View full documentView full document Previous section | Next section
House of Representatives

Jurisdiction of Courts Legislation Amendment Bill 2000 (extract only)

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Outline

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 Courts decision in Re Wakim; ex parte McNally [1999]HCA 27;
·
make provision with respect to the review of decisions in the criminal justice process;
·
amend the Australian Securities and Investments Commission Act 1989 (ASIC Act) and the Corporations Act 1989 to deal with the combined effect of the decision in Re Wakim and the Corporate Law Economic Reform Program Act 1999 (the CLERP Act); and
·
amend the Director of Public Prosecutions Act 1983 to deal with consequences of the High Courts decision in Bond v the Queen.

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.

Schedule 3 amends the Australian Securities and Investments Commissions Act 1989 (ASIC Act) toreconfer upon the Federal Court jurisdiction to deal with actions for misleading or deceptive conduct in relation to dealings in securities of the kind lost due to the combined effect of the decision in Re Wakim and the Corporate Law Economic Reform Program Act 1999 (the CLERP Act).

Schedule 4 limits the availability of judicial review in courts exercising federal jurisdiction of decisions of the Corporations and Securities Panel relating to takeovers until after the takeover period.

Schedule 5 amends the Director of Public Prosecutions Act 1983 to authorise the Director or a member of his staff to exercise rights of appeal conferred under State or Territory law in relation to prosecutions for State or Territory offences, confirm the Directors rights of appeal in relation to proceedings for summary conviction in respect of Commonwealth offences, and confirm the Directors authority to carry on or respond to appeals instituted by others in relation to such proceedings.

Financial Impact

The measures in this Bill have no financial impact.

Notes on clauses

Clause 1 - Short title

This clause sets out the short title of the Act.

Clause 2 - Commencement

This clause specifies when the provisions of the Act are to commence.

Sections 1, 2 and 3 and Schedule 5 commence on the day on which the Act receives royal assent.

Items 77 to 90 of Schedule 1, which amend the Trade Practices Act 1974, also commence on that day.

The other items in Schedule 1, and Schedules 2 and 4, 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.

Schedule 3 is taken to have commenced immediately after the commencement of the items in Schedule 4 to the Corporate Law Economic Reform Program Act 1999 (CLERP Act) which had the effect of removing the Federal Courts jurisdiction in relation to actions for misleading or deceptive conduct in relation to dealings in securities. These provisions of the CLERP Act commenced on 13 March 2000. This retrospective operation of Schedule 3 will ensure that there is no lacuna in the Federal Courts jurisdiction in respect of these matters.

Clause 3 - Schedules

This clause provides that the Acts specified in the Schedules 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 Amendments relating to inability of States to confer jurisdiction on federal courts

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
·
make provision for judicial review of decisions of Commonwealth officersand bodies under specified State and Territory laws.

Administrative Appeals Tribunal Act 1975

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

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 Courts 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.

ITEM 2

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.

Administrative Decisions (Judicial Review) Act 1977

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 Acts 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.

ITEM 3

This item inserts a new definition of the term Commonwealth authority in subsection 3(1) of the ADJR Act.

ITEM 4

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).

ITEM 5-11

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

Item 13 adds a definition of officer of the Commonwealth to subsection 3(1).

ITEM 14

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 readers 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 readers 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.

Schedule 2 - Review of decisions made in the criminal justice process

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 Courts 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 Actand 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 Actapply 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.


View full documentView full documentBack to top