High Court Rules on Remittal Power for Mandamus Cases

OUTCOME: Dismissed

High Court of Australia [NAME_1], [NAME_42], Gaudron, [NAME_1], [NAME_25] JJ Re [NAME_2]; Ex parte [NAME_3] (No 1) [1997] HCA 13

ORDER

1. Declare that the High Court does not have power under s 44 of the Judiciary Act 1903 Cth to remit the application by the prosecutor made by notice of motion dated 20 October 1995 to the [NAME_4] of Australia.

2. In default of agreement among them as to costs, the prosecutor, second respondent, third respondent and fourth respondent file within twenty-one days written submissions as to the appropriate order for costs including reserved costs.

The following written reasons for judgment were published:—

3 April 1997 Brennan CJ.

The prosecutor moved on notice before the [ADDRESS] of this Court for the issue of writs of certiorari and mandamus directed to [NAME_6] of the [NAME_4] of Australia. Before entering on the merits of the application, this Court considered whether the matter could or should be remitted to the [NAME_4] for determination. [ADDRESS] decided that it would not remit the matter to the [NAME_4] whether or not this Court had power to do so. [ADDRESS], differently constituted, proceeded to hear the motion. The motion was dismissed. The circumstances out of which the proceedings arose appear in the report of that decision [1] . The reasons for refusing to remit the matter to the [NAME_4] must now be stated.

1. Re [NAME_2]; Ex parte [NAME_3] [No 2] (1996) 70 ALJR 550136 ALR 233.

Jurisdiction to remit to another court a matter properly pending in this Court is conferred by s 44 of the Judiciary Act 1903 Cth, sub-ss (1) and (2) of which read:

(1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory.

A matter "in which a writ of mandamus is sought against an officer of the Commonwealth or a federal court" does not fall within any of pars (a), (b), (c) and (d) of s 38 of the Judiciary Act; it falls within par (e) of s 38 and is thus within the jurisdiction of the High Court of Australia exclusive of the jurisdiction of the several courts of the States. By s 39B of the Judiciary Act, Parliament conferred on the Federal Court of Australia jurisdiction to issue a writ of mandamus or prohibition directed to an officer of the Commonwealth (but not to a federal court). However, the conferral of the jurisdiction to issue mandamus or prohibition expressly excluded mandamus or prohibition directed to [NAME_7] of the [NAME_4] and [NAME_7] of the Family Court of Australia [2] . Thus the jurisdiction to issue mandamus or prohibition to the [NAME_7] of the superior courts of the Commonwealth remained exclusive to this Court.

1. At the time when the application for remittal was made, s 39B of the Judiciary Act read as follows: "(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to: (a) a person holding office under the [NAME_4] Act 1988 or the Coal Industry Act 1946; or (aa) without limiting paragraph (a) of this subsection, a Judge or [NAME_7] of the [NAME_4] of Australia; or (b) a Judge or [NAME_7] of the Family Court of Australia."

As the matter of the issue of writs of certiorari and mandamus directed to [NAME_6] fell outside sub-s (2) of s 44 of the Judiciary Act, it could not be referred to the [NAME_4] under that sub-section. Nor could the matter be remitted under sub-s (1) of s 44 unless the [NAME_4] had "jurisdiction with respect to the subject-matter and the parties".

The [NAME_4] Act 1993 Cth [3] inserted (s 56) s 412 in the [NAME_4] Act 1988 Cth. Sub-sections (2) and (3) of that section read as follows:

(2) For the purposes of section 44 of the Judiciary Act 1903, the [[NAME_4]] Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.

(3) [ADDRESS] has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.

The short question which arises is whether, by force of these provisions, the jurisdiction of the [NAME_4] extends to jurisdiction to issue a writ of mandamus directed to a Judge of that Court sitting as a Judge of that Court. In my view, the answer is: no. That answer can best be explained by reference to the events in the present case.

1. This judgment refers to the statutory position as it stood at the relevant time.

The jurisdiction which [NAME_6] was exercising in conducting an inquiry pursuant to s 219 of the [NAME_4] Act was the jurisdiction of the Court itself [4] . No appeal lay from [NAME_6] to the [ADDRESS] of the [NAME_4] [5] . The decision of [NAME_6] that he had no power to make the interim order sought by the prosecutor under s 221(1)(c) was made in exercise of that jurisdiction. It was the decision of the [NAME_4]. So long as that decision stood, the [NAME_4] could not act inconsistently with it [6] . [ADDRESS] could not command one of its own [NAME_7] to exercise the power which it had held it did not have. It is ludicrous [7] to contemplate a superior court having jurisdiction to determine in proceedings for mandamus or prohibition directed to itself whether its own decision as to its jurisdiction is correct.

1. [NAME_4] Act, ss 370(1), 415(1). 2. [NAME_4] Act, s 421. 3. Gray v Dalgety & Co Ltd (1916) 21 CLR 509 at 542 4. R v [NAME_8] of the [ADDRESS]; Ex parte [NAME_9] [1925] 2 KB 43 at 58-59, 60-61.

Isaacs J observed in R v [NAME_11]; Ex parte The Commonwealth [8] that "the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it". For that reason, the jurisdiction conferred on this Court by s 75(v) of the Constitution does not extend to the issue of a writ of mandamus or prohibition either to the Court itself or to a Justice exercising the jurisdiction of this Court [9] . Aliter, when a Justice of this Court sits as a Judge of another court or tribunal [10] .

1. (1916) 22 CLR 437 at 453. See also [NAME_13] (1977) 3 Fam LR 11,555 at 11,562; Bird v Free (1994) 126 ALR 475 at 478-480 [NAME_15], Laws of Australia, Title 2.6, Ch 4 (Prerogative Orders), par [106].

2. Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117See also Re Brennan; Ex parte [NAME_16] (1993) 67 ALJR 837 at 839116 ALR 619 at 622.

3. The Tramways Case [No 1] (1914) 18 CLR 54 at 70-71; Waterside Workers' Federation of Australia v [COMPANY_18] (1924) 34 CLR 482 at 553

The writ of mandamus is a supervisory remedy [11] , issuing to an officer subordinate to the jurisdiction of a superior court having jurisdiction to issue the writ, commanding the performance of a public duty which, in the opinion of the superior court, the officer has wrongly refused to perform [12] . A Judge of the [NAME_4] is not an officer subordinate to the jurisdiction of that Court. Nor could that Court form an opinion that a Judge had wrongly failed to exercise its jurisdiction when the decision of that Judge had the effect of a Court decision that there was no such jurisdiction to exercise.

1. R v Barker (1762) 3 Burr 1265 at 1267[97 ER 823 at 824-825]. 2. 3 Bl Comm 110; Short and Mellor, The Practice of the Crown Office, 2nd ed (1908), pp 197, 202.

It has been held that the conferral of jurisdiction on this Court to issue writs of mandamus and prohibition to judicial officers of the Commonwealth implied the conferral of an ancillary jurisdiction to grant certiorari [13] . Does the conferral of a jurisdiction on the [NAME_4] to issue mandamus or prohibition carry an ancillary jurisdiction to grant certiorari? Assuming that it does, the ancillary jurisdiction does not empower the Court to quash a judicial determination of an issue of fact or law in order to clear the way for the issue of a writ of mandamus. The jurisdiction in certiorari would be ancillary, that is to say, it would not expand the occasions when a writ of mandamus or prohibition would issue. It follows that the existence of an ancillary jurisdiction in certiorari could not empower the [NAME_4] to issue a writ of mandamus or prohibition to a Judge of that Court who, in exercise of the jurisdiction of the Court to decide a question of his or her own jurisdiction or power, had decided that question. The decision of [NAME_6] could be set aside only by this Court on an application for mandamus. If mandamus issued, the ancillary writ of certiorari could issue also to bring the decision up to be quashed.

1. Pitfield v Franki (1970) 123 CLR 448 R v [NAME_3]; Ex parte [NAME_20] (1980) 147 CLR 15 at 25-26, 32-33; Re [NAME_21]; Ex parte [NAME_22] (1989) 166 CLR 338 at 348

As a court cannot be vested with jurisdiction to issue mandamus or prohibition to a Judge of that court exercising the jurisdiction of that court, s 412(2) of the [NAME_4] Act cannot be construed as conferring on the [NAME_4] a jurisdiction to issue mandamus or prohibition to a Judge of that Court. The term "officer or officers of the Commonwealth holding office under this Act" in that provision must be construed as excluding [NAME_7] of the [NAME_4]. It follows that s 44(1) of the Judiciary Act did not empower this Court to remit the matter to the [NAME_4].

Dawson J.

Division 5 of Pt IX of the [NAME_4] Act 1988 Cth provides for inquiries into elections [14] Under s 218 of the [NAME_4] Act certain persons may apply to the [NAME_4] of Australia (the [NAME_4]) for an inquiry into an alleged irregularity in relation to an election for an office in an organisation registered under the [NAME_4] Act or a branch of such an organisation. An application was made under s 218 for an inquiry in relation to an election for offices in the [NAME_23] (the [NAME_23]) and in a branch of that organisation. An inquiry was instituted under s 219 of the [NAME_4] Act and, whilst it was being conducted, nominations were called for elections for offices on a Branch Committee of Management of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the [NAME_24]). The [NAME_24] was formed as a result of the amalgamation of the [NAME_23] with another organisation after the inquiry under Div 5 began.

1. The [NAME_4] Act 1988 Cth has been renamed the [NAME_4] Act 1996 Cth, and that Act and others have been amended in other respects, by the [NAME_4] and Other Legislation Amendment Act 1996 Cth. Further amendments were introduced by the [NAME_4] and Other Legislation Amendment Act (No 2) 1996 Cth. This judgment refers in the present tense to the statutory position as it stood at the relevant time.

Under s 221(1)(c) of the [NAME_4] Act, the [NAME_4] may, when an inquiry has been instituted, order that a person who holds, or last held before the election, an office to which the inquiry relates, may act or continue to act in the office. The prosecutor in this matter, who was not the applicant under s 218, applied to the [NAME_4] under s 221(1)(c) for an order that the then holders of the offices for which elections had been called be continued in office until the completion of the inquiry. The basis of the application was a contention that the irregularities in relation to which the inquiry had been instituted would be repeated in the later elections.

That application was heard by [NAME_6] who refused it, holding that the later elections were not for offices to which the inquiry related and that he had no power under s 221(1)(c). There was no avenue of appeal against the refusal of the order sought. Section 421 of the [NAME_4] Act provides that an appeal does not lie to a [ADDRESS] of the [NAME_4] from a judgment of the [NAME_4] constituted by a single judge in an inquiry referred to in s 219, and s 432(1) provides that an appeal does not lie to the High Court from a judgment of a single judge of the [NAME_4].

The prosecutor therefore sought to contest the decision of [NAME_6] by seeking a writ of certiorari to quash his decision and a writ of mandamus directing him to hear and determine the application under s 221(1)(c). The application for prerogative relief came before [NAME_25] and the question was raised whether he could or, if so, should remit that application to the [NAME_4]. In the light of that question, [NAME_25] directed that the application before him be made to a [ADDRESS] of this Court by motion upon notice. When the application came before a Full Bench of this Court upon notice of motion, it announced, after hearing submissions, that it would not exercise the power to remit, if any, which it might have. [ADDRESS] was then reconstituted to hear the remainder of the application on its merits. The reconstituted Court dismissed the motion [15] . These reasons relate, therefore, only to the power of this Court to remit the application for prerogative relief to the [NAME_4].

1. See Re [NAME_2]; Ex parte [NAME_3] [No 2] (1996) 70 ALJR 550136 ALR 233.

In Re [NAME_26]; Ex parte [NAME_27] [16] , I made an order on the papers, by consent and without argument, that an application for writs of mandamus and certiorari directed to a single judge of the [NAME_4] be remitted to the [NAME_4]. Upon the [NAME_28], the question of jurisdiction was raised before the [ADDRESS] of the [NAME_4] CJ, with whom Spender and Ryan JJ agreed, held that the [NAME_28] validly conferred jurisdiction upon that Court to entertain the application for prerogative relief [17] . In the present proceedings, having heard full argument, I am now persuaded that I had no power to make the orders which I did in Re [NAME_26]; Ex parte [NAME_27] .

1. Unreported; 13 December 1994. 2. See Re [NAME_26]; Ex parte [NAME_27] (1995) 1 IRCR 311129 ALR 255.

Under s 44(1) of the Judiciary Act 1903 Cth, this Court has power to remit a matter pending before it to any federal court, court of a State or court of a Territory "that has jurisdiction with respect to the subject-matter and the parties". Matters referred to in pars (a), (b), (c) or (d) of s 38 of the Judiciary Act are excluded from sub-s (1) of s 44; under sub-s (2) they may only be remitted to the Federal Court of Australia or any court of a State or Territory. But the matters referred to in s 38(e) are not excluded from sub-s (1) of s 44. The matters referred to in par (e) are "matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court". The jurisdiction of this Court in relation to those matters is conferred by s 75(v) of the Constitution, although that paragraph refers only to matters in which a writ of mandamus or prohibition (or an injunction) is sought against an officer of the Commonwealth and does not expressly mention a federal court as does s 38(e). But it is clear that [NAME_7] of a federal court are officers of the Commonwealth and the express mention of a federal court in s 38(e) would seem to be superfluous. As Gibbs J observed in R v Federal Court of Australia; Ex parte [NAME_29] [18] , it is settled by cases too numerous to mention that the expression "an officer of the Commonwealth" extends to judicial officers.

1. (1979) 143 CLR 190 at 215.

