Commentary on ‘State Jurisdictional Residue: What Remains to a State Court when its Chapter III Functions are Exhausted?’ by Professor Helen Irving
| DOI | 10.22145/flr.42.1.6 |
| Date | 01 March 2014 |
| Published date | 01 March 2014 |
| Subject Matter | Article |
WHAT REMAINS TO A STATE COURT WHEN ITS CHAPTER
III FUNCTIONS ARE EXHAUSTED?' BY PROFESSOR HELEN
IRVING
James Stellios*
1
INTRODUCTION
Professor Irving's article raises questions that have not received extensive
consideration by courts or commentators. There are important consequences of State
courts being included within the federal judicature: consequences that have significant
implications for the place of State power within the federal system. Chief Justice
French's judgment in Momcilovic v The Queen1 drew attention to some of these issues,
and Professor Irving's exploration of French CJ's suggestions is timely.
The use of State courts to exercise federal jurisdiction was a significant departure
from the American model being copied by the framers of the Australian document,
and was implemented in response to concerns about the cost of setting up lower
federal courts (as was the scheme in the United States).2 Although there was some
discussion during the drafting process about the power of Parliament to prevent State
courts from exercising federal jurisdiction so as to cut off appeals from State courts to
the Privy Council,3 there was little, if any, discussion of how the mechanics of the
federal judicature would work when State courts were exercising federal jurisdiction.
The High Court has had to deal with a range of questions of federal jurisdiction at
the operational level. Can State jurisdiction be exercised at the same time as federal
jurisdiction? Where a State court is hearing related federal and State claims, are the
State claims resolved in State or federal jurisdiction? How are State laws applied when
a court is exercising federal jurisdiction? And, of course, there is the Kable4 question:
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*
Associate Professor, ANU College of Law, Australian National University; Barrister, NSW
Bar. An earlier version of this commentary on Professor Helen Irving's paper was provided
to an event organised by the Australian Association of Constitutional Law, Sydney.
1
(2011) 245 CLR 1 ('Momcilovic').
2
See K H Bailey, 'The Federal Jurisdiction of State Courts' (1939–1941) 2 Res Judicatae 109;
J A La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1974)
130–1.
3
See John M Williams, The Australian Constitution: A Documentary History (Melbourne
University Press, 2005) 1167–8.
4
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ('Kable').
2
Federal Law Review
Volume 42
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are there any limits on what powers State Parliaments can give to (or perhaps take
away from) State courts?
There is nothing really concrete to draw from when answering these questions:
vesting federal jurisdiction in State courts was unique to the drafting of the Australian
Constitution, so we cannot really draw from the United States experience. The text is
lean and gives little guidance and, as mentioned, the historical record is not very
helpful.
What is left to guide us? Analytical techniques of squeezing the life out of words
like 'Commonwealth judicial power', 'matter' and 'court' has been one approach.5
There have also been attempts by the High Court at times to draw from constitutional
policy considerations. For example, when deciding that State claims could come within
'accrued' federal jurisdiction, a majority of judges in the early 1980s elevated the
interests of the litigants, or the efficacy of the choice given to the federal Parliament for
the exercise of Commonwealth judicial power, over the impact it would have on State
judicial power and State courts.6
Whether approached analytically or from this policy orientation, one thing has been
very clear — in almost every context, principles have been developed which protect or
facilitate the exercise of Commonwealth judicial power and federal jurisdiction, more
often than not at the expense of State judicial power and jurisdiction. For example,
where federal jurisdiction is invested in State courts to determine a matter, State
jurisdiction gives way in its entirety having been stripped out by s 39(1) of the Judiciary
Act 1903 (Cth) or rendered inconsistent by the investiture of federal...
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