Creation of the Federal Court: A reflection
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Sir Francis Gerard Brennan AC KBE GBS Image courtesy of the High Court of Australia |
This article is the text of a speech the Hon Sir Gerard Brennan AC KBE GBS delivered on the 40th Anniversary of the Federal Court of Australia at the Law Courts Building in Queens Square, Sydney, on 6 February 2017. It has also since been published in the Australian Law Journal, Vol 91, Pt 6.
The first sitting of the Federal Court of Australia 1977
Image courtesy of the Federal Court of Australia
Creation of the Federal Court1
– A reflection2
The Constitution provides3 that the Parliament can invest Commonwealth judicial power in the Supreme Courts of the States, as well as in the High Court and in federal courts.
In the early days of the Federation it would have been economically and practically impossible to create federal courts exercising broad federal jurisdiction and the 'autocthonous expedient'4 of vesting the general body of federal jurisdiction in the Supreme Courts of the States became the norm.
Some matters were reserved for the exclusive jurisdiction of the High Court and the Commonwealth Court of Conciliation and Arbitration was created in 1904.5 The volume of litigation was modest at the beginning of the 20th century, so the High Court was able to exercise the original jurisdiction vested in it, either by the Constitution or by laws enacted by the Parliament, without impairing its ability to exercise its appellate and constitutional jurisdictions.
State Courts had sufficient capacity to accept jurisdiction vested in them by federal laws without impairing their ability to dispose of cases under State law.
Until the 1960s, lawyers regarded the Australian judicial hierarchy as substantially linear, with the High Court at the apex directly above the court systems of the States and Territories.
In 1963, Paul Toose QC and Maurice Byers QC revived professional interest in the idea of a federal superior court exercising jurisdiction under federal law.6 At the Thirteenth Australian Legal Convention, they pointed out that increases in both the volume and complexity of litigation were imposing a heavy burden on the Justices of the High Court in both original jurisdiction and appellate matters and a heavy burden on State Courts exercising federal jurisdiction. In several areas, the vesting of federal jurisdiction in State or Territory Courts seemed to the authors to be inappropriate.
The solution they proposed was the creation of a new federal court, taking over the jurisdiction of the Federal Court of Bankruptcy, the Commonwealth Industrial Court, the Supreme Courts of the Territories (other than Papua New Guinea), and the federal jurisdiction conferred on the Supreme Courts of the States. It would be invested with the same original jurisdiction as the original jurisdiction vested in the High Court under s 75 and s 76 of the Constitution. The authors suggested that the new court should have appellate jurisdiction in these matters, thus providing an intermediate appellate court immediately below the High Court.
The purposes of the proposal were relief of the burden of work in both the High Court's original and appellate cases, relief of the federal workload of State and Territory Courts and federal responsibility for the judicial administration of federal laws, eliminating some anomalies in the differing administrations of some federal laws such as matrimonial causes and bankruptcy.
A proposal for a new court had already been raised for consideration by the Government, as the Solicitor-General, Sir Kenneth Bailey, revealed. On 11 December 1962, Cabinet gave approval to the Attorney-General, Sir Garfield Barwick, to proceed with the drafting of a Bill to create a new court, though no decision to proceed was then taken. Mr EG (Gough) Whitlam, as deputy leader of the Opposition, affirmed to the Convention his support for the solution proposed by Toose and Byers. Although it seemed that there would be political agreement about the creation of a new court, there were differing views about the purpose of the court and about the size and jurisdiction of the court to be created.
Sir Garfield Barwick, shortly before his appointment as Chief Justice, acknowledged a general professional consensus that a new federal court would have real utility. 'But,' he wrote,7 'many of those who share this conclusion reach it for different, and to some extent conflicting, reasons which lead to flatly divergent views as to the jurisdiction that the new court should exercise, and therefore as to its optimum size and the nature of its organization'. Sir Garfield rejected the busy lists of the State Courts as a justification for reversing the investiture of State Courts with federal jurisdiction unless the relevant law had a 'special element', 'a distinct and separate character', such as bankruptcy and industrial law. But he favoured measures, including the creation of a new federal court to deal with such 'special' matters and to entertain appeals from Territory Courts. That would relieve the High Court of some of its work.
The proposal did not produce any Parliamentary response until Mr Nigel Bowen, then Attorney-General, made a ministerial statement in May 1967. He announced that a Commonwealth Superior Court would be created incorporating the Bankruptcy Court and the Commonwealth Industrial Court and with additional original jurisdiction in taxation, Commonwealth employees compensation, industrial property, the matters specified in s 75(iii) and (iv) and s 76(i), (iii) and (iv) of the Constitution, and such other matters as the Parliament might specify. The main purpose of this proposal was to relieve the pressure of original jurisdiction work of the High Court.
