 73 we see the phrase “with such exceptions and subject to such regulations” the appellate jurisdiction can be cut down. The Court said that cannot be taken to an excessive extreme to eat up the content of section 73.

MR BENNETT: Yes.

GUMMOW J: They did not say what Sir Isaac Isaacs said in Pirrie v McFarlane.

MR BENNETT: Yes. That is in a slightly different context. That is in the context of an exception and as a matter of general construction one cannot allow what is contemplated by an exception to take away the whole of the principle to which it is an exception. That is clearly so. Here, what my learned friend’s argument comes to is this, that however small the area, however small the number of cases involved, it is simply not open to the Parliament to make any aspect of this Court’s jurisdiction exclusive and to, in the course of so doing, prevent it remitting the matter to another court. She has to go that far.

That just cannot stand with the structure of Chapter III and in particular section 77 which permits the Parliament, rather than this Court, to define the jurisdiction of other Federal Courts and permits Parliament to say – expressly permits Parliament to say that in some areas the jurisdiction of this Court may be exclusive.

KIRBY J: I understand that submission, but has there ever been an example where the Parliament has forbidden this Court to remit or is this something new that makes us alert to the need for vigilance because that is the history of legislation, it starts with a tiny little step and then that tiny little step tends to expand if it is left alone.

MR BENNETT: Well, it happens, your Honour, wherever there is an exclusive jurisdiction conferred on this Court and no other - - -

KIRBY J: But since the Judiciary Act we have had this large power of remitter which protects the Court and is a sensible deployment of the judicial power of the Commonwealth.

MR BENNETT: Yes.

KIRBY J: Has there ever been a case before this case where the legislature has stepped in and said, “We know you are the High Court of Australia and we know you have your own functions under 75(v) which you have said are cardinal, but we are not going to allow you to remit to anyone else”?

MR BENNETT: It has done that effectively in cases where section 44 does not operate.

GUMMOW J: No, it did it from the beginning in section 38, did it not, of the Judiciary Act?

MR BENNETT: Yes.

GUMMOW J: But section 38 is a very limited sort of exclusive jurisdiction, actions between the Commonwealth and the State, between States, section 75(v), and treaty matters. The rest could be remitted under what used to be section 45.

MR BENNETT: Yes, but there has always been - - -

GUMMOW J: The problem is this class of exclusive jurisdiction that has been created here is nothing like that class that was there for a hundred years under section 38.

MR BENNETT: No, your Honour, but there is no obligation on the legislature - - -

GUMMOW J: Other than 38(e).

MR BENNETT: I am sorry, your Honour?

GUMMOW J: Section 38(e) used to be exclusive.

MR BENNETT: Yes. There is no obligation - - -

GUMMOW J: That provides you with some support, I think.

MR BENNETT: There was no obligation on the legislature to enact section 44 and the former section 45. It could simply not have given this Court that power.

GLEESON CJ: Do you happen to know what was the situation in respect of the Court of Disputed Returns before the creation of the Federal Court? Could election proceedings be remitted anywhere?

MR BENNETT: I do not know, your Honour, but I strongly suspect not, but I would need to check the terms of it.

KIRBY J: But I see a difference with section 38. Section 38 is saying, “You, the High Court, shall have this power and only you will have it”. It is a different thing to say, “You, the High Court, have a power and you cannot deploy that power by remitting the matter perhaps for the findings of facts or other matters to other courts. One is, as it were, concentrating the power. The other is depriving the court of the power to remit to someone else for the reasons of the convenience of the Court.

MR BENNETT: Your Honour, it can, as I say, use a Harris v Caladine approach, but - - -

KIRBY J: I do not think that is a very good answer with the notion that the High Court is going to have oodles of registrars dealing with its jurisdiction is not one immediately appealing.

MR BENNETT: Of course before 1976 the Court could only remit on the application of a party, not of its own motion. That is something which came in later. So from the point of view of protection of the Court, the provision was not there.

KIRBY J: Anyway, the short answer to my question so long ago is, “No, there are no other examples. This is it. This is the start”?

MR BENNETT: Your Honour, the last sentence is, with respect, a non-sequitur, but the - - -

KIRBY J: Well, the history of the Commonwealth does not make it a non-sequitur. As I sit here for 13 years, you will watch, and one step is taken and then the next step is taken once the first step is passed.

MR BENNETT: That does not prevent the Court having to decide each case on the basis of whether the particular step is or is not permissible.

KIRBY J: That is true, but you also look down the years.