The [NAME_4] is, of course, a federal court (s 361(1)). It is a superior court of record (s 361(2)) and consists of a Chief Justice and as many other [NAME_7] as hold office under the [NAME_4] Act (s 361(3)). Although a judge of the [NAME_4] holds office under the [NAME_4] Act, in the sense that the terms of his or her appointment are prescribed by the [NAME_4] Act, the power to enact those terms is to be found in ss 71 and 72 of the Constitution under which he or she is also an officer of the Commonwealth for the purposes of s 75(v).

The power of this Court to remit a matter to any federal court under s 44(1) is dependent upon that court having jurisdiction with respect to the subject matter and the parties. In [NAME_30] v The Commonwealth [19] it was held that those words do not require the court to which a matter is to be remitted to have jurisdiction over the actual matter to be remitted; it is sufficient that it have jurisdiction over the same kind of subject matter and the same kind of parties as those over which this Court has jurisdiction. With this requirement in mind, the [NAME_4] Act relevantly provides in s 412 in relation to the [NAME_4]:

(2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.

1. (1979) 143 CLR 398.

Thus s 412(2) allows reliance to be placed upon s 44(1) of the Judiciary Act in ordering a [NAME_28] to the [NAME_4] of an application for prerogative relief against an officer of the Commonwealth — for example, a Commissioner of the [NAME_4] Commission — by deeming the [NAME_4] to have jurisdiction over the subject matter and the parties to such an application. Section 412(3) then confers jurisdiction upon the [NAME_4] to hear the [NAME_28]. That jurisdiction is conferred pursuant to s 77(i) of the Constitution, which empowers the Parliament to define the jurisdiction of a federal court.

Those sub-sections, read in combination with s 44(1) of the Judiciary Act, may give the impression that the legislation intended the [NAME_4] to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition is sought against a judge of that Court, for the words "an officer or officers of the Commonwealth holding office under this Act" appear without qualification and are apt to describe a judge of the [NAME_4].

However, s 412 of the [NAME_4] Act may be compared with s 39B of the Judiciary Act which, pursuant to s 77(i) of the Constitution, defines the jurisdiction of the Federal Court with respect to matters referred to in s 75(v) of the Constitution. It provides:

(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the [NAME_4] Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or [NAME_7] of the [NAME_4] of Australia; or

(b) a Judge or [NAME_7] of the Family Court of Australia.

That section makes apparent a legislative intention to deny to the Federal Court the jurisdiction to grant prerogative relief with respect to other federal courts with a co-ordinate jurisdiction as superior courts of record. The absence of any express reference in sub-s (2) to the Federal Court itself is explained by the fact that such a reference is unnecessary. The Federal Court could not, because of the constitution of that Court and because of the nature of s 75(v) relief, be supposed to have jurisdiction conferred on it to grant such relief against one of its own [NAME_7]. That was the explanation given by [NAME_31] in [NAME_32] v [NAME_33] [20] : The Federal Court of Australia consists of the [NAME_7] of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other [NAME_7] of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the [NAME_7] as a group can be treated, as occasion arises, as an authority vested in all save one of the [NAME_7] and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the [NAME_7] who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other [NAME_7] of the court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority. 1. (1994) 126 ALR 475 at 479.

As I have already noted, s 361(3) of the [NAME_4] Act provides that the [NAME_4] consists of all the [NAME_7] of the Court, including the Chief Justice. Section 415(1) provides that, subject to some exceptions, the jurisdiction of the Court may be exercised by a single judge. One of the exceptions is where jurisdiction is to be exercised in matters in which a writ of mandamus or prohibition or an injunction is sought against a Presidential member of the [NAME_4] Commission or officers of the Commonwealth at least one of whom is a Presidential member (s 415(2)(d)). This reflects the same kind of deference as is required of the Federal Court by s 39B of the Judiciary Act towards federal courts of co-ordinate jurisdiction in the exercise of its jurisdiction to grant prerogative relief, by excluding these courts from that jurisdiction. Each Presidential member of the [NAME_4] Commission has, under s 9(2) of the [NAME_4] Act, the same rank, status and precedence as a judge of the [NAME_4].

And it also suggests that it is unlikely that s 412(2) or (3) were intended to confer jurisdiction upon the [NAME_4], whether it be the [ADDRESS] or a single judge of that Court, to grant prerogative relief against itself in the form of another single judge.

The reason for the express provision in both the [NAME_4] Act and the Federal Court of Australia Act 1976 Cth that the jurisdiction of each of the courts might be exercised by a single judge is the notion which lies deep in history that a superior court of record comprises all its [NAME_7] who must act collectively in order to constitute the court. Thus at common law all trials by jury were originally held before the court in banc. When trials at nisi prius before a single judge were introduced, the judge took the verdict but could not enter judgment. He returned the verdict to the court and the court in banc gave judgment accordingly [21] . This was noted by Windeyer J in [NAME_34] v [NAME_34] [22] where he said that the meaning of the word "court" has come to us through a long history and observed:

According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge.

1. See South Eastern Railway Co v Smitherman (1883) 47 JP 773, cited in Musgrove v McDonald (1905) 3 CLR 132 at 147-148 2. (1970) 122 CLR 69 at 91.

But the jurisdiction of a superior court of record exercised by a single judge is still the jurisdiction of the court; there are not two courts, one comprising the single judge and one comprising all the [NAME_7]. Nor does the provision of an appeal from a single judge to a full court alter the situation for an order made on appeal is made in the exercise of a jurisdiction which is different from that of the judge at first instance. For a court to grant prerogative relief against one of its own [NAME_7] is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as "rather ludicrous" [23] . Thus, it was early recognised in this Court that it could not under s 75(v) of the Constitution grant prerogative relief directed towards itself [24] .

1. See R v [NAME_8] of the [ADDRESS]; Ex parte London County Council [1925] 2 KB 43 at 58 2. Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117 R v [NAME_11]; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453See also Re Brennan; Ex parte [NAME_16] (1993) 67 ALJR 837116 ALR 619.

In my view, it was unnecessary in s 412(2) of the [NAME_4] Act to exclude [NAME_7] of the [NAME_4] from the expression "an officer or officers of the Commonwealth holding office under this Act". There are others, notably members of the [NAME_4] Commission, who answer that description. By the very nature of his or her office and that of the [NAME_4], a judge of that Court cannot grant prerogative relief directed to the Court or another judge of the Court.

For these reasons, the [NAME_4] does not, in relation to an application for prerogative relief directed to itself, have jurisdiction over the subject matter or parties, and, under s 44(1) of the Judiciary Act, the foundation for a [NAME_28] to that Court of an application to this Court for prerogative relief directed to that Court is lacking. [ADDRESS] had no power in this case to order such a [NAME_28].

It is unnecessary to add anything further, save to draw attention to the fact that the relief sought was not only by way of a writ of mandamus but also a writ of certiorari. Section 75(v) of the Constitution does not refer to a writ of certiorari and the power of this Court to grant such a remedy directed to a superior court has been called in question, even where the relief claimed is ancillary to prohibition [25] . In the circumstances of this case, however, it is inappropriate to consider that question further.

1. See R v [NAME_35]; Ex parte [NAME_36] (1985) 157 CLR 351 at 385-389, per Deane J. [NAME_42] JJ.

The prosecutor, [NAME_38], is a member of the [NAME_23] ([NAME_23]). He seeks prerogative relief in the form of a writ of certiorari and a writ of mandamus against a number of respondents.

The first respondent is a Judge of the [NAME_4] of Australia. The second respondent is a member of [NAME_23]. The third respondent is [NAME_23] itself. The fourth respondent is the Australian Electoral Commission which has certain duties and functions under the [NAME_4] Act 1988 Cth (the Act) in regard to the conduct of elections (ss 210, 215, 217).

The background to the present proceedings is an application made, pursuant to s 218 of the Act, for an inquiry by the [NAME_4] into alleged irregularities in relation to an election for federal offices in [NAME_23] and for offices in the [NAME_23] Postal and Telecommunications Branch, New South Wales. The prosecutor did not initiate the inquiry ordered by the Court but he sought leave to intervene and thereafter was joined as a party to the inquiry.

Nearly one year after the inquiry was ordered, nominations were called for the election of sectional representatives in the Postal and Telecommunications Branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ([NAME_24]). [NAME_24] was formed as a result of the amalgamation of [NAME_23] with another organisation after the inquiry began. On the same day as nominations were called, the prosecutor sought interim orders pursuant to s 221(1)(c) of the Act, designed to ensure that the current holders of sectional representative offices continued in office until the inquiry had concluded. The application was said to be motivated by a fear that similar irregularities would recur in relation to these elections as had occurred in the earlier election.

Without going into unnecessary detail, a question arose as to whether, on the language of s 221(1)(c), the offices of sectional representatives, in the later elections, were offices "to which the inquiry relates". [NAME_6], the first respondent, concluded [26] :

[ADDRESS] is able to regularise, on an interim basis, the occupation of an office which has been or is to be filled by an election the subject of the inquiry. The election that led to the holding of office by [NAME_39] is not the subject of the inquiry. In my opinion, I do not have the power to make the order sought. The prosecutor's motion was dismissed. He now seeks the grant of a writ of certiorari to quash that decision and a writ of mandamus directing [NAME_6] to hear and determine the s 221(1)(c) application.

1. Re Communication Workers' Union (1995) 62 IR 462 at 466

Section 420(1) of the Act confers on the [NAME_4] "jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge." [27] However, s 421 expressly provides that an appeal does not lie to a [ADDRESS] from a judgment of a single Judge in an inquiry referred to in s 219. This is such an inquiry. The result was an application to this Court for certiorari and mandamus in order to test the ruling of [NAME_6] [28] . However, a question arose as to whether this Court could and, if so, whether it should remit the matter to a [ADDRESS] of the [NAME_4]. We heard argument on the question and concluded that the Court would not exercise any power to remit that it might have. Accordingly the Court continued to hear the application on its merits, though it was differently constituted for that purpose. This judgment relates only to the question whether the High Court is empowered to remit to the [NAME_4] the application for prerogative relief sought by the prosecutor.

1. All references to the Act are as at the time of the hearing in this Court. Substantial amendments have been made since then, including the transfer of the jurisdiction of the [NAME_4] to the Federal Court of Australia: see [NAME_4] and Other Legislation Amendment Act 1996 Cth.

2. Section 423(5) provides that "a single Judge may state a case, or reserve a question, for a [ADDRESS]'s consideration, concerning a matter if an appeal would lie to a [ADDRESS] from a judgment of the Judge with respect to that matter". Section 423 lies within Pt XIV, Div 5 Subdiv B of the Act — "Appellate and related jurisdiction". On the other hand s 416(1), which is within Pt XIV, Div 5 Subdiv A — Original jurisdiction — empowers a Judge "[a]t any stage of a proceeding in a matter arising under this Act" to "refer a question of law for the opinion of a [ADDRESS]". [NAME_6] employed s 416(1), no appeal would lie to the High Court from the judgment of the [ADDRESS]: s 432(3).

The argument as to the power to remit in the present case crystallises in the relationship between the relevant provisions of the Judiciary Act 1903 Cth and of the Act. Section 75 of the Constitution confers on the High Court original jurisdiction in enumerated matters including those "(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". Section 38 of the Judiciary Act provides that, subject to s 44, "the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters". One of those is "(e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court".

Section 44(1) of the Judiciary Act empowers the High Court to remit a matter pending in the Court, "other than a matter to which subsection (2) applies to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties". Sub-section (2) provides that where a matter referred to in par 38(a), (b), (c) or (d) of the Judiciary Act is pending in the High Court, the matter may be remitted "to the Federal Court of Australia or any court of a State or Territory". Matters identified in s 38(e) are not included. By reason of s 44(2A), where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party, the Court may remit the matter to the Federal Court. Where the High Court remits a matter under s 44(2) or (2A) to a court, "that court has jurisdiction in the matter" (s 44(3)).

In State Bank of [NAME_40] v Commonwealth Savings Bank [29] Gibbs CJ referred to the fact that sub-s (2) of s 44 did not include a power to remit a matter falling under s 38(e). His Honour also mentioned sub-s (2A) and said that if a matter falls under sub-s (2A) it may be remitted only to the Federal Court but that if it falls under sub-s (2) as well it may be remitted to the Federal Court or to a court of a State or Territory. In [NAME_41] v Commonwealth [30] [NAME_42] referred to State Bank of [NAME_40] v Commonwealth Savings Bank and said of sub-s (2A):

The sub-section is additional to the sub-sections that precede it; it does not override them. In [NAME_43] v [COMPANY_43] [31] , Mason J described the Federal Court, to which a [NAME_28] was made under s 44(2A) of the Judiciary Act, as standing "in the jurisdictional shoes of this Court". Jurisdiction is however conferred on the court to which a [NAME_28] is made by force of statute, not by the act of [NAME_28]. 1. (1984) 154 CLR 579 at 583-584. 2. (1989) 63 ALJR 465 at 467; 86 ALR 31 at 33. 3. (1986) 61 ALJR 235 at 238; 69 ALR 270 at 275-276.

The Federal Court is not an available vehicle for any [NAME_28] of the present matter. Section 39B(1) of the Judiciary Act, which was added by the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 Cth, now includes in the original jurisdiction of the Federal Court "any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth". However, sub-s (2) excludes from the reference to officer or officers of the Commonwealth "(a) a person holding office under the [NAME_4] Act " and "(aa) a Judge or [NAME_7] of the [NAME_4] of Australia". Consequently, the Federal Court does not have jurisdiction with respect to the parties to the application. Nor does it any longer have jurisdiction with respect to the subject matter of the application, namely, the conduct of elections under the Act [32] .

