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...jurisdiction of federal courts. His Honour outlines the events leading to the establishment of the Federal Court and its subsequent growth and development as a national trial and appellate court of general jurisdiction in civil matters arising under federal law. His Honour discusses the Court's procedural reforms, its distinctive model of self-administration, and the growth of its jurisdiction consequent upon the large expansion of areas of Commonwealth legislative interest.]
CONTENTS I Introduction II An Historical Overview III Why a Federal Court? IV The New Court and Its Judges V The Early Years VI An Evolving Jurisdiction VII Native Title VIII Migration Cases IX The Federal Court and the Development of Federal Law X Appellate Jurisdiction XI Procedural Reform: Case Management, the Individual Docket System and Specialist Panels XII Self-Administration XIII Innovations XIV The Federal Court and Its International Relationships XV Conclusion
I INTRODUCTION
An invitation to survey the first 30 years of the Federal Court of Australia for nearly half of which I was a practitioner before the Court and the remainder its Chief Justice--presents something of a challenge, particularly if appropriate deference is given to the usual limits for articles in the Melbourne University Law Review. So, the following consideration of the creation of the Federal Court of Australia and its first 30 years must necessarily be selective and, in parts, very general. Given that an entirely new court was created and that its jurisdiction has continued to expand with the expansion of Commonwealth legislative activity, it is hardly surprising that there is much to be said. The dynamic legal, economic, political and social environment in which the Court has exercised its jurisdiction over the past 30 years has ensured that the period has been one of continuous development and great change.
To keep this essay within manageable limits I have not attempted to examine the Court's jurisprudence either generally or in its areas of specialist jurisprudence. This may be found in the standard texts in fields such as administrative, tax, intellectual property, workplace relations, native title, trade practices and corporations law. In areas of international law, notably the law with respect to the Convention Relating to the Status of Refugees ('Refugees Convention'), (1) the Court's jurisprudence appears in international works, reflecting its substantial contribution, along with the High Court, to the development of this important area of law.
II AN HISTORICAL OVERVIEW
There is an interesting coincidence between the 30th Anniversary of the Federal Court of Australia, which first sat on 7 February 1977, and the 50th Anniversary of the Melbourne University Law Review, which was first published in July 1957. As the passage of time has shown, the first publication of the Melbourne University Law Review was an important event in Australian legal scholarship and legal publishing. Another important event occurred at the University of Melbourne that month. Edward Gough Whitlam, a backbench member of federal Parliament, delivered a lecture in which he proposed the establishment of a federal circuit court. (2) This was one of the earliest, it" not the first, public proposals for a federal superior court of broad, non-specialist jurisdiction.
The world of Australian law and lawyers in which the first issue of the Melbourne University Law Review was published was remarkably different in many respects, particularly in relation to the content of federal jurisdiction, to the world as it had come to be only 20 years later when the Federal Court of Australia was created by the Parliament in the exercise of its powers under Chapter III of the Constitution.
In 1957 the nature and content of federal jurisdiction would not have been seen, as it should be seen today, as an indispensable element of any practitioner's understanding of Australian law. It was seen then as a dry and arid field of study, not least by the law students of that time. Sir Zelman Cowen's great work on the subject, Federal Jurisdiction in Australia, had yet to be published. (3)
Federal jurisdiction was of course exercised routinely and frequently by the courts of the states, as it still is. Under the well-known arrangements contemplated by Chapter III of the Constitution, the Parliament had, in 1903, invested state courts with an almost complete measure of federal jurisdiction. The so-called 'autochthonous expedient' (4) served well a country that, even in 1957, had a population of less than 10 million people and in which communications were still relatively slow and expensive. An articled clerk in a solicitor's office in those days, for example, would have required the authorisation of a principal to make what was called a 'trunk call' and such a call would, most likely, have been arranged, for clerk and principal alike, by a telephonist. Travel between Melbourne and Sydney was still mostly by rail, with the need to change trains at the border.
The practice of the law, whether at the Bar or as a solicitor, was state-based. National practice was virtually unknown and generally quite impossible. At the very highest levels of the Bar counsel could appear before the High Court of Australia, a federal court, wherever it sat and there was also the possibility of interstate practice for a somewhat larger number of practitioners in the specialised field of federal industrial law before the Commonwealth Industrial Court and the Commonwealth Conciliation and Arbitration Commission. Another specialist federal court, the Federal Court of Bankruptcy, offered some possibility of interstate practice but since its work was confined largely to New South Wales and Victoria that possibility was very limited.
