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Is Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) a law "made by the Parliament" within the meaning of s76(ii) of the Constitution?
16 As will appear, in my opinion it is necessary and appropriate only to consider the second of these matters.
17 Section 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) provides:
9(1) Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State relating to cross-vesting of jurisdiction.
(2) The Supreme Court of a Territory may:
- (a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction; and
- (b) hear and determine a proceeding transferred to that court under such a provision.
(3) The Federal Court or the Family Court may:
- (a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and
- (b) hear and determine a proceeding transferred to that court under such a provision.
(emphasis added)
Submissions
18 In relation to the question whether s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) validly conferred jurisdiction on the Federal Court of Australia, by his revised submissions the respondent contended that it had been repeatedly said that ss 76 and 77 of the Constitution are exhaustive. With reference to the language in s 77(i) of the Constitution, a law "defining" the jurisdiction of the Federal Court must be a law that sets out that jurisdiction with some specificity. The relevant provision is:
77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws:
(i) defining the jurisdiction of any federal court other than the High Court;
(ii) …;
(iii) ….
19 The respondent submitted that s 9(3) could not be regarded as defining the jurisdiction of the Federal Court with respect to any of the matters in ss 75 and 76 of the Constitution. It