1. Although, as noted earlier, the [NAME_4] and Other Legislation Amendment Act 1996 Cth transfers jurisdiction from the [NAME_4] back to the Federal Court.

Any power of [NAME_28] which this Court may have in relation to the present matter must have its source in s 44(1) of the Judiciary Act. Section 44(1) is expressed in terms of [NAME_28] to a court that has jurisdiction with respect to the subject matter and the parties. In its original form, s 44 empowered the Court to remit a matter pending before it only to a court that had jurisdiction over the same kind of party and the same kind of subject matter as that over which this Court has jurisdiction [33] . If s 44(1) of the Judiciary Act is given the operation which its language demands, the present application may be remitted to the [NAME_4] so long as that Court has jurisdiction with respect to the same kind of party and the same kind of subject matter. The prosecutor submits that the [NAME_4] does not have jurisdiction with respect to the subject matter and the parties in the present case. He further submits that the power to remit conferred by sub-s (2) of s 44 has no application. The latter submission is undoubtedly correct.

1. Johnstone v The Commonwealth (1979) 143 CLR 398 at 408, per [NAME_44].

The jurisdiction of the [NAME_4] is spelled out in Pt XIV, Div 5 of the Act. Section 412, which is within Div 5, operates in a rather unusual way. Sub-section (1) confers jurisdiction on the [NAME_4] with respect to matters arising under the Act as there prescribed. Sub-section (2) does not in express terms confer additional jurisdiction on the Court. Rather, it relevantly provides:

For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act. However, by virtue of sub-s (3) of s 412, the Court "has jurisdiction with respect to matters remitted to it under section 44". Clearly then sub-s (2) is a notional conferral of jurisdiction so that if the question of "jurisdiction with respect to the subject-matter and the parties" arises under s 44, the [NAME_4] must be taken to have jurisdiction with respect to any matter identified in sub-s (2) of s 412. If [NAME_28] takes place, the jurisdiction of the Court is, by virtue of sub-s (3), confirmed.

In order for the [NAME_4] to have jurisdiction with respect to the subject matter and the parties in the present case, it must be shown that a Judge of the [NAME_4] is an officer of the Commonwealth holding office under the Act. In putting the matter this way we do not overlook s 38 of the Judiciary Act to which the prosecutor attached some importance. But the jurisdiction of the High Court to which that section refers is expressed to be "exclusive of the jurisdiction of the several Courts of the States". It says nothing as to the jurisdiction of federal courts. In any event s 38 is irrelevant since it is expressed to be subject to s 44, the limits of which have already been noted.

Section 415(2)(d) of the Act concerns the exercise of jurisdiction by the [ADDRESS] of the [NAME_4] in relation to matters in which mandamus or prohibition or an injunction is sought against a Presidential member. No mention is made in this context of a Judge of the Court but that is hardly surprising since the section deals with the exercise of the original jurisdiction of the Court. But the issue here cannot be resolved by reference only to s 415. Section 412(2) and (3) was enacted expressly to deal with the question of [NAME_28]. In that respect sub-s (2) largely picks up the language of s 38(e) of the Judiciary Act and to that extent takes its meaning from that paragraph.

As to s 412(2), is [NAME_6] an officer of the Commonwealth holding office under the Act? There is no doubt that his Honour is an officer of the Commonwealth because authority clearly establishes that a Judge of a court created by the Parliament pursuant to s 71 of the Constitution is an "officer" of the Commonwealth for the purposes of s 75(v) of the Constitution [34] .

1. R v Federal Court of Australia; Ex parte [NAME_29] (1979) 143 CLR 190 at 200-201, 215, 221, 238; R v [NAME_45]; Ex parte Green (1984) 156 CLR 185 at 193, 203, 207-208, 215; Re [NAME_46]; Ex parte Minister for Employment, [NAME_4] (Q) (1995) 184 CLR 620 at 652

It is equally clear that [NAME_6] holds office under the Act. It is the Act which creates the [NAME_4] (s 361) and it is the Act which deals with the appointment, removal and resignation of the [NAME_7] of the Court (s 362). It is true that s 72 of the Constitution prescribes the appointment and removal of the [NAME_8] of the High Court "and of the other courts created by the Parliament". But that does not detract from the undoubted fact that Pt XIV, Div 2 of the Act, into which ss 361 and 362 fall, regulates in detail the constitution of the Court. The matter is put beyond doubt by s 361(3) which reads: "[ADDRESS] consists of a Chief Justice and as many other [NAME_7] as hold office under this Act " (emphasis added). The legislature can hardly have intended the reference in s 412(2) to an officer "holding office under this Act" to bear some different meaning [35] . Indeed, Wilcox CJ in Re [NAME_26]; Ex parte [NAME_27] [36] stated:

A judge of this Court exercising jurisdiction in respect of an election inquiry is an "officer of the Commonwealth holding office under this Act".

1. Likewise, the Federal Court of Australia Act 1976 Cth, s 5(3) provides that the Federal Court consists of a Chief Justice and such other [NAME_7] "as from time to time hold office in accordance with this Act". 2. (1995) 1 IRCR 311 at 316; 129 ALR 255 at 257.

Re [NAME_26] was one occasion on which this Court has remitted to the [NAME_4] an application for writs of prohibition, mandamus and certiorari against a member of that Court. In the course of his judgment in that case Wilcox CJ said [37] :

This is the first occasion on which the High Court has remitted to this Court an application for prerogative writs against a member of the Court. The remittal makes the case a legal curiosity. There is, as Wilcox CJ recognised, a difficulty according to conventional theory in members of a court issuing a prerogative order against another member of the court. In [NAME_32] v [NAME_33] [38] [NAME_31] held that neither a Judge of the Federal Court nor a grouping of those [NAME_7] can prohibit or enjoin another Judge of that Court [39] . In a passage which warrants setting out at some length, his Honour said [40] : The Federal Court of Australia consists of the [NAME_7] of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other [NAME_7] of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the [NAME_7] as a group can be treated, as occasion arises, as an authority vested in all save one of the [NAME_7] and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the [NAME_7] who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other [NAME_7] of the court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority.

1. Re [NAME_26] (1995) 1 IRCR 311 at 315129 ALR 255 at 257. 2. (1994) 126 ALR 475.

3. As to the High Court, see Re [NAME_42]; Ex parte [NAME_47] (1996) 70 ALJR 644 4. Bird v Free (1994) 126 ALR 475 at 479

There can be no argument with the observations of [NAME_31] so far as they relate to the Federal Court. But, so far as [NAME_28] to the [NAME_4] is concerned, the power of this Court must be answered by reference to the various statutory provisions mentioned earlier in these reasons. In Re Bolton; Ex parte [NAME_48] [41] Mason CJ, Wilson and Dawson JJ said:

It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. Whether there was oversight or inadvertence is by no means clear. In any event, it is not appropriate that an explanation said to underlie the interpretation of s 39B of the Judiciary Act should dictate the construction to be given to express provisions in the Act. 1. (1987) 162 CLR 514 at 518.

It is also necessary to bear in mind that s 77 of the Constitution empowers the Parliament to make laws with respect to matters mentioned in s 75(v), defining the jurisdiction of any federal court other than the High Court. The Parliament has defined the jurisdiction of the [NAME_4] in the manner described in these reasons. A consideration of the various provisions, in particular s 412(2) and (3) of the Act, leads to the conclusion which Wilcox CJ reached in Re [NAME_26] , namely that this Court may remit to the [NAME_4] a matter in which mandamus or prohibition is sought against a Judge of that Court.

The incongruity of the [ADDRESS] of the [NAME_4] considering prerogative relief against one of its members is, no doubt, a factor which militates against a [NAME_28]. The incongruity may be more apparent than real since, on [NAME_28], the jurisdiction of the [NAME_4] "is coextensive with the jurisdiction of this Court" [42] . In any event this Court is presently concerned only with the issue of its power to remit in the circumstances. While not in terms demanded by the various statutory provisions, no doubt any [NAME_28] would be to a [ADDRESS] of the [NAME_4]. There is no reason why a [NAME_28] should not specify the [ADDRESS].

There is a question as to this Court's power to grant certiorari since this form of prerogative relief is not mentioned in s 75(v) of the Constitution. Certainly in R v [NAME_49]; Ex parte [NAME_50] [43] [NAME_44] granted an order nisi for certiorari and prohibition against the [NAME_5] though in the end only the order nisi for prohibition was made absolute. In the course of argument Barwick CJ questioned the Court's power to order certiorari [44] . Earlier in [NAME_51] v [NAME_52] [45] the Court granted certiorari against members of the Commonwealth Conciliation and Arbitration Commission. And in R v [NAME_3]; Ex parte [NAME_20] [46] the Court made absolute an order nisi for certiorari against a Judge of the Family Court of Australia. [ADDRESS] adverted to the question more recently in Re [NAME_21]; Ex parte [NAME_22] [47] .

1. (1978) 139 CLR 482. 2. See R v [NAME_49]; Ex parte [NAME_50] (1978) 139 CLR 482 at 484 3. (1970) 123 CLR 448. 4. (1980) 147 CLR 15 at 33-34. 5. (1989) 166 CLR 338 at 348.

In the past questions have arisen as to the power of this Court to grant relief by way of certiorari. It may well be that certiorari may issue where it is an ancillary remedy to mandamus or prohibition, in the sense discussed by [NAME_44] in R v [NAME_3]; Ex parte [NAME_20] [48] and by Wilson and Dawson JJ in R v [NAME_45]; Ex parte Green [49] . Having regard to the course adopted by the Court in the present proceedings, it is unnecessary to resolve that issue. It is sufficient to hold that the Court is empowered by s 44(1) of the Judiciary Act to remit the matter before it to the [NAME_4]. Resort to prerogative proceedings in a case such as this would be unnecessary if a right of appeal to the [ADDRESS] of that Court existed in the case of an inquiry referred to in s 219 of the Act.

1. (1980) 147 CLR 15 at 33-34. 2. (1984) 156 CLR 185 at 215. [NAME_1] J.

The principal question in this application was whether this Court had the power to remit an application for writs of certiorari and mandamus to the [NAME_4] of Australia (the [NAME_5]) where that application was brought in reliance upon s 75(v) of the Constitution and was directed against a decision of a single judge of the [NAME_5] (the [NAME_28] question).

The application was heard by the [ADDRESS] on 13 March 1996. The [NAME_28] question was isolated by the Court as a preliminary issue. After hearing submissions from the parties, including the Commonwealth intervening in support of the prosecutor, the Court indicated that it would not exercise any [NAME_28] power which it may have [50] . I concluded that this Court did have the power to remit the application to the [NAME_5] but in the exercise of its discretion the Court should not remit the matter. What follows are my reasons for these conclusions.

1. Because the Court adopted this course, and because the writ of certiorari was not sought independently of the writ of mandamus, it is not necessary to consider issues appertaining to the power of this Court to grant certiorari in pursuance of its s 75(v) jurisdiction.

The factual background and procedural history

In 1994, an election was held for offices in the [NAME_23] (the Union). On 27 July 1994, [NAME_53], who was granted leave to intervene in the current application, commenced proceedings in the [NAME_5] under s 218 of the [NAME_4] Act 1988 Cth (the [NAME_5] Act) [51] alleging various irregularities in that election. The application was heard by [NAME_6], a judge of the [NAME_5]. Having held pursuant to s 219(b) of the [NAME_5] Act that there was a reasonable ground for the application, his Honour instituted an inquiry into the election and, on 29 July 1994, made various interlocutory orders. The prosecutor in the current application, [NAME_37] (a candidate in the elections), was given leave to appear at the hearing that resulted in those orders. The current second, third and fourth respondents, respectively [NAME_54] (also a candidate), the Union, and the Australian Electoral Commission were also given leave to appear.

1. The [NAME_5] Act has been renamed the [NAME_4] Act 1996 Cth and has undergone substantial modifications since the current proceedings were initiated. My discussion is limited to the Act as it applied at the relevant time.

Following a series of direction hearings, on 8 May 1995 the prosecutor sought interlocutory orders including, pursuant to s 221(1)(c) of the [NAME_5] Act:

1. That the current office holders of the [NAME_55] in the [NAME_56] ("the [NAME_24]") remain in office until a final determination has been made in this matter, or until further order of the court.

2. In the alternative to the above, that the ballot relating to the [NAME_55] in the [NAME_24] be suspended until a final determination has been made in this matter, or until further order of the court.

(The [NAME_56] resulted from an amalgamation of the Union with another organisation after the commencement of the s 219(b) inquiry.)

[NAME_6] dismissed the application for interlocutory orders on the ground that the [NAME_5] lacked the jurisdiction to make orders of the type sought [52] . Because the order was made pursuant to an inquiry instituted under s 219, no appeal lay from that decision to the [ADDRESS] of the [NAME_5] [53] . In an attempt to seek a review of [NAME_6]'s decision, the prosecutor applied to this Court, relying upon s 75(v) of the Constitution, for writs of mandamus and certiorari to test the correctness of his Honour's ruling. On 17 October 1995, [NAME_25] directed that the application be made by notice of motion to the [ADDRESS].

1. Re Communication Workers' Union (1995) 62 IR 462 2. s 421 of the [NAME_5] Act. Wilcox CJ has expressed concern as to the undesirability of limiting rights of appeal in election inquiries in this fashion: see Re [NAME_26]; Ex parte [NAME_27] (1995) 1 IRCR 311 at 341-342129 ALR 412 at 280-281.

The statutory framework

The answer to the question whether this Court had the power to remit the issues in these proceedings lies in the relationship between various provisions of the Constitution, the Judiciary Act 1903 Cth and the [NAME_5] Act. It is necessary to set out some of these provisions in detail.

