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2000
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
JURISDICTION OF COURTS LEGISLATION AMENDMENT BILL 2000
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Daryl Williams AM QC MP)
ISBN: 0642 429529
The Jurisdiction of Courts Legislation Amendment Bill
contains amendments to a number of Commonwealth Acts. The
amendments:
• deal with some of the
consequences of the High Court’s decision in Re Wakim; ex parte
McNally [1999] HCA 27; and
• make
provision with respect to the review of decisions in the criminal justice
process.
In Re Wakim, the Court decided that
Chapter III of the Constitution precludes the conferral of State jurisdiction on
federal courts. Schedule 1 to the Bill repeals invalid provisions of
Commonwealth laws that purport to consent to the conferral of State jurisdiction
on federal courts.
Schedule 1 also confers federal
jurisdiction on federal courts to review the decisions of Commonwealth officers
and bodies made in the performance of functions conferred on them by specified
State and Territory laws. Until Re Wakim, federal courts exercised State
jurisdiction to review such decisions. Re Wakim invalidated the
conferral of that State jurisdiction. Re Wakim has no effect on the
conferral by Territories of jurisdiction on federal courts. However, for the
purpose of achieving uniform coverage of decisions of Commonwealth officers
under State and Territory law, the Bill treats the Territories like States. The
Bill will also enable the Supreme Court of a State or Territory to exercise
federal judicial review jurisdiction in limited circumstances, where related
proceedings are before a court of the State or
Territory.
Schedule 2 contains amendments to the
Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the
Corporations Act 1989 (Corporations Act) and the Judiciary Act
1903 (Judiciary Act) that restrict the access of defendants in criminal
matters to administrative law remedies.
The measures in this Bill have no financial impact.
This clause sets out the short title of the Act.
This clause specifies when the provisions of the Act are to commence.
Sections 1, 2 and 3 commence on the day on which the Act receives royal assent.
Items 75 to 88 of Schedule 1, which amend the Trade Practices Act 1974, also commence on that day.
The other items in the Schedules will commence on a day or days fixed by Proclamation. This will enable particular amendments to come into effect when corresponding amendments to State laws come into effect. If an item has not been proclaimed to commence within 6 months from the day on which the Act receives royal assent, it will commence on the first day after that period.
This clause provides that the Acts specified in Schedules 1 and 2 are amended as set out in the relevant items of the Schedules. Other items in the Schedules (including transitional provisions) have effect according to their terms.
Schedule 1 contains amendments to Commonwealth Acts that relate to the inability of federal courts, as a result of Re Wakim, to exercise State jurisdiction. Those amendments:
• repeal provisions which purport to consent to the conferral of State jurisdiction on federal courts; and
As part of several co-operative
State/Territory/Commonwealth schemes, the States and the two internal
Territories conferred powers and functions on the Administrative Appeals
Tribunal (AAT) by adopting the Administrative Appeals Tribunal Act 1975
(AAT Act) as State or Territory law. Generally speaking, the adoption of the
AAT Act by States has survived the decision in Re Wakim (see comments on
the ADJR Act below).
The exception to this general
proposition relates to the role of the Federal Court under the AAT Act. Section
44 of the AAT Act provides for appeals from AAT decisions to the Federal Court
on questions of law and section 45 provides for references by the AAT of
questions of law to the Federal Court. When those provisions were adopted by
the States as State laws, they purported to confer the relevant jurisdiction on
the Federal Court as State jurisdiction. Re Wakim invalidated that
purported conferral.
The amendments to the AAT Act
contained in the Bill will make certain that the Federal Court has jurisdiction
to deal with AAT matters by virtue of the AAT Act applying as Commonwealth law,
even where the AAT itself is acting pursuant to powers conferred by a State or
Territory. The High Court recognised in Re Cram (1987) 163 CLR 117 that,
in general, where a Commonwealth officer or authority exercises a power or
function validly conferred by State law, the officer or authority remains a
Commonwealth officer or authority, amenable to federal judicial
review.
Item 1 will create a new Part IVA of the AAT Act called ‘Appeals and references of questions of law to the Federal Court of Australia’. Part IVA will contain existing sections 44-46 and new section 43B.
The application of the AAT Act by the Northern Territory (NT) and Australian Capital Territory (ACT) as Territory law, and the conferral by those Territories of Territory jurisdiction on federal courts, are unaffected by the High Court’s decision in Re Wakim. However, to achieve consistency in the operation of the AAT Act as Commonwealth law in relation to the States and Territories, the Bill amends the AAT Act to apply Part IVA in relation to decisions made by the AAT under Territory laws as well as State laws.
Subsection 43B(1)
This subsection will extend the operation of Part IVA (and thus the jurisdiction of the Federal Court) to cover a proceeding before the AAT (whether the proceeding was before the AAT before or after the commencement of section 43B) where the AAT is exercising power under a law of a State or the NT or ACT.
Subsection 43B(2)
This subsection makes provision for the operation of Part IVA in relation to a proceeding before the AAT under power conferred on the AAT by a law of a State or the NT or the ACT. It provides that, in relation to such a proceeding, any reference in Part IVA to a provision of the AAT Act outside Part IVA is to operate as if it were a reference to the corresponding provision of the law of the State or Territory.
This item contains:
• transitional provisions relating to matters arising before the commencement of item 1; and
• provisions that, after that commencement, apply the AAT Act to appellable State and Territory decisions as defined.
Subitem 2(1)
This subitem defines certain terms used in item 2.
Subitem 2(2)
Subsection 44(2A) of the AAT Act gives a person 28 days after being furnished with the terms of a decision of the AAT in which to appeal under subsection 44(1) or (2). The Federal Court may extend the appeal period.
Subitem 2(2) makes provision for different appeal periods to apply in the case of persons who lost appeal rights as a result of the Re Wakim decision. The object of subitem 2(2) is in effect to restore those rights. The following persons are covered:
• a person who, between 20 May 1999 and the commencement of items 1 and 2, had a right under the AAT Act as it applied as State law to appeal under section 44(2A) on a question of law to the Federal Court in its exercise of State jurisdiction (this is the first situation, mentioned in paragraph 2(2)(a) );
• a person who, before 17 June 1999, had been given further time by the Federal Court under section 44(2A) of the AAT Act as it purportedly applied as a law of a State to appeal from a decision of the AAT (this is the second situation, mentioned in paragraph 2(2)(b) );
• a person who, before 17 June 1999, had instituted an appeal under section 44 of the AAT Act as it purportedly applied as a law of a State and the proceedings were before the Federal Court immediately before that date (this is the third situation, mentioned in paragraph 2(2)(c) ).
Subitem 2(2) provides that the 28 day period referred to in section 44(2A) runs from the commencement of the amendments to the AAT Act made by the Bill. The note to subitem 2(2) makes clear that a person may, after the amendments to the AAT Act made by the Bill come into force, apply for an extension of any 28 day period applicable in relation to a decision of the AAT made more than 28 days before 17 June 1999.
Subitem 2(3)
As noted above, while Re Wakim invalidated the conferral of State jurisdiction on the Federal Court by the State applied AAT Acts, it did not affect the conferral of Territory jurisdiction on the Court. Therefore, until the commencement of the amendments to the AAT Act made by the Bill, those provisions of the AAT Act which confer jurisdiction on the Federal Court, as they apply as laws of the NT and ACT, continue to operate.
However, for the sake of national consistency, subitem 2(3) provides that a law of the NT or ACT which provides for the application of the AAT Act as a law of the Territory will be of no effect after that commencement in so far as it purports to apply sections 44-46 of that Act. Part IVA will apply to the Territories by virtue of the Commonwealth Act only.
Subitem 2(4)
This subitem makes provision in relation to proceedings with respect to an appellable Territory decision (as defined) that were before a court under any of sections 44 to 46 of the AAT Act (as it applied as a law of the NT or ACT) immediately before the commencement of item 1. Subitem 2(4) provides that, after the commencement of item 1, those proceedings continue in the court as if they had been commenced in the court under the Act as so amended, that is, under the jurisdiction conferred by the AAT Act applying as Commonwealth law.
