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Additional original jurisdiction.

76. The Parliament may make laws conferring original jurisdiction327 on the High Court in any matter328–

  • (i.) Arising under this Constitution329, or involving its interpretation330:
  • (ii.) Arising under any laws made by the Parliament331:
  • (iii.) Of Admiralty and maritime jurisdiction332:
  • (iv.) Relating to the same subject-matter claimed under the laws of different States333.
UNITED STATES.—The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; … to all cases of admiralty or maritime jurisdiction; to controversies … between citizens of the same State claiming lands under grants of different States. (Const., Art. III., see.ii., sub-sec. i.) (The jurisdiction in the above cases is appellate only; see Notes to sec. 75.)

HISTORICAL NOTE.—The Bill of 1891 contained a similar provision, but in a different form. Added to the “original jurisdiction” clause was a power to the Parliament to confer original jurisdiction in “such other of the cases enumerated in the last preceding section as it thinks fit.” The “preceding section” was that enumerating all the cases in which jurisdiction could be given to the other federal courts, and including those in which the Supreme Court already had federal jurisdiction; so that the ascertainment of the cases to which the power applied involved a process of subtraction. The cases to which the power applied were practically the same as in this section, except that they also included cases arising “under any treaty made by the Commonwealth with another country”—a class of cases, which, in a wider form, is now included in the original jurisdiction of the High Court (sec. 75).

At the Adelaide session, 1897, a somewhat different form of expression was adopted. This provision, instead of referring expressly to a “preceding section,” empowered Parliament to confer original jurisdiction “in other matters within the judicial power;” and the section which had enumerated the cases in which jurisdiction might be given to the federal courts other than the High Court was now transformed into a section which purported to enumerate the cases to which “the judicial power shall extend.” This arrangement, however, was unsatisfactory, as it involved the use of the phrase “judicial power” with exclusive reference to original jurisdiction, and therefore in a different sense from that which it bears in section 71. It was taken from the United States Constitution, in which the appellate and the original jurisdictions are both limited to certain classes of cases. (See Note, § 339, infra.)

At the Melbourne session, on recommittal after the fourth Report, this provision, and the “judicial power” section introduced in Adelaide, were recast to form sections 76 and 77 respectively.

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