Section 75 of the Constitution provides in part:

In all matters —

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction.

Section 77 relevantly provides:

With respect to any of the matters mentioned in the last two sections the Parliament may make laws —

(i) Defining the jurisdiction of any federal court other than the High Court;

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.

Section 38 of the Judiciary Act is a law made under s 77(ii) of the Constitution. Paragraph (e) of s 38 is particularly relevant to the application, but it is instructive to set the section out in full:

Subject to section 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

(a) matters arising directly under any treaty;

(b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

(c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;

(d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;

(e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.

As is clear from the opening words of s 38, the operation of that section is subject to s 44 of the Judiciary Act. Section 44 regulates the [NAME_28] power of this Court and is expressed in the following terms:

(2a) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

(3) Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and

(b) subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court.

The [NAME_28] power in this case flows from s 44(1) of the Judiciary Act and sub-ss (2) and (3) of s 412 of the [NAME_5] Act

The prosecutor submitted that s 44(2) of the Judiciary Act was the only possible source of this Court's power to remit the application to the [NAME_5]. However in my opinion, this argument is mistaken. Section 44(2) does not empower the Court to remit a s 38(e) matter. Although it expressly supports a remittal of proceedings brought in this Court's exclusive jurisdiction pursuant to pars (a), (b), (c) and (d) of s 38, it pointedly omits any reference to par (e) of that section. Moreover, the Federal Court of Australia could not entertain any [NAME_28] of the current proceedings under s 44(2). This is made clear by the terms of s 39B of the Judiciary Act, a law made pursuant to s 77(i) of the Constitution. Section 39B, as at the relevant date, relevantly provided:

(aa) without limiting paragraph (a) of this subsection, a Judge or [NAME_7] of the [NAME_4] of Australia.

The determination of [NAME_6], who of course is a "Judge of the [NAME_4] of Australia", is clearly not susceptible to any application for prerogative or injunctive relief in the Federal Court.

However, the prosecutor's submission overlooks that s 44(2), while containing the grant of power to remit the matters specified in that sub-section, does not detract from whatever power the federal Parliament has given this Court in s 44(1). The fact that no [NAME_28] of a s 38(e) matter is possible under sub-s (2) of s 44 does not mean that the power to remit such a matter is not authorised by sub-s (1). As [NAME_42] observed in [NAME_41] v Commonwealth [54] in reference to s 44(2A), which is analogous to s 44(2) for the purpose of assessing the prosecutor's submission that that sub-section is the only possible source of [NAME_28] power [55] : "The sub-section is additional to the [sub-section] that [precedes] it; it does not override [it]."

1. (1989) 63 ALJR 465 at 467; 86 ALR 31 at 33. 2. This analogous nature of s 44(2) and (2A) is implicit in s 44(3).

On its face, the power to remit under s 44(1) applies to any matter pending in the High Court other than a matter to which s 44(2) applies. That is to say, it applies to any matter other than a matter referred to in pars (a), (b), (c) and (d) of s 38. Section 44(1) therefore prima facie applies to a matter referred to in par (e) of s 38 of the Judiciary Act.

However, the real issue is whether, notwithstanding the literal meaning of s 44(1), the sub-section empowers this Court to remit an application for writs of mandamus and certiorari brought in reliance upon s 75(v) of the Constitution to the same court as that in which the judge, against whom the writs are sought, holds office. It is to this issue that I now turn.

Section 412 of the [NAME_5] Act and s 44(1) of the Judiciary Act give this Court the power to remit the application

Section 77 of the Constitution empowers the Commonwealth Parliament to confer jurisdiction on federal courts in respect of the matters listed in ss 75 and 76 of the Constitution. Relevantly, s 77 grants the federal Parliament the power to confer both original and appellate jurisdiction [56] on the [NAME_5] in respect of ss 75 and 76 matters. Section 412 of the [NAME_5] Act is in part directed towards proceedings which may be remitted to the [NAME_5] pursuant to s 44 of the Judiciary Act. It provides:

(1) [ADDRESS] has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(c) questions may be referred to it under this Act; or

(d) appeals lie to it under section 422; or

(e) penalties may be sued for and recovered under this Act; or

(f) prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.

(4) [ADDRESS] has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament.

1. Ah Yick v Lehmert (1905) 2 CLR 593 at 603-604 New South Wales v The Commonwealth (1915) 20 CLR 54 at 90

Sub-sections (2) and (3) of s 412 of the [NAME_5] Act are valid laws made pursuant to s 77(i) of the Constitution. Their operation has the effect of enlivening the jurisdiction of the [NAME_5] to hear matters remitted to it by this Court pursuant to s 44 of the Judiciary Act provided certain requirements discussed below are met.

The relationship between sub-ss (2) and (3) of s 412 is curious yet clear. The first sub-section is a general provision establishing the jurisdiction of the [NAME_5] to hear prerogative writs sought against officers of the Commonwealth holding office under the [NAME_5] Act or the Coal Industry Act 1946 Cth for the purposes of proceedings brought into the [NAME_5] pursuant to s 44 of the Judiciary Act. The second sub-section establishes the [NAME_5]'s "coextensive" [57] jurisdiction to hear matters remitted to it under s 44 and is activated by the act of [NAME_28] by this Court. In this sense, it is sub-s (3) which invests jurisdiction in the [NAME_5] when there is an exercise by this Court of its s 44 jurisdiction; sub-s (2) simply deems the [NAME_5] to have jurisdiction for certain purposes germane to the s 44 jurisdiction.

1. Johnstone v The Commonwealth (1979) 143 CLR 398 at 408

The question then becomes whether s 44(1) of the Judiciary Act authorises this Court to remit matters which fall within the Court's exclusive s 38(e) jurisdiction to the [NAME_5]. In my opinion, it does.

First, as I have explained above, s 412(3) of the [NAME_5] Act invests jurisdiction in the [NAME_5] when there is an exercise by this Court of its [NAME_28] power under s 44(1) of the Judiciary Act. It follows that, if this Court had remitted the present application, the [NAME_5] would have had jurisdiction to determine it.

Second, the [NAME_5] has, in accordance with the terms of s 44(1), "jurisdiction with respect to the subject-matter and the parties". The meaning of this phrase was explained by Gibbs J, with whom [NAME_44] JJ agreed (Stephen and Jacobs JJ dissenting), in [NAME_30] v The Commonwealth [58] . In the course of holding that s 44 empowered the Court to remit an action against the Commonwealth in tort to the Supreme Court of any State, Gibbs J stressed that "[t]here is no reason to give s 44 a narrow, restrictive construction" [59] . In accordance with this beneficial construction, his Honour held that the phrase "jurisdiction with respect to the subject-matter and the parties" did not require the court to which the matter was to be remitted to have had jurisdiction if the proceedings had been instituted in that court in the first instance. Rather, using the example of a tort action brought against the Commonwealth, he said that all that was necessary was that the court to which the proceedings were to be remitted should have "jurisdiction in tort and in matters in which the Commonwealth is a defendant" [60] . Murphy J succinctly made a similar point [61] : "The words, "subject-matter", in s 44 should not be construed as meaning "the matter"."

1. (1979) 143 CLR 398. 2. [NAME_30] (1979) 143 CLR 398 at 402see also Murphy J (at 407): "[t]he section should be construed beneficially rather than narrowly." 3. [NAME_30] (1979) 143 CLR 398 at 402 4. [NAME_30] (1979) 143 CLR 398 at 407

Does the [NAME_5] have jurisdiction over the subject matter and the parties in the instant application? In my opinion, a literal reading of sub-ss (2) and (3) of s 412, the operation of which I have explained above, demands an affirmative answer. The prosecutor submitted that such a conclusion was erroneous because, contrary to the requirement in s 412(2), [NAME_6] was not "an officer of the Commonwealth holding office under [the [NAME_5]] Act". It was argued that his Honour held office under the Constitution and not under the [NAME_5] Act. But this submission ignored the express terms of the Act. Section 361(3) makes it plain that "[t]he [[NAME_5]] Court consists of a Chief Justice and as many other [NAME_7] as hold office under [the [NAME_5]] Act " (emphasis added). It is also beyond question that [NAME_6] is an officer of the Commonwealth [62] . The prosecutor's submission must be rejected.

1. R v [NAME_35]; Ex parte [NAME_36] (1985) 157 CLR 351 at 385 Re [NAME_46]; Ex parte Minister for Employment, [NAME_4] (Q) (1995) 184 CLR 620 at 652

The Commonwealth did not dispute that a literal reading of s 412 requires the conclusion that this Court does have the power to remit a s 38(e) application to the [NAME_5] [63] . However, it contended that the "practical operation" of s 412 requires that the operation of that section in terms of a s 38(e) [NAME_28] be limited to officers of the Commonwealth holding office under the [NAME_5] Act other than [NAME_7] of the [NAME_5]. The primary reason advanced for giving s 412 this limited application was the supervisory or non-reflexive nature of prerogative writs and the repugnance of a court directing such a remedy to itself or any member or members of the same court.

1. This is also the conclusion that was reached by Wilcox CJ in Re [NAME_26] (1995) 1 IRCR 311 at 316129 ALR 255 at 257-258.

The supervisory or non-reflexive character of prerogative writs has been commented upon in both academic writings [64] and judicial decisions [65] . In R v [NAME_8] of the [ADDRESS]; Ex parte London County Council [66] Lord Hewart CJ rejected the notion that, by issuing a prerogative writ to itself, a superior court could quash an act which it had done. He commented [67] :

[T]he process involves the rather ludicrous position that it calls upon [NAME_7] to show cause to themselves why they should not be directed to remove, so that it may be quashed, something which they themselves have determined. In the same application, Avory J said [68] : At first sight one would say that it cannot be correct to assert that any Court can issue a writ of certiorari directed to itself to quash an order made by itself.

1. See The Laws of Australia, Title 2.6, par 106. 2. eg, R v [NAME_8] of the [ADDRESS]; Ex parte London County Council [1925] 2 KB 43 [NAME_13] (1977) 3 Fam LR 11,555; Bird v Free (1994) 126 ALR 475 3. [1925] 2 KB 43. 4. [NAME_8] of the [ADDRESS] [1925] 2 KB 43 at 58-59. 5. [NAME_8] of the [ADDRESS] [1925] 2 KB 43 at 60.

Similar sentiments have been expressed in Australian decisions. In R v [NAME_11]; Ex parte The Commonwealth [69] , Isaacs J said that "the inherent nature of prohibition or mandamus requires that the officer [who the writ is sought against] must be someone not a member of the tribunal to which the application is made, or superior to it". In [NAME_13] [70] , the [ADDRESS] of the Family Court of Australia (Evatt CJ, Asche and Lusink JJ), having set out s 75(v) of the Constitution and s 34 of the Family Law Act 1975 Cth, which relevantly provided that the Family Court "has power, in relation to matters in which it has jurisdiction, to direct the issue of, writs of such kinds, as the court thinks appropriate", stated [71] :

Even if there were power under the Constitution to do so it is difficult to read s 34 as giving to [NAME_7] of the Family Court power to issue writs of prohibition against any other judge of that court. The clearest expression would be needed before deciding that such a power was created, since prohibition is normally issued by a superior court to an inferior court. 1. (1916) 22 CLR 437 at 453. 2. (1977) 3 Fam LR 11,555. 3. [NAME_13] (1977) 3 Fam LR 11,555 at 11,562.

But in the instant application, the applicability of these authorities has to be measured in light of the statutory framework within which the application is brought. Those decisions that I have cited above which tend to support the so-called non-reflexive nature of prerogative writs were determined in the absence of legislative provisions commensurate to s 412 of the [NAME_5] Act. That section is, using the terminology of [NAME_13] [72] , a "clear expression" that, provided the application for prerogative relief is remitted by this Court pursuant to s 44 of the Judiciary Act, the [NAME_5] has jurisdiction [73] .

1. (1977) 3 Fam LR 11,555 at 11,562. 2. These observations are also apposite to [NAME_31]'s discussion of similar issues pertinent to the Federal Court of Australia: see [NAME_32] (1994) 126 ALR 475 at 478-480

It is also worth noting the comments of Isaacs J in the Tramways Case [No 1] [74] as to the application of English pre-Judicature common law prerogative relief jurisprudence to Australian federal courts. In Re [NAME_46]; Ex parte Minister for Employment, [NAME_4] (Q) [75] , [NAME_42] and [NAME_25] JJ and myself summarised Isaacs J's thinking as follows:

The tenor of what his Honour said is that notions derived from the position of the pre-Judicature common law courts of Queen's Bench, Common Pleas and Exchequer, as courts of the widest jurisdiction with respect to subject matter and identity of parties and therefore superior courts, have no ready application in Australia to federal courts. These owe their existence and their jurisdiction to the Constitution and to laws made by the Parliament.

Accordingly, decisions, which refer to the non-reflexive nature of prerogative writs and which invariably focus on the notion that such relief can only be directed at "inferior" courts or tribunals [76] , must be read with caution when the unique nature of Australia's federal judicature, as created by the Constitution and the laws of the Commonwealth Parliament, is understood [77] . 1. (1914) 18 CLR 54 at 75. cf R v Federal Court of Australia; Ex parte [NAME_29] (1979) 143 CLR 190 at 201 2. (1995) 184 CLR 620 at 652-653. 3. [NAME_11] (1916) 22 CLR 437 at 453; [NAME_8] of the [ADDRESS] [1925] 2 KB 43 at 58-59, 60; [NAME_14] (1977) 3 FamLR 11,555 at 11,562.