Subitem 2(5)
This subitem makes provision in relation to orders made by a court, before the commencement of the amendments to the AAT Act made by the Bill, under any of sections 44 to 46 of the AAT Act as it applied as a law of the NT or ACT. Those orders have effect, after the commencement, as if they had been made by the court under the AAT Act as so amended.
As a result of the decision in Re Wakim, the purported adoption by States of the ADJR Act fails entirely. The object of the amendments to the ADJR Act is to restore the pre-Wakim system of judicial review, as it applied to Commonwealth officers and authorities performing functions under State law, but as Federal rather than State jurisdiction.
The amendments in the Bill to the ADJR Act will extend the Act’s operation as Commonwealth law to conduct and decisions taken by Commonwealth officers and authorities under powers and functions conferred by specified classes of State or Territory laws. A new Schedule 3 will be added to the ADJR Act which will list those classes of laws. As noted above, the High Court has recognised that, in general, where a Commonwealth officer or authority exercises a power or function validly conferred by a State law, the officer or authority remains a Commonwealth officer or authority, amenable to federal judicial review (Re Cram (1987) 163 CLR 117).
The amendments will mean that where a State or Territory law confers functions or powers on a Commonwealth officer or authority, and the law is one of a class listed in new Schedule 3, the Commonwealth ADJR Act will apply as Commonwealth law to those functions and powers. Since the jurisdiction conferred on the Federal Court will be federal jurisdiction, the Federal Court will be able to undertake ADJR review.
This item inserts a new definition of the term ‘Commonwealth authority’ subsection 3(1) of the ADJR Act.
This item repeals the existing definition of the term
‘decision to which this Act applies’ in subsection 3(1) of the ADJR
Act and replaces it with a new definition. The new definition relates to the
new definition of ‘enactment’ created by item 9, and extends to
decisions made by a Commonwealth authority or officer of the Commonwealth under
a State or Territory enactment described in Schedule 3 to the ADJR Act, (or
instruments made under such an enactment).
These items amend the definition of
‘enactment’ in subsection 3(1) of the ADJR
Act.
The definition is altered by adding two new
paragraphs (item 9). This will expand the definition of ‘enactment’
to cover Acts or parts of Acts of the States or the Territories which are
described in Schedule 3, and instruments made under such Acts or parts of
Acts.
The inclusion of these new paragraphs means
that it has been necessary to clarify other paragraphs of the definition,
particularly in relation to Territories. Items 5 and 6 ensure that Acts of the
ACT other than those described in Schedule 3 do not fall within the definition
of enactment. Item 7 ensures that the definition of enactment extends to
ordinances of both the ACT and the NT (although, generally speaking, such
ordinances are excluded from the definition of ‘enactment’ by
section 3A of the ADJR Act). Item 8 ensures the exclusion from the concept of
‘enactment’ of instruments covered by section
3A.
Item 10 amends paragraph (d) of the definition,
to ensure that the NT laws other than Schedule 3 laws may be declared by the
regulations to be enactments.
Item 11 ensures that
the definition of ‘enactment’ includes parts of Acts, or instruments
made under Acts described in Schedule 3. The combined effect of paragraphs (ca)
or (cb), and the final lines of the definition, is that part of an Act or
instrument made under an Act may be an enactment for the purposes of the ADJR
Act.
ITEM
12
Item 12 adds a note to the end of the
definition of enactment directing the reader to the fact that regulations made
for the purposes of section 19B can amend Schedule 3 to the ADJR Act.
Item 13 adds a definition of ‘officer of the
Commonwealth’ to subsection 3(1).
Subsection 3(7) of the ADJR Act provides that a reference
to an Act in a Schedule to the ADJR Act shall be read as including a reference
to delegated legislation in force under that Act. Item 14 ensures that
subsection 3(7) of the ADJR Act also applies to State and Territory
Acts.
ITEM
15
This item inserts a new subsection (7A) in
section 3 of the ADJR Act. Subsection (7A) will ensure that where an Act, or
part of an Act, of a State or Territory applies all or part of another Act or
other instrument as a law of the State or Territory, that other Act or
instrument is to be treated as if it were part of the State or Territory Act.
This means that where, for example, a Corporations Act of a State applies the
Corporations Law contained in section 82 of the Commonwealth Corporations Act as
a law of the State, the Corporations Law is to be treated as part of the
Corporations Act of the State for the purposes of the ADJR
Act.
ITEM
16
This item repeals the existing definition of
‘Commonwealth authority’ in subsection 3(9) which applies only
to the Schedule to that Act. There is a new definition of ‘Commonwealth
authority’ in subsection 3(1) which is in similar terms to this repealed
definition, but which will apply to the whole of the ADJR
Act.
ITEM
17
This item ensures that the general exemption
of ACT enactments from the operation of the ADJR Act does not extend to
enactments which are described in Schedule 3, or instruments made under such
enactments.
ITEM
18
This item inserts a note at the end of
subsection 9(1). The note draws the reader’s attention to the fact that,
although subsection 9(1) is expressed to be in absolute terms, some jurisdiction
over decisions described in subsection 9(1) is conferred on State and Territory
Supreme Courts by the Acts
noted.
ITEM
19
This item, item 21 and item 25 remove from
the ADJR Act references to the National Companies and Securities Commission, and
the Ministerial Council for Companies and Securities. These bodies exercised
powers under the precursor to the Corporations Law. The bodies no longer exist,
and references to them in the ADJR Act are now
redundant.
ITEM
20
This item removes the definition of
‘officer of the Commonwealth’ from section 9 of the ADJR Act. Item
13 inserts a general definition of ‘officer of the Commonwealth’ in
subsection 3(1), and the definition in subsection 9(2) is now
superfluous.
ITEM
21
See item
19.
ITEM
22
Paragraph 17(d) of the ADJR Act deals with
the situation where no person currently holds or performs the duties of an
office, or the office no longer exists. In such a case, the ADJR Act is to
have effect as if the relevant decision had been made by a person specified by
the Minister administering the enactment (or his or her delegate). However, in
cases where the relevant enactment is a State or Territory enactment, the
Minister ‘administering’ the enactment would be a State or Territory
Minister, while the relevant office would be a Commonwealth office.
Item 22 will provide that, where decisions made
under State or Territory enactments are concerned, the Commonwealth
Attorney-General will be the person responsible for specifying the person, as
required by paragraph
17(d).
ITEM
23
Subsection 19A(1) of the existing Act
permits regulations to declare a law or part of a law of the NT to be an
enactment for the purposes of the ADJR Act. This item adds a note to the end of
the subsection directing the reader’s attention to the fact that certain
laws of the NT are enactments without the need for a declaration to be made
under subsection 19A, because they are described in new Schedule 3A to the ADJR
Act.
ITEM
24
New Schedule 3 to the ADJR Act contains a
list of classes State and Territory Acts to which the ADJR Act is to apply, in
so far as they confer powers and functions on Commonwealth officers and
authorities.
Item 24 provides for Schedule 3 to be
amended by regulation. The reason this approach has been adopted is that
Schedule 3 deals with co-operative legislative schemes which operate as the
result of agreement between the States and the Commonwealth. The inclusion of
State legislation in Schedule 3 will be necessary in order for ADJR remedies to
be available to individuals aggrieved by the actions of Commonwealth officers or
authorities. If it is necessary in a given case to wait until Schedule 3 can
be amended by legislation, a period may pass in which individuals are unable to
seek ADJR Act review of a decision made by a Commonwealth officer or
authority.
Descriptions of State and Territory Acts
will also be removable from Schedule 3 by regulation. This will allow for a
quick alteration of the Schedule in a situation where a Commonwealth/State
scheme is dissolved.
Matters can currently be
removed from the coverage of the ADJR Act by regulation, without amending the
text of Schedule 1 (see section 19 of the ADJR Act).
ITEM 25
See
item 19.
ITEM
26
This item adds a new Schedule 3 to the ADJR
Act. Schedule 3 describes classes of Acts of the States and the Territories
that will be ‘enactments’ for the purposes of the ADJR Act.
Decisions made by Commonwealth officers and authorities under the Acts described
in Schedule 3 will be subject to judicial review under the ADJR
Act.