MR BENNETT: The fact that some other step in the future may not be permissible is a different question. Of course here we are dealing with a very tiny group of cases, bearing in mind this – this is really a different part of the argument - - -

KIRBY J: If it is so tiny, why bother?

MR BENNETT: Your Honour, there were reasons for it, which I can explain. If any person has a section 75(v) complaint arising out of the decision of a delegate of the Minister, the Act confers full review, including merits review, to a tribunal. Now, once that tribunal considers the matter, whatever defect has occurred is likely to be of only academic interest because there are many cases which say that where natural justice is denied at the first level and there is a full merits review to a second level at which natural justice is given, the breach is cured.

Why then would a person wish, one asks, when one looks at the definition of “primary decision”, not to take the merits review route but to take a route, whether to the Federal Magistrates Court, the Federal Court or, for that matter, this Court in which the only question is the arid question of whether at the first level there was some section 75(v) defect. One obvious answer to that question might be to delay. If one has some natural justice challenge to the delegate’s decision and one does not particularly want merits review, it might suit an applicant to take a case to the Federal Magistrates Court, then to the Federal Court, the Full Federal Court and this Court. That is one of the vices with which Parliament was concerned.

The importance of what I just said about the unlikelihood of a person wishing to bring a section 75(v) proceeding in this Court from a delegate rather than proceeding in the normal way with the full merits review makes that a very, very small class of case. It is hard to imagine a situation in which a lawyer would advise a client that you are better off taking a judicial review proceeding in the High Court than you are seeking merits review.

KIRBY J: Except a case where a person who, bereft of legal advice, a stranger to this country who perhaps does not understand the language fully, does not understand the ways, gets out of time and then the 75(v) is all that is left. He goes to the lawyer and says, “Why can’t I go up to the High Court?” and they say, “There is no legal aid for that, so go away, forget it”.

MR BENNETT: Your Honour, I have to concede the case where the time limit has cut in, but that is no doubt a comparatively small class of case. What I am merely putting to the Court is the type of case where a person deliberately says, “I eschew merits review”, lets the time go by and comes to this Court is not something which is likely to occur at all. It is hardly going to be a swamping problem.

KIRBY J: There is another instance which is against the plaintiff, and that is the person who just will not give up and who keeps coming back time after time, and this is one more way of doing that.

MR BENNETT: But, of course, the 75(v) jurisdiction of this Court cannot be taken away, so one starts with the proposition that the Court has the jurisdiction, legislation cannot take it way. The question then is what one does with it and what has been done is what is done in this case.

KIRBY J: But is not the logic of the statute in this case that somehow people will come to this Court, as they do, unrepresented, on their own, seeking relief from this Court because this Court cannot send it and remit it to another court?

MR BENNETT: Your Honour, it is unlikely. There certainly has not been any suggestion on the other side that there is evidence of that sort of - - -

KIRBY J: You do not see the special leave applications, or you do not see the applications that we receive.

MR BENNETT: Special leave applications are a different category. They are not covered by this. For a person to do this deliberately necessarily involves the person eschewing merits review and that, we submit, is almost inconceivable in the vast majority of cases. One asks rhetorically, why would one do that when one is going to get the full merits review with natural justice at the next stage? The answer is, it takes away the point I have got, that I was denied natural justice at an earlier stage. But the legislative policy is that the remedy of such a person, so far as legislature can define it, is the merits review procedure. Legislature cannot take away the ability to come to this Court, so that remains but is surrounded by the other restrictions which the legislature has imposed.

Structurally, as I have said, section 77 specifically refers that to the Parliament. If one looks historically again at some of the areas of exclusive jurisdiction in the past and some of the legislation that might have caused a far more serious problem than is caused by this legislation, the Court has held it to be valid and the clearest example of that, of course, is Pirrie v McFarlane. Pirrie v McFarlane [1925] HCA 30; 36 CLR 170, your Honours recall, which I referred your Honours to a few moments ago, involved section 40A which provided that if an inter se question arose in a court, the matter was removed by force of that section to the High Court.

Some of the effects of that were referred to in some famous evidence given by Sir Owen Dixon – or Mr Dixon as he then was – before the Constitutional Royal Commission in 1927. I have made some photocopies of that for your Honours and I hand that up. He refers to the width of the provisions of the Constitution and the inconvenience that these sections can cause. It is at page 788. His evidence starts at page 776 and your Honours see that he is introduced and he has a memorandum that has been prepared by a Committee of Counsel of Victoria which he is then invited to read to the Commission and the next many pages are Sir Owen reading to the Commission this material as, in effect, his evidence.