4. R v [NAME_35]; Ex parte [NAME_36] (1985) 157 CLR 351 at 384-385, per Deane J; [NAME_46] (1995) 184 CLR 620 at 652-653

Moreover, an understanding of the true nature of this Court's s 44 [NAME_28] power demonstrates that concerns as to the repugnance of a member or members of one court granting prerogative relief against a member or members of that same court may be more illusory than real. If this Court had remitted the application to the [NAME_5], the matter would have gone to the [NAME_5] only after this Court had exercised its original jurisdiction invoked pursuant to s 75(v) of the Constitution. The jurisdiction which the [NAME_5] would have exercised would have been "coextensive with the jurisdiction of this Court" [78] . The nature of this jurisdiction, whereby the [NAME_5] would "[stand] in the jurisdictional shoes of this Court" [79] , is quite different from the [NAME_5]'s original or appellate jurisdiction [80] .

1. [NAME_30] (1979) 143 CLR 398 at 408 2. [NAME_57] (1986) 61 ALJR 235 at 23869 ALR 270 at 275. 3. In this sense, the heading "Original jurisdiction" for Subdiv A of Div 5 of Pt XIV of the [NAME_5] Act is misleading, at least in so far as it relates to the [NAME_5]'s s 412(3) jurisdiction when enlivened by a [NAME_28] by this Court pursuant to s 44 of the Judiciary Act.

It remains only to deal briefly with one further submission that was put by the Commonwealth as to why this Court does not have the power to remit the application. The Commonwealth submitted that the terms of s 415(2)(d) of the [NAME_5] Act implied that the [NAME_5] has no jurisdiction to issue prerogative writs directed to its own members. That section provides that the jurisdiction of the [NAME_5] is to be exercised by a [ADDRESS] in relation to matters in which a writ of mandamus or prohibition is sought against a Presidential member of the [NAME_4] Commission (the Commission) or officers of the Commonwealth at least one of whom is a Presidential member. The Commonwealth contended that, if s 412 was intended to mean that the [NAME_5] has jurisdiction to issue prerogative writs directed to its own members, it would be likely that s 415(2)(d) would refer also to matters in which such writs are sought against a member of that Court. It also contended that, in the absence of such a reference in s 415(2)(b), the issue of such writs would result in anomalous situations. A single member of the [NAME_5], for example, would be able to issue writs directed to a judge of the [NAME_5] but only a [ADDRESS] would be able to issue a writ directed to a Presidential member of the Commission.

This submission reads too much into the terms of s 415 which merely regulates the business of the [NAME_5]. It also ignores the fact that the section regulates the [NAME_5]'s original jurisdiction which, as I have explained, is not identical to the jurisdiction that the [NAME_5] exercises when this Court remits an application pursuant to s 44. Further, any supposed anomaly of the type posited by the Commonwealth could be ameliorated by a suitable direction that the remitted application be heard by a [ADDRESS] of the [NAME_5]. There is certainly no legislative provision that expressly or by implication prohibits such a direction. Indeed, s 44(1) of the Judiciary Act expresses the ability of the court to which the matter is remitted to control those proceedings to be "subject to any directions of the High Court".

Conclusion

Accordingly, pursuant to s 44 of the Judiciary Act, this Court had power to remit an application for writs of certiorari and mandamus to the [NAME_5] where that application was brought in reliance upon s 75(v) of the Constitution and was directed against a decision of a single judge of the [NAME_5].

In the present case, however, the parties were before the Court ready to argue the merits of the case and had to argue the jurisdictional question in this Court before a decision on [NAME_28] could be made. That being so, I thought that questions of cost and convenience made it proper for the Court in the exercise of its discretion to refuse to remit the matter.

[NAME_25].

The prosecutor seeks the issue of a writ of certiorari directed to a judge ([NAME_6]) of the [NAME_4] of Australia ([NAME_58]) and others removing into this Court to be quashed a decision of that judge delivered 1 June 1995. His Honour dismissed a notice of motion by the prosecutor, filed 8 May 1995, seeking interim orders under s 221(1) of the [NAME_4] Act 1988 (the Act) [81] . Section 221(1) provides for the making of various interim orders where there has been instituted an inquiry in relation to an election for offices in an organisation registered under the Act or a branch thereof. An application under s 218, for such an inquiry, had been lodged on 27 July 1994. [NAME_6] dismissed the application under s 221(1) on the ground that, in particular, par (c) thereof did not confer upon [NAME_58] authority to grant the relief sought. In this Court, the prosecutor also seeks the issue of a writ of mandamus directing [NAME_6] to hear and determine the application by the prosecutor pursuant to s 221(1)(c) of the Act.

1. The short title of the Act was changed to the [NAME_4] Act 1996 Cth by Sch 19 to the [NAME_4] and Other Legislation Amendment Act 1996 Cth (the 1996 Act). Schedule 16 provides for the transfer to the Federal Court of Australia of the jurisdiction of [NAME_58] and of certain pending proceedings in [NAME_58]. Save where expressly indicated, references in the judgment are made to the legislation in its earlier form.

On 17 October 1995 I directed that the application by the prosecutor for mandamus and certiorari, which included an application for an extension of time under O 55, r 30 of the High Court Rules, be made by notice of motion to the [ADDRESS].

In addition to the issue of the proper construction of par (c) of s 221(1) of the Act, there was a threshold question. It was whether this Court might remit the application to [NAME_58]. That question in turn involved issues of construction of other provisions of the Act and of the Judiciary Act 1903 Cth.

On 13 March 1996, after hearing submissions, the Court announced that it would not exercise the power to remit, if any, which it might have. [ADDRESS] was then reconstituted to hear the remainder of the application on its merits.

What follows are my reasons for the conclusion that the Court lacked any power to remit the application to [NAME_58].

It first should be observed that the occasion for litigation in this Court is provided by the denial by the Act of any right of appeal to a [ADDRESS] of [NAME_58] from the decision of [NAME_6] in which he construed par (c) of s 221(1) in a manner adversely to the interests of the prosecutor. Section 420 confers appellate jurisdiction upon [NAME_58] to hear and determine appeals from judgments of that Court constituted by a single judge, with the proviso that an appeal does not lie from an interlocutory judgment without a grant of leave to appeal. However, the effect of s 421 is that, notwithstanding s 420, an appeal does not lie to a [ADDRESS] from a judgment of a single judge in an election inquiry [82] . Further, s 432(1) states that an appeal does not lie to the High Court from a judgment of a single judge of [NAME_58] under the Act.

1. Schedule 16 to the 1996 Act provides for the repeal of s 421 and the substitution of a new s 421. This new section provides that an appeal from a judgment by a judge of the Federal Court in an election inquiry does not lie to the [ADDRESS] of that Court except in accordance with leave granted by that Court. The provision with respect to leave is a significant change in the statutory scheme.

Section 423(5) empowers [NAME_58] constituted by a single judge to state a case or reserve a question concerning a matter for consideration of a [ADDRESS] but only if an appeal would lie to a [ADDRESS] from a judgment of the judge with respect to that matter. However, s 416(1) provides that at any stage of a proceeding in a matter arising under the Act a single judge may refer a question of law for the opinion of a [ADDRESS] and may, of the judge's own motion or on the application of a party, refer the matter to a [ADDRESS] to be heard and determined. That procedure was not adopted in respect of the application for interim relief under s 221(1). As I have indicated, his Honour proceeded to determine the questions of law which arose and dismissed the application.

If the course had been taken under s 416(1) of referring questions of law for the opinion of a [ADDRESS], there would have been no appeal from the judgment of the [ADDRESS] to the High Court. That state of affairs is brought about by s 432(3).

It may be noted that, anomalously, where there is an avenue of appeal to this Court from a [ADDRESS] of [NAME_58], s 432(2) conditions it upon the grant by this Court not of special leave but of leave. The category of appeals by leave, rather than special leave, was removed from the Judiciary Act in 1976 when s 6 of the Judiciary Amendment Act 1976 Cth (the 1976 Act) repealed s 35 as it then stood. This had required special leave in some cases and merely leave in others. The distinction had been analysed in Ex parte [NAME_60] [83] .

1. (1936) 56 CLR 221 at 223-227.

The application to this Court for mandamus is made in reliance upon s 75(v) of the Constitution and that for certiorari upon s 31 of the Judiciary Act or the accrued jurisdiction attracted by the s 75(v) matter. There does not arise the jurisdictional difficulty that may be encountered where certiorari is sought independently of a claim for other relief for which provision is made in s 75(v) [84] .

1. See R v [NAME_3]; Ex parte [NAME_20] (1980) 147 CLR 15 at 25-26, 33-34; Re [NAME_21]; Ex parte [NAME_22] (1989) 166 CLR 338 at 348-349 [NAME_62], Federal Jurisdiction in Australia, 2nd ed (1978), p 51.

I turn to consider the provisions upon which turn the question of [NAME_28]. These show, and this was accepted in the submissions made in this case, that the only possible candidate for [NAME_28] is [NAME_58] itself. No question can arise of [NAME_28] to a State court or to the Federal Court of Australia (the Federal Court). I turn to consider why this is so. Reference is required to s 39B and ss 38, 39 and 44 of the Judiciary Act.

Section 39B of the Judiciary Act is addressed to the Federal Court and is a law made pursuant to s 77(i) of the Constitution. It defines, within the terms of s 77(i), the jurisdiction of a federal court other than the High Court with respect to a matter mentioned in s 75(v) of the Constitution. Section 39B confers s 75(v) jurisdiction, but pars (a) and (aa) of sub-s (2) are presently significant qualifications. It states:

(b) a Judge or [NAME_7] of the Family Court of Australia.

The explicit exclusion from the conferral of jurisdiction by s 39B of the Judiciary Act of [NAME_7] of [NAME_58] was achieved by the insertion in s 39B(2) of par (aa) by Sch 4 to the [NAME_4] Act 1993 Cth (the 1993 Act). Section 56 of the 1993 Act amended the Act by the addition of a new Pt XIV (ss 360-487) which established [NAME_58].

It will be observed that the exclusions in s 39B(2) do not specify the [NAME_7] of the Federal Court themselves. However, in [NAME_32] v [NAME_33] [85] , a judge of the Federal Court held that, notwithstanding the limited categories explicitly excluded by s 39B(2), one judge of the Federal Court had no jurisdiction under s 39B(1) to issue a writ of mandamus or prohibition or an injunction against another judge of that Court acting as such. The reasoning to that conclusion appears in the following passage from the judgment of [NAME_31] [86] :

It was unnecessary for the Parliament to also expressly exclude from the jurisdiction of the Federal Court authority to issue prerogative writs and injunctions against [NAME_7] of that same court. By s 19(1) [of] the Federal Court of Australia Act 1976 Cth the Federal Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. This includes the jurisdiction vested in the court by s 39B [of] the Judiciary Act.

The Federal Court of Australia consists of the [NAME_7] of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other [NAME_7] of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the [NAME_7] as a group can be treated, as occasion arises, as an authority vested in all save one of the [NAME_7] and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the [NAME_7] who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other [NAME_7] of the court.

1. (1994) 126 ALR 475. 2. Bird v Free (1994) 126 ALR 475 at 478-479

Section 38(e) of the Judiciary Act renders, subject to s 44, exclusive of the jurisdiction of the several courts of the States, the jurisdiction of the High Court in matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. This is a law made under s 77(ii) of the Constitution. It defines, within the meaning of that provision, the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.

Section 38 of the Judiciary Act, in addition to the matters identified in par (e), renders the jurisdiction of the High Court exclusive of the several courts of the States in the matters identified in pars (a), (b), (c) and (d). These deal with such matters as those arising directly under any treaty, suits between States, suits by the Commonwealth against a State, and suits by a State against the Commonwealth. The general investment of State courts with federal jurisdiction in civil matters which is effected by s 39 operates, as s 39(1) provides, only in respect of that jurisdiction of the High Court which is not rendered exclusive by s 38. However, where a matter referred to in one of pars (a), (b), (c) or (d) of s 38 is at any time pending in the High Court, the High Court may, upon application of a party or of the High Court's own motion, remit the matter, or part of it, to the Federal Court or to any court of a State or Territory. Section 44(2) of the Judiciary Act so provides.

As will be apparent, there is no such authority conferred by s 44(2) for [NAME_28] of matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court, as provided in par (e) of s 38. Nor does the [NAME_28] power conferred by s 44(2A) apply to a matter pending in the High Court in which a writ of mandamus or prohibition is sought as specified in par (e) of s 38. The power of [NAME_28] in s 44(2A) is one to remit the matter or any part of it to the Federal Court where the matter pending in this Court is one in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party.

Section 44 should now be set out in full. It states [87] :

1. Previously, s 45(1) of the Judiciary Act had provided: "Any matter which is at any time pending in the High Court, whether originally commenced in the High Court or not, may be remitted for trial to any Court of a State which has federal jurisdiction with regard to the subject-matter and the parties." Section 45 was repealed by s 9 of the 1976 Act which substituted a new Pt VII, including the first version of the present s 44.

It should be observed that where, pursuant to s 44(2) or (2A), the High Court remits a matter or part of a matter, s 44(3) states that the receiving court "has jurisdiction in the matter, or in that part of the matter". Section 44(3) thus operates, as appropriate to the case, as a law under s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, or as a law under s 77(iii) of the Constitution investing any court of a State with federal jurisdiction. It is unnecessary for present purposes to explore the difficult subject of the precise source of the constitutional authority for the Parliament to invest the courts of a Territory with federal jurisdiction.

