State Courts and Federal Administrative Law: Problems of Federal Jurisdiction

From the time a Federal Court was first proposed, questions about its jurisdiction, and its relationship with state courts have dominated discussion. While it is not proposed to review this extensive literature in detail, it is apposite to draw on some insights from an article by Sir Garfield Barwick published in 1964 at an early stage of this debate. First, it was suggested that the matters in which a Federal Court should have jurisdiction be in some way special. This special element could, it was said, consist of either a distinctive and separate body of law, a desire for uniformity in the interpretation of Commonwealth law, or the character of a party involved in a matter (eg the Commonwealth or a State). Secondly, and of major importance to the present consideration of the exclusive jurisdiction of Federal Courts, Barwick stated: My own preference for a new federal court rests on a view that most of these matters present characteristics sufficiently ‘special’ to make a Federal Court the most appropriate forum. Whenever it can, therefore, I think the Parliament should make the jurisdiction it gives any such new federal court, exclusive.