Case: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367
Outcome: followed
The fact that those statutory provisions must be construed does not of itself satisfy the requirement that the controversy or dispute between the parties must " arise under any law made by the Parliament ": Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367. The then Chief Justice observed at 374: The critical question in the case is whether the defence did involve the exercise of federal jurisdiction by the Supreme Court. It would do so if the matter before the Supreme Court became or involved by reason of the defence raised to the applicant's claim, either wholly or partly a matter arising under a law made by the Parliament, in this case the Matrimonial Causes Act : see Constitution s. 76(ii) and Judiciary Act s. 39(2). Further the matter arising under a law of the Parliament will have arisen if the suit could have been disposed of by deciding the matter, whether or not the suit was so disposed of : cf. Nelungaloo Pty . Ltd . v . The Commonwealth [1952] HCA 11 ; [(1952) 85 CLR 545] ; The Commonwealth v . Bank of New South Wales [(1949) 79 CLR 497]. It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76(i.) and 76 (ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. Justice Walsh further observed at 408 9: A comparison between the terms of s. 76(i.) and those of s. 76(ii.) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R . v Commonwealth Court of Conciliation and Arbitration ; Ex parte Barrett [1945] HCA 50 ; [(1945) 70 CLR 141] by Latham C.J. and by McTiernan J. [(1945) 70 CLR, at p 173]. There Latham C.J. said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" [(1945) 70 CLR, at p 154]. Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act. ... And Gibbs J, as his Honour then was, observed at 416: ... I regard it as now settled that a matter cannot be said to arise under a law made by the Parliament within s. 76 (ii.) simply because to decide the matter it is necessary to consider or construe the law. To adapt some of the language used in James v . South Australia [1927] HCA 32 ; [(1927) 40 CLR 1 at 40], in relation to s. 30 of the Judiciary Act , it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law. 40 The point at which interpretation of a federal statute may give rise to a matter arising under that statute is " not readily expressed in universally valid terms ". But the distinction between the two situations, it has been said, must be maintained: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 at 374 per Barwick CJ. 41 Section 39B(1A)(c) does not confer jurisdiction on this Court to review the decisions of the Authority. 42 The conclusion that this Court has no jurisdiction to entertain the Amended Application renders it unnecessary to separately consider whether or not any Ground of Review has otherwise been established by the Applicant. As the question was briefly addressed, some limited comments may nevertheless be appropriate.