Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Jurisdiction
of Courts Legislation Amendment Bill
2000
No. ,
2000
(Attorney-General)
A
Bill for an Act to amend the law relating to the jurisdiction of courts, and for
other purposes
ISBN: 0642 429537
Contents
Administrative Appeals Tribunal Act
1975 3
Administrative Decisions (Judicial Review) Act
1977 5
Australian Sports Drug Agency Act
1990 13
Corporations Act
1989 13
Gas Pipelines Access (Commonwealth) Act
1998 17
Judiciary Act
1903 18
Jurisdiction of Courts (Cross-vesting) Act
1987 18
National Crime Authority Act
1984 23
Trade Practices Act
1974 29
Workplace Relations Act
1996 31
Part
1—Amendments 32
Administrative Decisions (Judicial Review) Act
1977 32
Corporations Act
1989 33
Judiciary Act
1903 36
Part 2—Application of
amendments 39
A Bill for an Act to amend the law relating to the
jurisdiction of courts, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Jurisdiction of Courts Legislation
Amendment Act 2000.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) The items in Schedule 1, other than items 74 to 87, commence on a day
or days to be fixed by Proclamation.
(3) If an item in Schedule 1 to which subsection (2) applies does not
commence under that subsection within the period of 6 months beginning on the
day on which this Act receives the Royal Assent, that item commences on the
first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Administrative
Appeals Tribunal Act 1975
Insert:
(1) This Part applies in relation to a proceeding that was before the
Tribunal before the commencement of this section, or that is before the Tribunal
after that commencement, under power conferred on it by or under:
(a) an enactment; or
(b) a law of a State or of the Australian Capital Territory.
(2) This Part has effect in relation to a proceeding before the Tribunal
under power conferred on it by a law of a State or of the Australian Capital
Territory as if a reference in this Part to a provision of this Act that is not
in this Part were a reference to that provision as applying as a law of the
State or of the Australian Capital Territory, as the case requires.
2 Effect of amended
Act in relation to appellable State
or Territory decisions
Definitions
(1) In this item:
amended Act means the Administrative Appeals Tribunal Act
1975 as in force after the commencement.
appellable State decision means a decision of the Tribunal
made in the exercise of power conferred on the Tribunal by or under a law of a
State.
appellable Territory decision means a decision of the
Tribunal made in the exercise of power conferred on the Tribunal by or under a
law of the Australian Capital Territory or of the Northern Territory.
commencement means the commencement of the amendments of the
Administrative Appeals Tribunal Act 1975 made by this Schedule.
State does not include the Northern Territory.
Tribunal has the same meaning as in the amended
Act.
Appellable State decisions made before the
commencement—situations in which period for appealing under amended Act is
extended
(2) In each of the following situations, the amended Act applies in
relation to a person and an appellable State decision as if the 28 day period
referred to in subsection 44(2A) of that Act began on the
commencement:
(a) the first situation—the decision was made before the
commencement and that 28 day period would otherwise have begun during the period
starting on 20 May 1999 and ending immediately before the
commencement;
(b) the second situation—before 17 June 1999, the Federal Court of
Australia, purporting to Act under subsection 44(2A) of the Administrative
Appeals Tribunal Act 1975 as purportedly applied as a law of a State, made
an order allowing the person further time to make an appeal from that decision
and that period of time had not expired by 17 June 1999;
(c) the third situation—immediately before 17 June 1999, proceedings
by way of an appeal by the person from the decision were before the Federal
Court of Australia under section 44 of the Administrative Appeals Tribunal
Act 1975 as purportedly applied as a law of a State.
Note: The power under subsection 44(2A) of the amended Act
to extend the time for appealing from a decision of the Tribunal is available
even if the decision is an appellable State decision and the 28 day time limit
that would otherwise apply expired before the commencement.
Appellable Territory decisions—ACT and NT
laws no longer operate to apply sections 44 to 46 of the AAT
Act
(3) A law of the Australian Capital Territory or the Northern Territory
that provides for the application of the Administrative Appeals Tribunal Act
1975 as a law of that Territory is of no effect after the commencement so
far as that law purports to apply all or any of sections 44 to 46 of that Act in
relation to an appellable Territory decision (whenever it was made).
Note: Part IVA of the amended Act applies to these
decisions.
Appellable Territory decisions—proceedings
under sections 44 to 46 continue after the commencement under the amended
Act
(4) If, immediately before the commencement, proceedings in relation to an
appellable Territory decision were before a court under any of sections 44 to 46
of the Administrative Appeals Tribunal Act 1975 as applying as a law of
the Australian Capital Territory or the Northern Territory, then, from the
commencement, those proceedings continue as if they had been commenced in that
court under the amended Act.
Appellable Territory decisions—continued
effect of orders made before the commencement under sections 44 to
46
(5) An order made by a court before the commencement under any of sections
44 to 46 of the Administrative Appeals Tribunal Act 1975 as applying as a
law of the Australian Capital Territory or the Northern Territory has effect,
from the commencement, as if it had been made by that court under the amended
Act.
Administrative
Decisions (Judicial Review) Act 1977
Insert:
Commonwealth authority means an authority or other body
(whether incorporated or not) that is established or continued in existence by
or under an Act.
4 Subsection 3(1)
(definition of decision to which this
Act applies)
Repeal the definition, substitute:
decision to which this Act applies means a decision of an
administrative character made, proposed to be made, or required to be made
(whether in the exercise of a discretion or not and whether before or after the
commencement of this definition):
(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of
the definition of enactment; or
(b) by a Commonwealth authority or an officer of the Commonwealth under an
enactment referred to in paragraph (ca) or (cb) of the definition of
enactment;
other than:
(c) a decision by the Governor-General; or
(d) a decision included in any of the classes of decisions set out in
Schedule 1.
Note: Regulations for the purposes of section 19 can declare
that decisions that are covered by this definition are not subject to judicial
review under this Act.
5 Subsection 3(1)
(definition of
enactment)
Omit “, subject to section 3A”.