Although the exercise of power by the Parliament of the Commonwealth had expanded into new fields during and after the Second World War and there had been a fundamental rearrangement of the financial relationships between the Commonwealth and the states, (5) the extent of federal civil jurisdiction in 1957 remained quite limited. Whilst the Commonwealth had entered the field of matrimonial causes, its laws in that area were still limited in scope. There was no general Commonwealth law with respect to corporations or consumer protection and there was certainly no contemplation in 1957 of any federal legislation for the protection of human rights by, for example, prohibiting discrimination on the grounds of sex, marital status, race or disability, or for the protection of the natural environment or Australia's heritage.
Federal administrative law was essentially within the exclusive original jurisdiction of the High Court. The actions of officers of the Commonwealth could be challenged in the High Court in its original jurisdiction under s 75(v) of the Constitution but the process was seen as difficult, expensive and, as a practical matter, rarely available to the ordinary citizen. There was only limited provision for merits review of administrative decisions.
In 1957 there was some recognition of the fact that the roles of the High Court of Australia as a federal court of original jurisdiction and as the court of first appeal from trial courts of the territories were inappropriate and an undue burden upon it, and that these roles detracted from its primary functions as interpreter of the Constitution and final court of appeal. Nevertheless, Whitlam's proposal for a new federal court was no doubt seen as very farsighted and possibly even radical at the time. He recounts that he later 'developed the idea on two occasions in the House, and at the Eleventh Australian Legal Convention in 1959.' (6)
By 1963, the idea of a new Federal Court had gained some ground. At the 13th Australian Legal Convention, Maurice Byers QC (7) and Paul Toose presented a paper advocating a new federal superior court to relieve the High Court of the burden of its original jurisdiction, to reduce the volume of its appellate work, and also--radically--to remove federal matters from state courts. It was part of the federal bargain, they said, that in the early years the state courts would accommodate the increasing load of federal work but that, equally, the
federal legislature should, when necessary, set up federal courts other than the High Court to do federal work. It was never intended that one or two of the methods provided by the Constitution for the exercise of federal judicial power should be used virtually to the exclusion of the third. (8)
During the discussion of the paper, (9) the Commonwealth Solicitor-General, Sir Kenneth Bailey, announced on behalf of the Commonwealth Attorney-General, Sir Garfield Barwick QC, that the latter had Cabinet authority 'to design a new federal Court with a view to consideration by Cabinet for approval for legislative action', (10) Sir Garfield subsequently prepared a paper developing the proposal for a new federal superior court. (11) As the paper was going to print, as the first article in the first edition of the Federal Law Review, Sir Garfield was appointed Chief Justice of the High Court.
By the early 1970s the creation of a new federal superior court had gained general support from both sides of politics. Three Bills for the establishment of such a court were, however, unsuccessful. This result was, it would seem, attributable to differences over the content of the jurisdiction of the proposed court and its size, rather than the merit of establishing a new federal court at all.
The first Bill, proposed by the then Commonwealth Attorney-General, Sir Nigel Bowen QC, lapsed when the Parliament was dissolved in 1969 for the general election held that year. In 1972, the Australian government announced that it had decided that the proposal 'should not be proceeded with'. (12) The idea was revived with the change of government and in 1973, the Superior Court of Australia Bill 1973 (Cth) was introduced by the new Attorney-General, Senator Lionel Murphy QC. This Bill was opposed by the Opposition on various grounds and defeated in the Senate. A subsequent Bill to the same effect was also defeated. These rejections of the government's Bills prompted Prime Minister Whitlam to ask whether he might 'congratulate the State Supreme Court Judges on their unparalleled skill as lobbyists'. (13)
In 1976, the government having changed again, the Federal Court of Australia Bill 1976 (Cth) was introduced by the Commonwealth Attorney-General, Robert Ellicott QC. Ellicott had been a critic of the earlier Superior Court of Australia Bill 1973 (Cth) but now advocated support for a not dissimilar Bill on the primary ground that the new court would relieve the High Court of some of its non-constitutional workload. (14) Sir Garfield Barwick held serious concerns about the workload of the High Court, which he expressed in his State of the Australian Judicature address in 1977, reporting that it 'had become too heavy' and observing that, in any case, much of the work of the Court in its original jurisdiction was inappropriate for a final court of appeal. (15)
In the second reading speech for the Federal Court of Australia Bill 1976 (Cth), Ellicott said that the earlier Bills 'would have removed from the State courts the bulk of the federal jurisdiction exercised by those courts and greatly weakened the status of those courts and the quality of the work dealt with by them.' (16) He said that, by contrast, this Bill would restructure the federal judiciary by consolidating the Australian Industrial Court and Federal Court of Bankruptcy and would relieve the High Court of some of its workload. It would not have the significant impact on the state Supreme Courts that the previous proposals would have had. This was because the proposed jurisdiction was much narrower, restricted to 'well-defined fields of federal and Territory law' and not entering 'any field of original jurisdiction now exercised by State courts.' (17)
The Bill was passed and so the Federal Court of Australia was created as a 'superior court of record and ... a court of law and equity' (18) by the Federal Court of Australia Act 1976 (Cth). The Act received royal assent on 9 December 1976.
