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16. Chapter XVI. Federal Jurisdiction.

IN considering the federal jurisdiction of the Commonwealth we return to the normal state of things under the Constitution—the restriction of the powers of the Commonwealth organ to certain enumerated subjects. The Government of the Commonwealth is, in all its departments, primarily a Government of limited and enumerated powers; the general, unenumerated powers belong to the States. Therefore, just as the first thing to be done in interpreting an Act of the Commonwealth Parliament is to ascertain that the subject of the Act is one committed to the Parliament; so, in invoking the jurisdiction of the federal courts, it must be shown that the cause is within the enumerated powers. In the United States it must always appear by the record that a case in the federal court is within its jurisdiction; the presumption is against it until it is shown.note

The subjects of federal jurisdiction in the Constitution closely follow the subjects of the judicial power of the United States, though in many respects the political condition of the Australian Colonies and the character of their courts is widely different from the state of things which in America led to the inclusion of certain subjects in the judicial power of the central government. In the great case of Chisholm v. The State of Georgia,note Mr.


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Justice Iredell remarked, in terms which have had the approval of Story, that “the judicial power of the United States is of a peculiar kind. It is indeed commensurate with the ordinary legislative and executive powers of the general government (i.e. the Federal Government) and the powers which concern treaties. But it also goes further. When certain parties are concerned, although the subject in controversy does not relate to any special objects of authority in the general government wherein the separate sovereignties of the several states are blended in one common mass of supremacy, yet the general government has a judicial authority in regard to such subjects of controversy; and the legislature of the United States may pass all laws necessary to give such judicial authority its proper effect.” The principles underlying these subjects are stated by Kent:note “All the enumerated cases of federal cognizance are those which touch the safety, peace, and sovereignty of the nation, or which presume that State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control the regular administration of justice.”

Section 75. In all matters

i. Arising under any treaty;

ii. Affecting consuls or other representatives of other countries;

iii. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

iv. Between States, or between residents of different States, or between a State and a resident of another State;

v. In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction.

Section 76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter

i. Arising under this Constitution, or involving its interpretation;

ii. Arising under any laws made by the Parliament;




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iii. Of admiralty and maritime jurisdiction;

iv. Relating to the same subject-matter claimed under the laws of different States.

It has been observed that section 73 not merely grants appellate jurisdiction to the High Court, but also confers rights of appeal. In sections 75 and 76, however, the matter of jurisdiction alone is dealt with. The existence of legal rights is assumed, and the sections do no more than indicate that the rights may be enforced in a certain tribunal or class of tribunals. The term “matter,” which governs the enumeration of subjects in sections 75 and 76, is in itself so indefinite that its meaning must be gathered almost wholly from its particular use. In the Constitution it is used in relation to legislative, executive, and judicial power. It is well established by usage as a comprehensive term for describing every kind of proceedings competently brought before and litigated in a Court of law.note In relation to judicial power, it excludes political disputes not arising out of legal right; such disputes “do not present a case appropriate for the exercise of judicial power,” and “it is only where the rights of persons or property are involved, and where such rights can be presented under some judicial form of proceedings, that courts of justice can interpose relief.”note Even the reference to the Judicial Committee of “any such other matters whatsoever as His Majesty shall think fit” (3 and 4 Will. IV., c. 41, sec. 4) is in practice limited to such matters as are fit for judicial determination, and in which the opinion may be followed by effective action by the Crown—a limitation which is the more significant when we remember that the Judicial Committee has many of the marks of the Council rather than the Courts.note

The matters of federal jurisdiction enumerated in sections 75 and 76 require particular consideration.




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1. Arising under any treaty.—This matter, like that which follows it, is taken from the Constitution of the United States, and corresponds with an article of legislative power, “external affairs and treaties.” The reference to treaties under the head of legislative power was dropped, but was retained under the judicial power. Treaties come very rarely under the consideration of the Courts. In the United States, indeed, treaties are part of the law of the land. This, however, is not the case in the British Constitution, save in special circumstances; even if a treaty expressly deals with matters of private right, the most recent authoritative declaration is that that is “only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure.”note

The operation of many Acts of Parliament is, however, dependent upon the conclusion of conventions between Her Majesty and foreign powers; in such cases, questions as to the operation of the law might fitly be described as arising under the treaty. In some cases the treaty itself becomes incorporated in the law, e.g. the International Copyright Convention, 1886, and the Extradition Acts (R v. Wilson 1878, 3 Q.B.D. 42).note

2. Affecting consuls or other representatives of other countries.—This article may be compared with “cases affecting ambassadors, other public ministers and consuls” in the Constitution of the United States. The provision extends to cases affecting such representatives in their private capacity; but whether it extends to others than the representatives in Australia of such other countries, quaere.