6 Subsection 3(1)
(paragraph (a) of the definition of
enactment)
Repeal the paragraph, substitute:
(a) an Act, other than:
(i) the Commonwealth Places (Application of Laws) Act 1970;
or
(ii) the Northern Territory (Self-Government) Act 1978;
or
(iii) an Act or part of an Act that is not an enactment because of section
3A (certain legislation relating to the ACT); or
7 Subsection 3(1)
(paragraph (b) of the definition of
enactment)
Omit “Northern Territory;”, substitute “Australian
Capital Territory or the Northern Territory; or”.
8 Subsection 3(1)
(paragraph (c) of the definition of
enactment)
After “Ordinance”, insert “, other than any such
instrument that is not an enactment because of section 3A”.
9 Subsection 3(1)
(after paragraph (c) of the definition of
enactment)
Insert:
(ca) an Act of a State, the Australian Capital Territory or the Northern
Territory, or a part of such an Act, described in Schedule 3; or
(cb) an instrument (including rules, regulations or by-laws) made under an
Act or part of an Act covered by paragraph (ca); or
10 Subsection 3(1)
(paragraph (d) of the definition of
enactment)
Omit “a law” (first occurring), substitute “any other
law”.
11 Subsection 3(1)
(definition of
enactment)
Omit “(b) or (c)”, substitute “(b), (c), (ca) or
(cb)”.
12 Subsection 3(1)
(at the end of the definition of
enactment)
Add:
Note: Regulations for the purposes of section 19B can amend
Schedule 3 (see section 19B).
Insert:
officer of the Commonwealth has the same meaning as in
paragraph 75(v) of the Constitution.
After “another Act” (first occurring), insert “(including
an Act of a State, the Australian Capital Territory or the Northern
Territory)”.
Insert:
(7A) If an Act of a State, the Australian Capital Territory or the
Northern Territory, or a part of such an Act, described in Schedule 3 applies
all or part of another enactment or instrument as a law of the State or
Territory, that other enactment or instrument, as so applying, is taken for the
purposes of this Act to be included in the Act, or the part of the Act, of the
State or Territory.
16 Subsection 3(9)
(definition of Commonwealth
authority)
Repeal the definition.
17 At the end of
subsection 3A(1)
Add “except to the extent that they are covered by paragraph (ca) or
(cb) of the definition of enactment in subsection
3(1)”.
18 At the end of
subsection 9(1)
Add:
Note: This subsection has effect subject to the
Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 51(2A)
of the Corporations Act 1989.
19 Subsection 9(2)
(paragraph (b) of the definition of
decision to which this section
applies)
Omit “, other than paragraphs (m) and (n)”.
20 Subsection 9(2)
(definition of officer of the
Commonwealth)
Repeal the definition.
Repeal the subsection.
Repeal the paragraph, substitute:
(d) if there is no person for the time being performing the duties of that
office or that office no longer exists—the person specified:
(i) if the decision was made under an enactment referred to in paragraph
(a), (b), (c) or (d) of the definition of enactment in subsection
3(1)—by the Minister administering that enactment, or by a person he or
she authorises for the purpose; or
(ii) if the decision was made under an enactment referred to in paragraph
(ca) or (cb) of that definition—by the Attorney-General, or by a person he
or she authorises for the purpose.
23 At the end of
subsection 19A(1)
Add:
Note: Because of paragraphs (ca) and (cb) of the definition
of enactment in subsection 3(1), certain laws of the Northern
Territory are enactments without the need for a declaration under this
subsection.
Insert:
The regulations may amend Schedule 3 to include, omit or alter a
description of:
(a) an Act of a State, the Australian Capital Territory or the Northern
Territory, or a class of such Acts; or
(b) a part of such an Act or a class of parts of such Acts.
Note: Schedule 3 identifies Acts of the States, the
Australian Capital Territory and the Northern Territory, and parts of such Acts,
that are enactments for the purposes of this Act.
25 Paragraphs (m)
and (n) of Schedule 1
Repeal the paragraphs.
Add:
Note: See paragraphs (ca) and (cb) of the definition of
enactment in subsection 3(1).
This Schedule describes Acts of the States, the Australian Capital
Territory and the Northern Territory, and parts of such Acts, that are
enactments for the purposes of this Act.
Note: This Schedule can be amended by the regulations (see
section 19B).
The following are enactments for the purposes of this Act:
(a) an Act of a State, the Australian Capital Territory or the Northern
Territory that confers functions or powers on the Australian Sports Drug Agency
established by the Australian Sports Drug Agency Act 1990 of the
Commonwealth;
(b) an Act of a State or the Northern Territory that applies, as a law of
the State or Territory, the Corporations Law set out in section 82 of the
Corporations Act 1989 of the Commonwealth;
(c) the Gas Pipelines Access (South Australia) Act 1997 of South
Australia, or an Act of another State or of the Australian Capital Territory or
the Northern Territory that applies Schedule 1 to that South Australian Act as a
law of that other State or of that Territory;
(d) an Act of a State, the Australian Capital Territory or the Northern
Territory that applies, as a law of the State or Territory, the text set out in
Part 1 of the Schedule to the Trade Practices Act 1974 of the
Commonwealth (which forms part of what is commonly known as the Competition
Code);
(e) an Act of a State, the Australian Capital Territory or the Northern
Territory that applies, as a law of the State or Territory, the text set out in
Part 2 of the Schedule to the Trade Practices Act 1974 of the
Commonwealth (which forms part of what is commonly known as the New Tax System
Price Exploitation Code).
27 Effect of
amendments in relation to reviewable State and Territory
decisions
Definitions
(1) In this item:
amended Act means the Administrative Decisions (Judicial
Review) Act 1977 as in force after the commencement.
commencement means the commencement of the amendments of the
Administrative Decisions (Judicial Review) Act 1977 made by this
Schedule.
reviewable State decision means a decision:
(a) to which the amended Act applies because of the application of
paragraph (b) of the definition of decision to which this Act applies
in subsection 3(1) of that Act; and
(b) that was made under a law of a State.
reviewable Territory decision means a decision:
(a) to which the amended Act applies because of the application of
paragraph (b) of the definition of decision to which this Act applies
in subsection 3(1) of that Act; and
(b) that was made under a law of the Australian Capital Territory or the
Northern Territory.
