Palmer v Magistrate McKenzie[2025] QSC 127

SUPREME COURT OF QUEENSLAND

1. [1]
   The question at the heart of this matter is whether this court has jurisdiction to hear an application for judicial review brought by Mr Palmer (the Palmer JR application). Both the second respondent (CDPP) and the third respondent (ASIC) have applied for orders that the Palmer JR application be dismissed on the basis that this court does not have jurisdiction to hear it.^[1]
2. [2]
   In order to understand the arguments, it is necessary to set out some of the history of this matter and identify the relief sought by Mr Palmer.
3. [3]
   In February 2020 ASIC filed three complaints in the Magistrates Court alleging various offences by Mr Palmer and Palmer Leisure Coolum Pty Ltd (PLC).
4. [4]
   Two of the complaints allege breaches of the Corporations Act 2001 (Cth) – one against Mr Palmer, the other against PLC.
5. [5]
   The third complaint is against Mr Palmer only. It alleges two offences under s 408C(1)(d) of the Criminal Code and two offences under s 184(2)(a) of the Corporations Act. The alleged offences are said by ASIC to arise out of Mr Palmer dishonestly gaining a benefit or advantage for another person by withdrawing about $12 million from an account for an unauthorised purpose. He is also alleged to have dishonestly used his position as a director of a corporation, with the intention of directly or indirectly gaining an advantage for someone else, by way of the same conduct.
6. [6]
   Mr Palmer and PLC filed an application seeking the dismissal of all three complaints. On 1 August 2024 the part of the application concerning the third complaint was pursued. At the conclusion of the hearing, Magistrate McKenzie dismissed that part of the application so far as it related to the third complaint^[2] (the Original Order). He did so on the basis that the Magistrates Court did not have jurisdiction pursuant to sections 22A or 103B(1) of the Justices Act 1886  to summarily dismiss the complaint at a pre-committal hearing stage. He further held that, even if the Magistrates Court had jurisdiction to make the orders sought, he would not have done so because the case did not meet the threshold as ‘one of the clearest cases’ justifying summary dismissal.
7. [7]
   By the Palmer JR application Mr Palmer seeks orders quashing the Original Order and a declaration that the complaint is an abuse of process and should be dismissed. He relies upon s 30 of the Judicial Review Act 1991 (JR Act) or, alternatively, s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
8. [8]
   He has also applied to amend the Palmer JR application to seek orders:

1. quashing the Original Order, or

2. directing McKenzie M to dismiss the complaint, or

3. referring the matter back to the Magistrates Court,

and relies upon s 39B(1C)(d) or s 39(2) of the Judiciary Act 1903 (Cth), or s 58 of the Constitution of Queensland Act 2001. 

9. [9]
   Further, or in the alternative, he seeks a declaration that the Original Order is an abuse of process and relies upon s 39B(1C)(d) or s 39(2) of the Judiciary Act, s 58 of the Constitution of Queensland Act 2001 or s 43(2) of the JR Act or a combination of some or all of those sections.
10. [10]
    Further, or in the alternative, he seeks orders:

1. quashing the Original Order, or

2. directing McKenzie M to dismiss the complaint, or

3. referring the matter back to the Magistrates Court,

and relies upon s 1337B(1) of the Corporations Act.

11. [11]
    Finally, he seeks an order quashing or setting aside the Original Order pursuant to s 43(2) or s 47 (or both) of the JR Act.
12. [12]
    In a separate application Mr Palmer applies for orders under either the State or Commonwealth Jurisdiction of Courts (Cross-vesting) Acts transferring the proceeding to the Federal Court of Australia.

The jurisdictional issues

13. [13]
    The CDPP and ASIC are in broad agreement on this point. They contend that this court does not have jurisdiction because:

1. the relief sought under the JR Act is not available as the Original Order is not a decision made under a Queensland enactment,

2. the Original Order was made by McKenzie M in the exercise of federal jurisdiction pursuant to s 1338B(1) of the Corporations Act and s 39(2) of the Judiciary Act in conjunction with s 75(iii) of the Commonwealth Constitution,

3. relief is not available under the ADJR Act because s 9A of that Act provides that no court has jurisdiction to hear an application under that Act in relation to a decision of the type made by McKenzie M,

4. s 9 of the ADJR Act also denies jurisdiction to State courts including any supervisory jurisdiction being exercised pursuant to s 39 of the JR Act, s 58 of the Constitution of Queensland Act or any relief under Part 5 of the JR Act, and

5. s 39B(1C)(d) of the Judiciary Act does not apply because McKenzie M was not acting as an officer of the Commonwealth.

