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Hands, Tatum --- "Cowen & Zines's Federal Jurisdiction in Australia by Leslie Zines" [2003] AltLawJl 63; (2003) 28(4) Alternative Law Journal 204


Cowen & Zines's Federal Jurisdiction in Australia

by Leslie lines; The Federation Press, 3rd edn, 2002; 253 pp; $99.00 hardcover.

First published in 1959 under the sole authorship of Sir Zelman Cowen, Federal Jurisdiction in Australia has stood the test of time. Cowen was joined by Professor Leslie Zines in the second edition of this work published in 1978. This is the third edition and all new material in this volume is authored by Zines.

To say that a legal academic work stands the test of time is perhaps more unusual than such a trite phrase implies. Certainly, the large span of time between editions of this work has required some significant revision of material. Nonetheless, a cursory review of even the most recent High Court cases shows the 1978 edition of Federal Jurisdiction in Australia frequently cited with approval. The second edition was also used to inform the Australian Law Reform Commission in their review of the Judiciary Act 1903 (Cth) in 2001 and is cited in a 1996 background paper on federal jurisdiction as a 'classic text'-a well deserved description.

The 1978 edition was motivated by the creation of the Federal Court in 1977 and the concomitant transfer of almost the entire original jurisdiction of the High Court to the newly created Federal Court. This latest edition examines more fully the extent to which this new federal jurisdiction has developed and expanded. Like its predecessors, the third edition makes a careful and detailed analysis of each of the heads of federal jurisdiction and presents a considered analysis of relevant case law in the interpretation of these heads. The book also analyses the tensions that have developed in the dual system of federal courts and state courts exercising federal jurisdiction.

Zines mentions in the introduction to this work that one motivation for this revised edition of Federal Jurisdiction in Australia was the recent demise of the cross-vesting scheme following the High Court's decision in Re Wakim; ex parte McNally [1999] HCA 27; (1999) 198 CLR 511. The scheme was designed to overcome problems of jurisdiction where a case raised issues of both federal and state jurisdiction by allowing the cross-vesting of jurisdiction between superior courts. The cross-vesting scheme also allowed the transfer of proceedings between courts following legislated criteria. The scheme worked well for over a decade and the High Court's decision which essentially rendered it invalid and revived jurisdictional problems between state and federal courts has been widely criticised. Though Zines does not enter fully into the debate over this issue in the body of the text, his introduction to the volume reveals his opinion on the matter: 'The court system is likely to remain a dual one and its operation would be greatly improved by a constitutional alteration to restore the cross-vesting scheme' (at xi).

One jurisdictional problem that has not been resolved in the 24 years between the second and third editions of this work is that of the Territories. In R v Kirby; ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 the majority observed that the historic interpretation of the Territories power ins 122 of the Australian Constitution as a power to be read as distinct and separate from the other provisions of the Constitution had brought 'its own difficulties'. Writing in 2002, Zines considers the 'problems associated with jurisdiction in the Territories' to be 'as difficult as ever' (at xii). Though the question whether territorial courts are federal courts within s 71 and whether the appointment and tenure provisions under s 72 apply to the judges of territorial courts appear now to be generally settled (in the negative), the question whether a territorial court can exercise federal jurisdiction is yet to be resolved. Zines appears to endorse the view that 'all the jurisdiction of Territorial courts [should] be regarded as coming within s 76(ii) of the Constitution' (p. 193).

Federal Jurisdiction in Australia is an accessible work in the hybrid text­ book/commentary style that has made Zines's other outstanding publication The High Court and the Constitution a popular and essential read for law students, practitioners and (apparently) judges alike.


Tatum Hands is a PhD candidate in the Department of Political Science at the University of Western Australia.

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