s76 exhaustively define the kinds of federal matters that federal courts can

S76 exhaustively define the kinds of federal matters

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s76 exhaustively define the kinds of federal matters that federal courts can determine. The states had no power to vest other matters in federal courts, and the Cth had no power to accept them: Re Wakim . Made somewhat simpler by the concept of accrued jurisdiction . Federal judicial power is only over ‘matters’ – thus no advisory opinions on law can be asked for as in Canada – however parties can ‘attach’ claims to the same ‘matter’ if they arise out of the same set of facts as the federal claims and it was ‘the matter’ over which the court had jurisdiction: Philip Morris v Adam P Brown APPELLATE JURISDICTION The High court can hear appeals ‘with such exceptions and subject to such regulations as the Parliament prescribes’ from ‘judgments, decrees, orders and sentences’ of: s73 1. Its own original jurisdiction 2. Any other federal court, or court exercising federal jurisdiction 3. Supreme Courts of any state, or any other court to whom an appeal lay to PC in 1901 ORIGINAL/CONFERRED JURISDICTION The High Court shall have original jurisdiction in all matters: s75 i. Arising under any treaty; ii. Affecting consuls or other representatives of other coutries; iii. In which the Cth, or a person suing or being sued on behalf of the Cth, is a party; iv. Between States, or between residents of different States, or between a State and a resident of another State. 65 | P a g e
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Nick Jackman Sem 1 2014 v. In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The parliament may make laws conferring original jurisdiction on the HCA in any matter: s76 i. Arising under this constitution, or involving its interpretation ii. Arising under any laws made by the Parliament iii. Of Admiralty and maritime jurisdiction iv. Relating to the same subject-matter claimed under the laws of different states. Importantly, the HC has been granted constitutional powers under the Judiciary Act 1903 s30, the federal courts under s39B, and ALL state courts under s39(2). If there is a constitutional issue, the court must not proceed until A-G’s are advised and given reasonable time to reply: s78A and 78B Other matters under s76(ii) are usually vested in Federal Court: JA s39B Parliament also has the power, with respect to the above matters, to make laws: s77 i. Defining the jurisdiction of any federal court other than the High Court; ii. Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the states; iii. Investing any court of a State with federal jurisdiction COURT CANNOT HAVE TOO MUCH NON-JUDICIAL POWER A GRANT OF NON-JUDICIAL POWER MUST BE INCIDENTAL TO ITS JUDICIAL POWER Chapter 3 courts are not totally prohibited from exercising non-judicial power – the HCA in the Boilermaker’s case held that “The Constitution does not allow the use of courts established by or under Chapter 3 for the discharge of functions which are not in themselves part of the judicial power and are not auxiliary or incidental thereto”. Despite some
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