However, Mr Bowen said that 'the provision of an entire system of Federal courts would be uneconomic' and the Government proposed to establish 'a relatively small new federal court of quality and standing'. There would be only 4 new judges required. The proposal reflected the Barwick suggestion that the Superior Court should deal only with matters having a 'distinct and separate character'.
In 1969 Bowen introduced a Bill for the creation of the court but it lapsed when the Parliament was dissolved for a general election. In December 1971, Chief Justice Barwick raised with Prime Minister McMahon (and confirmed in a letter to the Attorney-General, Senator Ivor Greenwood, in January 1972) the 'more than burdensome' work of the High Court in original jurisdiction matters and the desirability of transferring jurisdiction in taxation and industrial property to the Supreme Courts.
However, no action was taken to relieve the High Court until 1973 when the Treasurer in the new Government, Mr Crean, introduced the Income Tax Assessment Bill (No 3) to vest in State Courts the jurisdiction of single High Court justices in income tax appeals.
In October 1972, Senator Greenwood had announced8 that the proposal for a new federal court would not be proceeded with. With the change of government, the new Attorney-General, Senator Lionel Murphy, introduced a Bill to establish a Superior Court of Australia. The main purpose of this Bill was to vest exclusively in the new court all federal jurisdiction invested under ss 75 and 76 of the Constitution, subject to some exceptions.9 The new court would also subsume the existing federal courts and the Supreme Courts of the Territories. It would be vested with new federal jurisdiction in administrative and trade practices matters. An internal appeal from single judges was to be available. It was to be organised on a district basis with a chief judge for each district and there were to be 6 divisions of the court, the judges being assigned to the respective divisions. It was foreseen that the work of the new court could lighten the workload of the High Court but High Court relief – the chief purpose of all Coalition proposals – was not advanced as the purpose of the court's creation.
The Bill excited opposition, not least because the Supreme Courts were to be stripped of considerable federal jurisdiction. The Bill failed to pass the Senate either before or after the double dissolution of 1974.
The main grounds of objection were stated by Mr RJ (Bob) Ellicott in his second reading speech in the House of Representatives in July 1974. He drew attention to 'the grand design to which this Court is to be constructed' making it 'ultimately the largest court in the country' exercising 'tremendous power over our citizens'. He thought the new court would be unnecessarily divisive, as federal jurisdiction could be exercised appropriately by State Courts or by the existing Australian Industrial Court. 'The proposed court', he said, 'would degrade the Supreme Courts, stripping them of their existing jurisdiction.' He was troubled by future growth of federal jurisdiction, asking, 'What will be left of the great common law courts of the States of this country? They will be nothing but property courts with an inferior status.'
A further change of government saw a resolution of the controversy by then Attorney-General Ellicott in 1976. He proposed the creation of the Federal Court of Australia.
There had been some changes in the judicial scene since 1973. The Family Court of Australia had been created and was to exercise an exclusive jurisdiction under the Family Law Act 1974. Two major non-judicial tribunals had been established under the Trade Practices Act 1975 and the Administrative Appeals Tribunal Act 1975, each presided over by a federal judge dealing with matters in which points of law might arise and require determination by a court. Further development of federal administrative law was expected.
The Attorney-General, conscious of the need to preserve the status of the State Supreme Courts, proposed that the High Court's original jurisdiction in taxation and industrial property should be taken from the High Court and vested exclusively in the Supreme Courts of the States and Territories. This gave effect to a policy that State Courts should be the trial courts in federal as well as State matters and should administer the general body of Commonwealth criminal law. There was to be no diminution in the original jurisdiction of the State and Territory Supreme Courts. The Territory Supreme Courts were to be maintained.
The jurisdictions of the Australian Industrial Court and the Federal Court of Bankruptcy were to be transferred to the Federal Court and that Court was to have jurisdiction under the Trade Practices Act and under the Administrative Appeals Tribunal Act – jurisdiction which hitherto had been vested in the Australian Industrial Court. The work of the Bankruptcy Court and the Australian Industrial Court was to continue uninterrupted in the Federal Court. The Federal Court was to have appellate jurisdiction from decisions of single judges of that Court, of the Territory Courts and of the State Courts in taxation and industrial property matters. This was to divert Territory appeals from the High Court to the Federal Court and to ensure uniformity of interpretation in taxation and industrial property law.
The Federal Court of Australia Act 1976 (the FCA Act), supplemented by the Federal Court of Australia (Consequential Provisions) Act 1976, received the Royal assent on 9 December 1976. In a 1977 article10 designed to explain the complex series of 1976 laws, the Attorney-General described the key features of the restructuring of federal jurisdiction and indicated some future developments that were imminent, particularly in administrative law.
