The Federation Press

Cowen and Zines’s Federal Jurisdiction in Australia

Overview

This book examines the jurisdiction of the High Court, federal courts, Territorial courts and the federal jurisdiction of State courts. It is an area of law that has been described as technical, complicated, difficult and not infrequently absurd. It is, however the direct result of the federal jurisdiction of judicial power made by the Australian Constitution and it is of great practical importance. Much of the difficulty and some of absurdity has come about because of the unthinking copying of the United States Constitution. On a number of matters, therefore, the book contains an analysis of the American position.

The enactment in 1988 of the scheme for the cross-vesting of the jurisdiction of federal, State and Territorial superior courts seemed to bring to an end some of the litigious arguments based on technical jurisdictional issues that were of no social benefit. But when a vital part of the scheme was held unconstitutional in 1999 many of the difficulties analysed in this book became once again of legal concern.

Much of the book has had to be rewritten as a result of the many changes to the law of federal jurisdiction since the previous edition was published in 1978. These include:

  • the greater emphasis on the role of the High Court in keeping Commonwealth agencies and officers within the limits of their powers, and on the functioning of the “constitutional writs” in s75(v) of the Constitution for that purpose;
  • the development of “accrued jurisdiction” and its part in expanding the jurisdiction of federal courts;
  • the development of the Federal Court’s jurisdiction to the point where we now have a fully-fledged dual system of federal and State courts, creating some new tensions and problems;
  • the continuing judicial division over the constitutional status of Territorial courts, and the position of the self-governing Territories for purposes of federal jurisdiction;
  • a lot of more specific changes, such as the effect of the ending of Privy Council appeals from State courts, the overruling of decisions preventing the use of court officers for purposes of federal jurisdiction, the enactment of a new regime of admiralty jurisdiction, and the Kable Case restricting State power to control courts that have federal jurisdiction.

Reviews

Federal Jurisdiction in Australia has stood the test of time. ... a ‘classic text’ – a well deserved description. ... Like its predecessors, the third edition makes a careful and detailed analysis of each of the heads of federal jurisdiction and presents a considered analysis of relevant case law in the interpretation of these heads. The book also analyses the tensions that have developed in the dual system of federal courts and state courts exercising federal jurisdiction. - Alternative Law Journal, Vol 28(6), August 2003

Table of Contents

Original Jurisdiction of the High Court

The Constitutional scheme
The extent of the Court’s jurisdiction
“Matters”: advisory opinions, standing
The heads of jurisdiction
Treaties: section 75(i)
Consuls etc: section 75(ii)
Commonwealths or States as parties: section 75(iii) and (v)
Certiorari
Assumption of jurisdiction
Remedies and substantive rights
Officers with Commonwealth and State powers
Privative clauses
Matters concerning the Constitution and Commonwealth law
Admiralty and maritime matters: section 76(iii)
Forum non conveniens: remitter

Jurisdiction Between Residents of Different States

Reasons for diversity jurisdiction
Diversity jurisdiction in State courts
“Between” residents: distribution of parties
The meaning of “residents”
Corporations as residents
Additional parties as accrued jurisdiction

The Federal Courts

Federal courts in the United States and Australia
The independence of judges and the separation of judicial power
The jurisdiction of federal courts
Appellate jurisdiction
Accrued jurisdiction
Bona fides and substantiality
Associated jurisdiction
Proposals for an “integrated” court system
Cross-vesting of jurisdiction

The Territorial Courts and Jurisdiction with Respect to the Territories

The Territories and their judicial systems
Internal and external Territories
Territorial courts in the United States
The Territories power in Australia: the early cases
A more integrated view of the Territories power
Territorial courts and section 72
“Separation” v “integration”
Territorial matters and federal jurisdiction
Self-governing Territories
Common law matters in the Territories
Federal courts and original jurisdiction not within section 76(ii)
The limits of jurisdiction of Territorial courts
Jurisdiction relating to service of process
Conclusion

The Autochthonous Expedient: The Investment of State Courts with Federal Jurisdiction

Section 77(iii) of the Constitution
Non-federal jurisdiction in respect of matters in sections 75 and 76
State courts and “the federal judicature”
Limits on investing power
Delegation of investing power
The organisation of courts: court officers
Prescribing the number and character of judicial officers
Jurisdictional limits
Procedure
Section 39 of the Judiciary Act
Federal criminal jurisdiction
Investment of jurisdiction under other provisions
Federal and State jurisdiction regarding the same matter
Admiralty and maritime jurisdiction
Chapter III restrictions on State legislative power

Table of Cases
Index

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