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Wednesday, 8 March 2000
Page: 14109


Mr WILLIAMS (Attorney-General) (10:13 AM) —

I move:

That the bill be now read a second time.

The Jurisdiction of Courts Legislation Amendment Bill 2000 has been necessitated by the High Court's decision on cross-vesting in June last year. In effect, the decision invalidated the conferral of state jurisdiction on federal courts under the various cross-vesting arrangements that operated for more than a decade.

The general cross-vesting scheme was established in 1987 by the Jurisdiction of Courts (Cross-vesting) Act 1987 and by reciprocal legislation in the states and territories. The purpose of the legislation is to establish a system of cross-vesting of jurisdiction between federal, state and territory superior courts to overcome uncertainties that exist as to the jurisdictional limits of those courts.

Under this system a litigant could, broadly speaking, institute proceedings in a superior court anywhere in Australia without regard to jurisdictional limits, subject only to the possibility that the proceedings would be transferred to a more appropriate court.

The system was welcomed as the answer to harrowed and inconvenient jurisdictional debates, which have plagued litigants, practitioners and courts.

A separate cross-vesting scheme was subsequently established for matters arising under the Corporations Law.

The High Court decided in June last year, however, that the conferral of state jurisdiction on the Federal and Family Courts under the general and Corporations Law cross-vesting arrangements is not permitted by the Constitution.

The court noted that section 76 of the Constitution is the exclusive source of the power to confer original jurisdiction on the High Court. It decided that the jurisdiction that can be conferred on a federal court under section 77 is similarly limited to the sources identified in sections 75 and 76. On that basis, the court decided that the states could not confer state jurisdiction on a federal court.

The decision, which is known as re Wakim, was regrettable. In undermining the cross-vesting arrangements that I have mentioned and a number of other cooperative arrangements, it undermined arrangements which have permitted a significant growth in national cooperation between the states and between the states and the Commonwealth.

Re Wakim has had a particularly negative effect in relation to the Corporations Law scheme, significantly reducing the Federal Court's involvement.

The special cross-vesting arrangements were regarded as a fundamental element of the fully integrated system of state, territory and federal adjudication contemplated by the Corporations Agreement.

The explanatory memorandum for the Corporations Legislation Amendment Bill 1990, which introduced the special cross-vesting arrangements, confirmed that they were intended to `enhance the national character of the new scheme'.

The cross-vesting arrangements were regarded as `central to the conferral of a national character' on the Corporations Law scheme.

The Commonwealth parliament cannot restore all of the elements of the cross-vesting arrangements which were affected by re Wakim. It lacks constitutional power to do so.

In recognition of this constitutional fact, the states have all enacted legislation, the Federal Courts (State Jurisdiction) Acts, which give effect to past ineffective decisions of federal courts as if they had been made by state courts. The state legislation also provides for proceedings invalidly commenced in federal courts to be transferred to state courts.

Cooperative measures are also being explored. An appropriate referral of power by the states to the Commonwealth under subsection 51(xxxvii) of the Constitution would address the loss of the Federal Court's Corporations Law jurisdiction. A fully integrated national corporations law scheme, reflecting the existing operative approach to regulation and amendment, could be established by the Commonwealth if the state parliaments were prepared to refer the necessary power. To this end, Commonwealth officers have begun work on a proposal for a suitable referral. I expect a proposal to be developed in consultation with state and territory officials, for consideration by Commonwealth, state and territory ministers.

The Bill

The Commonwealth can also take more immediate steps to address some of the problems created by Re Wakim, and that is what this bill does.

The first and most obvious step is to repeal the now invalid provisions of Commonwealth laws that purport to consent to the conferral of state jurisdiction on federal courts.

Secondly, the Commonwealth parliament may also take steps to confer jurisdiction on any court to review decisions made by Commonwealth officers, whether in the exercise of powers conferred by state or Commonwealth laws.

The Commonwealth can thus ensure that the Federal Court continues to play an important part in the cooperative arrangements already mentioned.

Schedule 1 to the Bill: Judicial Review and Invalid Provisions

Commonwealth officers and authorities are invested with powers by state law under various cooperative arrangements.

Indeed, this has been a common feature of the cooperative federalism that has evolved over recent years.

Under the Corporations Law, for example, the Australian Securities and Investment Commission, a Commonwealth authority, is invested with powers and functions by states.

The Australian Competition and Consumer Commission is also invested with powers and functions by states under state competition policy reform acts and state price exploitation codes.

