Australian law areas: the status of laws and jurisdictions

Abstract

This article argues that the recent decision of the High Court of Australia in John Pfeiffer Pty Ltd v Rogerson will have an effect for State laws comparable to the effect the Engineers case had for Commonwealth laws. In each case the fundamental juridical status of the Australian constitutional order is changed. The implications of this for Australia-wide accruals of jurisdiction are discussed. It is often wrong to try to separate laws from the jurisdictions in which they are applied. So Pfeiffer's expansion of the juridical base of State laws ought to imply an expansion (ie accrual) of jurisdictions beyond their primary law area. This is of particular importance following the (partial) demise of the Australian cross-vesting scheme. The author argues that the scheme was misconceived as a co-operative scheme. Its true basis lay in Commonwealth co-ordination in a Commonwealth law area. The States did not federate to co-operate with the entity they created (Commonwealth); rather, they federated to give that entity power to co-ordinate certain matters (including jurisdictions). The common law as a law area is discussed, and two meanings of common law are identified: the ordinary common law (Pfeiffer's substantive decision about conflicts of laws in tort), and the underlying relations of law areas (Pfeiffer's implication). Finally, it is suggested that the decision in Pfeiffer holds the key to emergence of world courts.