State Jurisdictional Residue: What Remains to a State Court When Its Chapter III Functions are Exhausted?
| Author | Helen Irving |
| Published date | 01 March 2014 |
| Date | 01 March 2014 |
| DOI | http://doi.org/10.22145/flr.42.1.5 |
| Subject Matter | Article |
STATE JURISDICTIONAL RESIDUE: WHAT REMAINS TO A
STATE COURT WHEN ITS CHAPTER III FUNCTIONS ARE
EXHAUSTED?
Helen Irving*
ABSTRACT
Momcilovic v The Queen (2011) 245 CLR 1 provided the first opportunity for the High
Court of Australia to consider the constitutional validity of a 'declaration of
inconsistent interpretation ' made under s 36 of the Charter of Human Rights and
Responsibilities Act 2006 (Vic). The Court's ruling on this p oint attracted attention going
well beyond the rest of the case. The constitutional status of the Charter's 'declaration'
function had long been uncertain; in addition, a lthough the case concerned a
conviction under State law, the judgment of the Victorian Court of Appeal, from which
Ms Momcilovic's appeal had come to the High Court, had been exercised in federal
jurisdiction. This, the n, raised question s about the extent to which the State Court was
jurisdictionally limited, under the Kable doctr ine, by its 'identity' as a Ch III court:
whether the declaration power could be exercised by both, either, or neither, a State or
federal court. Notably, French CJ found the power valid for a State court, but i nvalid
for a federal court. In explaining his conclusion, the Chief Justice ide ntified what this
paper ca lls 'State jurisdictional residue.' In his Honour's words, 'there is no reason in
principle why the Court of Appeal, having exhausted its functions in the exercise of its
federal jurisdiction … could not proceed to exercise the distinct non-judicial power
conferred upon it by' the Charter. Further que stions were then raised about the extent
to which a State court, albeit exercising federal jurisdiction, remain s free to exercise a
'residual' State power relevant to the same proceedings. This paper considers such
questions. It also asks what the case might be for reconsidering Kable v Director of Public
Prosecutions (NSW) (1996) 189 CLR 5 1, particularly in light of the more recent judgment
in Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
I INTRODUCTION
Many issues faced the High Court in Momcilovic v The Queen;
1
among these was the
constitutional validity of 'declarations of inconsistent interpretation' made under
s 36(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) which
permits the Victorian Supreme Court to make a declaration, in a proceeding, 't hat a
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* Professor, Faculty of Law, The University of Sydney.
1
(2011) 245 CLR 1 ('Momcilovic').
2 Federal Law Review Volume 42
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statutory provision cannot be interpreted consistently with a human right', if it is of
that opinion.
The declaration power had been exercised for the first time i n 2010 by the Victorian
Court of A ppeal in Vera Momcilovic's application for leave to appeal against her 2008
conviction for drug trafficking under the Drugs, Poisons and Controlled Substances Act
1981 (Vic). The Court of Appeal refused Momcilovic’s application, but also made a
declaration that s 5 of the Drugs Act could not be interpreted consistently with the
presumption of inn ocence under s 25(1) of the Charter. Momcilovic appealed to the
High Court, where the co nstitutional validity of the declaration power was raised.
Four Justices found the power to be valid. Three found it invalid. Four held that it
could not be performed by a court exercising federal judicial power. French CJ was one
of the fir st four, and one of the second four. His Honour found the declaration power
to be valid for a State court in the exercise of State judicial power, but joined Gummow,
Hayne and Heydon JJ (for whom the declaration power was i nvalid tout court) when it
came to federal judicial power. The complication was that, when it made its
'declaration of inconsistent interpretation', the Victorian C ourt of Appeal was
exercising federal jurisdiction, under s 7 5(iv) of the Constitution, which applies to
matters '[b] etween States, or between residents of different States, or between a State
and a resident of another State'.
2
How, then, were the Chief Justice's conclusions
reconciled? His Honour stated that 'there is no reason in principle why the Court of
Appeal, having exhausted its functions in the exercise of its federal jurisdic tion . . .
could not proceed to exercise the distinct non-judicial power conferred upon it by' the
Charter.
3
The Chief Justice's obiter dictum generated many questions, some arising because
of the mere chance that the Victorian Court of Appea l had been exercising federal
jurisdiction at the time of M omcilovic's appeal, and others going to the wider issue of
whether and, if so, to what extent, a State court has a jurisdictional 'identity' (to use a
deliberately open-ended te rm) separate from its identity as a court vested with federal
jurisdiction under s 39(2) of the Judiciary Act 1903 (Cth) (‘Judiciary Act’), pursuant to s
77(iii) of the Commonwealth Constitution.
As noted, four Justices found the declaration power va lid for a State court in the
exercise of State jurisdiction; the power would, thus, have been available to the Court
of Appeal had it not been exercising federal jurisdiction. Thi s c ounterfactual
conclusion, however, does not resolve the issue. Three of these four Justices found the
power compatible with the Court's exercise of both federal and State jurisdiction, but
the Chief Justice, who found the power unavailable to the Court in t he exercise of
federal jurisdiction, but available in State jurisdiction, did not set out conclusively why
it might be available (in the sense of free from the limitations on jurisdiction that arise
from Ch III of the Constitution) to the Court — qua State court — at the same time. His
Honour a dverted to two possible explanations: one, that rights and liabilities arising
under State law might not be incorporated in the concept of a 'matter' in s 75(iv); and
secondly, that s 79 of the Judiciary Act, which acts to 'federalise' State laws when a State
court is exer cising federal jurisdiction, might not 'pick up' all aspects of the applicable
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2
The accused, Ms Momcilovic, was a resident of Queensland at the time of her trial in
Victoria, and federal jurisdiction was therefore engaged.
3
Momcilovic (2011) 245 CLR 1, 70.
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