Academic journal article Melbourne University Law Review

The Federal Court of Australia: The First 30 Years - a Survey on the Occasion of Two Anniversaries

Academic journal article Melbourne University Law Review

The Federal Court of Australia: The First 30 Years - a Survey on the Occasion of Two Anniversaries

Article excerpt

[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. …

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