What is presently significant is that s 44(3) operates to confer jurisdiction upon a federal court or to invest a State court with federal jurisdiction, as the case may be, upon fulfilment of a condition in the particular case, namely, the making by this Court of an order of [NAME_28] under s 44(2) or (2A). In [NAME_43] v [COMPANY_43] [88] , Mason J described the proposed [NAME_28] to the Federal Court as one in which that Court "relevantly stands in the jurisdictional shoes of this Court by virtue of a [NAME_28] under s 44(2A) of the Judiciary Act ". That may be an apt description, in practical terms, of what transpires. But it should not be taken to obscure the necessary analysis, conformably with s 77 of the Constitution, of the operation of s 44(3) as the legislative source of the conferral or investment of jurisdiction. The term "[NAME_28]" is to be understood as comprising the distinct steps and processes I have identified.

1. (1986) 61 ALJR 235 at 238; 69 ALR 270 at 275-276.

It is true that the Judiciary Act proceeds on the footing that, as a first step, the original jurisdiction of this Court has been regularly invoked whether directly pursuant to s 75 of the Constitution or pursuant to a law made by the Parliament under s 76 thereof. It is true also that the usual consequence of the [NAME_28] is that this Court chooses not to exercise further that original jurisdiction where the whole of the matter has been remitted. In due course the appellate jurisdiction of this Court under s 73 of the Constitution may be invoked, but that will be as a final step in the sequence following the investment or conferral of original jurisdiction in the federal or State court, by operation of s 44(3) of the Judiciary Act.

The Judiciary Act proceeds on the footing that this Court, in these cases, may desist from the further exercise of its original jurisdiction in the matter where there is another court with a relevant grant of federal jurisdiction [89] .

1. See R v [NAME_64]; Ex parte [NAME_64] (1953) 88 CLR 158 at 161, 163; Barwick, The Australian Judicial System: The Proposed New Federal Superior Court, Federal Law Review, vol 1 (1964) 1, at pp 9-15; cf [NAME_62], Federal Jurisdiction in Australia, 2nd ed (1978), pp 75-81.

The Supreme Court of the United States has developed a comparable doctrine whereby it refuses leave to commence suits in its original jurisdiction under Art III of the United States Constitution, particularly suits in which a State is a party. The Supreme Court may refuse leave if there is an alternative forum "where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had" and to ensure "that our increasing duties with the appellate docket will not suffer" [90] . This doctrine has developed notwithstanding that [NAME_66] identified as the "time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it" [91] .

1. [NAME_67] v [NAME_9] of Milwaukee (1972) 406 US 91 at 93-94See also Ohio v Wyandotte Chemicals Corp (1971) 401 US 493 Wright, Law of Federal Courts, 5th ed (1994), pp 809-811; [NAME_68], Federal Jurisdiction, 2nd ed (1994), pp 582-584; [NAME_69], Discretionary Gatekeeping: The Supreme Court's Management of Its Original Jurisdiction Docket Since 1961, Maine Law Review, vol 45 (1993) 185, at pp 201-202. The Supreme Court exercises a discretion even where, as in actions between States, its Art III jurisdiction is exclusive: Wyoming v Oklahoma (1992) 117 LawEd 2d 1 at 19-20, 35-36.

2. Ohio v Wyandotte Chemicals Corp (1971) 401 US 493 at 496-497

Further, as [NAME_44] pointed out in [NAME_30] v The Commonwealth [92] , under the [NAME_28] system jurisdiction is not conferred by the High Court itself upon the courts to which the [NAME_28] is made. The jurisdiction of those courts is conferred or invested by the Parliament, the conferral or investment operating in those instances where the High Court is authorised by the Parliament to remit and does in fact so remit.

1. (1979) 143 CLR 398 at 408-409.

However, it follows from what has been said that neither s 39B nor s 44(2) or (2A) provides authority for [NAME_28] of the present matter pending in this Court to any court other than [NAME_58].

Reliance for [NAME_28] to [NAME_58] is placed upon s 44(1). This operates in respect of matters other than a matter to which s 44(2) applies. Section 44(3) does not confer or invest jurisdiction in the court receiving the [NAME_28]. Rather, s 44(1) requires that the federal, State or Territory court otherwise have "jurisdiction with respect to the subject-matter and the parties". It was submitted before this Court that [NAME_58] is such a court. Reliance for that proposition is placed upon s 412 of the Act. This states:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(c) questions may be referred to it under this Act; or

(d) appeals lie to it under section 422; or

Section 412(2) renders [NAME_58] a candidate for [NAME_28] under s 44(1), thereby enlivening the power of this Court under that sub-section. Section 412(3) may be compared with s 44(3) of the Judiciary Act, to which I have referred above as having no operation in respect of s 44(1). The operation of s 412(3) is as a law made by the Parliament, within the meaning of s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, namely [NAME_58].

The question then is whether, upon their proper construction, these provisions have sufficient strength to achieve the result that [NAME_58] has conferred upon it a jurisdiction, activated by [NAME_28] by this Court, in a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth, being a judge or [NAME_7] themselves constituting [NAME_58].

I have referred to the establishment by [NAME_32] v [NAME_33] [93] , as regards the Federal Court, of the proposition that the conferral upon that Court of original jurisdiction by s 39B of the Judiciary Act does not extend so far as to authorise, as an intra-mural dispute, a claim to relief of the nature specified in s 75(v) against a judge of the Federal Court. In the present case, those parties resisting the [NAME_28] to [NAME_58] pray in aid, by way of analogy, the reasoning in that case.

1. (1994) 126 ALR 475.

It should also be noted that early in the history of this Court it was established that the jurisdiction conferred on this Court by s 75(v) of the Constitution did not include such relief directed to the High Court itself. This was because the inherent nature of prohibition and mandamus requires that the officer in question not be a member of the tribunal to which the application for such relief is made [94] .

1. Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117 R v [NAME_11]; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453See also Re Brennan; Ex parte [NAME_16] (1993) 67 ALJR 837116 ALR 619.

It has been pointed out on several occasions that the nature of this Court's jurisdiction under s 75(v) of the Constitution to issue prohibition or mandamus to a superior federal court, especially the purpose of the exercise of that jurisdiction, distinguishes it from the supervisory jurisdiction over courts of limited jurisdiction which traditionally was exercised in England chiefly by the Court of King's Bench [95] . However, in the present case it is largely traditional concepts which provide the starting point for an assessment of the particular provisions of the Act which are relied upon to support a construction favouring conferral upon [NAME_58] of jurisdiction, enlivened by [NAME_28] from this Court, of a supervisory nature over a judge or [NAME_7] of [NAME_58] itself.

1. The Tramways Case [No 1] (1914) 18 CLR 54 at 75; R v [NAME_45]; Ex parte Green (1984) 156 CLR 185 at 217-218 R v [NAME_35]; Ex parte [NAME_36] (1985) 157 CLR 351 at 384-385 Re [NAME_46]; Ex parte Minister for Employment, [NAME_4] (Q) (1995) 184 CLR 620 at 652-653

One begins with the construction and organisation of [NAME_58]. It is a federal court created by the Parliament by the 1993 Act in exercise of the power conferred by s 71 of the Constitution. Section 56 of the 1993 Act inserted in the Act Pt XIV (ss 360-487), headed " [NAME_4] of Australia ". Section 361(2) of the Act creates [NAME_58] as a court of law and equity and "a superior court of record". [NAME_58] "consists of a Chief Justice and as many other [NAME_7] as hold office under this Act" (s 361(3)). For the purposes of exercising its jurisdiction, [NAME_58] may be constituted by a single judge or as a [ADDRESS] (s 370(1)). Subject to a requirement for exercise of original jurisdiction by a [ADDRESS] in certain cases (s 415(2)), the original jurisdiction of [NAME_58] may be exercised by a single judge (s 415(1)). With certain exceptions, the appellate jurisdiction of [NAME_58] is to be exercised by a [ADDRESS] (s 423(1)).

It may be noted that the jurisdiction of [NAME_58] in matters in which a writ of mandamus or prohibition or an injunction is sought against the President, a Vice President, a Senior Deputy President or a Deputy President of the [NAME_4] Commission (the Commission) or against officers of the Commonwealth at least one of whom is such a person, is to be exercised by a [ADDRESS] (s 415(2)(d)). There is no such express statement dealing with the exercise of jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against a judge of [NAME_58] itself. Further, the reference in s 412(2) to the operation of s 44 of the Judiciary Act in respect of matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth "holding office under this Act" may readily be seen as applying to members of the Commission. They are appointed by the Governor-General by commission under s 9 of the Act.

The establishment of [NAME_58] as a superior court of record would, without further legislative provision as to the exercise of its original jurisdiction, have brought with it the common law tradition that after the trial by jury a superior court of record sat in banc in the next term for the entry of judgment; this was on the footing that the authority to enter judgment was vested in the [NAME_7] of the court as a body [96] .

1. Musgrove v McDonald (1905) 3 CLR 132 at 147-148 Kotsis v Kotsis (1970) 122 CLR 69 at 91Judgment was entered on the roll or record of the court unless within the first four days of the next term a motion had been made to the court in banc for arrest of judgment for intrinsic cause apparent on the face of the record, for entry of judgment non obstante veredicto, or for a new trial before another jury: Blackstone, Commentaries on the Laws of England, 1st ed (1765-1769), vol 3, pp 389-395; see also Bennet v Holbech (1670) 2 WmsSaund 309 at 319, n (h) [85 ER 1108 at 1118-1120]; R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 372-373 [NAME_70] v [COMPANY_71] for [COMPANY_71] (1996) 135 LawEd 2d 659 at 691. The court in banc also dealt with special cases and points reserved at the trial: [NAME_72] v [NAME_73] & Textiles of [COMPANY_74] (1931) 45 CLR 359 at 379 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 483-484The right of appeal, as now understood, was unknown in the common law courts and is the creature of s 73 of the Constitution or of statute: [NAME_75] (1984) 155 CLR 21 at 47

Hence the repugnance, in a technical sense, involved in any proposition that the prerogative writs might issue out of a superior court of record as an act of self-supervision. Such a process would involve "the rather ludicrous position" that the court call upon its [NAME_7] to show cause themselves why they should not be directed to remove, so that it might be quashed, their own determination as to the presence of jurisdiction or lack of it [97] .

1. R v [NAME_8] of the [ADDRESS]; Ex parte London County Council [1925] 2 KB 43 at 58-59

To this it might be answered that such an absurdity would be less apparent where, as in the present case, the original jurisdiction of [NAME_58] had been exercised by a single judge thereof and what was sought was prerogative relief, on [NAME_28], from a [ADDRESS] of [NAME_58]. To this there are two answers.

The first commences with the proposition that to grant prerogative relief of the nature in issue here would be an exercise of original rather than appellate jurisdiction. One looks, therefore, to some provision in the Act which specifies the exercise of original jurisdiction by a [ADDRESS] of [NAME_58]. As I have indicated, such provision is found in par (d) of s 415(2) but only as regards matters in which a writ of mandamus or prohibition is sought against certain members of the Commission. Otherwise, s 415(1) merely provides that, subject to s 415(2) and s 423, the jurisdiction of [NAME_58] "may be exercised by a single Judge". Section 423 is not relevant for present purposes. It empowers (s 423(2)) a single judge to hear certain applications in relation to appeals. Section 423(5) provides for a single judge to state a case or reserve a question for consideration of a [ADDRESS] concerning a matter if an appeal would lie to a [ADDRESS] from a judgment of the judge with respect to that matter. That provision does not answer the basic objection that, other than in s 415(2)(d), there is no express dedication to a [ADDRESS] of any jurisdiction of [NAME_58] in matters in which a writ of mandamus or prohibition or an injunction is sought.

The second answer is that, even if in respect of an application, on [NAME_28], for prerogative relief against a single judge of [NAME_58] the Act provided an imperative mechanism for the exercise of original jurisdiction by a [ADDRESS], there would remain cases where the activity, supervision of which was sought by prerogative relief, was that of a [ADDRESS]. An example might arise in exercise of the original jurisdiction with which a [ADDRESS] is endowed by s 415(2). There is scarcely to be contemplated, unless the conclusion is inescapable, a construction of the legislation whereby, on [NAME_28] from this Court, one [ADDRESS] of [NAME_58] directs prohibition against another [ADDRESS] of [NAME_58]. The incongruity would be present whether or not each [ADDRESS] was composed in whole or part of the same members.

These considerations perhaps are best seen as reflections of a basic concern with the construction of the legislation which would permit [NAME_28] in the present case. This is that, in the present case, a judge of the Court determined that, on the proper construction of the relevant provision of the Act (s 221(1)(c)), the Court had no jurisdiction to make the interim order sought by application before it. His Honour accordingly ordered that the application be dismissed. It does not appear whether the order has been entered. The application was for interim relief. Nevertheless, there has been a finding, relevantly, as to the absence of jurisdiction and a consequential order was made. That order was made in exercise of the jurisdiction of the Court by a single judge as provided in s 415(1). It stands as a determination by [NAME_58] of lack of jurisdiction. [NAME_58] "consists" of its [NAME_7] (s 361(3)). There is a denial by s 421 of an appeal to a [ADDRESS] and a denial by s 432(1) of a direct appeal to this Court from the judgment of the single judge. There is a patent incongruity, rising to repugnancy, in so construing the legislation as to empower [NAME_58] itself to deny its own determination as to lack of jurisdiction.

The legislation does not require any such conclusion. As I have indicated, the crucial provisions, in conjunction with s 44(1) of the Judiciary Act, are those in sub-ss (2) and (3) of s 412 of the Act. A sensible application of the reference in s 412(2) to those officers of the Commonwealth holding office under the Act is readily apparent. This is supported by the particular provision then made in s 415(2) for the exercise of the jurisdiction of the Court, by a [ADDRESS], in relation to matters in which a writ of mandamus or prohibition or an injunction is sought against certain members of the Commission.

