Judiciary Act 1903

Key defined terms in section 2 include Appeal, which encompasses applications for new trial and proceedings to review jurisdiction. Cause includes suits and criminal proceedings. Matter includes proceedings between parties or not and incidental proceedings. Judgment includes decrees, orders and sentences. Related summary offence is defined in section 67G(3). Jurisdiction concepts distinguish original jurisdiction under section 30, which covers matters arising under the Constitution or involving its interpretation, and trials of indictable Commonwealth offences, from appellate jurisdiction under sections 34 to 35, including special leave under section 35A requiring consideration of public importance or administration of justice. Exclusive jurisdiction under section 38 covers treaty matters, inter-State suits, Commonwealth-State suits, and mandamus or prohibition against Commonwealth officers. Invested jurisdiction under section 39 confers federal jurisdiction on State courts except in section 38 matters, subject to conditions including no appeal to Her Majesty in Council. Removal under section 40(1) applies to constitutional causes on party application for sufficient cause or Attorney-General application as of course. Section 40(2) applies to non-constitutional causes in federal or Territory courts or federal jurisdiction matters in State courts, subject to consent or public interest assessment under section 40(4). Criminal jurisdiction concepts include application of State and Territory laws under section 68(1) to (2) for arrest, committal, trial and appeals, with adjustments for Federal Court proceedings via choice-of-law tables in sections 68C(5) and 68D(2). Suits against the Commonwealth under section 56 may be brought in the High Court or competent State or Territory courts. Legal Services Directions under section 55ZF apply to Commonwealth legal work, with compliance obligations in section 55ZG.

Core concepts include the court’s duty under section 78B(1) not to proceed in a cause involving a matter arising under the Constitution or involving its interpretation until notice has been given to the Attorneys-General of the Commonwealth and the States and a reasonable time has elapsed for intervention or removal. Section 37 permits the High Court in its appellate jurisdiction to affirm, reverse or modify the judgment appealed from, give such judgment as ought to have been given in the first instance, award execution or remit the cause. Section 39B confers original jurisdiction on the Federal Court in matters seeking mandamus, prohibition or injunction against a Commonwealth officer, matters where the Commonwealth seeks an injunction or declaration, matters arising under the Constitution or involving its interpretation, and matters arising under laws made by the Parliament other than criminal prosecutions, subject to exclusions in subsections (1B) to (1EA) for prosecution decisions. Removal under section 40 allows the High Court to remove any cause or part arising under the Constitution or involving its interpretation on application by a party or as of course on application by the Commonwealth, State, Australian Capital Territory or Northern Territory Attorney-General. Part VIIIA entitles persons admitted under rules made pursuant to paragraph 86(ga) to practise in federal courts and confers like entitlement on persons entitled to practise in a State or Territory Supreme Court, subject to registration in the Register of Practitioners kept under section 55C. Part VIIIB authorises the Australian Government Solicitor to provide legal services to the Commonwealth, Ministers, bodies established by Commonwealth or Territory law, officers, employees, Defence Force members, certain companies and former such persons, and to States on request from the State executive government. Part IX permits suits against the Commonwealth in contract or tort in the High Court or the Supreme Court or other competent court of the State or Territory where the claim arose, suits by a State against the Commonwealth in the High Court, suits against a State in federal jurisdiction matters in the State Supreme Court or High Court, and suits between States in the High Court, with rights of parties and judgments to be as nearly as possible the same as in suits between subject and subject under section 64. Part X applies State or Territory laws respecting arrest, custody, summary conviction, committal, trial, appeals and bail to persons charged with Commonwealth offences under section 68(1). It invests State and Territory courts with like jurisdiction under section 68(2). It confers jurisdiction on the Federal Court for related summary offences and specified indictable offences under the Criminal Code under section 67G. Part XAB defines vexatious proceeding to include abuse of process, proceedings instituted to harass, annoy, cause delay or detriment or for another wrongful purpose, proceedings instituted or pursued without reasonable ground, and proceedings conducted in a harassing, annoying, delaying or detrimental manner. It empowers the High Court to make vexatious proceedings orders staying or dismissing proceedings or prohibiting institution of proceedings. Section 79 binds the laws of each State or Territory, including procedure, evidence and competency of witnesses, on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable, except as otherwise provided by the Constitution or Commonwealth laws, with deemed location of federal jurisdiction under subsection (1A).

