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Tuesday, 11 April 2000
Page: 3


Senator IAN CAMPBELL (Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts) (NaN:52:00) —I table a revised explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows

INTRODUCTION

The Jurisdiction of Courts Legislation Amendment Bill has been necessitated by recent decisions of the High Court.

The Bill responds to the High Court's decision last year in the Re Wakim case, which invalidated the `cross-vesting' of State jurisdiction on federal courts; and to the Court's decision this year in the Bond case, which identified problems in relation to the powers of the Commonwealth DPP.

It also precludes delaying tactics in the criminal justice process by reducing the `collateral' access of defendants to federal administrative law procedures and remedies.

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 was 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 arid and inconvenient jurisdictional debates which had 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 decision, which is known as Re Wakim, was regrettable.

In undermining the cross-vesting arrangements which I have mentioned, and a number of other co-operative arrangements, it undermined arrangements which have permitted a significant growth in national co-operation 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.

Co-operative 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 co-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.

A detailed proposal will be developed in consultation with the States and Territories for consideration by Commonwealth, State and Territory ministers.

SCHEDULES 1, 3 AND 4 TO THE BILL: RESPONSE TO RE WAKIM

The Commonwealth can take more immediate steps to address some of the problems created by Re Wakim.

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.

This is done in Schedule 1 to the Bill.

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 co-operative arrangements already mentioned.

Commonwealth officers and authorities are invested with powers by State law under various co-operative arrangements.

Indeed, this has been a common feature of the co-operative 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 co-operative 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 or 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 States 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 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.

It has already been noted that the Territories were consulted in developing this approach, and had no objections.

Schedules 3 and 4 also address consequences of Re Wakim.

Following Re Wakim, an unintended consequence of amendments of the Australian Securities and Investments Commission Act 1989 made by the Corporate Law Economic Reform Program Act 1999 is that actions for misleading or deceptive conduct in relation to securities can no longer be brought in the Federal Court.

Schedule 3 will reinstate the Federal Court's jurisdiction under the Australian Securities and Investments Commission Act by reference to the new Corporations Law actions.

The Corporate Law Economic Reform Program Act also inserted s.659B in the Corporations Law.

It was designed to ensure that the Corporations and Securities Panel would be the primary forum for resolving takeover disputes under the Corporations Law, in order to allow such disputes to be resolved as quickly and efficiently as possible by a specialist body largely comprised of takeover experts.

Section 659B was designed to prevent legal proceedings in relation to a takeover bid, including judicial review of Panel decisions under any State administrative laws, before the end of the bid period.

Only proceedings commenced on the application of ASIC, or another public authority of the Commonwealth or a State, were to be exempted.

Schedule 4 is necessary given other amendments in this Bill to give effect to the original policy behind section 659B.

Proposed section 59A of the Corporations Act will give section 659B of the Corporations Law additional force under the Corporations Act as a Commonwealth law applying to the Federal Court.

SCHEDULE 5: RESPONSE TO BOND

Schedule 5 will amend the Director of Public Prosecutions Act 1983 to deal with technical deficiencies in Commonwealth legislation identified in the High Court's recent decision in the Bond case.

Schedule 5 will amend the Act in three ways.

It will authorise the Commonwealth Director of Public Prosecutions, or a member of the Director's staff, to exercise rights of appeal conferred under State or Territory law in relation to prosecutions for State or Territory offences.

It will put beyond doubt the Director's rights of appeal in relation to proceedings for summary conviction in respect of Commonwealth offences.

And it will put beyond doubt the Director's authority to carry on or respond to appeals instituted by others in relation to such proceedings.

The amendments will thus restore what had been thought to be the situation before the decision in the Bond case.

In that decision, the High Court held that a staff member of the Office of the Commonwealth Director of Public Prosecutions did not have the power to appeal a sentence imposed by the Supreme Court of Western Australia on Mr Alan Bond for breaches of the Western Australian Companies Code.

In particular, the amendments will allow a role under Commonwealth law for the Commonwealth Director of Public Prosecutions, and the Office of the Director, in relation to prosecutions and appeals under the Companies Code considered in the Bond case.

However, it will be necessary for the States and Territories to consider their own laws in the light of the amendments of Commonwealth legislation made by this Bill.

The Attorney-General shall be writing to the States and Territories to bring them up to date with the Commonwealth amendments, and to ask them to confirm that their own laws are adequate to give the Commonwealth Director of Public Prosecutions the role that was intended under co-operative arrangements.

SCHEDULE 2 TO THE BILL: REVIEW OF DECISIONS IN CRIMINAL PROCESS

Schedule 2 to the Bill deals with judicial review of decisions 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 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 ADJR 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 subsection 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 co-operative arrangements rendered invalid by the decision in Re Wakim.

But it has taken positive steps in the Bill to reinstate federal court jurisdiction lost as a result of that decision

Further, the Bill will restore what had been thought to be the situation of the Commonwealth DPP under co-operative arrangements before the decision in the Bond case.

Debate (on motion by Senator O'Brien) adjourned.