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Jurisdiction, Liability and “Double Function” Legislation
Published online by Cambridge University Press: 24 January 2025
Extract
As Barrett's case1long ago demonstrated, a provision in a Commonwealth Act may perform the “double function” of conferring both a jurisdiction upon a court to grant a remedy, and a “substantive statutory right or duty” upon a litigant by means of “providing that in certain circumstances a person may take proceedings in a particular court to obtain a specified remedy”. The difficulty is in divining when the Parliamentary Counsel has intended that this double function be performed. Under s 76(ii) of the Constitution, Parliament may confer jurisdiction upon a federal court in “any matter arising under any laws made by the Parliament” (emphasis added). How is one to tell if “Parliament has been too sparing in the exercise of its powers and has made only a bare grant of jurisdiction without enacting a substantive law to which the exercise of jurisdiction is referable”?
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- Copyright © 1990 The Australian National University
Footnotes
This article forms part of work in progress for the degree of Doctor of the Science of Law at Columbia University in the City of New York. I am most grateful for the comments and assistance of my supervisors, Professors Peter L Strauss and George Berman, and to the Dayton-Hudson Foundation and Mr Lawrence A Wien for Fellowship support while at Columbia. I also record my great debt to Professor Leslie Zines, Robert Garran Professor of Law, ANU, for the considerable time and effort he spent in criticising and improving earlier drafts. Any errors that remain are my own.
References
1 R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrell (1945) 70 CLR 141 (hereafter Barrett's case).
2 Ibid 165-166 per Dixon J. It might equally be called “uno ictu” legislation in that “with one stroke” (uno ictu) it confers a jurisdiction and a right to proceed: see Hooper v Hooper (1955) 91 CLR 529, 536. A similar difficulty has long existed in the United States; see Hart and Wechsler's The Federal Courts and the Federal System (3rd ed 1988) 995-1027 discussing the scope of the statutory grant of jurisdiction to the United States Federal Courts.
3 Tobacco Institute of Australia v Australian Federation of Consumer Organisations Inc (1988) 84 ALR 337, 342.
4 Hooper v Hooper (1955) 91 CLR 529, 536.
5 Cowen, Z and Zines, L, Federal Jurisdiction in Australia (2nd ed 1978) 124Google Scholar, who then go on to discuss the analogous United States position in relation to “protective jurisdiction” which the authors describe as “broadly similar”, ibid 125.
6 Renfree, H E, The Federal Judicial System of Australia (1984) 13Google Scholar, citing Minister for Army v Parbury Henly & Co (1945) 70 CLR 459, 504 and Minister for Navy v Rae (1945) 70 CLR 339. See also the recent Full Federal Court decision in Tobacco Institute v AFCO (1988) 84 ALR 337, 342 where the Court said: “… the best method, according to accepted canons, was to keep substantive and adjectival matters distinct, by creating the right or duty and then providing the remedy.” It is interesting in this regard to note the “double function” which is achieved by s 75(iii) under the most recent interpretation and the more restricted operation given to s 75(iv): Breavington v Godelman (1988) 62 AUR 447. This is discussed in more detail below.
7 (1988) 84 ALR 337, 342.
8 (1988) 81 ALR 288 (Full Federal Court); (1989) 88 ALR 517 (High Court) discussed infra text at nn 81ff.
9 (1978) 143 CLR 410, 438.
10 For an example of such an approach, see Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383, 411, 425, 429 per Gibbs CJ, Aiclcin and Wilson JJ respectively.
11 Lane, PH, Commentary on the Australian Constitution (1986) 430Google Scholar.
12 In an earlier case, McGlew v New South Wales Malting Co Ltd (1918) 25 CLR 416 the High Court had held that it was incidental to the provisions for the service of State process beyond the territorial limits of the State to provide for security to be given for the costs of the persons so served. It was said that the provision could be supported by relying on ss 76(ii) and 77(iii) of the Constitution. See too Commonwealth v Cole (1923) 32 CLR 602.
13 Since applied on numerous occasions; eg Jess v Scott (1984) 52 ALR 393 and Bailey v Krantz (1984) 55 ALR 345.
14 Jess v Scott (1984) 52 ALR 393, 396 per Beaumont J, commenting on s 141 which has replaced s SSE.
15 Barrett's case (1945) 70 CLR 141, 166 per Dixon J.
16 Ibid 165-166.
17 Ibid 155.
18 Lane, P H, supra n 11Google Scholar.
19 (1955) 91 CLR 529.