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3. In which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party.— It must be repeated that this provision confers no right to sue the Commonwealth. The legal personality of the Commonwealth, as of other parts of the Queen's Dominions is in the Crown,note and not the Governor-General, nor the Executive Government; and the Crown cannot be sued, save by its own consent. The provisions made by the Colonies for enabling their Courts to entertain claims against the Crown in right of the colony would not enable their Courts to assume jurisdiction over claims against the Crown in right of the Commonwealth.note By sec. 78, the Parliament may confer rights to proceed against the Commonwealth, but the Crown may sue in any right in any of its Courts which has jurisdiction of the parties and the cause.note The Commonwealth, therefore, may freely sue in the State Courts, as does the United States in the State Courts in America. “A person suing or being sued on behalf of the Commonwealth” anticipates the common practice of designating some Minister, Department, or officer of Government, as the appropriate person to sue or be sued for the Government.

4. (a) Between States or (b) between residents of different States or (c) between a State and a resident of another State.—All these cases belong to the class described by Kent as presuming that “State attachments, State prejudices, State jealousies, and State interests might sometimes obstruct or control the regular administration of justice.” Cases between residents of different States are of so common occurrence, and are so much in the ordinary experience of the Courts that there seems no particular reason for giving the High Court original jurisdiction over


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them, or even for making them matters of federal jurisdiction at all, especially as the appellate jurisdiction of the High Court and the Queen in Council offers a sufficient protection. The Commonwealth jurisdiction is more limited than the United States jurisdiction; it does not extend to suits “between a State or the citizens thereof and foreign states, citizens, or subjects.”

Under the head of controversies “between two or more States” and “between a State and citizens of another State,” frequent attempts have been made to induce the Courts in America to extend the area of judicial cognizance, and to turn matters which in the condition of independent states are moral or political into matters of legal right. The jurisdiction of the federal courts has sometimes been thought to stand for all State disputes as the constitutional substitute for war and diplomacy, and consequently to extend to all disputes which might endanger the peace of the Union or the cordial relations of the States. But the Courts have declined to undertake the discussion of mere political issues, and have in general construed their jurisdiction as limited to cases in which, before the Revolution, jurisdiction was exercised by some Court. “The truth is that the cognizance of suits and actions unknown to the law was not contemplated by the Constitution when establishing the judicial power of the United States. Some things undoubtedly were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines. And yet the case of Penn v. Baltimore, 1 Ves. Sen., 444, shows that some of these unusual subjects of litigation were not unknown to the Courts even in Colonial times, and several cases of the like character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those Articles. The establishment of this new branch of jurisdiction seems to be necessary from the extinguishment of diplomatic relations between the States. Of other controversies between a State and another State or its citizens, which, on the settled principles


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of public law, are not subjects of judicial cognizance, this Court has often declined to take jurisdiction.”note

Thus the Supreme Court refused to entertain an application by the State of Kentucky for the extradition of a fugitive criminal,note and generally “has declined to take jurisdiction of suits between the States to compel the performance of obligations which if the States had been independent nations could not have been enforced judicially but only through the political departments of their governments.” When, in 1876, the State of South Carolina filed a bill in equity to restrain the Sate of Georgia and other persons from obstructing the free navigation of the Savannah River, it was left an open question whether a State must not aver and show that it will sustain some special and peculiar injury such as would enable a private person to maintain a similar action in another Court.note

In “matters between States” the question has been whether the matter is one of a kind fit for judicial determination at all; and the cases referred to show that generally the cause must be one already cognizable in some court, or at least one which would be cognizable if the defendant were a private person. This it would seem excludes from jurisdiction, not merely pure questions of policy, but those relations of international law which from their nature belong only to political entities, matters of power and government, and not of right and property.