Reviewable State decisions made before the
commencement—situations in which period for seeking review under amended
Act is extended
(2) In each of the following situations, the amended Act applies in
relation to a person and a reviewable State decision as if the prescribed period
for the purposes of paragraph 11(1)(c) of that Act began on the commencement and
ended on the later of the 28th day after the commencement and the day on which
that prescribed period would, apart from this subitem, have ended:
(a) the first situation—the decision was made during the period
starting on 20 May 1999 and ending immediately before the
commencement;
(b) the second situation—before 17 June 1999, the Federal Court of
Australia, purporting to act under the Administrative Decisions (Judicial
Review) Act 1977 as purportedly applied as a law of a State, made an order
allowing the person further time to make an application for an order of review
of the decision and that period of time had not expired by 17 June
1999;
(c) the third situation—immediately before 17 June 1999, proceedings
by way of an application by the person for an order of review of the decision
were before the Federal Court of Australia under the Administrative Decisions
(Judicial Review) Act 1977 as purportedly applied as a law of a
State.
Note: The power under paragraph 11(1)(c) of the amended Act
to extend the time for applying for judicial review of a decision is available
even if the decision is a reviewable State decision and the 28 day time limit
that would otherwise apply expired before the commencement.
Reviewable Territory decisions—ACT and NT
laws no longer operate to apply the AD(JR) Act
(3) A law of the Australian Capital Territory or the Northern Territory
that provides for the application of the Administrative Decisions (Judicial
Review) Act 1977 as a law of that Territory is of no effect at any time
after the commencement so far as that law purports to apply that Act in relation
to a reviewable Territory decision (whenever it was made).
Note: The amended Act applies to these
decisions.
Reviewable Territory decisions—review
proceedings continue after the commencement under the amended
Act
(4) If, immediately before the commencement, proceedings in relation to a
reviewable Territory decision were before a court under the Administrative
Decisions (Judicial Review) Act 1977 as applying as a law of the Australian
Capital Territory or the Northern Territory, then, on and after the
commencement, those proceedings continue as if they had been commenced in that
court under the amended Act.
Reviewable Territory decisions—continued
effect of orders made before the commencement
(5) An order made by a court before the commencement under the
Administrative Decisions (Judicial Review) Act 1977 as applying as a law
of the Australian Capital Territory or the Northern Territory has effect, on and
after the commencement, as if it had been made by that court under the amended
Act.
Australian
Sports Drug Agency Act 1990
Repeal the subsection, substitute:
(2) If the Agency is authorised to exercise a power, or perform a
function, under a law of a State or Territory, and that law confers a power or
function on:
(a) the Administrative Appeals Tribunal; or
(b) a member or officer of that Tribunal; or
(c) a member or officer of the Federal Court of Australia;
then, subject to the regulations, that Tribunal, member or officer may
exercise the power, or perform the function, conferred by that law.
(3) If the Agency is authorised to exercise a power, or perform a
function, under a law of a Territory, and that law confers jurisdiction on the
Federal Court of Australia, then, subject to the regulations, that Court may
exercise that jurisdiction.
Insert:
and (baa) the jurisdiction of courts in respect of matters arising under
the Administrative Decisions (Judicial Review) Act 1977 involving or
related to decisions made under the Corporations Law of a State or the Capital
Territory by Commonwealth authorities and officers of the Commonwealth;
Insert:
Commonwealth authority means an authority or other body
(whether incorporated or not) that is established or continued in existence by
or under an Act.
Insert:
(2A) Despite section 9 of the Administrative Decisions (Judicial
Review) Act 1977, jurisdiction is conferred on the Supreme Court of each
State and the Capital Territory with respect to matters arising under that Act
involving or related to decisions made, or proposed or required to be made,
under the Corporations Law of a State or the Capital Territory by a Commonwealth
authority or an officer of the Commonwealth.
Note 1: The Federal Court also has jurisdiction with respect
to these matters under that Act.
Note 2: A Supreme Court may be required to transfer a
proceeding with respect to such a matter to the Federal Court: see subsection
53(3).
(2B) Subsection (2A) applies to a decision made, or proposed or required
to be made:
(a) whether or not in the exercise of a discretion; and
(b) whether before or after that subsection commences.
After “subsection (2)”, insert “or (2A)”.
Repeal the subsection, substitute:
(1) This section applies to the following proceedings:
(a) a proceeding with respect to a civil matter arising under the
Corporations Law of the Capital Territory that is in a court having jurisdiction
under subsection 51(1) or (2);
(b) a proceeding with respect to a matter referred to in subsection 51(2A)
that is in a court having jurisdiction under that subsection or in the Federal
Court.
Omit “Where”, substitute “Subject to subsections (3), (4)
and (5), if”.
Add:
(3) If a proceeding with respect to a matter referred to in subsection
51(2A) is pending in the Supreme Court of a State or the Capital Territory (the
relevant jurisdiction), the court must transfer the proceeding to
the Federal Court unless the matter for determination in it arises out of, or
relates to, another proceeding pending in any court of the relevant
jurisdiction:
(a) that arises, or a substantial part of which arises, under the
Corporations Law of a State or the Capital Territory; and
(b) that is not with respect to a matter referred to in subsection
51(2A);
regardless of which proceeding was commenced first.
(4) Even if the Supreme Court of a State or the Capital Territory is not
required by subsection (3) to transfer a proceeding with respect to a matter
referred to in subsection 51(2A) to the Federal Court, it may nevertheless do so
if it considers that to be appropriate, having regard to the interests of
justice, including the desirability of related proceedings being heard in the
same jurisdiction.
