Clause 58A of the Property Acquisition Bill⁽¹⁾ is to the effect that, until the establishment of the High Court, actions for compensation for land acquired by the Commonwealth, and all proceedings incidental thereto, may be brought in the Supreme Courts of the several States.

The Attorney-General of New South Wales raises the question as to the extent to which the Government of a State will authorise its judges to deal with matters over which they could have no jurisdiction unless it were conferred by the Federal Parliament, and which ought properly to be exercised by the High Court.

The jurisdiction of the High Court is not made exclusive by the Constitution in any class of cases, though the Federal Parliament is empowered to make it so (section 77). When the citizens of a State acquire rights under a Federal statute, the courts of the State have jurisdiction to determine those rights except so far as they are excluded from so doing by Federal legislation. Federal Acts of Parliament (like Imperial Acts in force in a State) are part of the law of the land, which under covering clause 5 of the Constitution Act are 'binding on the courts, judges, and people of every State'. Not only is it to the interest of the State, for the sake of its own citizens, to take advantage of these laws; the State courts are actually bound to enforce them within the limits of their several jurisdictions.

If the Federal Parliament (under section 78 of the Constitution) confers upon the citizens of a State a right to proceed against the Commonwealth in respect of any claim, it is conferring a privilege upon them and subjecting itself to an obligation. If it does not exclude the jurisdiction of the State courts in the matter, the State courts cannot decline the jurisdiction which they thus acquire. Their duties arising under that jurisdiction are not 'imposed' by the Federal Parliament, though they arise under Federal laws. Those duties are performed by them as State judges, by virtue of a State jurisdiction, and to enforce the rights of State citizens.

I do not think that the State need authorise its judges to deal with these matters nor that either of them can impose any obstacle to the hearing of such cases if clause 58A becomes law.

[Vol. 1, p. 125]

(1) Enacted as section 59 of the Propertyfor Public Purposes Acquisition Act 1901.