THE MACHINE
JURISDICTIONS OF THE FEDERAL COURTS
Federal jurisdiction can be identified in a variety of forms. It can operate as a singular, exclusive jurisdiction, as one which originated as a federal jurisdiction, or which replaced pre-existing state jurisdiction. The jurisdiction may, by way of uniform legislation, be identical to State or Territory jurisdiction, or supplementary or an alternative to State and Territory jurisdiction.
As is apparent from the discussion in this section, apart from the High Court, the claim of any other court, to exclusive exercise of any part of federal jurisdiction has been almost completely removed by the operation of the cross-vesting scheme. The cross-vesting scheme constitutes a major part of the discussion of shared federal jurisdiction in the section that follows this one.
High Court. By way of the Constitution, the High Court has final appellate jurisdiction in respect of all federal courts, all state courts exercising federal jurisdiction, and all State Supreme Courts (whether exercising federal or state jurisdiction). This broad appellate jurisdiction is subject only to procedural limitations provided under the Judiciary Act 1903 (that special leave must be obtained before the High Court will hear any appeal).
Under s 75 of the Constitution, the High Court has been directly vested with original jurisdiction in a number of specific areas. Under s 76, the Commonwealth Parliament is empowered to confer further original jurisdiction on the High Court in respect of, most significantly, any matter arising under any law made by Parliament. This potential for the conferral of additional original jurisdiction on the High Court is no longer used to any significant degree, 'for the obvious reason that this would impose an intolerable burden on the Court'. The extent to which this power has been exercised to effect any general investment of or iginal jurisdiction in the High Court - that is, principally, through s 30 of the Judiciary Act, which confers upon the High Court original jurisdiction in all constitutional matters and in trials of indictable offences against Commonwealth law - is significantly tempered in practical terms by way of the general investment of federal jurisdiction in the states' courts under s 39 of the Judiciary Act. Indeed, the majority of the High Court's vested original jurisdiction and potential jurisdiction, has now been conferred on state courts and other federal courts. What remains of the High Court's exclusive original jurisdiction is stipulated in s 38 of the Judiciary Act - namely, in respect of matters arising directly under any treaty; suits between states or between persons from different states suing or being sued on behalf of a state, or between a state and person from another state; suits by the Commonwealth or an agent against a state or an agent; suits by a state or an agent against the Commonwealth or an agent.
In practice the High Court manages its case-load in these areas of exclusive jurisdiction by the free use of its power to remove cases from federal, territory and state courts into the High Court under s 41 and 43 of the Judiciary Act, and its powe r to remit cases (involving either original or appellate matters) to the same courts, where they have 'jurisdiction with respect to the subject matter,' under s 42 and 44.
Other federal courts. The jurisdictions of either of the other two federal courts - the Federal Court; the Family Court - are defined by legislation enacted pursuant to s 77(i) and (ii) of the Constitution. Strictly speaking, these courts cannot be taken to exercise exclusive federal jurisdiction, in that appeals are always available to the High Court. Even so, a significant portion of the federal jurisdiction of these courts would be exclu sive of state courts' exercise of federal jurisdiction were it not for the cross-vesting scheme set up in 1988 (discussed below), which permits the superior state courts to exercise federal jurisdiction where otherwise they would be unable to do so. The areas of federal jurisdiction, therefore, that are truly 'exclusive' to the three subordinate federal courts in the sense described above are extremely limited.
In respect of the Federal Court, the principal areas over which it has exclusive jurisdiction are matters concerning restrictive trade practices and related issues under Part I-IV and VI-X of the Trade Practices Act 1974, or matters arising under the Administrative Decisions (Judicial Review) Act 1977, the Migration Act 1958 and the Bankruptcy Act 1966.
The Family Court does not exercise exclusive jurisdiction in the strictest sense. Its matrimonial causes jurisdiction under s 39 of the Family Law Act 1975 may be exercised by the Supreme Court of the Northern Territory and the Family Court of Western Australia, and in respect of the division of property can be heard in state courts of summary jurisdiction. Jurisdiction in respect of contested custody of, or access to, children matters under s 69H -69N of the Act is exclusive except where there is agreement between the parties for the matter to heard by another court (s 69 N).
As a consequence of the Commonwealth's exercise of the external relations power under s 51(29) of the Constitution (together with the corporations and conciliation and arbitration powers), to implement Conve ntions and recommendations of the International Labour Organization, much of Australia's industrial relations has been harmonised through the combined effect of the Industrial Relations Act 1988 (Cth) and the Industrial Relations Reform Act 1993 (Cth ). A substantial portion of Australian industrial relations law is now federal in nature. The federal industrial jurisdiction that flows therefrom was exercised by an Industrial Relations Court, created under the Industrial Relations Act which became operational in March 1994. In fact, within that body of federal jurisdiction, the Industrial Relations Court exercised a significant part exclusive of other federal and state courts (excepting the High Court). These matters of exclusive jurisdiction cover acts or omissions for which an organization or member of an organization is liable to be sued or penalised (s 208); questions concerning the validity of, and compl iance with, the rules of organisations (s 209); questions relating to the membership of, and elections within, organisations (s 261 and Division 5 of Part IX); and, appeals from decisions of state and territory courts in relation to matters arising u nder the Industrial Relations Act 1988 (s 422). [As a consequence of the Workplace Relations and other Legislation Amendment Act 1996, the Industrial Relations Court was abolished and its functions transferr ed to the Federal Court].