20 Ibid 534-535.
21 Ibid 535-536.
22 Ibid 536.
23 Ibid 531.
24 Ibid 537-538.
25 Ibid 538.
26 (1962) lll CLR 140.
27 The Court also had to consider the operation of s 89 of the Act which authorised payment into court where the insurer received express notice of a trust or other claim to the money.
28 His Honour delivered the judgment of Fullagar J, who had died before judgment could be given, as his own.
29 (1962) 111 CLR 140, 147.
30 Ibid 148-149. In other words, every aspect of the matter had to be examined from the point of view of the insurer, not the actual recipient of the money, and “when once what was initially the company's problem has been solved, the rights and duties of the payee with respect to the policy moneys in his hands are not - or normally will not be - the concern of Commonwealth law. They will fall to be determined in accordance with the laws of a State, and are not, therefore, capable of being submitted to the jurisdiction of this Coun under s 76(ii)”: ibid 148.
31 Barrett's (194S) 70 CLR 141, 167 where Dixon J gave a large number of examples from existing Commonwealth statutes of “double function” legislation which involved the conferral of a discretion upon the Coun to grant the substantive relief.
32 Ibid 1S4.
33 (1971) 124 CLR 367.
34 Section 39(2) of the Judiciary Act precluded any appeal where the matter was one of federal jurisdiction.
35 Barwick CJ, Windeyer, and Walsh JJ; McTieman J agreed on other grounds.
36 Stack v Coast Securities (1983) 46 ALR 451, 462-463 per Fitzgerald J.
37 Felton v Mulligan (1971) 124 CLR 367, 374 per Barwick CJ referring to Nelungaloo Pty Ltd v Commonwealth (1952) 85 CLR 545, and Commonwealth v Bank of New South Wales (1949) 79 CLR 497.
38 Id.
39 Ibid 383.
40 Cowen, Z and Zines, L, supra n 5, 59-60Google Scholar.
41 Ibid 60-61, citing the view of Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed 1975) 479.
42 (1980) 31 ALR 161.
43 Ibid 164.
44 Ibid 110 per Stephen, Mason, Aickin and Wilson JJ.
45 Id.
46 Id.
47 Commonwealth v Bank of New Sollth Wales (1949) 79 CLR 497, 624; Lansell v Lansell (1964) 110 CLR 353, 357-358.
48 (1986) 68 ALR 537.
49 Section 197A.
50 Poulos v Waltons Stores (Interstate) Lid (1986) 68 ALR 537, 541.
51 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrell (1945) 70 CLR 141; Felton v Mulligan (1972) 124 CLR 367; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575.
52 Poulos v Waltons Stores (Interstate) Ltd (1986) 68 ALR 537, 543.
53 (1988) 84 ALR 492.
54 Ibid 496 (citations omitted).
55 (1981) 37 ALR 66.
56 Section 22 of the Federal Court Act 1976 (Cth) provides: “The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.”.
57 Section 23 of the Federal Court Act provides: “The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”
58 (1981) 37 ALR 66, 73.
59 H E Renfree, supra n 6.
60 (1981) 37 ALR 66, 74.
61 In brief, s 163A provides that a person may institute proceedings in the Federal Court seeking a declaration or certain other orders in matters arising under the Act. See, generally, Miller, R V, Annotated Trade Practices Act (10th ed 1989) 386-388Google Scholar.
62 (1978) 19 ALR 191; 31 FLR 314.
63 Section 163A relevantly provided: “(1) Subject to this section, a person may institute a proceeding in the Court seeking, in relation to a matter arising under this Act, the making of - (a) a declaration in relation to the operation or effect of any provisions of this Act … or in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act; …and the Court has jurisdiction to hear and determine the proceeding.”
64 (1978) 19 ALR 191, 197.
65 Ibid 206.
66 (1986) 161 CLR 438.
67 Cf R v Lambert (1981) 146 CLR 447; Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227; Dowal v Murray (1978) 143 CLR 410.
68 (1986) 161 CLR 438, 453.
69 Id, citing Barrett's case.
70 Id
71 Re Tooth & Co Ltd (1918) 19 ALR 191, 206-209.
72 Ibid 206. His Honour observed that the grant of a declaration at common law was discretionaiy (Johnco Nominees Pty Ltd v Albury Wodonga NSW Corp (1977) 1 NSWLR 43) but that earlier authority suggested that, in a federal Coun, the discretion and jurisdiction overlapped; citing Isaacs Jin Australian Commonwealth Shipping Board v Federated Seamen's Union of Australasia (1925) 36 CLR 442, 450-451.
