In the High Court in 1980 an “”arid jurisdictional dispute” was unfolding. Those were the words of Justice Anthony Mason, later Chief Justice.
It was not an arid dispute for me, reporting. To the contrary, it was quite a juicy little number.
It was a family-law custody matter. A husband, wife and a child. The husband was determined to keep the matter in the Family Court. The wife wanted it removed to the state Supreme Court of NSW.
The wife asserted that the child – shock, horror – was not the child of the husband but of someone else with whom she had been having an affair.
The wife said the Family Court’s jurisdiction was purely federal. It lay in the word’s of the Constitution. The Commonwealth Parliament had power to make laws with respect to “”divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.”
The critical words were “”in relation thereto”. It was not a general power to make laws about parental rights, only a power to make laws about parental rights flowing from matrimonial causes and divorce. It had to be a child of the marriage, of the husband.
The Family Law Act attempted to cover all children associated with divorcing parents, but most were held invalid as beyond the constitutional power.
The wife wanted the state Supreme Court to have jurisdiction because it could order blood tests. The Family Court at the time could not. If she could force her husband into a blood test she thought he could be shown not to be the father and his troublesome custody claim would be defeated.
Around the same time other arid jurisdiction disputes abounded. People who sought relief for deceptive conduct that breached a contract were shunted between the Federal Court dealing with trade practices and the state courts which had jurisdiction over general contract law. Similarly with companies cases involving the winding up of a company (federal) and questions of negligence by company officers (states).
Things have moved a bit since 1980 (aside from the fact that the Family Court can now order DNA tests).
In 1987 all the states and the Commonwealth put aside a decade of petty jealousy. They no longer clung to the testosterone-induced feeling of Our Courts are Better than Your Courts. They passed cross-vesting legislation.
The cross-vesting legislation can be summed up as follows: If two people are having a dispute one court will deal with the lot. Secondly, the court where the dispute first lobs will make a decision about which court (federal or state, and which state) is best to hear the case.
This saved litigants untold inconvenience and cost in legal fees.
Things went well until Thursday when the High Court made the silliest decision it has made in its 96-year history. (Only six people would disagree with that statement – the six judges who made the decision.)
The High Court struck down the cross-vesting legislation. This legislation has had 12 years of support by governments of all persuasions and support from parliaments of every state and the Commonwealth. It was unique.
On Thursday the High Court ruled that the Constitution does not give state parliaments power to give jurisdiction on state-law matters to federal courts. Nor does the Constitution give federal courts the power to receive the jurisdiction.
It means many cases involving two sorts of law will have to be heard by two courts.
The federal Attorney-General, Daryl Williams, and his state counterparts have agreed to legislate to ensure all the cases heard by the Federal and Family Courts since 1987 are valid and that they will legislate to fix the problem.
They’re dreaming.
That is precisely what on Thursday the High Court said they could not do. The federal and state parliaments can legislate until they are blue in the face with whatever form of words they like, the legislation will simply be invalid. The Constitution, according to the six judges, point blanks says that these parliaments have no power to do such a thing.
But it is a constitutional no-go area. It will require more than mere legislation of all Parliaments to reflect the will of the Australian people. It will require constitutional change.
The seventh judge, Justice Michael Kirby, sensibly said the Constitution did not expressly prohibit the states giving and the feds receiving state jurisdiction, so there was no reason to bar it. The six majority judges said the words of the Constitution defined federal jurisdiction. The words specifically gave the Federal Parliament power to vest federal jurisdiction in the state courts, but the mere silence about vesting the other way was proof that the Constitution prohibited it.
Originally, there was only one federal court, the High Court. The Constitution (and subsequent developments) have made it the final court of appeal on state matters coming from the state supreme court. In 1976 the Family Court and the Federal Court of Australia were set up.
They have developed expertise. The Federal Court is expert in federal matters like bankruptcy, tax, copyright, trade practices. In the past 23 years, state courts have lost expertise in these areas.
But many disputes cross federal and state law. One of the four cases decided on Thursday illustrates the point. It was about a man injured at work at a service station (state law) owned by partners (partnership is state law) one of which went bankrupt (federal law). The man’s compo was at stake because of actions by a firm of solicitors (state law) and a bankruptcy official (federal law).
But the bloke wants one court to tell him if he gets any compo and who pays it.
Sure, it might have been easier not to have any federal courts. But with the complexity of modern life, a more expert body that could develop a coherent body of law in quite specialised areas was needed.
The case now proves that the Constitution is broke and it needs to be fixed.
Emergency legislation will inevitably be invalid.
We are having a republic referendum in November. A second question on federal jurisdiction would be a good idea. It would allow the states to vest state jurisdiction in federal courts and vest power in the federal courts to receive it. There is a good Yes record on technical matters, especially if all parties from all states, territories and the feds agree.