How the Federal Court impacts on fair work issues

Today I am publishing a post which is an extract from a recent decision of the Federal Court of Australia and which is a superb statement of the constitutional and legislative ambit of the jurisdiction of the Federal Court. Although the issue which was live in the case was defamation, the extract explains the jurisdiction of the Federal Court which of course plays a very serious role in fair work law and practice, for example the general protections.



  1. At the commencement of the hearing it became evident, for the first time, that the contention of the respondents was that the matter complained of was broadcast solely within New South Wales. This was despite an allegation having been made by Mr Oliver that the broadcast extended to other places within the Commonwealth including the Australian Capital Territory and the Northern Territory (see ASOC at [1(b)]).
  2. The significance of this allegation was that as the Full Court (Bennett, Perram and Robertson JJ) explained in Crosby v Kelly[2012] FCAFC 96; (2012) 203 FCR 451, s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) has the effect of conferring upon this Court original jurisdiction over a proceeding that would be within the jurisdiction of the Australian Capital Territory or Northern Territory Supreme Courts.
  3. As another Full Court (Allsop CJ, Besanko and White JJ) put it in Rana v Google Inc[2017] FCAFC 156; (2017) 254 FCR 1 at 8 [24]:

… s 9(3) confers on the [Federal] Court the jurisdiction of those Territory Supreme Courts to hear and determine defamation matters that would be within their jurisdiction: Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 at 458 [35] per Robertson J. As Perram J also explained at 203 FCR 452 [2], the provision creates a surrogate Commonwealth law by reference to the jurisdiction of those Territory Supreme Courts which then acts as a law of the Commonwealth under which matters may then arise.

  1. Notwithstanding any controversy as to the geographical extent of publication, the respondents did not dispute that the Federal Court has jurisdiction.  But this is not the end of the issue; it is trite that jurisdiction cannot be conferred by agreement and the views of the parties are not determinative of a jurisdictional question.  As Griffith CJ explained in Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited(1911) 12 CLR 398 at 415, the “first duty of every judicial officer is to satisfy himself that he has jurisdiction”. This duty was referred to by Gageler J in Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 at 306-307 [23]-[24], where his Honour regarded it of the “utmost importance” that a jurisdictional issue be raised at the earliest opportunity and for it to be considered and determined. For my part, in the light of the issue being raised, I consider it necessary that jurisdiction be established, regardless of the pragmatic approach adopted by the parties.
  2. I will come back to how federal jurisdiction is indubitably attracted in relation to this matter below, but before doing so, it is worth observing that it is now somewhat unusual for there to be any issue as to the jurisdiction of this Court where the complaint arises in relation to a mass media or social media publication.  Apart from the obvious point that most such publications would, one expects, be published to persons within the Territories, there are other bases upon which jurisdiction may be attracted.  Without seeking to delimit these circumstances, for the purposes of illustration, I will mention a few.
  3. The firstmerits mentioning notwithstanding it requires a short explanation of how federal jurisdiction works.  For those interested (and everyone practising in courts exercising federal jurisdiction should be), the principles are explained in detail by Allsop J (as the Chief Justice then was) writing extracurially in the article Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002(2002) 23 Aust Bar Rev 29).  The starting point is s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (JA) which provides:

The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

(emphasis added)

