Re Judiciary Act 1903-1920 & in Re Navigation Act 1912-1920

[1921] HCA 20
29 CLR 257

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(Decision by: Higgins J)

Re Judiciary Act 1903-1920 & in Re Navigation Act 1912-1920

Court:

Judges: Knox CJ

Higgins JGavan 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

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Decision by:
Higgins J

The Governor-General in Council, acting in pursuance of Part XII. of the Judiciary Act, has referred to this Court a question of law as to the validity of certain sections of the Navigation Act-which has been enacted but not yet proclaimed.

The preliminary point is taken, by counsel for the State of Victoria, that Part XII. is itself invalid, and that the Commonwealth Parliament had no power to confer on the Court jurisdiction to hear and determine the question. The State of Western Australia and a number of shipowners support Part XII. as valid.

It is the Executive Government of the Commonwealth that asks for our determination as to the Navigation Act. Under sec. 61 of the Constitution, the executive power is vested in the King and is "exercisable by the Governor-General as the King's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth." When the Navigation Act is proclaimed, certain drastic provisions for manning and accommodation, involving grave structural alterations in the ships, will (if that Act is valid) apply to the ships; and the Government and the shipowners want to know how far the shipowners are obliged to obey the provisions; and how far the Government can enforce them. The question before us now is, therefore, had Parliament power to enable the Government to come to this Court for guidance before taking the responsibility of enforcing the provisions. To ascertain, as far as it is possible to ascertain, whether the sections of the Navigation Act are valid is necessary-incidental-to the execution and maintenance of the Constitution and the laws. But, it is said, Parliament has no power to confer upon this Court jurisdiction to hear and determine the question of validity.

Under sec. 51 of the Constitution the Parliament has power to make laws for the peace, order and good government of the Commonwealth "with respect to" many subjects, including trade and commerce with other countries and among the States; and it has also power (pl. xxxix.) to make laws "with respect to matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth." Part XII. of the Judiciary Act seems to me to come precisely under these words. The Government must execute the laws so far as valid; and in order to carry out its duty it is enabled by Part XII. to get the highest legal opinion in the country as to the validity of the sections before acting on them. In my opinion, Part XII. is valid, whether our determination is to be treated as mere advice or as a judicial decision.

Much argument has been addressed to the question, Is it mere advice or is it a judgment that this Court is to give under Part XII.? Counsel for the Commonwealth says it is mere advice. I cannot reconcile this view with the strong words "hear and determine," "final and conclusive," & c. One may conjecture that the draughtsman used these words (which are the same as used in sec. 73 of the Constitution, as to appeals to the High Court) in order to avoid the possible objection that a mere advisory opinion is not part of the judicial power of the Commonwealth (sec. 71), and in order to satisfy the pronouncements of the Supreme Court of the United States against the giving of advisory opinions. But, to my mind, the distinction is immaterial. The determination sought is to aid the Government in the carrying out of its executive functions; and that is enough.

