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)

 

JURISDICTION OF COURTS LEGISLATION AMENDMENT BILL

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 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. 

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 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.

Clause 3 - Schedules

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 - 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 officers and 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 cf comments on the A DJR dministrative Decisions (Judicial Review) Act 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 ensure that the Federal Court has will be given jurisdiction to deal with AAT matters by virtue of the AAT Act applying as Commonwealth law operating 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 f ederal 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 s existing sections 44-46 and new section 43B.

The application of the AAT Act by the Northern Territory (NT) and A ustralian C apital T erritory 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 that is, the functions of the Federal Court) to cover to 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 N orthern T erritory or A ustralian C apital T erritory .  

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 under a law of a State or the NT Northern Territory or the ACT Australian Capital Territory .  It provides that, 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 as applying as a law of the State or Territory.

ITEM 2

This item contains:

·                transitional provisions relating to matters arising before the commencement of i I tem 1; and

·                provisions that, after that commencement, apply the AAT Act to appellable State and Territory decisions as defined.

Subitem Subitem 2(1)

This subitem   defines certain terms used in item 2.

Subitem Subitem 2(2)

S ubs ection 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 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 subitem 2(2) is in effect to restore those rights.  T Such persons include t he 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 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 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 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 Northern Territory and ACT Australian Capital Territory , continue to operate.

However, for the sake of national consistency, subitem subitem 2(3) provides that a law of the NT Northern Territory or ACT Australian Capital Territory 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 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 Northern Territory or ACT Australian Capital Territory ) immediately before the commencement of I i tem 1.  Subitem Subitem 2(4) provides that, after the commencement of i I tem 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 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 Northern Territory or ACT Australian Capital Territory .  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 Administrative Decisions (Judicial Review) Act ( the ADJR Act ) fails entirely. The object of the amendments to the ADJR Act is to restore the pre- Wakim existing 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 its 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 f ederal 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 which confers those functions or powers is one of a class listed in new Schedule 3, the Commonwealth ADJR Act will apply as Commonwealth law as Commonwealth law to those functions and powers.  Since the jurisdiction conferred on the Federal Court will be federal jurisdiction , the Federal Court will therefore be able to undertake ADJR review . of Commonwealth officers and authorities in those cases.

ITEM 3

This item section inserts a new definition of the term ‘ Commonwealth authority ’ into subsection   3(1) of the ADJR Act.

ITEM 4

 

This item section repeals the existing definition of the term ‘decision to which this Act applies’ in sub section 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 i I tem 9 , and .  In particular, it extends the definition of ‘decision to which this Act applies’ to decisions made by a Commonwealth authority or officer of the Commonwealth under a State or Territory enactment described in Schedule 3 to of the ADJR Act, ( or instruments made under such an enactment) Act .

ITEM 5 - 11

 

T All t hese items sections amend the definition of ‘enactment’ in sub section 3(1) of the ADJR Act.

 

The definition is altered by adding two new paragraphs ( I i tem 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 a nd the s well as 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. that instruments that are not enactments because of section 3A are not enactments.

 

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 sub section 3(1).

ITEM 14

 

S ubs ection 3(7) of the ADJR Act provides that a reference to an Act in a Schedule to the ADJR that 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 first Act or part of an Act 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 section repeals the existing definition of ‘ Commonwealth authority ’ in subsection   3( 9 ) which only applies only to the Schedule to th at e Act.  There is a new definition of ‘ Commonwealth authority ’ in s ubs ection 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 section 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, i I tem 21 and i I tem 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 section 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 s ubs ection 3(1), and the definition in subsection 9(2) is now superfluous.

 

ITEM 21

 

See i above with respect to I tem 19 .

 

ITEM 22

 

Paragraph Subsection 17(d) of the ADJR Act deals with the situation where no person currently presently 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 subsection 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 are to be subject to 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 Items will also be removable able to be removed from Schedule 3 by regulation.  This will allow for a quick alteration of the S s chedule in a situation where a Commonwealth/State scheme is dissolved.

 

M It should be noted that m atters can currently presently 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 the notes to I i tem 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 are ‘ 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 i I tems 3 - 26.

 

Subitem Subitem 27 (1)

This subitem contains definitions of certain terms used in i I tem 27.

