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the House of Representatives. Counsel replied that it seemed inevitable that the defence would include such reliance, subject to his client's instructions.
11 The Court therefore directed the respondent to file his defence and adjourned the matter. This was because where a matter pleaded by way of defence relies on a right, privilege or immunity founded in the Constitution, here Lange (above) or on a party's position as a member of the House of Representatives and the privileges and immunities of a member of the House of Representatives, the matter would be likely to be in federal jurisdiction and within the jurisdiction of this Court. This would be by virtue of the Constitution, s 76(i): "a matter arising under this Constitution, or involving its interpretation" and s 39B(1A) (b) of the Judiciary Act 1903 (Cth). On that view it would not be necessary to consider the validity or operation in the Australian Capital Territory of the cross-vesting legislation, that is, primarily, the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
12 However the defence filed on 4 May 2012 did not raise such a defence. Instead, the defence denied that the matter complained of bore the pleaded imputations; denied that the matter complained of was defamatory of either applicant and further said that the matter complained of was substantially true.
13 It therefore became necessary again to set down for hearing the interlocutory application raising the question of the Court's jurisdiction.
14 The pleadings have now closed as the applicants do not intend to file a reply to the defence.
15 The respondent served an amended notice under s 78B of the Judiciary Act 1903 (Cth) dated 18 May 2012 since the applicants had not originally relied on, and the respondent had not originally challenged the validity of, s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The nature of the Constitutional matter there set out was as follows:
Does s4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) validly confer jurisdiction on the Federal Court of Australia?
Does s9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) validly confer jurisdiction on the Federal Court of Australia?
Is the common law of Australia as it applies in the Australian Capital Territory a law "made by the Parliament" within the meaning of s76(ii) of the Constitution?