That a determination would be an aid to the Government is unquestionable. It would not be a judgment binding all the world, as has been suggested, or binding as res judicata between parties who have not been heard; but it would be an authority of great weight-a decision which, unless overruled, the Courts would follow in actions between parties; just as a decision between A and B is an authority in a subsequent action between C and D. C and D are certainly "affected" by the decision between A and B; but it is open to C or D to satisfy this Court that the law of the decision was wrong. It is to be noticed that in sec. 93 the word "binding" is not used in addition to "final and conclusive"; it was so used in the analogous Tasmanian Act discussed in Moses v. Parker[ ^[10] ] "Final and conclusive" means, in my opinion, that the determination of the High Court is to be an end to the whole proceeding; and, lest it should be contended that it is to be final and conclusive as to the High Court only, the words are added "and not subject to any appeal." It is unnecessary to consider the effect of these last words on the prerogative right of the King to admit appeals, as we are concerned at present with the intention of Parliament in the Act; but it is worthy of notice that, in the Orders in Council reserving this prerogative right, the words used are "judgment or determination" (cf. Order in Council, 9th June 1860). It is also unnecessary to consider at present whether the parties who are heard, or who have an opportunity to be heard, before the High Court, are bound by the determination, as suggested by counsel for the shipping companies. It is enough to say that in the absence of clear words to the contrary we must accept that meaning for Part XII. which is in accord with the first principles of justice-that a man's rights are not to be bound by a decision in a proceeding in which he had no opportunity of being heard (Cooper v. Wandsworth Board[ ^[11] ]; Broom's Legal Maxims, 8th ed., pp. 91, 267; Maxwell on Statutes, 6th ed., pp. 149 et seq.); and that in an ordinary controversy between parties, the determination under Part XII. would not support any plea of res judicata. Nevertheless, the proceeding, the determination, is judicial. It is not judicial in the sense of settling a specific litigation between parties but in the sense of pronouncing the law authoritatively. The determination would be treated as an authority in the Courts of Australia until overruled either by the High Court or by the Privy Council. It is not necessary for a judicial proceeding that there should be opposing parties. I put during the argument the case of an application to a Court by the committee of a lunatic as to residence of the lunatic. There is also the case of an application for letters of administration, unopposed. Even if the application is non-contentious, there can be an appeal from a refusal on the part of the primary Judge (In re Clook[ ^[12] ]). So in the case of an application for the renewal of a patent, & c.

These considerations bring me to say something as to Chapter III. of the Constitution-"The Judicature." It is said that this Court, as a Court, is forbidden by the Constitution to perform any functions which are not within "the judicial power of the Commonwealth," and that the function of determining the validity of an Act except between litigating parties is not within that judicial power. I cannot accept either proposition. To say that Blackacre shall be vested in A (and in A only) does not carry as a corollary that Whiteacre shall not be vested in A; to say that the judicial power of the Commonwealth shall be vested in the High Court (and other Federal Courts and such other Courts as Parliament invests with Federal jurisdiction-sec. 71 of Constitution) does not imply that no other jurisdiction, or power, shall be vested in the High Court or in the other Courts. This is surely obvious, on the mere form of words. There is a great deal of force in the argument, favoured by lawyers, that decisions of a Court where there is no active controversy between interested parties are not so valuable as when there is such controversy; and that, when a litigated case comes before the Court subsequently, the Court would approach it with prejudiced minds. But this argument is an argument of expediency, and is not for us. It may be that we shall have in the future attempts at preventive law as well as at preventive medicine, and that, on a balance of expediencies, the law-makers may prefer judicial proceedings before acting, rather than to keep all judicial proceedings till after the doubtful step has been taken. The point is that the Constitution does not expressly forbid the vesting of other powers in this Court, and that there is no necessary implication to that effect. In the next place, I think that an application under Part XII. does come (if that is necessary) within the words of sec. 76, "matter arising under this Constitution, or involving its interpretation." Counsel for the State of Victoria says that "matter" in this contest means a "claim of right": but this definition is too broad, I think, in that it omits the idea of some curial proceeding; and too narrow, in that it assumes that there must be a contest between parties. It is not necessary that a "matter" should be between parties. I pass by the fact that in the Judiciary Act itself, "matter" includes any proceeding in a Court "whether between parties or not"; for it may be urged that the Act was not in force at the time of the Constitution. But in the English Judicature Act 1873 the word "matter" is defined as "every proceeding in the Court not in a cause"; and "cause" includes "any action, suit, or other original proceeding between a plaintiff and a defendant." This is the language of the Parliament which enacted our Constitution; and the distinction between "causes" and "matters" or "suits" and "matters" was common in still earlier legislation (15 & 16 Vict. c. 80; 15 & 16 Vict. c. 86; General Orders of 1841). In the Oxford Dictionary the meaning of "matter," as used in law, is "something which is to be tried or proved." It may be that the connotation of words used in the Constitution may not be extended by Parliament; but surely not the denotation. The Constitution does not stereotype the denotation of words for all subsequent time. The States can create new matters. Any State may hereafter adopt the French law of prodigue, under which a wife may apply for an interdict against extravagance on the part of her husband; and if such a law were adopted the High Court would have jurisdiction of the matter (or cause) if it involve in any way the interpretation of the Constitution. What the State can do, the Commonwealth can do-within the ambit of its specific subjects; and if the Commonwealth Parliament see fit to create a new legal proceeding under sec. 51 (XXXIX.), that legal proceeding comes under the High Court jurisdiction to decide matters involving the interpretation of the Constitution (sec. 76).

