The Federal Court of Australia: the first 30 years - a survey on the occasion of two anniversaries.

• Jurisdiction: Australia
• Author: Black, Michael E.J.
• Date: 01 December 2007

[In this essay the Chief Justice of the Federal Court of Australia reviews the Court's first 30 years. His Honour traces the origins of the Court, arguing that since Federation the Commonwealth has always sought to keep matters of special federal concern within the exclusive or near exclusive 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...