To complete the establishment of the Court, many administrative matters called for attention: judges, registrars and support staff had to be appointed, rules of practice and procedure had to be promulgated and the workload organised.
The Attorney-General's Department marshalled its distinguished team of bureaucrats – Sir Clarrie Harders, Messrs Frank Mahoney, Trevor Bennett and Lindsay Curtis. They met in November 1976. Few departmental records of the period survive but there is a note that the appellate work was expected to be 'greater than that of the existing Bankruptcy and Industrial Courts combined'. Registry services were to be provided chiefly by the Bankruptcy registry,11 then within the Department of Business and Consumer Affairs. Carmel Meiklejohn records:
Creation of the Federal Court precipitated a tussle over the Registrars in Bankruptcy between the two departments … The Bankruptcy Branch at this time was severely short-staffed and allocation of staff and resources across the public service generally tight … It was subsequently negotiated that the Bankruptcy Branch would provide registry facilities for the Federal Court – which had jurisdiction for bankruptcy, industrial law, trade practices and administrative appeals – and for other bodies. By 1978 these included the Administrative Appeals, Trade Practices, Copyright and Courts Martial Appeals tribunals.12
The Court's first Registrar was Bernard Foley, who remained with the Court until October 1977. He was followed by Jim Howard, who was in office until the end of 1995. He supervised the expansion of registry services during years when the work of the Court increased greatly. In addition to staff, arrangements had to be made for premises, libraries, the general incidents of court administration and finance.
Appointment of the Chief Judge
The pivotal appointment was, of course, the appointment of a Chief Judge. I imagine that the Attorney, Mr Ellicott, had no difficulty in nominating Sir Nigel Bowen. Ellicott had read with Bowen and they had worked closely together at the Bar. Ellicott had been appointed Commonwealth Solicitor-General (1969–73) when Bowen was Attorney-General. At the time of Bowen's appointment, he was Chief Judge in Equity in the Supreme Court of New South Wales. He had been a successful barrister, politician, minister and judge. There were few, if any, who could match either his experience or his reputation.
On 26 May 1911, Nigel Bowen was born in a log cabin in British Columbia, Canada. Shortly afterwards, his family moved to New South Wales. A stint farming sheep in Gunnedah was brought to an end by drought, and the family finally settled in Sydney.13 Bowen was educated at The King's School in Parramatta and won a scholarship to the University of Sydney, where he graduated in arts and law. He played first-grade cricket and rugby.14 He was also a keen – though less adept – boxer. He competed in the finals of the University's Novice Boxing Championships but was 'soundly thrashed', first tasting fame when his 'battered and bleeding face … was featured on the front page of the Sydney papers'.15
He had greater success at the Bar. He entered the profession in the middle of the Great Depression, one of only 3 barristers admitted in New South Wales in 1936.16 However, he quickly established a practice which was interrupted by the outbreak of World War II. He enlisted with the Second AIF.17 He rose to the rank of captain and served in New Guinea, where his company included Corporal Ninian Stephen.18
He resumed practice in 1946, took silk in 1953, and over the next decade developed an extensive High Court practice.19 During this time, he led a number of juniors who would later be his colleagues on the Federal Court. Bowen was editor of the Australian Law Journal20 and served as Vice President of the Law Council of Australia21 and Chairman of the New South Wales Bar Council,22 expressing an underlying political interest that came to the fore in 1964 when he entered the Commonwealth Parliament as member for Parramatta.23 He subsequently became a prominent political figure, serving as Attorney-General,24 Minister for Education and Science25 and Minister for Foreign Affairs.26 His maiden question in the House of Representatives concerned the establishment of a federal court.27 As Attorney-General, he shaped the Australian system of justice, introducing the Bill that became the Privy Council (Limitation of Appeals) Act 1968 (Cth)28 as well as a Bill which, though discontinued, paved the way for the FCA Act.29
As Minister for Foreign Affairs, he played a leading role in galvanising international opinion against the testing of nuclear weapons in the Pacific.30 He led a delegation that met with representatives of the People's Republic of China in Paris when the question of officially recognising the People's Republic was under discussion in Australia.31 And he drafted the first piece of legislation responding to a foreign corporate takeover. As Justice Faulks tells it,
[t]his was in the days before Australia had entered the legislative field to control foreign takeovers. … The time available to prepare the legislation was very limited and the problems involved in moving into an unchartered territory were endless. … [W]hile pessimists were saying it couldn't be done, Sir Nigel was asked when the legislation would be ready. His calm reply was: 'We attend to difficult matters with expedition. The impossible takes a little longer.'32
After leaving politics, Bowen J spent 4 years first as a judge of the New South Wales Court of Appeal and then as Chief Judge in Equity.33 He later said that, when he was approached to be the first Chief Judge of the Federal Court, he 'was doubtful about accepting': the Court's 'proposed jurisdiction did not seem to be very appealing'.34 Ellicott knew that he could not take Sir Nigel's acceptance for granted, so he 'took him to the splendid and spacious Chief Judge's chambers on the 21st floor [of the new Law Courts Building] and showed him the view'.35 We can be glad that it didn't disappoint. Bowen's appointment was very well received by the profession. It was a firm indication that the Federal Court was to be a court of high standing.
