Cowen and Zines's Federal Jurisdiction in Australia
This book examines the jurisdiction of the High Court, federal courts, Territorial courts and 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 jurisdiction of judicial power made by the Australian Constitution and it is of great practical importance. Much of the difficulty and some of 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 Territorial 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 of legal concern. Much of the book has had to be rewritten as a result of the many changes to the law of federal jurisdiction since the previous edition was published in 1978. These include: the greater emphasis on the role of the High Court in keeping Commonwealth agencies and officers within the limits of their powers, and on the functioning of the "constitutional writs" in s75(v) of the Constitution for that purpose; the development of "accrued jurisdiction" and its part in expanding the jurisdiction of federal courts; the development of the Federal Court's jurisdiction to the point where we now have a fully-fledged dual system of federal and State courts, creating some new tensions and problems; the continuing judicial division over the constitutional status of Territorial courts, and the position of the self-governing Territories for purposes of federal jurisdiction; a lot of more specific changes, such as the effect of the ending of Privy Council appeals from State courts, the overruling of decisions preventing the use of court officers for purposes of federal jurisdiction, the enactment of a new regime of admiralty jurisdiction, and the Kable Case restricting State power to control courts that have federal jurisdiction.
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