The application of federal jurisdiction

14. [14]
    The determination of the matters before this court requires the characterisation of the jurisdiction and powers exercised by McKenzie M and those sought to be exercised by this court.
15. [15]
    In the matter before McKenzie M ASIC was the complainant and was, for the purposes of s 75(iii) of the Commonwealth Constitution, the Commonwealth^[3]. For that reason, the Magistrates Court was invested with federal jurisdiction when dealing with the third complaint^[4]. Mr Palmer was charged with offences against both the State criminal law and “the laws of the Commonwealth”, the expression upon which turns the investing of State courts with jurisdiction by s 68(2) of the Judiciary Act.
16. [16]
    Section 68(2) provides:

1. “(2)
   The several Courts of a State or Territory exercising jurisdiction with respect to:

1. the summary conviction; or

2. the examination and commitment for trial on indictment; or

3. the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.”

17. [17]
    All the charges arise out of the same controversy between ASIC and Mr Palmer. The jurisdiction of a court exercising federal jurisdiction extends not only to the direct federal claims which are presented for its consideration but also to the entire litigious or justiciable controversy between the parties of which the federal claim forms a part.^[5]
18. [18]
    In the proceedings before McKenzie M, s 79 of the Judiciary Act operated to “pick up” State law. Section 79(1) provides:

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

19. [19]
    The purpose of s 79 was considered in Rizeq v Western Australia^[6] . In that case, the appellant had been charged on indictment with two offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). As he was a resident of New South Wales his trial before the District Court of Western Australia was a trial in the exercise of federal diversity jurisdiction under s 75(iv) of the Constitution. Section 114(2) of the Criminal Procedure Act 2004 (WA) was a law which regulated the exercise of State jurisdiction by providing that, in the case of offences of the kind with which the appellant had been charged, a majority verdict of guilty returned by not less than 11 jurors was sufficient to sustain a conviction. Because the Parliament of Western Australia lacks legislative power to command a State court exercising federal jurisdiction as to the manner of exercise of its jurisdiction, s 114(2) of the Criminal Procedure Act was incapable of applying of its own force. That left a gap in the laws regulating the trial, to which s 79(1) of the Judiciary Act responded by picking up the text of s 114(2) of the Criminal Procedure Act and applying it as a law of the Commonwealth governing the conduct of the trial.
20. [20]
    In contrast, s 6(1)(a) of the Misuse of Drugs Act was a law addressed to the conduct of individuals (rendering them liable for prosecution for criminal offences) and thus was determinative of the rights and duties of persons as opposed to the manner of exercise of jurisdiction. As such, the majority held that s 6(1)(a) was beyond the operation of s 79(1) of the Judiciary Act but that it applied of its own force as a law of the State of Western Australia under which the accused was charged.
21. [21]
    Bell, Gageler, Keane, Nettle and Gordon JJ concluded their decision in Rizeq in the following way:

“[103] Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws. What State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction. A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised. A State law cannot in that sense “bind” a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act. The operation of s 79 is limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.

[104] Section 114(2) of the Criminal Procedure Act, governing what is to be taken to be the verdict of a jury, is a useful illustration. Its application to a Western Australian court exercising federal jurisdiction is beyond the competence of the Parliament of Western Australia. Consistently with the prescription in s 7 of the Interpretation Act 1984 (WA) that every written law of Western Australia is to be construed “subject to the limits of the legislative power of the State”, s 114(2) is properly interpreted as applying to a Western Australian court only when exercising Western Australian jurisdiction. The text of s 114(2) is applied, as Commonwealth law, to a Western Australian court when exercising federal jurisdiction through the operation of s 79 of the Judiciary Act, except as otherwise provided by the Constitution or by some other Commonwealth law. That is what occurred in the trial of Mr Rizeq, there being no provision of the Constitution or of other Commonwealth law preventing it.