He says in the second paragraph it was prepared by “A sub-committee consisting of Mr. Menzies, Mr. Ham and myself”. At page 788, after referring to a number of provisions in section 39(2), he says this halfway down the first column:

These conditions really touch the ordinary practical work of the courts at two points, viz.: - (1) the constitution of the court of summary jurisdiction; (2) the right of appeal direct to the High Court. But innumerable instances can be supplied of the anomalous manner in which even the two conditions operate. The simplest illustrations perhaps will best show the extraordinary effect which may be produced. If a complaint is brought in the Petty Sessions at Melbourne for money lent it will probably be heard by two or more justices, and speedy justice will be done. But if it is afterwards discovered that one of the parties resided in another State, their order will be void, because the justices heard a matter between residents of different States, and section 39(2)(d) required a police magistrate alone to hear it . . . If a boy is prosecuted before justices of the peace under a municipal by-law for riding a bicycle on the footpath, and objects that he did so in the performance of his duties as a messenger of the Post and Telegraph Department, and that the by-law cannot affect him, however untenable his objection may be as a defence, yet instantly the justices lose their jurisdiction, because the interpretation of the Constitution is involved.

Troy v Wrigglesworth were facts similar to that. Then he gives the famous Swan Hill tramp example:

So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction. In all three instances, even if it had happened that a police magistrate alone had dealt with them, an appeal would lie from his order to the High Court.

and so on. Now, the point about that material is that it shoes that it was recognised in 1927 that both the provisions about inter se matters and the provisions about federal jurisdiction were capable of operating extremely widely. Nevertheless, notwithstanding that, the Court in Pirrie v McFarlane, which was given a couple of years before that evidence, had no difficulty in holding that section 40A was valid. One does not know how many cases there were of telegraph boys or Swan Hill tramps who were removed into this Court, but the potential – this is what Mr Dixon’s, as he then was, evidence shows – for this Court to be swamped by the section 40A problem and the section 39 associated problem was far greater than could ever arise in this case.

KIRBY J: But that is presumably why, when he became Justice Dixon, Justice Dixon took the view that there was this residuum of power to remit.

MR BENNETT: Your Honour, we do not accept that and I will come to the question of - - -

KIRBY J: That seems to be what he said.

MR BENNETT: No, your Honour, it is not accurate.

KIRBY J: Again, it is a case where the Parliament has enhanced the power of this Court, has required that matters come to this Court. It has enlarged the power to the Court, but you are seeing in this instance a case where the Parliament is purporting to reduce the powers of the Court and remove a power that otherwise exists and including a power which, at least arguably, is most beneficial to the good deployment of the Court and its Justices.

MR BENNETT: Removing it in an extremely narrow class of case and removing what it has given. Your Honour puts to me the question of the implied power and I was going to come to that, but may I just say a couple of things about the implied power. The cases my learned friend relies on for that are three. There was O’Neill v O’Connell, Lambert v Weichelt and Felton v Mulligan. The passage in O’Neill v O’Connell [1946] HCA 59; 72 CLR 101 at page 125 upon which my learned friend relies is where Justice Dixon says – and one needs to read this whole sentence – it is 124, point 2:

But once the “cause” is lawfully removed here, then the determination of the cause lies within the jurisdiction of this Court, which, unless it exercises the power conferred by s. 42 or exercises its discretion to remit the whole or any part of it –

That must be a reference to section 45. What his Honour is saying is, if it exercises the power to section 42 or if it is an appropriate case for it to do so, exercises its discretion to remit it, but - - -

GUMMOW J: The trouble is section 45 required a party, did it not?

MR BENNETT: Yes, it did, your Honour, but the party having made the application it enlivened the discretion. What my learned friend is doing is reading that in a very artificial way of making the words do far more work than they were intended to. His Honour is merely referring to a possibility. He is not spelling out the fact that that possibility is circumscribed in a large number of ways, one of which is that there has to be an application and one of which is that the repository has to have the relevant type of federal jurisdiction and so on.

He is simply referring to it as a category in which there would be a discretion to remit. But, to say that in that throw away line his Honour intended to say, “And by the way, although there is no authority on this, I am of the view that the Court has an implied constitutional discretion to remit in any case in which it chooses” is just making those words do work which they are incapable of doing. If he had meant that he would have said it.

