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Federal Judicial Scholarship |
THE RE-EMERGENCE OF FEDERAL JURISDICTION IN AUSTRALIA
JUSTICE RONALD SACKVILLE*
NSW Bar Association and ACT Bar Association Regional Conference, Gerringong
*Judge, Federal Court of Australia. The views are those of the author, not of the Court.
Abstract
The death of the cross-vesting scheme brought about by the decision in Re Wakim, Ex parte McNally (1949) 198 CLR 511, has restored the concept of federal jurisdiction to its central position in the day-to-day workings of the Australian judicial system. The decision represents the apparent triumph of the “dualist” theory of Australian federalism. Yet the impact of that theory on the jurisdiction of the Federal Court should not be overstated. The post-Wakim jurisdiction of the Court, subject to limitations such as those prescribed by Part 8 of the Migration Act 1958 (Cth), is broader than many have assumed. Primarily this is because of the terms in which s 39B of the Judiciary Act 1993 (Cth) confers jurisdiction on the Court, including the so-called “identity jurisdiction” discussed in Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 177 ALR 239. It also follows from the broad view of the accrued jurisdiction of the court confirmed in Re Wakim itself.
The concept of federal jurisdiction is also fundamental to the operation of State courts. In civil cases, they exercise federal jurisdiction in a surprisingly wide range of circumstances. Since the law applicable to such proceedings is to be determined in accordance with s 79 of the Judiciary Act, even the most mundane case can generate considerable complexity. This is amply demonstrated by recent decisions of the High Court, which illustrate the need for advocates to keep abreast of the intricacies of this area of Constitutional Law.
The Resurgence of Federal Jurisdiction
The topic of federal jurisdiction in Australia does not instantly resonate as one of special interest, even to practising lawyers. Yet it and the related (but not identical) question of the jurisdiction of federal courts have recently attracted close scrutiny from courts, policy-makers, politicians and the Commonwealth and State Parliaments. Indeed, it is increasingly apparent that practising lawyers, no matter how disinclined they may be to immerse themselves in constitutional doctrine, must be alert to the nature and scope of federal jurisdiction and the consequences of its exercise. These issues go to the heart of the practical operations of the Australian judicial system.
“Federal jurisdiction” is a constitutional expression, mentioned
four times in Chapter III of the
Constitution.[1]
It has been authoritatively defined to mean “the authority to adjudicate
derived from the Commonwealth Constitution and
laws”.[2] The
expression is often used in contradistinction to “State
jurisdiction”, which is “the authority which State
courts possess to
adjudicate under the State Constitution and
laws”.[3] As
Gaudron J observed in Re The Governor, Goulburn Correctional Centre; Ex parte
Eastman,[4] federal
jurisdiction is co-extensive with the matters specified in ss 75 and 76 of the
Constitution.
Section 75 provides that the High Court has original
jurisdiction in the following matters:
“(i) Arising under any
treaty:
(ii) Affecting consuls or other representatives of other countries:
(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:
(iv) Between States, or between residents of different States, or between a State and a resident of another State:
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth....”.
Section 76 provides that Parliament may make laws conferring original
jurisdiction on the High Court in any matter:
“(i) Arising under this Constitution, or involving its interpretation:
(ii) Arising under any laws made by the Parliament:
(iii) Of Admiralty and maritime jurisdiction:
(iv) Relating to the same subject-matter claimed under the laws of different States.”
Much of the recent interest in federal jurisdiction has been provoked, or at least reawakened, by decisions of the High Court. It is fair to say that the jurisprudence of the current High Court[5] has been dominated by questions involving federal jurisdiction or the exercise of jurisdiction by federal courts. Re Wakim[6], perhaps the most significant by-product of that jurisprudence, sounded the death-knell for the cross-vesting scheme, once thought to be “a significant landmark on the road towards the creation of a unitary judicial system in Australia”.[7] The High Court brought about the demise of the scheme, at least so far as the vesting of jurisdiction in federal courts is concerned, by holding that Chapter III of the Constitution does not permit State Parliaments to confer jurisdiction on federal courts in matters arising exclusively under State law.[8]
The cross-vesting scheme was in force between 1 July 1988 and 17 June 1999, the date Re Wakim was decided. During that period, the Federal Court exercised original and appellate jurisdiction in State matters, pursuant to the cross-vesting legislation of the States.[9] While the scheme remained in force the precise limits of the jurisdiction conferred on the Federal Court under Commonwealth law became largely irrelevant as a practical matter. Subject to the observance of procedural requirements, in general it was of little consequence whether the Federal Court was exercising the jurisdiction conferred by the Commonwealth Parliament, the “accrued jurisdiction” of the Court or jurisdiction in State matters conferred by State Parliaments.
The demise of the cross-vesting scheme has had a number of consequences. The immediate political response to Re Wakim was a flurry of remedial legislation intended to validate orders made by the Federal Court without jurisdiction.[10] Of greater long term importance, the decision in Re Wakim has prompted co-operative action between the Commonwealth and States[11] designed, among other things, to resurrect the jurisdiction of the Federal Court to deal with corporations matters.[12] More fundamentally still, Re Wakim has re-ignited judicial concern with the scope of federal jurisdiction and the role of courts, both State and federal, in the exercise of federal jurisdiction.
The Federal Court of Australia
It was by no means inevitable that the Constitution should have contemplated the establishment of separate State and federal court systems. Sir Owen Dixon once famously remarked that
“neither from the point of view of juristic principle nor from that of the practical and efficient administration of justice can the division of the Courts into state and federal be regarded as sound.”[13]
This observation was consistent with the view he expressed in 1927 to the Royal Commission on the Constitution:
“that as a result of the provisions of the Constitution and those of the Judiciary Act ‘Federal jurisdiction’ forms a grave impediment to the practical administration of justice. We think this confusion and all the difficulties which attend it ought to receive the serious attention of those interested in maintaining a Federal system of justice which is speedy, efficient and practical.”[14]
Had Sir Owen Dixon’s views been adopted by the framers of the Constitution, it may not have been necessary to distinguish between the exercise by courts of State and federal jurisdiction. But the Constitution did provide for separate judicial systems, although it was left to Parliament to decide whether it would create federal courts other than the High Court.[15] Once provision was made for separate systems, the concept of federal jurisdiction became of central importance to legislative arrangements for the distribution of judicial business between State and federal courts.
