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As is well known, the High Court held in Re Wakim; Ex parte McNally[1] that federal courts can only exercise the judicial power of the Commonwealth, and cannot exercise State judicial power. In this article I ask whether the Court would ever take a similar approach to Chapter II of the Constitution, and hold that the Commonwealth executive can only exercise the executive power of the Commonwealth, and not State executive power. If it did, it would probably follow that the executive power of the Commonwealth could only be exercised by the Commonwealth executive, and not by a State executive.[2] Obviously, these twin conclusions would have major implications for existing Commonwealth–State cooperative legislative schemes.[3]
I should stress immediately that I do not think that this is the preferable view. However, for reasons that I explain in Part 2 below, there is an undercurrent in recent decisions that could be taken to suggest that the Commonwealth executive government is limited to performing functions within the scope of Commonwealth legislative power, and cannot be given additional functions.[4] The question posed in this article, therefore, is not fanciful or hypothetical. The courts may be particularly concerned to confine the performance of State functions by the Commonwealth executive when the function is being performed by a Commonwealth Minister or other senior official,[5] or when the function is coercive in nature.[6]
Part 3 below then canvasses the arguments that might be made against permitting the States to confer functions on the Commonwealth executive that the Commonwealth could not confer itself. The major arguments would seem to be that the conferral of these State functions would be contrary to Commonwealth immunities from State law,[7] or would undermine the federal division of executive power.[8] I endeavour to show that these arguments need not be accepted. If the High Court did accept those arguments, however, that would raise further issues, such as whether Commonwealth officers can perform State functions in a personal capacity.[9]
Having so far discussed the conferral of State functions on the Commonwealth, Part 4 below considers the converse situation: the conferral of Commonwealth functions on a State executive. The major arguments against permitting the conferral of Commonwealth executive power on State officers seem to be that it would be contrary to the constitutionally mandated system of responsible government,[10] or contrary to the system of judicial review guaranteed by s 75(v) of the Constitution.[11] Again, I attempt to refute those arguments. If those arguments were accepted, however, it would be necessary to determine when the Commonwealth had purported to confer Commonwealth executive power. I suggest that cases on whether a decision by a State officer or private body is made 'under an enactment' for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act') would provide a useful analogy for these purposes.[12]
Underlying these specific arguments is a continuing debate about the nature of Australian federation. In my view, Wakim depends on a contested and contestable view of Australian federation (so-called 'co-ordinate' federalism) which emphasises the separation between the different levels of government in a federation.[13] Obviously, adopting a co-ordinate view of federation would support the conclusion that the Commonwealth executive can only perform functions within Commonwealth legislative power, whereas another conception of federation (which might be called 'cooperative' or 'concurrent' federalism) would be more sympathetic to the argument that the Commonwealth executive may perform State functions that go beyond the scope of Commonwealth power. I have argued elsewhere that there is no reason to prefer co-ordinate over cooperative (or concurrent) federalism.[14]
Unfortunately, as Selway J observes, assumptions about the nature of Australian federation are rarely articulated in either court submissions or in judgments.[15] Far from rendering this article pointless, that observation if anything increases the importance of dissecting the various specific arguments that might be deployed in favour of applying Wakim-style reasoning to Commonwealth executive power. This article attempts to establish that, while it is possible that the High Court may 'Wakim' Chapter II of the Constitution, that step is not required by text or precedent, the constitutional tools deployed in Wakim itself. In doing so, I would hope to encourage the High Court explicitly to address the different conceptions of federation if the issue were to arise for decision.[16]
The hypothesis that the High Court may 'Wakim' Chapter II of the Constitution might seem at first to be contrary to the result in R v Hughes.[17] The Court held there that the Commonwealth Director of Public Prosecutions ('the Commonwealth DPP') could indeed prosecute Mr Hughes for breaches of the Corporations Law of Western Australia. However, this result is entirely consistent with my hypothesis, particularly in the light of the reasons the Court gave for that conclusion.
The DPP had argued that its power to prosecute State offences derived from the Corporations Law of the relevant State,[18] and that the Commonwealth provisions[19] were merely facultative. Six members of the Court, however, held that the Commonwealth provisions had a substantive operation in that case, because they imposed a duty on the Commonwealth DPP. In their view, this substantive operation required that there be a connection between the State function that was the subject of the duty and a head of Commonwealth legislative power.[20] Kirby J's separate judgment also concluded that the Commonwealth DPP could not prosecute State offences unless the offences were connected with Commonwealth legislative power.[21] A connection existed in this case, but the Court gave no guarantee that it would exist in all cases.[22]
The effect of Hughes, therefore, was to confine the functions of the Commonwealth DPP to functions within Commonwealth power. In assessing whether there was a sufficient connection between the DPP's State functions and Commonwealth power, the Court appeared to approach the task as if the Commonwealth itself had conferred the prosecuting function on the DPP. In other words, the complicated interlocking Commonwealth, State and Territory legislation apparently did not give the Commonwealth DPP any greater powers than could have been conferred by Commonwealth legislation alone. In this sense, Hughes confined the functions of the Commonwealth DPP to functions within the terms of s 61 of the Constitution, which refers to executing and maintaining the Constitution and the laws of the Commonwealth.
Of course, there is a difference between this result and the result in Wakim. Even if the Commonwealth DPP was confined to prosecuting offences that could have been enacted by the Commonwealth, he or she was nevertheless prosecuting offences that in fact were contained in State law (at least on one view).[23] This is at least some advance on Wakim which, if applied rigidly to Commonwealth executive power, would limit the Commonwealth executive to performing functions that were actually contained in Commonwealth law.[24] However, the practical effect of Wakim and Hughes was the same, because the Commonwealth bodies concerned could not perform functions outside the scope of Commonwealth legislative power.
Even if the result in Hughes seems to limit the Commonwealth executive to Commonwealth functions, it might be thought that some remarks in the joint judgment indicate that the Commonwealth executive can perform State functions falling outside the scope of Commonwealth power. In particular, the joint judgment states at one point:[25]
subject to what may be the operation of negative implications arising from the Constitution ... the [Commonwealth] Parliament may permit officers of the Commonwealth ... to perform functions and accept appointments in addition to their Commonwealth appointments.
However, not only is that statement expressly qualified, it needs to be read against two other statements in the joint judgment. The first is:[26]
The Executive Government of the Commonwealth ... involves the execution and maintenance of laws of the Commonwealth, not those of the States.
This statement could be taken to mean that there is a negative implication preventing the Commonwealth executive from performing functions under State laws. In addition, the joint judgment stated by way of conclusion:[27]
The present case emphasises that for the Commonwealth to impose on an officer or instrumentality of the Commonwealth powers coupled with duties adversely to affect the rights of individuals ... requires a law of the Commonwealth supported by an appropriate head of power.
Most commentary on this passage (including mine[28]) has focused on the reference to what might be called 'coercive' powers, that is, powers that adversely affect the rights of individuals. However, on examination, the italicised words also reveal an assumption that it is the Commonwealth provision that confers the powers, not the State provision.[29] Accordingly, Hughes at least sends mixed messages on whether the Commonwealth executive can perform functions that could not be conferred by Commonwealth legislation.[30] In fact, the third passage just quoted could be taken to suggest that the Commonwealth executive can only perform functions that are actually (not just potentially) conferred by Commonwealth legislation, or by the Constitution itself.
It could be argued that Hughes was a special case, because the function of prosecuting State Corporations Law offences was conferred on the Commonwealth DPP exclusively.[31] The question then is whether the Hughes approach (which requires a connection between the State function and Commonwealth legislative power) is confined to exclusive State functions.
That proposition is consistent with the Hughes joint judgment. The fact that the Commonwealth DPP was the only body with power to prosecute State Corporations Law offences was an important factor in their Honours' conclusion that the DPP was subject to a duty to prosecute those offences.[32] Consequently, one reading of Hughes is that it is only necessary to demonstrate a connection between the State function and a Commonwealth head of power if the function is conferred exclusively on a Commonwealth body. If that were true, then it would not be necessary to establish a connection with Commonwealth power when a State function is conferred concurrently on both State and Commonwealth bodies. Rather, it would only be necessary to ensure that, as a matter of statutory construction, State law conferred a State function on a Commonwealth body, and that Commonwealth law permitted the Commonwealth body to perform that function. To me, that is the better reading of Hughes.[33] Lower courts, however, have required some connection with a head of Commonwealth legislative power.
The most extended discussion of the issue is contained in R v Fukusato,[34] a decision of the Queensland Court of Appeal. The accused in that case was charged with falsely signing documents as an officer of a corporation, which gave rise to offences under s 232 of the Corporations Law of Queensland and ss 488 and 489 the Queensland Criminal Code. Unlike Hughes, it was clear that the Commonwealth DPP had power to prosecute the corporations offences here, due to the referral of powers from the States[35] and the Commonwealth and State transitional provisions associated with the Corporations Act 2001 (Cth).[36] Instead, the dispute was over the Commonwealth DPP's power to prosecute offences against the Queensland Criminal Code.
Section 6(1)(m) of the Director of Public Prosecutions Act 1983 (Cth) ('the DPP Act') provides that the Director's functions include prosecuting offences against State law if he or she 'is authorised by or under a law of a State', and the Commonwealth Attorney-General consents.[37] Section 17 makes similar provision for the Director's staff. Unlike the function considered in Hughes, the State function here is not conferred exclusively on the Commonwealth DPP, but may be performed concurrently with the State DPP's function of prosecuting State offences.[38]
The Commonwealth DPP argued in Fukusato that s 17 of the DPP Act was wholly supported by the executive power and s 51(xxxix) of the Constitution, and that it was not necessary to determine on a case-by-case basis whether there was a connection between the State offence being prosecuted and a head of Commonwealth legislative power.[39] The Queensland Court of Appeal all accepted that the Commonwealth DPP could validly prosecute the State offences in this case, and went some way to accepting the DPP's broad argument. However, the Court also indicated that there would be some situations in which the Commonwealth could not validly authorise the Commonwealth DPP to prosecute State offences, even on a concurrent basis.
Davies and Thomas JJA, in separate judgments, accepted that the executive power and the express incidental power were sufficient to support s 17 of the DPP Act in its application to this case.[40] Davies JA specifically distinguished Hughes (in my view correctly) on the grounds that the State function here was conferred on the Commonwealth DPP concurrently, rather than exclusively, and also because s 17 of the DPP Act did not impose a duty to perform the State function.[41]
Even so, both judges emphasised that the prosecution of State offences here facilitated the prosecution of federal offences. Davies JA asked whether prosecuting the State offences was 'conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers ... is intended to achieve',[42] while Thomas JA asked whether prosecuting the State offences was 'incidental' to prosecuting the Commonwealth offences.[43] It was relatively clear that, in this case, the State function was conducive or incidental to a Commonwealth function. The Commonwealth and State offences in question were sufficiently similar that, constitutional considerations apart, they could be joined in a single indictment. Moreover, the Commonwealth DPP intended to rely on the same conduct to prove both the Commonwealth offence and some of the State offences.[44] Accordingly, the prosecution of these State offences by the Commonwealth DPP avoided duplication between Commonwealth and State bodies, and also avoided the possibility of inconsistent verdicts.[45]
Thomas JA did not consider what the position would be if the Commonwealth attempted to authorise its officers to perform State functions that were not incidental or conducive to the performance of the officer's Commonwealth functions. Davies JA, however, stated that it was 'difficult to see' how the Commonwealth could validly permit the Commonwealth DPP to prosecute State offences that were entirely unconnected with Commonwealth offences.[46] Although s 17 of the DPP Act did not expressly limit its application to situations where there was some connection between the State offences and Commonwealth offences, Davies JA held that it was possible to read down s 17 to apply only to those situations.[47] His Honour noted further that, as a practical matter, the scope of s 17 was limited both by the terms of the authority conferred by the State, and also by the need to obtain the consent of the Commonwealth Attorney-General. In his Honour's view, it was 'almost inconceivable' either that a State would grant the Commonwealth DPP general power to prosecute State offences, unconnected with the prosecution of Commonwealth offences, or that the Commonwealth Attorney-General would agree to this course.[48]
McMurdo P took a slightly different approach. Her Honour was troubled by the generality of ss 6(1)(m) and 17 of the DPP Act, and noted that these provisions, in their terms, would permit the Commonwealth DPP to prosecute State offences generally. In her Honour's view, however, a general power to prosecute State offences would substantially supplement Commonwealth power and would 'circumvent the limitations of federal power imposed by the Constitution.'[49] Nonetheless, McMurdo P held that s 17 of the DPP Act could validly authorise the Commonwealth DPP to prosecute State offences, if two requirements were met.
First, the Commonwealth could only authorise the Commonwealth DPP to prosecute State offences if there were some connection between the State offences and Commonwealth activities. Her Honour held that it was sufficient in this case that the Commonwealth and State offences were 'reasonably closely connected', and the State offences arose out of an investigation by a federal body, the Australian Securities and Investments Commission ('ASIC').[50] So far, McMurdo P's judgment was substantially similar to the other members of the Court.
However, McMurdo P also held that the Commonwealth could only authorise the Commonwealth DPP to prosecute State offences in the name of the State Crown, rather than the Commonwealth Crown.[51] There are several possible explanations of this second requirement. The simplest is a matter of statutory construction. Section 17 of the DPP Act requires the DPP to prosecute State offences 'in accordance with the terms of the appointment' by or under State law, and McMurdo P may have considered that the State appointment, read with s 17, required prosecutions to be brought on behalf of the State.[52] However, her Honour seemed to have a constitutional point in mind. Apparently, in her Honour's view, it would impermissibly supplement Commonwealth power for the Commonwealth DPP to bring a prosecution for a State offence on behalf of the Commonwealth, but it would permissibly complement Commonwealth power to bring the same prosecution on behalf of Queensland. However, the question of whether the federal nature of the Constitution limits the subject-matter of the functions performed by the Commonwealth executive does not seem to be affected by whether the Commonwealth DPP is prosecuting on behalf of the Commonwealth or a State.[53]
The accused sought special leave to appeal to the High Court, which was refused.[54] However, the High Court's refusal of leave did not amount to a clear endorsement of the judgment below. Many of the Court's questions during the special leave application were designed to demonstrate that the Commonwealth could have enacted the State offences in question in Fukusato itself under the corporations power. (As already noted,[55] the Commonwealth DPP's primary argument before the Court of Appeal had expressly eschewed reliance on s 51 head of powers.) Then, in refusing special leave, Gleeson CJ stated:
... the actual decision of the Court of Appeal in this case is not attended by sufficient doubt to warrant a grant of special leave to appeal. It is not necessary to consider whether all of the reasoning of the Court of Appeal is endorsed in the light of this Court's decision in [Hughes].
Of course, it is dangerous to read too much into the transcript of a special leave application. Even so, it appears that at least two members of the High Court did not find the Queensland Court of Appeal's reasoning in Fukusato immediately persuasive. Accordingly, it may be necessary to treat with some caution the suggestions in Fukusato that the Commonwealth may authorise the executive to perform a concurrent State function whenever the function is conducive or incidental to the exercise of a Commonwealth function.
The previous discussion focused on whether a State function was conferred exclusively on a Commonwealth officer. Two other factors may, however, affect whether the Commonwealth executive can validly perform a State function: (1) whether the function is conferred on a Commonwealth Minister or other official at the higher levels of government, and (2) whether the function is coercive in nature.
I have been assuming until now that, whatever the rule about the Commonwealth executive performing State functions, that rule would apply equally to Commonwealth officers, Commonwealth statutory authorities, and Commonwealth Ministers. There are, however, two stray remarks from the High Court that could be taken to suggest the contrary.
The first of those remarks appears in Hughes, where a passage in the joint judgment seems to draw a distinction between the position of Ministers and Commonwealth officers. After stating that it was necessary to establish a link between the Commonwealth DPP's State functions and Commonwealth power in that case, the joint judgment stated:[56]
These points may be emphasised by reference to s 46 of the Corporations Act [1989 (Cth)]. This operates in the present case to direct the Attorney-General with respect to the exercise of the powers in relation to the DPP conferred on the Attorney-General by ss 7 and 8 of the DPP Act [as translated into State law]. The Executive Government of the Commonwealth, which is provided for in Ch II of the Constitution (ss 61–70) and of which the Attorney-General is part, involves the execution and maintenance of laws of the Commonwealth, not those of the States.
The use of 'emphasised' might suggest that the position of the Attorney-General is somehow different from the Commonwealth DPP.[57] One possible interpretation of the passage is that only Ministers of State (together with the Governor-General) form 'the Executive Government of the Commonwealth', the functions of which are limited by s 61 of the Constitution to the execution and maintenance of the laws of the Commonwealth and the Constitution. Commonwealth officers, on the other hand, may perform functions and accept appointments in addition to their Commonwealth functions. That interpretation may reconcile two apparently contradictory statements that I drew attention to earlier,[58] but it would be a slightly curious position. Ordinarily, public servants and statutory authorities are regarded as just as much part of the executive government of the Commonwealth as Ministers are.[59] Indeed, s 67 of the Constitution contemplates expressly[60] (and s 64 implicitly[61]) that there will be 'officers of the Commonwealth' who are not also Ministers of State.