KIRBY J: May I ask, and I may have misread your submissions, do you not concede that in a worst case scenario of a swamping of the Court with a particular jurisdiction – it would not happen in your time, Mr Solicitor, but just posit it as a possibility – that the Court would enjoy a constitutional power to remit matters to another court so that it can discharge its central constitutional functions?

MR BENNETT: No, your Honour.

KIRBY J: You do not accept that that power exists?

MR BENNETT: No, your Honour.

KIRBY J: The Court would just have to go down with the swamp?

MR BENNETT: No, your Honour, I have given a range of - - -

KIRBY J: Gurgling on the way and gasping for air, Justices overworked, overdrawn, desperate, cruelly deployed.

MR BENNETT: One possibility, your Honour, and your Honours do not have to decide that in this case, but one possibility which can be added to the range of possibilities is to do what the United States courts do and simply say there is a discretion to stay matters where there is another court which has jurisdiction.

GUMMOW J: Yes, but if it does not?

MR BENNETT: I am sorry, your Honour?

GUMMOW J: If there is no other court?

MR BENNETT: If there is no other court that has jurisdiction, then the only remedies are the other ones I have referred to. If another court has jurisdiction, of course, it can mulct a litigant in costs for coming to this Court when it is appropriate to go to another court. That is the sort of remedy which courts have used on many occasions in order to encourage litigants to go to particular places rather than other places.

GUMMOW J: What were the possibilities if there is no other court?

MR BENNETT: If there is no other court, the first one is to make representations of the type I referred to earlier – representations is probably the wrong word – make public statements making it clear that the legislature ought to do something about it and that is likely to be acted on as it was in the example I took your Honours to. That is number one. Number two is by developing procedures to deal with it, number three is by prioritising its work. Some cases might take a very long time to come on and that in itself might discourage applications.

HAYNE J: Yes, that is all fine and well in the civil jurisdiction. If somebody is in prison, that is not open.

MR BENNETT: No. In that type of case it is not but those cases would no doubt be prioritised.

KIRBY J: That seems to be a view of this Court’s power quite different from that which was expressed by Justice Dixon in R v Tait where out of the Constitution his Honour found the power for the Court to deal with the issue which was before it then and which initially was denied by the Solicitor-General of Victoria.

MR BENNETT: Yes. Courts do have some implied powers. Mareva injunctions are another example of that. A Court always has implied power to make orders having the effect of preserving the subject matter of the litigation. Injunctions pending appeals and stays and matters of that sort are in that category.

KIRBY J: Given what this Court has said about the power under section 75(v), why does it not have an implied power to protect the utility of the constitutional writ?

MR BENNETT: Because, your Honour, the power which is claimed for it is a power to – in the absence of legislative authority to confer jurisdiction on a Federal Court, something specifically given to the legislature by section 77 and not given to the Court. It is in a different category. It is taken out by section 77 of the general category of things that a court can do.

KIRBY J: Is there anything in what Ms Mortimer told us yesterday that legal aid is not available for a proceeding on the merits of a 75(v) constitutional writ proceeding in this Court and therefore, as a matter of practicality, it is not available to the present plaintiff if it is left in this Court?

MR BENNETT: I do not know the answer to that question but I can say this. One’s experience enables one to say that a great deal of pro bono work is done at the Bar and that most barristers would jump at the opportunity to do a pro bono case which happened to be in this Court far more readily than they might if it were in a lower court, for fairly obvious reasons.

KIRBY J: That might be overstating it.

GUMMOW J: I think our Registrars have had trouble from time to time, Mr Solicitor. This is a panglossian view of the world. Our Registrars have had difficulty in obtaining pro bono counsel from the relevant authority.

MR BENNETT: It did not happen when I was President of the Bar.

GUMMOW J: No, maybe not.

MR BENNETT: That, with respect, surprises me, your Honour, because there is a reservoir of barristers and solicitors who are prepared to do pro bono work. The fact that it is in this Court certainly would make it more attractive to people in that category to take the work than might otherwise be the case. I simply put that in relation to the Victorian Legal Aid proposition. What policies particular legal aid bodies may have in relation to grants cannot ultimately affect what the law is; certainly cannot affect the constitutionality of Parliament exercising its legislative ability to determine what matters go where, who has jurisdiction and who does not.

