The Constitutional Demise of the Cross-Vesting Scheme

Abstract

In Re Wakim, the High Court of Australia found that a crucial aspect of the cross-vesting scheme was constitutionally invalid by holding that State legislation which purports to vest State judicial power in the Federal Court and Commonwealth legislation which “consents” to that investiture is constitutionally invalid. When the reasoning in Re Wakim is compared to that in the Court’s earlier decision in Gould v Brown, important changes in emphasis appear. Further, a comparison between the decision of the statutory majority in Gould v Brown and the majority in Re Wakim suggests that the decisive difference between the two views rests on a difference in conception of the fundamental nature of the Australian federation. The statutory majority in Gould v Brown envisage a federation in which the “co-operative” capacities of the Commonwealth and the States extend to all matters which “appertain . . . to self-government”. The majority in Re Wakim hold that the federation is one of “divided” sovereignties of the Commonwealth and the States, each governing their strictly separated “spheres”. Little in either of the judgments, however, is addressed to explicitly defending these vastly different conceptions of our federal system.

Keywords: cross-vesting jurisdiction, federal courts, state courts, cooperative federalism, coordinate federalism