Chapter 5
Jurisdictional issues – the interface between the federal and state
judicial systems
What are the issues?
5.1
This part of the terms of reference for the inquiry gave rise in
submissions to the discussion of two main topics, which have overlapping
themes:
-
is a national judicial system desirable? If so, what are the
practical and constitutional impediments? Alternatively, is an improved system
of vertical and horizontal judicial exchange feasible?
-
is it possible, and desirable, to establish a constitutional
arrangement for the horizontal and vertical transfer of cases (overcoming the
constitutional difficulties previously identified with the cross vesting of
cases)?
5.2
In this chapter, these issues are discussed in detail, as are some
additional issues raised with the committee.
National judiciary
5.3
A number of submitters identified the topic of a national judicial framework
as being a key item relating to the interface between the federal and state
judicial systems. As Mr Glen McGowan, Chairman of the International Commission
of Jurists, Victoria, explained, there are a number of reasons it could be
useful, but there is a caveat about the practical challenges that would be
encountered:
We would be spared jurisdictional issues in crime and
contract, change of venue applications—all sorts of problems are solved. But
how you do it in our complicated federal system is going to be difficult.[1]
5.4
The Standing Committee of Attorneys‑General (SCAG) has undertaken
some work relating to a national judiciary. The objectives of a national
judicial framework identified by SCAG are to:
-
enhance the administration of law and justice at a national
level;
-
facilitate nationally consistent standards of judicial
decision-making and efficiency;
-
provide opportunities for career enhancement for individual
judicial officers; and
-
promote a more flexible, responsive and engaged judiciary.
5.5
The existing legislation limits the scope to implement a national
judiciary because State and Territory judges are prohibited by The Constitution
from acting in a federal capacity. As the Federal Court has observed, 'there
are many instances of Federal Court judges holding commissions as members of
the Supreme Courts of the Territories and, occasionally, as acting judges of
State courts', but that a reciprocal arrangement cannot happen under present
constitutional arrangements.[2]
5.6
The ICJ-Victoria expressed the view that 'a national judiciary is
desirable.'[3]
Indeed, the Attorney‑General's Department has advised the committee that at
its July 2008 meeting SCAG 'agreed to establish a working group to examine the
feasibility of establishing a national judiciary.'[4]
The most recent SCAG activity in this area was described by the Attorney‑General's
Department:
In August 2009, the SCAG working group put a proposal to SCAG
that it determine the feasibility of implementing a national judicial framework
in three phases: Phase 1 – a national judicial complaints system and a judicial
exchange program (being progressed separately by a SCAG working group); Phases
2 and 3 – possible development of common federal, State and Territory
legislation relating to the pre-requisites for judicial appointment, tenure and
retirement ages and development of more uniform judicial remuneration
structures, and judicial remuneration packages and terms and conditions of
office.
The judicial exchange and national complaints scheme
currently being progressed by SCAG working groups would form part of the
framework.
SCAG has referred the national judicial framework item to the
National Justice CEOs (NJCEOs) Group to determine the feasibility of
progressing proposals in Phases 2 and 3.[5]
5.7
The Department has noted that 'The issue of removal from office is not
being considered as part of the national judicial framework project.[6]
The national complaints project will be discussed further later in this report.
5.8
The development of a national judicial structure is not necessarily the
same as the development of a national court structure. As the Law Council of
Australia explained:
The development of a national court structure would not be
possible without significant constitutional reform. However, the development of
a national judicial framework would potentially be more achievable.[7]
5.9
In relation to the structure and purpose of a national judiciary, the
Law Council has given the matter detailed consideration and has identified a
number of important aspects requiring further thought. For example, will a more
widespread scheme of judicial exchange 'undermine the specialist jurisdiction
of Federal courts and State courts'?[8]
The Law Council believes that 'judicial exchange, unless done in a way that is
mindful of the relevant expertise of a court, has the potential to undermine
confidence in the specialist expertise of a Court.'[9]
5.10
The Law Council also highlights that it is important for any formal
judicial exchange program 'to demonstrate that any benefits to litigants are
not merely illusory'.[10]
Other aspects of concern raised by the Law Council are that:
A general comment is that it is not clear what 'greater
consistency and uniformity in the provision of judicial services' is meant to
mean – or that such consistency is necessarily desirable as an end in itself.
Different kinds of cases merit using different approaches.
The realisable benefits of the proposal with regard to these
broader objectives of enhancing the administration of law and justice may be
seen as uncertain without elaboration of how the scheme would work.
We agree that there is merit in exposing judges to different
types of case management systems...