The second passage my learned friend referred to was in Lambert v Weichelt, 28 ALJ 282. At page 283 in line 5 on the page Chief Justice Dixon said, after a matter had come up to the High Court by an order under section 40:

We must decide the whole cause in fact and in law, unless under the power conferred by s. 42 of the Judiciary Act or otherwise we remit it –

There is no reason at all why the words “or otherwise” there cannot relate to section 45. His Honour is talking about a general situation, not about the case before him. He is not saying, “In this case I must decide whether to exercise the power conferred by section 42 or otherwise”. He is not saying that. He is talking in general terms about, “Where a matter comes up, we must decide it unless the section 42 or otherwise”. The fact that there are some limitations on section 45 does not prevent that being a reference to it. Again my learned friend has to make the words “or otherwise” do the work of a paragraph saying, “I am of the view”, although no case has said it, “that this Court has an implied power to remit any part of an original jurisdiction matter to such courts as it sees fit, whether or not they otherwise have jurisdiction”. One simply cannot read that into the two words “or otherwise”.

The third case referred to was Felton v Mulligan in the dissenting judgment of Justice Gibbs as he then was. This is in the context of a situation analogous to procedendo, which I am going to come to. This is in the context of sending a case which has come up from a lower court back to it as part of the disposition of the case. That can occur, of course, both in ordinary appeals and in the granting of prerogative writs. The classic case in an ordinary appeal, of course, is where trial court gives a judgment for the defendant, the plaintiff appeals to this Court, this Court allows the appeal and then the question of damages arises and fairly obviously the normal course would be for the matter to be sent back to that court to assess damages.

Now, the word “remit” may be used but that is not an example of a general power to remit. It is simply sending part of a case back to the court whence it came which has jurisdiction to deal with it as part of the overall process of disposing of the matter. There is no analogy to an original jurisdiction matter where it is sent to a court other than the body from which it has come up. That is the problem with my learned friend’s reliance on procedendo. I am not sure if the first “c” is intended to be soft or hard but I will treat it as hard.

That writ was available, as the various passages cited demonstrate, in effect to return a proceeding to the lower court which has jurisdiction and continues to have jurisdiction in relation to it as part of the dealing with it under the prerogative writ, either because it should not have come up in the first place or because, as in the example of the judgment for the defendant, an appeal by the plaintiff, it is desirable that part of it be dealt with by the original court.

These examples are all cases where ex hypothesi the original court has jurisdiction and the return of the matter to that court for one reason or another is simply party of the appellate or prerogative writ process. There is no analogy between that sort of situation and the remitter for the first time to another court. If one reads the passage in full at page 420, the last page of Felton v Mulligan, his Honour says this:

However, this Court is not, in my opinion, bound to determine a cause removed under s. 40 but may in its discretion remit it to the Court in which it originated.

Which ex hypothesi has jurisdiction and it is part of the process.

The view seems to have been taken that the power of this Court to remit a cause removed under s. 40 is not limited to that conferred by s. 42 of the Judiciary Act . . . and I find it impossible to regard s. 42 as defining exclusively the circumstances in which a cause so removed may be remitted.

We say what his Honour means is “so remitted”, in other words, remitted to the court from which it came. It is a procedendo type of remittal.

HAYNE J: You speak of procedendo as though it is a remitter. If you go to the rule, procedendo was available if, and only if, it was after the issue of a writ of prohibition and if, further, after the writ had issued it was made to appear to the court or justice that relief ought to be given against the judgment or order by which the writ of prohibition was awarded. That was limited to any ground on which relief might be given against a judgment in an action. So you are concerned to set aside, in effect, the judgment pursuant to which the writ of prohibition had issued. If that occurred, then, there having been a writ issued to one effect, it was necessary to issue a fresh writ to the opposite effect and that was the writ of procedendo. It was not a remitter. It was in effect set aside judgment, set aside the effect of the writ of prohibition, new writ issues commanding.

MR BENNETT: Precisely, your Honour. I, with respect, totally adopt that. It is an example, I suppose, of the sort of situation where the Court needs to make orders even where not expressly authorised to do so in order to effectuate the decision to which it comes.

HAYNE J: No, it needs to issue a writ, to get over the effect of a writ. The last time this Court in fact issued a writ of prohibition I think is back whence the memory of man runneth not to the contrary. Orders are made that a writ issue. The writ seldom does issue. Procedendo was concerned with what happened when the writ had issued and you needed the fresh writ, in effect, to bring to an end the effect of the command that had gone forth.

MR BENNETT: Yes.

GUMMOW J: I was in a Federal Court case once where the Customs authorities were rather obstinate in paying heed to an order in the nature of mandamus and it was getting to the stage where a writ would have to be issued.