(5) If a proceeding with respect to a matter referred to in subsection
51(2A) is pending in the Federal Court, the Federal Court may only transfer the
proceeding, or an application in the proceeding, to the Supreme Court of a State
or the Capital Territory (the relevant jurisdiction) if:
(a) the matter arises out of, or relates to, another proceeding pending in
any court of the relevant jurisdiction:
(i) that arises, or a substantial part of which arises, under the
Corporations Law of a State or the Capital Territory; and
(ii) that is not a proceeding with respect to a matter referred to in
subsection 51(2A);
regardless of which proceeding was commenced first; and
(b) the Federal Court considers the transfer to be appropriate, having
regard to the interests of justice, including the desirability of related
proceedings being heard in the same jurisdiction.
(6) Nothing in this section confers on a court jurisdiction that the court
would not otherwise have.
(7) The fact that some references in this section to the interests of
justice include the desirability of related proceedings being heard in the same
jurisdiction does not of itself mean that other references to the interests of
justice, in this section or elsewhere in this Act, do not include that
matter.
Add:
(5) Nothing in this section confers on a court jurisdiction that the court
would not otherwise have.
Insert:
(6A) Nothing in this section confers on a court jurisdiction that the
court would not otherwise have.
38 Subsection 54(3)
(paragraph (b) of the definition of
relevant
jurisdiction)
Omit “a State”, substitute “the Northern
Territory”.
39 Subsection 54(3)
(at the end of the definition of
relevant
jurisdiction)
Add:
; or (e) jurisdiction conferred on a court of a State or the Capital
Territory with respect to matters referred to in subsection 51(2A).
After “Territory”, insert “, or in matters referred to in
subsection 51(2A),”.
Omit “, the Family Court or a court of the Capital Territory”,
substitute “or the Family Court”.
Omit “a State” (twice occurring), substitute “the
Northern Territory”.
Add:
(3) A court of the Capital Territory may:
(a) exercise jurisdiction (whether original or appellate) conferred on it
by a law of a State corresponding to this Division with respect to matters
arising under the Corporations Law of a State; and
(b) hear and determine a proceeding transferred to it under such a
provision.
Repeal the subsection, substitute:
(1) A judgment:
(a) of the Federal Court or the Family Court that is entirely or partly
given in the exercise of jurisdiction conferred by this Division, or by a law of
the Northern Territory that corresponds to this Division; or
(b) of a court of the Capital Territory that is entirely or partly given
in the exercise of jurisdiction conferred by this Division, or by a law of a
State that corresponds to this Division;
is enforceable in the Capital Territory as if the judgment had been given
by that court entirely in the exercise of the jurisdiction of that court apart
from this Division or any such law.
Omit “a State” (twice occurring), substitute “the
Northern Territory”.
Omit “a State” (twice occurring), substitute “the
Northern Territory”.
Gas
Pipelines Access (Commonwealth) Act 1998
Insert:
Federal Court means the Federal Court of Australia.
Repeal the subsection, substitute:
(2) The Federal Court has, and may exercise, the jurisdiction conferred on
the Court by the gas pipelines access legislation of the Australian Capital
Territory or the Northern Territory with respect to civil and criminal matters
arising under the Gas Pipelines Access Law of that Territory.
Omit “a scheme participant other than the Commonwealth”,
substitute “the Australian Capital Territory or the Northern
Territory”.
Note: The heading to section 17 is altered by inserting
“by Territories” after “Federal
Court”.
Repeal the section.
Omit “Federal Court, or by the Supreme Court, or
the”.
Omit “Federal Court, or by the Supreme Court, or”.
Add:
Note: Under the Jurisdiction of Courts (Cross-vesting)
Act 1987, State Supreme Courts are, with some exceptions and limitations,
invested with the same civil jurisdiction as the Federal Court has, including
jurisdiction under section 39B of this Act.
Jurisdiction
of Courts (Cross-vesting) Act 1987
After “desirable”, insert “, so far as is
constitutionally possible”.
55 Subsection 3(1)
(at the end of paragraph (aa) of the definition of
special federal
matter)
Add “of the Australian Capital Territory or the Northern
Territory”.
56 Subsection 3(1)
(paragraph (d) of the definition of
special federal
matter)
After “section 32”, insert “(other than as it has effect
because of section 32B)”.
After “Trade Practices Act 1974)”, insert “, of
the Australian Capital Territory or the Northern Territory,”.
Repeal the subparagraph, substitute:
(ii) having regard to:
(A) whether, in the opinion of the first court, the relevant proceeding or
a substantial part of it would have been incapable of being instituted in that
court, apart from this Act and any law of the Australian Capital Territory or
the Northern Territory relating to cross-vesting of jurisdiction; and
(B) whether, in the opinion of the first court, the relevant proceeding or
a substantial part of it would have been capable of being instituted in the
Supreme Court of a State or Territory, apart from this Act and any law of a
State or Territory relating to cross-vesting of jurisdiction; and
(C) the extent to which, in the opinion of the first court, the matters
for determination in the relevant proceeding are matters arising under or
involving questions as to the application, interpretation or validity of a law
of the State or Territory referred to in sub-subparagraph (B) and not within the
jurisdiction of the first court apart from this Act and any law of the
Australian Capital Territory or the Northern Territory relating to cross-vesting
of jurisdiction; and
(D) the interests of justice;
it is more appropriate that the relevant proceeding be determined by that
Supreme Court; or
Add:
(9) Nothing in this section confers on a court jurisdiction that the court
would not otherwise have.
Note: This section has effect subject to section 6 (Special
federal matters: general rules) and section 6A (Special federal matters:
Commonwealth authorities or officers acting under the laws of
States).
60 At the end of
subsection 6(1)
Add:
Note: This section has effect subject to section 6A (Special
federal matters: Commonwealth authorities or officers acting under the laws of
States).
Note: The heading to section 6 is altered by adding at the
end “: general rules”.
Insert:
(1A) However, the court must only transfer so much of the proceeding as
is, in the opinion of the court, within the jurisdiction (including the accrued
jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b),
as the case may be.
Omit “be transferred, the proceeding”, substitute “or
part of a proceeding be transferred, the proceeding or part of the
proceeding”.
Omit “subsection (2)”, substitute “subsection
(4)”.
