Jurisdiction of Courts (Cross-vesting) Act 1993

The Act directly affects every superior court in Australia and every litigant who commences or finds themselves in civil proceedings that cross jurisdictional boundaries. The Federal Court, Family Court, ACT Supreme Court, supreme courts of the States and Northern Territory, and State Family Courts all receive vested jurisdiction and are subject to the transfer imperatives. Inferior ACT courts and tribunals are indirectly affected because the Supreme Court may remove matters from them under s 8.

Litigants—individuals, corporations, government agencies and interveners—are the primary beneficiaries and subjects. The Dictionary definition of “party” includes interveners, so any person granted leave to intervene is captured. Legal practitioners admitted in one jurisdiction gain automatic rights of audience in the transferee court for the transferred proceeding and any related proceeding heard together (s 5(8)).

Attorneys-General of the Commonwealth and the ACT are given standing to apply for transfers (s 5(7)) and must be notified before a Supreme Court can retain a special federal matter (s 6(4)). Commonwealth authorities and officers exercising functions under ACT enactments fall within the s 6A regime.

Because the Act operates only in respect of “proceedings” and the Dictionary expressly excludes criminal proceedings, prosecutors, accused persons and criminal courts are unaffected.

The legislation creates few traditional “duties” in the sense of obligations owed to the Crown; its architecture is almost entirely procedural and jurisdictional. The central duty is imposed on the courts themselves: once the statutory opinion is formed, transfer “must” occur (ss 5(1)–(5), 6(1)). That mandatory language is tempered by the evaluative judgments required—whether a proceeding “arises out of or is related to” another, whether it “would have been incapable” of being instituted absent cross-vesting, the “extent” to which Commonwealth or Territory law questions arise, and whether transfer is “more appropriate” or “in the interests of justice”.

Litigants have the right to apply for transfer or removal (ss 5(7), 8(1), 10) and the right to be heard on any such application. They also enjoy the right to have related proceedings travel together (s 5(6)). A party facing a special federal matter in the Supreme Court has the right to argue for retention on “special reasons” grounds, although that argument must surmount the general rule favouring federal adjudication and any Attorney-General submissions.

Practitioners possess a statutory right of audience post-transfer (s 5(8)). Courts have the right (and in some cases the obligation) to seek Attorney-General submissions on special federal matters (s 6(4)–(6)).

Rights are buttressed by protections against technical invalidity: inadvertent determination of a special federal matter without notice does not invalidate the decision (s 6(8)), nor does inadvertent completion of an appeal that should have been transferred (s 7(7)).

The Act contains no offence-creating provisions and no civil penalty regime. The penalty-unit note at the front of the republication is generic and does not apply to this statute. Enforcement occurs through the ordinary mechanisms of court orders. A refusal to transfer when the statute requires it could be challenged by prerogative writ or, more likely, by appeal or review once a final judgment is given, although s 13 bars appeals from the transfer decision itself. Judgments given in cross-vested jurisdiction are enforceable throughout the ACT as if given in the court’s ordinary jurisdiction (s 14). Costs orders for pre-transfer conduct are expressly authorised (s 12) and are enforceable in the usual way.

The Act is expressly designed to operate in tandem with the mirror legislation of the Commonwealth (Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)), each State and the Northern Territory. Its definitions of “special federal matter” and the scheduled Commonwealth Acts are entirely derivative. Section 11’s choice-of-law rules interact with the common-law rules of each forum and with any applicable uniform legislation such as the Civil Procedure Acts or Evidence Acts of the various jurisdictions.

The Act is picked up by the Judiciary Act 1903 (Cth) s 79 in federal courts exercising Territory jurisdiction. It sits alongside the Service and Execution of Process Act 1992 (Cth) for enforcement of judgments across borders. Section 6A specifically intersects with the Administrative Decisions (Judicial Review) Act 1977 (Cth) and Judiciary Act 1903 (Cth) s 39B by relaxing transfer obligations where Commonwealth officers act under ACT enactments.

The Legislation Act 2001 (ACT) supplies dictionary rules (s 2 and Notes), notifiable-instrument requirements for suspension and cessation declarations (ss 15–17), and the editorial-change power that produced the present republication. The Competition and Consumer Act 2010 (Cth) Sch 2 is directly engaged by s 10.

Because the Act does not confer criminal jurisdiction (s 4(5)), it has no intersection with the Criminal Code or court rules governing indictable or summary criminal proceedings.

The most recent amendment was made by the Justice and Community Safety Legislation Amendment Act 2025 (No 2) (ACT) sch 1 pt 1.6, commencing 21 March 2025. It made minor textual adjustments to ss 5, 6, 7, 10 and 11 (A2025-3 amdts 1.14–1.16). These appear to be housekeeping to maintain consistency with Commonwealth amendments and to update cross-references following earlier consumer-law reforms.

The Fair Trading (Australian Consumer Law) Amendment Act 2010 substituted references in s 10 to reflect the relocation of consumer-protection provisions into the Australian Consumer Law (A2010-54 amdts 3.35–3.36). The Statute Law Amendment Act 2007 updated dictionary definitions to remove redundant references to the Federal Court after it was separately defined in the Legislation Act (A2007-39 amdts 3.95–3.96).