 

Subitem Subitem 27 (2)

S ubs ection 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, and 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.  S ubs ection 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 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 subitem 27(2) is in effect to restore those rights.  The subitem 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 ma k d e 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 Subitem 2 7 (2) provides that the 28 day period referred to in s ection 11 .44(2A) runs from the commencement of the amendments to the ADJR Act made by Schedule 3 of AAT Act made by the Bill.  The note to subitem subitem 2 7 (2) makes clear that a person may, after the amendments to the ADJR Act made by Schedule 3 of the Bill AAT Act made by the Bill come into force, apply for an extension of any 28 day period applicable in relation to a reviewable State decision of the AAT made more than 28 days before 17 June 1999.  

Subitem Subitem 2 7 (3)

As noted above, while Re Wakim invalidated the conferral of State jurisdiction on the Federal Court by the State applied ADJR AAT 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 AAT Act made by the Bill , those provisions of the ADJR AAT Act which confer jurisdiction on the Federal Court, as they apply as laws of the NT Northern Territory and ACT Australian Capital Territory , continue to operate.

However, for the sake of national consistency, subitem subitem 2 7 (3) provides that a law of the NT Northern Territory or ACT Australian Capital Territory which provides for the application of the ADJR 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 in relation to a reviewable Territory decision .  Part IVA will apply to the Territories by virtue of the Commonwealth Act only.

Subitem Subitem 2 7 (4)

This subitem deals with makes provision in relation to proceedings in relation with respect to a n reviewable appellable Territory decision as defined that were before a court under the ADJR Act any of sections 44 to 46 of the AAT Act (as it applied as a law of the NT Northern Territory or ACT Australian Capital Territory ) immediately before the commencement of the amendments to the ADJR Act made by Schedule 3 to the Bill Item 1 .  Subitem Subitem 2 7 (4) provides that, after that the commencement of Item 1 , those proceedings continue in the court as if they had been commenced in the court under the amended ADJR Act as so amended , that is, under the jurisdiction conferred by the ADJR AAT Act applying as Commonwealth law.  

Subitem Subitem 2 7 (5)

This subitem   deals with makes provision in relation to orders made by a court, before the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill AAT Act made by the Bill , under the ADJR Act any of sections 44 to 46 of the AAT Act as it applied as a law of the NT Northern Territory or ACT Australian Capital Territory .  Those orders have effect, after the commencement, as if they had been made by the court under the amended ADJR Act AAT as so amended .

 

Agricultural and Veterinary Chemicals Act 1994

[to be approved by AFFA]

 

The Agricultural and Veterinary Chemicals Act 1994 enacted the legislative infrastructure for the complementary Commonwealth-State-Territory legislation establishing the National Registration Scheme for Agricultural and Veterinary Chemicals.  A part of t hat infrastructure concerns the cross-vesting of State jurisdiction on the Federal Court of Australia.

 

Following the High Court of Australia’s Wakim decision, it is proposed to amend the cross-vesting provisions which are constitutionally invalid, by removing provisions which purport to permit States to confer jurisdiction on the Federal Court.  The capacity of the Northern Territory to confer jurisdiction on the Federal Court is retained.

 

ITEM 28

 

Section 4 (paragraph (b) of the definition of authority )

 

This clause provides that the term ‘court’ be deleted f rom the definition of ‘authority’.  Thus section 18 can operate without risk of being interpreted as providing for the cross-vesting of State jurisdiction to a federal court under a corresponding law.

 

ITEM 29

 

Subsection 20(4)

 

This clause provides that in the second line of subsection 20(4) “ a State ” is omitted and “the Northern Territory ” is inserted, ensuring that the Northern Territory can continue to confer jurisdiction on the Federal Court.

 

ITEM 30

 

Subsection 20(4)

 

This clause provides that in the fourth line of subsection 20(4) “ that State ” is omitted and “ the Northern Territory ” is inserted, ensuring that the Northern Territory can continue to confer jurisdiction on the Federal Court.

Australian Sports Drug Agency Act   1990

 

YET TO BE APPROVED BY DISR

 

ITEM 28 31

 

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 s S ubsection (3) permits the conferral of jurisdiction on the Federal Court by Territories.

 

 

Corporations Act 1989

.

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 t T he Corporations Act had previously provide d for the conferral of State jurisdiction on federal courts; these provisions are now to be removed from the Act.

 

In addition, the Corporations Law provide s d 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.    

 

As already noted, the Corporations Law cross-vesting scheme operates to the exclusion of the JCCV Act.  This means that the provisions of the JCCV Act do not operate to confer jurisdiction on State and Territory Courts in respect of judicial review under the ADJR Act and section 39B of the Judiciary Act (cf section 4 of the JCCV Act).  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 is conferred on State and Territory Courts in the Corporations Act , and then the circumstances in which this jurisdiction can be exercised are limited .