But, in my opinion, the only real question necessary to decide here is the meaning of sec. 51 in its relation to sec. 61 of the Constitution. Hitherto, this Court has given the widest construction to pl. xxxix. and to the words "with respect to" in the opening words of sec. 51. In the Jumbunna Case[ ^[13] ] it was held that Parliament could assist the operations of the Court of Conciliation, which it had created under pl. xxxv., by providing for the registration and incorporation of industrial associations. It is true, of course, that to create corporations is not to act judicially; but by sec. 31 of the Conciliation Act Parliament has authorized the Court of Conciliation to state a case for the opinion of the High Court, and has authorized the High Court to hear and determine it. This legislation was held to be valid (Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Proprietary Co.[ ^[14] ]). Yet it gives the High Court judicial power which cannot be brought within sec. 75 or sec. 76 of the Constitution. The points of law need not be points "arising under this Constitution, or involving its interpretation," & c. The case is stated by the President for his own guidance, whether the parties to the conciliation proceedings ask him or not, and even though they may not (they often do not) discuss the points. Moreover, Parliament has, by sec. 21AA of the Conciliation Act, given the High Court jurisdiction to decide as to the existence of an industrial dispute, or "on any question of law arising in relation to the dispute ... or to any award or order of the Court." This legislation has also been held to be valid (Federated Engine-Drivers' and Firemen's Association of Australasia v. Colonial Sugar Refining Co.[ ^[15] ]). Yet it gives judicial power which cannot be brought under Chapter III. of the Constitution at all. The High Court is enabled to decide questions which do not arise between parties asserting "existing claims of right" in a legal controversy or at all. The Court of Conciliation does not, either in its primary function of procuring agreement (conciliation) or in making awards (arbitration) determine existing rights: it rather is an instrument for creating rights. In both instances, there was no "matter" actual or possible until Parliament specially created it. "Matter" does not mean merely legal proceeding, but some legal proceeding is probably implied-not necessarily a proceeding where some immediate right, duty or liability is to be established by the determination of the Court; for under such a limited meaning the High Court could not decide as to the existence of an industrial dispute under sec. 21AA.

Nor is the jurisdiction given to this Court to entertain and give a determination as to law in non-litigious matters anything startling or novel. In the British Act which organized the Judicial Committee of the Privy Council (3 & 4 Will. IV. c. 41) His Majesty was empowered to refer to the Judicial Committee "for hearing or consideration" any matters (other than appeals, & c.) as His Majesty thought fit; and the Committee has to hear or consider the same, and advise His Majesty (sec. 4). It appears that the Judicial Committee, when acting under this section, does not make a pronouncement in a formal reasoned judgment, but merely advises His Majesty (Bentwich's Privy Council Practice, p. 241). As Lord Loreburn L.C. said in Attorney-General for Ontario v. Attorney-General for Canada[ ^[16] ]), the Judicial Committee exercises most important judicial functions, yet it is bound to answer His Majesty under this section; and there never has been any suggestion of inconvenience or impropriety. In Canada in several successive Acts the Government was enabled to put before the Supreme Court of Canada questions touching the validity of Dominion or Provincial legislation. In the Act of 1906 (sec. 6): "The opinion of the Court upon any such reference although advisory only shall for all purposes of appeal to His Majesty in Council be treated as a final judgment of the said Court between parties." These words imply that for other purposes the opinion is not to be treated as a res judicata between parties, and yet an appeal lies to the Judicial Committee therefrom. Many such appeals have been heard. In this case sec. 6 was held to be valid; although the argument was used that it was an interference with the judicial character of the Supreme Court, and that the Judges would approach litigation with preconceived opinions. That, the Judicial Committee said, was a matter of policy for Parliament to consider. But for the fact that in Canada the residuary powers of legislation belong to the Dominion, not to the Provinces, this case would be a direct authority in favour of Part XII. of our Act. Why should the Canadian Court have jurisdiction to give an opinion that may be the subject of an appeal, and yet the Australian Court be incapable of giving a determination that is not subject to appeal? In both cases, there is no litigation between parties.