ITEM
27
This item contains transitional provisions
dealing with the implementation of the amendments to the ADJR Act contained in
items 3 - 26.
Subitem 27(1)
This subitem contains definitions of certain terms used in item 27.
Subitem 27(2)
Subsection 11(1) of the ADJR Act provides that when a person is applying for an order of review of a decision that has been made, the terms of which were recorded in writing and set out in a document that was furnished to the applicant, the application must be lodged within the prescribed period. Subsection 11(3) provides that the prescribed period, generally speaking, ends 28 days after the document recording the decision was furnished to the applicant. The Federal Court may extend the application period (subsection 11(1)).
Subitem 27(2) makes provision for different prescribed periods to apply in the case of persons who lost the right to make an application under the ADJR Act as a result of the Re Wakim decision. The object of subitem 27(2) is in effect to restore those rights. The subitem extends the prescribed period in each of the following cases to a date 28 days after the commencement of these amendments:
• the first situation (paragraph 27(2)(a)), where the decision to be reviewed was made between 20 May 1999 and the commencement of the amendments to the ADJR Act made by the Schedule (the prescribed period);
• the second situation (paragraph 27(2)(b)), where prior to 17 June 1999 the Federal Court, acting pursuant to powers purportedly conferred on it by a State, had purported to make an order extending the period in which a person could apply for an order of review of the decision and the period had not expired by 17 June;
• the third situation (paragraph 27(2)(c)), where before 17 June 1999 proceedings involving an application for an order of review had already commenced in the Federal Court pursuant to powers purportedly conferred on that Court by a State.
Subitem 27(2) provides that the 28 day period referred to in section 11 runs from the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill. The note to subitem 27(2) makes clear that a person may, after the amendments to the ADJR Act made by Schedule 3 of the Bill come into force, apply for an extension of any 28 day period applicable in relation to a reviewable State decision made more than 28 days before 17 June 1999.
Subitem 27(3)
As noted above, while Re Wakim invalidated the conferral of State jurisdiction on the Federal Court by the State applied ADJR Acts, it did not affect the conferral of Territory jurisdiction on the Court. Therefore, until the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill, those provisions of the ADJR Act which confer jurisdiction on the Federal Court, as they apply as laws of the NT and ACT, continue to operate.
However, for the sake of national consistency, subitem 27(3) provides that a law of the NT or ACT which provides for the application of the ADJR Act as a law of the Territory will be of no effect after that commencement in so far as it purports to apply that Act in relation to a reviewable Territory decision. Part IVA will apply to the Territories by virtue of the Commonwealth Act only.
Subitem 27(4)
This subitem deals with proceedings in relation to a reviewable Territory decision that were before a court under the ADJR Act (as it applied as a law of the NT or ACT) immediately before the commencement of the amendments to the ADJR Act made by Schedule 3 to the Bill. Subitem 27(4) provides that, after that commencement, those proceedings continue in the court as if they had been commenced in the court under the amended ADJR Act, that is, under the jurisdiction conferred by the ADJR Act applying as Commonwealth law.
Subitem 27(5)
This subitem deals with orders made by a court, before the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill, under the ADJR Act as it applied as a law of the NT or ACT. Those orders have effect, after the commencement, as if they had been made by the court under the amended ADJR Act.
ITEM
28
This item repeals subsection 9A(2) of the
Australian Sports Drug Agency Act 1990 (ASDA Act) and replaces it with
two new subsections. The old subsection (2) purported to give Commonwealth
consent to the conferral by States or Territories of powers and functions on the
Federal Court. New subsection (2) permits the conferral of powers by States on
members of the Federal Court (acting in a personal capacity) or on officers of
the Court. New subsection (3) permits the conferral of jurisdiction on the
Federal Court by Territories.
.
The Corporations Law provides for
a cross-vesting scheme which operates independently of the general cross-vesting
scheme contained in the Jurisdiction of Courts (Cross-vesting) Act 1987
(the JCCV Act). Provision of the Corporations Act provide for the conferral of
State jurisdiction on federal courts; these provisions are now to be removed
from the Act.
In addition, the Corporations Law
provides for the adoption by States of Commonwealth administrative laws. The
amendments will ensure that the Federal Court can continue to judicially review
decisions of Commonwealth officers performing functions under the Corporations
Law.
To ensure that State and Territory Courts will
be able to exercise jurisdiction in the same limited circumstances as under new
section 6A of the JCCV Act, the relevant jurisdiction will be conferred on State
and Territory Courts in the Corporations
Act.
ITEM
29
Section 49 of the Corporations Act describes
the jurisdiction which is conferred on courts in Division 1 of Part 9 of that
Act. This item inserts into subsection 49(1) a paragraph which indicates that
the Division also deals with the jurisdiction of courts generally under the ADJR
Act in the circumstances
described.
ITEM
30
This item amends subsection 50(1) by adding
a definition of ‘Commonwealth authority’. The definition is the
same as that inserted in the ADJR Act and the JCCV Act by the
Bill.
ITEM
31
This item amends section 51 of the
Corporations Act by inserting two new
subsections.
Subsection
51(2A)
This subsection confers on the Supreme
Courts of each State (including the NT) and the ACT, jurisdiction with respect
to matters arising under the ADJR Act involving decisions made or proposed or
required to be made under the Corporations Law of a State or the ACT by a
Commonwealth officer or authority of the Commonwealth. This is despite the
express restriction in section 9 of the ADJR Act preventing State Courts from
exercising this kind of jurisdiction (see the discussion of item 18
above).
The jurisdiction is conferred on the
Supreme Courts to enable the Commonwealth administrative law regime to apply to
the relevant decisions. In the absence of such a conferral, challenges to the
relevant decisions could only be dealt with in the Federal Court. It is
important to note that, while this jurisdiction is conferred in general terms,
Supreme Courts of States and Territories may only exercise the jurisdiction in
limited circumstances (see the discussion of items 34 and 35
below).
Subsection
51(2B)
This subsection indicates that
subsection (2A) applies to decisions made, proposed to be made or required to be
made, whether or not the decision involves the exercise of a discretion, and
whether or not the relevant decision was made, proposed to be made or required
to be made before the commencement of subsection
(2A).
ITEM
32
This item provides that subsection 51(3)
applies also to matters arising under new subsection 51(2A), ensuring that the
jurisdiction conferred on the relevant State Supreme Court is not subject to
other jurisdictional limits to which that Court may otherwise be
subject.
ITEMS
33-35
Section 53 of the Corporations Act
provides for transfer of proceedings by courts to other courts with jurisdiction
in the matter for determination. Under the existing provisions, matters could
be transferred between courts having the relevant jurisdiction, where the
conditions contained in existing subsection (2) were satisfied. However,
previously, matters involving review of decisions of officers or authorities of
the Commonwealth could not have been transferred to State or Territory Supreme
Courts because of the operation of section 9 of the ADJR
Act.
Subsection 51(2A) will now provide that State
and Territory Supreme Courts may exercise jurisdiction in some cases involving
review of decisions of officers or authorities of the Commonwealth. Items 33-35
provide for the circumstances in which this jurisdiction may be exercised by the
Supreme Courts, and for the circumstances in which the matter must be
transferred to the Federal
Court.
ITEM
33
This item divides the matters to be dealt
with by section 53 into two types: proceedings with respect to civil matters
arising under the Corporations Law of the ACT that are in a court having
jurisdiction under subsection 51(1) or (2); and proceedings with respect to a
matter referred to in subsection 51(2A) - that is, in a court having
jurisdiction under that subsection, ie, matters arising under the ADJR Act
involving decisions made or proposed or required to be made under the
Corporations Law of a State or the ACT by a Commonwealth officer or authority of
the Commonwealth (whether under the Corporations Law of the ACT or of a
State).
ITEMS 34 and
35
Where proceedings fall within paragraph (a)
of subsection 53(1) of the Corporations Act, the rule regarding transfer of
proceedings set out in subsection 53(2), as amended by item 34, will
apply.
However, for proceedings which fall within
paragraph (b) of subsection 53(1), a separate set of transfer provisions
(subsections 53(3) - (7), see below) will apply. These are added by item
35.