73 (1988) 84 ALR 492.
74 Section 32 of the Consumer Protection Act 1969 (NSW).
75 (1988) 84 ALR 492, 495 per Gummow J.
76 Ibid 495-496, citing Hooper v Hooper (1955) 51 CLR 529, 535-536, Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383, 411, 425, 429, and Re Tooth & Co (1978) 31 FLR 314, 320.
77 It is an interesting question whether the relief available under s 163A is limited in some way if it is sought against State as opposed to federal officers.
78 (1985) 61 ALR 302.
79 Supra text at nn 57, 59.
80 (1986) 66 ALR 1, 19.
81 (1988) 81 ALR 288.
82 (1989) 88 ALR 517.
83 Conyngham v Minster for Immigration (1986) 68 ALR 441; Pearce v Bullon (1986) 65 ALR 83; O'Neil v Wratten (1986) 65 ALR 451.
84 It would appear that the only method of proceeding to recover such losses is by relying on the accrued jurisdiction of the Federal Court and suing for malfeasance in a public office, false imprisonment, damages for breach of a statutory duty. or any other cause of action: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencoll v Muller (1983) 152 CLR 570. It appears that the ultimate rejection of the federal claim does not preclude the exercise of the jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 76 ALR 173.
85 Section 22 authorises the court to give “all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought by him in the matter …”. Section 23 gives the court power in those matters over which it has jurisdiction to make those orders which to the court seem appropriate.
86 (1988) 81 ALR 288, 309-310 per Morling J.
87 Ibid 297.
88 Id.
89 Supra text at nn 53-60.
90 (1978) 19 ALR 191, 197.
91 (1988) 81 ALR 288.
92 Ibid 297-298.
93 Of course, both Barrett's case and Hooper v Hooper directed attention to another body of law which the relevant statute incorporated by reference, as it were, into the federal scheme whereas an expansion of the range of remedies under the ADJR Act would require the substantive law to be applied to be self-contained.
94 A point noted by Morling J at (1988) 81 ALR 288, 310: “The coun could have entenained those claims under its accrued jurisdiction … and granted relief in respect of them notwithstanding that the claim for relief under the Judicial Review Act did not succeed” (citation omitted).
95 Ibid 298, quoted by Sweeney I.
96 Park Oh Ho v Minister (1989) 88 ALR 517, 522.
97 Section 16(1)(d) of the ADJR Act provides that the Federal Coun may, in its discretion, make “an order directing any of the panies to do, or to refrain from doing, any act or thing the doing, or refraining from the doing, of which the Coun considers necessary to do justice between the panies.”
98 (1989) 88 ALR 517, 522.
99 Sections 22 and 23 discussed supra text at n 85.
100 A detailed discussion of the issues is beyond the scope of this article.
101 Cowen, Z and Zines, L, supra n 5, 35Google Scholar.
102 Presented and read for the first time on 31 May 1989.
103 The main exception to this disinclination is the manner in which s 163A of the Trade Practices Act has been construed.
104 (1986) 66 Al.R 412, 415.
105 Ibid 416.
106 Ibid 415.
107 Z Cowen and L Zines supra n 5, 54 note: “Section 75(v) like sec. 75(iii) and (iv) on its face appear to confer a jurisdiction. Extended reference has already been made to the debate over the question whether sec. 75(iii) conferred anything more, and particularly whether it gave any substantive right to proceed against the Commonwealth. It seems that the better view is that it does not and that sec. 75(v) should be similarly interpreted.”
108 As Professor Zines has pointed out to the author in discussions, it is difficult to know what is meant by “substantive law” in relation to s 75(v). It is clear that the Commonwealth can determine the jurisdiction of a person or a body making a decision (subject always to considerations such as the separation of powers) and the purposes and considerations which may be taken into account in considering the impugned decision. The courts will examine, for example, whether the body or officer of the Commonwealth has acted contrary to law. Equally, the Commonwealth Parliament has the power, should it wish to exercise it, to determine the law that is to apply to any such consideration since this will, at the least, be incidental to the placitum under which he has operated. Usually, however, the Parliament has not specifically stated the body of substantive law to be applied. Special considerations apply in relation to privative clauses: R v Coldham (1984) 153 CLR 415, 422.
109 The main exception to this disinclination is the manner in which s 163A of the Trade Practices Act has been construed.
110 Commonwealth v Evans Deakin Industries Ply Ltd v Commonwealth (1986) 66 ALR 412; Breavinglon v Gode/man (1988) 80 ALR 362.
111 But see supra text at n 102.
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