JUDICIAL POWER AND DECLARATIONS OF RIGHTS INCONSISTENCY
Steven Rares*
1.	The six separate judgments in Momcilovic v The Queen raise the thorny question of whether, if a State court has exercised the judicial power of the Commonwealth under Ch III of the Constitution to resolve a controversy, it can then exercise a purely State jurisdictional function that arises as part of the proceedings.
2.	Judicial power has eluded any comprehensive definition although Griffth CJ’s attempt in Huddart Parker & Co Pty Ltd v Moorehead has stood the test of time.  He said:
“I am of opinion that the words “judicial power” as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

3.	Relevantly the question of judicial power considered in Momcilovic  required consideration of what s 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) might mean.  Under s 36(2) “if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section”. 
4.	The first thing to notice about this is that it fixes on a function of the Court that unquestionably involves the exercise of judicial power – the construction of two laws, one the Charter and the other the law whose provisions s 32 of the Charter commands that the Court must try to interpret consistently with its purposes “in a way that is compatible with human rights”.  If the outcome of that interpretative task is that the Charter was not worth the paper it was written on in relation to the incompatible provision, what then?
5.	First, in resolving the controversy in which the Court is then hearing, the Court must apply the law as it determines it to be through the exercise of its power of statutory construction to the facts.  Secondly, s 36(2) gives the Court a discretion to make a declaration of inconsistency.  Again, ordinarily, one might think that this is a quintessentially familiar aspect of inherent judicial power as we know it from cases such as Ainsworth v Criminal Justice Commission and Plaintiff M61/2010E v The Commonwealth.
6.	However, that conception of a declaration is then made to cope with s 36(5) of the Charter which is in these curious terms:
“5)	A declaration of inconsistent interpretation does not— 

(a)	affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or

(b)	create in any person any legal right or give rise to any civil cause of action.”

7.	It is not easy to comprehend how a declaration that reflects the outcome of the resolution by a court of the proper construction and working of two Acts first does not affect the validity, operation or enforcement of those Acts and, secondly, does not create legal rights.  Stepping back from the words of s 36(5) of the Charter, one might have thought that a declaration reflecting how a court had interpreted two statutes must have affected at least the operation and enforcement of each and also must have had some effect on the parties’ legal rights.  Justice Dixon explained in the Blair v Curran:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.”

8.	A declaration that reflects a conclusion that a person does not have a right given in the Charter and that his or her position is governed by a law inconsistent that right, is the legal foundation or justification for the Court then applying the law as it has found it to be.  How, one might ask, can s 36(5) say that a declaration doing so is but a thing written in water?
9.	At first blush, the effect of s 36(5) appears to strip the Court’s declaration of any aspect of the exercise of judicial power.  However, some justices in Momcilovic considered that s 36(5) created a non-judicial function to provide an advisory opinion, others saw the section’s function as incidental to judicial power.
10.	Obviously, all that was said in Momcilovic was obiter because the Court was exercising party jurisdiction under s 75(iv) of the Constitution.  But what will the position be in appeal to the High Court under s 73 of the Constitution from a decision, in wholly State jurisdiction, to make or refuse to make a declaration under s 36(5)?  The question then will arise as to whether such a decision or declaration is a “judgment, decree or order from which an appeal lies” for the purposes of s 73 of the Constitution.
11.	That raises new problems that, thankfully, non High Court Ch III judges can watch being resolved from the sidelines.
12.	The question of whether a court that has exercised the judicial power of the Commonwealth can, as it were, take its Ch III hat off, and pop on a wholly State jurisdiction wig is intriguingly raised by what French CJ said in the following passage: 
“Accepting the validity of s 36, there is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction in this case, could not proceed to exercise the distinct non-judicial power, conferred upon it by s 36, to make a declaration of inconsistent interpretation. In any event, in the exercise of appellate jurisdiction, this Court cannot interfere with such a declaration. A declaration of inconsistent interpretation, being non-judicial and not incidental to judicial power, cannot be characterised as a judgment, decree, order or sentence of the Supreme Court falling within the appellate jurisdiction conferred upon this Court by s 73 of the Constitution.”

13.	There are justiciable controversies that cannot form a matter under Ch III of the Constitution.  A State Act cannot limit the exercise of federal jurisdiction.  On the other hand, as Smith v Smith decided, a State Act can make the efficacy of an agreement dependent upon approval by a State Supreme Court.  In such a case, the application for curial approval under the State Act was not, as Gleeson CJ, Gaudron and Gummow JJ subsequently explained in Edensor, a justiciable controversy but was instead a condition precedent to a binding contract.
14.	However, that analysis does not seem to suggest a good fit with a declaration under s 36(5) that reflects the Court’s earlier application of judicial power to resolve a real controversy concerning the construction of legislation.  In Re Wakim;  Ex parte McNally Gummow and Hayne JJ, with whom Gleeson CJ and Gaudron J agreed, discussed what would amount to a single controversy capable of being resolved by the judicial power of the Commonwealth.  They said, among other instances of a single controversy, that “there is but one matter where different claims are so related that the determination of one is essential to the determination of the other”.
15.	In a case involving s 36 of the Charter, the resolution of the construction and interaction of the Charter and allegedly inconsistent Act is entirely interconnected.  It will only be once that construction has been determined that the Court will be in a position to contemplate making a declaration under s 36(5).  It must follow, as night follows day, that consideration of what to do under s 36(5) can only happen after the Court resolves the connected controversy of what the legislation means and whether there is an inconsistency with the Charter.  So, it is hard to see a clear distinction that could separate the function that s 36 casts upon a court from what it was doing immediately beforehand to resolve the controversy of how the two pieces of legislation fit together.  Perhaps the answer of whether there is a residium of wholly State power in all of this is akin to the distinctions Grouch Marx once made:
“I was married by a judge;  I should have asked for a jury.”