[105] Section 6(1)(a) of the Misuse of Drugs Act, in contrast, is a law having application independently of anything done by a court. It is squarely within State legislative competence and outside the operation of s 79 of the Judiciary Act. It applied in the trial of Mr Rizeq as Western Australian law just as it applied to him before any court was called upon to exercise jurisdiction in relation to the charges brought against him.”  (emphasis added)

22. [22]
    The effect of investing a State court with federal jurisdiction was described in this way by Kiefel CJ:

“[5] A State court invested with federal jurisdiction, while acting in that capacity, becomes part of the Federal Judicature. Chapter III provides for an “integrated national court system”.

…

[8] A legislative grant of federal jurisdiction simply means that authority is given to a court to hear and determine a matter.

…

[9] Federal jurisdiction, understood as the authority conferred upon a court to adjudicate a matter, is to be distinguished from the law that that court applies in the exercise of that jurisdiction. In Anderson v Eric Anderson Radio & TV Pty Ltd, Kitto J explained that the conferral of federal jurisdiction merely provided a different basis for the authority of a court to enforce whatever law is applicable to the matter before it. It does not change the law the court enforces in adjudicating upon that matter. It follows that the fact that a court is exercising federal jurisdiction says nothing about the laws to be applied in a particular case.

…

[11] The federal jurisdiction that a State court is given to hear and determine a matter must also be distinguished from provisions made by statute which provide a court with powers it may exercise in the hearing and determination of a matter, and in otherwise regulating the proceedings before it.”

(citations omitted)

23. [23]
    This Court is, like the Magistrates Court was, invested with federal jurisdiction because the Commonwealth is a party – as an applicant in its own application and as a respondent in Mr Palmer’s application.

What law was applied by McKenzie M?

24. [24]
    In order to determine the extent of any jurisdiction this court has to deal with the Palmer JR application it is necessary to understand the character of the law relied upon by McKenzie M in reaching his decision. His Honour was asked to exercise the power under the Justices Act to dismiss the complaint. He held that neither s 22A nor s 103B(1) allowed him to do so. Those provisions did not apply of their own force in the exercise of federal jurisdiction – Solomons v District Court of New South Wales^[7]. They applied, as Kitto J put it in Pedersen v Young^[8] “as federal law”. Or as McHugh J said in ASIC v Edensor Nominees Pty Ltd^[9]:

“When State laws apply as federal laws in proceedings in which the Commonwealth is a party and in their application affect the Commonwealth, they do so, as I have indicated, by force of a federal law, the Judiciary Act, enacted by the Parliament to facilitate the exercise of the judicial power of the Commonwealth.”

25. [25]
    For Mr Palmer it was argued that even if State laws are picked up and applied in a court’s exercise of federal jurisdiction, that does not affect that the relevant “law” is a law (or Act) of the State. The Judiciary Act (or Corporations Act) merely provide the machinery for State laws to be applied. This, he submitted, was confirmed by the majority’s decision in Attorney-General (Cth) v Huynh^[10]. In Mr Dunning’s oral submissions it was put this way: “What is clear is Huynh is a decision in the last two years where the High Court has recognised that one can get judicial review under the State judicial review regime of some things in the federal jurisdiction, in that case the Commonwealth offences.”
26. [26]
    The decision in Huynh does not assist Mr Palmer. It is necessary to provide some detail of the events leading to the High Court’s decision. Mr Huynh had been convicted in the District Court of New South Wales of an offence under the Commonwealth Criminal Code. After exhausting all avenues of appeal, he applied for an enquiry into his conviction pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) which provides that an application for an enquiry into a conviction may be made to the Supreme Court by the convicted person. After considering such an application, the Supreme Court may direct that an enquiry be conducted or may refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal.  Mr Huynh’s application was dismissed and he applied to the Supreme Court for judicial review of the dismissal decision. The Court of Criminal Appeal held that the CAR Act did not apply to a person seeking a review of a conviction for a federal offence.
27. [27]
    In the High Court, the majority held that, by virtue of s 68(1) of the Judiciary Act s 78(1) and s 79(1)(b) (but not s 79(1)(a)) of the CAR Act are picked up and applied as surrogate federal laws in circumstances where a person is convicted in a NSW court of a Commonwealth offence. In reaching that conclusion the majority^[11] said that, while there was a substantial degree of overlap in the purposes and provisions of s 68 and s 79 of the Judiciary Act, there were important differences:

“[42] … There is a difference of focus, s 68(1) being concerned with laws applying to persons (in the sense that those persons are the subject or object of the applicable laws whether or not those persons are immediately bound by them) and s 79(1) being concerned with laws binding on courts. Underlying that difference in focus is a difference in the roles of the two provisions, s 68(1) being concerned to pick up identified aspects of State and Territory criminal procedure — so as to ensure that “federal criminal law is administered in each State [and Territory] upon the same footing as State [and Territory] law and [to avoid] the establishment of two independent systems of justice” — rather than being narrowly confined to the jurisdictional gap-filling role identified for s 79(1) in Rizeq v Western Australia. There is also a difference in the nature and degree of translation that is required in picking up and applying State and Territory laws. …” (citations omitted)

28. [28]
    Their Honours went on to say that: “[45] … s 68(2) “recognizes that the adoption of State law must proceed by analogy”. The federal jurisdiction it invests is “a jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State”.” (citations omitted)
29. [29]
    They went on to conclude that:

“[77] … the texts of ss 78(1) and 79(1)(b) of the CAR Act are applied as Commonwealth laws by force of s 68(1) of the Judiciary Act on the basis that they are laws respecting the procedure for the hearing of appeals in the “like jurisdiction” to that conferred under s 86 of the CAR Act (read with the Criminal Appeal Act) invested in the Court of Criminal Appeal by s 68(2) of the Judiciary Act upon its receipt of a reference under s 79(1)(b) of the CAR Act. The matter to be heard and determined in the exercise of the judicial power of the Commonwealth in that like federal jurisdiction is a controversy, between a person convicted of and sentenced for an offence against a law of the Commonwealth and the Attorney-General of the Commonwealth representing the Crown in right of the Commonwealth, as to whether the conviction or sentence should be quashed or otherwise dealt with on any ground for which provision is made in the Criminal Appeal Act.”

30. [30]
    The same conclusion must be reached in this case. McKenzie M was applying federal law in making his decision and it was made under the Judiciary Act – such is the effect of the decision in Huynh. It is not possible to identify the legal authority for the decision without recourse to that Act.^[12]
31. [31]
    In this case, there is an extra provision which is relevant. Part 9.6A Division 2 of the Corporations Act concerns the jurisdiction of courts in criminal matters.
32. [32]
    Section 1338A provides:

1. “(1)
   This Division provides in relation to the jurisdiction of courts in respect of criminal matters arising under the Corporations legislation and so provides to the exclusion of sections 68, 70 and 70A of the Judiciary Act 1903.

2. This Division does not limit the operation of the provisions of the Judiciary Act 1903 other than sections 68, 70 and 70A.

3. Without limiting subsection (2), this Division does not limit the operation of subsections 39(2) of the Judiciary Act 1903 in relation to criminal matters arising under the Corporations legislation or sections 68A to 68D of that Act in relation to proceedings in relation to an offence against the Corporations legislation that are brought before the Federal Court.”

33. [33]
    Section 1338B relevantly provides:

1. “(1)
   Subject to this section, a court of a State or Territory exercising jurisdiction:

1. with respect to:

1. the summary conviction; or

2. the examination and commitment for trial on indictment; or

3. the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory concerned, and with respect to:

4. their sentencing, punishment and release; or

5. their liability to make reparation in connection with their offences; or

6. the forfeiture of property in connection with their offences; or

7. the proceeds of their crimes; and

2. with respect to the hearing and determination of:

1. proceedings connected with; or

2. appeals arising out of; or

3. appeals arising out of proceedings connected with;

any such trial or conviction or any matter of a kind referred to in subparagraph (a)(iv), (v), (vi) or (vii);

has the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations legislation.”

34. [34]
    Section 1338C provides:

1. “(1)
   Subject to this Division, the laws of a State or Territory respecting:

1. the arrest and custody in the State or Territory of offenders or persons charged with offences; and

2. criminal procedure in the State or Territory in relation to such persons; and

3. the rules of evidence applied in criminal procedure in the State or Territory in relation to such persons;

apply in the State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations legislation.

2. In this section:

criminal procedure means the procedure for:

1. the summary conviction; and

2. the examination and commitment for trial on indictment; and

3. the trial and conviction on indictment; and

4. the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings;

of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail.”

