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Australia original or appellate jurisdiction in any matter in respect of which, by virtue of section 48A, jurisdiction is conferred on the Supreme Court.
26 The Attorney-General of the Commonwealth submitted that the jurisdiction conferred on the Supreme Court by s 20(1) of the Supreme Court Act 1933 (ACT) clearly extended to hearing and determining claims arising in the Australian Capital Territory under the common law of defamation and Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT). She submitted that the Supreme Court had jurisdiction with respect to the present matter "otherwise than by reason of a law of the Commonwealth or of another State" as that language was clearly intended to capture matters in which the Supreme Court exercised jurisdiction conferred by or under ACT enactments.
27 Although s 9(3) referred in terms to a law of the Australian Capital Territory conferring jurisdiction on the Federal Court the correct construction, it was submitted, was that the Commonwealth Parliament itself conferred jurisdiction on the Federal Court.
28 Consistently with the approach of the High Court in Ruhani v Director of Police (2005) 222 CLR 527 (Ruhani), it was submitted that s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) should be read as picking up, as Commonwealth law, the Supreme Court's jurisdiction to hear and determine the present dispute. No second law under s 122 was necessary, she submitted, as the same provision could, and here did, both confer jurisdiction and create rights, those rights having the force of laws of the Commonwealth in respect of which a matter may arise within s 76 (ii) of the Constitution: reference was made to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 (Barrett); Hooper v Hooper (1955) 91 CLR 529 and Ruhani (above).
Consideration
29 At first glance, s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) appears to supply the gateway to the present issue. It provides that where the Supreme Court of a Territory has jurisdiction with respect to a civil matter then jurisdiction is conferred on the Federal Court, if it would not apart from the section have jurisdiction with respect to that matter. But s 3(1) of that Act provides that "Territory" does not include the Australian Capital Territory and "State" does include the Australian Capital Territory.