So far as the exercise of judicial power was concerned, the structure contemplated by the Constitution generally followed the United States model, subject to two major qualifications. The first was that the High Court, unlike the Supreme Court of the United States, was given jurisdiction to hear appeals from State courts exercising exclusively State jurisdiction.[16] With the abolition of appeals to the Privy Council, there is now “but one common law in Australia which is declared by [the High] Court as the final court of appeal”.[17] The second qualification was the celebrated so-called “autochthonous expedient”,[18] whereby the Commonwealth Parliament was empowered to invest State courts with federal jurisdiction.[19]
For the first seventy-five years of federation, Parliament was largely content to rely on the investing of State courts with federal jurisdiction, rather than to invoke its constitutional power to create federal courts. The Commonwealth Parliament did create specialised federal courts, such as the Federal Court of Bankruptcy and the Commonwealth Industrial Court, which exercised jurisdiction in relatively narrow areas of federal law.[20] It was not until 1977, when the Federal Court of Australia commenced to operate, that a federal court of general jurisdiction, other than the High Court, formed part of the Australian judicial system.
The events leading to the creation of the Federal Court are instructive, since they demonstrate that very different views were held as to the role that should be performed by a non-specialist federal court. The movement for the establishment of a superior federal court began in earnest in the 1960s. The early proponents of such a court founded their arguments primarily on the need to relieve the High Court from the burden of work in its original jurisdiction, leaving it free to concentrate on its appellate and constitutional functions.[21] A second theme was the desirability of ameliorating the work load of State courts exercising federal jurisdiction and of achieving uniformity in the judicial interpretation and administration of federal laws.[22]
It seemed at one time that these arguments would be given their full force. In 1973, after some earlier legislative proposals had foundered, the then Labor Government introduced the Superior Court of Australia Bill.[23] This provided for a Superior Court the original jurisdiction of which was to be virtually co-extensive with the matters specified in ss 75 and 76 of the Constitution. The Superior Court therefore would have been able to hear and determine virtually all federal matters within federal jurisdiction and would have taken over much of the work of State courts in relation to those matters. The Bill was ultimately defeated in the Senate.
In 1976, the newly elected Coalition Government introduced a more modest proposal. The legislation provided for the establishment of the Federal Court,[24] but with a much more limited jurisdiction than that provided for in the Superior Court of Australia Bill. The narrower approach reflected the Government’s view that the earlier proposals went too far because they would have removed from the State courts the bulk of the federal jurisdiction exercised by them and would have weakened their status. The Government’s position was that
“only where there are special policy or perhaps historical reasons for doing so, should original jurisdiction be vested in a federal court.”[25]
Consistently with that view, the legislation limited the original jurisdiction of the Court largely to industrial matters, bankruptcy, judicial review of administrative decisions and trade practices, although the Court’s appellate jurisdiction extended to taxation and certain intellectual property appeals.[26]
The widely acknowledged success of the Federal Court during its first quarter of a century[27] has tended to obscure the fact that its creation was not greeted with universal enthusiasm. Even after the Federal Court had commenced to function, a number of commentators, including senior members of the judiciary, expressed doubts as to the justification for the Court’s continued existence.[28] Their concerns included the potential for jurisdictional conflicts between the Federal Court and State courts, the possibility that no single court might be able to resolve an entire controversy and the threat posed by the new court to the role and standing of State courts.[29] Echoes of the critics’ scepticism may be heard even now.[30]
The misgivings and indeed hostility expressed by the critics of the Federal Court did not prevent Parliament expanding the jurisdiction of the Court. Apart from the cross-vesting scheme, the most significant developments came about with the enactment in 1983 of s 39B(1) of the Judiciary Act, and in 1997 of s 39B(1A) of the Judiciary Act. Section 39B(1) provides that, subject to certain limitations, the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. This grant of jurisdiction mirrors the terms of s 75(v) of the Constitution, which confers original jurisdiction on the High Court with respect to the same matters.[31] Section 39B(1A) provides that the Federal Court’s original jurisdiction extends to any matter:
“(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”
Section 39B(1A)(a) invests the Federal Court with jurisdiction in a portion of the class of matters referred to in s 75(iii) of the Constitution (that is, those in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party). Section 39B(1A)(b) repeats the language of s 76(i) of the Constitution and confirms that the Federal Court has jurisdiction to address all constitutional issues raised in proceedings before it. Section 39B(1A)(c) makes a general grant of jurisdiction to the Federal Court in civil matters arising under any laws made by the Parliament. It represents a major departure from the previous position, whereby the Federal Court had jurisdiction in matters arising under Commonwealth laws only if the particular statutes so provided.[32]
The willingness of Commonwealth Parliament to expand the jurisdiction of the Federal Court may simply reflect the extra-judicial observation of Gleeson CJ that “it is in the nature of federal jurisdiction to expand, rather than conform to narrow limits.”.[33] A less deterministic view is that the willingness to enlarge the jurisdiction of the Court is a recognition of the value of a national court, resourced by the Commonwealth, interpreting and applying federal law.[34] In short, a superior federal court of general jurisdiction is not an aberration, but has become an integral component of the Australian judicial system.
The Scope of Federal Jurisdiction
The decision in Re Wakim
ensured that only the Commonwealth Parliament can confer jurisdiction on a
federal court. The fact that the cross-vesting scheme
was a co-operative
legislative exercise, endorsed by every Parliament in the country, did not save
the scheme from invalidity. The
language of McHugh J, for example, could hardly
have been more emphatic:
“How then can a State Parliament invest a federal court with a jurisdiction which the Parliament of the Commonwealth, which has created the court, cannot invest in that court? Co-operative federalism is the chief answer given by the parties and the interveners supporting the validity of the legislation. But co-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power.”[35]
The decision represents the triumph of what has been described as the “dualist” character of Australian federalism, as applied to the conferral and exercise of judicial power. In Australian Securities and Investment Commission v Edensor Nominees Pty Ltd[36] the majority said that the significance of Re Wakim is encapsulated in the following comment:[37]
“Australia is a federation of a dualist kind, consistently with the common law tradition. While some provisions in the Constitution provide for co-operation, they do not fundamentally alter its dualist character; indeed, if anything, they reinforce it. The nature of the Australian constitutional system needs to be borne in mind in designing co-operative procedures. The issues at stake essentially are questions of principle.”