For the above reasons, I concluded that there was no power of [NAME_28] of the application then before the [ADDRESS] of this Court.

Kirby J.

The motion before the Court, returned by an order of [NAME_25], calls upon the respondents to show cause why writs of mandamus and certiorari should not be issued. The prosecutor is [NAME_37]. The respondents are [NAME_6] of the [NAME_4] of Australia (the [NAME_4]), [NAME_54], the [NAME_23] (the union) and the Australian Electoral Commission. [NAME_6] and the Commission have submitted. The substantive contest has been between the prosecutor, the union and [NAME_54].

[ADDRESS] isolated and first heard argument on the question of whether there was power to remit the matter to the [NAME_4]. Remittal was a course which Dawson J had adopted, apparently without contrary argument, in Re [NAME_26]; Ex parte [NAME_27] [98] . In that case, a [ADDRESS] of the [NAME_4] issued writs of prohibition, mandamus and certiorari to [NAME_76], a member of that Court [99] . However, both before [NAME_25] and before us, the prosecutor (supported, before the [ADDRESS] supported by the Commonwealth, intervening) contested the power of this Court to remit the matter.

1. Unreported; High Court of Australia; 13 December 1994. The proceedings in the [NAME_4] of Australia are reported as Re [NAME_26]; Ex parte [NAME_27] (1995) 1 IRCR 311129 ALR 255. 2. Re [NAME_26]; Ex parte [NAME_27] (1995) 1 IRCR 311129 ALR 255.

At the end of argument, the Court indicated that it would not exercise any power to remit that it might have. [ADDRESS] was then reconstituted to hear the merits of the motion. That determination is separately dealt with [100] . These reasons deal with the power of remittal. In my view there was no such power.

The [NAME_4] declines jurisdiction

It is unnecessary to say a great deal about the facts. At the time of the hearing before this [NAME_6] was engaged in an inquiry into an election concerning various offices in the union. In July 1994 [NAME_53], who was heard as an intervener in these proceedings, applied for the inquiry, alleging electoral irregularities. [NAME_6] found that there was a reasonable ground for the application [101] . The inquiry was protracted.

1. [NAME_4] Act 1988 Cth, s 219(b).

On 8 May 1995, the prosecutor sought orders that certain office-holders in the union remain in office until a final determination had been made on the inquiry or until further order. In the alternative, he sought an order that the ballot relating to the [NAME_55] in the union be suspended until a final determination had been made in the inquiry. The given reason for the application was to ensure that certain part-time officer-holders continue in office pending the outcome of the inquiry.

By reference to the [NAME_4] Act 1988 (the Act) [102] , s 221(1), [NAME_6] held that the only power of the Court was to make orders preserving or altering the status quo in respect of the election which was the subject of the inquiry. He therefore held that he had no power to make the orders sought by the prosecutor and dismissed the application [103] .

1. The [NAME_4] Act 1988 Cth was renamed the [NAME_4] Act 1996 Cth by the [NAME_4] and Other Legislation Amendment Act 1996 Cth, Sch 19. References to "the Act" in these reasons are to the Act as it previously applied. 2. Re Communication Workers' Union (1995) 62 IR 462 at 465-466

The prosecutor argued that this opinion evidenced an erroneous understanding of the jurisdiction of the [NAME_4]. No appeal to a [ADDRESS] of that Court lay from [NAME_6]'s order. Section 421 of the Act excluded such an appeal as did its predecessor in the Conciliation and Arbitration Act 1904 Cth [104] . The revision of the Act since these proceedings were heard has altered the statutory scheme in a way referred to in the reasons of other members of this Court [105] . I will deal with the legislation as it was at the time of the Court's decision.

1. Section 118B(1)(a). The desirability of a facility of appeal was noted in Re [NAME_26] (1995) 1 IRCR 311 at 341-342129 ALR 255 at 280-281, per Wilcox CJ; cf Ince Bros & Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464 2. See now [NAME_4] Act 1996 Cth, s 421. By the [NAME_4] and Other Legislation Amendment Act 1996 Cth, Sch 16, the jurisdiction previously conferred upon the [NAME_4] is (save for exceptions immaterial to the present proceedings) returned to the Federal Court of Australia.

Although in disposing of the substance of the motion, the Court subsequently concluded that [NAME_6] did not err and that relief should be denied, the procedural questions concerning remittal were considered by the Court on the hypothesis that the prosecutor could establish an erroneous refusal to exercise jurisdiction which the law conferred on [NAME_6]. Upon that hypothesis, was this Court empowered to remit the prosecutor's claim for relief to the [NAME_4] of Australia? If so, why should it not have done so in this case?

Constitutional and legislative provisions

The prosecutor invoked s 75(v) of the Constitution which provides, relevantly:

In all matters —

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction. By s 77 of the Constitution it is provided: With respect to any of the matters mentioned in the last two sections the Parliament may make laws —

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

(iii) Investing any court of a State with federal jurisdiction.

In apparent reliance upon s 77 of the Constitution, the Judiciary Act 1903 Cth provides, in Pt VI, for "Exclusive and Invested Jurisdiction". Section 38 provides for matters in which the jurisdiction of the High Court is to be exclusive. Those matters include, in pars (a)-(d), certain of the matters specified in s 75 of the Constitution. In par (e) the section refers to: "matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court." This conferral of exclusive jurisdiction is expressed by the opening words of s 38 to be "subject to section 44". It is that section which is chiefly in question in these proceedings. It provides, relevantly, for remittal of matters by the High Court to other courts:

(1) Any matter other than a matter to which sub-section (2) applies that is at any time pending in the High Court may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted.

(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter to the Federal Court of Australia or any court of a State or Territory.

(3) Where the High Court remits a matter under sub-section (2) to a court:

(a) that court has jurisdiction in the matter ; and

(b) subject to any directions of the High Court, further proceedings in the matter, shall be as directed by that court.

Various other sections of the Judiciary Act, as it stood at the relevant time, may be noted [106] . Only one need be mentioned. It concerns the original jurisdiction of the Federal Court of Australia:

7B(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(a) a person holding an office under the [NAME_4] Act 1988 or the Coal Industry Act 1946; or

(c) a Judge or [NAME_7] of the Family Court of Australia.

1. See, eg, ss 32, 33.

Several provisions of the Act, as it stood at the relevant time, should also be noted. Part XIV provides for the [NAME_4]. [ADDRESS] is created by s 361 of that Act. So far as its composition is concerned, it is enacted:

(3) [ADDRESS] consists of a Chief Justice and as many other [NAME_7] as hold office under this Act.

Section 412 is a general provision relating to the Court's jurisdiction. It contains the following subsections:

The respondents' argument that this Court had the power to remit a matter to the [NAME_4] was simple. It has long been held that [NAME_7] of federal courts (and thus of the [NAME_4]) are, for the purposes of s 75(v) of the Constitution, "officers of the Commonwealth" [107] . The same words, when appearing in s 412(2) of the Act, should be given the same meaning. This was especially so because of the reference in that sub-section to s 44 of the Judiciary Act and the obvious intention to affirm the plenary operation of the remittal power under the Judiciary Act. The practical reasons for conferring such a power on a court below the High Court were obvious. It had been recognised by the Parliament [108] . It had been assumed in Re [NAME_26] [109] that the power existed. It had been exercised there appropriately and beneficially. By reason of s 412(2), the [NAME_4] had, within the language of s 44(1) of the Judiciary Act, "jurisdiction with respect to the subject matter and the parties". Therefore, this Court had the power to remit the matter to the [NAME_4]. By s 44 it also had the power to give "directions". It should therefore give a direction that the matter remitted should be heard by a [ADDRESS] of the [NAME_4], just as it had done in [NAME_26] . In this way there would be no risk that embarrassment would arise within that Court. Effectively, the High Court would ensure that a [ADDRESS] of that Court, rather than the High Court itself, would, in the first instance, review the correctness of [NAME_6]'s determination as to that Court's jurisdiction and his powers.

1. R v [NAME_45]; Ex parte Green (1984) 156 CLR 185 at 193, 203, 207-208, 215; Re [NAME_46]; Ex parte Minister for Employment, [NAME_4] (Q) (1995) 184 CLR 620 at 652 2. Johnstone v The Commonwealth (1979) 143 CLR 398 at 402 3. (1995) 1 IRCR 311; 129 ALR 255.

In support of their arguments, the respondents pointed to the following considerations:

1. The power of remittal is designed to facilitate the course of litigation. It should not be construed restrictively [110] .

2. The power exists to save this Court from being overburdened and to conserve the scarce time of this Court to matters appropriate to the jurisdiction of the supreme constitutional and appellate court of the nation [111] .

3. The power also exists to ensure that, in discharging its functions, the High Court will now ordinarily have the advantage of an opinion of another court [112] .

4. In the case of a court of specialised jurisdiction, there may be particular reasons, in the scheme of the legislation, as to why the Parliament would provide that remedies by way of appeal and judicial review should first be exhausted within the specialised jurisdiction before the jurisdiction of this Court is invoked [113] .

5. This purpose would more readily be inferred in the area of [NAME_4] because of the high desirability of the speedy resolution of disputes in that area, given their potential to cause unrest, disturbance and public inconvenience [114] .

1. State Bank of NSW v Commonwealth Savings Bank (1984) 154 CLR 579 at 583-584 2. Johnstone v The Commonwealth (1980) 143 CLR 398 at 407cf State Bank of NSW v Commonwealth Savings Bank (1984) 154 CLR 579 at 583 3. Re Sutton; Ex parte Victoria (1995) 69 ALJR 563See also Deane J dissenting in R v [NAME_45]; Ex parte Green (1984) 156 CLR 185 at 223 4. R v [NAME_45]; Ex parte Green (1984) 156 CLR 185 at 223-224 5. Ince Bros & Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464See also Re [NAME_77]; Ex parte [NAME_78]) (1988) 167 CLR 37 at 40

The foregoing arguments are persuasive. They are clearly relevant to the approach which should be taken in construing the legislation. However, in the end, whatever beneficial construction is placed on that legislation, it does not, in my view, sustain a power in this Court to remit the proceedings to the [NAME_4].

Ascertainment of the power of remittal

The considerations which lead me to the conclusion that this Court does not have the power of remittal are as follows:

1. No express power of remittal of proceedings properly brought within s 75(v) of the Constitution is conferred by the Constitution itself. In argument, I raised a question as to whether such a power should be implied because of the scope of the jurisdiction conferred on this Court by the Constitution and the potential need for the Court to protect itself against burdens of a jurisdiction which could impede the proper discharge of its functions. The argument that the Parliament has already relieved this Court, to some extent, of such burdens [115] does not touch the existence of such an implied power in the Court itself. However, no party sought to rely upon any such implication. There is a suggestion that the power provided in the Judiciary Act is an exhaustive statement of the High Court's power to remit matters to other courts [116] . Without deciding the point, I am content to assume that the power to remit, if it exists, must be found, in this case, in the combined operation of ss 75(v) and 77(i) of the Constitution and s 44 of the Judiciary Act read with any relevant provisions of the Act.

2. Doubts have been expressed as to whether s 77 affords to the Parliament the power to enact a provision such as s 44 of the Judiciary Act [117] . It is unnecessary in these proceedings to explore that question. None of the parties raised it. The procedures necessary for the resolution of such a question were not followed. The prosecutor, who would have had reason to raise any constitutional objection, disclaimed the point. Remittal, including in respect of the constitutional writs, has been ordered in the past. Clearly, it is envisaged, by the conferral of concurrent jurisdiction upon the Federal Court of Australia and the [NAME_4], that they would exercise, in the defined instances, jurisdiction similar to that provided to this Court by s 75(v) of the Constitution [118] . Such jurisdiction was conferred on those Courts by the Parliament. It was not conferred by any action of this Court [119] . [ADDRESS] is not compelled to remit any of its constitutional jurisdiction, including that under s 75(v), to any court. It is simply permitted to do so in the cases provided for, if it so decides [120] . [ADDRESS] has said that the Parliament may, by appropriate legislation, limit the cases in which the remedies appearing in s 75(v) of the Constitution are available to the High Court [121] . Those remedies cannot be removed entirely. But this is not what s 44 of the Judiciary Act purports to do. It therefore seems safe to assume that the Parliament may validly enact a power of remittal. Plainly, it is highly desirable that the Court should enjoy such a power.

3. The power invoked in this case must be derived ultimately from s 44 of the Judiciary Act, construed beneficially. In finding the meaning of the section, the Court must apply the usual rules for the construction of legislation, deriving the statutory purpose from the language used by the Parliament, read in its context. The matter pending in the High Court includes the prosecutor's claim to a writ of certiorari. This is not one of the writs expressly mentioned in s 75(v) of the Constitution. Questions have arisen in the past as to whether that writ is available out of this Court [122] . If it were not, a purported remittal of that claim to another court would arguably be beyond power. However, the better opinion appears to be that the writ of certiorari may issue where it is necessary to make effective one of the constitutional writs provided for by s 75(v) [123] . A writ of certiorari may not be available if it is the only relief sought in this Court [124] . In the present case, that controversy and another related to the scope of the writ of prohibition [125] can be put to one side. The prosecutor sought a writ of mandamus which is certainly one of those permitted by the Constitution. His claim for a writ of certiorari was purely ancillary. I am prepared to assume that, once proceedings are remitted to another court under s 44 of the Judiciary Act, that court enjoys a jurisdiction "coextensive with" that of this Court [126] . That court then stands in the jurisdictional shoes, as it has been put, of this Court [127] . But the question remains whether, in this case, the power to remit may be spelt out of s 44 of the Judiciary Act?