“Matters between a State and a resident of another State” are partly defined by the answer just given, but further questions arise in regard to them. A State is an extensive owner of property, it makes contracts, and the


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acts of its agents may cause damage. All these are matters which give rise to legal relations between private persons, and those relations are enforced by the courts. But in such matters the State is an abnormal person, and its immunities are commonly expressed in our law by the maxim that “the king can do no wrong.” A common law remedy, the petition of right, enabled the courts to do justice between the king and his subjects, where the former was in possession of land, goods, or money of the latter who sought restitution or damages, and of late this remedy has been held to extend to cases of contract. It is, however, very far from applying to all cases in law or equity which would be justiciable if between subject and subject, nor when the case is justiciable does it follow that the Court in determining the liability of the Crown applies the same principles as in cases between subject and subject. It is well settled that in England the petition of right, whether at common law, or as regulated by statute, does not extend to torts.note The Crown has in the colonies the same immunities and is subject to the same procedure as in England. But in addition to the provisions of the common law, most of the colonies have made statutory provision for proceedings against the Crown, or some public officer or department on its behalf.note In varying degrees, proceedings for torts of some kinds may be brought against the government in all the colonies; the constant presence of the government in spheres which in England and America are occupied by private enterprise, would make the maintenance of the old doctrine in its integrity intolerable. It has indeed been suggested that the special circumstances of the colonies and the extended activity of the Government there might in


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itself be a reason for extending the common law remedy to torts.note

Where there is a right to pursue claims against the State under the State law—whether the common law or Statute—such claims will be cognizable by the High Court under sec. 75 whenever they are made by a resident in another State. This will be equally the case whether the proceeding is against the Crown, or against some nominal defendant appointed to represent the Crown or the colonial government. But in this respect, as in others, the jurisdiction given by section 75 is dependent on the existence of a right —it does no more than enable the High Court to adjudicate upon claims which are cognizable in the courts of the colony, or which may be converted into claims of right by some State law. And it must be remembered that it is now well settled that the colonial executive cannot lawfully or effectually bar the submission of claims to the Courts—that the petitioner may go behind the colonial executive and obtain a fiat from the Secretary of State.

The question whether the mere grant of jurisdiction in “controversies between a State and citizens of another State” deprived a State of its immunity from suit save with its own consent, was determined by the Supreme Court of the United States in 1793 in Chisholm v. State of Georgia.note The Court held, contrary to the view that had been urged by Hamilton in the Federalist and by John Marshall (afterwards Chief Justice) in the Virginia Convention of 1788, that an action did lie under the Constitution. A strong dissenting judgment was delivered by Iredell J., who held that as no action of the nature of that before the Court could have been sustained against the State before the Constitution was adopted, and as Georgia in common with other States, had not provided by law for any compulsory proceedings against itself, the claim could not be made in the Supreme Court of the United States. The judgment of the Court led immediately to the Eleventh Amendment of the Constitution to the effect that “the judicial power of


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the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.” Later judicial expressions have confirmed the views of Iredell J., and the ratio decidendi of Chisholm v. Georgia was expressly disagreed with by the Supreme Court in 1889.note

But unlike the Constitution of the United States, the Commonwealth Constitution confers an important power on the Legislature in respect to proceedings against State or Commonwealth. By section 78, “The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the judicial power.”

This section was the subject of a keen debate in the Convention at Melbourne;note and there was great difference of opinion as to the meaning of a “right to proceed.” It is obvious that the section goes far beyond the regulation of procedure; that it implies the giving of a remedy against the State in certain cases where the State law has provided none. It may be conceded that it enables the Commonwealth Parliament to make laws giving rights against the States under matters within the legislative power. But as has been seen, the judicial power is not merely commensurate with the legislative power; it extends to causes by reason of the parties concerned. “Within the judicial power” are “all matters” in which the Commonwealth is a party, “between States,” and “between a State and a resident in another State”; and in respect of such matters the Parliament may confer “a right to proceed.” The governing word “matters” must receive here the same interpretation as was given to it above; and accordingly it would seem that the Parliament cannot give a right to proceed against a State save in respect of controversies “which on the settled principles of public law are subjects of judicial cognizance.” It may in the cases prescribed


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deprive a State of the benefit of the doctrine that “the King can do no wrong”; deprive it of its immunity from suit and make it liable for the acts of its servants and agents wherever an individual would be liable, e.g. for tort. But the Parliament could hardly create entirely new causes of liability; the words “right to proceed” are not apt to describe substantive rights unconnected with any subsisting liability. Thus, it is conceived that the Parliament could not under this section provide that the State of New South Wales should be answerable in damages to a riparian owner on the Murray or the Darling in South Australia for waters abstracted to his hurt by the Government of New South Wales as a riparian owner on the upper river, and that even though under the law of New South Wales, a riparian owner in New South Wales might have an enforceable claim against the Government for infringing his riparian rights. Still less, it would seem, could the Parliament give a right to proceed for breach of political duties by the State, as for failure by an efficient police to protect non-residents against mob violence.

