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State Courts and Federal Administrative Law: Problems of Federal Jurisdiction

Published online by Cambridge University Press:  24 January 2025

Clifton Baker
Clifton Baker*
Affiliation:
New South Wales and Victorian Bars; Footscray Institute of Technology
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Extract

From the time a Federal Court was first proposed, questions about its jurisdiction, and its relationship with state courts have dominated discussion. While it is not proposed to review this extensive literature in detail, it is apposite to draw on some insights from an article by Sir Garfield Barwick published in 1964 at an early stage of this debate. First, it was suggested that the matters in which a Federal Court should have jurisdiction be in some way special. This special element could, it was said, consist of either a distinctive and separate body of law, a desire for uniformity in the interpretation of Commonwealth law, or the character of a party involved in a matter (eg the Commonwealth or a State). Secondly, and of major importance to the present consideration of the exclusive jurisdiction of Federal Courts, Barwick stated:

My own preference for a new federal court rests on a view that most of these matters present characteristics sufficiently ‘special’ to make a Federal Court the most appropriate forum. Whenever it can, therefore, I think the Parliament should make the jurisdiction it gives any such new federal court, exclusive.

Type
Research Article
Information
Federal Law Review , Volume 17 , Issue 1 , March 1987 , pp. 45 - 59
Copyright
Copyright © 1987 The Australian National University

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References

1 The initial contributions to this discussion were M H Byers and PB Toose, “The Necessity for a New Federal Court” (1963) 36 AU 308 and Sir Garfield Barwick, “The Australian Judicial System: The Proposed New Federal Superior Court” (1964) I FL Rev I. A recent discussion is also by M H Byers, “Federal and State Judicatures” (1984) 58 AU 590.

2 Barwick, supra n 1. It should be noted that the article was prepared while Sir Garfield Barwick was Attorney-General, but was published after his appointment as Chief Justice.

3 Ibid 3.

4 Ibid 9.

5 Ibid 18, 19.

6 J Crawford, Australian Courts of Law (1982) 127.

7 House of Representatives, Hansard, 21st October 1976, cited in C Saunders, “A Single System of Courts for Australia”, Working Paper annexed to the Report of the Judicature Committee of Standing Committee D, Australian Constitutional Convention 1977, 62.

8 Infra n 20.

9 LJW Aitken, “State Courts and the Administrative Decisions (Judicial Review) Act” (1984) 7 UNSWLJ 254; E Campbell, “State and Federal Judicial Review of Administrative Action” in Monash University, Advanced Civil Litigation Series, Book One- 1984, at 58 (See, on the present topic, 68-71).

10 Supra n 5.

11 Commonwealth Administrative Review Committee (Kerr Committee) Report (1971): Parliamentary Paper 144 (1971).

12 Ibid paras 240-247.

13 Ibid para 241.

14 Ibid para 242.

15 Ibid para 243.

16 Ibid para 244.

17 Ibid para 246.

18 Prerogative Writ Procedures: Committee of Review (Ellicott Committee) Report (1973): Parliamentary Paper 56 (1973), para 47.

19 Administrative Review Council: First Annual Report (1977), para 62.

20 House of Representatives, Hansard, 28th April 1977, 1396, quoted in GA Flick, Federal Administrative Law, 2nd ed. 1511.

21 Supra n 7.

22 Appliance Holdings Pty Ltd v Lawson [1983] I NSWLR 246, 250; Hayes and Mercury Marine Pty Ltd; ex parte Outboard Marine Pty Ltd (High Court of Australia, IO June 1983, unreported decision of Deane J, cited in Administrative Review Council: Seventh Annual Report, (1982-83) para 178.)

23 Supra n 7.

24 [1983] 1 NSWLR 110.

25 Ibid 118.

26 AJ Rogers, “State/Federal Court Relations” (1981) 55 ALJ 630, supra n 24, 119.

27 See C C H Australia Ltd., Australian Federal Tax Reporter, para 934-200 as to review of taxation decisions.

28 Campbell, supra n 9, 69, takes this view.

29 LJW Aitken, supra n 9, 262.

30 [1983] 1 SWLR 56.

31 [1983] 1 NSWLR 110.