 

ITEM 29 32

 

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 provides in relation to the jurisdiction of courts generally under the ADJR Act in the circumstances described.

 

ITEM 3 0 3

 

This item amends sub section 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 3 1 4

 

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 3 4 and Item 3 5 8 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 3 2 5

 

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 to Court may otherwise be subject.

 

ITEMS 3 3 6 - 3 5 8

 

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 met .  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.

 

S ubs ection 51(2A) will now provide s that State and Territory Supreme Courts may exercise jurisdiction in some cases involving review of decisions of officers or authorities of the Commonwealth.  Items 3 3 6 -3 5 8 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 3 3 6

 

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 is 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 a State) .

 

ITEMS 3 4 7 and 3 5 8

 

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 3 4 , 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 contained in i I tem 3 5 8 .

 

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 the review of decisions of Commonwealth officers and authorities under those Corporations Law s will continue to be dealt with, generally speaking, by the Federal Court.  The provisions added by items 3 4 and 3 5 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 , and   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 ’ include s 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, t his subsection   provides, to remove doubt, 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 3 6 9

 

This item adds a new subsection to section 53A.  To remove doubt, s S ubsection (5) provides, to remove doubt, that section 53A does not confer on a court jurisdiction that it would not otherwise have.

 

ITEM 37 40

 

This item adds a new subsection to section 53AA.  To remove doubt, s S ubsection (6A) provides, to remove doubt, that section 53A does not confer on a court jurisdiction that it would not otherwise have.

 

ITEM 38 41

 

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 41 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 42

 

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 4 0 3

 

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 4 1 4 -4 3 6

 

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 4 4 7

 

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 s federal courts and ACT Courts separately.  Paragraph (a) will operate on the basis now contemplates that federal courts may exercise jurisdiction conferred by the Commonwealth or by the NT.  Paragraph (b) will operate on the basis now contemplates that ACT courts may exercise jurisdiction conferred by the Commonwealth, by the NT or by States.

 

ITEM 4 5 8

 

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 4 6 9

 

Existing section 61A is in the same terms as existing section 60, except that it deals with the Family Court.  This item i provide s to the same effect as i I tem 4 5 8 .

 

 

Gas Pipelines Access (Commonwealth) Act 1998

 

TO BE FINALISED BY DISR

 

Under a number of joint Commonwealth/State/Territory schemes, the States adopted Commonwealth administrative laws as State law and conferred on the Federal Court State jurisdiction to review decisions under State laws.  The High Court’s decision of 17 June 1999 in the Wakim case invalidated the conferral of State jurisdiction. 

 

The Re Wakim affects case impacts on the Gas Pipelines Access (Commonwealth) Act 1998 (GPAC Act), legislation implemented by the Commonwealth in 1998 to apply the national third party gas pipeline access regime.  Th e GPAC Act is legislation , 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 National Gas Pipelines Access Law.  It The legislation also provides for the States and Territories to confer jurisdiction functions on the Federal Court, and provide s for the application of the ADJR Act. regime to apply the Administrative Decisions (Judicial Review) Act 1977 .

 

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. The effect of the High Court’s decision in the Wakim case on the Gas Pipelines Access (Commonwealth) Act 1998 is that conferral by the States of jurisdiction on the Federal Court with respect to enforcement is invalid and that any general enforcement action could be brought only in State Supreme Courts.  This decision does not affect the conferral of jurisdiction on the Federal Court by the gas access legislation of the Territories (ACT and NT).

 

Similarly, the Wakim decision invalidates the conferral by the States of jurisdiction on the Federal Court with respect to the judicial review of State code bodies. 

 

While the effect of the amendments are significant, the actual amendments required to the Gas Pipelines Access (Commonwealth) Act 1998 are relatively mechanical in nature as they generally remove a function from the Act.

 

ITEM 47 50

 

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 ( lead legislation) .  

 

ITEM 48 51

 

Subsection 16(2)

 

The existing sub section 16(2) clause is repealed deleted because it purports to consent to the conferral confers jurisdiction 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. of jurisdictions other than the Commonwealth, thereby including all jurisdictions.  It also allowed jurisdictions to apply the ADJR Act regime to certain administrative decisions made under their respective legislative schemes.

