- 13 -
Commonwealth (1999) 197 CLR 510 at [226] per Kirby J and Gould v Brown (1998) 193 Spinks v Prentice (above) and in Ruhani (above).
39 As I have set out, the respondent submitted that Spinks v Prentice (above) and GPAO (above) were to be distinguished on the basis that in each of those cases there was another law made by the Parliament under s 122. In my opinion this search for a second law made under s 122 was misplaced and was not a viable basis of distinction. This is because there is no reason why a law made under s 122, here the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), may not confer jurisdiction on this Court by reference to the law of the Australian Capital Territory rather than laws made by the Commonwealth Parliament, assuming the Supreme Court Act 1933 (ACT) and Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) or the common law to be such territory laws. This is because s 9(3), in my opinion, both confers jurisdiction and creates rights arising under that provision. Those rights have the force of laws of the Commonwealth in respect of which a matter may arise.
40 I refer first to Barrett (above) at 155 and 169, with reference to s 58E of the Commonwealth Conciliation and Arbitration Act 1904–1934 (Cth), which was relevantly in the following terms:
58E(1) The Court may, upon complaint by any member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.
(2) Any person who fails to comply with such directions shall be guilty of an offence.
41 In Hooper v Hooper (above) at 535–538 the High Court applied Barrett (above) with reference to ss 10, 11 and 12 of Part III of the Matrimonial Causes Act 1945 (Cth). The High Court said at 537 that the State laws to which the force of federal law was given were those which might exist from time to time.
42 I refer also the reasoning to the same effect in O'Neill v Mann (2000) 101 FCR 160 at [37] per Finn J, with which, with respect, I agree.
43 In Ruhani (above) the High Court applied Barrett (above) at [8], [61], [80]–[81] and [111].