One of the consequences of the inability of the
Federal Court to deal with most matters arising under the Corporations Laws of
States is that these matters must now be filed in State courts. However,
matters which involve judicial review of decisions of Commonwealth officers and
authorities under those Corporations Laws will continue to be dealt with,
generally speaking, by the Federal Court. The provisions added by items 34 and
35 are intended to ensure that where a proceeding arises under the Corporations
Law in any State court, it may be dealt with by the State Supreme Courts.
Provision is also made for the circumstances in which the matter must be
transferred to the Federal Court.
Subsection
53(3)
This subsection deals with the
circumstances which arise when the judicial review proceeding is pending in a
State or Territory Supreme Court. The judicial review proceeding must be
transferred to the Federal Court unless it arises out of or is related to a
Corporations Law proceeding (itself not a judicial review proceeding) which is
pending in a court of that State or Territory.
Subsection
53(4)
This subsection permits a Supreme Court
to transfer the judicial review proceeding to the Federal Court even if
subsection 53(3) does not require it to do so, if the Supreme Court considers
that would be appropriate having regard to the interests of justice. The Court
must however take note that the notion of ‘the interests of justice’
includes the desirability of related proceedings being heard in the same
jurisdiction. This consideration would mean that, in the ordinary course of
events, the Supreme Court would not transfer the matter to the Federal
Court.
Subsection
53(5)
This subsection deals with transfers of a
judicial review proceeding pending in the Federal Court to a Supreme Court. If
there is a related non-judicial review Corporations Law proceeding in a State
or Territory court, the Federal Court may transfer the judicial review
proceeding to the Supreme Court of that jurisdiction, if the Federal Court
considers it to be appropriate having regard to the interests of justice,
including the desirability of related proceedings being heard in the same
jurisdiction. This consideration would mean that, in the ordinary course of
events, the Federal Court would transfer the matter to the relevant State or
Territory Supreme Court where a related proceeding is being heard [or is
pending] in the Supreme Court.
Subsection
53(6)
To remove doubt, this subsection
provides, that section 53 does not confer on a court jurisdiction that it would
not otherwise have.
Subsection
53(7)
This subsection notes that subsections
53(4) and 53(5) include specific reference to the interests of justice include
the desirability of proceedings being heard in the same jurisdiction. This
should not mean that other references to the interests of justice should be
taken not to include the desirability of proceedings being heard in the same
jurisdiction, even though no such specific reference is made in those other
references.
ITEM
36
This item adds a new subsection to section
53A. To remove doubt, subsection (5) provides, that section 53A does not confer
on a court jurisdiction that it would not otherwise
have.
ITEM
37
This item adds a new subsection to section
53AA. To remove doubt, subsection (6A) provides, that section 53A does not
confer on a court jurisdiction that it would not otherwise
have.
ITEM
38
Section 54 provides for the conduct of
proceedings by courts under the Corporations Law. Paragraph (3)(b) of the
existing Act contemplates that jurisdiction may be conferred on the Federal
Court or the Family Court by a State. Item 38 changes the reference to the
Corporations Law of a State, and substitutes a reference to the NT, on the basis
that federal courts can continue to exercise jurisdiction conferred by
Territories.
ITEM
39
This item adds a new paragraph to subsection
54(3). This paragraph expands the definition of ‘relevant
jurisdiction’ used in section 54 to cover the new jurisdiction over
judicial review matters which is conferred by the Corporations Act on State and
Territory Supreme Courts by subsection
51(2A).
ITEM
40
This item amends section 55 to add a
reference to the jurisdiction which is conferred on State and Territory Supreme
Courts by subsection
51(2A).
ITEM
41-43
These items amend section 56 of the Act,
to ensure that the section does not purport to permit the conferral of State
jurisdiction on federal courts. Existing subsection (2) is divided into two new
subsections. Subsection (2) will now deal only with the jurisdiction which may
be conferred on the Federal Court and the Family Court. It will ensure that
only the NT is permitted to confer jurisdiction on these courts. Subsection (3)
deals separately with the jurisdiction which can be conferred on ACT courts. It
permits ACT courts to exercise jurisdiction conferred by
States.
ITEM
44
Existing subsection 59(1) deals with the
enforcement of judgments of the Federal and Family Courts and ACT courts. It
currently contemplates that jurisdiction conferred by States can be exercised by
federal courts. The new subsection 59(1) will treat federal courts and ACT
Courts separately. Paragraph (a) will operate on the basis that federal courts
may exercise jurisdiction conferred by the Commonwealth or by the NT. Paragraph
(b) will operate on the basis that ACT courts may exercise jurisdiction
conferred by the Commonwealth, by the NT or by
States.
ITEM
45
Existing section 60 provides for the Federal
Court to make rules with respect to the operation of the Corporations Law.
Existing subsection 60(2) contemplates that the Federal Court will be exercising
jurisdiction conferred by a State. This item removes the reference to States
and replaces it with a reference to the NT, so that the new subsection 60(2)
will now only contemplate that the Federal Court will exercise NT-conferred
jurisdiction.
ITEM
46
Existing section 61A is in the same terms as
existing section 60, except that it deals with the Family Court. This item is
to the same effect as item 45.
Re Wakim affects the Gas Pipelines Access
(Commonwealth) Act 1998 (GPAC Act), implemented by the Commonwealth in 1998
to apply the national third party gas pipeline access regime. The GPAC Act,
among other things, provides for the national competition bodies, the Australian
Competition & Consumer Commission, the National Competition Council, and the
Australian Competition Tribunal to exercise powers and carry out functions
conferred on them by the Gas Pipelines Access Law. It also provides for the
States and Territories to confer jurisdiction on the Federal Court, and provides
for the application of the ADJR Act.
Re
Wakim invalidates the conferral by the States of jurisdiction on the Federal
Court with respect to matters under the State Gas Pipeline Access Law and the
conferral by the States of jurisdiction on the Federal Court with respect to the
decision of State code bodies. Re Wakim does not affect the conferral of
jurisdiction on the Federal Court by the Gas Pipeline Access Law of the
Territories.
ITEM
47
Subsection
5(1)
The definition section (s.5) of the GPAC
Act is amended by inserting the definition of ‘the Federal Court’.
The definition used is the same as in the Gas Pipelines Access
Law.
ITEM
48
Subsection
16(2)
The existing subsection 16(2) is repealed
because it purports to consent to the conferral on the Federal Court of State
jurisdiction in relation to civil and criminal matters arising under the Gas
Pipelines Access Law and in relation to State-applied ADJR
Acts.
The new subsection 16(2) facilitates the
conferral on the Federal Court by the ACT and the NT only of jurisdiction in
relation to civil and criminal matters arising under the Gas Pipelines Access
Law of those
jurisdictions.
ITEM
49
Section 17 makes it clear that the conferral of
jurisdiction on the Federal Court by the Gas Pipelines Access Laws does not
affect other laws relating to cross-vesting. It is amended to reflect the fact
that only the ACT and the NT Gas Pipelines Access Laws can confer jurisdiction
on the Federal Court. The heading of the section is changed to refer only to
‘Territories’.
ITEM
50
Section 19 is repealed. It purports to extend the ADJR
Act to decisions under the Gas Pipelines Access Law of any scheme participant
(whether the decision was made by Commonwealth or State officers), as if that
legislation were an enactment within the meaning of the ADJR Act.
Amendments to the ADJR Act made in this Bill will
extend the scope of the ADJR Act to cover Commonwealth officers acting under
State laws. These amendments will achieve the same objective as section 19 as
far as Commonwealth officers and authorities are concerned.
ITEMS
51-52
Paragraph 22(1)(c), and
22(1)(f)
Section 22 refers to actions in
relation to cross-boundary pipelines. Its primary function is to ensure that
action taken in relation to a cross-boundary pipeline need only be taken under
the legislation of one scheme participant through whose jurisdictional area the
pipeline passes. To this end, acting on decisions of a Federal Court, Supreme
Court or appeals body taken under the Gas Pipelines Access Law of a jurisdiction
through which the pipeline passes are deemed to be actions or decisions of those
bodies taken under the Gas Pipelines Access Law of any other jurisdiction
through which the pipeline passes.