Yet there is something of an irony in the outcome of the proceedings in Re Wakim. On the one hand, the High Court endorsed the dualist character of Australian federalism and struck down the conferral of State jurisdiction on federal courts. On the other hand, in a less remarked part of the decision, it took a broad view of the so-called accrued jurisdiction of federal courts,[38] thereby ameliorating to some extent the impact of the invalidation of the cross-vesting scheme. The decision in Re Wakim[39] demonstrates that what one judicial hand takes away, the other can at least partially restore.
The facts of the case are instructive. A creditor admitted to proof in a bankruptcy commenced proceedings in the Federal Court against the Official Trustee. He sought, inter alia, orders under the Bankruptcy Act 1966 (Cth) requiring the Official Trustee to make good losses to the bankrupt estate by reason of what was said to have been the Trustee’s negligence in the conduct of litigation on behalf of the estate against a former partner of the bankrupt. The creditor subsequently instituted two separate proceedings against, respectively, the barrister and the solicitors representing the Official Trustee in the litigation. The actions against the barrister and solicitors were founded on breach of duty under the general law. Of themselves, the claims against the barrister and solicitors involved no federal element.
The majority in Re Wakim held that the Federal Court had jurisdiction
to determine the
claims brought by the creditor against the barrister and the
solicitors, as well as the claims against the Official Trustee. According
to
Gummow and Hayne
JJ,[40] the
creditor’s federal and non-federal claims arose out of common transactions
or facts. In substance, the creditor had a
single claim for damages that he
sought to pursue against the three parties he had sued. The fact that the
creditor had instituted
three separate proceedings did not prevent the
non-federal claims being regarded as part of a “single justiciable
controversy”.
The case therefore satisfied the criteria laid down by the
authorities for determining whether non-federal claims and federal claims
joined
in a proceeding are within the scope of one controversy and thus within the
ambit of a single
matter.[41]
The High Court again took a broad view of the scope of federal jurisdiction in ASIC v Edensor.[42] In that case, ASIC, a regulatory authority established by Commonwealth law, instituted proceedings in the Federal Court seeking, inter alia, declarations and an interlocutory injunction against the respondent companies. ASIC claimed the relief by reason of what it alleged was the respondents’ acquisition of shares in the course of a takeover, in breach of s 615 of the Corporations Law, a statute of the State of Victoria. The primary Judge, who delivered judgment the day before the judgments in Re Wakim were handed down, granted remedial orders and orders protective of the interests of persons affected by the takeover scheme, pursuant to ss 737 and 739 of the Corporations Law. On appeal, the Full Court of the Federal Court held that the effect of Re Wakim was that these orders had been made without jurisdiction and that the Federal Court lacked jurisdiction to determine the proceedings under the Corporations Law.[43]
The High Court allowed the appeal, holding that s 39B(1A)(a) of the Judiciary Act conferred jurisdiction on the Federal Court to determine the whole of the controversy between the parties. The terms of s 39B(1A)(a) were satisfied because ASIC was “the Commonwealth” for the purposes of the sub-section and it had sought an injunction and declaration in the proceedings.[44] The joint judgment pointed out that the Federal Court was seised of federal jurisdiction by reason of the identity of the moving party (that is, ASIC) and the nature of the relief sought by it.[45] The “matter” before the Court was a justiciable controversy identifiable independently of the particular proceedings brought for its determination.
This conclusion left for consideration the law that was to determine the controversy over which the Federal Court had jurisdiction. Section 80 of the Judiciary Act indicated that the starting point was the common law of Australia.[46] But s 80 was supplemented by s 79 of the Judiciary Act, which is in the following terms:
In the circumstances of the case, s 79 operated to “pick up” the laws of Victoria, including the Corporations Law, because the Federal Court was exercising jurisdiction in that State and no laws of the Commonwealth “otherwise provided”.
The joint judgment regarded it as well-established[47] that a State statute, such as the Corporations Law,
“may be applicable as a source of rights and remedies in federal jurisdiction even though, on its own terms, that law identifies only the courts of the enacting State as the courts to provide those remedies”.[48]
They pointed out that if it were otherwise, the operation of federal jurisdiction might be stultified by the States withdrawing from courts exercising federal jurisdiction the effective authority to quell controversies. Any such attempt by the State, so far as the Federal Court is concerned, would be likely to be inconsistent with the Commonwealth legislation, enacted pursuant to s 77(1) of the Constitution, which confers jurisdiction on the Court.[49] It followed that the Federal Court, in the exercise of the jurisdiction conferred by s 39B(1A)(a) of the Judiciary Act, could grant to ASIC the remedies provided for in ss 737 and 739 of the Corporations Law, even if those provisions were expressed in terms suggesting that they were intended to apply only to State courts.
ASIC v Edensor demonstrates that where the Federal Court acquires jurisdiction in respect of a matter by virtue of the identity of the parties and the nature of the relief sought, the Court has jurisdiction to quell the entire controversy between the parties.[50] Section 79 of the Judiciary Act then applies, in accordance with its terms, to render State or Territory statutes applicable as a source of rights and remedies. This is so even though the statutes may be expressed to create norms in or confer powers on particular State or Territory courts. In cases where federal jurisdiction is attracted, not by the existence of federal law as a source of substantive rights and liabilities but by the identity of the parties, it may be misleading, as the joint judgment pointed out,[51] to talk of the “accrued jurisdiction” of the Federal Court. In such cases, the Federal Court has jurisdiction to resolve the entire controversy between the parties without the need to invoke the accrued jurisdiction.
The decision in ASIC v Edensor does not mean, of course, that all proceedings in which the Commonwealth is a party may be brought in the Federal Court. Federal jurisdiction in proceedings involving the Commonwealth is fragmented. For example, a claim against the Commonwealth in tort or contract, pursuant to a cause of action arising under State law only, cannot be validly commenced in the Federal Court.[52] But a claim by the Commonwealth for declaratory relief will be sufficient to attract jurisdiction.[53] And once federal jurisdiction is attracted the Federal Court can determine the entire controversy.