The second remark appears in Macleod v Australian Securities and Investments Commission,[62] which held that ASIC did not have statutory authority to bring an appeal to the Full Court of the Supreme Court of Western Australia from a decision of a single judge that overturned a conviction for offences against the Corporations Law of Western Australia. After comparing the effect on federal jurisdiction of a prosecution for offences against State law being brought by ASIC or by the Commonwealth DPP,[63] six members of the Court stated:[64]
However, the AS[I]C is not in the same position as the executive branch of the government, charged by the broad terms of s 61 of the Constitution with the execution and maintenance of the Constitution itself and of the laws of the Commonwealth. The AS[I]C is a creature brought into existence by one of those laws and endowed by it with particular functions and powers.
The Court does not explain how the position of ASIC is relevantly different from the position of the executive branch, or who that executive branch is. Certainly it is true that Commonwealth legislation establishing a statutory authority would normally be construed as setting out exhaustively the authority's functions and powers. One of the roles, therefore, of the Commonwealth provision in a cooperative legislative scheme is to remove any s 109 inconsistency between a State law conferring the function and the Commonwealth law establishing the authority.[65] For this reason, it is not immediately apparent why there would be less scope for a statutory authority (such as ASIC) to perform State functions than for a Commonwealth officer.[66]
If the High Court were intending to distinguish between different parts of the Commonwealth executive, a more plausible argument might derive from the notions of 'integrity and autonomy' referred to in Re Australian Education Union; Ex parte Victoria.[67] The Court held in that case that the integrity and autonomy of the State protected by the Melbourne Corporation doctrine[68] required that the States be absolutely free to determine the terms and conditions of those engaged at the higher levels of government. It could be argued, by analogy, that the integrity and autonomy of the Commonwealth requires that persons engaged at the higher levels of government perform only Commonwealth functions. (The argument in response is that the Commonwealth's integrity and autonomy only require that it be able to control whether or not the members of its executive government perform State functions, including those engaged at the higher levels of government.[69]) On that analogy, the higher levels of government would extend beyond Ministers, and would include high-level statutory office holders. Applying that reasoning to the Commonwealth DPP, for example, might mean that the Director himself or herself could not be given authority to prosecute State offences, but that staff in the Director's Office could.[70]
It is not clear how much can be read into these isolated remarks in Hughes and Macleod. There is at least a possibility, however, that the High Court would be less inclined to permit a Commonwealth Minister to perform a State function than a lower-level Commonwealth officer.
A second factor that may affect whether the Commonwealth executive can validly perform a State function is whether the function is coercive in nature. The previous discussion of Hughes concentrated on the fact that the State function there was conferred on the Commonwealth DPP exclusively. However, the joint judgment also noted that the function could adversely affect the rights of individuals.[71] That aspect was also extremely important to Kirby J, who stated (I believe correctly) that, the more drastic the consequences for individual liberty, the more vigilant the courts will be in scrutinising whether the law is within power.[72]
It is necessary to explain how the coercive nature of a State function ties in with the question posed in this article. I am asking whether the High Court would confine the subject-matter of functions performed by the Commonwealth executive to subjects within Commonwealth legislative power. The coercive nature of the function only becomes relevant once it has been established that it is necessary to establish a link between the State function and Commonwealth power. However, if a State function is coercive, that may affect whether the necessary Commonwealth power exists. Specifically, there are indications in Hughes that, while the executive power (together with the express incidental power) may support laws authorising the performance of non-coercive State functions, the executive power is not sufficient to support laws authorising Commonwealth officers to perform coercive State functions.[73]
This proposition — the executive power supports Commonwealth laws authorising the performance of non-coercive State functions — finds general support from R v Ellis.[74] In that case, a person charged with drug offences against Queensland law challenged the reception of evidence obtained by the former National Crime Authority ('the NCA'),[75] arguing that the NCA had no power to investigate purely State offences. The NCA's investigative powers derived from s 14 of the then National Crime Authority Act 1984 (Cth) ('the NCA Act') which, broadly, permitted the NCA to investigate possible offences against State law on the request of a State Minister.[76] Unlike the cooperative scheme considered in Hughes, there was no State law conferring functions with Commonwealth approval here; rather, the NCA's statutory authority derived from the Commonwealth Act alone (albeit that this authority was conditional on a request from a State Minister).[77]
Chesterman J held that s 14 of the NCA Act validly authorised the NCA to investigate State offences in that case. His Honour held that there was a sufficient factual basis for the Australian Federal Police to investigate whether the accused had committed federal drug offences, noting that the accused had initially been charged under federal as well as State law.[78] However, while these facts help to explain why the NCA was involved, Chesterman J did not rely on any connection with possible Commonwealth offences to justify the NCA's actions. Rather, he held that 'the Commonwealth can authorise a [C]ommonwealth body to investigate, on a non-coercive basis, whether criminal offences against the laws of a [S]tate have been committed', and also that 'joint Commonwealth-State investigations, not involving the imposition of duties upon Commonwealth officers, are within constitutional power'.[79] As the NCA's activities in this case did not go beyond non-coercive investigation, it followed that any evidence gathered by the NCA was lawfully obtained.[80]
Of course, Ellis concerned the scope of Commonwealth power directly (because the NCA's powers derived entirely from s 14 of the NCA Act), and Chesterman J did not need to address the situation where the Commonwealth seeks to authorise its officers to perform coercive functions conferred by State laws. Although a full discussion is beyond the scope of this article, two general comments can be made about whether the Commonwealth executive power[81] would support a law that authorised the Commonwealth executive to perform coercive State functions.
First, the executive power is multi-faceted, and it clearly supports coercive laws in some of its manifestations. So, for example, the 'other power' considered in the Communist Party Case[82] (which enables the Commonwealth government to protect itself from subversion) is inherently coercive in nature, albeit that it did not support the laws considered in that case. Similarly, the executive power to deny non-citizens entry considered in the litigation concerning the MV Tampa[83] is also by its nature a coercive power, and includes power to detain as an incident of refusing entry. Davis v Commonwealth[84] demonstrates that even a kinder, gentler aspect of the executive power (the power to celebrate national anniversaries) supports some coercive laws, although once again not the particular laws considered there.
One reason for the general judicial reluctance to allow the executive power to ground coercive laws may be a rule-of-law concern that it is not easy to define the content of powers derived from the general words of s 61 of the Constitution.[85] That concern has much less force, however, in the context of Commonwealth-State cooperative legislative schemes. The content of the coercive function would be found in the State provisions of the cooperative scheme, which would enable a court to determine whether the Commonwealth executive had exceeded the limits of its power.[86] On my analysis of cooperative legislative schemes,[87] the Commonwealth executive power would merely authorise the Commonwealth to perform that State function.
That leads to my second comment. There seems to be a discrepancy between what the High Court has said the Commonwealth provision in a cooperative legislative scheme does, and the Court's reason for doubting the sufficiency of the executive power. The joint judgment in Hughes acknowledged that the Commonwealth was not itself enacting new offences.[88] Rather, in their view, the Commonwealth law relevantly imposed a duty on the Commonwealth DPP to perform a State function. Even on that analysis (which I disagree with[89]), it is not immediately apparent why the Commonwealth would need more power to impose a duty on its officers to perform coercive functions conferred by State laws than it would to impose a duty to perform non-coercive State functions. It seems unlikely that the content of the duty would vary as between coercive and non-coercive functions.
Instead, the Court's hesitation about relying on the executive power may be caused by an unstated discomfort with the notion that the substantive power for a Commonwealth body to act coercively could ever derive from State, rather than Commonwealth, law. That discomfort may be the source of the hints that the Court wants to 'Wakim' Commonwealth executive power, and that discomfort would need to be addressed before a court would accept that it is permissible for the Commonwealth executive to perform State functions that fall outside Commonwealth power.
I have attempted to show in this part of the article that there is a real possibility that the High Court might confine the functions of the Commonwealth executive to functions within Commonwealth legislative power, and would not permit those functions to be supplemented by State law. Although the reasoning in Hughes is ambiguous on this point, the result in that case clearly confined the functions of the Commonwealth DPP under the former national corporations scheme to functions that could have been conferred directly by the Commonwealth. If applied generally, that approach (which requires a connection between a State function and Commonwealth legislative power) would 'Wakim' Chapter II of the Constitution.
I therefore considered whether the Hughes approach could be confined to State functions that are conferred exclusively on Commonwealth bodies. This point has not yet been determined by the High Court, but Fukusato suggests that there is some limit on the Commonwealth's ability to authorise a Commonwealth body to perform even concurrent State functions; namely, that the State function must be incidental or conducive to the performance of the body's Commonwealth functions. Although Fukusato places some constraint on the ability of the Commonwealth executive to perform State functions, it is probably a less demanding test of connection than the connection required by Hughes, which seemed to ask whether the Commonwealth itself could have enacted the State function. However, it is unclear whether the Court of Appeal's reasoning would find favour in the High Court.
Apart from whether a State function is conferred exclusively, it may also be relevant whether the State function is conferred on a Commonwealth Minister (or other high level official), and whether the State function has the capacity adversely to affect the rights of individuals. The notions of 'integrity and autonomy' referred to in Re Australian Education Union might conceivably mean that there is less scope for a Commonwealth Minister or someone engaged at the higher levels of government to perform State functions. Moreover, Hughes casts doubt on whether the executive power would support a Commonwealth law that authorised the performance of a State function that is coercive in nature.
That leads me to consider possible arguments that might be put to support the application of Wakim-style reasoning to Chapter II of the Constitution. This question can be broken down into two sub-questions:
(1) Can State legislation supplement the executive capacities of the Commonwealth?
(2) Can Commonwealth legislation confer the executive power of the Commonwealth on a member of a State executive?
The following two parts of the article outline the arguments that might support applying Wakim-style reasoning in answering each of those sub-questions, together with the counter-arguments. Each part also sketches the apparent consequences of applying Wakim to Commonwealth executive power.
The first sub-question (whether State legislation can supplement the executive capacities of the Commonwealth) presupposes that the substantive power of Commonwealth bodies to perform State functions in cooperative legislative schemes derives from the State provision.[90] If, however, only the Commonwealth can confer functions on the Commonwealth executive, it follows that s 61 of the Constitution sets the outer boundaries of the Commonwealth executive's functions.
Wakim apart, most judicial discussion of Commonwealth-State cooperative legislative schemes has concentrated on the validity of the Commonwealth law purporting to authorise the performance of State functions. The following discussion, however, also examines the prior question whether there is any constitutional implication that would prevent the States from conferring functions on the Commonwealth executive that go beyond the limits of Commonwealth legislative power.
Given that Wakim did not make any explicit appeal to policy considerations,[91] it is appropriate to begin with the text of the Constitution and precedent.
There is a slight textual argument that could be made in favour of applying Wakim to Commonwealth executive power. Section 61 relevantly provides:
The executive power of the Commonwealth ... extends to the execution and maintenance of the Constitution, and of the laws of the Commonwealth.
The use of the word 'extends' is not the most promising, if one wants to argue that the Commonwealth executive may perform powers or functions that go beyond s 61.[92] This argument, if accepted, would invalidate a Commonwealth law that purported to authorise a member of the Commonwealth executive to perform a State function beyond the scope of Commonwealth power. However, on decided authority at least, the presence of s 51(xxxvii) and (xxxviii) in the Constitution does not give rise to a negative implication that the States cannot supplement the powers of the Commonwealth government in any other way.[93]
Even if the text does not pose any necessary difficulty, the doctrines of Commonwealth immunity from State law might present an obstacle to the conferral of certain State functions. The joint judgment in Hughes appeared to allude to this issue in stating that it was not necessary to consider whether the duty found to exist in that case was imposed 'as a constitutional imperative'.[94] As I read it, the joint judgment was raising an issue of whether the imposition of a duty by Commonwealth law was constitutionally required.[95]
In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority,[96] four members of the High Court held that the States cannot affect the executive capacities of the Commonwealth. While some people have had difficulty in working out exactly what this means (including the other members of the Court in that case[97]), it might be thought to present some difficulties for the view that the States can confer functions on the Commonwealth executive that the Commonwealth Parliament could not confer itself.[98] Two points, however, should be noted about this decision. First, Re Residential Tenancies Tribunal (NSW) concerned the immunity of the Commonwealth executive from State laws of general application, and therefore did not consider the position of a State law expressed to apply only to the Commonwealth. Moreover, the plurality judges in Re Residential Tenancies Tribunal (NSW) were at pains to emphasise that the Commonwealth's immunities from State laws in this situation were, if anything, greater than the converse immunity of a State executive from Commonwealth laws.[99] Consequently, I would argue, their Honours' test of whether State laws affect the executive capacities of the Commonwealth was neither intended to be the sole test of Commonwealth immunity,[100] nor intended to confer a lesser immunity on the Commonwealth executive than would be enjoyed by a State executive.
For those reasons, it is permissible in this situation to argue by analogy from the immunity of the States from Commonwealth laws (the Melbourne Corporation doctrine), which has specifically considered the validity of Commonwealth laws that single out the States.[101] If a discriminatory law would be valid, had it been enacted by the Commonwealth to apply only to the States, the law should also be valid if enacted by the States to apply only to the Commonwealth. It is true that four members of the Court in Austin v Commonwealth[102] recently doubted whether the Melbourne Corporation doctrine contains a separate prohibition against discriminatory laws. However, these judges may have meant merely to emphasise that the underlying rationale for both aspects of Melbourne Corporation is the same.[103] There are sound prudential reasons for immunity doctrines to be particularly concerned with laws by one government that single out another government for adverse treatment.[104]
With those comments in mind, the validity of State laws that confer functions on the Commonwealth executive can be defended as follows:[105]
(1) The Commonwealth's immunity should be understood as an implied limit on State power, rather than an absence of State power.[106]
(2) The relevant implied limit on State power is a prohibition on imposing special or discriminatory burdens on the Commonwealth executive.[107]
(3) This aspect of Commonwealth immunity does not prevent the States from imposing a special burden or disability on the Commonwealth executive with the Commonwealth's approval.
Step (3) in this analysis may require some further explanation. The purpose of immunity doctrines is to ensure the continued existence of the Commonwealth and the States as separate governments exercising independent functions.[108] A general prohibition against State laws discriminating against the Commonwealth is defensible as a prudential rule that recognises the difficulty for courts of assessing whether, as a matter of fact in a particular case, a State law does or does not prevent the Commonwealth from functioning as a government.[109] By analogy, the invalidity of discriminatory Commonwealth laws does not depend on whether the law in fact has a significant effect on the States' capacity to function as governments.[110] If, however, the Commonwealth indicates that it is willing to accept the special burden (that is, it is willing to perform the State function), then the rationale for the anti-discrimination prohibition disappears.
An alternative analysis of Commonwealth immunity is that the States are prohibited from enacting legislation that has either the purpose or effect of preventing the Commonwealth from functioning as a government, and discriminatory laws will usually have a prohibited purpose.[111] On this alternative analysis, the fact that the Commonwealth authorised its officers to perform State functions as part of a cooperative scheme would demonstrate that the purpose of the State law was not to restrict the Commonwealth in the exercise of its constitutional powers.
For these reasons, Commonwealth immunity should not prevent a State law from conferring a function on the Commonwealth executive (even a function outside the scope of Commonwealth power), provided the Commonwealth Parliament has authorised its executive to perform that State function. Commonwealth immunity should not prevent the Commonwealth from authorising the performance of the State function either.[112] I accept that this is an unconventional, perhaps even a courageous, explanation of Commonwealth immunity. Although it is broadly similar to Kirby J's approach in Re Residential Tenancies Tribunal (NSW),[113] I could not claim that it will be accepted by a majority of the High Court any time soon.
Apart from text and Commonwealth immunities, another factor is whether permitting the Commonwealth executive to perform State functions that go beyond the scope of Commonwealth power would undermine the federal division of executive power. This factor concerned McMurdo P in Fukusato, who stated that the general terms of s 17 of the DPP Act 'involv[e] a potentially substantial transfer of responsibility from the [States] to Commonwealth officers'.[114] I have suggested elsewhere that the High Court was concerned in Hughes to ensure that the Commonwealth executive did not take over the functions of the executive governments of the States, but that this concern only surfaced when State functions were conferred on Commonwealth bodies exclusively.[115] The latter part of that statement may require some qualification.
Although concerns about maintaining the federal division of executive power arise in an acute form when State functions are conferred exclusively on Commonwealth bodies, those concerns might arise even when State functions are conferred on Commonwealth bodies concurrently. This is because, even if a function may legally be performed by either the States or the Commonwealth, there may be practical considerations that mean in practice that the function is mostly performed by the Commonwealth.
By way of analogy, prior to Wakim, matters arising under the former Corporations Law were heard by both federal courts and State courts.[116] The Federal Court heard a substantial number of the Corporations Law matters each year.[117] There are at least two practical considerations that might have influenced the choice of whether to litigate Corporations Law matters in the Federal Court or a State Supreme Court.[118] First, parties might have perceived that the Federal Court was better resourced than State Supreme Courts, and therefore better placed to decide Corporations Law matters expeditiously. Secondly, there might have been perceived advantages in litigating in a court with a national presence, rather than a court that operates only in one State (especially in a small State where there was only a small number of Corporations Law matters each year).
These two considerations would seem to be relevant to any State function. By definition, a Commonwealth body is able to perform functions anywhere in Australia, whereas there is at least a question whether a State body can perform functions that are not connected to its home State.[119] The Commonwealth does not of course control the allocation of money in a State's budget, but it is well-known that the States are dependant to a significant degree on Commonwealth grants for their funding. To this extent, there could always be an issue over whether the Commonwealth has distributed money equitably as between Commonwealth bodies and State bodies performing the same functions.
