Judiciary
No. 134 of 1968
An Act relating to the Conditions and Restrictions subject to which Federal Jurisdiction is invested in Courts of the States.
[Assented to 9 December 1968]
[Date of commencement, 6 January 1969]
BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—
Short title and citation.
1.—(1.) This Act may be cited as the Judiciary Act 1968.
(2.) The Judiciary Act 1903–1966 is in this Act referred to as the Principal Act.
(3.) The Principal Act, as amended by this Act, may be cited as the Judiciary Act 1903–1968.
Parts.
2. Section 1a of the Principal Act is amended by omitting the words—
“Part VI.—Exclusive and Invested Jurisdiction (Sections 38–39).” and inserting in their stead the words—
“Part VI.—Exclusive and Invested Jurisdiction (Sections 38–39a).”.
Federal jurisdiction of State Courts in other matters.
3. Section 39 of the Principal Act is amended by omitting paragraph (a) of sub-section (2.) and inserting in its stead the following paragraph:—
“(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise.”.
4. After section 39 of the Principal Act the following section is inserted in Part VI.:—
Federal jurisdiction Invested in State Courts by other provisions.
“39a.—(1.) The federal jurisdiction with which a Court of a State is invested by or under any Act, whether the investing occurred or occurs before or after the commencement of this section, including federal jurisdiction invested by a provision of this Act other than the last preceding section—
(a) shall be taken to be invested subject to the provisions of paragraph (a) of sub-section (2.) of the last preceding section; and
(b) shall be taken to be invested subject to the provisions of paragraphs (b), (c) and (d) of that sub-section (whether or not it is expressed to be invested subject to all or any of those provisions), so far as they are capable of application and are not inconsistent with a provision made by or under the Act by or under which the jurisdiction is invested,
in addition to any other conditions or restrictions subject to which the jurisdiction is expressed to be invested.
“(2.) Nothing in this section or the last preceding section, or in any Act passed before the commencement of this section, shall be taken to prejudice the application of any of sections seventy-two to seventy-seven (inclusive) of this Act in relation to jurisdiction in respect of indictable offences.”.
Application of amendments.
5. The conditions and restrictions applicable in relation to the exercise of federal jurisdiction by a Court of a State in proceedings, including an appeal, instituted in that Court before the commencement of this Act are the same as if this Act had not been enacted.
Overview
The Judiciary Act 1968, enacted by the Queen, the Senate, and the House of Representatives of the Commonwealth of Australia, addresses the conditions and restrictions under which federal jurisdiction is invested in state courts. This Act amends the Judiciary Act 1903–1966, re-citing it as the Judiciary Act 1903–1968. The primary objective of this legislation is to clarify and refine the jurisdictional boundaries and restrictions applied to state courts when exercising federal jurisdiction, ensuring consistency and legal certainty in such matters. The Act specifically modifies the conditions under which state courts can hear federal matters and clarifies the limitations on appeals to Her Majesty in Council.
Scope and Application
The Judiciary Act 1968 amends the Judiciary Act 1903–1966 to alter the conditions and restrictions under which federal jurisdiction is invested in state courts. This Act applies to any decision made by a state court in its original or appellate jurisdiction, ensuring that such decisions are not subject to appeal to the Queen in Council. The federal jurisdiction that a state court exercises, whether derived from this Act or any other legislation, is subject to the provisions outlined in the Act, including limitations on appeals and adherence to specific jurisdictional conditions. The Act ensures that these jurisdictional conditions and restrictions remain consistent even if the Act itself was not in force at the time the jurisdiction was initially invested. It is noteworthy that the Act does not alter the application of sections seventy-two to seventy-seven of the Act concerning jurisdiction in relation to indictable offences. The jurisdictional scope of this Act extends across the Commonwealth, impacting all state courts exercising federal jurisdiction.
Key Provisions
The Judiciary Act 1968 primarily focuses on the conditions and restrictions governing federal jurisdiction invested in state courts. Section 1 outlines the short title and citation of the Act, referring to it as the Judiciary Act 1968, and amending the previous Judiciary Act 1903–1966 to be cited as the Judiciary Act 1903–1968. Section 3 modifies section 39 of the Principal Act by altering the appeal conditions for state court decisions, ensuring that such decisions are not subject to appeal to Her Majesty in Council. Furthermore, section 4 introduces a new section, 39a, which clarifies that federal jurisdiction invested in state courts by other provisions is subject to certain conditions and restrictions, including those outlined in section 39, unless they conflict with specific provisions of the investing Act.
The obligations and requirements imposed by the Act pertain to the conditions under which state courts exercise federal jurisdiction. State courts must adhere to the provisions stipulated in section 39, particularly the exclusion of appeals to Her Majesty in Council. Additionally, any federal jurisdiction invested in state courts by other Acts, as per section 39a, must comply with the outlined conditions and restrictions, ensuring they do not conflict with the specific provisions of the investing Act. The Act also mandates that the conditions and restrictions applicable to state courts exercising federal jurisdiction before the Act's commencement remain unchanged.
The Judiciary Act 1968 sets forth specific consequences for breaches of its provisions. While the Act does not explicitly detail offences, penalties, or specific civil or criminal consequences, it is implied that non-compliance with the stipulated conditions and restrictions could lead to legal challenges or appeals under the amended provisions. The exclusion of appeals to Her Majesty in Council, as outlined in section 3, effectively limits the avenues for challenging state court decisions in federal matters. Furthermore, any conflict with the provisions of section 39a could render the invested jurisdiction invalid or subject to judicial review, potentially leading to the annulment of decisions made under such jurisdiction. The Act ensures that state courts operate within clearly defined boundaries when exercising federal jurisdiction, thereby maintaining the integrity and consistency of federal legal principles across the states.