The evolving jurisdiction of the
Federal Court of Australia –
administering justice in a federal
system
The Hon Justice Susan Kenny
28 October 2011
Federation
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
1 January 1901: Six British colonies federated
under the Australian Constitution
Chapter III of the Constitution states that
federal jurisdiction would be exercised by the
High Court of Australia, “by such other federal
courts as the Parliament creates” and by state
courts invested with federal jurisdiction
Section 75 - Original Jurisdiction of
the High Court
In all matters:
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i.
ii.
iii.
iv.
v.
arising under a treaty;
affecting consuls or other representative of other
countries;
in which the Commonwealth or a person suing or
being sued on behalf of the Commonwealth is a party;
between States, or between residents of different
States, or between a State and a resident of another
State;
in which a writ or Mandamus or prohibition is sought
against an officer of the Commonwealth.
Section 76 - Additional Original
Jurisdiction
The parliament may make laws conferring
original jurisdiction on the High Court in any
matter
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i.
ii.
iii.
iv.
arising under this Constitution, or involving its
interpretation;
arising under any laws made by the Parliament;
of Admiralty and maritime jurisdiction;
relating to the same subject-matter claimed under
the laws of different States.
Section 77 - Power to define
jurisdiction
With respect to any of the matters mentioned
in the last two sections the Parliament may
make laws:

i.
ii.
iii.
defining the jurisdiction of any federal court other
than the High Court;
defining the extent to which the jurisdiction of any
federal court shall be exclusive of that which
belong to or is invested in the courts of the States;
investing any court of a State with federal
jurisdiction.
Exercise of federal jurisdiction from
federation until 1976
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High Court exercised jurisdiction either
exclusively or concurrently with State courts
Only two federal courts
Australian Industrial Court
 Federal Court of Bankruptcy
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Federal Court of Australia created in 1976
Federal Court of Australia Act 1976 (Cth)
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Legislation created the Federal Court as a court
of limited original and appellate jurisdiction.
Federal Court first sat on 7 February 1977
Original jurisdiction limited to industrial matters,
bankruptcy, judicial review of administrative
decisions, trade practices and some taxation and
intellectual property appeals.
Expansion of the Federal Court’s
jurisdiction


1983 – jurisdiction with respect to any matters in which
a writ of mandamus or prohibition or an injunction
were sought against an officer of the Commonwealth
1997 – original jurisdiction in respect of any matter in
which the Commonwealth sought an injunction or a
declaration; arising under the Constitution or involving
its interpretation; or arising under any laws made by
Parliament, other than a criminal matter
Cross-vesting Scheme
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From 1 July 1988
Legislation created for the scheme cross-vested the
subject matter jurisdiction of the participating courts
into other participating courts
Scheme provided for the transfer of proceedings
between the participating courts, including the Federal
Court and the Supreme Courts of the States and
Territories
Scheme ended in 1999 with High Court decision in R v
Wakim
Accrued jurisdiction
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A party invoking the jurisdiction of the federal court
must show that the subject matter of his claim is a
matter within the court’s jurisdiction.
Largely prevents jurisdictional disputes about whether
the court could hear and determine a claim arising
under non-federal law when joined with a federal claim
Doctrine applies where a non-federal claim is joined
with a non-severable federal claim arising out of a
common substratum of transactions and facts.
Jurisdiction of the Federal Court
today
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Migration
Intellectual property
Federal administrative
law
Human rights
Commerce
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Native title
Industrial law
Admiralty
Taxation
Cartel conduct