5.2 Constitutional jurisdiction PDF

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5.2 Constitutional jurisdiction...

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3/22/2021

Lecture5.2 JurisdictionundertheConstitution andJudiciaryAct

70617:AdministrativeLaw Dr EllenRock

©EllenRock

Constitutional jurisdiction

©EllenRock2021

1. Legislativeprovisions

2. ‘Matter’

3. Writs/remedies

4. ‘OfficeroftheCommonwealth’

5. Additionalsource?

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Constitutional jurisdiction 1. Legislativeprovisions

JudiciaryAct1903 (Cth)

Constitution s:

the High Court shall have original jurisdiction.

39B (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

HighCourt

FederalCourt

… (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

Constitutional jurisdiction

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2. ‘Matter’

Whatisa‘matter’?

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Constitutional jurisdiction  







s(1921)29CLR257

Facts

• Constitution s 76 – Parliament can confer original jurisdiction on the High Court in ‘matters’ • Parliament amended the 3 (Cth) to confer jurisdiction to “hear and determine…any question of law as to the validity of any Act…” • Cth Attorney-General queried the validity of the Navigation Act 1912 (Cth) • Victorian Attorney-General challenged the validity of the Judiciary Act provisions

Issue

• Were the provisions of the Judiciary Act valid?

No

• It was suggested in argument that " , and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention… (at 265)

Decision

• In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court (at 265) • We can … to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law (at 267)

Constitutional jurisdiction 

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;ExparteAustralianCatholicBishopsConference (2002)209CLR372

Facts

• Legislation restricted IVF procedures to women in relationships • A doctor wanting to treat a single woman sought a declaration that the legislation was inconsistent with the Sex Discrimination Act 1984 (Cth) • The Federal Co • The Catholic Bishops Conference (who had made submissions in the case), sought to challenge the validity Federal Court’s decision

Issue

• Did the High Court have jurisdiction to hear the challenge?

Decision

No

• There was a ‘matter’ in the original case because the doctor had a right to know whether the n contrast: “neither the Bishops nor the Episcopal Conference seek to dispute the valid operation of the State law; they support the law and have no interest in relief from the obligation to observe its requirements” (at 408) • While the Conference was significantly concerned by the decision, “those concerns and objectives … a claim by them in this present litigation … In short, the controversy between these parties and the respondents to these applications is …

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Constitutional jurisdiction 3. Writs/remedies

… in which a writ of Mandamus or prohibition or an injunction is sought …

Entitlement

• Entitled to seek, not awarded

Other remedies?

Week6

• Certiorari, declaration – ancillary

Jurisdictional error

• Some remedies only available if an error is jurisdictional

Weeks 6– 7

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Constitutional jurisdiction 4. ‘OfficeroftheCommonwealth’

Ministers

Governor‐ General

Commonwealth police

Publicservants

FederalCourt judges

Tribunal members

Stateofficials exercising federalpower

Entitiesatarms’ length(egthe ABC,ATSIC)

NOT Public corporations

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Constitutional jurisdiction

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5. Additionalsource?

Constitution 75 In all matters: … (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; the High Court shall have original jurisdiction.

HighCourt

“The authority given by s 75(iii) in respect of matters in which the Commonwealth is a party was supplemented by s 75(v) which provides for writs of mandamus and prohibition, and for injunctions, against officers of the Commonwealth.” CommonwealthvMewett (1997) 191 CLR 471, 547

“Section 75(v) may not add to the jurisdiction conferred by s 75(iii).” ReRefugeeReviewTribunal;Exparte Aala(2000) 204 CLR 82, 92

BUTconsiderimplications ofjurisdictionalerror

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