The Act affects the High Court, Federal Court of Australia, State and Territory courts exercising federal jurisdiction, parties to federal matters including plaintiffs and defendants as defined in section 2, the Commonwealth, States, Territories including extension under section 3A, Attorneys-General of the Commonwealth, States, Australian Capital Territory and Northern Territory, the Director of Public Prosecutions, ASIC in specified Criminal Code prosecutions under section 67G(5), legal practitioners as defined in section 2, and persons subject to Legal Services Directions including those in section 55N(1) and external practitioners under section 55ZG(1). It also affects vexatious litigants under Part XAB and persons subject to suppression orders under Part XAA. These provisions affect federal courts including the High Court and the Federal Court, courts of a State or Territory exercising federal jurisdiction, parties to causes involving constitutional matters, Attorneys-General of the Commonwealth and the States, legal practitioners admitted to practise in federal courts or registered under section 55C, the Australian Government Solicitor and Attorney-General’s lawyers, the Commonwealth, States, Australian Capital Territory and Northern Territory in suits and criminal proceedings, persons charged with Commonwealth offences, and persons instituting or conducting proceedings in Australian courts or tribunals.

The High Court must exercise jurisdiction in open court under section 15. It may sit in chambers under section 16 for specified matters. It may state cases for a Full Court under section 18. Full Court decisions on constitutional questions require concurrence of at least three Justices under section 23. Parties have rights to apply for removal under section 40(1) and (2), with Attorneys-General entitled to removal as of course for constitutional causes. Courts must notify Attorneys-General of constitutional matters under section 78B(1) and allow reasonable time for intervention under section 78A before proceeding. In suits involving the Commonwealth or States, rights are to be as nearly as possible the same as between subjects under section 64, with judgments satisfied from available moneys under section 66. Entities must comply with Legal Services Directions under section 55ZG(1), enforceable only by the Attorney-General under section 55ZG(2). Persons may provide privileged information to the Attorney-General without breach under section 55ZH(2) to (3). Accused persons committed for trial may apply for counsel appointment under section 69(3). Courts must apply State and Territory laws as adjusted by the tables in sections 68C(5) and 68D(2) for Federal Court proceedings. The High Court may make suppression orders on specified grounds under section 77RE and vexatious proceedings orders under section 77RN(1). Under section 78B(1) a court must not proceed unless satisfied that notice specifying the nature of the matter has been given to the Attorneys-General and a reasonable time has elapsed. Section 78B(2) permits the court to adjourn proceedings, make costs orders, direct a party to give notice, or continue to hear evidence and argument on severable matters. Section 78B(3) deems notice given if steps have been taken that in the court’s opinion could reasonably be expected to bring the matters to the Attorney-General’s attention, and dispenses with notice to the Commonwealth Attorney-General if the Commonwealth or he or she is a party and to a State Attorney-General if the State or he or she is a party. Section 78A(1) permits the Commonwealth Attorney-General and State Attorneys-General to intervene in proceedings relating to a matter arising under the Constitution or involving its interpretation, with the court empowered to make costs orders against the Commonwealth or State under subsection (2). Section 55B confers entitlement to practise in federal courts on persons entitled to practise in a State or Territory Supreme Court, subject to conditions for solicitors from Territories and registration. Section 55C(2) requires the Registrar to enter a person’s name and capacity on the Register of Practitioners if shown that the person would but for subsection (3) be entitled under section 55B. Section 55C(5) empowers the High Court to order removal of entitlement or suspension for conduct justifying it. Section 55E(2) entitles an Attorney-General’s lawyer to do everything necessary or convenient, practise as a barrister, solicitor or both in any court and in any State or Territory, and enjoy all rights and privileges of so practising. Section 55N authorises the Australian Government Solicitor to provide legal and related services to specified Commonwealth and State persons and bodies, with fees chargeable under section 55P recoverable as costs. Section 56 permits suits against the Commonwealth in the High Court or the Supreme Court or other competent court of the State or Territory where the claim arose. Section 64 requires rights of parties and judgments and costs to be as nearly as possible the same as in suits between subject and subject. Section 68(1) applies State or Territory laws respecting arrest, custody, summary conviction, committal, trial, appeals and bail to persons charged with Commonwealth offences. Section 68(2) invests State and Territory courts with like jurisdiction. Section 67G confers jurisdiction on the Federal Court to hear and determine prosecutions for related summary offences and specified indictable offences under the Criminal Code, subject to institution only by or with consent of the Australian Securities and Investments Commission or the relevant Minister. Section 77RN(1) requires the High Court to be satisfied that a person has frequently instituted or conducted vexatious proceedings or that a person acting in concert has instituted or conducted a vexatious proceeding before making a vexatious proceedings order under subsection (2). Section 77RQ(3) requires an applicant for leave to institute proceedings to file an affidavit listing all previous leave applications and all other proceedings instituted in any Australian court or tribunal and disclosing all relevant facts. Section 79(1) makes State or Territory laws binding on courts exercising federal jurisdiction.