35. [35]
    Sections 1338B and 1338C, like s 79 of the Judiciary Act, pick up relevant State legislation and apply it as federal law. Given that two of the charges allege breaches of the Corporations Act, it follows that the decision made by McKenzie M was made under both the Judiciary Act and the Corporations Act.

Does the JR Act apply?

36. [36]
    For Mr Palmer it was argued that McKenzie M’s decision was made under a State Act – the Justices Act – regardless of whether that Act was picked up by the Judiciary Act or the Corporations Act. For the reasons given above, that cannot be accepted. So far as is relevant, the JR Act applies to decisions of an administrative character made under a State Act.^[13] The Original Order was made pursuant to the Judiciary Act and the Corporations Act, not under a State Act.
37. [37]
    Mr Dunning KC argued that the Supreme Court’s supervisory jurisdiction – preserved under Part 5 of the JR Act – was still available. That raises two questions:

1. does the ADJR Act deny this court that power, and if it does

2. what is the effect of Kirk v Industrial Court (NSW)^[14]?

Does the ADJR Act deny jurisdiction to this Court?

38. [38]
    Section 9 of the ADJR Act provides:

“Limitation of jurisdiction of State courts

1. Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:

1. a decision to which this section applies that is made after the commencement of this Act;

2. conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;

3. a failure to make a decision to which this section applies; or

4. any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.

Note: This subsection has effect subject to the Jurisdiction of Courts (Cross‑vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.

2. In this section:

decision to which this section applies means:

1. a decision that is a decision to which this Act applies; or

2. a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.

review means review by way of:

1. the grant of an injunction;

2. the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

3. the making of a declaratory order.

3. This section does not affect:

2. the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or

3. the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.”

39. [39]
    The definition of a “decision to which this Act applies” is found in s 3 ADJR Act:

“decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

1. under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment; or

2. by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment;

other than:

3. a decision by the Governor‑General; or

4. a decision included in any of the classes of decisions set out in Schedule 1.”

40. [40]
    A decision of the type made by McKenzie M under the Judiciary Act or the Corporations Act is a decision made under an Act to which the ADJR Act would otherwise apply.
41. [41]
    The effect of s 9 is clear. This court has no jurisdiction to review (as defined in s 9(2)) the Original Order.
42. [42]
    That was the decision reached by the New South Wales Court of Appeal when it heard the matter of Huynh v Attorney General (NSW)^[15] on remittal from the High Court.
43. [43]
    While s 9 is directed to denying State courts any jurisdiction to review decisions made under Commonwealth legislation, s 9A of the ADJR Act is more focussed and applies specifically to criminal proceedings and to all courts:

“9A Limitation of jurisdiction to review related criminal justice process decisions

1. Subject to subsection (2), at any time when:

1. a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or

2. an appeal arising out of such a prosecution is before any court;

no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.

2. Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

3. Where subsection (2) applies, the prosecutor may apply to the court for a permanent stay of proceedings in the hearing and determination of the application and the court may grant such a stay if the court determines that:

1. the matters that are the subject of the application are more appropriately dealt with in the criminal justice process; and

2. a stay of proceedings will not substantially prejudice the applicant.

4. In this section:

appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

related criminal justice process decision, in relation to an offence, means:

1. a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

1. a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

2. a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

3. a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

4. a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

5. a decision in connection with an appeal arising out of the prosecution; or

2. a decision of the Attorney‑General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.

Note: A decision to prosecute a person for an offence is not reviewable under this Act: see paragraph (xa) of Schedule 1.”

44. [44]
    McKenzie M’s decision was a “decision in connection with the … committal for trial” of Mr Palmer^[16]. The words “in connection with” have “… a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a causal relationship between the two things … They may be used to describe a relationship with a contemplated future event …”.^[17] Thus, the matter before McKenzie M was a “related criminal justice process decision” and “no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.”^[18]

What is the effect of the principle in Kirk v Industrial Court (NSW)?