Although it is contended that judicial exchange would have
the potential for dealing with resourcing issues, careful consideration will
need to be given to how exchanges will be funded, along with other practical
issues such as the arrangements for determining when an exchange may be
appropriate and who is selected.[11]
5.11
Nonetheless, the Law Council expressed the view that there can be real
benefits in terms of an education process for the judges themselves.[12]
5.12
The Judicial Conference of Australia is in favour of horizontal and
vertical judicial exchange.[13]
Justice McColl articulated the benefits for the committee:
Just dealing with the substantive legal position, one's
experience is always enhanced by the infusion of ideas from other
jurisdictions, and so just the fact of sitting on various different courts
would bring a benefit to the public in a form of indirect legal education. For
the courts, the obvious advantage to which I referred earlier is the immediate
filling of holes when there is a shortage of judges and the like and, if there
was an objective of ultimately having a national judiciary that would work
towards that object as well, providing a testing ground for that ultimate
concept.[14]
5.13
A Head of Jurisdiction model protocol for judicial exchange was provided
to the committee by Justice McColl, who noted that it was developed 'with a
view to providing a framework for arrangements to be made for the short term
exchange of judges between those Courts.'[15]
The model developed outlines detailed objectives of judicial exchange (such as
to promote best practice and the effective allocation of judicial resources)
with the exchange to take place only with the agreement of the Attorney‑General
of the relevant jurisdictions and head of jurisdiction of the courts involved.
The protocol also has some provisions dealing with costs, duration and
administrative arrangements.[16]
5.14
The model protocol is a useful starting point for the further work
needed to develop a national judiciary or a national approach to judicial
exchange. Another contribution to this area is a detailed paper delivered in
2005 by the current Chief Justice of the High Court titled Judicial Exchange
– Debalkanising the Court when he was a judge of the Federal Court of
Australia.[17]
The purpose of the paper was to:
...propose the development of a comprehensive system of horizontal
and vertical judicial exchanges throughout Australia with a view to advancing:
-
Individual
judicial performance.
-
The
performance of the courts as institutions.
-
Allocation
of national judicial resources to areas of local need including the need for
specific expertise.
-
The
attractiveness of judicial appointments in all jurisdictions.
-
Consistent
Australia-wide approaches to the administration of justice while maintaining
healthy institutional pluralism.
-
National
collegiality between Australian judges.[18]
5.15
The paper extensively examines the historical context and constitutional
framework and develops options for effective judicial exchange, including
considerations for horizontal and vertical exchange programs. Importantly, the
author's view is that 'exchange can be done for the most part administratively
although statutory amendments may facilitate it,'[19]
though constitutional amendment will be needed if exchanges to the Federal
Court or Family Court are contemplated with judges from other jurisdictions.[20]
5.16
Challenges are inherent in a project of this complexity. Even the
preliminary step of increased and formalised vertical and horizontal judicial
exchange is not straightforward. As Justice McColl pointed out:
... it may be possible for federal judges to sit on state
courts but, as I say, not vice versa and that would have to be addressed...It
does require legislation in each state and territory...to enable judges from
other jurisdictions to sit in other states and obviously follow up on
administrative arrangements.[21]
5.17
In addition to the constitutional reform needed for state judges to
work in the federal jurisdiction, there are other complications. As the
ICJ-Victoria commented:
... such a step would not be straightforward. The history of
each of the Australian States has resulted in the development of six or more
similar but separate systems. In some cases those systems have been tailored to
cope with the particular needs or requirements of particular jurisdictions.
Ultimately, however, the ICJ supports a national judicial system and supports a
trend in that direction.[22]
5.18
And as a further cautionary note the ICJ-Victoria added:
...the principle of separation of legislative, executive and
judicial powers reflected in the Australian Constitution has not been taken to
apply with the same strictness at the State level.[23]
Committee view
5.19
The committee notes that even support for the development of a national
judicial framework (as opposed to the even more vexing establishment of a
national court structure) is constrained by the likelihood of it facing
significant challenges: the assessment that a national framework is 'potentially
more achievable' than a national court structure demonstrates little confidence
in its speedy development. The committee is cautious about what can be achieved
through a national judiciary. Although not as pessimistic as the Law Council, the
committee agrees with the council that it is important to ensure that:
-
in any scheme advantages of the approach need to be practically
directed to material and worthwhile changes to the way that justice is
administered, as well as delivering benefits to judges;
-
the practical issues of a judicial exchange scheme will need to
be very carefully considered to ensure that any system is effective and
efficient; and
-
while there are potential benefits to litigants and to the
administration of justice 'arising from a carefully designed protocol for
judicial exchange the dangers of weakening the system and undermining
confidence in the judiciary are real.'[24]
5.20
The Law Council suggests this process should 'start slowly and at
appellate level, with agreement between particular courts to ensure that
visiting judges are likely to be able to contribute to cross‑fertilisation.'[25]
5.21
Despite the challenges, the committee view is informed by (now) Chief
Justice French's view that:
In my opinion a judicial exchange system has much to offer
both the judiciary and the Australian community. Formulating, promoting and
implementing it will be a significant task. It is, however, a necessary aspect
of the maturing of the Australian judiciary which is in itself an important
element of our nation building.[26]
5.22
Therefore the committee supports the Attorney‑General's Department
and SCAG consideration of progressing arrangements for improved judicial
exchange and, eventually, the establishment of a national judiciary.
