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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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