I should emphasise that I am not arguing here that conferring functions on Commonwealth bodies on a concurrent basis will undermine the federal division of executive power. I am suggesting, however, that a judge who is concerned about maintaining that division might wish to place limits on the ability of the Commonwealth executive to perform State functions, even on a concurrent basis. The primary argument in response is, of course, that political realities provide sufficient constraints on Commonwealth encroachments on State executive power. As Davies JA pointed out in Fukusato, it is almost inconceivable that the States would abdicate a large part of their responsibilities to the Commonwealth.[120]
Of course, that sort of argument was unsuccessful in Wakim. However, the relationship between the judiciary and the parliament is very different from the relationship between the executive and the parliament. In Wakim, the argument that the political process provided sufficient protection against the Commonwealth encroaching on State judicial power, or vice versa, did not perhaps give sufficient weight to the need to preserve the independence of federal courts from the federal government (especially the High Court, which has the constitutional role of mediating disputes between the Commonwealth and the States[121]). By contrast, the parliament and the executive are of course intertwined in a system of responsible government. Consequently, there is a much stronger argument that an executive government (whether the Commonwealth or a State) can rely on its parliament to maintain the federal division of executive power.[122] On this view, the courts should only be concerned to protect the Commonwealth and the State executive governments against unilateral encroachments on power from the other level of government.
The preceding discussion suggests that there is a coherent argument that the States cannot supplement the executive capacities of the Commonwealth, which would mean that the States could not confer functions on the Commonwealth executive that the Commonwealth Parliament could not confer itself. Even if that argument were accepted, however, it would not necessarily follow that the Commonwealth executive could never perform State functions that fell outside the scope of Commonwealth legislative power.
For example, it may be possible to reconcile a Wakim–type approach to Commonwealth executive power with the Queensland Court of Appeal's reasoning in Fukusato. As mentioned previously,[123] the prosecuting of State offences was held to be 'conducive' or 'incidental' to prosecuting Commonwealth offences in Fukusato for two reasons: (1) the Commonwealth and State offences could be joined in a single indictment, and (2) the same conduct could be used to prove both the Commonwealth offences and some of the State offences.
This test of connection between Commonwealth and State functions is broadly similar to the test for when a State claim falls within a federal court's accrued jurisdiction. Wakim confirmed that a federal court may determine a purely State claim if it is so closely connected to a federal claim within jurisdiction that the two claims form a 'single justiciable controversy'. Relevant factors in establishing that connection include whether the federal and State claims could be brought in a single proceeding (although it is not necessary that in fact they are), and whether the federal and State claims have a common substratum of facts.[124]
Of course, the jurisprudential basis of accrued jurisdiction is very different from the basis for permitting the Commonwealth executive to perform State functions. The accrued jurisdiction of federal courts is said to derive from the fact that ss 75, 76 and 77 of the Constitution define the jurisdiction of these courts by reference to 'matters'.[125] However, it is doubtful whether the word 'matter', by itself, suggests that federal courts can be given authority to determine the whole of a dispute between parties, including claims otherwise outside jurisdiction.[126] Instead, that conclusion seems to depend on a particular conception of judicial power, which in turn rests on policy considerations such as the need for finality in litigation.[127] In other contexts, members of the High Court have explicitly acknowledged that 'matter' takes its content from the concept of judicial power.[128] For those reasons, accrued jurisdiction can (in my view) be more convincingly explained as a pragmatic doctrine designed to reduce the duplication of proceedings between federal and State courts, and to reduce the possibility of inconsistent findings.[129] That rationale is essentially the same as the rationale given in Fukusato for why it was permissible for the Commonwealth DPP to prosecute State offences in that case together with Commonwealth offences.[130]
Apart from an analogy with accrued jurisdiction, it might be possible to rely on the so-called 'excess capacity' doctrine. Although rather uncertain in content, that doctrine suggests that the Commonwealth executive may sometimes engage in activities outside Commonwealth power in order to preserve its capacity to engage in activities within power when the occasion arises.[131] An analogy might even be drawn with remarks by Mason J in Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission,[132] who held that a Commonwealth statutory body may validly acquire shares in a company that engages in activities both within and outside the statutory body's functions, provided it can be shown that the purchase of shares in that company was for the purpose of giving effect to the body's statutory functions.
A second possibility is that, even if State functions could not be conferred on the Commonwealth executive as such, there would be scope for Commonwealth officers to perform State functions in their personal capacity.[133] This may be what the joint judgment in Hughes had in mind when referring to Commonwealth officers 'accept[ing] appointments in addition to their Commonwealth appointments'.[134] Indeed, in Cram,[135] the High Court appeared explicitly to accept the possibility that a Commonwealth body could perform State functions 'in some different capacity'. Admittedly, Cram involved statutory authorities, which of course do not have personal capacities. However, the bodies in question were jointly established by both Commonwealth and State legislation,[136] which meant that (like a natural person) they had legal capacities that did not depend on Commonwealth legislation.
The argument that a Commonwealth officer could perform State functions in a personal capacity is analogous with the doctrine that federal judges can perform some non-judicial functions in their personal capacity that cannot be conferred on a federal court itself.[137] However, this analogy does not mean that a Commonwealth officer could not perform State functions that were 'incompatible' with his or her Commonwealth functions. In the Chapter III context, the incompatibility test is designed to uphold public confidence in the independence of the judiciary from the government (in particular, the executive, but also the Parliament). That conception of incompatibility could not be easily translated into the context of executive governments, because it is doubtful whether public perceptions of the independence of Commonwealth and State governments are relevant.[138]
There are difficulties even with narrower conceptions of incompatibility, such as whether a Commonwealth officer had such a permanent and complete commitment to the performance of State functions that the further performance of Commonwealth functions was impracticable,[139] or whether the performance of State functions 'alter[ed], impair[ed] or detract[ed] from'[140] the performance of the officer's Commonwealth functions. Both of these tests seem to turn on an assessment of whether Commonwealth resources are being inappropriately diverted towards the performance of State functions, whereas the courts are traditionally reluctant to interfere with the allocation of public moneys by the elected branches of government.[141] While it is relevant to ask whether a State function is 'conducive to or consistent with' the objects for which federal powers were vested in a Commonwealth body,[142] a State function can hardly be inconsistent with those federal objects if the performance of the function is authorised by Commonwealth legislation.[143]
Putting aside a possible limitation based on incompatibility or some like notion, there are several practical limits on conferring State functions on Commonwealth officers in their personal capacity. First, it would seem to be necessary for an officer's performance of State functions, even in a personal capacity, to be authorised by Commonwealth legislation.[144] For one thing, legislation would authorise the officer expending Commonwealth funds on performing State functions.[145] Legislative approval would also overcome an argument that the Commonwealth officer is impliedly prohibited from performing additional State functions by other Commonwealth legislation[146] or the common law doctrine of incompatible offices.[147] A second practical limit is that the State Act should express a clear intention that the State function is conferred on the Commonwealth officer in a personal, rather than an official, capacity. There might otherwise be a presumption that any function conferred on a Commonwealth officer is intended to be conferred on the officer in his or her official capacity.[148] Finally, if a Commonwealth officer were to perform some functions in a personal capacity and some functions in a Commonwealth capacity, the need for the officer to distinguish between, and separate, the State and Commonwealth functions[149] might undermine the effectiveness of having the same person perform both functions. However, that difficulty arises whenever a Commonwealth officer performs a State function (whether or not in a personal capacity), and can only be overcome by the sorts of provisions contained in the former Corporations Law scheme, which endeavoured to 'federalise' the Corporations Law.[150]
In this part of the article, I asked whether the States could confer functions on the Commonwealth executive that the Commonwealth could not confer itself. It could be argued that the conferral of these functions would impermissibly affect Commonwealth executive capacities, contrary to Re Residential Tenancies Tribunal (NSW). I have suggested, however, that the States do not impermissibly 'affect' Commonwealth executive capacities by supplementing those capacities, at least when Commonwealth legislation authorises the performance of these additional State functions. A second argument is that permitting the Commonwealth executive to perform State functions that go beyond the scope of Commonwealth legislative power would undermine the federal division of executive power. That argument turns on whether the political process is seen as providing a sufficient check on the transfer of functions between the Commonwealth and State executive governments.
However, even if the High Court were to 'Wakim' federal executive power, one could still argue that the Commonwealth could authorise its executive to perform otherwise purely State functions when those functions were 'conducive' or 'incidental' to the performance of Commonwealth functions. There may also be scope for State functions to be conferred on Commonwealth officers in their personal capacity.
So far I have concentrated on one aspect of applying Wakim-style reasoning to Chapter II of the Constitution: that the Commonwealth executive could exercise only Commonwealth executive power, and not State executive power. There may, however, be a flip-side to the Wakim coin. Unlike Chapter III of the Constitution (specifically, s 77(iii)[151]), Chapter II does not make express provision for the Commonwealth to confer power on the States. Accordingly, there would at least be an argument that Commonwealth executive power must be exercised by the Commonwealth executive, and by no-one else. There is some authority suggesting that the Commonwealth may confer functions on the executive government of a State (particularly with the consent of the State),[152] but that authority is by no means conclusive. For example, in Aston v Irvine,[153] the High Court held that a State magistrate could validly indorse inter-State extradition warrants under s 18 of the Service and Execution of Process Act 1901 (Cth) because the 'use of these powers involves an independent responsibility and does not involve the executive power of the Commonwealth'. While that statement has received various (not entirely satisfactory) explanations,[154] it is notable that the Court did not simply hold that it is permissible for State officers to exercise Commonwealth executive power.
There is a hint of a requirement that Commonwealth executive power can only be exercised by the Commonwealth executive in Macleod, when the joint judgment refers to the Commonwealth executive being 'charged' by s 61 of the Constitution with the execution and maintenance of the Constitution and Commonwealth laws.[155] A comparable argument has arisen in the United States. Article II, § 3 of the United States Constitution provides in part that the President 'shall take care that the Laws be faithfully executed'. Scalia J in particular has held in a number of cases that the 'take care' clause imposes a non-delegable duty on the federal executive to execute federal laws, with the consequence that Congress cannot get private citizens to enforce federal laws by granting a private right of action when the citizen does not have a sufficient interest to maintain standing.[156] While that specific consequence is not relevant to s 61 of the Australian Constitution,[157] the underlying argument that the federal executive government is constitutionally obliged to execute federal laws itself is relevant. In Australia, there are two constitutional features that might be thought to suggest that the executive power of the Commonwealth must be exercised by only the Commonwealth executive government.
First, it could be argued that responsible government requires that Commonwealth laws be executed by persons who are directly responsible to the relevant Commonwealth Minister, rather than by State officers who would be answerable to a State Minister.[158] In Egan v Willis,[159] Gaudron, Gummow and Hayne JJ noted that Commonwealth–State cooperative legislative schemes involve some departure from the classical conception of responsible government, because they 'involve the enactment of legislation by the Parliament which is administered and enforced by Ministers and officials at another level of government, not responsible to the enacting legislature'.
That departure does not mean, however, that the schemes are invalid. The Commonwealth Minister would remain accountable to some extent in this situation, because he or she would need to defend in the Commonwealth Parliament the arrangements under which Commonwealth laws were being executed by State officers. Moreover, while responsible government is part of the constitutionally-mandated system of government at the Commonwealth level,[160] it by no means follows that a court may invalidate legislation that, in the court's view, dilutes the political accountability required by responsible government. As Professor Winterton argues:
desirable though it might be that the Commonwealth Parliament should be able to supervise the implementation of its legislation through ministerial responsibility, there is no justification for entrenching such notions of political good sense in the Constitution and invalidating legislation on the ground that Parliament has deprived itself (by legislation which it can repeal at any time) of an opportunity of enforcing ministerial responsibility. [161]
Professor Lindell has argued more generally that the conventions of responsible government are too uncertain to be the basis of legal obligations or restrictions enforceable in a court of law, and further that fixing the content of these conventions would deprive governments of desirable flexibility.[162] Both steps in this reasoning receive support from statements in Re Patterson; Ex parte Taylor,[163] which (relevantly) rejected an argument that responsible government requires that each department be overseen by a single Minister. Gummow and Hayne JJ observed that '[t]he content of the various principles and practices which together may be identified in Australia as comprising "responsible government" is a matter of continued debate between constitutional lawyers, political scientists and politicians themselves',[164] while Gleeson CJ stated that '[f]or the framers of the Constitution to have descended into greater specificity [in Chapter II] would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need to be capable of development and adaptability'.[165] This reasoning provides general support for the proposition that responsible government does not require Commonwealth executive power to be exercised only by members of the Commonwealth executive.
A second possible argument for requiring Commonwealth executive power to be exercised by only the Commonwealth executive derives from s 75(v) of the Constitution. It might be argued that, as s 75(v) guarantees the High Court jurisdiction to grant administrative law remedies against an 'officer of the Commonwealth' and no-one else, this is reason to conclude that Commonwealth executive power can only be exercised by persons who are Commonwealth officers. On decided authorities, an 'officer of the Commonwealth' does not include State officers performing Commonwealth functions,[166] because s 75(v) does not look to the nature of the power, but rather the nature of the office.[167]
Predicting the implications that might be drawn from s 75(v) of the Constitution necessarily involves an element of conjecture, because the precise ambit of s 75(v) is still a matter of some debate. It is clear from Plaintiff S157/2002 v The Commonwealth[168] that s 75(v) prevents the Commonwealth from excluding the grant of mandamus, prohibition or injunction (and ancillary remedies) once 'jurisdictional error' is established. A question remains, however, whether the Commonwealth can alter the circumstances that constitute jurisdictional error, or whether s 75(v) guarantees judicial review whenever a Commonwealth officer commits an error that the common law would classify as 'jurisdictional'.[169] In its terms, s 75(v) merely confers jurisdiction to grant remedies, and does not guarantee the grounds on which those remedies will be granted.[170] Accordingly, while s 75(v) would be frustrated if the Commonwealth could remove all grounds of review, it would be a fragile basis on which to 'constitutionalise' the entire body of administrative law principles. A useful working proposition is that, at most, s 75(v) entrenches judicial review on the grounds of constitutional or statutory ultra vires.[171] (By 'statutory ultra vires', I mean decisions of a kind outside the theoretical limits of the decision-maker's powers,[172] and do not include so-called 'constructive' failures to exercise jurisdiction that are jurisdictional errors at common law.[173] While the distinction between 'statutory ultra vires' and 'jurisdictional error' may not be easy to draw,[174] a distinction of this kind is required if s 75(v) is not to constitutionalise all common law grounds of review.[175])
When State officers are performing functions under Commonwealth legislation, it may be possible to imply a constitutional right to review decisions made ultra vires on constitutional or statutory grounds without reference to s 75(v) of the Constitution. If the alleged defect were that a State officer had exercised a discretion under Commonwealth legislation in a manner that went beyond Commonwealth constitutional power, a court might rely on covering clause 5[176] and the principle in Marbury v Madison[177] to draw an implication that enabled an aggrieved person to challenge the decision (assuming that judicial review was not already available under Commonwealth or State legislation).[178] On the other hand, if the alleged defect were that the State officer acted outside the functions conferred by statute but within Commonwealth constitutional power,[179] a court might imply a constitutional right of review from the reference in covering clause 5 to Commonwealth laws being binding on all people in Australia, together with the rule of law[180] (assuming, once again, that there was no statutory provision for judicial review). While this second argument is more speculative, it is suggested by statements that the Commonwealth Constitution is framed against the assumption of the rule of law,[181] and also by authorities on the type of errors that are protected by privative clauses.[182]
Admittedly, if the High Court were to hold that judicial review is impliedly guaranteed in circumstances beyond constitutional or statutory ultra vires (say, there are minimum requirements of procedural fairness that cannot be abrogated), then it would be more difficult to derive a corresponding implication from s 75(v) of the Constitution that applied to State officers performing Commonwealth functions. But even that possibility is not reason for implying from s 75(v) that the executive power of the Commonwealth can only be exercised by Commonwealth officers. Any implication that certain grounds of review are constitutionally guaranteed is unlikely to rest on s 75(v) alone; rather, it would probably derive also from other features of the Constitution that might be equally applicable to State officers performing Commonwealth functions. For example, in Re Refugee Review Tribunal; Ex parte Aala,[183] Gaudron and Gummow JJ referred to (without commenting further on) an argument that 'an element of the executive power of the Commonwealth found in Ch II of the Constitution includes a requirement of procedural fairness'. That implication, if it were drawn, would qualify any function that could be conferred pursuant to Chapter II of the Constitution (by making Commonwealth functions subject to a requirement to provide procedural fairness), whether the function was being performed by a Commonwealth officer, a State officer, or a private body.
