Cowen and Zines’s Federal Jurisdiction in Australia, cited in:
National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543 at [89] by Allsop CJ,
Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 at [35] footnote 47
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.
Foreword by Sir Anthony Mason AC, KBE, GBM
Preface
About the Author
Introduction to Third Edition
Table of Cases
Table of Statutes
1. The Nature, Origin and Significance of Federal Jurisdiction
2. Original Jurisdiction of the High Court
3. Jurisdiction Between Residents of Different States
4. The Federal Courts
5. The Territorial Courts and Jurisdiction with Respect to the Territories
6. The Autochthonous Expedient: The Investment of State Courts with Federal Jurisdiction
7. Chapter III Restrictions on Legislative Power Resulting from the Conferral of Federal Jurisdiction on State and Federal Courts
8. Laws Applicable in the Exercise of Federal Jurisdiction
9. Appellate Jurisdiction of the High Court
10. Epilogue
Index
The concept of “federal jurisdiction” is one that many of us might prefer to ignore. Yet, we do so at our peril. As Sir Anthony Mason observes in his Foreword (p v):
The very mention of “federal jurisdiction” is enough to strike terror in the hearts and minds of Australian lawyers who do not fully understand its arcane mysteries. The expression conjures up images of constitutional train-wrecks of which Momcilovic v The Queen [(2011) 245 CLR 1] is a spectacular example. As in other cases, no one, including the judges and counsel in the courts below, realised that the jurisdiction exercised in Momcilovic was federal until the case reached the High Court.
Geoffrey Lindell’s masterful fourth edition of Cowen and Zines’s Federal Jurisdiction in Australia is an invaluable tool for those who hope to avert such train-wrecks in the future, and to understand more broadly a concept that pertains to so many important issues in Australian public law. …
The analysis is comprehensive, rigorous and painstaking in its detail, but also clearly written and accessible. It demonstrates an astonishing command of case law, commentary and historical developments. The way in which the book has evolved reveals the prescience of its authors, past and present. Lindell is also careful to point (quite rightly) to aspects of the law that remain uncertain, and provides great insight into how the law may unfold in the future. The golden thread that runs throughout the text is a call for clarity and, wherever possible, fair and efficient solutions to the many problems caused by a dual system of State and federal courts. … it is essential reading for Australian public lawyers.
Lisa Burton Crawford, Australian Journal of Administrative Law, 24, 2018
Cowen and Zines’s The Federal Jurisdiction in Australia updates its predecessor, which was published in 2002. This edition has been updated by Professor Geoffrey Lindell.
Mr Lindell notes that the period since 2002 has continued to highlight the importance of federal jurisdiction with several cases reaching the High Court which were only found to involve such jurisdiction once the cases reached that Court. The text underlines the importance of judges and practitioners being aware that the cases in which they participate may involve such jurisdiction. Indeed, Sir Anthony Mason highlights this in his foreword by citing the ‘constitutional train-wreck’ Momcilovic v The Queen.
Sir Anthony Mason notes that the fourth edition is more than a mere update as there has been a major reworking of the earlier editions. …
This is a complex textbook and one which will definitively remain on my book self for the day I venture into the treacherous seas of federal jurisdiction. It would be valued by judges, practitioners and students alike.
Rahul Bedi, Ethos, ACT Law Society, April 2018
The fourth edition of this text heralds a successful transition from its previous authors, both eminent and venerated scholars, to the next generation. The widely respected Professor Lindell has produced a fourth edition which Sir Anthony Mason describes in his forward as “a mine of information, accompanied by sophisticated and elaborate analysis” which “not only builds on the work of the author’s distinguished predecessors but surpasses it”.
In addition to comprehensively updating the earlier editions with the last fourteen years of the High Court’s jurisprudence, which has seen significant developments on the subject of federal jurisdiction, the text now contains several new chapters. …
Although this text no longer stands alone in addressing the complex and multifaceted topic of federal jurisdiction, having been recently joined by excellent works by the Honourable Mark Leeming and Professor James Stellios, it continues to stand apart as a seminal and thought provoking reference text useful to practitioner and student alike. Read review…
Queensland Law Reporter – 28 October 2016 – [2016] 42 QLR
Review of previous edition:
Federal Jurisdiction in Australia has stood the test of time. … a ‘classic text’ – a well-deserved description. … Like its predecessors, the third edition makes a careful and detailed analysis of each of the heads of federal jurisdiction and presents a considered analysis of relevant case law in the interpretation of these heads. The book also analyses the tensions that have developed in the dual system of federal courts and state courts exercising federal jurisdiction.
Alternative Law Journal, August 2003