4. The fundamental requirement to establish a power of remittal is that it must be shown that the Court intended to receive the remittal is (relevantly to this case) a "federal court that has jurisdiction with respect to the subject-matter and the parties". That dual requirement directs the attention of this Court, on an application for remittal, to the identity of "the subject-matter" and of "the parties" [128] . As Murphy J pointed out in [NAME_30] v The Commonwealth [129] the words used in s 44 are "subject-matter". They should not be construed as meaning "the matter". This view of the section has prevailed. It is not necessary for the claimant seeking remittal to establish that the court to which the matter is remitted would, apart from the order of remittal, have had jurisdiction over the very matter remitted, had it been instituted in that court in the first instance [130] . The section addresses attention to the kind of "subject matter" raised by the proceedings. Thus a claim for relief concerning the taxation affairs of a corporation would not, as such, be of a kind which would fall within the jurisdictional "subject matter" of the Family Court of Australia or of the [NAME_4]. The "parties" to proceedings involving the constitutional writs are traditionally the Sovereign, in whose name the writ is issued, the officer(s) of the Commonwealth against whom it is sought to be made absolute and the prosecutor. In the instant case, one of the parties named is [NAME_6], a Judge of the [NAME_4]. The question is thus posed whether that Court would have jurisdiction with respect to the subject matter for the purpose of making absolute against [NAME_6] writs of mandamus and certiorari as sought by the prosecutor.

5. The constitutional writs referred to in s 75(v) are of a peculiar and well known character. They have a long history in English law, which was inherited, in this respect, as part of the law of Australia [131] . Barwick CJ once suggested that "[t]he use of the word "prohibition" in s 75(v) [of the Constitution] imports into this Court's jurisdiction the law appertaining to the grant of prohibition by the King's Bench" [132] . By inference, the same would be true of the writ of mandamus there referred to. These observations may be accepted so far as they go. However, they must be read subject to the fact that, in s 75(v) the writs are intended to have a constitutional function [133] . Viewed in this way, they have a character and operation in Australia which goes beyond their historical origins in English law. Yet one of the essential features of such writs has always been that they are "non-reflexive". That is, they are directed by a court having supervisory functions to ensure that those to whom they are directed exercise, and do not exceed, their jurisdiction. It is fundamental to the character of the writs of prohibition and of mandamus that they are directed to an office-holder who is subject to supervision, who holds an "inferior" office or whose power is relevantly limited [134] . It is thus essential to the character of such writs that they are not issued by a superior court to a judge of the same court [135] . That character is part of the features of the jurisdiction of this Court sought to be remitted. It is sometimes expressed in terms that the writs are "non-reflexive".

6. Subject to the Constitution, the Parliament may disturb long-settled rules of the common law. It may alter the operation, if not the character, of a constitutional writ. But especially because the writ derives from the Constitution s 75(v), it is reasonable to expect that any purported change in its operation (and even more any attempted change in its basic character) will be made abundantly clear. This was a point made by the [ADDRESS] of the Family Court of Australia when, soon after its establishment, it was suggested that it enjoyed a power, for alleged breach of the rules of procedural fairness, to issue a writ of prohibition against a Judge of that Court. [ADDRESS] held that "[t]he clearest expression would be needed before deciding that such a power was created, since prohibition is normally directed by a superior court to an inferior court" [136] . Reading this passage with the clarification afforded by the decision of this Court in Re [NAME_46]; Ex parte Minister for Employment, [NAME_4] (Q) [137] , the observation remains good. To confer power on a court to issue process in the nature of a writ of mandamus to a judge of that court, it would not be unreasonable to expect the plainest possible indication that such power was being conferred. This is especially so, one might add, in the case of a writ directed to a judge of an Australian federal superior court whom the Parliament had taken the trouble to exclude from the supervisory jurisdiction of the Federal Court of Australia, in substitution for supervision by this Court [138] . It is a general rule of statutory interpretation that language will not be taken as altering basic principles of the general law unless the alteration is made unmistakably clear [139] .

1. See Judiciary Act 1903 Cth, s 35(2) and Federal Court of Australia Act 1976 Cth, s 33(3). cf Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 206-207 2. [COMPANY_79] (1984) 154 CLR 579 at 582 3. [NAME_61] cited in Lindell, Duty to Exercise Judicial Review in [NAME_63] (ed), Commentaries on the Australian Constitution (1977) 150, at p 155. The contrary view of [NAME_80] is there noted.

4. See Judiciary Act 1903 Cth, s 39B; the Act, s 412(2).

5. Johnstone v The Commonwealth (1979) 143 CLR 398 at 409, per [NAME_44].

6. Johnstone v The Commonwealth (1979) 143 CLR 398 at 402, per Gibbs J.

7. Ince Bros & Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464 8. R v District Court of the Queensland Northern District; Ex parte [NAME_81] (1968) 118 CLR 488 at 491 R v [NAME_49]; Ex parte [NAME_50] (1978) 139 CLR 482 at 484 9. R v Ross-Jones (1984) 156 CLR 185 at 215 10. cf R v [NAME_35]; Ex parte [NAME_36] (1985) 157 CLR 351 at 387, 389, per Deane J.

11. Re [NAME_46] (1995) 184 CLR 620 at 652-653 12. Johnstone v The Commonwealth (1979) 143 CLR 398 at 408, per [NAME_44].

13. McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 23869 ALR 270 at 275-276.

14. Johnstone v The Commonwealth (1979) 143 CLR 398 at 407 15. (1979) 143 CLR 398 at 407.

16. Johnstone v The Commonwealth (1979) 143 CLR 398 at 402 17. cf Wilcox v Donohoe (1905) 3 CLR 83 at 88 R v Federal Court of Australia; Ex parte [NAME_29] (1979) 143 CLR 190 at 201 18. R v Federal Court of Australia; Ex parte [NAME_29] (1979) 143 CLR 190 at 201 19. R v [NAME_10]; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453 20. Re [NAME_46] (1995) 184 CLR 620 at 652-653 21. R v [NAME_8] of the [ADDRESS]; Ex parte London County Council [1925] 2 KB 43 at 58-59, 60. 22. [NAME_13] (1977) 3 Fam LR 11,555 at 11,562. 23. (1995) 184 CLR 620 at 652-653.

24. Judiciary Act 1903 Cth, s 39B(2)(aa).

25. Potter v Minahan (1908) 7 CLR 277 at 304 Baker v Campbell (1983) 153 CLR 52 at 123 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 331, 338.

No jurisdiction to remit

I turn to apply these considerations to the statutory provisions under consideration. The prosecutor raised two basic objections to the existence of a power of remittal in this case. The first was that s 44 did not apply because its application had been expressly excluded. The second was that, although ostensibly applicable, the section did not attach to the given facts because the case fell outside the pre-condition that the receiving court should have "jurisdiction with respect to the subject-matter and the parties".

The first objection may be quickly dealt with. It has no merit. It was urged that s 38(e) of the Judiciary Act, with its reference to the conferral of exclusive jurisdiction upon this Court in matters in which, relevantly, a writ of mandamus is sought against an officer of the Commonwealth or a federal court was expressly excluded from the operation of s 44(1) by the reference to s 44(2). That sub-section incorporates all of the paragraphs of s 38 except the one here relevant, namely that relating to the writ of mandamus. There is no doubt, as Gibbs CJ observed in State Bank of [NAME_40] v Commonwealth Savings Bank [140] that the omission of the cross-reference to par (e) was deliberate and made "as a matter of policy". However, the exclusion of matters in s 38 except, relevantly, the writ of mandamus, leaves such matters within the operation of s 44(1). Furthermore, s 44(2) is concerned with remittal to the Federal Court of Australia or any court of a State or Territory. The sub-section makes no reference to remittal to the [NAME_4]. It thus has no operation to diminish the generality of the remittal power under s 44(1) if it is otherwise applicable to this case.

1. (1984) 154 CLR 579 at 583.

The second argument, that s 44 does not apply to the facts of this case, has more substance. I would reject the first submission of the prosecutor that it failed to attach because "the parties" are not amenable to the jurisdiction of the [NAME_4] on the ground that a Judge of that Court is not, within s 412(2) of the Act, "an officer or officers of the Commonwealth holding office under this Act". The prosecutor's argument was that the [NAME_7] held office under the Constitution and not under the Act. It seems clear, by a cross-reference to s 361(3) of the Act, that the drafter intended to refer to [NAME_7] of the [NAME_4] as holding office "under the Act". It is true that, being [NAME_7] of a court created by the Parliament, they are entitled to the privileges and protections provided by s 72 of the Constitution. But that does not make them any the less [NAME_7] appointed "under" the Act for the purpose of s 412. It is now too late to argue that they are not "officers of the Commonwealth".

That conclusion leaves a final argument for consideration. It is that in giving meaning to "officers of the Commonwealth holding office under this Act" in s 412(2), this Court should read the expression down so as to exclude, for the application of the "prerogative writs", [NAME_7] of the [NAME_4] themselves. I would uphold that argument. The mere fact that for constitutional and other purposes [NAME_7] of federal courts, in this context the [NAME_4], are "officers of the Commonwealth" does not determine whether they are such in the context of s 412(2) of the Act. There are many features of the context which suggest otherwise. These include the long history of writs such as mandamus as "non-reflexive"; the express exclusion of such [NAME_7] from the supervisory jurisdiction of the Federal Court; the lack of any clear provision rendering such [NAME_7] answerable to such writs, and thus parties, before their own Court; and indications elsewhere in the Act that the contrary was intended. Those indications include the provisions of s 415 of the Act. That section provides, relevantly:

(1) Subject to subsection (2) and section 423 [dealing with appellate jurisdiction], the jurisdiction of the Court may be exercised by a single Judge.

(2) The jurisdiction of the Court is to be exercised by a [ADDRESS] in relation to:

(d) matters in which a writ of mandamus or prohibition or an injunction is sought against:

(i) a Presidential member; or

(ii) officers of the Commonwealth at least one of whom is a Presidential member.

The "Presidential member" referred to is defined in s 4(1) of the Act to mean "the President, a Vice President, a Senior Deputy President or a Deputy President" of the [NAME_4] Commission created by the Act. Heretofore, Presidential members of the [NAME_4] Commission have enjoyed the same rank and status as [NAME_7] of the [NAME_4] [141] . This helps to explain the exclusion from the supervisory jurisdiction of the Federal Court of persons holding office under the Act [142] . Exceptionally, the [NAME_4] Act 1993 Cth had inserted s 415 in the Act and rendered Presidential members of the Commission, along with other officers of the Commonwealth "at least one of whom is a Presidential member", amenable to the supervisory jurisdiction of the [NAME_4], exercised by the [ADDRESS] of that Court. No express mention is made that the jurisdiction of the Court is to be exercised by a [ADDRESS] in relation, relevantly, to the issue of a writ of mandamus against a Judge of the Court. By inference, therefore, that supposed jurisdiction would be left to a single Judge pursuant to s 415(1) of the Act. This consequence has only to be stated to demonstrate that the Parliament did not intend to confer upon the [NAME_4] supervisory jurisdiction in respect of its own [NAME_7]. It is not expressly provided, as would (at least) have been necessary to alter a fundamental character of the writ of mandamus. On the contrary, the express indications given by the Parliament make it clear that no such conferral of jurisdiction was intended. The mere fact that this Court, out of its powers, may provide a direction that the matter remitted be heard by a [ADDRESS] of the [NAME_4] cannot alter the character of the proceeding within that Court. Despite any such direction, the proceeding would be in the original and not the appellate jurisdiction of the Court, a fact which would heighten the anomaly of remitting it to the very court to be supervised. For such a power clear and express legislative provision would be required. It does not exist here.

1. The Act, s 9(2). Similarly, under the Conciliation and Arbitration Act 1904 Cth, s 7(5), Presidential members of the Australian Conciliation and Arbitration Commission enjoyed the same rank and status as [NAME_7] of the [NAME_5].

2. See Judiciary Act 1903 Cth, s 39B(2)(a).

In these circumstances, the [NAME_4] is not, within s 44(1) a federal court which has jurisdiction with respect to the subject matter and the parties. It has neither. [ADDRESS] could not, therefore, lawfully remit the matter to the [NAME_4], within the only statutory provisions relied upon for that purpose. It was on that basis that I joined in the order of the Court declining remittal.

Conclusion and orders

The conclusion which I reached as to power made it unnecessary for me to consider the discretionary reasons advanced by the prosecutor for refusing remittal in any case. These included the absence of a statutory appeal; the suggested embarrassment of a return of a matter to a superior court of which the judge in question was a party; the absence from this case of the conventional reasons sometimes given for remittals [143] ; and the convenience of hearing the matter in this Court. Had there been any power to remit, I would not have favoured exercising it in this case.

1. R v [NAME_45]; Ex parte Green (1984) 156 CLR 185 at 222-224, per Deane J.

The power to award costs to a party to a proceeding in a matter arising under the Act is controlled by s 347(1). Costs may only be ordered if the party instituted "the proceeding" vexatiously or without reasonable cause. Assuming the relevant "proceeding" to be the application giving rise to the question of remittal, it could certainly not be said to qualify for the exception. Assuming the "proceeding" to be the application by the prosecutor, I would reach the same conclusion so far as this part of the proceeding is concerned, in which he has succeeded in resisting the remittal [144] .

1. cf Re Polites; Ex parte [COMPANY_82] (1991) 173 CLR 78 at 93-94

The application for remittal to the [NAME_4] of Australia was refused by the decision of this Court on 13 March 1996. The foregoing are my reasons for joining in that refusal. [ADDRESS] had no power to accede to the request.