Indeed, s 75(v) of the Constitution, by itself, does not even guarantee judicial review against all Commonwealth decision-makers. On decided authorities, a body corporate (such as a Commonwealth statutory authority) is not an 'officer' within s 75(v).[184] (As an aside, that fact strongly suggests that s 75(v) does not require Commonwealth executive power to be exercised only by Commonwealth officers.) When a decision is made by a Commonwealth statutory authority, judicial review could only be constitutionally guaranteed by s 75(iii).[185]
Plaintiff S157/2002 establishes that certiorari may 'issue in the exercise of jurisdiction conferred by s 75(iii) of the Constitution',[186] but leaves open the question whether the power to grant certiorari (or other administrative law remedy) is a constitutionally entrenched aspect of s 75(iii) jurisdiction. Of course, unlike s 75(v), s 75(iii) does not expressly guarantee the power to grant administrative law remedies. However, it might be argued that, once the High Court has jurisdiction under s 75(iii), it must have power to grant whatever relief is necessary to make that grant of jurisdiction effective.[187] On the other hand, it could also be argued that, if the High Court does not have power to grant relief, then it does not have jurisdiction either, because there is no 'matter'.[188]
More generally, it seems undesirable if the availability of relief could depend on whether Commonwealth legislation conferred the decision-making function on a statutory authority or a Commonwealth officer.[189] Intuitively, it seems that an injunction should be available to prevent 'fraud, bribery, dishonesty or other improper purpose',[190] regardless of whether the fraud is committed by, say, an officer of ASIC, or by ASIC itself.[191] That intuition draws attention away from the specific terms of s 75(v) of the Constitution, and towards more general notions about the nature of executive power and the rule of law. Those notions could apply equally to State officers performing functions conferred by Commonwealth legislation.[192]
Once again, I am not arguing that the High Court should draw any of these implications. Rather, I am responding to the possible argument that the presence of s 75(v) of the Constitution indicates that the executive power of the Commonwealth must only be exercised by Commonwealth officers. The significant point for present purposes is that, even if the Court were to draw an implication that judicial review was constitutionally required in certain circumstances, the implication need not depend on s 75(v).[193] That in turn means that the implication need not be confined to Commonwealth officers. Alternatively, and more directly, if the fact that s 75(v) does not apply to State officers performing Commonwealth functions were a problem, then the Court could expand its interpretation of 'officer of the Commonwealth' to include any person or body performing functions under Commonwealth legislation.[194] Either way, s 75(v) would not be reason to draw an implication that State officers cannot exercise the executive power of the Commonwealth.[195]
If the High Court were to decide that only the Commonwealth executive could exercise Commonwealth executive power, it may become necessary in a particular case to determine whether the Commonwealth had purported to confer executive power. It seems unlikely that the Court would hold that no-one apart from Commonwealth officers may take steps that assist the execution of Commonwealth laws. For example, I doubt whether we exercise Commonwealth executive power when we fill out a tax return, even though the tax return is an essential means by which the Commonwealth enforces its taxation laws. Professor Winterton describes the executive power of the Commonwealth as 'generally carrying on the business of the government through the exercise of powers conferred by the Constitution, by statute or by the prerogative'.[196] This general description draws attention to the legal source of power to perform an activity, although (as will become apparent) that is not the only relevant factor.
Some more specific guidance can be obtained from cases considering whether State officers or private bodies are made 'under an enactment' for the purposes of the AD(JR) Act.[197]While the questions are not identical, the question of whether a decision is made 'under [a Commonwealth] enactment' serves as a useful proxy for whether the decision-maker is exercising Commonwealth executive power. Privative clauses aside,[198] those who exercise Commonwealth executive power should be subject to federal judicial review, while those who do not exercise Commonwealth power, should not.[199] Moreover, Commonwealth legislation is required to confer Commonwealth executive power on State officers and private bodies (unlike members of the Commonwealth executive government, particularly Ministers, who may derive certain powers directly from the Constitution[200]). Accordingly, the correlation between a decision being made under a Commonwealth Act and the conferral of Commonwealth executive power on a State officer is particularly close.
The High Court has considered whether a decision by someone other than a Commonwealth officer was made 'under an enactment' in Glasson v Parkes Rural Distributions Pty Ltd[201] and NEAT Domestic Trading Pty Ltd v AWB Ltd.[202] In my view, the effect of those cases can be summarised as follows:
I need to expand slightly on this second point. While federal judicial review is constitutionally guaranteed in some situations,[205] there are other situations where the Commonwealth may be able to exclude federal judicial review altogether.[206] In particular, the Commonwealth may be able to exclude judicial review if a Commonwealth Act gives legal effect to a decision by someone who is not a Commonwealth officer, and the Act does not confer power to make that decision. In that situation at least, it is relevant to ask whether federal judicial review obligations can be accommodated with the decision-maker's other obligations.[207]
Of course, any attempt to exclude federal judicial review is subject to the general proposition that the Constitution is enacted against the assumption of the rule of law.[208] However, the rule of law does not necessarily require federal judicial review whenever Commonwealth legislation gives legal effect to a decision. There may be scope for the Commonwealth to use a decision by a private body or State officer as a 'factum'[209] on which Commonwealth legislation operates, without the decision being subject to federal judicial review.[210]
When a Commonwealth Act gives legal effect to a decision, the question of whether the decision is made 'under' that Act may turn on the connection between the decision-maker and the Commonwealth. In Glasson, for example, the High Court considered the source of power to appoint a decision-maker in assessing whether a decision was made 'under' a Commonwealth Act.[211] More generally, the courts have tended to ensure that decisions by Commonwealth officers are subject to federal judicial review, even when the power to make a particular decision could have been derived from State law[212] or the decision-maker's personal capacity.[213] That tendency may extend to persons who are not Commonwealth officers, but hold a Commonwealth appointment or otherwise make a decision on behalf of the Commonwealth executive (such as a State officer with a dual Commonwealth appointment[214]).
On this view, the courts would start from the position that decisions by a person who holds a Commonwealth appointment should be subject to federal judicial review, in so far as those decisions are made in his or her Commonwealth role. Consequently, if Commonwealth legislation gave legal effect to decisions by persons acting pursuant to a Commonwealth appointment, the decisions would ordinarily be treated as being made 'under' the Commonwealth Act and subject to AD(JR) Act review. (Conceivably, a Commonwealth appointment might also mean that the decision-maker was a person 'being sued on behalf of the Commonwealth' within s 75(iii) of the Constitution.) However, that starting position could be subject to competing considerations, such as federalism.[215] For example, the 'integrity and autonomy' of the States[216] might conceivably require decisions of high level State officials to be judicially reviewable only at the State level.
Applying that analysis of Glasson and NEAT Domestic to Commonwealth-State cooperative legislative schemes, the Commonwealth might be regarded as conferring Commonwealth executive power on the States if a Commonwealth law confers the power on a State officer to perform a function or, in some circumstances, if the Commonwealth law gives legal effect to a decision by a State officer.
The first limb — whether the Commonwealth has conferred legal power on a State officer — might be thought to raise similar issues to the situation already considered of whether the States can supplement the executive capacities of the Commonwealth.[217] However, Re Residential Tenancies Tribunal (NSW) does not cast any doubt on the ability of the Commonwealth to affect the executive capacities of the State, subject to the Melbourne Corporation doctrine.[218]
Moreover, there is a different baseline from which to measure whether the State's executive capacity has been 'supplemented'. In the case of the Commonwealth, the base-line is, in effect, the scope of its legislative power.[219] In the case of the States, however, the base-line is usually the legal capacity of a natural person.[220] So, when a Commonwealth law confers a power or privilege on the State executive that is not shared by a natural person, the Commonwealth law would usually be supplementing the executive capacities of the State. For example, the Commonwealth would be supplementing the executive capacities of the State by conferring power on State DPPs to prosecute Commonwealth offences on behalf of the Commonwealth.[221]
However, there could be situations where Commonwealth is able simply to impose an obligation on the States to carry out an activity as part of a cooperative arrangement, without needing to confer the power to do so.[222] For example, a cooperative legislative scheme might enable the Commonwealth to require a State officer to undertake non-coercive investigation.[223] In this situation, the officer would not be exercising the executive power of the Commonwealth, but relying on his or her legal capacities as a member of the executive government of a State.[224]
The second limb of the test asks whether Commonwealth legislation gives legal effect to a decision by a State officer.
As a preliminary matter, it is necessary to distinguish between a Commonwealth law that imposes an obligation on a State officer (which does not confer Commonwealth executive power), and a Commonwealth law that gives legal effect to action taken by a State officer (which may). Sometimes the difference between the two is obvious: for example, a Commonwealth traffic law applying in a Commonwealth place imposes obligations on a State officer and even attaches legal consequences to action by the officer (for example, speeding attracts a fine), but the law does not give legal effect to the State officer's action. Therefore such a law would not purport to confer Commonwealth executive power on the State officer.
Sometimes, however, the difference between a Commonwealth law imposing an obligation, and a law giving legal effect to action, is less obvious. For example, the Commonwealth superannuation surcharge scheme considered in Austin required the superannuation provider (in the case of State judicial pension schemes, the State) to perform actuarial calculations that the Commonwealth used to calculate the amount of tax payable on retirement. South Australia argued that the obligation to prepare actuarial information was so onerous, and required such professional skill and judgment, that the State in effect was being obliged to administer the Commonwealth law. The Commonwealth argued in response that its laws merely imposed a non-discriminatory obligation on the States to provide certain information (in common with all superannuation providers), and that the Commonwealth legislation neither conferred legal capacity on the State to perform the actuarial calculations nor gave legal effect to the steps taken by the State.[225] The majority judges did not have to resolve this issue, because they held that the Commonwealth tax was invalid for other reasons.[226]
Assuming that Commonwealth legislation does give legal effect to a State officer's decision, the previous analysis of Glasson and NEAT Domestic suggests that the relevant factors are (1) whether the State officer has a Commonwealth appointment, and (2) whether federal administrative law obligations can be sensibly accommodated with the corresponding obligations under State law.[227]
Although a State officer is, by definition, appointed and paid by a State,[228] State officers sometimes have dual appointments under Commonwealth law.[229] If the courts tend to require any decision by a person who holds a Commonwealth appointment to be subject to federal judicial review,[230] that tendency may have implications for the treatment of decisions by State officers who hold dual Commonwealth appointments. For example, if a Commonwealth Act gave legal effect to a decision by the State officer who held a dual Commonwealth appointment, the courts might interpret the Commonwealth Act as (impliedly) conferring power on the officer to make the decision (so as to guarantee AD(JR) Act review[231]), with the further consequence that the State officer would be taken to exercise Commonwealth executive power. However, that approach would seem to apply only to decisions that were made pursuant to the State officer's Commonwealth appointment, and would not require federal judicial review of decisions that only had consequences under State law.
The other factor is whether federal judicial review obligations can be sensibly accommodated with like State obligations. Subject to two comments, there is no necessary difficulty with federal judicial review obligations co-existing with like State obligations. First, the fact that Commonwealth judicial review legislation applied to a decision by a State officer could conceivably mean that State judicial review is not applicable, if it were apparent that the Commonwealth intended to 'cover the field' of judicial review obligations applicable to the decision-maker.[232] An intention to cover the field seems unlikely if a State officer only performs the occasional Commonwealth function on an ad hoc basis, but might be inferred if, say, a State officer's only functions were to implement a Commonwealth–State cooperative legislative scheme.[233] Secondly, the amenability of a State officer to Commonwealth judicial review could be affected by the Melbourne Corporation doctrine. For example, as already noted,[234] there is a possible argument that the 'integrity and autonomy' of the States would prevent Commonwealth legislation from imposing administrative law obligations on State officials engaged at the higher levels of government. If that argument were accepted, this implication would probably prevent the Commonwealth from conferring executive power on that official as well.[235]
I doubt, however, whether the accommodation of federal and State judicial review obligations would depend on whether the State officer was in fact subject to State judicial review. State legislation may validly exclude State judicial review entirely[236] (unlike Commonwealth legislation, which must preserve certain minimum requirements of judicial review[237]). Moreover, the reason for asking whether federal judicial review can be accommodated with other legal obligations is to determine whether the Commonwealth Parliament intended to exclude federal judicial review.[238] The intention of the Commonwealth Parliament does not necessarily depend on whether the decision-maker is subject to other forms of judicial review. Consequently, it is possible that the Commonwealth could confer executive power on a State officer, even though the officer is not subject to State judicial review.
By contrast, it may well be relevant to consider whether the decision of a State officer that is given legal effect by Commonwealth legislation also has consequences under State law. I suggested earlier that the Commonwealth could treat the decision of a State officer as a 'factum' on which Commonwealth legislation operates, without subjecting the officer to federal judicial review[239] (or, I would now add, without requiring the State officer to exercise Commonwealth executive power). In determining whether a State officer's decision was a 'factum', it would seem to be highly significant whether the decision had any legal consequences outside the Commonwealth Act. Imagine, for example, a complementary Commonwealth-State licensing system (say, gun registration), where a person who is licensed under the State Act is treated as being licensed for the purposes of the Commonwealth Act as well. In that situation, it would be strongly arguable that a State officer's decision was merely a factum on which the Commonwealth Act operated. By contrast, if there were only a Commonwealth licensing system, and a State officer was one of the people who could decide whether a person should be licensed,[240] the Commonwealth Act may be taken to confer Commonwealth executive power on the State officer.
This part of the article has considered the other consequence of applying Wakim to Commonwealth executive power; namely, that the Commonwealth could not confer executive power on State officers. I have suggested that this consequence is not required by the Constitution. The principles of responsible government are too amorphous to provide a basis for invalidating legislation, and conferring Commonwealth power on State officers would in no way circumvent the judicial review guaranteed by Chapter III of the Constitution, particularly s 75(v).
If, however, the High Court were to decide to the contrary, the test for when a decision by a State officer is made 'under an enactment' for the purposes of the AD(JR) Act could be used to determine whether the Commonwealth had attempted to confer executive power on a State officer. That test draws particular attention to whether a Commonwealth Act confers power on a State officer to make a decision. However, a Commonwealth Act that gave legal effect to a decision by a State officer might also be taken to confer Commonwealth executive power on the officer, especially if a State officer held a dual appointment under Commonwealth law.
This article has reviewed the arguments that could be made to support the application of Wakim-style reasoning to Chapter II of the Constitution. I have suggested that these arguments need not be accepted. If they were, however, one implication of that reasoning would be that the Commonwealth executive could not perform State functions, subject perhaps to some limited capacity to perform State functions that were incidental or conducive to Commonwealth functions, or State functions that were conferred on Commonwealth officers in their personal capacity. Another implication would be that only the Commonwealth can exercise Commonwealth executive power, because there is no s 77(iii) equivalent in Chapter II of the Constitution.
Ultimately, of course, the question is not whether the High Court could apply Wakim-style reasoning to Commonwealth executive power, but whether it should or will. Apart from general arguments that the courts should prefer a 'cooperative' (or 'concurrent') conception of Australian federation,[241] there are two specific factors that, cumulatively, suggest that the High Court should not take this step.
The first factor is the different levels of independence from the parliament of the judiciary and the executive. As already noted, the argument that the political process provides a sufficient check on the transfer of functions between the Commonwealth and the States is much stronger in the case of executive power than it was in the case of judicial power.[242]
The second factor is that Chapter II of the Constitution, unlike Chapter III, does not expressly enable the Commonwealth to confer power on the States. While it could be argued that s 77(iii) of the Constitution indicates that express constitutional authority is required before one government can confer power on another government,[243] I would contend that s 77(iii) actually tends against applying Wakim-type reasoning to executive power. In Wakim, the presence of s 77(iii) meant that there was an existing mechanism to overcome any inconvenience that would follow from requiring a strict separation of federal and State jurisdiction, because the power to determine both federal and State claims could be given to State courts.[244] With Chapter II, however, there would be no means to ameliorate the inconvenience that would follow from a strict separation of Commonwealth and State executive power. Of course, convenience is by no means determinative, but the Court will usually only interpret the Constitution as requiring an inconvenient result in order to give effect to values underlying the Constitution, such as federalism or the rule of law.[245]
Taking these two factors together, a constitutionally-required separation of Commonwealth and State executive power would therefore not only lead to possibly greater inconvenience than the separation of Commonwealth and State judicial power (because there is no s 77(iii) equivalent), but would also be less likely to serve a significant constitutional value (because the political process is a sufficient check to maintain the federal division of executive power).
The debate therefore seems to turn on fundamental assumptions about the nature of federation and the roles of courts and the executive. As already noted, however, the courts rarely articulate, let alone justify, these assumptions.[246] Indeed, it is an open question whether the parameters of traditional legal argument would even address the underlying reasons for, or causes of, a judge's views on the nature of federation.[247] The text is inconclusive, and the resolutely atheoretical nature of Australian constitutional law means that precedent provides only a loose constraint on judicial choice (even putting aside the unlikelihood that a conclusion on the nature of federation could ever form part of the ratio decidendi of a court's decision). In the United States, the entrenched division of opinion within the Supreme Court over the States' sovereign immunity from suit in cases arising under federal legislation[248] provides another reason to doubt whether disagreements over the nature of federation can be resolved by reference to text, history or precedent. To adapt Oliver Wendell Holmes' famous aphorism, it may therefore be that the life of the Constitution is not logic, but the judges' experience.[249] If that is so, then litigants may be well advised to hope for the best, and prepare for the worst. For governments at least, this article is the first step in the second part of that prescription.
[*] BA LLB (Hons) (ANU), LLM (Colum). Constitutional Litigation, Australian Government Solicitor. This article expands on a paper given at the Public Law Weekend on 1 November 2002. The views expressed here are my own. Thanks are due to the referee, and to Daniel Stewart for his most insightful comments on Part 4(B).
[1] (1999) 198 CLR 511 ('Wakim').