Appointment of the judges
There were 19 foundation judges, including the Chief Judge. Those available were sworn in in Court 21A of the Law Courts Building in Sydney on 7 February 1977. With the exception of Keely J, who was appointed from the Victorian Bar to assist the Industrial Division of the Court, all the judges were members of existing courts. Six judges were resident members of the Supreme Courts of one or other of the mainland Territories,36 2 were judges of the Bankruptcy Court37 and 9 were judges of the Australian Industrial Court.38
At that time, of course, all federal judges had life tenure, but the Attorney-General imposed an age limit on appointment of Industrial Court judges to the Federal Court. Two members of the Industrial Court (Dunphy and Joske JJ) exceeded the age limit and were not appointed. A third – the redoubtable Reginald Smithers J – protesting truthfully that his judicial capacities were undiminished by age – was appointed.
Twelve judges had been appointed to the General Division of the Court, 3 to the Industrial Division and the remainder had general commissions to sit in either division, but the Chief Judge could transfer a judge to another division if listing requirements made it desirable to do so. However, some of the judges were engaged in duties which precluded them from participating full-time in the work of the Federal Court. Sir Edward Woodward was Director General of Security; Northrop J was President of the Trade Practices Tribunal and I was President of the Administrative Appeals Tribunal and the Administrative Review Council.
In the first 2 years, additional judges were appointed. Deane J, then a recently appointed member of the Equity Division of the Supreme Court of New South Wales, was appointed as a judge of the Federal Court and President of the Trade Practices Tribunal. Northrop J became a Deputy President. Toohey J was appointed a Judge of the Northern Territory Supreme Court and of the Federal Court. Toohey J who had been a leading counsel in Western Australia and who had a vast experience of Aborigines in legal proceedings was appointed as the inaugural Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976. McGregor J, a leading member of the NSW Bar, replaced Fox J when the latter became the Ambassador at Large for nuclear non-proliferation and safeguards. Gallop J, a leader of the ACT Bar, succeeded Ward J who died in November 1977. In 1978, 3 other distinguished leaders of the Bar were appointed: Fisher J from South Australia, Davies J from Victoria (who became a Deputy President of the AAT), and Lockhart J from NSW. After 2 years, the Court had been accepted as a court of high standing and the judges were, I think, regarded as lawyers of quality, well capable of discharging efficiently the functions of both primary and appellate judges.
Court facilities
At the first judges meeting on the afternoon of the swearing-in ceremony, the support facilities of the new court were discussed. The Chief Judge reported on the accommodation then available. In Sydney, court rooms and judges' chambers were available. In Melbourne, the High Court Building at 450 Little Bourke Street offered court space when the High Court was not sitting in Melbourne and another court room was available in the Industrial Court Building at 451 Little Bourke Street for sittings of the Industrial Division. The Industrial Court chambers were retained in 451 Little Bourke Street and 3 new sets of chambers were to be constructed in 450 Little Bourke Street. Accommodation and library facilities in other State capitals were less adequate, but they sufficed for the time being. Territory Courts were available for use by the Federal Court.
Practice and procedure
As Chief Judge, Bowen was 'responsible for the orderly and expeditious discharge of the business of the Court'.39 The Chief Judge devoted vision and energy in discharging that responsibility. He had a draft set of rules prepared and submitted to the first Judges meeting. These were gazetted,40 followed by an amendment to cover matters arising under the Administrative Appeals Tribunal Act 1975, and ultimately a comprehensive set covering all matters coming before the Court. The Chief was intent on making the procedure as simple and expeditious as possible. An applicant's case was to be stated as part of the initiating process and was to be followed by judicial management of the matter. Cases were not to be allowed to linger until the parties decided to proceed. Under the influence of the industrial judges, the party seeking relief was to be termed 'the applicant', not the plaintiff.