It is true that in the United States the Supreme Court has steadfastly refused to advise the Executive on its request. The principle has been recently stated and explained in United States v. Evans[ ^[17] ]. In 1793 Washington, as President, sought to take the opinion of the Supreme Court as to various questions arising under treaties with France; but there was no response. Marshall C.J. thus speaks of the matter in his Life of Washington: "Considering themselves as merely constituting a legal tribunal for the decision of controversies brought before them in legal form, the Judges deemed it improper to enter into the fields of politics by declaring their opinions on questions not arising out of the case before them." But it will be observed that the question put by Washington was a question under a treaty; and, whatever the question was, it was assumed to be a question of politics, as to external relations-a matter for the Executive, or for Congress. No American case has been cited to us in which, under the Constitution of 1789, an Act of Congress has been held to be invalid which purported to give to the Supreme Court jurisdiction to state the interpretation of the Constitution, or to pronounce as to the validity of an Act made as under the Constitution. Probably the difficulty in the way of such an Act is greater than under our Constitution; because in the article of the United States Constitution as to judicial power the words used are not so wide as in our Constitution. Here, the words are "matters arising under this Constitution, or involving its interpretation" (sec. 76); in the United States the words are "all cases in law and equity arising under the Constitution." There must be in the United States, a case or a controversy, at law or in equity, between litigating parties. The position is very different.

There is nothing in the utterances of the members of the Bench in State of South Australia v. State of Victoria[ ^[18] ] that conflicts with the view which I here express. There, the discussion was as to sec. 75 of the Constitution-"matters between States"; and the word "between" necessarily implies a litigious case or controversy. It was clear that the action could not be maintained unless there were such a case or controversy; and my difficulty was that the State of South Australia, as a mere donee of a power, had no cause of action.

To sum up:-Part XII. of the Judiciary Act purports to enable the High Court to exercise a judicial function, in aid of sec. 61 of the Constitution. This function is either within "the judicial power of the Commonwealth" referred to in sec. 71 of the Constitution, or it is not. In my opinion, it is within that judicial power; for it is the function of deciding a "matter arising under the Constitution, or involving its interpretation," within sec. 76. But even if it is not within sec. 76, there is nothing in the Constitution to prohibit Parliament from giving other functions to the High Court than the exercise of "the judicial power" referred to in Chapter III.; and we are not justified in implying such a prohibition.

The separation of the legislative, executive and judicial powers under the Constitution leaves these arms of the Commonwealth interdependent. In Australia executive Ministers must sit in the Legislature (sec. 64) (not as in the United States); and Parliament can regulate the working of the judicial power. There is nothing in the separation of powers that necessarily involves that the High Court cannot be employed to aid the Executive-judicially, at all events.

I much regret to find myself differing from my learned colleagues, but I can see no sufficient ground for holding Part XII. of the Judiciary Act to be invalid.

Solicitor for the Attorney-General for the Commonwealth, Gordon H. Castle, Commonwealth Crown Solicitor.
Solicitor for the Newcastle and Hunter River Steamship Co. and others, H. de Y. Scroggie.
Solicitor for the Attorney-General for Western Australia, F. L. Stow, Crown Solicitor for Western Australia.
Solicitor for the Australasian Institute of Marine Engineers and others, Sullivan Brothers.
Solicitors for the Attorney-General for Victoria, E. J. D. Guinness, Crown Solicitor for Victoria.