45. [45]
    Mr Palmer has raised a constitutional question about the validity of s 9A of the ADJR Act. (The argument was later extended to include s 9.) In the notices issued by Mr Palmer under s 78B of the Judiciary Act he formulated the proposition in this way – if it is contended that, by reason of s 9A of the ADJR Act, the Supreme Court is usurped of jurisdiction to review the Magistrate’s decision then, to that extent, he argues that, in reliance on Kirk v Industrial Court (NSW), s 9A is limited in its application to “decisions” made within the limits of power, that is, those not attended by jurisdictional error.
46. [46]
    In Kirk the High Court considered, among other things, the supervisory jurisdiction of the Supreme Court of New South Wales. In that regard, the relevant legislation was the Industrial Relations Act 1996 (NSW). Section 179 of that Act provided that a decision of the Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal”. The provision extended to proceedings for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, injunctions, declaration or otherwise. It did not apply to the exercise of a right of appeal to a Full Bench of the Industrial Court.
47. [47]
    The High Court held that legislation which would take from the Supreme Court of a State the power to grant relief on account of jurisdictional error was beyond State legislative power, whereas legislation which denied the availability of relief for non-jurisdictional error of law appearing on the face of the record was not beyond power.^[19]
48. [48]
    As part of its reasoning the plurality said: “To deprive a state Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of state executive and judicial power by persons and bodies other than that court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of “distorted positions”. And as already demonstrated, it would remove from the relevant state Supreme Court one of its defining characteristics.”^[20]
49. [49]
    It must be noted that the Court, in considering the historical basis of the Supreme Court’s jurisdiction said:

“[98] The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court. …” (emphasis added)

50. [50]
    The constraints identified in Kirk relate to the exercise of State executive and judicial power. The Court was not concerned with the supervision by a State Supreme Court of the exercise of federal jurisdiction by another State court or tribunal.
51. [51]
    Neither s 9 nor s 9A purport to interfere with or limit the inherent supervisory jurisdiction of the Supreme Court. They deal only with applications under the ADJR Act and work to confine the jurisdiction of any court by providing, for example, that “no court has jurisdiction to hear, continue to hear or determine an application under this Act” in the circumstances defined in s 9A(1). They go no further than confining the jurisdiction of courts with respect to applications under the Act concerning particular types of matters. They do not go to the extent of the privative clause considered in Kirk which purported to immunise a relevant decision from any appeal, review etc in any court. They do not oust the supervisory jurisdiction of the Supreme Court in these circumstances because, so far as federal jurisdiction is concerned, the Court only has the jurisdiction conferred upon it and that conferral can be subject to such conditions as the Commonwealth Parliament decides to impose.

Can s 109 of the Commonwealth Constitution be suspended?

52. [52]
    The answer to that question is, obviously, no. But the issue arose out of what was a misapprehension of the arguments advanced by ASIC and the DPP. It was put by Mr Dunning that those parties contended “that as soon as you are in the diversity jurisdiction all state laws become federal law” with the result that, when federal jurisdiction is invested in a State court “[A]ll state enactments become federal enactments.” That was not the argument by those parties. They argued, correctly with respect, that the effect of the provisions in the Judiciary Act was to give relevant State statutes force as federal laws.
53. [53]
    The Judiciary Act cannot “pick up” or give effect to State laws which are invalid by reason of s 109 of the Constitution^[21]. Such a State law is invalid when it is, or becomes, “inconsistent with a law of the Commonwealth” and, thus, to the extent of any inconsistency, it is not a law of the State.

The proposed amended Originating Application

54. [54]
    Mr Palmer seeks to amend the Originating Application by seeking orders and directions which rely upon a number of statutory provisions.
55. [55]
    Reliance is placed upon s 58 of the Constitution of Queensland Act 2001 or s 43(2) or s 47 of the JR Act. For the reasons given above, resort to State legislation is not available. In addition, a review relying upon s 43 and s 47 (a prerogative order) is not available because the Supreme Court has not been invested with the necessary jurisdiction – s 9 ADJR Act.
56. [56]
    One part of the proposed amendment relies upon s 39B(1C)(d) of the Judiciary Act. Section 39B of the Judiciary Act is concerned with the original jurisdiction of the Federal Court. And, while it invests a Supreme Court with a limited jurisdiction, it does not assist Mr Palmer.
57. [57]
    Section 39B(1C) provides:

(1C) Subject to subsection (1D), at any time when:

1. a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or

2. an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

3. the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

4. the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.