The first judges meeting resolved that, for the time being, the Chief Judge should 'take care of the listing of cases'. The Chief Judge also took care of the listing of the judges who should sit on cases. This was a necessary function but it was not free from tension. The Chief Judge was anxious to ensure that the judges were allocated to sit on cases appropriate to their experience. I don't know if it was a general practice, but I remember that he called me in to inquire into my past professional experience and, feeling that I was not well equipped for the industrial jurisdiction, he did not list me to sit in industrial cases unless I was sitting with JB Sweeney and Evatt JJ – 2 very experienced industrial judges.
Sir Nigel's first Associate, now Richard White J of the NSW Supreme Court, reports that the Chief Judge kept a large sheet on which the names of the available judges would be listed and then allocated to the pending cases. But his allocation was not mere office work. I remember sitting with Deane and Fisher JJ in a Full Court in 21A when the Chief Judge unostentatiously made his entrance into the public gallery. I had not known a Chief Justice to visit a sitting court before and I wondered whether we should acknowledge his presence. After hurried and quiet consultation, we decided not to do so. After all, he was merely doing the rounds to see whether his judges were able to do the job! We must have passed muster for we were pleased oftentimes to be listed to sit together again. From time to time, a judge regretted not being listed to sit on a particular case, but overall the judges accepted the Chief's listing as appropriate.
Reaction to the Court's creation
The reaction of Mr FT Burt QC (as he was in 1963) to the Toose–Byers proposal of a new federal court was that 'it would inevitably and seriously reduce the status of the State Supreme Courts' and that was a concern that affected the debate in the following years. Another concern was the risk of a dual system of courts creating confusing and complex jurisdictional disputes. The American system was cited as a warning. Then, as the judicial membership of the new court was drawn chiefly from the judges of the Industrial Court, there was scepticism about the capacity of the Federal Court effectively to administer its jurisdiction. The jurisdiction of the Federal Court was to extend to areas that were thought to be outside the experience of the Industrial Court and more highly technical than industrial law.
The controversy sparked some feeling. Some comments in the profession were opposed to the creation of the Federal Court, were dismissive of its utility and reflected an element of antipathy towards it. But those sentiments had no apparent effect on the counsel briefed to appear in many of the significant early cases.41 In the first 2 years, the silks appearing in the Court included no fewer than 24 future judges of the Court. Presumably they were satisfied that the Court was achieving the high judicial standard anticipated by the Chief Judge in the swearing in ceremony in February 1977:
This Court has no history and, as yet, no tradition. At least it has some fine examples. It is my hope that the Court will quickly establish itself as a court of high standing in the eyes of the profession and of the public. It will be the earnest endeavour of the members of this bench to ensure that it does so.
In December 1977 the Chief Judge explained42 the rationale for the establishment of the Federal Court, its jurisdiction and workload, and its important and necessary role as 'the primary arbiter in respect of a wide range of matters arising from regulation by the Commonwealth Parliament on an Australia-wide basis of business conduct, the administration of government and the conduct of employer and employee organizations in industrial relations'.
Nevertheless, the concern about the dual system of courts persisted. Even after the Federal Court had commenced its work, the desirability of its continued existence was challenged. In the August 1978 edition of the Australian Law Journal, the Chief Justice of New South Wales, Sir Laurence Street, fearful of a system of dual courts, wrote:
'I do not assent to the suggestion that it is too late to turn back –…The system of justice is too precious an inheritance to become a pawn in a power struggle between Commonwealth and State. There is no room here for the empire builders to gratify their desires.'
In January 1979, 2 years after the Court commenced, when its work was available for the profession and the public to evaluate, Sir Nigel delivered a paper 'Federal and State court relationships' at the Supreme and Federal Court Judges' Conference in Brisbane.43 He pointed out that, for the last 70 years, there had been a dual judicial system in which the same issues could be litigated either in the High Court or in the courts of the States, yet 'no significant conflict [had] occurred'. Experience had shown that there were some areas of Australia-wide significance where federal court jurisdiction was desirable. He instanced matters in industrial, trade practices, bankruptcy and family law. He recalled that when, as Attorney-General, he proposed the 1968 Superior Court Bill, he was 'conscious of the need to avoid, as far as possible, creating a new court which would produce new conflict of jurisdiction problems beyond those which already existed'. He explained that the original jurisdiction of the High Court in income tax, patent and trade mark matters had been transferred to State Supreme Courts but, to ensure uniformity in application of the law, appellate jurisdiction had been vested in the Federal Court. Thus, 'the range and importance of the cases in which the State Supreme Courts have jurisdiction has been increased. This should enhance rather than detract from their status'.
