ABSTRACT
However, certain provisions (ss 185-87, and those referred to in s 5) apply to proceedings in all ‘Australian courts’, this term referring to the High Court, courts exercising federal jurisdiction, State and Territory courts, judges and arbitrators under Commonwealth, State or Territory law, persons or bodies authorised under Commonwealth, State or Territory law or by the consent of parties to hear, receive and examine evidence (thus, the Refugee Review Tribunal is an ‘Australian court’, even if it is not a ‘federal court’ as defined: Epeabaka v Minister for Immigration and Multicultural Affairs (1997)), or persons or bodies that in exercising a function under a law of the Commonwealth, State or Territory are required to apply the laws of evidence. The source of the Commonwealth’s power to legislate in relation to certain matters affecting State courts not exercising federal jurisdiction may be found in s 51(xxiv): service and execution throughout the Commonwealth of the process and judgments of State courts; and (xxv): recognition throughout the Commonwealth of the laws, records and judicial proceedings of the States found in the Constitution in s 51(xxiv), and these justify the validity of those sections in the Evidence Act, bearing in mind the limited nature of the provisions referred to in s 5, some of which also involve s 51 ((v): postal, telegraphic and like services) of the Constitution. Otherwise, the Commonwealth cannot legislate generally and override inconsistent State legislation in relation to State courts not exercising federal jurisdiction.