Insert:
(1) This section applies to a proceeding (the federal matter
proceeding) if:
(a) a matter for determination in the proceeding is covered by paragraph
(c) or (e) of the definition of special federal matter in
subsection 3(1); and
(b) the matter for determination in the proceeding involves or relates to
the exercise, or purported or proposed exercise, of functions or powers
conferred on a Commonwealth authority, or officer of the Commonwealth, by an
enactment (the State enactment) referred to in paragraph (ca) or
(cb) of the definition of enactment in subsection 3(1) of the
Administrative Decisions (Judicial Review) Act 1977; and
(c) the matter for determination in the proceeding arises out of, or
relates to, another proceeding (the State matter proceeding)
pending in any court of any State:
(i) that arises, or a substantial part of which arises, under the State
enactment or a corresponding enactment of another State; and
(ii) none of the matters for determination in which are covered by
paragraph (c) or (e) of the definition of special federal matter
in subsection 3(1);
regardless of which proceeding was commenced first.
Note: Paragraph (c) of the definition of special
federal matter in subsection 3(1) refers to matters arising under the
Administrative Decisions (Judicial Review) Act 1977, and paragraph (e) of
that definition refers to matters that are within the original jurisdiction of
the Federal Court by virtue of section 39B of the Judiciary Act
1903.
(2) If:
(a) the federal matter proceeding is pending in the Federal Court or the
Family Court; and
(b) having regard to the interests of justice, including the desirability
of related proceedings being heard in the same jurisdiction, the Federal Court
or the Family Court considers it appropriate to transfer the proceeding to the
Supreme Court of the State in which the State matter proceeding is
pending;
the Federal Court or the Family Court may transfer the proceeding to that
Supreme Court. Subsection 5(4) does not apply to the federal matter
proceeding.
(3) If:
(a) the federal matter proceeding is pending in the Supreme Court of a
State; and
(b) the State matter proceeding is pending in any court of that
State;
neither subsection 5(1) nor section 6 applies to require the Supreme Court
to transfer the federal matter proceeding to the Federal Court or the Family
Court. However, the Supreme Court may do so if it considers that to be
appropriate, having regard to the interests of justice, including the
desirability of related proceedings being heard in the same
jurisdiction.
(4) Nothing in this section confers on a court jurisdiction that the court
would not otherwise have.
(5) The fact that references in this section to the interests of justice
include the desirability of related proceedings being heard in the same
jurisdiction does not of itself mean that references to the interests of justice
elsewhere in this Act do not include that matter.
(6) In this section:
Commonwealth authority means an authority or other
body (whether incorporated or not) that is established or continued in existence
by or under an Act.
officer of the Commonwealth has the same meaning as in
paragraph 75(v) of the Constitution.
Omit “Federal Court, the Family Court or the”.
Add:
(3) The Federal Court or the Family Court may:
(a) exercise jurisdiction (whether original or appellate) conferred on
that court by a provision of this Act or of a law of the Australian Capital
Territory or the Northern Territory relating to cross-vesting of jurisdiction;
and
(b) hear and determine a proceeding transferred to that court under such a
provision.
National
Crime Authority Act 1984
After “subsection 32(2)”, insert “(other than as it has
effect because of section 32B)”.
After “subsection 32(8)”, insert “(other than as it has
effect because of section 32B)”.
Insert:
(1) Section 32 applies, with the modifications set out in this section, in
relation to the following matters under laws of the States:
(a) a requirement (whether made before or after the commencement of this
section) to answer a question, or to produce a document, at a hearing before the
Authority under a law of a State;
(b) a requirement (whether made before or after the commencement of this
section) to produce a document pursuant to a notice under a provision of a law
of a State that corresponds to section 29.
(2) Subsection 32(1) is taken to be omitted.
(3) Subsection 32(2) has effect as if the reference to the decision were
instead a reference to a decision of the Authority under a provision of a law of
a State that corresponds to subsection 32(1).
(4) Subsection 32(4) has effect as if the reference to a decision of the
Authority under subsection (1) were instead a reference to a decision of the
Authority under a provision of a law of a State that corresponds to subsection
32(1).
(5) Subsection 32(5) has effect as if the reference in subparagraph
(b)(iii) to an undertaking of a kind referred to in subsection 30(5) or (7) were
instead a reference to an undertaking of a kind referred to in a provision of a
law of a State that corresponds to either of those subsections.
(6) Subsection 32(6) is taken to be omitted.
(7) Subsection 32(8) has effect as if:
(a) the reference to a notice under section 29 were instead a reference to
a notice under a provision of a law of a State that corresponds to section 29;
and
(b) the reference to a hearing before the Authority were instead a
reference to a hearing before the Authority under a law of a State;
and
(c) the reference in paragraph (d) to an undertaking of a kind referred to
in subsection 30(5) or (7) were instead a reference to an undertaking of a kind
referred to in a provision of a law of a State that corresponds to either of
those subsections.
(8) Subsection 32(11) is taken to be omitted.
(9) Subsection 32(13) has effect as if:
(a) paragraph (a) of the definition of relevant day were
omitted; and
(b) paragraph (b) of that definition related to a decision of the
Authority under a provision of a law of a State that corresponds to subsection
32(1).
(10) Subsection 32(14) has effect as if the reference to a decision of the
Authority under subsection (1) were instead a reference to a decision of the
Authority under a provision of a law of a State that corresponds to subsection
32(1).
(1) Section 32A applies, with the modifications set out in this section,
in relation to the following matters under laws of the States:
(a) a requirement (whether made before or after the commencement of this
section) to answer a question, or to produce a document, at a hearing
before the Authority under a law of a State;
(b) a requirement (whether made before or after the commencement of this
section) to produce a document pursuant to a notice under a provision of a law
of a State that corresponds to section 29.
(2) Subsection 32A(1) has effect as if:
(a) the reference in subparagraph (a)(i) to a hearing were instead a
reference to a hearing under a law of a State; and
(b) the reference in subparagraph (a)(ii) to section 29 were instead a
reference to a provision of a law of a State that corresponds to section 29;
and
(c) the reference in paragraph (c) to a special investigation were
a reference to a special investigation under this Act or under a law of a
State.