The High Court has contempt powers equivalent to the Supreme Court of Judicature in England at the Act's commencement under section 24. Process and judgments have effect throughout the Commonwealth under section 25. No execution issues against Commonwealth or State property or revenues under section 65, with judgments satisfied via certificate under section 66. Contravention of suppression orders under section 77RE is an offence punishable by 12 months imprisonment, 60 penalty units or both under section 77RK(1), also punishable as contempt but not twice. Vexatious proceedings orders under section 77RN may stay or dismiss proceedings and prohibit institution without leave, with contravening proceedings stayed under section 77RP. Summary judgment may be given where no reasonable prospect of success under section 25A. Costs may be awarded in all matters including those dismissed for want of jurisdiction under section 26. Enforcement of High Court judgments follows Supreme Court remedies in the relevant State or Territory under section 77M(1), with post-judgment interest under section 77N. Section 78B(2)(a) permits the court to make such order as to costs in relation to an adjournment as it thinks fit. Section 78B(4) authorises the Attorney-General to authorise payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment. Part VIII provides that contravention of specified court orders constitutes contempt punishable by the Federal Court as if the order had been made by it, with the Commonwealth Attorney-General required to report annually to Parliament on the number and particulars of such orders. Section 55P(3) makes fees charged by the Australian Government Solicitor a debt due to the Commonwealth and recoverable in a court of competent jurisdiction. Section 65 prohibits execution or attachment against Commonwealth or State property or revenues, requiring instead a certificate of judgment, with the Minister for Finance or State Treasurer required to satisfy the judgment from legally available moneys under section 66. Section 77RP(2) stays a proceeding instituted in contravention of a vexatious proceedings order prohibiting institution of proceedings. Section 77RR(1) permits discretionary dismissal of an application for leave if the affidavit does not substantially comply with section 77RQ(3), and subsection (2) requires mandatory dismissal if the proceeding is a vexatious proceeding. Section 77S(2) permits the High Court to order dismissal of an appeal if security is not given as required.