Since the establishment of the Federal Court, it has been accepted that the Federal Court, rather than state courts or tribunals, generally should have the function of reviewing the actions and decisions of Commonwealth officers and authorities. I shall discuss what is perhaps the only significant exception to this general policy later, in relation to schedule 2 and criminal prosecutions in state or territory courts.

Accordingly, where states conferred jurisdiction on Commonwealth officers and authorities under various cooperative schemes, federal courts were given jurisdiction. The policy was clear, the Commonwealth administrative law regime should apply to the actions and decisions of Commonwealth officers and authorities. Federal courts and tribunals should review the actions and decisions of Commonwealth officers and authorities. The means chosen before re Wakim to give effect to this policy was for the states to adopt as state law relevant Commonwealth administrative laws. The particular laws adopted varied in each case, but would involve one or all of the Administrative Decisions (Judicial Review) Act 1977, the Administrative Appeals Tribunal Act 1975, the Freedom of Information Act 1982, the Privacy Act 1988 and the Ombudsman Act 1976.

The Federal Court was then invested with state jurisdiction to hear matters under this applied legislation.

However, the decision in re Wakim meant that this approach no longer works.

In so far as the adoption of Commonwealth administrative laws by states also involves conferral of state jurisdiction on the Federal Court, it is invalid.

Schedule 1 to the bill resolves this problem. It amends the Administrative Decisions (Judicial Review) Act 1977 and the Administrative Appeals Tribunal Act 1975. The amendments bring the decisions and actions of Commonwealth officers and authorities under certain state laws within the scope of these Commonwealth acts.

The Federal Court, when exercising jurisdiction in relation to these decisions and actions, will be exercising federal jurisdiction, not state jurisdiction.

This means that the Federal Court will continue to fulfil its role as the primary forum for review of the actions and decisions and decisions of Commonwealth officers and authorities.

State and territory supreme courts will be given equivalent federal jurisdiction in limited circumstances. This limited jurisdiction is intended simply to avoid `splitting' judicial review proceedings and substantive proceedings between federal and state and territory courts where the substantive proceedings must be brought in the state or territory court.

I note in passing that, while re Wakim invalidated the conferral of state jurisdiction on federal courts, it did not invalidate the conferral by Commonwealth law of territory jurisdiction on those courts.

The bill, however, treats territories in the same way as states, in order to achieve uniform federal coverage of matters under state and territory laws.

Schedule 2 to the Bill: Review of Decisions in Criminal Process

Schedule 2 to the bill deals with the judicial review of the decisions under federal laws in federal, state and territory courts, but in the specific context of criminal prosecution.

The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.

Schedule 2 to the bill contains amendments of the Administrative Decisions (Judicial Review) Act 1977, the Corporations Act 1989 and the Judiciary Act 1903 that will, in federal criminal matters, restrict defendants' access to administrative law remedies.

Defendants will not be able to use the AD(JR) Act to challenge decisions to prosecute. Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced.

Further, defendants in state and territory courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on state and territory supreme courts.

Section 39B of the Judiciary Act is currently a provision of general application which allows Federal Court action for mandamus, prohibition or an injunction against an officer of the Commonwealth. This same jurisdiction is constitutionally entrenched as part of the High Court's original jurisdiction under section 75(v) of the Constitution.

If the 39B jurisdiction in relation to prosecutions in state and territory courts were not removed from the Federal Court, and conferred instead on state and territory supreme courts, the opportunity to disrupt and delay those prosecutions by repeated, unmeritorious applications to a different court system—in this case the Federal Court system—would remain.

The expectation is that there will be significant advantage in requiring all decisions relating to the criminal justice process to be made in the system in which the prosecution is brought.

Without reducing fairness or access to justice, the expectation is that the transfer of jurisdiction will contribute to increased efficiency, and reduction in costly delays which may otherwise result from access to two court systems.

Conclusion

The Commonwealth cannot legislate to restore all of the elements of the cross-vesting arrangements. But it can take steps to address some of the problems created by re Wakim.

The Commonwealth parliament should ensure that the Federal Court continues to fulfil its role as the primary forum for review of the actions and decisions of Commonwealth officers and authorities. It should also legislate to prevent the use of unmeritorious delaying tactics in the criminal justice process, by removing the `collateral' access of defendants in federal criminal matters to federal administrative law procedures and remedies.

In accordance with the Corporations Agreement, the Ministerial Council for Corporations has been consulted and has given the necessary approval for introduction of the bill. I commend the bill to the House. I present the explanatory memorandum.

Debate (on motion by Mr O'Connor) adjourned.