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Authority to Decide

Authority to Decide

The Law of Jurisdiction in Australia

By Mark Leeming


** This edition is now out of print **

A new edition of this text will be available in November 2019, please register your interest by emailing:

Authority to Decide was cited in CGU Insurance Limited v Blakeley [2016] HCA 2 at [25] footnotes 14 and 16, in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 at [42], in Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343 at [34], in Bare v IBAC [2015] VSCA 197 at [389] and other decisions at first instance and on appeal.

The first work dealing comprehensively with jurisdiction in the Australian legal system.

  • What are the limits of federal jurisdiction?
  • How is federal jurisdiction conferred and invested on Federal and State courts within the Australian legal system?
  • What is “accrued jurisdiction”?
  • What is a “matter”?
  • What is jurisdictional error?
  • What is a jurisdictional fact?
  • Why are there no Australian courts of unlimited jurisdiction?
  • What does it mean to say that a court has jurisdiction to decide its own jurisdiction?
  • How is a court's jurisdiction invoked?

These questions are of vital practical and conceptual importance; the purpose of this work is to answer them, by providing a comprehensive account of the role of jurisdiction in Australia.

Although the book extends to all aspects of jurisdiction, it covers the whole of federal jurisdiction, and provides not only an accessible analysis for practitioners and courts, but also a thoughtful and detailed account of the underlying principle and decisions. All classes of federal “matters” are addressed, but with an emphasis on those arising most commonly in practice, as well as the essential statutory provisions by which State and federal jurisdiction is conferred and qualified and excluded. Separate chapters deal with invoking jurisdiction, jurisdictional error, service, and appeals and appellate jurisdiction, in State and federal courts.


Table of Cases
Table of Statutes

1 The meanings of “jurisdiction”

1.1 Jurisdiction as authority to decide
1.2 Jurisdiction as the dispute, as opposed to the authority to decide it
1.3 The ambiguity of “federal jurisdiction”
1.4 Jurisdiction as a geographic area
1.5 Metonymous uses of “jurisdiction”
1.6 Overview of uses of “jurisdiction”
1.7 Broader uses of “jurisdiction”

2 Invoking the jurisdiction of courts

2.1 Introduction
2.2 Constitutional recognition of courts
2.3 Jurisdictional limitations on all courts
2.4 Superior courts of record
2.5 Jurisdiction to determine a court’s own jurisdiction

3 Jurisdictional error

3.1 Introduction
3.2 Why “jurisdictional error” is challenging
3.3 The entrenched minimum provision of judicial review
3.4 Identifying “jurisdictional error”
3.5 Jurisdictional facts
3.6 Other jurisdictional errors
3.7 The consequences of jurisdictional error
3.8 Limits on restricting review for jurisdictional error
3.9 Conclusion

4 Identifying Chapter III matters

4.1 Introduction
4.2 Summary
4.3 Justiciable controversies based on common transactions and facts
4.4 Application of the principles after the invalidity of the cross-vesting scheme
4.5 Discretion
4.6 Substantiality
4.7 “Accrued” jurisdiction
4.8 Associated jurisdiction

5 Conferring and excluding jurisdiction

5.1 Introduction
5.2 Overview
5.3 Types of laws conferring and excluding jurisdiction
5.4 General approach to construing laws conferring or excluding jurisdiction
5.5 The general conferral of jurisdiction in individual courts
5.6 General conferral and specific exclusion of jurisdiction
5.7 The general investment of jurisdiction by Judiciary Act s 39
5.8 Overriding the limits and conditions in Judiciary Act s 39
5.9 The Jurisdiction of Courts (Cross-vesting) Act 1988 (Cth)
5.10 Excluding the jurisdiction of State and Territory courts
5.11 Summary

6 Service

6.1 Introduction
6.2 Presence is sufficient to found personal jurisdiction
6.3 Exceptions – where local personal service is not effective
6.4 Voluntary submission
6.5 Substituted service
6.6 Extraterritorial service
6.7 Service and Execution of Process Acts
6.8 Service is jurisdictional
6.9 The position in the United States
6.10 Conclusion

7 Chapter III matters – private litigation

7.1 Introduction
7.2 “Arising under” – authority to decide federal questions
7.3 Matters arising under any treaty
7.4 Matters affecting consuls or other representatives of other countries
7.5 Matters between residents of different States
7.6 Matters of admiralty and maritime jurisdiction
7.7 Matters relating to the same subject matter claimed under the laws of different States

8 Chapter III matters – litigation involving governments

8.1 Introduction
8.2 Context
8.3 The drafting of ss 75 and 78 of the Australian Constitution
8.4 The effect of federation
8.5 Governmental amenability to suit
8.6 Jurisdiction over governments
8.7 Identifying a governmental party
8.8 Conclusion

9 Appeals

9.1 Introduction
9.2 The nature of appeals
9.3 Appellate or original jurisdiction?
9.4 History of appeals
9.5 Types of appeals
9.6 Legislation precluding or qualifying a right of appeal

Appendix 1

Chapter III of the Australian Constitution and Judiciary Act 1903 (Cth), selected provisions
    Australian Constitution, Chapter III (extracts)
    Judiciary Act 1903 (Cth) (extracts)



We have been remiss in not reviewing this little book earlier. Its subject matter is technical. The author in his preface rightly says that the book is written for the working lawyer. … it is certainly a great source of material to consult whenever one has a problem in this area. The book deals with a problem that has been more and more significant particularly in administrative law over the past decade.
         This is a very learned tome and will be of great assistance to lawyers who need to venture into this technical area. Unfortunately in one sense, that may include all of us, as the problems of jurisdiction can affect even the apparently simplest piece of litigation.

Peter W Young, Australian Law Journal, March 2015

This very useful work by the extremely talented Mark Leeming S.C considers many aspects of the concept of "jurisdiction" in the Australian legal setting. Its focus is on Federal jurisdiction and it contains lucid explanations of the concept of "matters" in the various senses in which that concept is used.

Queensland Law Reporter, 8 February 2013


Published 30 November 2012
Publisher The Federation Press
ISBN 9781862879027
Australian RRP $165.00
International Price $150.00
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Out of print

Law - Constitutional
Law - Civil Litigation

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