Note: The references in subsection 32A(1) to provisions of
section 32 are also modified—see subsection (4).
(3) Subsection 32A(2) has effect as if the reference in paragraph (a) to a
document that the person is required to produce pursuant to a notice under
section 20 were omitted.
Note: The references in subsection 32A(2) to provisions of
section 32 are also modified—see subsection (4).
(4) Section 32A has effect as if:
(a) a reference in the section to section 32 (in general terms) were
instead a reference to section 32 as it has effect because of section 32B;
and
(b) a reference in the section to subsection 32(1) were instead a
reference to a provision of a law of a State that corresponds to subsection
32(1); and
(c) a reference in the section to some other provision of section 32 were
instead a reference to that provision of section 32 as it has effect because of
section 32B.
Note 1: The heading to section 32 is altered by adding at
the end “—requirements made under this
Act”.
Note 2: The heading to section 32A is altered by adding at
the end “—requirements made under this
Act”.
Repeal the subsection, substitute:
(1) It is hereby declared to be the intention of the Parliament that the
operation of a provision of a law of a State that confers or imposes on the
Authority, or on a Judge of the Federal Court, a power, function or duty that is
also conferred or imposed by this Act is not prevented or limited by reason of
the provisions made by this Act.
Repeal the subsection.
After “subsection 32(2)”, insert “(other than as it has
effect because of section 32B)”.
73 Effect of
amendments in relation to reviewable State and Territory
requirements
Definitions
(1) In this item:
amended Act means the National Crime Authority Act 1984
as in force after the commencement, including as it has effect because of
sections 32B and 32C of that Act.
commencement means the commencement of the amendments of the
National Crime Authority Act 1984 made by this Schedule.
reviewable State requirement means:
(a) a requirement, made before the commencement, to answer a question, or
to produce a document, at a hearing before the Authority under a law of a State;
or
(b) a requirement, made before the commencement, to produce a document
pursuant to a notice under a provision of a law of a State that corresponded to
section 29 of the National Crime Authority Act 1984 as then in
force.
reviewable Territory requirement means:
(a) a requirement, made before the commencement, to answer a question, or
to produce a document, at a hearing before the Authority under a law of the
Australian Capital Territory or the Northern Territory; or
(b) a requirement, made before the commencement, to produce a document
pursuant to a notice under a provision of a law of the Australian Capital
Territory or the Northern Territory that corresponded to section 29 of the
National Crime Authority Act 1984 as then in force.
State does not include the Australian Capital Territory or
the Northern Territory.
Reviewable State requirements—situations in
which period for applying under subsection 32(2) of the amended Act is
extended
(2) For the purpose of a person making an application under subsection
32(2) of the amended Act concerning a decision made before the commencement in
relation to a reviewable State requirement under a provision of a law of a State
that corresponded to subsection 32(1) of the National Crime Authority Act
1984 as then in force, paragraph 32(12)(c) of the amended Act applies in
each of the following situations as if the 5 day period referred to in that
paragraph began on the commencement:
(a) the first situation—the decision was made during the period
starting on 12 June 1999 and ending immediately before the
commencement;
(b) the second situation—before 17 June 1999, a court, purporting to
Act under a provision of a law of a State that corresponded to subsection 32(12)
of the National Crime Authority Act 1984 as then in force, made an order
allowing the person further time to make an application in relation to the
decision and that period of time had not expired by 17 June 1999;
(c) the third situation—immediately before 17 June 1999, proceedings
by way of an application by the person in relation to the decision under a
provision of a law of a State that corresponded to subsection 32(2) of the
National Crime Authority Act 1984 as then in force were before a
court.
Note: The power under subsection 32(12) of the amended Act
to extend the time for applying under subsection 32(2) of that Act in relation
to a decision is available even if the decision relates to a reviewable State
requirement and the 28 day time limit that would otherwise apply expired before
the commencement.
Reviewable State requirements—situations in
which period for applying under subsection 32(8) of the amended Act is
extended
(3) For the purpose of a person making an application under subsection
32(8) of the amended Act concerning a reviewable State requirement in relation
to which a notice was given before the commencement under a provision of a law
of a State that corresponded to subsection 32(8A) of the National Crime
Authority Act 1984 as then in force, paragraph 32(12)(c) of the amended Act
applies in each of the following situations as if the 5 day period referred to
in that paragraph began on the commencement:
(a) the first situation—the notice was given during the period
starting on 12 June 1999 and ending immediately before the
commencement;
(b) the second situation—before 17 June 1999, a court, purporting to
Act under a provision of a law of a State that corresponded to subsection 32(12)
of the National Crime Authority Act 1984 as then in force, made an order
allowing the person further time to make an application in relation to the
requirement and that period of time had not expired by 17 June 1999;
(c) the third situation—immediately before 17 June 1999, proceedings
by way of an application by the person in relation to the requirement under a
provision of a law of a State that corresponded to subsection 32(8) of the
National Crime Authority Act 1984 as then in force were before a
court.
Note: The power under subsection 32(12) of the amended Act
to extend the time for applying under subsection 32(8) of that Act in relation
to a decision is available even if the decision relates to a reviewable State
requirement and the 28 day limit that would otherwise apply expired before the
commencement.
Reviewable State requirements—if subitem
(3) applies, notice is taken to have been given under subsection 32(8A) of
amended Act
(4) In a situation to which subitem (3) applies, the notice referred to in
that subitem is, for the purposes of section 32 of the amended Act, taken to
have been given under subsection 32(8A) of that Act.
Reviewable Territory requirements—ACT and
NT provisions that correspond to sections 32 and 32A no longer
operate
(5) A provision of a law of the Australian Capital Territory or the
Northern Territory that corresponds to a provision of section 32 or 32A of the
amended Act is of no effect after the commencement so far as it provides for
applications to be made to a court in relation to reviewable Territory
requirements, or for how such applications are to be dealt with.
Note 1: Section 32 (as modified by section 32B) and section
32A (as modified by section 32C) of the amended Act provide for applications to
courts in relation to reviewable Territory requirements.