[2] There could be other, less direct, consequences. For example, the reasons for implying a constitutional separation of Commonwealth and State executive power might favour a greater separation between Commonwealth legislative and executive power, such as a constitutional (rather than a merely political) limit on the ability of Parliament to interfere with the exercise of executive power: see Geoffrey Lindell, 'Parliamentary Inquiries and Government Witnesses' [1995] MelbULawRw 25; (1995) 20 Melbourne University Law Review 383, 401–2 (discussing whether the investigative powers of parliamentary committees can override executive privilege).
[3] Where the Commonwealth and State legislate cooperatively both to confer functions on a single body. A 'State function' is function conferred by State law.
[4] See below, Part 2(A) and (B).
[5] See below, Part 2(C)(i).
[6] See below, Part 2(C)(ii).
[7] See below, Part 3(A)(i).
[8] See below, Part 3(A)(ii).
[9] See below, Part 3(B)(ii). Another issue is whether the Commonwealth executive could perform State functions otherwise outside power if those functions are 'incidental' or 'conducive' to the performance of Commonwealth functions (see below, Part 3(B)(i)).
[10] See below, Part 4(A)(i).
[11] See below, Part 4(A)(ii).
[12] See below, Part 4(B).
[13] Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002) 13 Public Law Review 205, 215–17.
[14] Ibid 217–26.
[15] Justice Bradley Selway, 'Constitutional Assumptions and the Meaning of Commonwealth Executive Power' (2003) 31 Federal Law Review 505. However, Kirby J has stated a preference for cooperative federalism, and given reasons for this preference (Wakim (1999) 198 CLR 511, 600–1 [189]–[191]; R v Hughes (2000) 202 CLR 535, 566–8 [67]–[73]).
[16] That at least would improve the chances of predicting how federalism implications might affect future cases. It is unlikely, however, that court submissions could alter a judge's view on the proper conception of federation (see the text accompanying nn 247—249 below).
[17] (2000) 202 CLR 535
('Hughes'). For a more complete analysis of Hughes, see, eg,
Graeme Hill, 'R v Hughes and the Future of Co-operative Legislative
Schemes' 
[2000] MelbULawRw 18 
; (2000) 24 Melbourne University Law Review 478.
[18] In Hughes, ss 29 and 31 of the Corporations (Western Australia) Act 1990 (WA) ('Corporations (WA) Act').
[19] In Hughes, s 47 of the Corporations Act 1989 (Cth) ('Corporations Act') and reg 3(1)(d) of the Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth).
[20] Hughes (2000) 202 CLR 535, 553–4 [32]–[34] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[21] Ibid 580 [110].
[22] See especially ibid 584 [120] (Kirby J) (the necessary power exists '[i]n the peculiar circumstances of this case', but may not in another case); see also 556 [40] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (s 51(xx) would support a Commonwealth law that authorised the Commonwealth DPP to prosecute 'the very great majority' of State Corporations Law offences).
[23] The High Court may consider, however, that the Commonwealth law in a cooperative legislative scheme actually confers the function, and the State law merely describes the content of this (Commonwealth) function (see below, text accompanying n 27; see also Wakim (1998) 198 CLR 511, 572–3 [105] (Gummow and Hayne JJ) (the 'better view' was that Commonwealth provision in the cross-vesting scheme attempted itself to confer State jurisdiction on federal courts)). On that approach, the Commonwealth provision would 'pick up' the content of the State provision, in some way analogous to s 79 of the Judiciary Act 1903 (Cth).
[24] For example, a State law could not confer jurisdiction on a federal court to determine matters arising between the States (cf s 75(iv) of the Constitution).
[25] Hughes (2000) 202 CLR 535, 553 [31].
[26] Ibid 554 [36].
[27] Ibid 558 [46] (emphasis added).
[28] Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 492 (arguing that a connection with Commonwealth power is not required simply because a State function is coercive).
[29] A similar ambiguity may arise with the statement in the joint judgment that State functions are 'imposed by federal law as a matter of duty or obligation' (Hughes (2000) 202 CLR 535, 553 [33]): see Dennis Rose QC, 'Commonwealth-State Co-operative Schemes after Hughes: What Should be Done Now?' (2002) 76 Australian Law Journal 631, 634.
[30] Although see a possible reconciliation of the first two of these statements in Part 2(C)(i) below.
[31] See Corporations (WA) Act s 33.
[32] Hughes (2000) 202 CLR 535, 553 [33]. By contrast, Kirby J did not rely on there being any 'duty' (at 584–5 [124]–[125]), and therefore did not place any weight on whether the function was conferred exclusively.
[33] Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 490–1 (summary of the effect of Hughes), although I argued further that it was not entirely clear whether the Hughes approach was confined to exclusive State functions (at 492–3).
[34] [2002] QCA 20; [2003] 1 Qd R 272 ('Fukusato'). A similar constitutional argument was raised in R v Holden [2001] VSCA 63; (2001) 161 FLR 372 ('Holden'). In that case, the Victorian Court of Appeal held that the Commonwealth DPP could validly prosecute the Victorian offences in question, because (1) those State offences could have been enacted by the Commonwealth itself under s 51(i) of the Constitution, and (2) the prosecution of the State offences, in the circumstances of the case, was 'incidental' to the prosecution of Commonwealth offences (at 382–3 [31] (Chernov JA, with Tadgell and Ormiston JJA agreeing: 373 [1], 373 [2])). Holden therefore did not address the argument that the Hughes approach is confined to State functions that are conferred on Commonwealth bodies exclusively.
[35] Here, the Corporations (Commonwealth Powers) Act 2001 (Qld). The Court of Appeal in Fukusato unanimously rejected a challenge to the validity of this referral of power ([2003] 1 Qd R 272, 294–8 [51]–[64] (McMurdo P), 302–3 [85]–[91] (Davies JA, with Thomas JA agreeing on this point: 317 [149])).
[36] See Fukusato [2002] QCA 20; [2003] 1 Qd R 272, 280 [4] (McMurdo P). Briefly, ch 10 of the Corporations Act 2001 (Cth) (especially ss 1370, 1383 and 1401) created federal rights and obligations equivalent to the State rights and obligations that existed under the former Corporations Law. Section 7(2) of the Corporations (Ancillary Provisions) Act 2001 (Qld) cancelled rights and liabilities under the Corporations Law of Queensland if equivalent rights and liabilities had been created by the Commonwealth Act. The validity and efficacy of the Commonwealth transitional provisions was upheld in Cth DPP v Corbett [2002] QCA 340 (Unreported, Davies, Williams and Jerrard JJA, 6 September 2002).
[37] See also DPP Act s 9(6B) (DPP's power to give an undertaking in connection with the prosecution of a State or Territory offence).
[38] If the Commonwealth DPP and a State DPP both attempted to prosecute the same person for the same offence, a question of operational inconsistency may arise (as to which, see, eg, Commonwealth v Western Australia (1998) 196 CLR 392 ('The Mining Act Case'), 417 [61] (Gleeson CJ and Gaudron J), 439–40 [139] (Gummow J). If the Commonwealth law, in substance, confers the function, then the Commonwealth DPP's authority would seem to prevail, by reason of s 109 of the Constitution. If, however, the Commonwealth DPP's authority derives from State law, then he or she would not have automatic priority.
[39] See Fukusato [2002] QCA 20; [2003] 1 Qd R 272, 285–6 [29] (McMurdo P).
[40] Davies JA also suggested that s 17 of the DPP Act was also supported by s 51(xxxvii) of the Constitution (read with s 51(xxxix)) in its application to this case, because the prosecution of the State offences was incidental to the prosecution of the (now Commonwealth) corporations offences enacted pursuant to a referral of power (ibid 306 [103]). Thomas JA, however, held that s 51(xxxvii) was not relevant, and based his conclusion entirely on ss 61 and 51(xxxix) (at 318–9 [158]).
[41] Ibid 306 [104], see also 315 [143] (Thomas JA) (holding that there is no duty to carry on State prosecutions); cf 294 [52] (McMurdo P) (holding that s 6(1)(m) is cast in mandatory terms, although s 17 is not).
[42] Ibid 307 [107], adapting remarks of Brennan J in R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535, 579-80 ('Duncan').
[43] Fukusato [2002] QCA 20; [2003] 1 Qd R 272, 318 [154], 319 [158].
[44] Ibid 308 [108] (Davies JA); 317–18 [154] (Thomas JA).
[45] Ibid 308 [110] (Davies JA); 318 [157] (Thomas JA).
[46] Ibid 308 [109].
[47] Ibid 308–9 [111]–[114], applying s 15A of the Acts Interpretation Act 1901 (Cth). See below, n 86.
[48] Fukusato [2002] QCA 20; [2003] 1 Qd R 272, 308 [110].
[49] Ibid 292–3 [47].
[50] Ibid 293 [48].
[51] Ibid 292–3 [47]–[48], 298 [66]–[67]. The High Court has noted an issue about the use of the term 'Crown' in this context: see Byrnes v The Queen [1999] HCA 38; (1999) 199 CLR 1, 19 [27] n 47 (Gaudron, McHugh, Gummow and Callinan JJ).
[52] In some situations the Commonwealth DPP brings prosecutions for offences against State laws on behalf of the State (see below, n 63). Here, s 560 of the Queensland Criminal Code provided that an indictment must be signed and presented to the court 'by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council'. Unlike other State DPP Acts, the Director of Public Prosecutions Act 1984 (Qld) does not make specific provision for Commonwealth DPP officers to be appointed as Queensland Crown Prosecutors (see Fukusato [2002] QCA 20; [2003] 1 Qd R 272, 284 [22] (McMurdo P)). There is a real question whether the substantive power to perform a State function (particularly a coercive function) could be conferred on a Commonwealth body by State executive action alone.
[53] Unless McMurdo P meant that officers of the Commonwealth DPP could only bring State prosecutions in their personal capacity (see below, n 134).
[54] Fukusato v Commonwealth Director of Public Prosecutions (High Court of Australia, 26 June 2002).
[55] See above, text accompanying n 39.
[56] Hughes (2000) 202 CLR 535, 554 [36].
[57] Initially, I thought that the joint judgment was assimilating the position of the Attorney-General with the position of the Commonwealth DPP (see Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 493). I did not consider the argument that the joint judgment was using 'Executive Government of the Commonwealth' in this passage to mean only Ministers and the Governor-General.
[58] See above, text accompanying nn 25 and 26.
[59] See, eg, Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 452 [42] (Gaudron, Gummow and Hayne JJ), quoting Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 ('Lange'), 561 (the Court): 'the conduct of the executive branch is not confined to Ministers and the public service [but] includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.'
[60] Section 67 provides that, until the Parliament otherwise provides, the appointment of 'all other' officers of the Commonwealth — ie other than Ministers of State appointed under s 64 — is vested in the Governor-General in Council.
[61] The Minister's role under s 64 is to 'administer' departments of State. The function of 'administering' connotes that the Minister will set directions and policies that will be implemented by subordinates (see Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71; (1977) 139 CLR 54, 87 (Murphy J)).
[62] [2002] HCA 37; (2002) 211 CLR 287 ('Macleod').
[63] Ibid 291–2 [4]–[6] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). ASIC is 'the Commonwealth' for these purposes (see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 ('Edensor Nominees')), even when it is performing a State function. On the other hand, when the Commonwealth DPP institutes a prosecution under State law on behalf of the State, the relevant party is the State (not the DPP) and s 75(iii) jurisdiction is not attracted.
[64] Macleod [2002] HCA 37; (2002) 211 CLR 287, 292 [7] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[65] See, eg, Re Cram; Ex parte New South Wales Colliery Proprietors Association [1987] HCA 28; (1987) 163 CLR 117, 128 (the Court); Hughes (2000) 202 CLR 535, 553 [31] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
[66] One possible difference (not expressly mentioned in Macleod) is that State functions might be conferred on Commonwealth officers in their personal capacity (see below, Part 3(B)(ii)); an option that of course is not available with a statutory authority.
[67] [1995] HCA 71; (1995) 184 CLR 188 ('Re Australian Education Union'), 232–3 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). On this argument, it would be immaterial whether the Commonwealth had approved the conferral of the State function, because the Commonwealth cannot 'waive' a true limitation on State power (see Hill, 'Revisiting Wakim and Hughes', above n 13, 209 (especially nn 39 and 42); cf the anti-discrimination prohibition discussed below, Part 3(A)(i)).
[68] Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 ('Melbourne Corporation').
[69] The fact that the Commonwealth executive cannot perform State functions unless authorised to do so by a Commonwealth law means that the Commonwealth would always have this control.
[70] According to one commentator, 'it has been deemed inadvisable [in the United States] that, except as to minor offices, persons should hold at the same time, both Federal and State appointments' (H E Renfree, The Executive Power of the Commonwealth of Australia (1984) 243 (emphasis added)).
[71] Hughes (2000) 202 CLR 535, 558 [46].
[72] Ibid 583 [119].
[73] See ibid 555 [39] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) (the scope to enact coercive laws under the executive power 'remains open to some debate'), 583 [119] (Kirby J) (it is 'highly doubtful' whether the executive power and the express incidental power would support a law authorising performance of a coercive function).
[74] [2001] QSC 270; (2001) 162 FLR 423 (Supreme Court of Queensland) ('Ellis').
[75] In 2002, the NCA was re-established as the Australian Crime Commission ('the ACC'), and the National Crime Authority Act 1984 (Cth) was re-named the Australian Crime Commission Act 2002 (Cth) ('the ACC Act'): see s 3 and items 2 and 35 of Schedule 1 to the Australian Crime Commission Establishment Act 2002 (Cth) ('the ACC Establishment Act').
[76] Section 14 was repealed when the NCA Act became the ACC Act: see s 2 and item 51 of Schedule 1 to the ACC Establishment Act.
[77] Although, following Hughes, the ACC Act now provides legislative consent for the exercise of State functions by the ACC (see s 55A, especially s 55A(1)). However, there is no obligation to perform a State function that is not connected to a federally relevant criminal activity (see s 55C).
[78] Ellis [2001] QSC 270; (2001) 162 FLR 423, 429 [19].
[79] Ibid 431 [26].
[80] Ibid 431 [27]–[28]. There is, however, a contrary argument that any investigation by the government (even non-coercive investigation) should always be authorised by legislation, as this investigation is qualitatively different from investigation by a private citizen (see, eg, George Winterton, Parliament, The Executive and the Governor-General: A Constitutional Analysis (1983) 121–2; see also Bivens v Six Unknown Federal Narcotics Agents, 403 US 388, 392–5 (1971) (trespass committed by federal agent is qualitatively different from trespass committed by private citizen)).
[81] Although the precise issue is the scope of the express incidental power contained in s 51(xxxix) of the Constitution, that question turns on the scope of the executive power, because the extent of the incidental power will be affected by the nature of the subject matter of the express grant of power in question (see, eg, Russell v Russell [1976] HCA 23; (1976) 134 CLR 495, 530 (Stephen J) (considering what measures are incidental to s 77(iii) of the Constitution)).
[82] See Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 ('Communist Party Case'), 184–9, 192 (Dixon J), 259–61 (Fullagar J). While Dixon J preferred to imply the power from the Constitution as a whole, rather than just s 61 read with s 51(xxxix) (at 187), other judges have been concerned to tie implied executive powers to those provisions, to negate the suggestion that there is a new or independent source of Commonwealth power (Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 103 (Wilson and Dawson JJ); see also 117 (Toohey J)).
[83] See Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 541–4 [186]–[197] (French J, with Beaumont J agreeing: 514 [95]); contra 500–1 [29] (Black CJ) (who doubted the existence of this non-statutory power).
[84] [1988] HCA 63; (1988) 166 CLR 79, 99 (Mason CJ, Deane and Gaudron JJ, with Wilson and Dawson JJ and Toohey J agreeing on this point: 101, 117), 112–13 (Brennan J) (although, in his view, the power to enact offences is 'necessarily confined').
[85] By analogy, Dr Evans criticises the majority in Ruddock v Vadarlis on the basis that 'there is no demonstrable need for [the power to expel non-citizens] to exist as an unregulated discretion held by the executive rather than as a power conferred on the executive by the Parliament under legislation enacted by democratic institutions under constitutional procedures' (Dr Simon Evans, 'The Rule of Law, Constitutionalism and the MV Tampa' (2002) 13 Public Law Review 94, 97).
[86] In Hughes, for example, the terms of the State function (not even the State provision conferring the function) provided a basis on which the operation of the generally-expressed Commonwealth provision could be read down (Hughes (2000) 202 CLR 535, 556–7 [43] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), 581–2 [114] (Kirby J)); see also Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 494–5). But see R v O'Halloran [2000] NSWCCA 528; (2000) 182 ALR 431, 442–4 [42]–[49] (Heydon JA, with Spigelman CJ and Mason P agreeing: 462 [121], 462 [122]).
[87] See Hill, 'Revisiting Wakim and Hughes', above n 13, 207–10.
[88] Hughes (2000) 202 CLR 535, 555 [39].
[89] See Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 495–7.
[90] Cf n 23 above (the substantive power to perform State functions may possibly derive from the Commonwealth provision).
[91] Although Gleeson CJ, Gaudron and Gummow JJ later stated that Wakim turned on 'questions of principle' about the nature of Australian federation (Edensor Nominees (2001) 204 CLR 559, 572 [12]).