32 Supra n 30.

33 [1983] 2 NSWLR 56, 58-59. Supra n 22, where Deane J remarked on the burden imposed on the High Court.

34 [1983] 1 NSWLR 246.

35 [1983] I NSWLR 246, 250. Supra nn22, 29.

36 LJW Aitken, supra n9, 261.

37 [1983] 3 NSWLR 183.

38 Ibid 188.

39 (1984) 52 ALR 320.

40 (1984) 4 FCR 356.

41 Ibid 362.

42 (1985) 60 ALR 313, 329-330 per Davies J.

43 [1983] 2 NSWLR 56, at 63.

44 [1985] VR 409.

45 It is of interest that Appliance Holdings Pty Ltd v Lawson [1983] 1 NSWLR 246 , Coward v Allen (1984) 52 ALR 320 and the present case all concerned the validity of warrants under s 1O of the Crimes Act 1914 (Cth).

46 Supra n 41.

47 Supra n 41.

48 Supra n 39.

49 [1985] VR 409, 416.

50 In relation to the argument that abrogated State jurisdiction has to be vested in a Federal Court, this proposition had been advanced by Dixon as counsel but then rejected inLorenzo v Carey (1921) 29 CLR 243.

51 [1985] VR 409, 415.

52 (1984) 4 FCR 356, (1985) 60 ALR 313.

53 (1985) 2 NSWLR 179.

54 Ibid 185-186.

55 [1983] l NSWLR 110.

56 (1985) 3 NSWLR 91.

57 Ibid 97.

58 Supra nn 7, 21.

59 Appliance Holdings Pty Ltd v Lawson[1983] 1 NSWLR 246;Nomad Industries of Australia Pty Ltd v Commissioner of Taxation[1983] 2 NSWLR 56, Coward v Allen (1984) 54 ALR 320.

60 See article by J Griffiths, “Legislative Reform of Judicial Review of Commonwealth Administrative Action” (1978) 9 FL Rev 42, and Clamback&Hennessy Pty. Ltd. v Commonwealth of Australia (1985) 3 NSWLR 91, 96perNeedham J.

61 Administrative Review Council, Annual Report, 1983-1984, 56, 59 paras 226-227, 242.

62 Administrative Review Council, Annual Report, 1984-1985, 64, 65 para 257.

63 LJW Aitken, supra n 9, 265: See nn27, 31.

64 LJW Aitken, “The Exclusion of the Operation of Section 9 of the Administrative Decisions (Judicial Review) Act” (1986), Australian Current Law, 36063, 36071.

65 The argument inDelmore v Commonwealth of Australia (1985) 2 NSWLR 179 also appears not to have been developed in great depth.Rosenthal v Phillips[1985] YR 409 was not cited and a number of cases referred to in argument appear to be of peripheral relevance.

66 Supreme Court Act 1970 (NSW) s 101(2), Supreme Court Act 1958 (Vic) s 40.

67 (1983) 76 FLR 296, 319.

68 (1984) 4 FCR 356.

69 LJW Aitken,supran 9, 260; E Campbell, supran 9, 71;Woss v Jacobsen (1984) 4 FCR 356,362. See n 54.

70 Lamb v Moss (1983) 76 FLR 196, Woss v Jacobsen (1984) 4 FCR 356, (1985) 60 ALR 313

71 Powell v Manufacturers Mutual Insurance Ltd. [1983] 3 NSWLR 183, Clamback & Hennessey Pty Ltd v Commonwealth of Australia 1985 3 NSWLR 91, [1985] YR 409.

72 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth). See S Newman, “Administrative Law”, (note) (1986) 60 LIJ 1380.

73 Explanatory Memorandum, 2, para 3.

74 Ibid para 8, p3.

75 J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth. (1901, repr. 1976) para 337, p804.

76 Royal Commission on the Constitution, Report, 1929, pl 1O (extract from the evidence of Dixon KC).

77 Dixon, O, “The Law and the Constitution”, (1935) 51 LQR 590, 607-608Google Scholar, Dixon, O Jesting Pilate (1965) 245Google Scholar.

78 Dixon, O, Jesting Pilate supra n 77, 247Google Scholar.