Re Judiciary Act 1903-1920 & in Re Navigation Act 1912-1920
[1921] HCA 2029 CLR 257
(Judgment by: Knox CJ, Gavan Duffy J, Powers J, Powers J, Rich J, Starke J)
Re Judiciary Act 1903-1920 & in Re Navigation Act 1912-1920
Court:
Judges:
Knox CJHiggins J
Gavan Duffy J
Powers J
Rich J
Starke J
Legislative References:
Judiciary Act 1903-1920 - The Act
Navigation Act 1912-1920 - The Act
Judgment date: 16 May 1921
Judgment by:
Knox CJ
Gavan Duffy J
Powers J
Powers J
Rich J
Starke J
This was a reference by the Governor-General under sec. 88 of the Judiciary Act for the determination of the question whether, and to what extent, certain sections of the Navigation Act 1912-1920 are valid enactments of the Parliament of the Commonwealth. Mr. Dixon, for the Attorney-General of the State of Victoria, having raised the objection that Part XII. of the Judiciary Act, in which sec. 88 is found, was beyond the powers of the Commonwealth Parliament, the Court heard argument on that question before proceeding to hear and determine the question referred.
In order to decide the preliminary question it is necessary first to ascertain the meaning of the provisions of Part XII., which comprises secs. 88-94. By sec. 88 Parliament purports to confer on this Court "jurisdiction to hear and determine" "any question of law as to the validity of any Act or enactment of the Parliament" which "the Governor-General refers to the High Court for hearing and determination." Sec. 89 provides that any matter so referred shall be heard and determined by a Full Court consisting of all the available Justices. Sec. 90 provides for notice of the hearing to be given to the Attorney-General of each State, and for his right to appear or be represented at the hearing. Sec. 91 empowers the Court to direct that notice be given to other persons, and that they shall be entitled to appear or be represented at the hearing. Sec. 92 empowers the Court to request counsel to argue the matter as to any interest which in the opinion of the Court is affected and as to which counsel does not appear. Sec. 93 provides that the determination of the Court upon the matter shall be final and conclusive and not subject to any appeal. Sec. 94 provides for the making of rules-none have yet been made.
Mr. Leverrier, for the Commonwealth, contended that a determination of the Court pronounced under this Part of the Act was, on the true construction of these sections, merely advisory and not judicial. In our opinion this contention is untenable. After carefully considering the provisions of Part XII., we have come to the conclusion that Parliament desired to obtain from this Court not merely an opinion but an authoritative declaration of the law. To make such a declaration is clearly a judicial function, and such a function is not competent to this Court unless its exercise is an exercise of part of the judicial power of the Commonwealth. If this be so, it is not within our province in this case to inquire whether Parliament can impose on this Court or on its members any, and if so what, duties other than judicial duties, and we refrain from expressing any opinion on that question. What, then, are the limits of the judicial power of the Commonwealth? The Constitution of the Commonwealth is based upon a separation of the functions of government, and the powers which it confers are divided into three classes-legislative, executive and judicial (New South Wales v. The Commonwealth[ [1] ]). In each case the Constitution first grants the power and then delimits the scope of its operation (Alexander's Case[ [2] ]). Sec. 71 enacts that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with Federal jurisdiction. Secs. 73 and 74 deal with the appellate power of the High Court, and we need make no further reference to those sections as it is not suggested that the duty imposed by Part XII. of the Judiciary Act is within the appellate jurisdiction of this Court. Sec. 75 confers original jurisdiction on the High Court in certain matters. and sec. 76 enables Parliament to confer original jurisdiction on it in other matters. Sec. 77 enables Parliament to define the jurisdiction of any other Federal Court with respect to any of the matters mentioned in secs. 75 and 76, to invest any Court of the States with Federal jurisdiction in respect of any such matters, and to define the extent to which the jurisdiction of any Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States. This express statement of the matters in respect of which and the Courts by which the judicial power of the Commonwealth may be exercised is, we think, clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction. The question then is narrowed to this: Is authority to be found under sec. 76 of the Constitution for the enactment of Part XII. of the Judiciary Act? Sec. 51 (XXXIX.) does not extend the power to confer original jurisdiction on the High Court contained in sec. 76. It enables Parliament to provide for the effective exercise by the Legislature, the Executive and the Judiciary, of the powers conferred by the Constitution on those bodies respectively, but does not enable it to extend the ambit of any such power. It is said that here is a matter arising under the Constitution or involving its interpretation, and that Parliament by sec. 30 of the Judiciary Act has conferred on this Court original jurisdiction in all matters arising under the Constitution or involving its interpretation. It is true that the answer to the question submitted for our determination does involve the interpretation of the Constitution, but is there a matter within the meaning of sec. 76? We