[92] Implicit in this argument is the view that s 61 is the sole source of Commonwealth executive power (see Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd [1922] HCA 62; (1922) 31 CLR 421 ('The Wooltops Case'), 440 (Isaacs J) (s 61 describes, without defining, the executive power); see also 461 (Starke J)). Tying the executive power to s 61 does not, however, preclude the Commonwealth executive from having the so-called prerogative powers, such as the power to request extradition (Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477) or other non-statutory powers derived from the Commonwealth's capacity as a legal person, such as the power to contract (see, eg, Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 108 (Brennan J)).
[93] This view of s 51(xxxvii) and (xxxviii) explains the result in Duncan [1983] HCA 29; (1983) 158 CLR 535 (see especially 589 (Deane J)); but see Gould v Brown (1998) 193 CLR 346, 443 [184] (Gummow J). Section 51(xxxvii) and (xxxviii), of course, allow for the States to supplement the legislative power of the Commonwealth; here the question is whether the States can supplement Commonwealth executive power.
[94] (2000) 202 CLR 535, 554 [34].
[95] By contrast, Dennis Rose argues that this statement is best understood as a reference to political accountability, through the operation of responsible government (Rose, above n 29, 637–8). If, however, the constitutional system of responsible government does not prevent a State officer from performing a Commonwealth function (as argued in Part 4(A)(i) below), then it would seem to follow that responsible government does not contain a 'constitutional imperative' that would prevent a Commonwealth officer from performing a State function either.
[96] (1997) 190 CLR 410 ('Re Residential Tenancies Tribunal (NSW)'), 425–6 (Brennan CJ), 440 (Dawson, Toohey and Gaudron JJ).
[97] Ibid 454–5 (McHugh J), 472 (Gummow J), 505 (Kirby J) (criticising the distinction drawn by the plurality between (invalid) laws that affect the legal capacities of the Commonwealth and (valid) laws that affect the exercise of those capacities).
[98] See Hill, 'Revisiting Wakim and Hughes', above n 13, 207 n 23.
[99] See (1997) 190 CLR 410, 424–5 (Brennan CJ), 440–1 (Dawson, Toohey and Gaudron JJ) (the States have no legislative power to modify the Commonwealth's executive power, whereas the Commonwealth's express grants of legislative power can extend to modifying the executive capacities of a State).
[100] Particularly when the issue is the immunity of the Commonwealth Parliament or judiciary: cf Local Government Association of Queensland v Queensland [2001] QCA 517 (Unreported, McMurdo P, Davies and Williams JJA, 20 November 2001) ('LGAQ'), [48], where Davies JA appeared to equate Commonwealth immunity with whether the State law affected the Commonwealth's executive capacities. Consequently, he held that a Queensland law which vacated a person's Queensland local government office on that person nominating for election to the Commonwealth Parliament was not contrary to Commonwealth immunities.
In my view, the relevant question in LGAQ was whether the Queensland law undermined the Commonwealth Parliament as an institution (rather than its capacities). The effect of the Queensland law was to discourage persons from nominating for the Commonwealth Parliament, just as the effect of the (invalid) Commonwealth superannuation surcharge in Austin v Commonwealth (2003) 195 ALR 321 was said to discourage persons from accepting appointment as a State judge (at 333 [28] (Gleeson CJ), 385–6 [232] (McHugh J)).
[101] See especially Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31 and Queensland Electricity Commission v Commonwealth [1985] HCa 56; (1985) 159 CLR 192 ('Queensland Electricity Commission') see also Western Australia v Commonwealth (1995) 183 CLR 383 ('The Native Title Act Case'), 475–6 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188, 239–40 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) and Victoria v Commonwealth (1996) 187 CLR 416 ('The Industrial Relations Act Case'), 500–1 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ). These latter cases suggest that different treatment based on a 'relevant' difference does not amount to prohibited discrimination.
[102] (2003) 195 ALR 321 ('Austin'), 357 [124] (Gaudron, Gummow and Hayne JJ); see also 399 [281] (Kirby J, dissenting in the result); contra 383 [223] (McHugh J).
[103] See Graeme Hill, 'Austin v The Commonwealth: Discrimination and the Melbourne Corporation Doctrine' (2003) 14 Public Law Review 80, 84.
[104] See below, text accompanying n 109.
[105] Hill, 'Revisiting Wakim and Hughes', above n 13, 208–9.
[106] This step is contrary to the views of the plurality in Re Residential Tenancies Tribunal (NSW) (1997) 190 CLR 410, 440 (Dawson, Toohey and Gaudron JJ); see also 424–5 (Brennan CJ). However, Re Residential Tenancies Tribunal (NSW) is probably not the final word on Commonwealth immunity (see The Mining Act Case (1998) 196 CLR 392, 421 [78] (McHugh J); SGH Ltd v Federal Commissioner of Taxation [2002] HCA 18; (2002) 210 CLR 51 ('SGH Ltd'), 78 [52] (Gummow J)).
[107] This step at least is consistent with the plurality view in Re Residential Tenancies Tribunal (NSW) (see (1997) 190 CLR 410, 443 (Dawson, Toohey and Gaudron JJ)). Commonwealth immunities would extend beyond this anti-discrimination prohibition; for example, the States could not prevent the Commonwealth from functioning as a government either.
[108] See Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31, 83 (Dixon J). Indeed, Gleeson CJ has suggested that an implication similar to Melbourne Corporation would prevent a State from preventing another State from functioning as a government (Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 211 CLR 1 ('Mobil Oil'), 25–6 [15]).
[109] See Hill, 'Discrimination and the Melbourne Corporation Doctrine' above n 103, 83. As with State immunity, determining the scope of Commonwealth immunity 'inevitably turns on matters of evaluation and degree and of "constitutional facts" which are not readily established by objective methods in curial proceedings' (Austin (2003) 195 ALR 321, 357 [124] (Gaudron, Gummow and Hayne JJ)).
[110] See Melbourne Corporation [1947] HCA 26; (1947) 74 CLR 31, 84 (Dixon J): 'Whether the right to [choose which bank to deal with, denied to the States by the Commonwealth law] is of great or of small importance to the States is not a material matter for inquiry'; see also Queensland Electricity Commission [1985] HCa 56; (1985) 159 CLR 192, 208–9 (Gibbs CJ), 226 (Wilson J), 262 (Dawson J).
[111] Some statements by Dixon J in Melbourne Corporation suggest that the constitutional problem with discriminatory laws is that they have a prohibited purpose. For example, his Honour stated that a discriminatory Commonwealth tax 'is aimed at the States and is an attempt to use federal power to burden or, may be, to control State action' ((1947) [1947] HCA 26; 74 CLR 31, 81 (emphasis added)).
Conversely, State laws that impair the 'integrity or autonomy' of the Commonwealth have the effect of restricting the Commonwealth's exercise of their constitutional powers (although that effect may be assumed, rather than established by evidence: see Hill, 'Discrimination and the Melbourne Corporation Doctrine', above n 103, 83).
[112] As already noted, the Commonwealth and the States cannot 'waive' a true constitutional prohibition on the legislative powers of the other (see above, n 67). However, a Commonwealth provision 'authorising' the conferral of State functions on a member of the Commonwealth executive takes the State law outside the relevant prohibition. The necessary legislative power for the Commonwealth authorisation would derive from s 61 read with s 51(xxix) of the Constitution (see Hill, 'Revisiting Wakim and Hughes', above n 13, 209).
[113] (1997) 190 CLR 410, 507–9 (confining Commonwealth immunity to mirror image of Melbourne Corporation doctrine).
[114] [2002] QCA 20; [2003] 1 Qd R 272, 292 [46].
[115] See Hill, 'Revisiting Wakim and Hughes', above n 13, 217.
[116] Predominantly the Federal Court and State Supreme Courts, although the definition of 'Court' in s 58AA(1) of the former Corporations Law included the Family Court, and Territory Supreme Courts. Matters arising under the current Commonwealth Corporations Act can also be heard by both federal and State courts (see Part 9.6A). However, this involves the exercise of federal jurisdiction, conferred (in the case of State courts) under s 77(iii) of the Constitution.
[117] In the period from 1991 to 1999, the number of Corporations Law matters filed in the Federal Court annually ranged between 668 (1998–99) and 1946 (1995–96) (see Federal Court of Australia: Annual Report 1994–1995 (1995), 45 and Federal Court of Australia: Annual Report 1998–1999 (1999), 111).
[118] See Brian Opeskin, 'Allocating Jurisdiction in the Federal Judicial System' (1995) 6 Public Law Review 204, 212–3, 215.
[119] See, eg, State Authorities Superannuation Board v Commissioner of State Taxation (WA) [1996] HCA 32; (1996) 189 CLR 253, 271 (Brennan CJ, Dawson, Toohey and Gaudron JJ), 285–7 (McHugh and Gummow JJ). In Mobil Oil [2002] HCA 27; (2002) 211 CLR 1, the Court divided on the extent to which Victorian group proceedings legislation could make 'absent plaintiffs' bound by orders of the Supreme Court of Victoria (at 24–6 [13]–[17] (Gleeson CJ), 35–8 [52]–[61] (Gaudron, Gummow and Hayne JJ) (the only relevant territorial consideration is the Court's jurisdiction over the defendant); cf 63–5 [138]–[143] (Kirby J), 82–3 [190]–[191] (Callinan J) (there were some territorial limits)). It might be possible, however, for a State body to derive authority to perform functions in another State from legislation enacted by that other State (ie, a State–State cooperative legislative scheme).
[120] See above, text accompanying n 48.
[121] This argument is especially strong with the High Court, which has the constitutional role of mediating disputes between the Commonwealth and the States (see R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 267–8 (Dixon CJ, McTiernan, Fullagar and Kitto JJ)). However, the cross-vesting schemes did not affect the jurisdiction of the High Court.
The existence of other federal courts, and the extent of their jurisdiction, is already controlled by the Commonwealth Parliament under ss 71 and 77(i) of the Constitution. Accordingly, it is not clear that the independence of those other federal courts was compromised if the Commonwealth Parliament could determine whether those courts can exercise State judicial functions as well.
[122] Hill, 'Revisiting Wakim and Hughes', above n 13, 224.
[123] See above, text accompanying n 44.
[124] Wakim (1999) 198 CLR 511, 585–6 [140]–[141] (Gummow and Hayne JJ, with Gleeson CJ and Gaudron J agreeing: 540 [3], 546 [26]). The 'common substratum of facts' test derives from Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, 512 (Mason J) ('Philip Morris').
[125] See, eg, the discussion of accrued jurisdiction in Fencott v Muller (1983) 152 CLR 570, 602–9 (Mason, Murphy, Brennan and Deane JJ); Lee Aitken, 'The Meaning of "Matter": A Matter of Meaning — Some Problems of Accrued Jurisdiction' [1988] MonashULawRw 6; (1988) 14 Monash University Law Review 158, 158–60.
[126] For example, the word 'matter' is also used to describe several heads of Commonwealth legislative power, such as s 51(xxxvi), (xxxvii) and (xxxix) of the Constitution (David Bennett QC and James Stellios, 'Oh Dear, What Can the Matter Be?', 21-2 (unpublished paper, copy on file with author)).
[127] The minority in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 went further and held that, not only could a federal court be given jurisdiction to determine the whole of a dispute between parties, but it must have authority to determine the whole dispute. Their reasoning explicitly relies on the requirement that courts make 'final' decisions, and the importance of preventing fragmentation of the legal process: 555 [119], 557–8 [126]–[127] (Gaudron J), 572 [170]–[171], 574–5 [176], [178] (Gummow and Hayne JJ).
[128] In particular, in considering whether the requirement for a 'matter' imports certain aspects of standing: see Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 ('Truth About Motorways'), 610 [42] (Gaudron J); Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, 405 [61] (Gaudron and Gummow JJ); see also 459 [243] (Hayne J).
[129] See Philip Morris (1981) 148 CLR 457, 513–14 (Mason J); see also United Mine Workers of America v Gibbs, [1966] USSC 62; 383 US 715, 726 (1966) (justification for so-called pendent jurisdiction 'lies in considerations of judicial economy, convenience and fairness to litigants'). Viewing accrued jurisdiction as a pragmatic doctrine would simplify discussion of issues such as whether accrued jurisdiction is 'discretionary', and the time at which accrued jurisdiction is attracted by a federal defence (ie whether federal jurisdiction is taken to exist from the commencement of the proceedings).
[130] See above, text accompanying n 45.
[131] See, eg, Attorney-General (Vic) v Commonwealth [1935] HCA 31; (1935) 52 CLR 533 ('The Clothing Factory Case'); Re K L Tractors Ltd [1961] HCA 8; (1961) 106 CLR 318, 334 (Dixon CJ, McTiernan and Kitto JJ), as explained in Leslie Zines, The High Court and the Constitution (4th ed, 1997) 261–2.
[132] [1977] HCA 55; (1977) 139 CLR 117, 154–5; see also Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 493–4.
[133] In this sense, the position of a Commonwealth officer may be different from the position of a Commonwealth statutory authority (see above n 66, discussing Macleod).
[134] Hughes (2000) 202 CLR 535, 553 [31]. It may also be what McMurdo P had in mind in stating that officers of the Commonwealth DPP could only prosecute State offences in the name of the State, and not the Commonwealth (see above, text accompanying n 51).
[135] [1987] HCA 28; (1987) 163 CLR 117, 128. The consequence in Cram of a Commonwealth officer performing functions in a different capacity was that the officer would fall outside s 75(v) (although the officer would presumably be subject to State judicial review). There is a real question, however, whether a Commonwealth officer performing State functions in a personal capacity would also fall outside s 75(v).
[136] See s 30 of the Coal Industry Act 1946 (Cth) and s 36 of the Coal Industry Act 1946 (NSW) (Coal Industry Tribunal) and s 37 of the Commonwealth Act and s 43 of the NSW Act (Local Coal Authority).
[137] A Chapter III court may only perform non-judicial functions that are incidental to the exercise of federal judicial power: R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 ('Boilermakers'). The non-judicial functions that federal judges may perform in a personal capacity include issuing telecommunication interception warrants (see, eg, Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348).
[138] Even in the Ch III context, the usefulness of 'public confidence' as a criterion has been questioned: see Elizabeth Handsley, 'Public Confidence in the Judiciary: A Red Herring for the Separation of Judicial Power' [1998] SydLawRw 9; (1998) 20 Sydney Law Review 183; see also Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173, 197 [37] (Brennan CJ, with Hayne J agreeing on this point: 275–6 [242]).
[139] See the first type of incompatibility identified in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 14 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ) ('Wilson').
[140] See the test of s 109 inconsistency posed in Telstra v Worthing [1999] HCA 12; (1999) 197 CLR 61, 76 [28] (the Court), quoting Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618, 630 (Dixon J).
[141] See, eg, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, where all judges held that an accused did not have a common law right to be represented at public expense. See also Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337, 340–1 [6]–[7] (Gleeson CJ) decisions on allocation of revenue cannot be reconsidered by courts in an assessment of whether the government's behaviour was reasonable for the purposes of a negligence claim.
[142] See above, text accompanying n 42 (the approach of Brennan J in Duncan and Davies JA in Fukusato).
[143] Admittedly, the Commonwealth provision authorising the performance of State functions and the Commonwealth provisions setting out the body's Commonwealth functions may require some sort of 'reading together' (as to which, see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381–382 [69]–[71] (McHugh, Gummow, Kirby and Hayne JJ); Re The Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 200 ALR 39, 46–7 [28]–[29] (the Court)).
[144] See Cram [1987] HCA 28; (1987) 163 CLR 117, 128 (the Court).
[145] A Commonwealth law permitting Commonwealth funds to be spent on performing State functions would be supported by s 81 of the Constitution (see Hill, 'Revisiting Wakim and Hughes', above n 13, 210).
[146] For example, Commonwealth public servants employed under the Public Service Act 1999 (Cth) are engaged by the Agency Head 'for the purposes of the Agency' (s 22(1)). Moreover, without an express authorisation, there may be some doubt whether the State function was 'conducive to or consistent with' the officer's Commonwealth functions (see above, text accompanying nn 142–143).
[147] The common law doctrine of incompatibility vacates an office to which a person is appointed if the person accepts another office and the duties of the two offices cannot be faithfully and impartially discharged by the same person (see, eg, Wilson [1996] HCA 18; (1996) 189 CLR 1, 15 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), and the authorities cited). This common law doctrine can be overridden by legislation, unlike the constitutional notion of incompatibility developed in the Ch III context.
[148] By analogy, there is a presumption that any new jurisdiction conferred on an established court is conferred on the court 'exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected' (Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW [1956] HCA 22; (1956) 94 CLR 554, 559 (the Court)).
[149] Indeed, without an express statement of intention, the courts might not imply an intention that State functions are exercised in a personal capacity unless the officer is required to perform the Commonwealth and State functions in isolation from each other (see Cram [1987] HCA 28; (1987) 163 CLR 117, 128–9).
[150] The validity of these provisions was upheld in Hughes, although the Court was critical of the drafting (see Hill, 'Hughes and the Future of Co-operative Schemes', above n 17, 480–1).
[151] Which provides that the Commonwealth Parliament may invest any court of a State with federal jurisdiction with respect to the matters set out in ss 75 and 76 of the Constitution. In fact, the absence of a s 77(iii) equivalent is a reason not to apply Wakim–style reasoning to Chapter II of the Constitution (see below, text accompanying nn 243–245).