State courts. As indicated earlier in the paper, the general conferral of federal jurisdiction on state courts is effected by s 39(2) of the Judiciary Act enacted pursuant to s 77(iii) of the Constitution. As with the three subordinate federal courts above, the degree to which one can say that any parts of federal jurisdiction is exclusive to the state courts is restricted to exclusivity in relation to the Federal and Family Courts, but no t the High Court, as it always has ultimate appellate jurisdiction, subject to any exceptions stipulated in legislation enacted pursuant to s 73 of the Constitution.
Thus defined, the extent of states' courts exclusive federal jurisdiction is residual, in that it is demarcated first, by the limitations and conditions associated with the otherwise broad investment of federal jurisdiction itself, and second, by those areas in which the High Court, or one of the three 'subordinate' federal courts is not invested with federal jurisdiction exclusive of the state courts.
These two factors are inextricably linked. It was not until the establishment of the Family Court in 1975 and the Federal Court in 1976 that the general grant of federal jurisdiction to state courts under the Judiciary Act was qualified to any sign ificant degree. Up to the mid 1970s, with the relatively minor exceptions of the Australian Industrial Court and the Federal Court of Bankruptcy, original federal jurisdiction had been exercised largely by states courts, with the High Court exercisin g appellate jurisdiction. The jurisdictions associated with these new courts were wholly or largely expressly denied the state courts. Whilst additional federal jurisdiction was created it was reserved for spec ifically created federal courts. Upon the advent of the cross-vesting scheme, however, the superior state courts were empowered with these new parts of federal jurisdiction, even if (as discussed below) on a shared basis.
As a result, what little remains of federal jurisdiction in the 'exclusive' hands of state courts is that which has been vested in 'lower' state courts (that is, all state courts other than the Supreme Courts) which are not covered directly by the cross-vesting scheme and that which is not held concurrently by one of the three subordinate federal courts.
In the most part, federal jurisdiction is shared, being exercised by more than one federal or state court. This sharing of jurisdiction is effected at two levels - in accordance with the terms of the conferral or investiture of jurisdiction, and throu gh operation of the cross-vesting scheme. There is, in addition, a 'sharing' of jurisdiction under uniform legislation. Technically, this is the exercise of local jurisdiction, it is, in practice, effectively shared by all relevant courts on account of identical empowering legislation. The most obvious example of such parallel jurisdiction is to be found in the Corporations Law under the various Corporations Acts 1989, which also contain express, self-executing provisions cross-vesting jurisdicti on in all state and territory Supreme Courts and the Federal Court.
As discussed in the previous section, excepting its appellate jurisdiction and those areas of exclusive federal jurisdiction stipulated in s 38 of the Judiciary Act, the vast bulk of the High Court's actual and potential original jurisdiction has been conferred on federal and/or state courts. In respect of the exercise of concurrent, original jurisdiction by the High Court and another court, one must look to the two sections in the Constitution that confer, or provide the power to confer such jur isdiction on the High Court. Of the categories of matters directly conferred on the Court by s 75 of the Constitution, only that relating to the writ of mandamus or prohibition or injunction against a Commonwealth officer (s 75(v)) is relevant here.
As to s 76 of the Constitution, the High Court can be invested with original jurisdiction by statutes enacted under one of four subsections. For various reasons only two subsections are relevant here. The fi rst of these relates to the Court's original jurisdiction in constitutional cases (s 76(i)), and the second concerns matters arising under federal law (s 76(ii)). Section 30(a) of the Judiciary Act 1903 express ly invests constitutional jurisdiction in the High Court; it is, however, not exclusive and matters of constitutional interpretation can be raised before, and be addressed by, any court. The same section also invests the High Court with jurisdiction to hear trials of indictable offences, though it hardly ever utilises this authority. Such cases are almost always prosecuted in state (or territory) courts.
Those subject matters in respect of which jurisdiction is shared by a federal court and state courts are relatively numerous. In regard to the Federal Court and state courts there are a number of main areas of concurrent federal jurisdiction: cons umer protection matters under Part V of the Trade Practices Act 1974 (Cth); Corporations Law 1989 matters; admiralty matters under the Admiralty Act 1988 (Cth); and, industrial property disputes (ie trade-marks, patents, designs and copyright) under a series of amendments in 1987 to each of the Acts covering these matters.