The Act is subject to the Constitution, including section 80 requirements for trial by jury in indictable offences. State and Territory laws apply to Commonwealth offences under section 68(1) and to federal jurisdiction under section 79, including procedure, evidence and witness competency, but only to the extent not inconsistent with Commonwealth laws or Federal Court Rules under sections 68C(8) and 68D(5). References to Supreme Courts in adopted laws are read as references to the Federal Court under sections 68C(7) and 68D(4). Provisions are subject to sections 70 and 70A for cross-border and offshore offences. Interaction with the Federal Court of Australia Act 1976 occurs in definitions of primary and appeal proceedings and in sections 68C(1) and 68D(1). The Director of Public Prosecutions Act 1983 and Special Prosecutors Act 1982 are preserved in sections 69(2A), 71(2) and 71A(3). The Crimes Act 1914 applies for fitness to be tried under section 68A(6) and arrest under section 68(6). The Australian Securities and Investments Commission Act 2001 is referenced in section 67G(5) for consent requirements. Cross-vesting legislation confers additional civil jurisdiction on State Supreme Courts including under section 39B. Remittal under section 44 may occur to federal, State or Territory courts with subject-matter jurisdiction. Section 39B(1F) provides that the rules in subsections (1B) to (1EA) apply despite any other law, including the Jurisdiction of Courts (Cross-vesting) Act 1987 and section 9 of the Administrative Decisions (Judicial Review) Act 1977. Section 39A provides that federal jurisdiction invested in State courts by any Act is taken to be invested subject to paragraph 39(2)(a) and paragraph 39(2)(c) so far as applicable and not inconsistent. Section 68(1) applies subject to section 80 of the Constitution. Section 68(2) invests jurisdiction subject to this section and section 80 of the Constitution. Section 68A(6) applies subsection 20B(1) of the Crimes Act 1914 as if the reference to the court to which proceedings would have been referred had the person been committed for trial were a reference to a court to which proceedings could have been referred. Section 68C(5) applies the laws of the State or Territory in which the Federal Court hears the proceedings, including the Rules of the Supreme Court of that State or Territory that apply in relation to criminal proceedings, but not the Rules of any other court, and only to the extent not inconsistent with Commonwealth laws or the Rules of the Federal Court. Section 68D applies similar State or Territory laws for related summary offences. Section 69(2A) provides that nothing affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name or the power of a Special Prosecutor to prosecute by indictment in his or her own name. Section 71(2) provides that nothing affects the power of the Director of Public Prosecutions under subsection 9(4) of the Director of Public Prosecutions Act 1983 or a Special Prosecutor under subsection 8(2) of the Special Prosecutors Act 1982. Section 71A(3) provides that nothing affects the Director of Public Prosecutions’ power under subsection 6(2D) of the Director of Public Prosecutions Act 1983. Section 70(1) and section 70A(2) have effect subject to sections 68C and 68D. Section 72(1) applies where a person is indicted before a court other than the Federal Court or the Supreme Court of a Territory other than the Australian Capital Territory or Northern Territory. Section 77D(1) applies subject to subsection (4) and other Commonwealth laws. Section 77M is subject to Rules of Court and does not affect other statutory enforcement provisions. Section 77S(3) does not affect other statutory security provisions. Section 77RL(2) provides that a person acting in concert does not include a legal practitioner or representative acting in that capacity. Section 79(2) provides that nothing in the Act prevents a State or Territory law covered by subsection (3) from binding a court in connection with a suit to recover an amount paid under an invalid State or Territory tax. Section 67F(1) provides that subject to section 67D nothing in Part IXA limits the operation of any other provision of the Act, and subsection (2) states that jurisdiction conferred on the Supreme Court of the Territory by this Part is in addition to and not in derogation of any other jurisdiction conferred on that Court. Section 67G provides that nothing in the section limits the Federal Court’s jurisdiction under subsection 32(4) of the Federal Court of Australia Act 1976. Section 77RM provides that Part XAB does not limit or affect any powers the High Court has apart from this Part to deal with vexatious proceedings.

The source material does not detail any recent changes to the Act.

The source material does not name any court challenges or controversies.

Removal under section 40(2) requires all parties' consent or Court satisfaction of appropriateness including public interest under section 40(4). Venue for Federal Court indictable primary proceedings must initially be the State or Territory of committal or indictment filing under section 68C(2), changeable only before jury empanelment under section 68C(3), subject to section 80 of the Constitution. Choice-of-law tables in sections 68C(5) and 68D(2) distinguish primary proceedings, post-trial sentencing, appeals, case stated and fitness referrals, with post-trial sentencing using laws at trial's end. State and Territory locality limits are overridden for summary conviction and committal under sections 68(5) to (5C), but courts may decline summary jurisdiction for offences in another State or Territory under section 68(5A). Special leave to appeal from State Supreme Court Full Court decisions requires a Full Court of not less than three Justices under section 21. Full Court of less than all Justices cannot decide constitutional power questions unless at least three concur under section 23. Legal Services Directions compliance is enforceable only by the Attorney-General under section 55ZG(2), and non-compliance may only be raised by or on behalf of the Commonwealth under section 55ZG(3). Suppression orders must specify grounds under section 77RF(2) and operate no longer than reasonably necessary under section 77RI. Vexatious proceedings orders require satisfaction of frequent institution or conduct, or acting in concert, under section 77RN(1), with leave applications requiring detailed affidavits under section 77RQ. Notice under section 78B is not required to the Commonwealth Attorney-General if the Commonwealth or he or she is a party, and not required to a State Attorney-General if the State or he or she is a party. Notice is taken to have been given if steps have been taken that in the court’s opinion could reasonably be expected to cause the matters to be notified to be brought to the Attorney-General’s attention. Section 78B(5) permits a court to proceed without delay to hear and determine proceedings so far as they relate to the grant of urgent relief of an interlocutory nature where the court thinks it necessary in the interests of justice to do so. Section 39B(2) excludes Judges of the Federal Circuit and Family Court of Australia (Division 1) from references to Commonwealth officers. Section 55E(3) provides immunity from State or Territory legal practitioner laws except to the extent those laws impose rights, duties or obligations concerning clients or courts or provide for disciplinary proceedings for misconduct, subject to prescribed laws and section 55F. Section 55Q provides similar immunity for Australian Government Solicitor lawyers. Section 55F and section 55R permit an Attorney-General’s lawyer or the Australian Government Solicitor to act for two or more parties with conflicting interests if the Attorney-General has approved by approval in the particular matter or by written arrangements covering the circumstances. Section 55C(3) requires the Registrar to strike out or amend particulars if satisfied the person no longer entitled under section 55B or entitled only in an unregistered capacity. Section 55C(4) requires striking out if satisfied the person has died. Section 68(5A) permits a court of a State to decline to exercise summary conviction jurisdiction over a Commonwealth offence committed in another State where it is satisfied it is appropriate having regard to all circumstances including the public interest. Section 68(5) confers jurisdiction in relation to summary conviction and conviction and sentencing notwithstanding limits as to locality under State or Territory law. Section 77RN(6) permits the High Court to have regard to proceedings instituted or conducted in any Australian court or tribunal, orders made by any Australian court or tribunal, the person’s overall conduct in proceedings including compliance with orders, and matters occurring before commencement of the section. Section 77RR(3) permits dismissal of an application for leave without oral hearing with or without the applicant’s consent. Section 77RS(4) permits leave to be granted only if the Court is satisfied the proceeding is not a vexatious proceeding. Section 77V(1) provides that where a party dies before the time for instituting appeal expires there is no need for formal revival of the cause.