III WHY A FEDERAL COURT?
What were the circumstances under which the then novel ideas of Whitlam, Byers and Toose in the late 1950s and early 1960s became the accepted reality of the late 1970s?
There are several important factors which seem to me to be essential to an understanding of the history and development of federal courts in Australia. That history commences in 1903 with the establishment of the High Court of Australia, as mandated by Chapter III of the Constitution, and continues in 1904 with Parliament's creation of the Commonwealth Court of Conciliation and Arbitration.
The first point is one that seems to have been overlooked by those who questioned the necessity for the new Federal Court. The point is that there have always been matters of special federal concern that the Parliament has determined should remain within the exclusive jurisdiction of a federal court, whether the High Court of Australia or a court created by the Parliament under Chapter III.
The earliest and most obvious area of special federal interest and concern was the prevention and settlement, by conciliation and arbitration, of industrial disputes extending beyond the limits of any one state. (19) The Commonwealth Court of Conciliation and Arbitration, of which a judge of the High Court was the first President, (20) was given exclusive jurisdiction over matters calling for the exercise of judicial power in this field, namely the interpretation and enforcement of federal awards and the regulation of registered organisations. (21)
When, following the Boilermakers' Case (22) in 1956, it became necessary to divide the judicial and arbitral functions in federal industrial law and the Commonwealth Industrial Court was established, the same pattern was continued. When the jurisdiction of the Australian Industrial Court, as it was then called, was transferred to the Federal Court of Australia in 1976, the core elements remained exclusively within the jurisdiction of the Federal Court. Indeed, the Federal Court was established with an industrial division--now long gone. Today, the Workplace Relations Act 1996 (Cth) continues to confer jurisdiction upon the Federal Court and the Federal Magistrates Court, 'exclusive of the jurisdiction of any other court created by the Parliament or any court of a State or Territory', in relation to 'an act or omission for which an organisation or member of an organisation is liable to be sued, or to be proceeded against for a pecuniary penalty' under that Act. (23)
Similarly, but less obviously, the Parliament of the Commonwealth has always seen certain elements of competition law as being matters of special federal concern. The Australian Industries Preservation Act 1906 (Cth), an Act described in its preamble as for 'the Preservation of Australian Industries, and for the Repression of Destructive Monopolies' and based on the Sherman Act of the United States, (24) appears to have conferred exclusive jurisdiction, including a criminal jurisdiction, upon the High Court. (25) Recovery was by way of an action for treble damages before a Justice of the High Court. (26) The Attorney-General might seek an injunction in the High Court (27) and offences, not being indictable offences, were to be tried before a Justice of the High Court without a jury. (28) The provisions concerned with the prevention of dumping and unfair competition purported to confer an investigative jurisdiction upon Justices of the High Court. (29)
In 1957, the Australian Industries Preservation Act 1906 (Cth) was essentially a dead letter, (30) but the interest of the Commonwealth Parliament in the field was revived with the passing of the Trade Practices Act 1965 (Cth), which conferred exclusive jurisdiction upon the Commonwealth Industrial Court. (31) Under its successor, the Trade Practices Act 1974 (Cth) ('TPA'), exclusive jurisdiction was conferred upon the 'Superior Court of Australia', (32) with the Australian Industrial Court exercising this jurisdiction (33) until 1977 when it was transferred to the Federal Court of Australia. The historical concern to have federal matters of this nature dealt with in one of the Commonwealth's courts thus continued. Indeed, initially, the Federal Court had exclusive jurisdiction not only in respect of the competition law provisions in Part IV of the TPA but also in respect of the new consumer protection provisions, including s 52, a provision of considerable importance in the history of the Federal Court and the growth of its jurisdiction, to which I will need to return.
It was, of course, something of an oddity that an important new area of specialised non-industrial Commonwealth law should be placed within the jurisdiction of an industrial court. Having said this, however, it is immediately necessary to note that there were some very distinguished members of that Court who laid the foundations for much of the later law. The work of Sir Reginald Smithers was especially notable.
Another important field of special federal concern is in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth--the original jurisdiction conferred on the High Court by s 75(v) of the Constitution. From 1903 to the present time, s 38 of the Judiciary Act has provided that the jurisdiction of the High Court is to be...
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