Section 22 is to
be amended by removing the reference to the Federal and Supreme Courts in both
paragraphs 22(1)(c) and 22(1)(f). This means that section 22 no longer has any
operation in relation to acting on decisions of the Federal Court or State
Supreme Courts.
ITEM
53
This item inserts a note at the end of
section 38 of the Judiciary Act. The note draws the reader’s attention to
the fact that, notwithstanding the terms of section 38, State Supreme Courts are
vested with the same civil jurisdiction as the Federal Court, subject to some
exceptions and limitations, because of the operation of the Jurisdiction of
Courts (Cross-vesting) Act 1987 (the JCCV Act).
Jurisdiction of Courts (Cross-Vesting)
Act 1987
The amendments to the JCCV Act take
two forms.
The first category of amendments repeal
or amend provisions which purport to permit the conferral of State jurisdiction
on federal courts, or add provisions which ensure that the Act is not to be
taken to be permitting such a conferral of jurisdiction. (The Act preserves the
capacity of Territories to confer jurisdiction on federal courts, and of States
to confer State jurisdiction on Territory
courts.)
The second category of amendment provides
for the conferral of additional federal jurisdiction on State and Territory
Supreme Courts in relation to the judicial review of Commonwealth officers
exercising powers and performing functions pursuant to State and Territory laws.
Existing section 6 provides that, where a ‘special federal matter’
comes before a State or Territory court, that court is obliged in ordinary
circumstances to transfer such matters to the Federal Court. ‘Special
federal matters’ include matters arising under the ADJR Act and matters
within the original jurisdiction of the Federal Court by virtue of section 39B
of the Judiciary Act. The new section 6A will provide that, in limited,
specified circumstances, State and Territory Supreme Courts will not be obliged
to transfer these matters to the Federal Court, as would ordinarily be the case
under the mechanism established by section 6. Moreover, in appropriate cases,
the Federal Court will be able to transfer such matters to State and Territory
Supreme Courts.
ITEM
54
This item amends the preamble to the JCCV
Act by adding the words ‘so far as constitutionally possible’. This
is intended to indicate a recognition that there are constitutional limits on
the extent to which cross-vesting is possible, in the aftermath of the High
Court’s decision in Re
Wakim.
ITEM
55
This item amends the definition of
‘special federal matter’ in subsection 3(1) of the JCCV Act by
confining it to the Competition Codes of the ACT and the NT, thereby removing
State Competition Codes from the definition of special federal matters. The
Federal Court may not validly hear matters arising under the Competition Code of
a State because to do so would involve it in the exercise of State jurisdiction.
These matters must now be dealt with in State
courts.
ITEM
56
This item provides that the reference to
section 32 of the National Crime Authority Act 1984 in the definition of
'special federal matter' is amended to exclude section 32 as it has effect
because of new section 32B inserted by this Bill. (New section 32B relates to
matters under State
laws.)
ITEM
57
This item amends subsection 3(4) of the JCCV
Act. Existing subsection 3(4) deems the jurisdiction conferred by certain State
and Territory laws to be federal jurisdiction. This item will restrict the
application of this subsection to Territory
laws.
ITEM
58
This item repeals existing subparagraph
5(4)(b)(ii) and replaces it with a new subparagraph. Existing subparagraph (ii)
contemplates that proceedings may be filed in a federal court where that court
would have no jurisdiction except where jurisdiction had been conferred by the
operation of State cross-vesting legislation. The new subparagraph (ii)
continues to contemplate that proceedings may be filed in a federal court where
that court would have no jurisdiction except where jurisdiction had been
conferred jurisdiction on a federal court by the operation of the Commonwealth,
and NT and ACT cross-vesting legislation. However, it removes the implication
that proceedings could validly be instituted in a federal court because of the
conferral of State jurisdiction on federal courts by State cross-vesting
legislation.
ITEM
59
This item adds a new subsection (9) to
section 5. Section 5 provides for the transfer of matters between the courts of
the jurisdictions participating in the cross-vesting scheme. Subsection (9) is
intended to ensure that section 5 cannot be read as conferring additional
jurisdiction on any court.
Item 62 also adds a
note at the end of section 5. This note directs the reader to section 6 and
section 6A of the JCCV Act. These sections provide for special rules of
transfer in relation to certain
matters.
ITEM
60
Subsection 6(1) of the JCCV Act requires
State and Territory Supreme Courts to transfer special federal matters to the
Federal Court. This item adds a note at the end of subsection 6(1) noting that
new section 6A alters the effect of section 6 in some cases (see the general
discussion above).
ITEM
61
This item adds a new subsection (1A) to
section 6. Section 6 presently provides that proceedings which involve a
special federal matter must be transferred to an appropriate federal or State
family court. Re Wakim, however, raises the possibility that such a
proceeding might not be able to be transferred in total, because some other
matter in the proceeding would not be within the federal jurisdiction of federal
courts. Subsection (1A) will ensure that the part of the proceeding which is
within the jurisdiction of the federal court (including the accrued
jurisdiction) will be transferred to the federal court, while the remainder of
the proceeding goes ahead in the State
court.
ITEM
62
This item amends subsection 6(2) as a
consequence of the insertion of subsection
6(1A).
ITEM
63
This item corrects an error in the text of
the JCCV Act by replacing the reference to subsection (2) in paragraph 6(9)(b)
with a reference to subsection
(4).
ITEM
64
This item adds new section
6A.
Generally, if a ‘special federal
matter’ is pending in the court of a State or Territory, that court is
obliged to transfer the matter to the Federal Court. This includes matters
arising under the ADJR Act or matters within the original jurisdiction of the
Federal Court by virtue of section 39B of the Judiciary Act (see paragraphs (c)
and (e) of the definition of ‘special federal
matter’).
New section 6A will permit State
and Territory Supreme Courts to exercise jurisdiction over matters arising under
paragraphs (c) and (e) of the definition of special federal matters in very
limited circumstances. Essentially, two conditions will have to be met before a
State or Territory Supreme Court will be able to exercise this jurisdiction:
• the matter for determination must involve
or relate to the exercise, or purported or proposed exercise of a function or
power conferred on a Commonwealth authority or officer of the Commonwealth by a
State or Territory enactment which is described in Schedule 3 of the ADJR Act;
that is, pursuant to one of the co-operative legislative schemes; and
• the matter for determination in the
proceeding must arise out of or relate to another proceeding (not itself a
judicial review matter) which arises under the same State
enactment.
For example, the Gas Pipelines Authority
Act of each State and Territory confers certain powers on the ACCC. It is
possible that a situation could arise in which two parties (such as the operator
of a gas pipeline and a competitor) are involved in proceedings in a State
Supreme Court. (Because the jurisdiction in this case arises under State law,
the matter could not be handled by the Federal Court.) Simultaneously, one of
the parties to this dispute also brings an action against the ACCC under the
ADJR Act in relation to a decision the ACCC has made, which is related to the
dispute in the Supreme Court. Without new section 6A, the ADJR matter would
have to be handled in the Federal Court (because it was a special federal
matter). New section 6A will permit State Supreme Courts to handle both aspects
of the dispute.
If the ADJR matter is filed in a
federal court, and the conditions described above are met, subsection 6A(2)
provides that the federal court may transfer the proceeding to the Supreme Court
of the State or Territory where the State matter proceeding is on foot. The
federal court has a discretion as to whether or not to transfer the proceeding.
However, in doing so it must take into account the desirability of related
proceedings being heard in the same jurisdiction.
If the ADJR matter is filed in a Supreme Court and
the conditions described above are met, subsection 6A(3) permits the Supreme
Court to retain the proceeding, though it may still transfer it to a federal
court if it considers it appropriate to do so. In doing so, however, it must
take into account the desirability of related proceedings being heard in the
same jurisdiction.
ITEM
65
Subsection 9(2) of the existing Act
currently consents to the conferral on federal courts of State jurisdiction.
This item removes references to the Federal Court and the Family Court, but
continues to permit the conferral of State jurisdiction on Territory courts.
ITEM
66
This item adds a new subsection 9(3). This
subsection will permit the Federal Court and the Family Court to exercise
jurisdiction conferred on them by the JCCV Act or by Territory cross-vesting
laws, and to hear and determine proceedings transferred to them under a
Territory law.
