the charge is not limited in form to the Statute, and therefore will apply to both the Statute and the common law ": per ISAACS, J., 20 C.L.R., at pp. 439-448.

Mr. Justice POWERS, said :- It was admitted that if the first question is answered in the affirmative it is not necessary to consider questions 2, 3 and 4. It is not therefore necessary to decide whether this Court has original jurisdiction to try criminal offences under sec. 75 (III.) of the Constitution or under the common law of the Commonwealth or of the State, or whether the Commonwealth is a party to a trial on indictment within the meaning of the word 'party' in section 75 (III.) of the Constitution. As to question 5. the Act, No. 4 of 1915 (Judiciary Act 1915), confers on the High Court original jurisdiction to try indictable offences against the laws of the Commonwealth; and an indictable offence against a law of the Commonwealth is charged in the indictment in question."

The motion to quash the indictment was refused, the Full Court holding that the first question should be answered in the affirmative 20 C.L.R., 463.

Other Acts.

By the Customs Act 1901, section 245, customs prosecutions for the recovery of penalties or for the condemnation of ships or goods seized as forfeited may be instituted by action, information, or other appropriate proceedings in the High Court. Under the Excise Act 1901, section 134, excise prosecutions may be instituted in the High Court. Claims against the Commonwealth for compensation under the Property for Public Purposes Acquisition Act 1901, section 15, et seq., may be instituted in the High Court. Under the Commonwealth Electoral Act 1902, the High Court is constituted a Court of Disputed Returns to deal with petitions against the validity of any Federal election or return. By the Patent Act 1903, the High Court can deal with certain matters arising under that Act. § 139." IN MATTERS OF ADMIRALTY AND MARITIME

JURISDICTION."

LEGISLATION.

JUDICIARY ACT, No. 11 OF 1914.

The High Court is empowered to deal with matters of Admiralty and maritime jurisdiction. It is also declared to be a Colonial Court of Admiralty within the meaning of the Imperial Act known as the Colonial Court of Admiralty Act 1890.

Accidents to Seamen.

In the case of The Kalibia Owners, &c. v. Wilson, (1910) 11 C.L.R., 703, an attempt was made to sustain the validity of the Commonwealth Seamen's Compensation Act (1909) as an exercise of power with section 76 (III.) of the Constitution. Although this power is in terms confined to the making of laws to give original jurisdiction to the High Court, it was argued that it necessarily implied a power on the part of the Commonwealth to legislate substantively as to the Admiralty and maritime law generally. Cases were cited to show the adoption of that construction in the United States. Whatever might be the force of the reasoning of those cases, if Australia were in the same position as the United States at the time of the making of their Constitution-namely, that of a separated nation of independent sovereignty in its relation to the United Kingdom-the reason has no force here, where the implication from imperative necessity cannot be drawn. The power to legislate on matters of Admiralty and maritime laws, if it existed in several States at the time of Federation, remains reserved to them by force of section 107 of the Constitution. But there would be, and there is, an over-riding power to legislate on the subject in the Parliament of the United Kingdom, and the grant in section 76 (III.) cannot be construed as an implied transfer or even delegation, of that legislative power to the Parliament of the Commonwealth in respect of Australia. Per BARTON, J., 11 C.L.R., at p.p 703-704.

Power to define jurisdiction.

77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws

(i.) Defining the jurisdiction of any federal court other than the High Court :

(ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive140 of that which belongs to or is invested in the courts of the States:

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(iii.) Investing any court of a State with federal142 jurisdiction.

§ 140. "EXCLUSIVE JURISDICTION OF HIGH COURT.”

LEGISLATION.

JUDICIARY ACT 1903-1910, Sections 38 and 38A.

The jurisdiction of the High Court is declared to be exclusive of the jurisdiction of the several Courts of the States in the following matters:

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(a) Matters arising directly under treaty;

(b) Suits between States or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

(c) Suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;

(d) Suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;

(e) Matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a Federal Court.