HAYNE J: The sheriff would come to call.

GUMMOW J: One of your predecessors told them at that stage they had really better get on with it, but the writ did not have to issue.

MR BENNETT: Another example of that sort of implication might be the situation where there is a verdict for the plaintiff, an appeal and no stay, the defendant pays in full and then the appeal is allowed. A court will have no difficulty in saying it has power to order the plaintiff to repay the verdict as part of its order allowing the appeal. One does not need to find an express power to make such an order and, indeed, there usually is not an express power to do it, but it has always been assumed. It is the same sort of category, one finds oneself in a situation where a writ has issued, it should not have issued and one needs to make the appropriate orders and issue the appropriate writ to achieve the result. But it is not analogous to the sort of remitter which is being discussed in this case.

Your Honour Justice Gummow yesterday asked a question about possible invalidity of a repeal. There are only exceptional circumstances in which a repeal can be invalid. There is the sort of circumstance one has in Roach where it is inseverable from a piece of new legislation, a piece of invalid legislation which replaces a piece of valid legislation but, in general, where one has a repeal, the rule is that laid down by this Court in Kartinyeri, which is that what Parliament can enact Parliament can repeal and that principle cuts in what one gives one can take away.

One never has under the Constitution an obligation to pass particular legislation in circumstances where there is enforceable obligation by the legislature to do something and, similarly, it is hard to imagine a situation where a repeal - - -

GUMMOW J: A repeal of the High Court Act would be a good example, would it not?

MR BENNETT: That might involve other questions. There are specific functions which the legislature has in relation to the High Court and one of them, as your Honour said earlier, is money and there are other things which the legislature and the Executive need to do to enable this Court to operate. One of the angels on - - -

GUMMOW J: There is a theory that section 71 imposes some obligation because it seems to create this body.

MR BENNETT: Yes. There are some “angels on pins” arguments which sometimes one hears discussed about whether there is a High Court, whether or not Parliament creates it.

GUMMOW J: But in any event, if the High Court Act were repealed, that would be absolutely drastic.

MR BENNETT: There would be a question as to what the effect of section 71 was there. The same problem would arise if no Justices were appointed and after a process of natural attrition there were simply no Justices of the High Court.

KIRBY J: It would seem a fairly safe bet that if it were repealed the Court would continue to function under the Constitution.

MR BENNETT: That is the issue.

GUMMOW J: With no money.

MR BENNETT: As to what things could be done in that situation under some sort of implied power there would be difficult questions arising.

GUMMOW J: Yes. This question of implied power and inherent jurisdiction and so on we considered in a case called DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 240 and following and I think what Ms Mortimer would be fixing upon would be what is said there at paragraph 27, the reference to Justice Starke about this Court. She would say there was a necessary implication as to this power or jurisdiction, I think, beyond what is referred to there, punishment for contempt and the Tait situation Justice Kirby referred to, the preservation of subject matter. That seems to be the area in which we are operating.

MR BENNETT: Yes. But what the Court could not do, however much it thought it necessary, is usurp the parliamentary power to make an appropriation, to impose a tax on people, to raise money for the purpose of running the Court and so on. However necessary that was, the Court could not do it.

GUMMOW J: We are in a stage of revolution, I think, when we have reached that stage.

MR BENNETT: We are not going to, your Honour.

GUMMOW J: No, quite.

MR BENNETT: These are the sort of fanciful examples that are sometimes raised in - - -

GUMMOW J: They do happen in Commonwealth countries. There is various examples of this, not that far away from us.

MR BENNETT: No. There are a lot of very difficult principles which have to be applied in cases where there are coups or courts are interfered with in an improper way by governments and so on. This case does not bear any resemblance to anything in those categories. This case is nothing more than a power clearly given by section 77 being exercised, being exercised in part by the removal of a power granted by the Parliament, a very small and partial removal of that power, and to talk about these examples in that sort of context, we would submit, is not of assistance in solving the problem.

Whatever the Court can do in the situations where it needs to protect its integrity, and I have given some examples of things which can be done, those things do not include usurping the powers of other branches of a government, particularly the legislature. The power here is very specifically conferred on the legislature.

Now, to imply in a court a general power of remitter to any other court regardless of whether that court has the jurisdiction or not is something which, in my respectful submission, flies in the face of not only section 77 but the basic structure of State and Commonwealth Government. The Court simply does not have power outside the express statutory power of remitter to confer jurisdiction.