Federal Jurisdiction and State Courts
Both Re Wakim and ASIC v Edensor involved the exercise of federal jurisdiction by the Federal Court. Austral Pacific Group Ltd (in liq) v Airservices Australia[54] is a reminder that State courts exercise federal jurisdiction in a very wide variety of circumstances, and that important consequences flow from that fact. The case also illustrates that State courts may be exercising federal jurisdiction in cases where it is not necessarily obvious that a federal element is involved.
In Austral v Airservices, the plaintiff, an employee of the Civil Aviation Authority (“CAA”), sued Austral in the District Court of Queensland for damages in respect of personal injuries allegedly caused by Austral’s negligence in supplying a defective firefighting appliance. Austral filed a third party notice against Airservices, the statutory successor to the CAA. Airservices succeeded before the Queensland Court of Appeal in striking out the third party notice. It did so on the ground that Austral could not satisfy s 6(c) of the Law Reform Act 1995 (Qld) (the “Contribution Act”), which provided for contribution between joint and several tortfeasors. In particular, the Court of Appeal held that Airservices could not demonstrate (as s 6(c) required) that the plaintiff could have sued Airservices directly, since he had never made the election required by s 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Compensation Act”) that was necessary to enable him to sue the Commonwealth for damages for breach of duty.
McHugh J asked a most pertinent question[55]:
“How does the defendant obtain a right to bring proceedings against the third party (a Commonwealth authority) in a State court under a State law?”
His Honour identified the mechanism as that provided by ss 39(2), 64 and 79 of the Judiciary Act. Sections 39(2) and 64 are in the following terms:
“39(2) The several Courts of the States shall within the limits of their several jurisdictions...be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38 and subject to the...conditions and restrictions [specified in s 38]....
The terms of s 79 of the Judiciary Act have been reproduced earlier.
The reference in s 39(2) to matters in which the High Court has original jurisdiction or could have original jurisdiction conferred on it is, of course, to ss 75 and 76 of the Constitution. Section 38 of the Judiciary Act is an exception to s 39(2), because it provides that the jurisdiction of the High Court is exclusive of that of State courts[56] in certain suits or matters. These include suits between States and between the States and the Commonwealth, and matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth.[57] Section 39(2) was the historical mechanism by which appeals to the Privy Council directly from State courts exercising federal jurisdiction were effectively abolished, since a condition of the exercise of federal jurisdiction imposed by s 39(2)(a) of the Judiciary Act was that a decision of a court of a State was not subject to appeal to the Privy Council.[58]
In Austral v Airservices, McHugh J answered the question he had posed by the following reasoning:[59]
“When the plaintiff initiated his common law action for damages for negligence against the defendant in the District Court of Queensland (a “Court of a State” for the purposes of s 39 of the Judiciary Act), that court had State jurisdiction to determine the issues between the plaintiff and the defendant. When the defendant issued the third party notice, however, that court became seized of federal jurisdiction which vested in it in accordance with s 39(2) of the Judiciary Act. That was because there was then a matter for the purposes of ss 75(iii) and 76(ii) of the Constitution before the District Court. Moreover, that vesting of federal jurisdiction displaced the State jurisdiction that had hitherto existed in respect of the action between the plaintiff and the defendant: henceforth the whole proceedings were in federal jurisdiction."
There was a “matter” for the purposes of s 75(iii) of the Constitution because a party to the proceedings, namely Airservices, was “the Commonwealth”. There was also a matter for the purposes of s 76(ii) of the Constitution because the matter arose under a Commonwealth law, namely the Compensation Act.[60]
The principal significance of the fact that the District Court was exercising federal jurisdiction was that the State law applicable to the proceedings had to be determined in accordance with the requirements of s 79 of the Judiciary Act. As has been seen, s 79 applies the laws of each State or Territory except as otherwise provided by the Constitution or the laws of the Commonwealth. The joint judgment in Austral v Airservices applied a passage from the judgment of Gleeson CJ and Gummow J in Northern Territory v GPAO[61] in order to identify the test for determining whether a Commonwealth law has “otherwise provided” for the purposes of s 79 of the Judiciary Act. Gleeson CJ and Gummow J had said this:[62]
“The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of ‘inconsistency’ involved in the phrase ‘otherwise provided’ in s 79 is akin to that first identified by Mason J in...University of Wollongong v Metwally [(1984) 158 CLR 447 at 463].... This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth."
It follows from this passage that the test for whether a Commonwealth law has “otherwise provided” for the purposes of s 79 of the Judiciary Act is whether the operation of the Commonwealth law so reduces the ambit of the State law that the provisions of the former are “irreconcilable” with the latter.[63] This is a narrower test than that for inconsistency under s 109 of the Constitution. It follows that it is more difficult to displace a surrogate federal law selected by s 79 of the Judiciary Act then it is to displace a State law by a valid Commonwealth law by the operation of s 109 of the Constitution.[64] It also follows that considerable care may have to be exercised in ascertaining the substantive law applicable in proceedings in which State (or, for that matter, federal) courts are exercising federal jurisdiction.
The fact that a State court is exercising federal jurisdiction may have significance extending well beyond the selection of the substantive law governing the proceedings. In Kable v Director of Public Prosecutions[65] a majority of the High Court held invalid the Community Protection Act 1994 (NSW), which purported to empower the Supreme Court of New South Wales to make an order for the preventive detention of a named individual. The vice of the legislation was said to be that it conferred non-judicial functions on the Supreme Court which were incompatible with the independence and impartiality of the Court. Toohey J based his decision on the fact that the Supreme Court, when applying the Community Protection Act, was exercising federal jurisdiction, since the person affected had challenged the constitutionality of the legislation.[66] The remaining members of the majority took a broader view, holding that Chapter III of the Constitution prevents the States legislating so as to impair the independence of State courts capable of exercising federal jurisdiction from the legislative or the executive government.[67] They took this view, in large measure, because they regarded Chapter III of the Constitution as providing for an “integrated judicial system”[68] throughout Australia.
