What it does
The Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) establishes a statutory mechanism to vest additional civil jurisdiction in superior courts across the Australian federation and to compel or permit the transfer of pending proceedings to the court best placed to determine them. Its operative core is the reciprocal conferral of jurisdiction and a series of mandatory transfer rules.
Section 4(1)–(4) vests original and appellate jurisdiction in respect of “ACT matters” in the Federal Court, the Family Court, the Supreme Court of every other State or Territory, and any State Family Court. The term “ACT matter” is defined in the Dictionary as a matter in which the Supreme Court would have jurisdiction otherwise than by reason of a Commonwealth or State cross-vesting law, or a matter removed to the Supreme Court under s 8. The vesting is expressly limited: subs (5) prohibits investment or conferral of criminal jurisdiction.
The transfer regime in s 5 is the Act’s most substantial component. It imposes a mandatory obligation on the court in which a proceeding is pending once the court forms the requisite opinion. The structure is symmetrical. If a proceeding is in the ACT Supreme Court and related to a matter in the Federal Court or Family Court, or would, absent the cross-vesting scheme, have been incapable of being instituted in the Supreme Court, the court must transfer it if that course is more appropriate having regard to three enumerated considerations (s 5(1)(b)(ii)(A)–(C)): the hypothetical jurisdictional position, the extent to which Commonwealth-law questions dominate, and the interests of justice. Parallel rules apply to transfers between State/Territory Supreme Courts (s 5(2)–(3)) and from federal courts back to the Supreme Court (s 5(4)). Subsection (5) permits transfer between the Federal Court and Family Court on relatedness or interests-of-justice grounds. Related proceedings may be swept along under s 5(6). Applications may be made by a party or the relevant Attorney-General, or the court may act of its own motion (s 5(7)). Rights of audience are preserved for practitioners across the transfer (s 5(8)).