He commented that the Federal Court was the appropriate repository of jurisdiction in matters of Commonwealth administrative law and appeals from the Territories. His scholarly analysis of the Court's jurisdiction and its constitutional utility was a convincing response to the arguments against the Court's existence. Sir Nigel's conclusion commanded general assent. He said:
It is in the best interests of the community in general, of the law, and of the judiciary itself, both State and Federal, that we as judges do all in our power to enhance and defend the standing and reputation of all courts and of those who serve upon them. If we seek to diminish one another it is inevitable that we shall ourselves be diminished.
This was not mere rhetoric; it was the voice of a man who was familiar with the Constitution, with government and public affairs, a statement by a lawyer of the highest calibre.
The ethos of the Court
The judges of the Court in its early years were conscious of the transformation that the Federal Court might make in the Australian judiciary. On the one hand, there was an obvious need for a court ensuring that the laws of the national Parliament were given a uniform interpretation and were efficiently applied nationally; on the other, the overlapping of jurisdictions applicable to some justiciable controversies raised some nice legal problems. It was a time for reflective analysis, adequate research and clear enunciation of principle. The judges knew that the reputation of the Court and its attractiveness to future appointees of ability depended on the assessment of their judicial work.
The listing procedures were designed to ensure no undue delay in disposing of the Court's lists and the judges decided – in part by force of their Chief's example, in part by their own experience and temperament – to be a court where courtesy was the hallmark and Socratic dialogue between Bench and Bar did not go beyond quiet discussion. This was not the atmosphere of hearings in some courts at the time.
The judges met regularly and a warm collegial spirit was engendered. Personal relationships grew, facilitating cooperation. Draft judgments were circulated among the judges hearing appeals and were returned with corrections or suggestions that were happily received. It was an enjoyable and stimulating environment – and we were all aware of our good fortune in being members of a new court that had new problems for us to address in the company of colleagues whom we respected. I think the satisfaction of repelling some of the arguments that had been raised against the existence of the Court encouraged the judges in their work.
There were features of life on the Federal Court that distinguished that Court from most others: a stimulating variety of work with different groups of judicial colleagues and frequency of travel. From the beginning, the Court exercised original jurisdiction in bankruptcy, industrial law, trade practices, and appeals from, or judicial supervision of, federal Tribunals.44 Its appellate jurisdiction extended to general appeals from the Supreme Courts of the Territories, from single judges of the Federal Court and from single judges of State Supreme Courts exercising federal jurisdiction in industrial property and taxation.45
Apart from sitting in the Federal Court, several judges held appointments to the Supreme Courts of the ACT and the Northern Territory, the Administrative Appeals Tribunal, the Trade Practices Tribunal and the Insurance Tribunal. There may have been others. That work provided an interesting smorgasbord of cases adding to the judicial experience. It was fascinating to sit in a tax appeal one day, in crime or contract the day after, and then with actuaries or retired bureaucrats or airline pilots the day after that. In the Tribunals the presiding judge might sit with expert lay members of the Tribunal and this, I discovered, offered an education in fields outside the usual pastures of judicial interest.
Because judges were needed to sit in different jurisdictions in different capitals, they travelled frequently. Judicial mobility facilitated the task of the Chief Judge in the listing of cases. Although this added to the workload, the Federal Court judges had the advantage of meeting, and evaluating the work of, the judges and profession throughout Australia. Most of the Federal Court judges were socially gregarious and enjoyed the contacts with other judges and the profession. And there was pleasure in visiting unfamiliar places. I remember a joyful photo of a Full Court of judges – Lockhart, Gallop and myself – sitting in our swimmers on a log at Berry Springs (before crocodiles migrated there). The Federal Court was a happy Court.
The growth in Federal Court jurisdiction and its implications
The Federal Court has always been a busy court. Although the workload cannot be estimated merely by the number of judgments delivered, the increases in the number of delivered judgments is some indication of a substantial workload, much attributable to increases in jurisdiction. The number of judgments increased from slightly more than 200 in 1977–78 to approximately 1,700 in recent years, after a peak of 2,330 in 2007. The present appellate jurisdiction of the Court extends to appeals from judgments of the Federal Circuit Court (other than Family Law and Child Support judgments).46 Additional original jurisdiction specifically invested includes tax47 and industrial property48 appeals at first instance, appeals on questions of law from decisions of the Trade Practices Tribunal regarding access to declared services,49 applications under the Native Title Act 1993,50 and applications51 and some appeals52 under the Corporations legislation. Two statutes invested the Court with broad areas of jurisdiction. The first was the Administrative Decisions (Judicial Review) Act 1977, which came into force only on 1 October 1980 and gave the Court jurisdiction to review judicially decisions made under a federal enactment. Section 39B of the Judiciary Act 1903, inserted on 20 December 1983,53 gave the Court the same jurisdiction as that vested in the High Court by s 75(v) of the Constitution. Section 39B has been subsequently amended54 to invest the Court with jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
A Full Court held in Transport Workers' Union of Australia v Lee55 that para (c) 'operates according to its terms as a general conferral of jurisdiction' and 'stands in contrast to the prior history of limited Act by Act conferral of jurisdiction upon the Federal Court.'