The precise reach of the decision in Kable v DPP is a matter of doubt.[69] The potential impact of the decision on the State judicial systems is, however, considerable. One possibility is that, in accordance with the approach of Toohey J, State courts enjoy greater protection from State legislation threatening their independence when they exercise federal jurisdiction than when they exercise State jurisdiction. Another is that the degree of protection depends not on whether federal jurisdiction is actually being exercised, but on the fact that State courts potentially exercise federal jurisdiction. Whichever of these views is adopted, the extent to which State Parliaments can threaten the independence of State courts is likely to depend on the characteristics attributed to courts exercising federal jurisdiction. Of the many issues that could arise, one of great practical importance is whether a State court can exercise federal jurisdiction through an acting Judge, who enjoys neither security of tenure nor other protection afforded to Judges of federal courts under Chapter III of the Constitution.[70]
Federal Jurisdiction in the Territories
Courts created by the
Commonwealth Parliament for the purpose of exercising jurisdiction in a
Territory with respect to matters arising
under s 122 of the
Constitution[71]
are not federal courts under Chapter III of the
Constitution.[72]
Nor does current authority permit Territory courts to be invested with federal
jurisdiction.[73] But
federal courts which exercise jurisdiction in a Territory under laws made
pursuant to s 122 of the Constitution, such as the Federal Court and the
Family Court, are in a different position. The recent decision of the High
Court in Northern Territory v GPAO establishes that a federal court in
such circumstances exercises federal jurisdiction. The case also provides an
illustration of
the complex jurisdictional issues that even apparently
straightforward litigation can present.
In Northern Territory v GPAO the mother of a child sought parenting orders under Part VII of the Family Law Act 1975 (Cth). The child’s father was the respondent to the proceedings. Both parents lived in the Northern Territory and had never been married. The issue attracting the High Court’s attention arose when the Registrar of the Family Court at Darwin issued a subpoena to an officer of the Northern Territory Department of Child and Family Protective Services. The officer was an “authorised person” under the Community Welfare Act 1983 (NT). The officer refused to produce the documents, relying on s 97(3) of the Community Welfare Act which, in effect, granted the officer immunity from producing documents that had come into his possession in the course of official duties. The question was whether the officer had a “reasonable excuse” for the purposes of s 112AD of the Family Law Act, for not producing documents to the Court in response to the subpoena. Six members of the High Court held that s 97(3) of the Community Welfare Act was binding on the Family Court.[74] Four members of the Court held that this result came about because of the operation of s 79 of the Judiciary Act.[75]
The reasoning of the four members of the Court[76] who invoked s 79 of the Judiciary Act included the following steps:
(i) Part VII of the Family Law Act, which provides for parenting orders, is, in its application to the Northern Territory, a law made pursuant to s 122 of the Constitution.[77]
(ii) A law made pursuant to s 122 is a law “made by the Parliament” for the purposes of s 76(ii) of the Constitution. As such, Parliament has power, under s 77(i) of the Constitution, to confer jurisdiction on a federal court with respect to such matters. The federal court exercises federal jurisdiction.[78]
(iii) The Family Court was therefore exercising federal jurisdiction when asked to make a parenting order in the proceedings in the Northern Territory.
(iv) The 1995 amendments to the Family Law Act (which inserted Part VII into the Act) could not be read as intended to deny full effect to s 97(3) of the Community Welfare Act.[79] Nor could the immunity conferred by s 97(3) be said to detract from the “paramountcy principle” (whereby the welfare of the child is the paramount consideration) adopted by s 65E of the Family Law Act.[80]
(v) Since the Family Court was exercising federal jurisdiction in the Northern Territory, s 79 of the Judiciary Act applied, in accordance with its terms, to “pick up” the laws of the Territory.[81]
(vi) Part VII of the Family Law Act had not “otherwise provided”, in relation to the immunity conferred by s 97(3) of the Community Welfare Act, for the purposes of s 79 of the Judiciary Act.[82] The effect of s 79 of the Judiciary Act, therefore, was to pick up s 97(3) of the Community Welfare Act in the Family Court proceedings and to afford the officer with a reasonable excuse for not complying with the subpoena issued by the Family Court.[83]
A claim by a person served with a subpoena that he or she is not bound to produce the documents sought is an everyday occurrence. Yet to resolve the claim made by the officer in Northern Territory v GPAO the High Court had to address several constitutional issues (on which opinion was divided), as well as questions of statutory construction. Moreover, the majority’s reasoning required the application of two separate tests of inconsistency, one to determine whether the immunity conferred by s 97(3) of the Community Welfare Act detracted from the paramountcy principle incorporated in the Family Law Act and the other to determine whether the Family Law Act “otherwise provided” on the immunity issue for the purposes of s 79 of the Judiciary Act. Whatever else might be said about federal jurisdiction exercised by federal courts in the Territories, the principles are not simple to apply.
The Fragmentation of Federal Jurisdiction
Chapter III of the
Constitution contemplates that the exercise of federal jurisdiction may
be fragmented. Federal jurisdiction in respect of the matters referred
to in ss
75 and 76 of the Constitution may be vested in State courts, federal
courts or both, as Parliament chooses. Parliament may also define the extent to
which the
jurisdiction of any federal court is to be exclusive of that which
belongs to or is vested in the
States.[84] But until
the decision in Abebe v The
Commonwealth[85]
it was not clear whether Parliament, when conferring jurisdiction on a federal
court, was obliged to give the court authority to
determine the entire
controversy between the parties.
In Abebe v The Commonwealth a narrowly divided High Court upheld the validity of key provisions of Part 8 of the Migration Act 1958 (Cth)[86]. The effect of Part 8 was and is to limit the grounds upon which the Federal Court can review the lawfulness of migration decisions made by administrative bodies such as the Refugee Review Tribunal. The majority accepted the proposition that federal jurisdiction is limited to deciding “matters”, in the sense of the subject matter for determination in a legal proceeding.[87] But they rejected the submission that Parliament, if it confers jurisdiction on a federal court in respect of a matter pursuant to s 77(i) of the Constitution,[88] must give the court “authority to decide every legal right, duty, liability or obligation inherent in [the] controversy” between the parties.[89] On the contrary, the majority held that the language of s 77(i) is wide enough to authorise Parliament to give a federal court jurisdiction with respect to part of a controversy.[90] Gleeson CJ and McHugh J acknowledged that Part 8 of the Migration Act “severely truncated” the jurisdiction of the Federal Court to review decisions under the Migration Act,[91] but the majority saw nothing inconsistent with Chapter III of the Constitution in the limitation.
