Professor Gummow provides the first set of remarks in this special forum which accompanies the launch of: Gabrielle Appleby, Anna Olijnyk, James Stellios and John Williams, Judicial Federalism in Australia: History, Theory, Doctrine and Practice. To see all posts, click here. Click through for posts by Dr Brendan Lim, Professor Sarah Murray, and Professor Erin Delaney, as well as the authors’ reply.

BY THE HON WILLIAM GUMMOW AC

When the Judiciary Committee of the 1891 National Australasian Convention, under the Chairmanship of Andrew Inglis Clark, prepared its report (which is reproduced in Judicial Federalism in Australia: History, Theory, Doctrine and Practice at pp 208 to 210), there were in operation in what today could be identified as the Anglosphere two federal systems – namely those of Canada and the United States.

However neither could provide a sufficient analogue for the judicial structure of the proposed Australasian federation (which in 1891 included New Zealand). Within living memory, the United States had been torn by the civil war which manifested the shortcomings of the system devised in the last quarter of the 18th century. The “federal jurisdiction” for which the US Constitution provided was distinct from that exercised by the courts of the states, and was the province of the federal courts. The Canadian Federation was less than 25 years old. It included Quebec, with its French legal inheritance. The central government appointed the judges not only of the Supreme Court of Canada, but also of the superior, district, and county courts of the provinces.

In Chapter 3 and Appendix B to this book we can follow the development of the final design of Chapter III of the Australian Constitution. It was preoccupation with the cost of the new Commonwealth, including the court system, which helps explain the initiative of the future Sir Walter James at the 1897 Convention in Adelaide to propose that state courts be empowered to exercise federal jurisdiction. James was to become premier of Western Australia in 1902, then a founding partner of the leading firm Stone James and Co, and at the end of his career Chancellor of the University of Western Australia. We in the East should know more of him.

However, as is emphasised in Chapter 2 of this book, the development of the judicial structures of the Australian colonies had not been driven by concern for a strict separation of judicial from other public power. The prevalence before federation of state non-judicial tribunals is described by Edelman J in Burns v Corbett (2018) 265 CLR 304 (at [225]-[237]). This was to present problems for Chapter III as its terse language fell for interpretation by the High Court across a century after federation. Two of these problems provide the focus for this book.

First, federal courts in addition to the High Court were established with a strict separation of judicial power but exercised federal jurisdiction concurrently with state courts. Was it a sufficient answer to this disharmony that the state courts were to be taken as they were found?

Secondly, might state tribunals determine issues identified and s 75 and s 76 of Chapter III as ‘matters of federal jurisdiction’? Would any such incapacity stem from Chapter III itself or arise only if federal legislation denied authority to those tribunals?

With respect to the second matter, in Burns v Corbett, the majority of the Court held such incapacity arose from Chapter III itself and the minority relied upon provisions of the Judiciary Act 1903 (Cth) and s 109 of the Constitution.

Chapter 9 of this book is titled ‘State Tribunals and Judicial Federalism’. At pp 183 to 187 there is first an account of interviews in 2015 and 2016 with state officials respecting their responses to the issues later resolved by Burns v Corbett, and secondly there is discussion of the varied legislative responses to that decision. I am indebted to the Hon Pamela Tate for drawing attention to the very recent legislation in Victoria, which provides a mechanism for what otherwise would be matters before the Victorian Civil and Administrative Tribunal to be transferred into the court systems of that state for the exercise of federal jurisdiction (Victorian Civil and Administrative Tribunal and Other Acts Amendment (Federal Jurisdiction and Other Matters) Act 2021 (Vic), pt 2, ss 3-11).

The most detailed analysis in this book concerns the holding in Kable v DPP (NSW) (1996) 189 CLR 51 and its sequelae. The basic proposition was expressed by Gaudron J at 103 as follows:

There is nothing anywhere in the Constitution to suggest that it permits of different grades or qualities of justice, depending on whether judicial power is exercised by State courts or federal courts created by the Parliament.

Were that not so, the Commonwealth Parliament would be denied a real and effective choice of the courts to exercise federal jurisdiction.

Her Honour thereby was accepting one branch of the submissions for Mr Kable of Sir Maurice Byers QC in one of his final appearances in the High Court. As so often, his submissions had been disarming, innovative and succinct. An appreciation of the submissions of counsel and intervenors, as reported in the Commonwealth Law Reports, is vital to an understanding of the judicial responses thereto.

In Chapter 6 there is a section contentiously headed ‘Kable in decline’. It is true that it was not until 2009, with International Finance Trust Co v New South Wales Crime Commission (2009) 240 CLR 319 that Kable was applied to strike down state legislation, albeit by a 4:3 majority. Earlier decisions had upheld the legislation then under attack. But that did not mean that Kable was dormant. Cases such as Gypsy Jokers (2008) 234 CLR 532 (at [6]-[7], [10], [175]) had presented the criterion of invalidity as the engagement by state law of its courts in functions actively repugnant to the judicial process in a fundamental degree, thereby trenching upon their institutional integrity. It is neither possible nor profitable to adopt a single all-embracing statement of what institutional integrity requires.

However, one may ask whether the Kable doctrine may elicit a response which entrusts the enforcement of controversial state legislation to administrators rather than to state courts. The 2010 decision in Kirk (2010) 239 CLR 531 protects the jurisdiction of the Supreme Courts in judicial review of administrative action. But this is limited by the requirement of jurisdictional error and the uncertain scope of the injunction in public law.

The subtitle to the book is ‘History, Theory, Doctrine and Practice’. I have endeavoured briefly to indicate how these aims have been achieved by the authors. They and the publisher are to be congratulated.

The Hon William Gummow AC is a former Justice of the High Court of Australia.

Suggested citation: William Gummow ‘Book forum on Appleby, Olinjyk, Stellios and Williams Judicial Federalism in Australia‘ on AUSPUBLAW (3 November 2021) <https://auspublaw.org/2021/11/book-forum-the-hon-william-gummow-ac/>.