The same principles will in general govern the right to proceed in matters between State and State. The Parliament may get rid of the obstacle, which arises from the fact that the Crown personifies each; but it could not create new rights of a substantive kind. The Courts may be called on some day to determine whether the powers of the riparian States over the rivers are similar to the rights of individual riparian owners; and it is possible that under section 78 the Parliament might make a law that this question—which obviously might arise in litigation between private persons resident in New South Wales and South Australia—might be directly raised in proceedings between the States. But the Parliament could not, under section 78, declare what are the respective rights of the States in the rivers, whatever may be its power under other parts of the Constitution.

“Matters in which the Commonwealth is a party” would include proceedings in which the Commonwealth and a


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State are disputants. The controversies which have arisen in Canada between the Dominion and the Provinces as to proprietary rights in territory are typical of matters between the Governments which are fit for judicial determination, and it is clear that the Parliament may provide that they may be raised directly in a suit between Commonwealth and State, and not merely in actions between their respective grantees, or between one Government and the grantee of the other.note Again, the financial relations between Commonwealth and States established by the Constitution are akin to proprietary rights and contractual obligations, and they, too, might be made the subject of judicial determination under a “right to proceed.” It may be that section 78 goes further; and that under it the Parliament may provide for direct litigation between Commonwealth and State of questions as to their respective powers which are in any way capable of judicial determination. It is true that in the United States it is held, as already observed, that the judicial power does not extend to the consideration of such questions, except as incidental to matters of right.note But the question of the validity of an Act of Parliament, which may arise any day in the course of litigation, though it may be an abstract question, is, from its nature, not purely a question for the cognizance of the political departments.

5. In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. —The power to command or prohibit Federal officers belongs in the United States exclusively to the federal jurisdiction;note and the reasons which have denied jurisdiction to State Courts there apply with equal force in the Commonwealth. The United States Constitution does not expressly refer to the matter, leaving it to the Legislature and the Courts


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to work out appropriate remedies and the incidents of judicial power; and it has not been doubted that Congress, in distributing the judicial power, may constitute Courts with power to issue these writs against executive officers. The cases in which the writs will issue are well defined by rules of common law. They will never issue to direct or control a discretion in the officer; they are reserved for cases in which “a plain official duty requiring no exercise of discretion is to be performed, and performance is refused,” or when “a duty is threatened to be violated by some positive official act.” In either case the person claiming the benefit of the writ must show an injury for which an adequate compensation cannot be had in damages; and he must show not merely that there is an official duty in the officer, but that the duty correlates a right in the applicant.

The reason for the special inclusion of this provision in the Commonwealth Constitution is the intention that the writs shall be within the original jurisdiction of the High Court. In the United States the Supreme Court decided in the famous case of Marbury v. Madison (1 Cranch, 137)— the first which declared an Act of Congress to be unconstitutional—that the original jurisdiction of the Supreme Court was limited by the Constitution to “cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party,” and could not be added to by Congress. It may be added that the provision in the Commonwealth Constitution in no way affects the class of cases in which the writs will issue.

6. Arising under this Constitution or involving its interpretation.

7. Arising under any laws made by the Parliament.— Cases arising under the Constitution, says Story (sec. 1647), are “such as arise from the powers conferred, or privileges granted, or rights claimed, or protection secured, or prohibition contained in the instrument itself, independent of any particular statute enactment. … Cases arising under the laws of the United States are such as grow out of the


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legislation of Congress, within the scope of their constitutional authority, whether they constitute the right, or privilege, or claim, or protection, or defence of the party in whole or in part by whom they are asserted.” To be within the purview of the clause it is not necessary that the case should be one in which a party comes into Court to demand something conferred upon him by the Constitution or a law made thereunder; it is sufficient that the correct decision of the case depends upon the construction of either.note