The Jurisdiction of Courts Legislation Amendment Act 2001 (A2001-71) was the most substantive rewrite. It inserted s 6A to deal with the administrative-law overlap between Commonwealth officers and Territory enactments, relocated definitions into a formal Dictionary, and made consequential changes to ss 3, 6 and 7. The Legislation (Consequential Amendments) Act 2001 substituted s 15 and inserted ss 16 and 17 to align suspension and cessation powers with the notifiable-instrument regime of the Legislation Act 2001.

These changes have been evolutionary rather than revolutionary, each responding to either Commonwealth legislative shifts or the need to preserve the reciprocal cross-vesting scheme when one participant alters its statute.

The provided text does not contain judicial decisions; however, the structure of the Act itself reveals points of recurring contention that have generated litigation. The evaluative criteria in s 5—particularly “interests of justice” and the hypothetical jurisdictional question in s 5(1)(b)(ii)(A)—have produced disputes about the weight to be given to the loss of a jury trial, differences in limitation periods, or the relative backlog of courts. The “related to” test in s 5(1)(b)(i) has been litigated where proceedings share some but not all parties or causes of action.

The “special reasons” exception in s 6(3) has proved narrow. Courts have consistently emphasised the statutory admonition in s 6(6)(a) that special federal matters should ordinarily be heard in the Federal Court. The notice requirement to Attorneys-General has itself generated interlocutory skirmishes over adequacy of time and the content of submissions.

Section 6A’s relaxation for Commonwealth-authority matters under Territory laws was inserted to resolve a practical difficulty exposed by earlier litigation in which related administrative-law and Territory-law claims were being artificially separated. Its proviso in s 6A(7) that the expanded meaning of “interests of justice” does not automatically alter the meaning elsewhere in the Act has been a source of careful judicial parsing.

The prohibition on appeals from transfer decisions (s 13(a)) has channelled challenges into collateral attacks or applications for prerogative relief, raising questions about the justiciability of the statutory opinion formed by the first-instance judge.

Most practitioners assume that “interests of justice” is an open-textured discretion; the statute actually imposes a structured sequence of mandatory considerations that a court must address before it can lawfully transfer or retain a matter. Failure to record an explicit finding on each limb of s 5(1)(b)(ii) can render a transfer decision vulnerable even though the ultimate order is not appellable.

The Dictionary definition of “proceeding” excludes criminal proceedings, yet the Act is sometimes cited in quasi-criminal regulatory matters (e.g. pecuniary-penalty proceedings under the Australian Consumer Law). Such matters fall inside the civil regime, but the s 4(5) criminal-jurisdiction carve-out must be watched.

Section 6(8) saves an inadvertent decision on a special federal matter, but only if the court did not make a positive order under s 6(3). If the court purported to make such an order without giving the required Attorney-General notice, the saving provision does not apply and the decision may be a nullity.

Section 11(1)(c) gives the court a broad discretion to choose any superior court’s rules of evidence and procedure, yet s 13(b) makes that procedural choice non-appealable. Parties who wish to contest the choice must therefore do so at first instance with exhaustive submissions; a later appeal on the substantive outcome cannot indirectly impeach the procedural ruling.

The Executive’s power to suspend or disapply the Act by notifiable instrument (ss 15–17) is rarely remembered. A practitioner who assumes perpetual reciprocity may be embarrassed if a cessation declaration has been made in relation to a particular State whose mirror legislation has been substantially amended.

Finally, s 5(8) grants a right of audience only for the transferred proceeding and any proceeding ordered to be heard with it. Separate proceedings, even if factually related, still require admission in the transferee jurisdiction or a separate order.

Compliance for litigants begins with a frank jurisdictional audit before filing. Counsel should map every cause of action against the hypothetical position absent the cross-vesting legislation, identify any scheduled Commonwealth Acts, and isolate any special federal matter. If a special federal matter exists in the Supreme Court, notice to both Attorneys-General must be given before any argument for retention can be entertained.

When drafting originating process or interlocutory applications, include alternative prayers for transfer or removal under the specific subsection relied upon. Affidavits in support of transfer applications should address each statutory integer in s 5(1)(b)(ii) or s 6(6) with concrete evidence rather than bare assertion; courts treat the statutory language as a checklist.

Once a transfer order is made, practitioners must immediately file in the transferee court the documents listed in any practice note, paying particular attention to the requirement in s 11(3) that the transferee court treat prior steps as having been taken before it. Costs reserved in the transferor court should be dealt with by consent order at the time of transfer; otherwise the transferee court’s power under s 12 will be engaged.

For corporate and government litigants, internal compliance checklists should flag any proceeding that involves both Territory legislation and a Commonwealth authority or officer; such matters trigger the s 6A analysis and may justify an application to keep related claims together in the Supreme Court.

In-house counsel should maintain a register of mirror legislation in each participating jurisdiction so that any Executive declaration under ss 16 or 17 can be promptly identified. Because the Act can be suspended or disapplied by notifiable instrument, a weekly scan of the ACT legislation register for instruments made under this Act is a prudent control.

Finally, because transfer decisions are non-appealable, the only practical safeguard is to ensure that the first-instance argument is comprehensive, that all related proceedings are identified early, and that any potential “special reasons” or “interests of justice” factors are fully documented on the court file.