  1. The “matter” is the justiciable controversy between the actors involved, comprised of the substratum of facts representing or amounting to the dispute or controversy between them.  It is not the cause of action and is identifiable independently of a proceeding or proceedings brought for its determination: Fencott v Muller(1983) 152 CLR 570 at 603-608; Australian Securities and Investments Commission v Edensor Nominees Pty Limited[2001] HCA 1; (2001) 204 CLR 559 at 584-585 [50].
  2. When s 39B(1A)(c) of the JA was introduced in 1997, Parliament changed this Court from being a court of specific federal jurisdiction into a court of more general federal jurisdiction, extending its reach to all controversies or “matters” across all areas with respect to which the Parliament of the Commonwealth has made laws. So long as a “matter” can be said to “arise under” a law of the Parliament, then the Federal Court is vested with jurisdiction to hear the whole of the dispute. It follows that once the jurisdiction of the Court has been invoked by reference to a justiciable issue within federal jurisdiction (say, a related claim under a federal statute), the Court has “accrued” jurisdiction to determine the whole “matter” or controversy between the parties:  Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 584-588[136]-[147]. Accordingly, as a matter of impression and practical judgment, if a claim for defamation not otherwise within federal jurisdiction arises out of the same “matter” which is within federal jurisdiction, then it will form part of the one justiciable controversy and, if the jurisdiction of this Court is invoked, it will be the duty of this Court, exercising Chapter III judicial power, to quell the whole controversy. It is, of course, heterodox to speak of any notion of concurrent state and federal jurisdiction.
  3. Secondly, the Federal Court has original jurisdiction to hear a “pure” defamation action (that is, without the addition of any other cause of action or defence arising under a federal statute) where the publication somehow involves the consideration of the implied constitutional freedom of communication on governmental and political matters even if, as will commonly be the case, it is contended that the implied constitutional freedom will be raised by a respondent by way of defence. I have already made reference above to s 39B(1A) of the JA. Subsection (b) of that section provides that the original jurisdiction of the Court also includes jurisdiction in any matter “arising under the Constitution, or involving its interpretation”.
  4. Thirdly, again focussing on s 39B(1A)(b) of the JA, where there is a publication in more than one “Australian jurisdictional area” being a State (see ss 11(1)and (5) of the Defamation Act 2005(NSW) (Act) and its cognates), the full faith and credit provision of the Constitution (s 118) is engaged so as to enable courts to recognise and apply the provisions of the various uniform Defamation Acts as modifications of the laws of each Australian jurisdictional area and the common law of Australia. This is because where publications in more than one Australian jurisdictional area are sued upon, the law of each place of publication will create a substantive right to sue on that publication in that jurisdiction: see Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575.
  5. Fourthly, and more broadly, as Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ explained in LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581,a federal matter arises if a right, duty or obligation in issue in the matter “owes its existence to federal law or depends upon federal law for its enforcement” including where the right claimed is in respect of a right or property that is the creation of federal law. Whether or not a matter arises does not depend upon the form of the relief sought: LNC Industries at 581. This would involve when a right or duty based on a Commonwealth statute in issue arises (even where it has not been pleaded by the parties, or a federal issue is unnecessary to decide). A common example illustrates the potential breadth of this concept. It seems to me arguable that if a respondent is a corporation, the relevant matter arises under a law made by the Parliament within the meaning of s 39B(1A)(c) of the JA. Chapter 2Bof the Corporations Act 2001 (Cth) provides for the basic features of a company. As is explained in Ford, Austin & Ramsay’s Principles of Corporations Law (Lexis) at [4,050], the capacity of a company created under the Corporations Act, including its ability to be sued, is to be found in s 119 when it provides that a company on registration comes into existence as a body corporate. It is s 124(1) which gives the entity powers of a body corporate (as to a company registered before the commencement of the relevant Commonwealth law, being the Corporations Act, s 1378 provides that registration under earlier state law has effect as if it were registration under Pt 2 of the Corporations Act). The ability to sue the respondent as an entity now arises under and depends upon a law of the Commonwealth.
  6. This and other recondite ways that jurisdiction is attracted can be put to one side for present purposes, however, because the invocation of federal jurisdiction in the present case is quite straightforward.  Even if I were to find, contrary to Mr Oliver’s assertion in the initial statement of claim, that upon consideration of the evidence there was no proof of publication outside New South Wales, that does not mean the matter has not always been within federal jurisdiction since the assertion was made: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation(1987) 18 FCR 212 at 219. As the now Chief Justice noted in (2002) 23 Aust Bar Rev 29 at 45:

Once a non-colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC’s testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms:

So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction.

‘Colourable’ imports improper purpose, or a lack of bona fides. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process.

  1. There is no suggestion here that that the relevant assertion as to publication in the Territories made in the initial statement of claim was colourable.  Federal jurisdiction was thereby attracted and once federal, the matter is always federal: Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 at 13-16[45]-[55]. If an allegation of publication in the Territories is made bona fide, the Court is properly seized with jurisdiction to deal with the controversy and always will be even if the non-colourable allegation was unnecessary to decide, abandoned, struck out, or otherwise rejected on the evidence adduced at trial.  As it turns out in this case, no evidence was adduced by Mr Oliver to prove publication in the Territories being a material fact pleaded and upon which issue was joined.  As a consequence, the allegation fails for want of proof, but this does not mean that federal jurisdiction, properly invoked upon the bona fidemaking of the allegation, somehow disappeared like a will-o’-the-wisp.”

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 delivered 26 April 2019 per Lee J