The significance of Abebe v Commonwealth is that it has paved the way for Parliament to invest federal courts[92] with jurisdiction to resolve only part of a controversy. Since the High Court has a constitutionally entrenched jurisdiction in matters in which a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth,[93] the immediate consequence of the decision was to endorse the creation of a “bifurcated judicial review process”[94] in migration cases. That in turn has led applicants to take up the implicit invitation to invoke the entrenched jurisdiction of the High Court under s 75(v) of the Constitution to seek judicial review of migration decisions on grounds unavailable in the Federal Court.[95] Applicants who claim, for example, that they have been denied procedural fairness by the Refugee Review Tribunal may be able to seek relief on that ground in the High Court, but not in the Federal Court[96] even if the proceedings are remitted to that Court.[97]
I noted earlier that perhaps the principal reason for the establishment of the Federal Court was to relieve the High Court from the workload pressures created by its extensive original jurisdiction. On any view, legislation such as Part 8 of the Migration Act detracts from that objective since litigants shut out of the Federal Court have no option but to pursue their claims in the High Court. It is not surprising, therefore, that members of the High Court have protested about the burden created by migration proceedings commenced in the original jurisdiction of the Court. The point was trenchantly made by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham:[98]
“One of the principal reasons for the setting up of the Federal Court in 1976 was the recognition that, with more and more matters arising under laws of the parliament, this court could not act as a federal trial court and still have adequate time for research and reflection in respect of the important matters falling within its constitutional and appellate jurisdiction....
Given this history and the need for this court to concentrate on constitutional and important appellate matters, I find it difficult to see the rationale for the amendments to the Migration Act 1958 (Cth) which now prevent this court from remitting to the Federal Court all issues arising under that Act which fall within this court’s original jurisdiction. No other constitutional or ultimate appellate court of any nation of which I am aware is called on to perform trial work of the nature that these amendments to the Act have now forced upon the court....
The reforms brought about by the amendments are plainly in need of reform themselves if this court is to have adequate time for the research and reflection necessary to fulfil its role as ‘the keystone of the federal arch’ and the ultimate appellate court of the nation.” (Emphasis in original.)
Conclusion
The demise of the cross-vesting scheme has restored
federal jurisdiction to its central position in the day to day workings of the
Australian judicial system, following a period when its true significance tended
to be obscured. Its centrality is reflected in
the number of recent decisions
of the High Court which analyse the concept in its application both to federal
and State
courts.[99]
The recent decisions support or reinforce a number of propositions:
(i) Notwithstanding the triumph of the dualist theory of Australian federalism, the post-Wakim jurisdiction of the Federal Court, subject to any statutory limitations, is broader than many have assumed.
(ii) The breadth of the Federal Court’s jurisdiction is shown both by the scope of the accrued jurisdiction (as illustrated by Re Wakim itself) and the “identity jurisdiction” examined in ASIC v Edensor.
(iii) Even so, as Abebe v Commonwealth has established, Parliament can always limit the scope of the Federal Court’s jurisdiction, in particular by conferring jurisdiction only in respect of a portion of a controversy. When it does so, as with Part 8 of the Migration Act, the effect may be to increase commensurately the workload of the High Court in the exercise of its original jurisdiction. To that extent the principal rationale for the creation of the Federal Court is undercut.
(iv) Whether a State court is exercising federal jurisdiction is, as Austral v Airservices demonstrates, an important practical question. Primarily, this is because the procedural and substantive law applicable to the proceedings is to be determined in accordance with the criteria stated in s 79 of the Judiciary Act. So, too, with federal courts exercising federal jurisdiction in the Territories, as discussed in Northern Territory v GPAO.
The authorities discussed in this article show that the fact that a court is exercising federal jurisdiction has the potential to be a complicating factor in the conduct of even the most mundane of cases. The best way of ensuring that the concept of federal jurisdiction does not constitute a “grave impediment to justice”[100] in a particular case is for the legal practitioners concerned to understand its nuances and ramifications.
[1] See Constitution, ss 71, 73(ii), 77(iii), 79.
[2] Baxter v
Commissioners of Taxation (NSW) (1907) 4 CLR (Pt 2) 1087, at 1142, cited
with approval in Australian Securities and Investments Commission v Edensor
Nominees Pty Ltd (2001) 177 ALR 329, at 332, per Gleeson CJ, Gaudron and
Gummow JJ.
[3]
Ibid.
[4] (1999) 200 CLR 322, at 338. See also Northern Territory v GPAO (1999) 196 CLR 553, at 575, per Gleeson CJ and Gummow J.
[5] That is, the
Court comprising Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan
JJ. Gleeson CJ, the last of the current
members of the High Court to be
appointed, took office on 22 May
1998.
[6] Re
Wakim; Ex parte McNally (1999) 198 CLR 511.
[7] B Opeskin, “Cross-vesting of Jurisdiction and the Federal Judicial System” in B Opeskin and F Wheeler (eds), The Australian Federal Judicial System (Melbourne University Press, Carlton, South Victoria, 2000), at 299. This article examines in detail the background to and operation of the cross-vesting scheme.
[8] The reasoning of the majority is criticised by D Rose, “The Bizarre Destruction of Cross-Vesting” in A Stone and G Williams, The High Court at the Crossroads (Federation Press, Leichardt, NSW, 2000), Ch 6.
[9] The key provisions were s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 of each State and s 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
[10] See Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 172 ALR 366, upholding s 11 of the Federal Courts (State Jurisdiction) Act 1999 (SA); Re Macks; Ex parte Saint [2000] HCA 62; (2000) 176 ALR 545, upholding other provisions of the South Australian legislation and its Queensland counterpart. All other States enacted similar remedial legislation.
[11] Impetus for implementation of the scheme was also provided by the decision in R v Hughes (2000) 171 ALR 155, which cast doubt on the powers of Commonwealth instrumentalities to exercise functions and powers that the Commonwealth itself could not have conferred. See D Rose, “The Hughes Case: The Reasoning, Uncertainties and Solutions” (2000) 29 UWALRev 180.
[12] The scheme
involves the referral by the States of certain matters relating to corporations
and financial products and services to
the Commonwealth pursuant to s 51(xxxvii)
of the Constitution. To date New South Wales and Victoria have passed
the referral legislation, while legislation in other States is pending: see, eg,
Corporations (Commonwealth Powers) Act 2001 (NSW). The Corporations
Act 2001 (Cth), enacted pursuant to the referral legislation, was passed on
18 June 2001.
[13]
O Dixon, “The Law and the Constitution” (1935) 51 LQR 590,
at 606.