Cross-vesting
5.23
Another aspect of the interface between the federal and state judicial
systems that was the subject of comment to the committee was the federal-state
cooperative arrangements that were rendered impossible by the High Court's 1999
decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511. That
decision held that The Constitution establishes that disputes arising under
State law could not be determined in the Federal Court, but can only be
determined in the separate courts of each State. This meant that aspects of schemes
such as the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) were
unconstitutional. As described by Justice McColl of the Judicial Conference of
Australia:
the real, practical effect of the cross‑vesting system
was to facilitate the ease of transfer of cases both horizontally and
vertically. Unfortunately, there were constitutional obstacles identified in Wakim which prevented that, at least insofar as cross‑vesting matters from
state to federal courts was concerned.[27]
5.24
Therefore, the result of the Wakim case is 'that except in an
incidental fashion where Federal courts exercise accrued jurisdiction, it is
not possible for state jurisdiction to be vested in federal courts.'[28]
5.25
As has been well documented elsewhere, the High Court decision the
following year of R v Hughes (2000) 202 CLR 535 was a further set‑back
for cooperative Commonwealth-State relations: it meant that a national
enforcement agency might only be able to enforce an offence where the offence
could have been legislated independently by the Commonwealth under one of its
constitutional heads of power. As the Gilbert + Tobin Centre noted:
Of course, if the Commonwealth already had the power to enact
the scheme there would not have been the need for a cooperative arrangement
underpinning the [law] in the first place.
5.26
These issues have a link to the idea of a national judicial framework to
the extent that it would complement an arrangement where judges could move from
jurisdiction to jurisdiction. As the Law Council noted:
The goals of judicial integration and a single court system
in Australia have been debated extensively over the years. In the absence of
constitutional amendment, these were sought to be effected by the cross‑vesting
scheme, but this effectively collapsed in 1999. The full potential of judicial
exchange would be best served if it was able to be married to effective
jurisdictional exchange.[29]
5.27
Direct solutions to these difficulties are limited. The options apparent
to the Gilbert + Tobin Centre are either a change of approach by the High Court
or removing the flaw in the Constitution that prohibits the Federal Court from
resolving disputes under state law.[30]
The Centre notes that in technical terms the amendment would be straightforward
and would not need to grant or transfer power to the Commonwealth: it would
simply entrench the legal propositions that (1) the States may consent to
federal courts determining matters arising under their law; and (2) the States
may consent to federal agencies administering their law.[31]
5.28
Not everyone is of the view that there is a problem that needs solving.
For the States, the issues are more limited, or non-existent. For example,
Chief Justice Warren of the Supreme Court of Victoria does not identify any
concerns, and notes that 'Australia is fortunate to have a system in which
federal jurisdiction is vested in State courts avoiding the difficulties
experienced in federations with entirely separate State and Federal
jurisdictions and court systems.'[32]
5.29
Particularly in relation to criminal matters there is a view that the
current system in which the state Supreme and District Courts have the capacity
to exercise the jurisdiction of the Commonwealth in criminal matters operates
effectively. As Acting Chief Justice Murray of the Supreme Court of Western
Australia observed:
I cannot see why one would want to depart from that system
and create a separate criminal jurisdiction within, presumably, the Federal
Court to run in parallel with the handling of federal criminal matters by state
courts.