May I say a little about Johnstone’s Case [1979] HCA 13; (1978-79) 143 CLR 398 while I am on that point. What we submit the case establishes is that where a remitter takes place under section 44, the jurisdiction is conferred by the federal legislature pursuant to section 77 by virtue of section 44. The jurisdiction is conferred conditionally on this Court making an order for remitter and the order for remitter enlivens that jurisdiction which is thereby created. That is quite different to saying that in the absence of legislative approval, an implied remitter itself can confer jurisdiction and no one says that. If one starts with Justice Aickin at page 408, his Honour puts what I just said very, very clearly. He says at point 7 on page 408:

These considerations appear to me to support the view that the effect of s. 44 is to confer federal jurisdiction on State courts in cases where this Court remits a case to them, and that federal jurisdiction is in those same matters in which this Court has federal jurisdiction by virtue of s. 75 of the Constitution. That jurisdiction is coextensive with the jurisdiction of this Court, subject only to the Supreme Court having jurisdiction over the same kind of party and the same kind of subject matter as that over which the High Court has jurisdiction, without investigation of the question whether the Supreme Court would have had jurisdiction –

So he is not saying you do not need to have a court with jurisdiction. What he is saying is that section 44 itself is a section which has the effect of conferring jurisdiction.

HAYNE J: That is clearest at 409 in the first five or six lines.

MR BENNETT: Yes, “is conferred on the State courts by the Parliament, not by this Court”. There is as passage I will take your Honours to in a moment from your Honour Justice Gummow’s judgment in Re Jarman; Ex parte Cook which interprets this is in the same way that I am. I will come to that in a moment. Justice Gibbs, as his Honour then was, puts the question at the bottom of page 401 not quite as clearly but, we would submit, to the same effect. At about eight lines from the bottom of page 401:

There being no doubt that this Court has jurisdiction in an action brought against the Commonwealth in tort, no immunity of the Commonwealth will be impaired if this Court, by a remitter order, can confer on another court jurisdiction to exercise (subject to any directions this Court may give) part of the existing jurisdiction of this Court. The question therefore is simply one of construction: does s. 44 enable this Court, by a remitter order, to invest the court to which a matter is remitted with a jurisdiction which it did not previously possess –

It is slightly loose language with respect to his Honour but we would submit his Honour is not saying anything different to Justice Aickin. That is clear from the alternative he puts at the top of page 402. The alternative to what he is saying is “or can a remitter be made only to a court which is already invested with jurisdiction?” He is talking about the construction of section 44 and then says, “There is no reason to give s. 44 a narrow, restrictive construction” and says the section is “intended to be large and general” and “The section does not compel a remitter to be made – it confers a discretion”, et cetera.

CRENNAN J: We are still getting back to the same subject matter and the same types of parties because obviously you can have a submitting appearance.

MR BENNETT: Yes. What he then proceeds to point out is that where there is a claim against the Commonwealth in tort the State Supreme Courts are always going to have both types of jurisdiction, so you can always remit to them. That is because that is the effect of the construction he gives to section 44. Justice Murphy, who was the third member of the majority, said very much the same sort of thing at page 407. In the long paragraph at the end of his judgment he discusses the construction of section 44 and gives it the broad construction and then his conclusion is:

In my opinion, s. 44 empowers this Court to remit the matter to any Supreme Court of a State or Territory whether or not that Supreme Court has jurisdiction independently –

But that is because section 44 is what confers the jurisdiction, the way it is construed. As I said, your Honour Justice Gummow in Re Jarman; Ex parte Cook 188 CLR 595 at page - - -

GUMMOW J: Page 634, I think.

MR BENNETT: Yes, at the bottom of 634, the last full paragraph:

Further, as Aickin J pointed out in Johnstone v The Commonwealth, under the remitter system jurisdiction is not conferred by the High Court itself upon the courts to which the remitter is made. The jurisdiction of those courts is conferred or invested by the Parliament, the conferral or investment operating in those instances where the High Court is authorised by the Parliament to remit and does in fact so remit.

So these cases are not suggesting for a moment that there is some sort of implied power to remit, whether or not the Court otherwise has jurisdiction, it is rather saying that on the true construction of section 44 it is that section which confers jurisdiction and that is in accordance with section 77 that the Parliament can makes laws defining the jurisdiction of a Federal Court or investing a court of a State with federal jurisdiction and deciding to what extent it is exclusive. I am reminded that in Johnstone’s Case Justice Aickin expressly agreed with the judgment of Justice Gibbs.