38A. In matters (other than trials of indictable offences) involving any question, however arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the Supreme Courts of the States; so that the Supreme Court of a State shall not have jurisdiction to entertain or determine any such matter, either as a Court of first instance or as a Court of Appeal from an inferior Court."

§ 141. "BELONGS TO THE COURTS OF THE STATES.”

"Belongs."

LEGISLATION.

JUDICIARY ACT 1903, Section 39 (2) (a).

By the Constitution, section 77 (II.), the Parliament may make laws defining the extent to which the jurisdiction of a Federal Court shall be exclusive of that which "belongs to " or is vested in the

Courts of the States. Section 77 (II.) seems to imply that State Courts may possess some concurrent Federal jurisdiction, from which it may be desirable to exclude them; a distinction is drawn between jurisdiction which "belongs" to the Courts of the States and jurisdiction with which the Courts of the States may be “invested"; sub-section (III.) implies that the State Courts may lack some concurrent Federal jurisdiction with which it may be desirable to invest them. This is the key to sections 38 and 39 of the Judiciary Act. Section 38 defines certain matters which are excluded from the jurisdiction of State Courts; section 39 deals with other matters of Federal jurisdiction not mentioned in section 38 in which it is desirable the State Courts should have Federal jurisdiction, but equally desirable that they should only have it as a gift from the Commonwealth, and on terms or regulations laid down by the Parliament. This was done by first excluding State Courts from jurisdiction in these matters except "as provided in the section " and then re-investing them with jurisdiction on certain conditions, and subject to certain restrictions. The several Courts of the States are within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, invested with Federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38: Judiciary Act 1903, section 39 (2).

The term "federal jurisdiction means jurisdiction to deal with matters within the judicial power of the Commonwealth, i.e. the matters enumerated in sections 75 and 76 of the Constitution. Until the actual establishment of the Federal Courts the determination of such matters was, under covering clause V. of the Constitu tion, within the jurisdiction of the State Courts, who were bound to administer the laws of the Constitution and all laws passed by the Commonwealth Parliament.

Hence the words in sub-section (II.)" belongs to the Courts of the States" probably means that jurisdiction which was conferred on those Courts by the covering clause V. of the Constitution which states that "the laws of the Commonwealth shall be binding on the Courts and Judges"; and that clause was in operation before the passing of the Judiciary Act which invested the State Courts with Federal jurisdiction.

It is open to argument, but not necessary to decide, whether before the establishment of Federal Courts the State Courts were. in determining such questions, exercising "federal jurisdiction" or not, for in the Judiciary Act the Parliament undertook to exercise the powers conferred by section 77 (II.). This they did by section 39 of the Judiciary Act, which enacts in the first place that the jurisdiction of the High Court, i.e., its power to exercise the judicial power of the Commonwealth, shall be exclusive of the jurisdiction of the several Courts of the States except as provided in this section." Without the latter proviso, the jurisdiction of the State Courts would have been entirely ousted. But" as pointed out by the judgment of the Court in Baxter's Case, infra, p. 735, “ the Parliament might on the next day have passed another law investing the State Courts with Federal jurisdiction. And the fact that they proceeded to do so by the same Act can make no difference in the result than the fact that a power of revocation and new appointment is exercised by one instrument instead of two. The result is that the Federal jurisdiction of the State Courts is now derived from a new source, with all the incidents of jurisdiction derived from that new source, one of which is an appeal in all cases to the High Court" 4 C.L.R., at p. 1137.

§ 142. "INVESTING WITH FEDERAL JURISDICTION.”

LEGISLATION.

JUDICIARY ACT 1903-1910, Section 39 (1) (2).

39.(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of either of the last two preceding sections (38 and 38a) shall be exclusive of the jurisdiction of the several Courts of the States except as provided in this section."

39. (2) The several Courts of the States shall within the limits of their several jurisdictions whether such limits are as to locality. subject-matter or otherwise, be invested with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in the last preceding section and subject to the following conditions and restrictions."