[14] Royal
Commission on the Constitution, Minutes of Evidence (1927) at 787, quoted
in Z Cowen and L Zines, Federal Jurisdiction in Australia
(2nd ed., Oxford university Press, Melbourne,
1978), at
xvii.
[15]
Constitution, ss 71,
77(i).
[16]
Constitution, s 73.
[17] Lange
v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, at 563, per
curiam.
[18] R v Kirby;
Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, at 268,
per Dixon CJ, McTiernan, Fullagar and Kitto
JJ.
[19]
Constitution, s
77(iii).
[20] Z
Cowen and L Zines, n 14 above, at 106-108.
[21] M H Byers and P B Toose, “The Necessity for a New Federal Court” (1963) 36 ALJ 308, at 310-312, 318; Sir Garfield Barwick, “The Australian Judicial System” (1964) 1 Fed LR 1, at 3-4. See also N H Bowen, “Some Aspects of the Commonwealth Superior Court Proposal” (1967) 41 ALJ 336.
[22] M H Byers and P B Toose, at 313-314. The authors favoured terminating the investiture of State courts with federal jurisdiction: at 317.
[23] For the
second reading speech in the House of Representatives, see Cth Parl Deb,
HR, 16 July 1974, at
244ff.
[24] The
Federal Court was created by the Federal Court of Australia Act 1976
(Cth), s
5.
[25] Cth
Parl Deb, HR, 21 October 1976, at 2111 (the
Attorney-General).
[26]
The details are summarised in Z Cowen and L Zines, n 14 above, at 109-111.
[27] Acknowledged by the Australian Law Reform Commission, Managing Justice (Report No 89, 2000), at 87 (“world class civil court”).
[28] Sir Laurence Street, “The Consequences of a Dual System of State and Federal Courts” (1978) 52 ALJ 434; Sir Harry Gibbs, “The State of the Australian Judicature” (1981) 55 ALJ 677; A J Rogers, “State/Federal Court Relations” (1981) 55 ALJ 630.
[29] See, too,
Report of the Advisory Committee to the Constitutional Commission, Australian
Judicial System (1987), at
26-29.
[30] See
Re Wakim, at 622-623, per Callinan J.
[31] Sub-section
39B(1) and (1A) are laws defining the jurisdiction of the Federal Court and, as
such, are authorised by s 77(i) of the Constitution.
[32]
Federal Court of Australia Act 1976 (Cth), s
19(1).
[33] The
Hon A M Gleeson, “The State of the Judicature” (2000) 74 ALJ
147, at 149.
[34] See
Australian Law Reform Commission, The Judicial Power of the Commonwealth
(Discussion Paper 64, 2000), Ch.
2.
[35] Re
Wakim, at 556.
[36] (2001) 177 ALR 329, at 334, per Gleeson CJ, Gummow and Gaudron JJ, with whom Hayne and Callinan JJ agreed.
[37] C Saunders, “Administrative Law and Relations Between Governments” (2000) 28 Fed LR 263, at 290.
[38] See, for example, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261.
[39] There were four cases heard by the High Court at the same time: see at 582ff, per Gummow and Hayne JJ.
[40] Re Wakim, at 582-588 Gleeson CJ and Gaudron JJ agreed with Gummow and Hayne JJ. McHugh J reached a similar conclusion: at 563-564. Callinan J, who was part of the majority invalidating the cross-vesting legislation, dissented on the question of whether the Federal Court nonetheless had jurisdiction to deal with the claims against the barrister and the solicitors: at 627-628.
[41] See
Fencott v Muller, at 608, per Mason, Murphy, Brennan and Deane JJ and the
other authorities cited at n 38,
above.
[42] (2001)
177 ALR 329.
[43] See Edensor Nominees Pty Ltd v Australian Securities and Investments Commission [1999] FCA 1722; (1995) 95 FCR 42; ASIC v Edensor, at 337-339.
[44] The joint
judgment considered that the term “injunction” should be given a
broad meaning and include statutory remedies,
such as those provided by ss 737
and 739 “not fundamentally distinct from the equitable remedy”: at
342, per Gleeson
CJ, Gaudron and Gummow JJ. McHugh J expressed a similar view:
at 361. Hayne and Callinan JJ, the other members of the majority,
while
agreeing generally with the joint judgment, did not express a view on this
issue: at 387.
[45]
Id, at
344.
[46] Section
80 provides as follows:
“So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”
For a discussion of the relationship between 22 79 and 80 of the Judiciary Act, see Australian Law Reform Commission, The Judicial Power of the Commonwealth (DP 64, 2000), 462-468.
[47] Most recently by Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; (2000) 173 ALR 619. See text at nn 54ff below.
[48] ASIC v
Edensor, at 349, per Gleeson CJ, Gaudron and Gummow JJ. Hayne and Callinan
JJ agreed with the joint judgment on this issue: at
388.
[49] Id,
at 349.
[50] Section
39B(1A)(a) of the Judiciary Act is one example of legislation conferring
federal jurisdiction of this kind. Another is s 39B(1), of the Judiciary Act
(dealing with the so-called “constitutional writs). The diversity
jurisdiction of the High Court, conferred by s 75(iv) of the Constitution
is a further example of “identity
jurisdiction”.
[51]
ASIC v Edensor, at 344.
[52] It may,
however, be commenced in the original jurisdiction of the High Court
(Constitution, s 75(iii)) and, if appropriate, remitted to the Federal
Court pursuant to s 44(2A) of the Judiciary Act. The Federal Court
acquires jurisdiction by virtue of s 44(3)(a) of the Judiciary Act. This
was the course adopted, for example, in Cubillo v The Commonwealth (No 2)
[2000] FCA 1084; (2000) 103 FCR 1, at
14-15.
[53]
Judiciary Act, s
39B(1)(a).
[54]
[2000] HCA 39; (2000) 173 ALR
619.
[55] Id,
at 631.
[56] Section 38 of
the Judiciary Act is itself subject to s 39B, which deals, inter alia,
with criminal proceedings in State courts, and s 44, which empowers the High
Court to remit proceedings to State and federal
courts.
[57]
Judiciary Act, s 38(b)-(e).