Note 2: A provision of a law of the ACT or NT that
corresponds to subsection 32(1), (6) or (11) is still effective as these
subsections do not provide for applications to be made to, or dealt with by, a
court.
Reviewable Territory
requirements—proceedings under ACT and NT provisions that correspond to
sections 32 and 32A continue after the commencement under the amended
Act
(6) If, immediately before the commencement, proceedings in relation to a
reviewable Territory requirement were before a court under a provision of a law
of the Australian Capital Territory or the Northern Territory that corresponded
to section 32 or 32A of the National Crime Authority Act 1984 as then in
force, then, from the commencement, those proceedings continue as if they had
been commenced in that court under whichever of sections 32 and 32A of the
amended Act is applicable.
Reviewable Territory requirements—continued
effect of orders made before the commencement under ACT and NT provisions that
correspond to sections 32 and 32A
(7) An order that relates to a reviewable Territory requirement and that
was made by a court before the commencement under a provision of a law of the
Australian Capital Territory or the Northern Territory that corresponded to
section 32 or 32A of the National Crime Authority Act 1984 as then in
force has effect, from the commencement, as if it had been made by that court
under whichever of sections 32 and 32A of the amended Act is
applicable.
Insert:
(1AA) A reference in this section to this Act, or to a Part or Division of
this Act, is a reference to this Act, or to that Part or Division, as it has
effect as a law of the Commonwealth.
After “application law”, insert “of a
Territory”.
Note: The heading to section 150D is altered by adding at
the end “of Territories”.
After “application law”, insert “of a
Territory”.
Note: The heading to section 150O is altered by adding at
the end “of Territories”.
Omit “shall be brought only in the Court”, substitute
“may be brought in any court having jurisdiction in the
matter”.
Repeal the subsection, substitute:
(2) In so far as this section has effect as a law of the Commonwealth, the
Federal Court has jurisdiction to hear and determine prosecutions for offences
to which subsection (1) applies, and no other court has such
jurisdiction.
Omit “before the Court”.
Omit “institute a proceeding in the Court seeking, in relation to a
matter arising under this Act,”, substitute “, in relation to a
matter arising under this Act, institute a proceeding in a court having
jurisdiction to hear and determine proceedings under this section
seeking”.
Note: The heading to section 163A is replaced by the heading
“Declarations and orders”.
Omit all the words after “such an order”.
Omit “in the Court” (wherever occurring).
Omit “in any other court”, substitute “otherwise than
under this section”.
Omit “in the Court”.
Omit “in the Court or in any other court”, substitute
“under this section or otherwise”.
Insert:
(3A) In so far as this section has effect as a law of the Commonwealth,
the Federal Court has jurisdiction to hear and determine proceedings under this
section.
Omit “Court”, substitute “Federal Court under subsection
(3A)”.
Repeal the subsections.
Administrative
Decisions (Judicial Review) Act 1977
Insert:
(1) At any time when:
(a) a prosecution for an offence against a law of the Commonwealth, a
State or a Territory is before any court; or
(b) an appeal arising out of such a prosecution is before any
court;
no court has jurisdiction to hear, continue to hear or determine an
application under this Act, by the person who is or was the defendant in the
prosecution, in relation to a related criminal justice process
decision.
(2) In this section:
appeal includes an application for a new trial and a
proceeding to review or call in question the proceedings, decision or
jurisdiction of a court or judge.
related criminal justice process decision, in relation to an
offence, means a decision (other than a decision to prosecute) made in the
criminal justice process in relation to the offence, including:
(a) a decision in connection with the investigation, committal for trial
or prosecution of the defendant; and
(b) a decision in connection with the appointment of investigators or
inspectors for the purposes of such an investigation; and
(c) a decision in connection with the issue of a warrant, including a
search warrant or a seizure warrant; and
(d) a decision requiring the production of documents, the giving of
information or the summoning of persons as witnesses; and
(e) a decision in connection with an appeal arising out of the
prosecution.
Note: A decision to prosecute a person for an offence is not
reviewable under this Act: see paragraph (xa) of Schedule 1.
2 After paragraph
(x) of Schedule 1
Insert:
(xa) decisions to prosecute persons for any offence against a law of the
Commonwealth, a State or a Territory;
Note: An application under this Act in relation to other
criminal justice process decisions cannot be heard or determined in certain
circumstances: see section 9A.
3 Subparagraph
(e)(i) of Schedule 2
After “investigation”, insert “, committal for
trial”.
4 Subparagraph
(e)(iii) of Schedule 2
Omit “search warrants”, substitute “warrants, including
search warrants and seizure warrants,”.
5 Subparagraphs
(e)(iv) and (v) of Schedule 2
Repeal the subparagraphs, substitute:
(iv) decisions under a law of the Commonwealth or of a Territory requiring
the production of documents, the giving of information or the summoning of
persons as witnesses;
(v) decisions in connection with an appeal (including an application for a
new trial or a proceeding to review or call in question the proceedings,
decision or jurisdiction of a court or judge) arising out of the prosecution of
persons for any offences against a law of the Commonwealth or of a
Territory;
Insert:
and (ba) the jurisdiction of courts in civil matters in respect of
decisions made by officers of the Commonwealth to prosecute persons for offences
against the Corporations Law of a State or the Capital Territory and related
criminal justice process decisions;
Insert:
officer of the Commonwealth has the same meaning as in
paragraph 75(v) of the Constitution.
Add:
(4) This section has effect subject to section 51AA.
Add:
(4) This section has effect subject to section 51AA.
Insert:
(1) If a decision to prosecute a person for an offence against the
Corporations Law of a State or the Capital Territory has been made by an officer
or officers of the Commonwealth and the prosecution is proposed to be commenced
in a court of a State or the Capital Territory:
(a) 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 officer or officers in relation to that decision;
and
(b) jurisdiction with respect to any such matter is conferred on the
Supreme Court of the State or Territory in which the prosecution is proposed to
be commenced.