The National Crime Authority scheme is a co-operative
Commonwealth/State scheme that arises from the operation of the Commonwealth
National Crime Authority Act 1984 (the NCA Act) and the National Crime
Authority (State Provisions) Act of each State and Territory. The NCA scheme
provides for the concurrent exercise of Commonwealth and State powers for
investigating criminal activities.
Section 55A of
the NCA Act, in paragraph 55A(1)(b) and subsection 55A(3), purports to allow
State laws to confer jurisdiction on the Federal Court. These provisions are of
no effect following Re Wakim.
Sections 32
and 32A of the NCA Act confer jurisdiction on the Federal Court. These sections
work with corresponding provisions of the State NCA Acts which purport to confer
jurisdiction on the Federal Court in relation to matters involving a
Commonwealth reference, a Commonwealth and a State reference and a reference
from more than one State.
The amendments repeal
provisions purporting to permit conferral of State jurisdiction on the Federal
Court and specifically confer jurisdiction under the Commonwealth Act in
relation to those matters which may have relied on a conferral of jurisdiction
under the State NCA
Acts.
ITEM
67
This item amends paragraph 27(2)(a) which
applies to applications for legal and financial assistance in relation to
applications to the Federal Court for an order of review of a decision of the
Authority. The amendment excludes subsection 32(2) as it has effect because of
the new section 32B ensuring that the circumstances in which applications may be
made remain the same.
ITEM
68
This item amends paragraph 27(2)(aa) in the
same way as the previous paragraph, excluding subsection 32(8) as it has effect
because of the new section 32B in respect of applications under subsection 32(8)
in relation to a
document.
ITEM
69
This item inserts two new sections: section
32B, which applies section 32 (with modifications) to matters under laws of the
States; and section 32C, which applies section 32A (with modifications) to
matters under laws of the States.
Section
32B
New section 32B applies a modified section
32 to a requirement to answer a question or produce a document at a hearing
before the Authority under a law of a State and to a requirement to produce a
document pursuant to a notice under a provision of a law of a State that
corresponds to section 29.
In the application of
section 32 to matters under State laws, subsections 32(2), 32(4), 32(9), 32(13)
and 32(14) have effect as if a reference in those subsections to a decision of
the Authority were a reference to a decision of the Authority under a provision
of the law of a State that corresponds to subsection
32(1).
Similarly, subsection 32(5) has effect as if
the reference in subparagraph 32(5)(b)(iii) to an undertaking of a kind referred
to in subsection 30(5) or 30(7) were a reference to an undertaking of a kind
referred to in a corresponding provision of a law of a
State.
Subsection 32(8) has effect as if references
to a notice, a hearing and to an undertaking in that subsection were references
to those matters under a relevant provision of a law of a
State.
Subsections 32(1), 32(6) and 32(11) are
taken to be omitted.
Section
32C
New section 32C applies a modified section
32A to a requirement to answer a question or to produce a document at a hearing
before the Authority under the law of a State and to a requirement to produce a
document, pursuant to a notice under a provision of a law of a State that
corresponds to section 29.
Subsection 32A(1) has
effect as if a reference in that section to a hearing were a reference to a
hearing under a law of a State, a reference to section 29 were a reference to a
provision of a law of a State that corresponds to section 29 and a reference in
paragraph (c) to a special investigation were a reference to a special
investigation under the NCA Act.
A reference in the
section to section 32 or a provision of section 32 is taken to be a reference to
section 32 as modified by section 32B. A reference to subsection 32(1) is taken
to be a reference to a provision of a law of a State that corresponds to
subsection 32(1).
ITEM
70
This item repeals subsection 55A(1)
replacing it with a new subsection that omits the reference to a provision of a
law of a State that confers jurisdiction on the Federal
Court.
ITEM
71
This item repeals subsection
55A(3).
ITEM
72
This item amends subparagraph 61(2)(g)(i) in
relation to matters to be included in the annual report. It excludes subsection
32(2) as it has effect because of the new subsection
32B.
ITEM
73
This item is a transitional provision
applying where, before the commencement of the amendments in this Bill, there
was a requirement to answer a question or produce a document at a hearing before
the Authority under a law of a State or of a Territory, or a requirement to
produce a document pursuant to a notice under a provision of a law of a State or
of a Territory that corresponded to section 29, and there is an application for
review of a decision or a notice. The provision extends the period for an
application for review.
The item also provides that
the provisions of a law of the ACT and NT that correspond to sections 32 and 32A
of the NCA Act no longer operate. This ensures that the scheme operates in the
same way in the States and the Territories. However, proceedings under these
Territory provisions continue after commencement and court orders made under
these provisions continue to have effect.
Trade Practices Act
1974
In 1995, the Commonwealth enacted the
Competition Policy Reform Act which inserted Part XIA into the Trade
Practices Act 1974 (the TPA) together with a ‘Schedule version of Part
IV’. The States and Territories passed respective Competition Policy
Reform Acts (CPRAs) in 1995 and 1996 to apply the Schedule version of Part IV
and the other provisions of the TPA, in so far as they relate to Part IV, as
laws of their own jurisdiction. This created a series of State and Territory
Competition Codes which (in combination with Part IV of the TPA) form the
National Competition Code. Sections 21 and 22 of the State and Territory CPRAs
currently confer exclusive jurisdiction on the Federal Court over matters
arising under a State or Territory Competition
Code.
In a similar manner, the A New Tax System
(Trade Practices Amendment) Act 1999 inserted Part VB and Part XIAA into the
TPA together with a ‘Schedule version of Part VB’. Part VB of the
TPA confers on the Australian Competition and Consumer Commission (ACCC) powers
to monitor prices and institute proceedings against businesses that engage in
price exploitation during the transition to the New Tax System. The States and
Territories have agreed to pass legislation adopting a ‘Schedule version
of Part VB’ as a law of their own jurisdiction, thereby establishing a
National Price Exploitation Code (using the same mechanism as the Competition
Code).
However, the constitutional validity of the
conferral of jurisdiction by the States on the Federal Court, as part of those
arrangements, is in doubt following the High Court’s decision in
Re Wakim. To overcome that uncertainty, the States propose to
repeal sections 21 and 22 of their respective CPRAs. Similarly, those States
that have enacted Price Exploitation Codes will repeal the provisions of those
Codes conferring jurisdiction on the Federal Court. In that event the States
will no longer confer jurisdiction on the Federal Court and matters arising
under a State Competition Code or a State Price Exploitation Code will be heard
by State courts.
As the High Court’s decision
in Re Wakim does not affect the conferral of jurisdiction of a Territory
on the Federal Court, the Federal Court is to retain exclusive jurisdiction over
matters arising under a Competition Code of a Territory (and Parts IV and VB of
the TPA).
In addition to the amendments proposed to
be made by the States, a number of consequential amendments are proposed to be
made to the TPA to overcome the uncertainty created by the Re Wakim
decision.
ITEM
74
Proposed subsection 86(1AA) will make it
clear that only federal jurisdiction is conferred on the Federal Court or a
State court under section 86 of the
TPA.
ITEM
75
Section 150D of the TPA currently comprises
the Commonwealth’s ‘consent’ to the conferral of State or
Territory jurisdiction on the Federal Court under sections 21 and 22 of the
State and Territory CPRAs. The constitutional validity of this provision, in so
far as it relates to the conferral of jurisdiction on the Federal Courts by the
States, is also in doubt following the Re Wakim decision.
The proposed amendment of section 150D is
consequential on the proposed repeal by the States of sections 21 and 22 of
their respective CPRAs. The amendment will ensure that section 150D has no
operation in relation to matters arising under State Competition Codes. Section
150D will, however, continue to operate in relation to matters arising under
Territory Competition Codes.
ITEM
76
Section 150O in Part XIAA of the TPA is in
the same form as section 150D and comprises the Commonwealth’s
‘consent’ to the proposed conferral by the States and Territories of
jurisdiction on the Federal Court under their respective Price Exploitation
Codes.
The proposed amendment of section 150O is in
the same form as that proposed to be made to section
150D.