[152] See, eg, James v Commonwealth [1928] HCA 45; (1928) 41 CLR 442, 459–60 (Higgins J), 463–4 (Starke J) (Commonwealth regulations could confer authority on State body to grant licences under Commonwealth law); Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353, 364–5 (the Court) (Commonwealth legislation can authorise State magistrates to indorse warrants for apprehension in the State of a person from another State); Conroy v Carter [1968] HCA 39; (1968) 118 CLR 90, 101–2 (Taylor J, with Barwick CJ, McTiernan and Menzies JJ agreeing on this point: 96, 96, 104, and Kitto and Windeyer JJ agreeing generally: 96, 104) (Commonwealth legislation could authorise making arrangements for State bodies to collect Commonwealth tax as agents for the Commonwealth); R v Humby; Ex parte Rooney (1973) 129 CLR 231, 239 (McTiernan J), 240 (Gibbs J), 245–6 (Stephen J, with Mason J agreeing on this point: 251) (Commonwealth legislation could provide for maintenance payments to be made to a State body for the benefit of a party to a marriage).
[153] [1955] HCA 53; (1955) 92 CLR 353, 365 (the Court).
[154] Professor Winterton argues that the powers were delegated (Commonwealth) legislative power rather than Commonwealth executive power (Winterton, above n 80, 107), while Professor Richardson argues that the powers were State executive powers rather than Commonwealth executive powers (J E Richardson, 'The Executive Power of the Commonwealth' in Leslie Zines (ed), Commentaries on the Australian Constitution (1977) 50, 85). The problem with the first explanation is that indorsing warrants appears to be a clear example of executive, rather than legislative, power. However, the second explanation seems to be contrary to the further statement that magistrates are not acting as agents of the executive government of the State (Aston v Irvine [1955] HCA 53; (1955) 92 CLR 353, 364), as noted by Professor Winterton (above n 80, 290 n 100).
[155] [2002] HCA 37; (2002) 211 CLR 287, 292 [7] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also The Wooltops Case [1922] HCA 62; (1922) 31 CLR 421, 440 (Isaacs J) ('Executive action in relation to a Commonwealth law is clearly outside State jurisdiction and clearly within the field of Commonwealth jurisdiction. If done at all, it is assumed that the Commonwealth Government should do it').
[156] See, eg, Lujan v Defenders of Wildlife, [1992] USSC 78; 504 US 555 (1992), 577 (Scalia J delivering the opinion of the Court); Federal Election Commission v Akins, [1998] USSC 56; 524 US 11 (1998), 36–7 (Scalia J, dissenting); Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, [2000] USSC 3; 528 US 167 (2000), 209 (Scalia J, dissenting).
[157] Cases such as Lujan v Defenders of Wildlife were directly concerned with Article III of the United States Constitution, which concerns federal courts, and the need for a 'case' or 'controversy', rather than the executive power as such. Moreover, the High Court has distinguished these American authorities on standing in part because of the different role of the executive government in the American and Australian systems of government (Truth About Motorways (2000) 200 CLR 591, 603 [21] (Gleeson CJ and McHugh J), 635 [115]–[116] (Gummow J), 657 [173] (Kirby J)).
[158] See Richardson, above n 154, 85. See also above n 95 (Dennis Rose arguing that responsible government would prevent a State law from imposing a duty on Commonwealth officers). In NEAT Domestic Trading Pty Ltd v AWB Limited [2003] HCA 35; (2003) 198 ALR 179 ('NEAT Domestic'), 202 [96], Kirby J stated in dissent that, '[i]n so far as decisions [of a private body] derive their necessity or effectiveness ... from federal legislation, they may involve the exercise of public power [and] a minister must be accountable to the Parliament in respect of such an exercise [of public power]' (emphasis added).
[159] [1998] HCA 71; (1998) 195 CLR 424, 451 [41]. However, as Egan v Willis concerned responsible government at the State level, it was not necessary to determine whether that result was consistent with Ch II of the Commonwealth Constitution.
[160] See, eg, Lange [1997] HCA 25; (1997) 189 CLR 520, 558–9, 561 (the Court).
[161] Winterton, above n 80, 104. See also Geoffrey Lindell, 'Book Review: Parliament, The Executive and The Governor-General' [1983] UNSWLawJl 22; (1983) 6 University of New South Wales Law Journal 261, 263 and Geoffrey Lindell, 'Responsible Government' in Paul Finn (ed), Essays on Law and Government, Volume 1: Principles and Values (1995) 75, 112 (expressing agreement with Professor Winterton).
[162] Lindell, 'Responsible Government', above n 161, 84–7.
[164] Ibid 460 [212].
[165] Ibid 402 [14]; see also 460 [211] (Gummow and Hayne JJ). Similarly, in Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 451 [41], Gaudron, Gummow and Hayne JJ stated that '[i]t should not be assumed that the characteristics of a system of responsible government are fixed or that the principles of ministerial responsibility which developed in New South Wales after 1855 necessarily reflected closely those accepted at Westminster'.
[166] For example, State judges exercising federal jurisdiction are not 'officers of the Commonwealth' (The Tramways Case (No 1) [1914] HCA 15; (1914) 18 CLR 54, 79 (Isaacs J); R v Murray and Cormie; Ex parte Commonwealth [1916] HCA 58; (1916) 22 CLR 437, 452 (Isaacs J), 464 (Higgins J); see also Trimbole v Dugan [1984] FCA 323; (1984) 3 FCR 324, 328 (Woodward J) (Commonwealth authorisation to perform function under Commonwealth law does not convert State magistrate into an officer of the Commonwealth). Conversely, Commonwealth officers who are performing State functions under a cooperative scheme will usually remain within the reach of s 75(v) (see Cram [1987] HCA 28; (1987) 163 CLR 117, 128–31 (the Court); but see above n 149).
[167] By contrast, judicial review under the AD(JR) Act looks to the nature of the power exercised (the decision must be administrative in nature, and made 'under' an enactment). Common law judicial review also looks to the nature of a power, as judicial review is available if (1) the decision-maker is empowered by 'public law' (broadly, statute or the prerogative) (see eg Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 409 (Lord Diplock)) or (2) the decision-maker, although not empowered by public law, is exercising 'public duties' (ie regulatory powers) (see eg R v Panel on Takeovers and Mergers; Ex parte Datafin Plc [1986] EWCA Civ 8; [1987] QB 815, 835 (Donaldson MR), 847 (Lloyd LJ)). This aspect of Datafin has been criticised, on the basis that there cannot be ultra vires if there is no 'vires' to be 'ultra' (H W R Wade, 'Beyond the Law: A British Innovation in Judicial Review' (1991) 43 Administrative Law Review 559, 562–3, 570).
[168] (2003) 195 ALR 24 ('Plaintiff S157/2002'), 45 [75]–[76], 47 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); cf 68–9 [160] (Callinan J) (limiting s 75(v) to 'manifest' errors of jurisdiction).
[169] The Court held that s 474 of the Migration Act 1958 (Cth) did not attempt to change the circumstances which constituted jurisdictional error (ibid 43 [67]–[68] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (the general words of s 474 did not purport impliedly to repeal all statutory limitations or restraints on the exercise of power); see also 35 [34]–[35] (Gleeson CJ), 69 [162] (Callinan J)). Therefore Plaintiff S157/2002 does not determine the position if the Commonwealth were to enact a law that, on its proper construction, provided that an error that the common law would classify as 'jurisdictional' did not undermine the validity of a decision.
[170] See, eg, Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, 178 (Mason CJ), 207 (Deane and Gaudron JJ), 219 (Dawson J); Re Refugee Review Tribunal v Aala [2000] HCA 57; (2000) 204 CLR 82, 142 [166] (Hayne J).
[171] As argued by Dr Jeremy Kirk, 'Administrative Justice and the Australian Constitution' in Robin Creyke and John McMillan (eds), Administrative Justice — The Core and The Fringe (2000) 78, 83–98, especially 93–8.
[172] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 (the Court); see also s 5(1)(d) of the AD(JR) Act (which refers to a decision that 'was not authorized by the enactment in pursuance of which it was purported to be made').
[173] At common law, a jurisdictional error includes identifying a wrong issue, asking the wrong question, ignoring relevant material, and relying on irrelevant material in a way that affects the exercise of power (see, eg, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 351 [82] (McHugh, Gummow and Hayne JJ, with Gleeson CJ agreeing: 329 [1])).
[174] If nothing else, because all administrative law obligations can be framed as implied limits on the statutory power conferred: see, eg, Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 610–11 (Brennan J); Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 100–101 [39]–[40] (Gaudron and Gummow JJ) (discussing natural justice).
[175] See above n 170 (s 75(v) guarantees the jurisdiction to grant administrative law remedies, but not the grounds on which they are granted).
[176] Which relevantly provides that the Constitution 'shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth'. These matters may well arise under the Constitution or involve its interpretation within s 76(i) of the Constitution as well. However, this source of jurisdiction is not constitutionally guaranteed, as s 76 jurisdiction depends on Commonwealth legislation to make it effective (in the case of s 76(i), s 30(a) of the Judiciary Act 1903 (Cth)).
[177] 5 US [1803] USSC 16; (1 Cranch) 137 (1803); see also Communist Party Case [1951] HCA 5; (1951) 83 CLR 1.
[178] In British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 200 ALR 403, the High Court held that there was a federal right to proceed against a State in constitutional cases that overrode notice requirements contained in State crown suits legislation. There was disagreement, however, over whether this federal right to proceed derived from Commonwealth legislation conferring jurisdiction in constitutional cases (419–20 [60]–[62] (McHugh, Gummow and Hayne JJ)) or derived from the Constitution itself (409 [15]–[16] (Gleeson CJ), 442–3 [155] (Kirby J)). By way of comparison, in Commonwealth v Mewett (1997) 191 CLR 471, a majority of the Court implied a right to proceed against the Commonwealth directly from the Constitution, particularly s 75(iii) (545-52 (Gummow and Kirby JJ, with Brennan CJ agreeing generally and Gaudron J agreeing on this point: 491, 531)).
[179] What I have termed statutory ultra vires: see above, text accompanying n 172.
[180] In the narrow sense that government officials must have (constitutionally valid) legal authority for their actions. Dr Kirk rejects the argument that the rule of law can be used as a basis for 'constitutionalise' the administrative law grounds of review under s 75(v) of the Constitution (Kirk, above n 171, 96–8). Even so, his argument that s 75(v) requires judicial review in cases of constitutional or statutory ultra vires seems to depend on the rule of law — or at least the narrow conception just identified — being given constitutional effect.
[181] Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 193 (Dixon J). In Plaintiff S157/2002, the joint judgment quoted Dixon J, and stated further that s 75(v) 'is a means of assuring to all people affected that officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them' ((2003) 195 ALR 24, 52 [103]–[104]).
[182] In particular, so-called 'Hickman' clauses do not protect errors unless the decision (1) was a bona fide attempt to exercise statutory powers, (2) relates to the subject-matter of the legislation and (3) is reasonably capable of reference to the statutory power conferred (R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 615 (Dixon J)). Each of these provisos ensures that privative clauses do not protect what I have called 'statutory ultra vires'. While the construction of 'Hickman' clauses is analytically distinct from the constitutional requirements for judicial review, some judges have linked the two (Deputy Commissioner for Taxation v Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 211 (Deane and Gaudron JJ); Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602, 633 (Gaudron and Gummow JJ); cf Leslie Zines, 'Constitutional aspects of judicial review of administrative action' (1998) 1 Constitutional Law & Policy Review 50, especially at 53).
[183] [2000] HCA 57; (2000) 204 CLR 82, 101 [42] (with whom Hayne J agreed: 144 [172]).
[184] See, eg, Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, 573 [91] (Weinberg J); Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296; (2001) 113 FCR 230, 257 [96] (Finn J); McGowan v Migration Agents Registration Authority [2003] FCA 482 (Unreported, Branson J, 20 May 2003), [26]. The contrary view, however, is that the Commonwealth should not 'be competent to remove its agencies from the reach of s 75(v) by the simple expedient of corporatising them' (Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 28).
[185] A Commonwealth statutory authority would almost certainly be 'the Commonwealth' for the purposes of s 75(iii) (see, eg, Edensor Nominees (2001) 204 CLR 559, holding that ASIC is the Commonwealth). However, often a company would not be (see SGH Ltd [2002] HCA 18; (2002) 210 CLR 51, holding that SGH Ltd was not 'the State' for the purposes of s 114 of the Constitution, even though Queensland exerted a high degree of control over the company).
[186] (2003) 195 ALR 24, 46 [80] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[187] See, by analogy, R v Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15, 25–6 (Gibbs J, with Barwick CJ, Stephen, and Mason JJ agreeing: 18, 29, 29), 32–3 (Aickin J) (once the High Court has jurisdiction under s 75(v), it has power to grant certiorari as an ancillary remedy). See also, by analogy, Commonwealth v Mewett (1997) 191 CLR 471, 550–1 (Gummow and Kirby JJ); Blunden v The Commonwealth [2003] HCA 73 (Unreported, Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 10 December 2003), [43] (Gleeson CJ, Gummow, Hayne, and Heydon JJ) (s 75(iii) jurisdiction cannot be defeated by Commonwealth immunity of suit).
[188] See L J W Aitken, 'The High Court's Power to Grant Certiorari — the Unresolved Question' (1986) 16 Federal Law Review 370, 377–8. See also, by analogy, Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 529 [36] (Gleeson CJ and McHugh J) (a 'matter cannot be defined without reference to the remedy). Currently, however, the Court has statutory power to grant administrative law remedies in the exercise of s 75(iii) jurisdiction (see ss 31–33 of the Judiciary Act 1903 (Cth)).
[189] Particularly given the substantial overlap between s 75(iii) and s 75(v) (see particularly Deputy Commissioner for Taxation v Richard Walter [1995] HCA 23; (1995) 183 CLR 168, 204–5 (Deane and Gaudron JJ), also 179 (Mason J), 221 (Dawson J); see also Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22, 40–2 (Mason, Wilson, Brennan, Deane and Dawson JJ)).
[190] See Plaintiff S157/2002 (2003) 195 ALR 24, 46 [80] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (s 75(v) guarantees the availability of an injunction against a Commonwealth officer for fraud etc).
[191] If a Commonwealth Act confers the decision-making function on a statutory authority, it may not be permissible to bring an action against an officer of the statutory authority (see, eg, Vietnam Veterans' Affairs Association v Cohen [1996] FCA 981; (1996) 70 FCR 419, 432–3 (Tamberlin J) (the purported action against the officer was a 'colourable' attempt to bring the action within the Federal Court's jurisdiction)). But see below, n 195 (pendent party jurisdiction).
[192] In Plaintiff S157/2002, the joint judgment referred not only to s 75(v), but also to s 75(iii) (which confers original jurisdiction on the High Court in matters in which the Commonwealth is a party: (2003) 195 ALR 24, 45 [73], 46–7 [80]), s 76(i) (which enables the Commonwealth to grant original jurisdiction on the High Court in matters arising under the Constitution or involving its interpretation: 47 [80]), the principle that a non-judicial body cannot conclusively determine the limits of its jurisdiction (45 [73], 50 [98]; see also 27 [9] (Gleeson CJ)), and even the requirement that legislation determine 'the content of a law as a rule of conduct or a declaration as to power, right or duty' (51 [102], quoting Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58, 82 (Latham CJ)). These additional factors would be relevant to State officers performing Commonwealth functions (although, with s 75(iii), some ingenuity would be needed with the phrase 'a person ... being sued on behalf of the Commonwealth').
[193] In other words, on this view s 75(v) merely makes clear in relation to Commonwealth officers what could be implied from the Constitution in any event (that decisions made ultra vires on constitutional or statutory grounds must be reviewable in the High Court).
[194] As contended by Aronson and Dyer, above n 184, 28 (contrary to the authorities cited above nn 166 and 184). In NEAT Domestic [2003] HCA 35; (2003) 198 ALR 179, 211 [133], Kirby J stated in dissent that '[i]n so far as private corporations are entrusted under a statute with public functions affecting others, they are thereby rendered liable ... , depending upon the terms of the legislation, quite possibly to the writs provided by the Constitution'.
[195] Moreover, if a person who is a Commonwealth officer could be properly joined as a second respondent (say, the Minister administering the Commonwealth Act), the fact that the first respondent was not a Commonwealth officer would not seem to deprive the High Court of jurisdiction under s 75(v) of the Constitution (see Saitta Pty Ltd v Commonwealth [2000] FCA 1546; (2000) 106 FCR 554, 573 [91] (Weinberg J), discussing the equivalent jurisdiction conferred by s 39B(1) of the Judiciary Act). This is what the Americans call 'pendent party' jurisdiction (as distinct from 'pendent claim' jurisdiction): see Finley v United States, [1989] USSC 96; 490 US 545 (1989); see also Wakim (1999) 198 CLR 511, 586–7 [144] (Gummow and Hayne JJ). However, the action against a Commonwealth officer must not be a 'colourable' attempt to attract jurisdiction (see above, n 191).
[196] Winterton, above n 80, 67.
[197] See the definition of 'decision to which this Act applies' in s 3(1) of the AD(JR) Act. There is no necessary difficulty with action by a State officer or a private body satisfying the other preconditions of this definition (a 'decision' of 'administrative character').
[198] The Commonwealth can limit the scope of judicial review, and may in some situations exclude judicial review altogether (see below, paragraph containing nn 206–207). Conversely, the Commonwealth may extend federal administrative law obligations to apply even when the decision-maker is not exercising Commonwealth executive power. For example, the Commonwealth can impose administrative law obligations on Commonwealth officers performing functions under State legislation (see para (ca) of the definition of 'enactment' in s 3, and sch 3 of the ADJR Act).