Courts exercising federal jurisdiction must apply State and Territory laws as directed by the tables in sections 68C(5) and 68D(2), including Supreme Court Rules for criminal proceedings but excluding other court rules, and read references to the Supreme Court as the Federal Court. Entities performing Commonwealth legal work must comply with published or notified Legal Services Directions under section 55ZG(1) and may disclose privileged information to the Attorney-General without breach under section 55ZH. Parties and courts must ensure notification to Attorneys-General under section 78B(1) before proceeding on constitutional matters, allowing reasonable time for intervention or removal. For Federal Court criminal matters, committal courts must invite the Director of Public Prosecutions to suggest the trial court under section 68A(3) to (4) and consider specifying it. Practitioners must observe High Court Rules for jury trials under section 77D, evidence by affidavit under section 77H, and amendment of defects under section 77J. Persons subject to vexatious proceedings orders must obtain leave before instituting proceedings under section 77RP, supported by compliant affidavits under section 77RQ. High Court judgments are enforced using State or Territory Supreme Court remedies under section 77M, with interest under sections 77MA and 77N. Suppression orders must particularise the information restricted under section 77RG(5). To comply with section 78B(1), ensure notice specifying the nature of the matter is given to the Attorneys-General of the Commonwealth and the States and allow a reasonable time to elapse before proceeding, or satisfy the court that steps have been taken that could reasonably be expected to bring the matters to the Attorney-General’s attention. To comply with section 55C, apply for entry on the Register of Practitioners if entitled under section 55B, and note that the Registrar must strike out or amend if no longer entitled or if deceased. To comply with section 55E or section 55Q, act only in the capacity as Attorney-General’s lawyer or Australian Government Solicitor lawyer and have regard to the position as a person engaged under the Public Service Act 1999 when considering duties to clients. To comply with section 55N, provide services only to the persons and bodies listed and only for purposes for which the Commonwealth has power to make laws when acting under subsections (3) or (4). To comply with section 64, ensure that rights of parties and judgments and costs are as nearly as possible the same as in suits between subject and subject. To comply with section 68, apply the laws of the State or Territory respecting arrest, custody, summary conviction, committal, trial, appeals and bail to persons charged with Commonwealth offences, and invest State and Territory courts with like jurisdiction subject to section 80 of the Constitution. To comply with section 67G, institute proceedings for specified indictable offences only by or with consent of the Australian Securities and Investments Commission or the relevant Minister. To comply with section 77RN, do not institute or conduct vexatious proceedings frequently in Australian courts or tribunals. To comply with section 77RQ, when applying for leave to institute proceedings file an affidavit listing all previous leave applications, all other proceedings instituted in any Australian court or tribunal, and all relevant facts known whether supporting or adverse, and do not serve the application or affidavit unless an order is made under section 77RS(1)(a). To comply with section 79, apply the laws of the State or Territory in which the court is exercising federal jurisdiction, including procedure, evidence and competency of witnesses, except as otherwise provided by the Constitution or Commonwealth laws, with location determined under subsection (1A).