ITEM
77
The proposed amendment of subsection 163(1)
will modify the existing requirement that all prosecutions for offences against
the TPA be brought only in the Federal Court. Subsection 163(1), as amended,
will make it clear that a State court may exercise jurisdiction in relation to
offences against Part XII of the TPA in so far as those offence provisions apply
as a law of a State (ie. as part of a State Competition
Code).
ITEM
78
The Federal Court will, however, remain the
only court with criminal jurisdiction under the TPA in so far as the provisions
of the TPA have effect as a law of the Commonwealth (see the proposed amendment
to subsection 163(2)).
The words ‘no other
court has such jurisdiction’ at the end of subsection 163(2), as amended,
will override any jurisdiction that the State courts may otherwise have in
criminal matters by virtue of section 68 of the Judiciary
Act.
ITEM
79
The proposed amendment of subsection 163(4)
will recognise that prosecutions under section 163 may be instituted in
either the Federal Court (in relation to TPA or Territory Competition Code or
Territory Price Exploitation Code matters) or a State court (in relation to
State Competition Code or State Price Exploitation Code
matters).
ITEMS 80 and
81
The amendments proposed to be made to
section 163A are similar to those proposed to section
163.
The proposed amendments of subsection 163A(1)
will remove the existing stated limitation in that subsection that proceedings
for a declaration or order be brought only in the Federal Court. Subsection
163A(1), as amended, will make it clear that proceedings may be instituted in a
State court for a declaration or order in relation to the operation or effect of
those provisions of the TPA in so far as those provisions apply as a law of a
State (ie. as part of a State Competition Code or Price Exploitation Code).
ITEMS 82 and
83
The proposed amendment of subsection 163A(2)
to insert the words ‘proceedings otherwise than in this
jurisdiction’ will recognise that the Federal Court’s jurisdiction
under section 163A is not exclusive of the jurisdiction of other courts. Thus,
if the same facts give rise to a claim under a State Competition Code or a Price
Exploitation Code, a State court could proceed to deal with the request for the
making of a declaration or order (see Bargal Pty Ltd v Force (1983) ATPR
para. 40-378).
ITEMS
84-87
The proposed amendment of subsection
163A(3) will prevent the ACCC from instituting proceedings under section 163A
either in the Federal Court (in relation to TPA or Territory Competition Code or
Territory Price Exploitation matters) or a State Court (in relation to State
Competition Code or State Price Exploitation Code
matters).
Item 86 will insert subsection 163A(3A)
to provide that only the Federal Court will be able to issue declarations under
section 163A in so far as that provision applies as the law of the
Commonwealth.
Item 87 will amend subsection 163A(4)
to make it clear that the requirement that no less than 3 judges shall exercise
jurisdiction to make declarations or other orders under section 163A only
applies to proceedings instituted in the Federal
Court.
Workplace
Relations Act
ITEM
88
This item repeals subsections 5(7) and (9).
Both these subsections purport to permit the conferral of State jurisdiction on
the Federal Court and are invalid.
Schedule 2 contains amendments to the ADJR Act, the Corporations Act and the Judiciary Act which, in criminal matters, restrict defendants’ access to administrative law remedies.
Defendants will not, at any time, be able to use the ADJR Act to challenge decisions to prosecute. Nor will they be able to use the ADJR Act to challenge other decisions taken in the criminal justice process at any time after a prosecution has commenced, or when an appeal is on foot.
Similarly, defendants will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court in relation to a decision to prosecute made by a Commonwealth officer, where the prosecution is to be begun in a State or Territory Court. Section 39B(1) deals with applications for injunctions and writs of prohibition and mandamus against Commonwealth officers. The Supreme Court of the State or Territory in which the prosecution is to be commenced is to be given jurisdiction with respect to those matters.
Section 39B of the Judiciary Act is also to be amended so that, when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court will not have jurisdiction to hear an application made by the defendant in relation to a decision in the criminal justice process relating to that offence. The Supreme Court of the State or Territory in which the prosecution is being heard will be given jurisdiction with respect to those matters.
Amendments to the Corporations Act are also required to ensure that Corporations Law matters are treated in the same way as applications for judicial review by defendants in other Commonwealth criminal matters.
As it currently stands, decisions in relation to the Corporations Law of the Capital Territory may be reviewed under the ADJR Act. The effect of Schedule 1 to the Bill would be to extend this kind of review to decisions by Commonwealth officers under the Corporations Law of the States (including the NT). Amendments made by Schedule 2 will, however, operate to prevent a defendant in a prosecution for a Corporations Law offence from instituting ADJR Act review to challenge decisions to prosecute or decisions taken in the criminal justice process.
The extent of the Federal Court’s jurisdiction under section 39B of the Judiciary Act with respect to decisions made by Commonwealth officers under the Corporations Law is presently unclear. Amendments made by Schedule 2 will provide that a defendant in a prosecution for a Corporations Law offence will be able to seek injunctive relief or relief by way of writs of prohibition or mandamus in the Supreme Court of the State or Territory where he or she is prosecuted but not in the Federal Court.
The amendments will apply to challenges to actions or decisions taken in the criminal justice process after the commencement of the Act, and also apply to challenges to actions or decisions taken before the commencement of the Act, whether or not the Federal Court review proceedings are already on foot.
Part 1
Administrative Decisions (Judicial Review) Act 1977
ITEM 1
This item adds new section 9A to the ADJR Act.
New subsection 9A(1) prevents a court from hearing, continuing to hear or determining an application made by the defendant under the ADJR Act for review of a related criminal justice process decision when a prosecution for an offence, or an appeal arising out of a prosecution is before any court.
An application that is extinguished by the operation of subsection 9A(1) could be re-commenced if the prosecution or appeal, as the case may be, were discontinued.
New subsection 9A(2) defines ‘appeal’ and ‘related criminal justice process decision’.
An application for a new trial, and a proceeding to review or call into question the proceedings, decision or jurisdiction of a court or judge are included within the meaning of ‘appeal’.
Decisions taken in relation to the investigation and prosecution process are included in the meaning of ‘related criminal justice process decisions’. Five categories of decisions are illustrated. They are decisions in connection with:
(a) the investigation, committal for trial or prosecution of a defendant;
(b) the appointment of investigators or inspectors for such an investigation;
(c) the issuing of a warrant;
(d) the requiring of the production of documents, the giving of information or the summoning of persons as witnesses; and
(e) an appeal arising out of the prosecution.
ITEM 2
A new class of decision is added to Schedule 1 to the ADJR Act. That class encompasses decisions to prosecute for any offence against of law of the Commonwealth, a State or a Territory. That means that decisions in that class are not decisions to which the ADJR Act applies.
ITEM 3
Subparagraph (e)(i) of Schedule 2 to the ADJR Act is amended by the addition of ‘committal for trial’ to the matters there included. That will mean that decisions relating to committal for trial are one of the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.
ITEM 4
Subparagraph (e)(iii) of Schedule 2 to the ADJR Act is amended by substituting ‘warrants, including search warrants and seizure warrants’ for ‘search warrants’. That will mean that decisions relating to warrants, including search and seizure warrants, are included within the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.
ITEM 5
Subparagraphs (e)(iv) and (v) of Schedule 2 to the ADJR Act are repealed and replaced. The current subparagraph (e)(iv) is subsumed into new subparagraph (e)(iii). The current subparagraph (e)(v) is replaced by new subparagraph (e)(iv).
New subparagraph (e)(iv) refers to decisions under a Commonwealth or Territory law requiring the production of documents, the giving of information or the summoning of persons as witnesses. That will mean that those decisions are included within the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.
New subparagraph (e)(v) adds decisions in connection with an appeal arising out of the prosecution of persons for offences against a law of the Commonwealth or of a Territory. The meaning of appeal in this subparagraph is the same as in new subsection 9A(2) of the ADJR Act. That will mean that decisions in connection with an appeal are included within the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.
The amendments in items 3, 4, and 5 are made to Schedule 2 so that that Schedule and the definition of ‘related criminal justice process decision’ in new subsection 9A(2) of the ADJR Act are kept in parallel. Section 13 of the ADJR Act relates to applications to obtain reasons for decisions.