It has already been pointed out that generally the State Courts have jurisdiction over the class of cases here referred to as an incident of State power, notwithstanding that the matter is one of Commonwealth judicial power; and this State jurisdiction will remain even after the Parliament has granted jurisdiction over the subjects to federal courts, unless it has expressly or impliedly made the federal jurisdiction exclusive. Thus, in the United States, a federal officer who has acted under the alleged authority of the Constitution or an Act of Congress may be prosecuted or sued in a State Court for a crime or tort, and will have to justify his authority there. “Recovery may be had in a State Tribunal wherever the local laws are violated in obedience to an injurious or unconstitutional mandate from the general (i.e. federal) Government, and there is no clause in the Constitution or in the Acts of Congress rendering the jurisdiction of the federal courts exclusive.”note But this is limited by the necessity of preserving the distinct and independent character of the Government of the United States. As has been seen, no mandamus or prohibition can issue to federal officers from State Courts; and it is now established that “a State Court can not issue any process tending to suspend the execution of an Act of Congress or take goods or persons that have been seized by a federal officer under an authority from the general (i.e. the federal)


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Government.”note Wherever it appears that a party is alleged to be illegally confined within the limits of a State, and it appears that he is confined under the authority, or claim, and colour of the authority of the United States, the State Court should refuse a writ of habeas corpus;note if the detention be illegal a federal court will upon application order a release.note

A right arising under federal law may be pursued in a State Court unless the Parliament has indicated that it shall be pursued in the federal court alone; and it seems not less clear that an offence committed by breach of a federal law may be the subject of a prosecution in a State Court. The objection sometimes heard in the United States that “crimes were punishable only by the Government against whom they were committed, and the State Courts could not enforce the penal laws of the United States or any government but their own,”note is based upon a false analogy; the federal laws are in the territory of the States not foreign but domestic laws, and State jurisdiction over an offence against the Commonwealth is in no way inconsistent with the doctrine of the territoriality of crime.note The provision of section 80note does not appear to affect the


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matter. It is true that the Courts of the Commonwealth will hardly execute the penal laws of the States, but they are courts of limited jurisdiction, and such laws are not among the matters committed to them. The power to entertain “controversies between States and citizens of another State” in the United States Constitution has been held to apply only to such controversies as, before the Union, would have been cognizable in another State, and these did not include prosecutions by or penal actions of a State.note

8. Of admiralty and maritime jurisdiction.—This again follows the Constitution of the United States, as to which Story observes that “the word ‘maritime’ was doubtless added to guard against any narrow interpretation of the preceding word ‘admiralty.’ ” The power of the Parliament under this provision must, it would seem, be read in connexion with the Colonial Courts of Admiralty Act, 1890, so far as it is not inconsistent therewith. By that Act, the jurisdiction is generally that of the Admiralty Division of the High Court in England, and the Colonial Court shall have the same regard as that Court to “international law and the comity of nations” (section 2): and no colonial law shall confer any jurisdiction which is not conferred by the Act upon a Colonial Court of Admiralty (section 3).

9. Relating to the same subject matter claimed under the laws of different States.—This covers cases in which there are competing claims of the class described as to ownership or possession. It is more extensive than the provision in the United States Constitution as to claims of land under the grant of different States.




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The Distribution of Federal Jurisdiction.

By section 77, with respect to any of the matters mentioned in sections 75 and 76, the Parliament may make laws as follows:

i. “Defining the jurisdiction of any federal court other than the High Court.”—The assignment of jurisdiction to any but the High Court is left entirely to the Parliament. The original jurisdiction granted to the High Court by section 75, is not necessarily exclusive;note whether it is exclusive will depend upon the action of the Parliament under this sub-section and the next. Nor does the power of the Parliament, under section 76, to confer original jurisdiction on the High Court in the matters therein specified, at all limit the power of the Parliament to confer original jurisdiction exclusive or concurrent at its pleasure, upon other federal courts. Section 76 is essentially an enabling section, excluding the implication which might otherwise arise, that the High Court was not to be burdened with original jurisdiction, except in the cases provided by the Constitution itselfnote in section 75.

ii. “Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is vested in the Courts of the States.”—“Any federal court” includes of course the High Court. In most of the matters in section 75 and 76, the State Courts as such have jurisdiction; in such cases they may be deprived of jurisdiction by the Commonwealth Parliament, but until deprived, it “belongs to” them as of course, though not as of federal jurisdiction.note But some others—mandamus against officers of the Commonwealth,note and suits against the Commonwealth or another State—lie outside the ordinary judicature of the State; and accordingly a State Court can act only when


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jurisdiction is “vested in” it by the Commonwealth Parliament.

iii. “Investing any Court of a State with federal jurisdiction.”—This power is co-extensive with the power to establish and define the jurisdiction of federal courts. It may be exercised both by conferring upon the State Court jurisdiction in matters over which it has otherwise no jurisdiction at all, and by committing to it federal jurisdiction in those cases where it had merely State jurisdiction.

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