State Jurisdictional Residue: What Remains to A State Court When Its Chapter III Functions Are Exhausted?

AACL Event

Paper presented by Professor Helen Irving (Sydney Law School):

Among the many issues facing the High Court in Momcilovic v The Queen [2011] HCA 34, was the constitutional validity of "declarations of inconsistent interpretation" made under section 36 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and exercised for the first time in 2010 by the Victorian Court of Appeal. Four members of the High Court found the declaration power valid. Of these, Chief Justice French notably found it valid for a State court, but invalid in the exercise of federal judicial power. The complication was that, when it made its "declaration", the Victorian Court was exercising federal jurisdiction, under section 75(iv) of the Constitution. How, then, were these positions reconciled? The Chief Justice identified what this paper calls "State jurisdictional residue". In his words, "There is no reason in principle why the Court of Appeal, having exhausted its functions in the exercise of its federal jurisdiction . . . could not proceed to exercise the distinct non-judicial power conferred upon it by the Charter. This paper considers what else, if anything, might lie in a State court's "jurisdictional residue", and its potential implication for the evolution of the Kable doctrine.

Commentators:  The Hon Justice Steven Rares (Federal Court of Australia) and
Associate Professor James Stellios (Australian National University).

Chair:               The Hon Justice Christine Adamson (Supreme Court of New South Wales) 

Federal Court, Queens Square, Sydney, Court 18B, 5:30 pm

Download Helen Irving Paper