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A fundamental question to be considered in every court proceeding is the character of the jurisdiction being exercised by the court - whether state or federal. Federal jurisdiction is the authority conferred upon Australian courts by the Constitution and laws made under it to adjudicate upon cases within the classes of matter set out in sections 75 and 76 of the Constitution. Whether federal jurisdiction is involved is a threshold question for the parties and for the court in any proceeding.
The subject will consider the origins and concept of federal jurisdiction, its application in the Australian judicial system and the interaction between federal, state and territory laws and the common law in the exercise of federal jurisdiction. There will be discussion of how its conferral on state and territory courts supports implications limiting the imposition or conferral on those courts of functions that are inconsistent with their institutional integrity.
The subject is not without complexity but the central principles are relatively simply explained.
The subject will be delivered by the Hon Robert French AC, former Chief Justice of Australia and before that a Justice of the Federal Court of Australia for 22 years, and Frances Gordon, barrister practising in public law at the Victorian and New South Wales Bars.
Principal topics include:
- The concept of jurisdiction and the distinction between original and appellate jurisdiction
- Federal jurisdiction, its origins, the meaning of the term and the relevant constitutional provisions conferring and authorising its conferral and statutory grants conferring federal jurisdiction
- The United States model
- The Australian court system in historical and functional perspectives
- The idea of a 'court' - when is an administrative tribunal also a court for the purposes of federal jurisdiction
- The content of federal jurisdiction - the concept of the 'matter'
- The application of state and territory laws and the common law in the exercise of federal jurisdiction
- Removal and remitter of matters between the High Court and lower courts
- The Kable case and its sequelae, a consequence of the scheme for the distribution of federal jurisdiction?
- Can federal jurisdiction be abolished.
Intended learning outcomes
A student who has successfully completed this subject should:
- Have a sound understanding of the history of federal jurisdiction in Australia
- Understand the content and sources of federal jurisdiction
- Be aware of the practical implications of federal jurisdiction and able to assess them
- Be able to put federal jurisdiction in Australia in comparative perspective
- Be able to anticipate and accurately identify cases in which federal jurisdiction arises
- Be aware of the significance of federal jurisdiction for the integrated national judiciary
- Be able to assess the implications of federal jurisdiction for the design of the functions of statutory courts and tribunals.
Last updated: 11 February 2021