High Court resolves outstanding doubts concerning federal jurisdiction

In Rizeq v Western Australia [2017] HCA 23, the High Court had the opportunity to resolve some doubts about the sources of law in federal jurisdiction and about the operation of s 79 of the Judiciary Act 1903 (Cth).

Rizeq v Western Australia [2017] HCA 23 

In summary, the High Court held that:

• Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws.
• A State law cannot, within the limits of State legislative capacity, govern the exercise of federal jurisdiction by a court. That is, a State law cannot determine the powers that a court has in the exercise of federal jurisdiction, or how or in what circumstances those powers are to be exercised.
• The operation of s 79 of the Judiciary Act 1903 (Cth) is limited to making the text of State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.

The opportunity to consider these issues arose in the context of an appeal against convictions on two charges of offences against the Misuse of Drugs Act 1981 (WA).

The State of Western Australia indicted Mr John Rizeq, a resident of New South Wales, in the District Court of Western Australia on two charges of offences against s 6(1)(a) of the Misuse of Drugs Act. After a trial by jury, the jury was unable to reach a unanimous verdict on either charge. Under s 114(2) of the Criminal Procedure Act 2004 (WA), the District Court took the decisions of 11 of the 12 jurors to be verdicts of guilty. The District Court accordingly convicted Mr Rizeq of both offences.

Because the controversy as to Mr Rizeq’s criminal liability was a matter between a State and a resident of another State within the meaning of s 75(iv) of the Commonwealth Constitution, the District Court was exercising federal jurisdiction under s 39(2) of the Judiciary Act in conducting the trial and entering the convictions.

Mr Rizeq argued that, because the District Court was exercising federal jurisdiction, Western Australian law could not apply to the determination of his criminal liability. Instead, on his argument, s 79 of the Judiciary Act operated to pick up and apply the text of s 6(1)(a) of the Misuse of Drugs Act as a Commonwealth law. Accordingly, it was argued, Mr Rizeq’s trial was a trial on indictment of offences against a Commonwealth law, with the result that s 80 of the Commonwealth Constitution required the verdicts of the jury to be unanimous.

The High Court unanimously rejected this argument and dismissed the appeal.

In a joint judgment, Bell, Gageler, Keane, Nettle and Gordon JJ considered in some detail the nature of federal jurisdiction, the sources of law in federal jurisdiction, and the history and operation of s 79 of the Judiciary Act. Chief Justice Kiefel and Edelman J delivered separate judgments. In their joint judgment, Bell, Gageler, Keane, Nettle and Gordon JJ explained when a State law will apply of its own force in federal jurisdiction, and when s 79 of the Judiciary Act will operate to pick up the text of a State law and apply it as Commonwealth law.

Their Honours observed that federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws. It is distinct from State jurisdiction, which is the authority to adjudicate derived from State constitutions and laws. In both cases, the existence of jurisdiction depends on the source of the authority to adjudicate, rather than on the law to be applied. Accordingly, the resolution of a matter within federal jurisdiction may involve the application of both Commonwealth law and State law.

Under s 39(2) of the Judiciary Act, the Commonwealth Parliament has invested State courts with federal jurisdiction in specified categories of matters. In respect of these categories of matters, State courts are invested with federal jurisdiction to the exclusion of State jurisdiction.

Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws. However, State parliaments do not have the capacity to enact laws which add to or detract from federal jurisdiction, or which command a court — including a State court — as to how or in what circumstances it may exercise federal jurisdiction conferred on it. Their Honours held that the incapacity of State parliaments to enact such laws “explains the necessity for s 79 of the Judiciary Act and is the key to understanding the nature and extent of its operation”.

Section 79(1) of the Judiciary Act provides that: “The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

Justices Bell, Gageler, Keane, Nettle and Gordon held that s 79 operates by “filling the gap” in which State laws cannot govern the exercise of federal jurisdiction. It does so by “picking up” and applying as Commonwealth law the text of State laws governing the exercise of State jurisdiction. This is the extent of the operation of s 79. Accordingly, whether s 79 will operate to “pick up” a State law will depend not on whether the law is characterised as being “substantive” or “procedural”, or as directed to courts rather than persons, but on whether the State law would be outside the limits of State legislative capacity if it purported to bind a court in the exercise of federal jurisdiction.

Applying this analysis to Mr Rizeq’s argument, their Honours held that s 6(1)(a) of the Misuse of Drugs Act was squarely within State legislative competence, and therefore outside the operation of s 79 of the Judiciary Act. It therefore applied in the trial as a Western Australian law, and did not attract the operation of s 80 of the Commonwealth Constitution. By contrast, the application of s 114(2) of the Criminal Procedure Act to a Western Australian court exercising federal jurisdiction was beyond the competence of the Parliament of Western Australia. Therefore, the text of s 114(2) was applied, as Commonwealth law, to the District Court exercising federal jurisdiction, and the majority verdicts were valid.