(2) At any time when:
(a) a prosecution for an offence against the Corporations Law of a State
or the Capital Territory is before a court of a State or the Capital Territory;
or
(b) an appeal arising out of such a prosecution is before a court of a
State or the Capital Territory;
the following apply:
(c) neither the Federal Court nor the Family Court has jurisdiction with
respect to any matter in which the person who is or was the defendant in the
prosecution seeks a writ of mandamus or prohibition or an injunction against an
officer or officers of the Commonwealth in relation to a related criminal
justice process decision;
(d) jurisdiction with respect to any such matter is conferred on the
Supreme Court of the State or Territory in which the prosecution or appeal is
before a court.
(3) Subsections (1) and (2) have effect despite anything in this Act or in
any other law. In particular:
(a) neither this Act, nor any other law, has the effect of giving the
Federal Court or the Family Court jurisdiction contrary to subsection (1) or
(2); and
(b) neither section 9 of the Administrative Decisions (Judicial Review)
Act 1977, nor any other law, has the effect of removing from the Supreme
Court of a State or the Capital Territory the jurisdiction given to that Court
by subsection (1) or (2).
(4) In this section:
appeal includes an application for a new trial and a
proceeding to review or call in question the proceedings, decision or
jurisdiction of a court or judge.
related criminal justice process decision, in relation to an
offence, means a decision (other than a decision to prosecute) made in the
criminal justice process in relation to the offence, including:
(a) a decision in connection with the investigation, committal for trial
or prosecution of the defendant; and
(b) a decision in connection with the appointment of investigators or
inspectors for the purposes of such an investigation; and
(c) a decision in connection with the issue of a warrant, including a
search warrant or a seizure warrant; and
(d) a decision requiring the production of documents, the giving of
information or the summoning of persons as witnesses; and
(e) a decision in connection with an appeal arising out of the
prosecution.
Omit “section 44”, substitute “sections 39B and
44”.
Omit “The”, substitute “Subject to subsections (1B) and
(1C), the”.
Insert:
(1B) If a decision to prosecute a person for an offence against a law of
the Commonwealth, a State or a Territory has been made by an officer or officers
of the Commonwealth and the prosecution is proposed to be commenced in a court
of a State or Territory:
(a) the Federal Court of Australia does not have jurisdiction with respect
to any matter in which a person seeks a writ of mandamus or prohibition or an
injunction against the officer or officers in relation to that decision;
and
(b) the Supreme Court of the State or Territory in which the prosecution
is proposed to be commenced is invested with, or has conferred on it,
jurisdiction with respect to any such matter.
(1C) At any time when:
(a) a prosecution for an offence against a law of the Commonwealth, a
State or a Territory is before a court of a State or Territory; or
(b) an appeal arising out of such a prosecution is before a court of a
State or Territory;
the following apply:
(c) the Federal Court of Australia does not have jurisdiction with respect
to any matter in which the person who is or was the defendant in the prosecution
seeks a writ of mandamus or prohibition or an injunction against an officer or
officers of the Commonwealth in relation to a related criminal justice process
decision;
(d) the Supreme Court of the State or Territory in which the prosecution
or appeal is before a court is invested with, or has conferred on it,
jurisdiction with respect to any such matter.
(1D) Subsections (1B) and (1C) have effect despite anything in any other
law. In particular:
(a) neither the Jurisdiction of Courts (Cross-vesting) Act 1987,
nor any other law, has the effect of giving the Federal Court of Australia
jurisdiction contrary to subsection (1B) or (1C); and
(b) neither section 9 of the Administrative Decisions (Judicial Review)
Act 1977, nor any other law, has the effect of removing from the Supreme
Court of a State or Territory the jurisdiction given to that Court by subsection
(1B) or (1C).
After “subsection (1)”, insert “, (1B) or
(1C)”.
Add:
(3) In this section:
related criminal justice process decision, in relation to an
offence, means a decision (other than a decision to prosecute) made in the
criminal justice process in relation to the offence, including:
(a) a decision in connection with the investigation, committal for trial
or prosecution of the defendant; and
(b) a decision in connection with the appointment of investigators or
inspectors for the purposes of such an investigation; and
(c) a decision in connection with the issue of a warrant, including a
search warrant or a seizure warrant; and
(d) a decision requiring the production of documents, the giving of
information or the summoning of persons as witnesses; and
(e) a decision in connection with an appeal arising out of the
prosecution.
Part
2—Application of
amendments
(1) In this item:
commencement means the commencement of the amendments of the
Administrative Decisions (Judicial Review) Act 1977, the Corporations
Act 1989 and the Judiciary Act 1903 made by Part 1 of this
Schedule.
related criminal justice process decision, in relation to an
offence, has the same meaning as in the following provisions (as amended by Part
1 of this Schedule):
(a) section 9A of the Administrative Decisions (Judicial Review) Act
1977;
(b) section 51AA of the Corporations Act 1989;
(c) section 39B of the Judiciary Act 1903.
(2) The amendments of the Administrative Decisions (Judicial Review) Act
1977, the Corporations Act 1989 and the Judiciary Act 1903
made by Part 1 of this Schedule apply in relation to:
(a) a decision made on or after the commencement to prosecute a person for
an offence, even if the conduct alleged to give rise to the offence occurred
before the commencement; or
(b) a related criminal justice process decision made on or after the
commencement in relation to an offence, even if either or both of the following
apply:
(i) the conduct alleged to give rise to the offence occurred before the
commencement;
(ii) the prosecution of the offence, or an appeal arising out of the
prosecution, was commenced before the commencement.
(3) The amendments of the Administrative Decisions (Judicial Review) Act
1977, the Corporations Act 1989 and the Judiciary Act 1903
made by Part 1 of this Schedule also apply in relation to:
(a) a decision made before the commencement to prosecute a person for an
offence, even if that decision is the subject of an application that is before a
court at the commencement; or
(b) a related criminal justice process decision made before the
commencement in relation to an offence, even if either or both of the following
apply:
(i) the decision is the subject of an application that is before a court
at the commencement; or
(ii) the prosecution of the offence, or an appeal arising out of that
prosecution, was commenced before the commencement.