 

The new subsection 16(2) facilitates the conferral on the Federal Court by the ACT and the NT only of jurisdiction provides for will restrict the use of the Federal Court in relation to civil and criminal matters arising under the Gas Pipelines Access Law of those jurisdictions , by to the Australian Capital Territory and the Northern Territory only .  

 

ITEM 49 52

Section 17

 

Section 17 makes it clear that This section, which ensures that the conferral of jurisdiction on the Federal Court by the G g as P p ipelines A a ccess Laws legislation does not affect other laws relating to the cross-vesting law .  It , is amended to reflect the fact so that only the ACT Australian Capital Territory and the NT Northern Territory G g as Pipelines A a ccess L l aws can confer jurisdiction on the Federal Court.   The heading of the section is changed to refer only to ‘Territories’.

 

ITEM 5 0 3

Section 19

 

Section 19 This section is repealed entirely .  It as it purport s ed to extend the ADJR Act to decisions under the G g as P p ipelines A a ccess Law legislation 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.   provides for jurisdictions other than the Commonwealth to adopt the Commonwealth’s ADJR Act.  The Commonwealth Solicitor-General has advised that the adoption by States of the ADJR Act would fail entirely.

 

Amendments proposed to the ADJR Act made in this Bill will have been proposed to 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. where the conferral by State laws of functions on Commonwealth officers is constitutionally valid.  

 

ITEMS 5 1 4 -5 2 5

 

Paragraph 22(1)(c), and 22(1)(f)

 

Section 22 refers to actions in relation to cross -boundary border pipeline s .  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. However, it also provides for the Federal or Supreme Court to act on decisions taken by the jurisdiction which has responsibility for the pipeline.

 

Section 22 It is to be amended by removing the reference to the Federal and Supreme Courts in both paragraph s 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. will restrict the use of an appeal body to the relevant appeal body of the jurisdiction concerned. 

 

 

 

Judiciary Act 1903

 

ITEM 5 3 6

 

This item inserts a note at the end of section 38 of the Judiciary Ac t t 1903 .  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- V v esting) Act 1987

 

The amendments to the J CCV urisdiction of Courts (Cross-vesting) Act (the JCCV Act) take two forms.

 

The first category type 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 type 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 5 4 7

 

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 5 5 8

 

This item amends the definition of ‘special federal matter’ in subsection 3(1) of the JCCV Jurisdiction of Courts (Cross-vesting) 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 5 6 9

 

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 5 6 7 0

 

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 61

 

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 , while removing the implication possibility that proceedings could validly be instituted in a federal court only because of the conferral of on State jurisdiction on federal courts by in State cross-vesting legislation.

 

ITEM 59 62

 

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 6 0 3

 

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 6 1 3A

 

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 Waki m, m 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 6 2 3B

 

This item amends subsection 6(2) as a consequence of the insertion of subsec ti it on 6(1A).

 

ITEM 63 C

 

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 6 4 5

 

This item adds new section 6A.  

 

Generally speaking , 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 . ,  H h owever, 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 6 5 6

 

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 6 6 7

 

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.

 

National Crime Authority Act 1984

 

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 6 7 8

 

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 6 8 9

 

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 70

 

This item inserts two 2 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 7 0 1

 

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 7 1 2

 

This item repeals subsection 55A(3).

 

ITEM 7 2 3

 

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 7 3 4

 

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 a law s 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.  Those States that have not yet enacted the Price Exploitation Code will omit the sections before enactment. 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 or a Price Exploitation 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.  Details of those proposed amendments follow.

 

ITEM 7 4 5

 

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 7 5 6

 

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 7 6 7

 

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 7 7 8

 

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 7 8 9

 

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 190 3 (Ct h) . .

 

ITEM 79 80

 

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 8 0 1 and 8 1 2

 

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 8 2 3 and 8 3 4

 

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 8 4 5 -8 7 8

 

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 8 6 7 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 8 7 8 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

 

[YET TO BE APPROVED BY DEWRSB]

 

ITEM 8 8 9

 

This item s repeal s subsections 5(7) and (9).  Both these subsections purport ed to permit the conferral of State jurisdiction on the Federal Court and are invalid.

 

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, that restrict the access by defendants ’ in criminal matters to access to administrative law remedies.  

Defendants in criminal matters will not, at any time, be able to use the ADJR Act to challenge decisions to prosecute.  Nor will they In addition, they will not 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 during the period when an appeal is on foot.  

Similarly, defendants in criminal matters will not be able to rely on use 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 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 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 relating in relation to that offence . ;   T and t he Supreme Court of the State or Territory in which the prosecution is being heard will be is given jurisdiction with respect to those matters.