Matters arising under most Commonwealth laws are now within the jurisdiction of the Federal Court. However, s 39B also makes provision for complementary jurisdiction to be exercised by the Family Court or State courts in matters outside Federal Court jurisdiction.
The Constitution and federal legislation have precluded the existence of any national court of general jurisdiction. State Courts are territorially limited and their jurisdiction does not extend to vast areas of social activity now governed by federal law. Nor does the High Court possess unlimited original jurisdiction. It could not exercise its original jurisdiction without impairing its capacity to perform its key function of determining appeals and constitutional matters.
The Federal Court's jurisdiction is Australia-wide and, although it cannot be invested with State jurisdiction,56 its jurisdiction extends to determining matters which, having a substantial federal element, also involve issues governed by common law or by State laws.57 It cannot be classified as a court of general jurisdiction but it is a court of very broad jurisdiction.
In an age when national borders are of diminishing significance in trade and commerce, it is inevitable that the ascertainment of the rights and liabilities of persons, both natural and corporate, engaged in international trade or commerce and the peaceful resolution of their controversies will present an increasing demand for judicial services. Those services may take different forms: national courts, international courts, arbitrations and mediations. Whatever the appropriate steps might be, it is essential that Australia should have available the judicial services needed for the nation's trade and commerce.
This will place further demands on the Federal Court. It is the Australian court which is best suited in structure and procedure to assume jurisdiction on matters involving Australia's international trade or, indeed, any of Australia's external affairs. For example, as a court vested with jurisdiction in respect of actions in rem under the Admiralty Act 1988,58 its procedures facilitate the arrest of a ship anywhere in Australia, at any hour of the day or night. It may need additional government support, not only financial; it may have to develop a cadre of non-judicial officers to assist the Court or the parties and to advise on available procedures; it may have to reach agreements with other tribunals to facilitate the obtaining of evidence or the enforcement of orders. The history of the Federal Court from its commencement has shown that its comparative youth gives it the freedom to innovate, that its commitment to scholarship, integrity and courtesy commends it to counsel and litigants and that its internal relations ensure efficient and cooperative disposition of its work. The Court is well placed for the challenges of the times.
1 This reflection relates to a period ending 2 years after the Federal Court commenced to exercise its jurisdiction, namely February 1979. A masterly essay covering the first 30 years of the Court (on which I have drawn gratefully) is Chief Justice Black's 'The Federal Court of Australia: The first 30 Years' in (2008) 31 MULR 1.
2 Although this is a personal reflection, I am indebted to Justice Mortimer, a former Associate, whose interest, research and analysis have contributed greatly to this paper, especially the biography of Sir Nigel Bowen. She and I acknowledge the assistance of her Associate Glyn Ayres (whose research capacities reflect those of his judge).
3 Section 71.
4R v Kirby; Ex parte Boilermakers' Society of Australia (Boilermakers' case) (1956) 94 CLR 254.
5Commonwealth Conciliation and Arbitration Act 1904.
6 'The necessity for a New Federal Court' (1963) 36 ALJ 308.
7 'The Australian Judicial System: The proposed New Federal Superior Court' (1964) 1 Fed L Rev 1.
8 Commonwealth, Parliamentary Debates, Senate, 27 October 1972.
9 Superior Court of Australia Bill, cl 37.
10 'The exercise of federal jurisdiction – a revision of the federal judicial structure' [1977] 1 Criminal Law Journal 1.
11 In Melbourne, the Industrial Registry would service the Industrial Division of the Court.
12 Meiklejohn, Carmel, Officially receiving: 80 years of Australian bankruptcy administration, manuscript as at 30 September 2009, Attorney-General's Department Library, 2010.
13 Bob Ellicott, 'Tribute to Sir Nigel Bowen AC, KBE' (1995) 69 Australian Law Journal 143, 144.
14 Ibid.
15 Alex Chernov, 'Farewell sitting for the Hon the Chief Justice' (30 November 1990) 6.
16 Barry O'Keefe, 'Farewell sitting for the Hon the Chief Justice' (30 November 1990) 10.
17 Bob Ellicott, 'Tribute to Sir Nigel Bowen AC, KBE' (1995) 69 Australian Law Journal 143, 144.
18 Ibid.
19 Ibid 144–5.
20 1946–58.