5.30
While noting that amendment to The Constitution, which requires a referendum,
is notoriously costly and difficult, the issue of 'cross-vesting' remains a
matter of significant concern to some. For example, the 1988 Constitutional
Commission recommended amending the Constitution and more recently the Business
Council of Australia listed, in November 2006, as one of its official 'action
points':
ACTION 8 The Commonwealth and state governments should work
together to initiate and support an amendment to the Constitution to include an
express provision that the states may choose to allow Commonwealth courts to
determine matters under state laws and to allow Commonwealth agencies to
administer state laws.[33]
5.31
The Gilbert + Tobin Centre argues that despite the costs associated with
constitutional amendment, it is unsatisfactory for The Constitution to remain
outdated in this way:
On the other hand, the cost of not adapting the Constitution
to Australia's contemporary needs is potentially far higher, including wasted
expenditure on courts because the cross-vesting of matters is not possible and
the associated costs for parties. Less quantifiable costs can include a loss of
confidence in the stability of a regulatory regime and an inability to achieve
appropriate policy outcomes because cooperative schemes based upon a referral
of power are not politically achievable.[34]
5.32
The Attorney‑General's Department has advised the committee that
it '...has given careful consideration to the High Court's decision in Re
Wakim; ex parte McNally (1999) 198 CLR 511. There is no proposal to amend
the Constitution.'[35]
Committee view
5.33
Despite the fact that there continues to be some grumbling about the failure
of the cross‑vesting and similar legislation, the committee is not
persuaded that this is an issue that should be at the forefront of
constitutional reform. The committee agrees that the arrangements are not
optimal, but is of the view that it is incumbent upon those who are
significantly adversely affected by the impact of the Re Wakim and R
v Hughes decisions to fully articulate the case for reform.
Jurisdictional overlap
5.34
The Federal Court has noted that the jurisdictional overlap provides a
choice between federal and state judicial systems, but that there is a degree
of inconsistency. For example, to ensure the consistency of jurisprudence in
intellectual property matters there is an appeal from the Supreme Courts of the
states to the full Federal Court. However, this system is not applied in all
areas of the law. The Federal Court suggests that:
It might be thought appropriate, on the basis of developing a
consistent rational and principled approach to the question of conferring
Commonwealth jurisdiction on Commonwealth and/or State and Territory courts
that, the similar approach be taken in other federal areas, such as admiralty.[36]
5.35
The Family Court also highlights the need for national uniformity and
consistency in de facto property matters. As the court explains:
Changes to the Family Law Act 1975 (Cth) in this area
are a result of referrals from the majority of the States to the Commonwealth
of power to legislate in this area of the law. The Family Law Courts only have
jurisdiction over de facto property matters in participating jurisdictions,
being all States and Territories except for South Australia and Western
Australia – the only two States not to refer their power in this area.
As a consequence of non-referral, persons in a de facto
relationship who are ordinarily resident in South Australia will not be able to
apply to the Family Law Courts for relief. Western Australia, having its own
Family Court with federal jurisdiction, has jurisdiction over de facto property
matters. However, the Family Court of Western Australia cannot make a
superannuation splitting order in these matters, and that is a significant
problem. These examples demonstrate how de facto couples in both jurisdictions
may be at a disadvantage by virtue of the failure to refer power.[37]
5.36
A similar concern also relates to another area of the jurisdictional
interface between the federal and state judicial systems in family law cases.
The constitutional division of responsibilities between the Commonwealth and
the States are said to:
...have served to inhibit the ability of the Family Law Courts
to deal effectively with some matters such as child welfare and child
protection in an appropriately holistic way. Jurisdictional issues in these
areas are not new or groundbreaking but create inefficiencies for litigants,
the Courts, relevant government agencies, taxpayers and the public at large.
Further, the inability re resolve such jurisdictional issues serves only to
generate hostility towards organisations like the Family Law Courts, which, in
turn has far reaching consequences for an accessible justice system. These
issues require serious consideration by appropriate bodies such as the Council
of Australian Governments and the Standing Committee of Attorneys‑General.[38]
5.37
The Family Court has made a number of suggestions about how this can be
improved, and recognises that 'as child protection is a traditional legislative
area of the States, it is acknowledged that there would be constitutional
impediments to be overcome in order for any additional powers regarding child
protection to be conferred on the Family Law Courts.'[39]
Extent of the Federal Court jurisdiction
5.38
The Federal Court has also brought to the committee's attention an issue
in relation to the breadth of its jurisdiction. The court explains that section
39B of the Judiciary Act 1903 confers much, but not all, of the
jurisdiction in sections 75 and 76 of the Constitution.[40]
The court is seeking 'a clear and comprehensive conferral' such as in section 39(2)
of the Judiciary Act which gives State courts jurisdiction over matters
listed in sections 75 and 76. In the court's view this approach:
...would make the jurisdictional foundation of the Court clear
and coherent. It would make the civil jurisdiction of the Court fully
coordinate with the federal civil jurisdiction exercisable by the State and
Territory courts under ss 75 and 76 of the Constitution. It would remove the
anomalous situation that currently exists whereby the Federal Court has less
federal civil jurisdiction than that of the State and Territory courts.[41]
5.39
The committee is concerned about the issues raised and encourages the
government to review them as soon as possible.
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