So for those reasons, your Honour, it is our submission that the implication sought to be found in this case is not necessary to give effect to the Constitution. If anything, it is an implication contrary to the language of section 77 and the surrounding sections of the Constitution. Certainly it is not demonstrated that it is necessary for the protection of this Court or otherwise that there be absolutely no limitation on a power to remit and the cases do not establish any existence of any implied power beyond the statutory power. It is not necessary for the Court - - -

KIRBY J: Could you help me on this? If one held to a view that the Constitution stands in reserve with an implication to prevent frustration of the performance of the Court’s constitutional functions but that the current circumstance does not enliven that implication in these facts, can that be explained in a principled way conformably with the way this Court has looked at implications in the past or does one draw a distinction between the implication on this instance and the implication on that instance?

MR BENNETT: Your Honour, question 2 having been abandoned, one does not really need to answer it in this case in any event. The Court has said on many occasions it ought not to decide constitutional issues that do not arise; rather, they should be left for the day when they do arise. My learned friend does not say to the Court that the relevant sections are invalid because they curtail or limit directly or as a matter of practical effect the constitutional role of the Court, so that argument is simply not made and does not need to be addressed. What is said is that there is an implied power of remitter and if that is taken away in any category of case or limited in any way, then a general protective principle kicks in by implication and invalidates that action. That, with respect, is an extremely long bow to draw.

There is simply no need for any implication of the type referred to demonstrated on the face of the legislation and certainly not one that would be so broad as to prohibit any form of interference with an ability to remit. For example, suppose it were to be enacted that in a case arising under the Constitution or involving its interpretation the task of determining whether federal legislation was valid could not be remitted, suppose that was said, on my learned friend’s argument that would be invalid, although in one sense it is preserving rather than interfering with this Court’s high constitutional role.

The Constitution does not, when it lists the nine matters and when it refers to appellate jurisdiction and original jurisdiction, place them in any particular order of importance. It does not say this function is a core function; this function is a trivial add on and therefore we cannot allow the trivial add on to interfere with the core function. It is tempting to use language of that sort when one compares a case like the Banking Case with
a case involving an action for debt between residents of two States, but it is not the overall subject matter which defines the importance of it. Sir Owen Dixon’s evidence indicates that very clearly. The cases of the Swan Hill tramp and the post boy are cases involving inter se matters but they are hardly important issues and they would be decided in the space of less than a minute.

So there is not a hierarchy of importance within Chapter III and one cannot therefore say that making some part of the original jurisdiction exclusive is in some way necessarily going to be contrary to the Constitution. Ruhani is perhaps a case which assists a little in that area. Clearly the Court’s powers under the now Nauru appeals legislation are matters which might involve serious difficulties in relation to remitter orders and as to where the remitter orders would go but one cannot imply them. One must find an ability to remit and then deal with it.

So for those reasons it is my submission that the questions in the stated case should be answered as we have submitted. May it please the Court.

GLEESON CJ: Yes, Ms Mortimer.

MS MORTIMER: Your Honours, two matters only. In answer to your Honour Justice Gummow’s question to my learned friend about whether we rely on DJL and that is the way the case is put, your Honour will see that is how we put it at paragraphs 32 to 33 of our written submissions.

Secondly, if I can just deal with the question of Johnstone and what that stands for. If the Court pleases, we agree that the majority in that case took an approach to the construction of section 44 that saw it as a conferral of jurisdiction by the Parliament and therefore not as the conferral of jurisdiction by the Court. If that is right, if the Court pleases, then the same must follow for section 37 and that means that section 37 operates as a conferral of jurisdiction on lower courts through the power of remitter after this Court has exercised its appellate jurisdiction.

If that is right, in our submission, the same result on the Commonwealth’s argument must flow in relation to section 37. There is no implied power to remit. If section 37 is repealed and the Court otherwise has no statutory basis to remit, this Court hears and decides an appeal, let us say a criminal appeal or any appeal involving a trial, decides the point on which special leave was granted, determines there needs to be a new trial, the court below is functus and if there is no statutory conferral of jurisdiction by section 37, then this Court cannot remit.

So the same argument that the Commonwealth seeks to use in relation to the statutory remitter under section 44 must also flow through in the way that the issue ought to be approached on remitter in relation to this Court’s appellate jurisdiction. If the Court pleases.

GLEESON CJ: We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow.

AT 12.23 PM THE MATTER WAS ADJOURNED