Amendments  to the Corporations Act are also required to the Corporations Act 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 of this Bill would will be to extend this kind of review to decisions by Commonwealth officers under the Corporations Law of the States (including the NT Northern Territory ).  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 National Corporations Scheme provides for its own administrative review regime, to the exclusion of the Judiciary Act.  As it currently stands, decisions by Commonwealth officers in relation to the Corporations Law of the Australian Capital Territory may be reviewed under the ADJR Act.  Further, jurisdiction is given to the Federal Court in relation to applications for injunctions and writs of prohibition and mandamus under the Corporations Act to the exclusion of section 39B of the Judiciary Act.  Amendments are required to the Corporations Act to ensure that Corporations Law matters are treated in the same way as administrative law challenges by defendants other Commonwealth criminal matters.  The amendments will produce the same result with respect to offences under the Corporations Law as that sought to be achieved in respect of Commonwealth offences.  A defendant in a prosecution for a Corporations Law offences will not be able to institute ADJR Act review to challenge decisions to prosecute or decisions taken in the criminal justice process.  A defendant in these circumstances 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                       RESTRICTING THE USE OF THE ADJR ACT TO REVIEW CRIMINAL JUSTICE PROCESS DECISIONS

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           AMENDMENT OF SCHEDULE 1 OF THE ADJR ACT

A new class of decision is added to Schedule 1 to of 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           AMENDMENT OF SCHEDULE 2 OF THE ADJR ACT

Subparagraph (e)( i 1 ) of Schedule 2 to of 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           AMENDMENT OF SCHEDULE 2 OF THE ADJR ACT

Subparagraph (e)(iii) of Schedule 2 to of 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           AMENDMENT OF SCHEDULE 2 OF THE ADJR ACT

Subparagraphs (e)(iv) and (v) of Schedule 2 to of 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 i I tems 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 With regard 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 ) , Corporations Act Part 9, Division 1 is amended in a similar manner .  

The effect of th e o se amendments will be is 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.  I That will mean that i n the case of a prosecution under the Corporations Law, a defendant in a criminal matter 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 when 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 does not 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 made in the criminal justice process relating in relation to that offence . ;   T t he Supreme Court of the State or Territory in which the prosecution is being heard will be is given jurisdiction with respect to those matters.

ITEM 6           JURISDICTIONAL MATTERS

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 Australian Capital Territory , and related criminal justice process decisions.

ITEM 7           DEFINITION OF OFFICER OF THE COMMONWEALTH

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           JURISDICTION OF FEDERAL, AND STATE AND TERRITORY SUPREME COURTS

Existing section 51 deals with the j J urisdiction 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           JURISDICTION OF FAMILY COURT AND STATE FAMILY COURTS

Existing section 51A deals with the j J urisdiction 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        JURISDICTION OF COURTS: PROSECUTION AND RELATED CRIMINAL JUSTICE PROCESS DECISIONS

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 Australian Capital Territory , and that prosecution is to be commenced in a Court of a State or the ACT Australian Capital Territory , 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 Australian Capital Territory or an appeal arising out of such a prosecution is before a court of a State or the ACT Australian Capital Territory , neither the Federal Court nor the Family Court will have has 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 made in the criminal justice process relating in relation to that offence ; .   T and t he Supreme Court of the State or Territory in which the prosecution is being heard will be is 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 , as the case may be, 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 Australian Capital Territory 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 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 decision s 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                    EXCLUSIVE JURISDICTION OF HIGH COURT

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        ORIGINAL JURISDICTION OF THE FEDERAL COURT

Subsection 39B(1) is amended by making the subsection subject to new subsections 39B(1B) and 39B(1C).

ITEM 13        ORIGINAL JURISDICTION OF THE FEDERAL COURT

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 subsection 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        AMENDMENT OF SUBSECTION 39B(2)

Subsection 39B(2) is amended to add a to the reference to subsection 39B(1), a reference to the new subsections (1B) and (1C).

ITEM 15        AMENDMENT OF SECTION 39B

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 decision s 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        APPLICATION OF AMENDMENTS

Subitem Paragraph (1) defines ‘ “ commencement ’ ” for this part to mean the commencement of the amendments of the ADJR Act , the Corporations Act Administrative Decisions (Judicial Review) Act 1977 and the Judiciary Act 190 3 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 i I tems 1, 10, and 15.

  Subitem Paragraph (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 Paragraph (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.