58. [58]
    The section applies because s 39B(1C)(a) is satisfied. The effect of (d) is to invest a Supreme Court with jurisdiction “with respect to any such matter.” The “matter” referred to is that which is set out in (c). To qualify as a “matter” it must concern an application which “seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision.” (emphasis added)
59. [59]
    A State magistrate exercising jurisdiction under the Judiciary Act “does not in any event answer the description of an officer of the Commonwealth.”^[22] That this is so was recognised as long ago as 1916 in R v Murray; ex parte The Commonwealth^[23] where Higgins J said:

“The answer is that a District Court Judge of New South Wales is not an officer of the Commonwealth. It is true that he was exercising federal jurisdiction under a Commonwealth Act; but he remains an officer of New South Wales, selected by New South Wales, paid by New South Wales, removable by New South Wales, responsible to New South Wales. The District Court has been invested with certain federal jurisdiction under sec. 77 (III.); but the fact that additional powers have been conferred upon that Court by the Commonwealth Parliament no more makes the Court, or the Judge, an officer of the Commonwealth than the gift of a rifle by the British Government to a Belgian soldier would make the latter a British soldier.”

Should this matter be transferred to the Federal Court of Australia?

60. [60]
    In his proposed amended Originating Application, one of the amendments sought by Mr Palmer (identified as Amendment 2C) seeks orders, pursuant to s 1337B(1) of the Corporations Act and s 23 of the Federal Court of Australia Act 1976, quashing the Original Order, or directing McKenzie M to dismiss the complaint, or referring it back to the Magistrates Court to proceed according to law.
61. [61]
    Section 1337B(1) provides:

1. Jurisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations legislation.

62. [62]
    The application sought to be made is a civil matter arising under the Corporations legislation – see s 1337A(1) Corporations Act.
63. [63]
    The power to transfer is given by s 1337H. It relevantly provides:

1. “(1)
   This section applies to a proceeding (the relevant proceeding) in a court (the transferor court) if:

1. the relevant proceeding is:

1. a proceeding with respect to a civil matter arising under the Corporations legislation; or

2. a subsection 1337B(3) proceeding; and

2. the transferor court is:

1. the Federal court; or

2. a State or Territory Supreme Court.

2. Subject to subsections (3), (4) and (5), if it appears to the transferor court that, having regard to the interests of justice, it is more appropriate for:

1. the relevant proceeding; or

2. an application in the relevant proceeding;

to be determined by another court that has jurisdiction in the matters for determination in the relevant proceeding or application, the transferor court may transfer the relevant proceeding or application to that other court.

…”

64. [64]
    All parties agreed that this court had power to transfer 2C. Given that I have held this court does not jurisdiction to deal with any of the matters raised by Mr Palmer it is, I find, in the interests of justice that an amended application confined to 2C be transferred to the Federal Court. It is for that court to determine the extent of its own jurisdiction and the effect, if any, which s 9A has on it.
65. [65]
    It follows, then, that I will allow the amendment sought limited to 2C and order that the matter be transferred to the Federal Court.

Conclusions

66. [66]
    This court does not have jurisdiction to hear and determine the Originating Application or the proposed amended application for a combination of reasons referred to above:

1. s 9 of the ADJR Act precludes relief:

1. under s 30, s 43 or s 47 of the JR Act,

2. under s 16 of the ADJR Act,

3. reliant on s 39B(1C)(d) of the Judiciary Act,

4. reliant on s 39(2) of the Judiciary Act,

5. reliant on s 58 Constitution of Queensland Act, and

6. reliant on s 1337B(1) of the Corporations Act, and

2. s 9A of the ADJR Act precludes relief:

1. under s 30, s 43 or s 47 of the JR Act, and

2. under s 16 of the ADJR Act, and

3. as McKenzie M is not an officer of the Commonwealth, relief reliant on s 39B(1C)(d) of the Judiciary Act is not available.

67. [67]
    The Originating Application should be amended so that the only relief sought is 2C. Apart from that, the balance of the Originating Application is dismissed.
68. [68]
    As I have formed the view that the Federal Court does not have jurisdiction to deal with any of the matters, apart from 2C, that is all I will order be transferred. But it is not for this court to make specific findings to that effect. Upon this matter being transferred (in the limited form I have identified) it is for the Federal Court to determine whether it has jurisdiction to hear any other applications which might be brought before it by way of amendments granted by that court.

Orders

69. [69]
    The parties are to bring in minutes of order reflecting these reasons.
70. [70]
    I will hear the parties on costs.