21 1957–60.
22 1959–61.
23 The seat of Parramatta was previously held by Sir Garfield Barwick, who vacated it when he was appointed to the High Court.
24 14 December 1967 – 12 November 1969; 22 March 1971 – 2 August 1971.
25 12 November 1969 – 22 March 71.
26 2 August 1971 – 5 December 1972.
27 Commonwealth, Parliamentary Debates, House of Representatives, 29 October 1964, 2462. The question was addressed to the Attorney-General: 'At the last Australian Legal Convention, held in Hobart, an announcement was made on behalf of Sir Garfield Barwick that Cabinet had authorised him to design a new Federal superior court. I ask the Attorney-General whether he is pursuing this matter. If so, when may we expect a bill to be brought before this House?'.
28 Commonwealth, Parliamentary Debates, House of Representatives, 28 March 1968, 568.
29 Commonwealth Superior Court Bill 1968; Commonwealth, Parliamentary Debates, House of Representatives, 21 November 1968, 3142.
30 Commonwealth, Parliamentary Debates, Senate, 10 October 1994, 1314 (Senator Hill); the Hon Michael Duffy MP, 'Farewell sitting for the Hon the Chief Justice' (30 November 1990) 3.
31 Commonwealth, Parliamentary Debates, Senate, 10 October 1994, 1314 (Senator Hill); Bob Ellicott, 'Tribute to Sir Nigel Bowen AC, KBE' (1995) 69 Australian Law Journal 143, 145.
32 'Sir Nigel Bowen's service to the law and legal profession marked' (1988) 23(9) Australian Law News 25, 25.
33 Bob Ellicott, 'Tribute to Sir Nigel Bowen AC, KBE' (1995) 69 Australian Law Journal 143, 146.
34 Sir Nigel Bowen, 'Farewell sitting for the Hon the Chief Justice' (30 November 1990) 15.
35 Bob Ellicott, 'Tribute to Sir Nigel Bowen AC, KBE' (1995) 69 Australian Law Journal 143, 146.
36 Fox, Blackburn and Connor JJ came from the ACT and Forster, Muirhead and Ward JJ came from the Northern Territory.
37 Riley and Charles Sweeney JJ.
38 Smithers, Nimmo, Woodward, Franki, JB Sweeney, Evatt, St John, Northrop, Brennan JJ.
39Federal Court Act 1976, s 15.
40 SR20 of 1977.
41 For example, Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144; R v Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 31 FLR 1; Re Tooth & Co Ltd (No 2) (1978) 34 FLR 112; Parish v World Series Cricket Pty Ltd (1977) 16 ALR 172; Tradestock Pty Ltd v TNT (Management) Pty Ltd (No 2) (1978) 32 FLR 420; Federal Coke Co Pty Ltd v Commissioner of Taxation (Cth) (1977) 34 FLR 375; Adamson v Western Australian National Football League (1978) 20 ALR 191.
42Sydney Law Review, Vol 8 No 2.
43 (1979) 53 ALJ 806.
44 The Court did not have jurisdiction to hear appeals on questions of law from decisions of the Trade Practices Tribunal, but under s 163A of the Trade Practices Act, which had been enacted on 31 August 1976, the Court had jurisdiction to make orders 'by way of, or in the nature of, prohibition, certiorari or mandamus', and declarations, 'in relation to the validity of any act or thing done, proposed to be done or purporting to have been done' under the Act, including decisions of the Tribunal.
45 FCA Act, s 24(1).
46 Ibid.
47 Section 14ZZ of the Taxation Administration Act 1953 inserted by s 112 of the Taxation Laws Amendment Act (No 3) 1991. This jurisdiction is now exclusive to the Federal Court: Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, s 4.
48Patents Act 1990, s 154; Trade Marks Act 1995. This jurisdiction is now exclusive to the Federal Court: Jurisdiction of Courts (Miscellaneous Amendments) Act 1987, s 5, Schedule.
49Competition Policy Reform Act 1995, s 59, inserting s 44ZR in the Trade Practices Act 1974.
50Native Title Act 1993, s 81.
51Corporations Act 2001, s 1337B.
52Corporations Act 2001, ss 1135, 1321.
53Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 (Cth), ss 2(1), 3, Sch 1.
54Law and Justice Legislation Amendment Act 1997 (Cth), ss 2(1), 3, Sch 11, Item 1; Law and Justice Amendment Act 1999 (Cth), s 2(1), 3, Sch 10, Item 1.
55 (1998) 84 FCR 60, 67.
56Re Wakim (1999) 198 CLR 511.
57Fencott v Muller (1983) 152 CLR 570.
58 Section 10.