Corporations Act 1989
Division 1 of Part 9 of the Corporations Act will be amended in relation to decisions or actions taken in the criminal justice process in a manner similar to that described above in relation to the ADJR Act, (and below in relation to the Judiciary Act).
The effect of these amendments will be to ensure that the restrictions on the availability of administrative law remedies in federal courts in the case of a prosecution under the Corporations Law are the same as those applicable in the case of a Commonwealth prosecution under any other law of the Commonwealth, a State or a Territory. In the case of a prosecution under the Corporations Law, a defendant will not be able to use the ADJR Act to challenge decisions taken in the criminal justice process at any time after a prosecution has commenced, or during the period when an appeal is on foot. Similarly, if a Corporations Law prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court will not have jurisdiction to hear an application by the defendant seeking a writ of mandamus or prohibition or an injunction against a Commonwealth officer in relation to a decision in the criminal justice process relating to that offence. The Supreme Court of the State or Territory in which the prosecution is being heard will be given jurisdiction with respect to those matters.
ITEM 6
Subsection 49(1) of the Corporations Act, which sets out the operation of Division 1 of Part 9 is amended so that it also includes reference to the jurisdiction of courts in civil matters, in respect of decisions made by Commonwealth officers to prosecute persons for offences against the Corporations Law of a State or the ACT, and related criminal justice process decisions.
ITEM 7
This item amends subsection 50(1) by adding a definition of ‘officer of the Commonwealth’. The phrase ‘officer of the Commonwealth’ has the same meaning as in paragraph 75(v) of the Constitution.
ITEM 8
Existing section 51 deals with the jurisdiction of the Federal Court and State and Territory Supreme Courts. New subsection (4) is added to section 51, to provide that section 51 has effect subject to new section 51AA.
ITEM 9
Existing section 51A deals with the jurisdiction of the Family Court and State Family Courts. New subsection (4) is added to section 51A, to provide that section 51A has effect subject to new section 51AA.
ITEM 10
This item adds new section 51AA.
New paragraph 51AA(1)(a) provides that when a Commonwealth officer makes a decision to prosecute a person for an offence against the Corporations Law of a State or the ACT, and that prosecution is to be commenced in a Court of a State or the ACT, then neither the Federal Court nor the Family Court has jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the Commonwealth officer in relation to that decision.
Further, the Supreme Court of the State or Territory where the prosecution is to be commenced is given jurisdiction by new paragraph 51AA(1)(b) with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to that decision.
New subsection 51AA(2) is added, to provide that when a prosecution for an offence against the Corporations Law of a State or the ACT or an appeal arising out of such a prosecution is before a court of a State or the ACT, neither the Federal Court nor the Family Court will have jurisdiction to hear an application made by the defendant seeking a writ of mandamus or prohibition or an injunction against a Commonwealth officer in relation to a decision in the criminal justice process relating to that offence. The Supreme Court of the State or Territory in which the prosecution is being heard will be given jurisdiction with respect to those matters.
An application that is extinguished by the operation of paragraph 51AA(2) could be re-commenced if the prosecution or appeal were discontinued.
New subsection 51AA(3) makes it clear that no law has the effect of giving the Federal Court or the Family Court jurisdiction contrary to subsections 51AA(1) or 51AA(2). and no law has the effect of removing from the Supreme Court of a State or the ACT the jurisdiction given by subsections 51AA(1) or 51AA(2).
New subsection 51AA(4) defines ‘appeal’ for the purposes of section 51AA and ‘related criminal justice process decision’.
An application for a new trial, and a proceeding to review or call into question the proceedings, decision or jurisdiction of a court or judge are included within the meaning of ‘appeal’.
Decisions in relation to the investigation and prosecution process are included in the meaning of ‘related criminal justice process decisions’. Five categories of decisions are illustrated. They are decisions in connection with:
(a) the investigation, committal for trial or prosecution of a defendant;
(b) the appointment of investigators or inspectors for such an investigation;
(c) the issuing of a warrant;
(d) the requiring of the production of documents, the giving of information or the summoning of persons as witnesses; and
(e) an appeal arising out of the prosecution.
Judiciary Act 1903
ITEM 11
Section 38, which sets out the matters in relation to which the High Court has exclusive jurisdiction, is amended so that it is made subject to section 39B and section 44.
ITEM 12
Subsection 39B(1) is amended by making the subsection subject to new subsections 39B(1B) and 39B(1C).
ITEM 13
New subsection 39B(1B) is added, to provide that when a Commonwealth officer makes a decision to prosecute a person for an offence against a Commonwealth, State or Territory law, and that prosecution is to be commenced in a State or Territory Court, then the Federal Court does not have jurisdiction to hear or determine an application under subsection 39B(1) in relation to that decision.
Further, the Supreme Court of the State or Territory where the prosecution is to be commenced is given jurisdiction by new paragraph 39B(1B)(b) with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to the decision to prosecute.
New subsection 39B(1C) is added, to provide that when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court does not have jurisdiction to hear an application made by the defendant under section 39B(1) in relation to a decision made in the criminal justice process in relation to that offence; and the Supreme Court of the State or Territory in which the prosecution is being heard is given jurisdiction with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to those decisions.
An application that is extinguished by the operation of subsection 39B(1C) could be re-commenced if the prosecution or appeal, as the case may be, were discontinued.
New subsection 39B(1D) makes it clear that new subsections 39B(1B) and 39B(1C) have effect despite any provision of any other law. In particular, no law, including the Jurisdiction of Courts (Cross-vesting) Act 1987 has the effect of giving the Federal Court jurisdiction contrary to subsections 39B(1B) or 39B(1C). Similarly, no law, including the ADJR Act has the effect of removing the jurisdiction given to the Supreme Court of a State or Territory by subsection 39B(1B) or 39B(1C).
ITEM 14
Subsection 39B(2) is amended to add to the reference to subsection 39B(1), a reference to the new subsections (1B) and (1C).
ITEM 15
New subsection 39B(3) defines ‘related criminal justice process decision’.
Decisions taken in relation to the investigation and prosecution process are included in the meaning of ‘related criminal justice process decisions’. Five categories of decisions are illustrated. They are decisions in connection with:
(a) the investigation, committal for trial or prosecution of a defendant;
(b) the appointment of investigators or inspectors for such an investigation;
(c) the issuing of a warrant;
(d) the requiring of the production of documents, the giving of information or the summoning of persons as witnesses; and
(e) an appeal arising out of the prosecution.
Part 2: Application of
Amendments
These new provisions make it clear when the amendments in Part 1 apply to decisions.
ITEM 16
Subitem (1) defines ‘commencement’ for this part to mean the commencement of the amendments of the ADJR Act, the Corporations Act and the Judiciary Act made by Part 1. Paragraph 1 also defines ‘related criminal justice process decision’ in relation to an offence as having the same meaning as in new section 9A of the ADJR Act, new subsection 51AA(4) of the Corporations Act and section 39B(3) of the Judiciary Act, described above in items 1, 10, and 15.
Subitem (2) makes it clear that the amendments made in Part 1 to the ADJR Act. the Corporations Act and the Judiciary Act apply to:
(a) a decision to prosecute made on or after the commencement of the amendments, whether or not the conduct alleged occurred before that commencement; and
(b) a related criminal justice process decision made on or after the commencement of the amendments, whether or not the conduct alleged occurred before the commencement, or the prosecution or an appeal arising out of the prosecution was begun before the commencement of the amendments.
Subitem (3) makes it clear that the amendments made in Part 1 to the ADJR Act, the Corporations Act and the Judiciary Act also apply in relation to:
(a) a decision to prosecute made before the commencement of the amendments, even where that decision is the subject of an application under the ADJR Act or the Judiciary Act that is before a court at the commencement of the amendments; and
(b) a related criminal justice process decision made before the commencement of the amendments, even where the decision is the subject of an application under the ADJR Act or the Judiciary Act before the commencement of the amendments, or the prosecution or an appeal arising out of the prosecution was begun before the commencement of the amendments.
The effect of those provisions is that the amendments will apply to actions or decisions taken in the criminal justice process after the commencement, and also apply to challenges to actions or decisions taken before commencement, whether or not any Federal Court review proceedings are on foot.