think not. It was suggested in argument that "matter" meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word "matter" in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. The word "matter" is used several times in Chapter III. of the Constitution (secs. 73, 74, 75, 76, 77), and always, we think, with the same meaning. The meaning of the expression "in all matters between States" in sec. 75 was considered by this Court in State of South Australia v. State of Victoria[ [3] ]. Griffith C.J. said that it must be a controversy of such a nature that it could be determined upon principles of law, and in this Barton J. agreed. O'Connor J. said that the matter in dispute must be such that it can be determined upon some recognized principle of law. Isaacs J. said that the expression "matters" used with reference to the Judicature, and applying equally to individuals and States, includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject, and which therefore governs their relations, and constitutes the measure of their respective rights and duties. Higgins J. appeared to think that the expression involved the necessity of the existence of some cause of action in the party applying to the Court for a declaration. He said[ [4] ]:-"Even assuming that the State is to be regarded as being substantially the donee of the power, I know of no instance in any Court in which a donee of a power such as this-a power in gross-has obtained by action a declaration that he has the power. Under the Constitution, it is our duty to give relief as between States in cases where, if the facts had occurred as between private persons, we could give relief on principles of law; but not otherwise." All these opinions indicate that a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law. The adjudication of the Court may be sought in proceedings inter partes or ex parte, or, if Courts had the requisite jurisdiction, even in those administrative proceedings with reference to the custody, residence and management of the affairs of infants or lunatics. But we can find nothing in Chapter III. of the Constitution to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.
During the argument a strenuous attempt was made to show that this Court had, in earlier cases, approved of the exercise of original jurisdiction in circumstances like those of the present case. We have examined the cases relied on in support of this proposition, and we are satisfied that in all of them the use of the judicial power was approved only when it was used for the purpose of effecting or assisting in effecting a settlement of existing claims of right under the law of the Commonwealth.
In Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Proprietary Co.[ [5] ] a case was stated by the Commonwealth Court of Conciliation and Arbitration for the opinion of the High Court, pursuant to sec. 31 of the Commonwealth Conciliation and Arbitration Act, upon certain questions of law arising in the proceedings before the Arbitration Court. This Court determined these questions of law. The provisions of sec. 31 provide for the determination of questions of law which affect the rights of parties to an award under the Arbitration Act. In our opinion, the determination of such questions is a clear exercise of judicial power under sec. 76 of the Constitution, and therefore rightly bestowed upon the Judiciary. In Federated Engine-Drivers' and Firemen's Association of Australasia v. Colonial Sugar Refining Co.[ [6] ] the provisions of sec. 21AA of the Commonwealth Conciliation and Arbitration Act were upheld as a valid exercise of the legislative power of the Commonwealth. In connection with this section it is well to remember that it is not within the jurisdiction of the Arbitration Court to determine whether a dispute of the character required by the Constitution and the Arbitration Act exists or does not exist so as to prevent prohibition issuing from the High Court if there is in fact no dispute. The existence of the dispute is, however, a condition of jurisdiction (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Allen Taylor & Co.[ [7] ]; Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Proprietary Co.[ [8] ]).
Now sec. 21AA provides a summary method for the determination by the Judiciary of the question of jurisdiction. It also provides for the determination of questions of law arising in relation to the dispute or to the proceedings or to any award or order of the Court. All these questions affect actual existing rights of parties to a dispute which it is sought to determine under the Arbitration Act, and their decision is an exercise of the judicial power within the provisions of sec. 76 of the Constitution.
The Jumbunna Case[ [9] ] declared that the provisions of Part V. of the Arbitration Act relating to the formation and registration of organizations were within the legislative power of the Commonwealth. This conclusion was based upon the provisions of sec. 51 (XXXV.) and (XXXIX.) of the Constitution. The formation and registration of an organization is not and could not be part of the judicial power of the Commonwealth, and there is nothing in the case to suggest that it is. The decision of the Court is rested upon the view that proper representation of parties before the arbitral tribunal set up under the Arbitration Act was necessary to the execution of the arbitral power under sec. 51 (XXXV.) of the Constitution, and that to provide for their organization by means of registration was an incident to that power. The case has no relevance, in this respect, to the judicial power of the Commonwealth or its exercise.