[199] Of course, s 75(v) of the Constitution (unlike the AD(JR) Act) applies to the exercise of Commonwealth judicial power as well as Commonwealth executive power. Moreover, while the decisions of private clubs and associations may sometimes be subject to the requirements of natural justice, this type of 'judicial review' does not mean that those clubs or associations are exercising executive power. Rather, natural justice comes to operate on these clubs or associations by the rules of the body in question being construed (subject to contrary intention) on the basis that fair procedures are intended (McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, 785 [97] (Campbell J) ('McClelland'); see generally Forbes v New South Wales Trotting Club [1979] HCA 27; (1979) 143 CLR 242). That difference is reflected in the remedies available: instead of the prerogative writs, a plaintiff would obtain a declaration that the action was wrongful and an injunction against enforcing the decision (McClelland [2002] NSWSC 470; (2002) 191 ALR 759, 780 [82]).
[200] For example, the Attorney-General's capacity to make an extradition request derives from s 61 of the Constitution, rather than s 40 of the Extradition Act 1988 (Cth) (which provides that an extradition request by Australia 'shall only be made by or with the authority of the Attorney-General'): Oates v Attorney-General (Cth) [2003] HCA 21; (2003) 197 ALR 105, 114 [39] (the Court). Although a Minister also has various legal capacities as a natural person, a reference to 'the Minister' would ordinarily be taken as the Minister in his or her official capacity (cf above n 148).
[201] [1984] HCA 49; (1984) 155 CLR 234 ('Glasson').
[202] [2003] HCA 35; (2003) 198 ALR 179 ('NEAT Domestic').
[203] For example, sometimes Commonwealth legislation is construed as impliedly conferring power on a decision-maker to make a decision, in order that the decision be made 'under' the Act and thus subject to review under the AD(JR) Act (see below, n 213). Indeed, if judicial review is constitutionally required on the grounds of constitutional or statutory ultra vires (see above, text accompanying nn 176–182), federal judicial review would be constitutionally required whenever Commonwealth legislation is the source of power.
[204] Cf NEAT Domestic [2003] HCA 35; (2003) 198 ALR 179, 195 [63] (McHugh, Hayne and Callinan JJ) (judicial review obligations under the AD(JR) Act could not be sensibly accommodated with the decision-maker's other obligations under company law). In the particular situation considered in NEAT Domestic, McHugh, Hayne and Callinan JJ discounted the fact that the Commonwealth Act gave legal effect to a private company's decision (ibid 193 [54]). However, I do not think their Honours meant to suggest that a decision is never be made 'under' an enactment if Commonwealth legislation gives legal effect to a decision without conferring power to make the decision.
[205] If a decision is made by a Commonwealth officer, judicial review is guaranteed by s 75(v) of the Constitution to some extent (see above, text accompanying nn 171–175). It may even be that some form of judicial review is guaranteed if a Commonwealth Act confers power on a decision-maker to make a decision (see above, text accompanying nn 176–182).
[206] However administrative law obligations are viewed, they can be excluded by (valid) legislation, either expressly or by necessary implication. If administrative law obligations are regarded as implied statutory limitations on the functions conferred (see above, n 174) then the Act might not create those obligations. If, however, administrative law obligations are seen a free-standing common law obligation, these obligations can be excluded by (valid) legislation, either expressly or by necessary implication.
[207] In my view, this aspect of the joint judgment in NEAT Domestic asks whether the Commonwealth Parliament intended to exclude federal judicial review. The Commonwealth would not be taken to have intended to exclude judicial review if that result would be unconstitutional (cf Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2001) 202 CLR 629, 644 [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ)).
[208] See above, n 181. Brennan J in particular drew an explicit connection between the courts' role in ensuring that legislation is constitutionally valid and their role in ensuring that members of the executive do not exceed their statutory authority (see, eg, Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 (the duty to pronounce on 'the validity of executive action when challenged on the ground that it exceeds constitutional power ... extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law')).
[209] The 'factum' metaphor is used in the context of the constitutionally-required separation of judicial power, with some cases holding that Commonwealth legislation which uses the decision of an administrative body as a 'factum' for creating rights and obligations does not confer judicial power on the body (see, eg, Rola Co (Australia) Pty Ltd v The Commonwealth [1944] HCA 17; (1944) 69 CLR 185).
[210] In NEAT Domestic [2003] HCA 35; (2003) 198 ALR 179, McHugh, Hayne and Callinan JJ held that s 57(3B) of the Wheat Marketing Act 1989 (Cth) could attach legal consequences to a decision of a private company without the company's decisions being made 'under an enactment' for the purposes of the AD(JR) Act. Even Kirby J, who dissented on this point, appeared to accept the possibility that Commonwealth legislation might use a private body's decision as a 'factum', by contrasting the position in that case with a hypothetical Commonwealth Act that referred to the 'severable conduct of a private corporation' (at 209 [125]).
[211] [1984] HCA 49; (1984) 155 CLR 234, 241 (the Court) ('When neither the Commonwealth Act nor the scheme [formulated by the Commonwealth Minister] is the source of the power to appoint the decision-maker, or the source of his power to make a decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment' (emphasis added)).
[212] A decision by a Commonwealth officer is usually reviewable in federal courts under s 75(v) of the Constitution, unless perhaps the officer is performing the State functions 'in some different capacity' (see above, nn 135, 149 and 166).
[213] For example, in Minister for Immigration and Ethnic Affairs v Mayer, Mason CJ, Deane and Dawson JJ held that s 6A(1)(c) of the Migration Act 1958 (Cth) impliedly conferred power on the Minister to determine whether an applicant for an entry permit had the status of a refugee ((1985) [1985] HCA 70; 157 CLR 290, 301). They based that conclusion on the fact that the contrary interpretation would mean (1) the Minister would not be under any obligation even to consider whether to make a determination, (2) the effectiveness of a decision would depend on whether it complied with the statutory requirement to be in writing, and (3) the statutory provision could be deprived of any content by a mere administrative decision discontinuing the current arrangements, or allocating the decision-making function to someone other than the Minister.
[214] For example, as part of the joint Commonwealth-State investigation considered in Ellis, members of the Australian Federal Police ('AFP') were sworn in as special constables in the Queensland Police Service ('QPS'), members of the QPS were sworn in as special members in the AFP, and both AFP and QPS members were appointed to the staff of the then National Crime Authority, a body established by Commonwealth legislation ((2001) [2001] QSC 270; 162 FLR 423, 425–6 [4]–[5]). Similarly, ss 6(1)(m) and 17 of the DPP Act permit the Commonwealth DPP and staff to hold appointments under State law.
[215] The rule of law is subject to federalism, in the sense that the Commonwealth Constitution does not contain any requirement for judicial review to be available at the State level (see below, n 236). Similarly, justiciability doctrines recognise that, in some situations, the rule of law — in the sense of judicial supervision of government action — gives way to other interests, such as the need for the executive government to be able to conduct relations with other countries effectively (see Geoffrey Lindell, 'Judicial Review of International Affairs' in Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (1997) 160, 188). The formal analysis is that non-justiciable issues do not give rise to 'matters' (Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; (2003) 197 ALR 461, 476–7 [64]–[68] (Black CJ and Hill J)).
[216] See above, text accompanying nn 67–68.
[217] See above, Part 3(A)(i).
[218] (1997) 190 CLR 413, 440 (Dawson, Toohey and Gaudron JJ), and see 425 (Brennan CJ).
[219] The weight of authority suggests that the Commonwealth's executive power extends only as far as its legislative power, including implied legislative powers: see, eg, Duncan [1983] HCA 29; (1983) 158 CLR 535, 560 (Mason J) (scope of Commonwealth executive power is ascertained from the distribution of legislative powers); Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491, 539 [180] (French J), and the authorities cited; see also Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164, 169 (Barwick CJ, with McTiernan and Stephen JJ agreeing generally: 172, and Jacobs J agreeing on this point: 174).
[220] The States also have a number of inherent powers deriving from their status as governments, but it is unlikely that these powers would be engaged in a Commonwealth–State cooperative legislative scheme.
[221] For example, the prosecution of most offences in Commonwealth places is undertaken by State DPPs, because the Commonwealth Places (Application of Laws) Act 1970 (Cth) picks up and applies the criminal law of the surrounding State. The validity of that arrangement was confirmed in R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354.
[222] It is doubtful, in the light of Melbourne Corporation, whether the Commonwealth could impose special obligations on the State executive unilaterally. There is also an issue whether any State approval would need to be contained in legislation, or whether executive approval is sufficient, given that s 109 of the Constitution is not relevant in this situation (see Hill, 'Revisiting Wakim and Hughes', above n 13, 207 n 27).
[223] Cf above, text accompanying n 80 (Commonwealth law can confer authority on the ACC to undertake non-coercive investigation of possible breaches of State law). The Commonwealth Minister may make an arrangement with the appropriate State Minister for the ACC to receive information or intelligence relating to relevant criminal activities from the State or State authorities (see s 21 of the ACC Act).
[224] But see below, paragraph containing nn 228–231 (if the Commonwealth Act gives legal effect to a decision by a State officer who holds a dual Commonwealth appointment, the Commonwealth Act may be construed as impliedly conferring legal power on the officer to make the decision).
[225] Consequently, the Commonwealth argued, a decision of a State actuary was not made 'under' the Commonwealth Act for the purposes of the AD(JR) Act (cf above, Part 4(B)(i)). The Commonwealth left open the possibility that judicial review of the State actuary's calculations might be available under State legislation.
[226] See Austin (2003) 195 ALR 321, 373 [181] (Gaudron, Gummow and Hayne JJ). Kirby J, in dissent, did have to deal with the argument and rejected it (at 397 [274]).
[227] See above, text accompanying n 204.
[228] At least, these factors determine whether a person is an 'officer of the Commonwealth' (see above, text accompanying n 166).
[229] See above, n 214.
[230] As argued above, text accompanying nn 208–214.
[231] See the discussion of Mayer above, n 213.
[232] Any differences in the judicial review regimes at the Commonwealth and State level would not necessarily amount to a form of 'direct' inconsistency. By way of comparison, there is no direct inconsistency between Commonwealth and State legislation that both penalise the same sort of conduct (even if the penalties are different); instead, the question is whether the Commonwealth offence was intended to be exhaustive (see, eg, R v Winneke; Ex parte Gallagher (1982) 152 CLR 211, 218 (Gibbs CJ), 223–4 (Mason J), 235 (Wilson J); see also R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338, 346–7 (Mason J, with Barwick CJ and Jacobs J agreeing on this point: 339, 347–8)).
[233] The State officer's authority to make any given decision under a cooperative legislative scheme might derive from the Commonwealth Act, the State Act, or a combination of both. The cooperative object of the scheme suggests that the officer's judicial review obligations should not depend on whether the particular decision happened to be sourced in the Commonwealth Act or the State Act.
[234] See above, text accompanying n 216.
[235] See above, text accompanying nn 67–70 (considering whether the converse integrity and autonomy of the Commonwealth would prevent high level Commonwealth officials from performing State functions).
[236] A State administrative body may make binding determinations of fact or law, because a State parliament or executive may validly exercise judicial power (Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51). There are, however, recent suggestions from the NSW Court of Appeal that the appellate system contained in s 73 of the Commonwealth Constitution might require that decisions on certain 'core matters' be reviewable in State Supreme Courts (see Mitchforce v Industrial Relations Commission [2003] NSWCA 151 (Unreported, Spigelman CJ, Mason P and Handley JA, 13 June 2003), [120]–[133] (Spigelman CJ), [147]–[149] (Mason P); cf Michael Sexton and Julia Quilter, 'Privative Clauses and State Constitutions' (2003) 5 Constitutional Law and Policy Review 69, 74–5).
[237] See above, Part 4(A)(ii). However, while it is clear that there is a constitutionally-protected minimum, it is not presently clear what that minimum is (see Dr Simon Evans, 'Privative clauses and time limits in the High Court' (2003) 5 Constitutional Law and Policy Review 61, 66 ('s 75(v) remains a guarantee of the rule of law to some uncertain extent')).
[238] See above, n 205.
[239] See above, text accompanying nn 209–210. That possibility would be especially significant if Melbourne Corporation were taken to prohibit the Commonwealth from conferring executive power on a particular State officer (see above, text accompanying n 235), because Commonwealth legislation could still give legal effect to a decision by the officer.
[240] See, eg, James v Commonwealth [1928] HCA 45; (1928) 41 CLR 442, where Commonwealth regulations conferred authority on State body to grant licences under Commonwealth law.
[241] See above, text accompanying nn 13–14.
[242] See above, paragraph containing nn 120–122.
[243] Some judges held that the express provision for conferring federal jurisdiction on State courts indicated that the converse process (conferring State jurisdiction on federal courts) was prohibited (Wakim (1999) 198 CLR 511, 557 [56] (McHugh J); see also Gould v Brown (1998) 193 CLR 346, 451 [208] (Gummow J)). However, the better view seems to be that s 77(iii) merely confirmed arguments based on other considerations (see Wakim (1999) 198 CLR 511, 581 [123] (Gummow and Hayne JJ)). It is well settled that the maxim of expressio unius est exclusio alterius must be applied with care (see, eg, Houssein v Under Secretary of Industrial Relations and Technology (NSW) [1982] HCA 2; (1982) 148 CLR 88, 94 (the Court)).
[244] See Wakim (1999) 198 CLR 511, 579 [121] (Gummow and Hayne JJ) ('The fact that there is a power to invest State courts with federal jurisdiction does not mean that there must be some capacity to make a reciprocal arrangement'). Similarly, this possibility was used by Wilson J as reason to reject the need for federal courts' accrued jurisdiction (Philip Morris (1981) 148 CLR 457, 548 (dissenting)). The counter-argument is that s 77 of the Constitution also provides for the jurisdiction of federal courts to be made exclusive (s 77(ii)), and that accrued jurisdiction is necessary to make the conferral of exclusive jurisdiction effective (see at 514 (Mason J); see also Graeme Hill, 'The Demise of Cross-vesting' (1999) 27 Federal Law Review 547, 575 (making the same argument in relation to the cross-vesting of State jurisdiction)).
[245] There were strong statements in Wakim that convenience is wholly irrelevant to constitutional validity ((1999) 198 CLR 511, 540 [2] (Gleeson CJ), 548 [34] (McHugh J), 569 [94] (Gummow and Hayne JJ)). In other cases, however, some members of the Wakim majority have explicitly used the consequences of alternative interpretations of the Constitution as a reason to prefer one interpretation over another (see, eg, the cases collected in Hill, 'Revisiting Wakim and Hughes', above n 13, 215 n 89). That may be all that McHugh J meant when he stated that '[u]nsatisfactory consequences cannot alter constitutional meanings but they should make us hesitate before adopting the meaning of a constitutional provision which is contrary to its text, history and purpose' (Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 298 [149]).
[246] See above, text accompanying n 15.
[247] For example, former High Court Justice Sir Ronald Wilson (also a former Solicitor-General of Western Australia) stated at the Australian Law Society's 29th Legal Convention at Brisbane in September 1995 that he had changed his views on the proper scope of the Commonwealth's external affairs power since his appointment as President of the Human Rights and Equal Opportunities Commission.
[248] Before Nevada Department of Human Resources v Hibbs, [2003] USSC 4027; 123 S Ct 1972 (2003), Rehnquist CJ, O'Connor, Scalia, Kennedy and Thomas JJ were in the majority, and Stevens, Souter, Ginsburg and Breyer JJ were in dissent, in each of these federalism cases: see Seminole Tribe of Florida v Florida, [1996] USSC 28; 517 US 44 (1996) ('Seminole Tribe'), Florida Prepaid Postsecondary Education Expenses Board v College Savings Bank[1999] USSC 64; , 527 US 627 (1999), College Savings Bank v Florida Prepaid Postsecondary Education Expenses Board, 527 US 666 (1999), Alden v Maine, [1999] USSC 62; 527 US 706 (1999), Kimel v Florida Board of Regents [2000] USSC 1; 528 US 62 (2000), and Board of Trustees of University of Alabama v Garrett, [2001] USSC 11; 531 US 356 (2001). In Hibbs, however, a majority comprising Rehnquist CJ, Stevens, O'Connor, Souter, Ginsburg and Breyer JJ upheld the validity of federal legislation that enabled a person to recover damages in a federal court for a State's failure to make family care payments as required by federal law. Even then, the opinion of the Court by Rehnquist CJ was not joined by Stevens J, and both Souter J (with whom Ginsburg and Breyer JJ joined) and Stevens J wrote separate concurring opinions.
It is true that early cases like Hans v Louisiana[1890] USSC 66; , 134 US 1 (1890) and even Seminole Tribe rested on implications drawn from the 11th Amendment (which provides that '[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or Citizens or Subjects of any Foreign State'), rather than federalism as such.) In Alden v Maine, however, the majority no longer relied on the 11th Amendment, but instead drew implications from the 'structure and history of the Constitution' [1999] USSC 62; (527 US 706 at 733; see also 713 (1999)).
[249] Cf Oliver Wendell Holmes, The Common Law (1881) 1 ('The life of the law has not been logic; it has been experience'). Windeyer J famously described the major change of direction in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 ('Engineers' Case') as the result of reading the Constitution 'in a new light' (Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353, 396 ('The Pay-roll Tax Case')).
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