[58] See
Minister of State for the Army v Parbury Henty and Co Pty Ltd [1945] HCA 52; (1945) 70
CLR 459, at 505, per Dixon J; Z Cowen and L Zines, n 14 above, at
199ff.
[59]
Austral v Airservices, at 632.
[60] The joint
judgment also held that Airservices was the Commonwealth for the purposes of s
75(iii) of the Constitution. Their Honours further held that s 76(ii) of
the Constitution was attracted, but by reason of s 9 of the Civil
Aviation Legislation Amendment Act 1995 (Cth) which, in effect, made
Airservices liable for the acts of its predecessor,
CAA.
[61] (1999)
196 CLR 553.
[62]
Id, at 588.
[63] Austral
Pacific v Airservices, at 625, per Gleeson CJ, Gummow and Hayne JJ. It was
held that the Compensation Act was not irreconcilable with the
Contribution Act and thus the latter
applied.
[64] See
Australian Law Reform Commission, note 46 above, at 455.
[65] [1996] HCA 24; (1997) 189 CLR 51. Toohey, McHugh, Gaudron and Gummow JJ; Brennan CJ and Dawson J dissenting.
[66] The
jurisdiction was federal because of s 39(2) of the Judiciary Act, read
with s 77(iii) of the Constitution: see at
94-95.
[67]
Kable v DPP, at 102-103, per Gaudron J; at 116-117, per McHugh J; at
143, per Gummow
J.
[68] Id,
at 102, per Gaudron
J.
[69] P Johnston
and R Hardcastle, “State Courts: The Limits of Kable” [1998] SydLawRw 10; (1998) 20
Syd LR 216.
[70] A similar issue was raised in Re Governor, Goulburn Correctional Centre; Ex parte Eastman, (1999) 200 CLR 322, in relation to the Supreme Court of the Australian Capital Territory. A majority of the Court held that the Supreme Court was not a court “created by the Parliament” within s 72 of the Constitution. As to the position of acting Judges in State courts, see id, per Gaudron J; at 364-365, per Kirby J (who dissented). See generally P Johnston and R Hardcastle, n 68 above, at 236ff. Analogous issues have been addressed by the courts of other countries: Clancy v Caird [2000] SC 441 (Ct of Session); Valente v The Queen 1985 CanLII 25 (SCC); [1985] 2 SCR 673 (S Ct Canada); Attorney-General of Quebec v Lippé [1991] 2 SCR 114 (S Ct Canada).
[71] Section 122
of the Constitution empowers the Commonwealth Parliament to make laws for
the government of any
Territory.
[72]
Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591.
[73] Id, at
600, per Barwick CJ; at 602, per McTiernan J; at 609, per Menzies J; at 609, per
Windeyer J; at 614, per Owen J; at 627, per Gibbs
J.
[74] Kirby J
dissented.
[75] McHugh and
Callinan JJ considered that the Family Court was exercising Territory, not
federal jurisdiction. They held, however,
that nothing in the Family Law Act
overrode or invalidated s 97(3) of the Community Welfare
Act.
[76]
Gleeson CJ, Gaudron, Gummow and Hayne
JJ.
[77]
Northern Territory v GPAO, at 573, per Gleeson CJ and Gummow J (with
whom Hayne J agreed).
[78] Id, at
589-592, per Gleeson CJ and Gummow J; at 605, per Gaudron J (her Honour
considered that federal jurisdiction could also be conferred
on Territory
courts).
[79]
Id, at 582-583, per Gleeson CJ and Gummow
J.
[80] Id,
at 586, per Gleeson CJ and Gummow
J.
[81] Id,
at 574-575, per Gleeson CJ and Gummow J; at 605-606, per Gaudron
J.
[82] Id,
at 587-589, per Gleeson CJ and Gummow J; at 606-609, per Gaudron J.
[83] Northern Territory v GPAO was applied by the High Court in Spinks v Prentice, one of the four cross-vesting cases reported under the name Re Wakim. It was held that s 51(1) of the Corporations Act 1989 (Cth) validly conferred federal jurisdiction on the Federal Court with respect to civil matters arising under the Corporations Law (ACT): see 198 CLR, at 594-597, per Gummow and Hayne JJ.
[84]
Constitution, s 77(ii). Examples are s 38 of the Judiciary Act
and s 9(1) of the Administrative Decisions (Judicial Review) Act 1977
(Cth).
[85] [1999] HCA 14; (1999)
197 CLR 510.
[86] Gleeson CJ,
McHugh, Kirby and Callinan JJ; Gaudron, Gummow and Hayne JJ
dissenting.
[87]
Id, at 524, per Gleeson CJ and McHugh J; at 585, per Kirby J; at 604,
per Callinan J.
[88] Section 77(i)
of the Constitution empowers Parliament, with respect to any of the
matters mentioned in ss 75 and 76, to “define the jurisdiction of any
federal court other than the High
Court”.
[89]
Abebe, at
525.
[90] Id,
at 527.
[91]
Id, at
522.
[92] Or a
State court, pursuant to the power in s 77(iii) of the Constitution.
[93]
Constitution, s 75(v).
[94] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, at 641, per Gaudron and Kirby JJ; at 658, per Gummow J.
[95] A state of affairs anticipated by the majority in Abebe v Commonwealth, at 534, per Gleeson CJ and McHugh J; at 583, per Kirby J. See R Sackville, “Judicial Review of Migration Decisions: An Institution in Peril?” [2000] UNSWLawJl 59; (2000) 23 UNSWLJ 190, at 191-194.
[96] Migration Act 1958 (Cth), s 476(2)(a); cf s 476(1)(a). See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22. There are passages in the recent decision of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, which suggest that s 476(3) and (4) of the Migration Act, which limit the powers of the Federal Court, will themselves receive a restrictive interpretation, thereby effectively enlarging the powers of the Federal Court; see at [78], per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed.
[97] If proceedings are remitted to the Federal Court under s 44 of the Judiciary Act, the Court has no greater power than if the matter had been commenced in that Court: Migration Act 1958 (Cth), s 485(3).
[98] [2000] HCA 1; (2000) 168 ALR 407, at 410-411. See also, most recently, Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34, at [14], per Kirby J.
[99] Including
federal courts exercising jurisdiction in the Territories pursuant to laws made
under s 122 of the
Constitution.
[100]
See text at n 14 above.
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