In regard to family law, concurrent federal jurisdiction is exercised by state courts (both Supreme Courts and courts of summary jurisdiction), the Family Court of Western Australia and the Family Court in a number of areas. Foremost among these is jurisdiction in matrimonial causes (including property disputes) and in relation to children of a marriage and, to an extent, ex-nuptial children. \Jurisdiction in respe ct of certain other matters (for example, the welfare of ex-nuptial children) is also shared between the Family Court and state courts. Though strictly speaking each is exercising its own jurisdiction over the matter (rather than sharing federal juris diction) the fact that the line between what is federal and what is state jurisdiction in this area is far from settled means that there is likely an effective sharing of jurisdiction.
Federal industrial relations jurisdiction is only marginally shared by the Industrial Relations Division of the Federal Court and the state and territory courts. The shared jurisdiction relates exclusively to the enforcement of penalties and recove ry of losses jurisdiction under s 357 of the Industrial Relations Act 1988 [and changed under 1996 Act?].
As foreshadowed earlier in this section, the operation of the cross-vesting scheme under the eight Jurisdiction of Courts (Cross-Vesting) Acts 1987 opened the jurisdiction associated with all the 'middle' court s in Australia to exercise by each of the other courts in this band Only the top - the High Court, and the bottom - state lower courts (and until 1996, the particular case of the Industrial Relations Court ) are not directly affected by the scheme.
The cross-vesting scheme instituted collectively by these Acts does what its epithet implies: in respect of civil matters coming before the Federal Court and the Family Court and the supreme courts in the st ates and territories, each of these courts is invested with, or has conferred upon it, the jurisdiction of each of the other participating courts. This is achieved through the combined effects of s 4 (the investing provision) and s 9 (the 'receiving' provision) of each of the Acts. 'In this way, no proceeding within the compass of the scheme can fail for want of jurisdiction'. In addition, and to complement this investiture part of the scheme, the legislat ion also provides each of the participating courts with the power (on application or of its own motion) to transfer proceedings to another court in the scheme where it is deemed that the transferee court is the more appropriate forum. There are, however, certain matters, within so-called 'protected jurisdiction', that must be transferred to a federal court should they be initiated in a State Supreme Court.
As a result of the scheme - the investiture of jurisdiction and the power to transfer proceedings - the wasteful jurisdictional disputes of old between Australian courts are no longer a prominent feature of civil litigation in this country. 'Within the compass of the scheme, it [is] not necessary for a court to determine whether it is truly exercising its ordinary federal, State or Territory jurisdiction, or whether it is exercising some cross-ves ted jurisdiction. It ... only need[s] to form opinions on these demarcation issues for limited purposes and to a limited extent [that is, in respect of decisions to transfer proceedings]'.
The proclaimed aim of the scheme is to ensure that, in the main, federal matters are decided in federal courts and state matters in state courts. It can fairly be claimed that this has been the experience of the scheme over its nine years of operation. It cannot be denied, however, that in establishing the jurisdictional machinery through which this result has been ostensibly achieved, the already indistinct lines between what is federal jurisdiction and what is states and territories jurisdiction have become further blurred. An acknowledged anomaly in the cross-vesting legislation serves as an example of this consequence.
Neither the Federal Court nor the Family Court exercises general federal jurisdiction. The jurisdiction of each is specifically vested by certain Acts. This is in contrast to the state courts which inherently exercise general state jurisdiction, an d, by way of s 9 of the Judiciary Act 1903, also exercise a broad sweep of federal jurisdiction. And whereas the cross-vesting scheme effectively fills many of the remaining gaps in the state supreme courts' exercise of federal jurisdiction, 133 it does not vest general or residual federal jurisdiction in the federal courts, nor does it vest Family Court jurisdiction in the Federal Court or vice versa. If full reciprocal rights to exercise state jurisdic tion were invested in the federal courts under the scheme then, of course, such general federal jurisdiction would be placed in the hands of the federal courts by way of the effect of s 39 of the Judiciary Act on the former courts. The cross-v esting legislation, however, excludes, by omission, that part of federal jurisdiction in state courts from the operation of the scheme. In consequence, the rather bizarre situation exists whereby 'the only
Any account of the scope of tribunals' authority in respect of (as distinct from in the 'exercise' of) federal jurisdiction must always bear in mind the definitional difficulties (discussed earlier in Part 1 of this paper) concerning tribunals and 'ju risdiction'. That much having been said, the scope of such jurisdiction is simply defined by the terms of the statute establishing the tribunal and any other legislation which bestows upon a tribunal decision-making powers. The following is a list of federal tribunals:
The Administrative Review Council (ARC) has recommended the establishment of a new tribunal, the Administrative Review Tribunal (ART) to replace the existing review tribunals ie the Administrative Appeals Tribu nal, the Veteran's Review Board, Social Security Appeals Tribunal, the Immigration Review Tribunal and the Refugee Review Tribunal. The ART would be comprised of seven divisions which would comprise the review jurisdiction of the ART, namely migratio n division, small taxation claims division, welfare rights division, general division, veteran's payments division, security division and commercial and major taxation division. The ARC has recommended this new structure as a way of retaining all the positive features of the existing individual merits review tribunals while achieving greater independence, improved accessibility and economic efficiencies.