This book examines the jurisdiction of the High Court, federal courts
and Territory courts, as well as 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 distribution of judicial power made
by the Australian Constitution and it is of great practical
importance. Much of the difficulty and some of the 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
Territory 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, and continue to be, of increasing legal
concern. This has been partly due to the statutory extensions of the
jurisdiction vested in federal courts apart from the High Court. The
new edition of this book now includes a number of new chapters:
Chapter 1 contains a new introductory analysis of the meaning and
purpose of federal jurisdiction; some further developments in relation
to the all-important concept of “matters” and in particular the
extent to which courts vested with federal jurisdiction may grant
non-legally binding declarations of incompatibility with human right
norms; and a discussion of the scope of the legislative power of the
Commonwealth Parliament to legislate with respect to federal
jurisdiction and the extent to which it is exclusive. Chapter 7
contains a much expanded and now separate discussion of the principle
in the Kable and Kirk cases to take account of the extensive judicial
developments occurring since the previous edition was published.
Chapter 8 analyses the law to be applied by courts exercising federal
jurisdiction, in particular ss 79 and 80 of the Judiciary Act 1903
(Cth). Chapter 9 contains an analysis of the appellate jurisdiction of
the High Court. Chapter 10 contains some closing reflections on the
present state of the law relating to federal jurisdiction. The
pre-existing chapters of the book have also been revised to take
account of developments in the law since the previous edition was
published in 2002. These include: the continued emphasis on the role
of the High Court in keeping Commonwealth agencies and officers within
the limits of their powers and, in particular, the protection now
afforded to individuals from the operation of privative clauses under
federal (and State) jurisdiction; the source and scope of State
liability in federal jurisdiction; the continued expansion of federal
jurisdiction derived from matters arising under the laws made by the
Parliament; issues associated with the remittal of matters by the High
Court; whether all Territory jurisdiction has become federal
jurisdiction in the light of modern developments involving the
relationship between ss 76(ii) and 122 of the Constitution
notwithstanding the constitutional status accorded to Territory courts
as non-federal courts; the meaning of “courts” in Ch III of the
Constitution – in particular, whether State tribunals are courts
capable of being vested with federal jurisdiction and, if not, whether
they are capable of exercising State judicial power with respect to
the matters falling within federal jurisdiction; the extent to which
the vesting of federal jurisdiction in State Courts extinguishes the
existence of State jurisdiction despite the absence of matters within
the meaning of Ch III of the Constitution in relation to the same
jurisdiction. The continued existence of tensions and problems which
have resulted from the development of the Federal Court’s
jurisdiction to the point where Australia now has a fully-fledged dual
system of federal and State courts.
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Produktdetaljer
ISBN
9781760020927
Publisert
2023
Utgave
4. utgave
Utgiver
The Federation Press
Språk
Product language
Engelsk
Format
Product format
Digital bok
Forfatter