Bills Digest No. 149  1999-2000Jurisdiction of Courts Legislation Amendment Bill 2000

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Jurisdiction of Courts Legislation Amendment Bill 2000

Date Introduced: 8 March 2000

House: House of Representatives

Portfolio: Attorney-General

Commencement: The amendments to the Trade Practices Act 1974 commence on Royal Assent. The remaining items in Schedule 1 commence 6 months after Royal Assent or earlier, if so fixed by Proclamation. The remaining provisions of the Bill, including Schedule 2, commence on Royal Assent.

Purpose

A primary purpose of the Bill is to respond to the High Court's recent invalidation of cross-vesting schemes in Re Wakim⁽¹⁾ with a series of measures which:

• repeal provisions which contemplate the conferral of State jurisdiction on federal courts, now known or assumed to be invalid
• restore the availability of federal administrative law proceedings for decisions taken by Commonwealth officials under State law, as part of co-operative legislative schemes
• provide, in relation to the Corporations Law and certain other co-operative schemes, for the vesting of jurisdiction in, and the transfer of proceedings between, State, Territory and federal courts, within constitutional limits
• provide generally for the cross-vesting of certain proceedings involving decisions by Commonwealth officials under State law
• preserve the Federal Court's exclusive jurisdiction in relation to proceedings under the Competition Codes and the Price Exploitation Codes of the Territories (but not the State Codes).

A separate purpose of the Bill is to restrict the ability to challenge pre-trial decisions taken by Commonwealth officials in the criminal justice process, and to do so retrospectively.

Background

The Constitution

Australia's national government is based on a separation of the legislative, executive and judicial power of the Commonwealth, each having its own chapter in the basic law of the polity, the Commonwealth Constitution. The Westminster system of responsible government blurs the separation between the Legislature and the Executive, but the separation of federal judicial power from the other two arms of government, implied by the separate existence of Chapter III in the Constitution, has become sharper and more significant with the accretion of High Court decisions over the 20^th Century.

In Chapter III, sections 75 and 76 spell out the basic content of federal judicial power exercised by the first and still paramount federal court, the High Court of Australia. Section 77 authorises Parliament to confer jurisdiction on other federal courts it may create. Section 77 also makes clear that the Commonwealth can confer federal judicial power on a State court.

A critical question not answered until the dying days of the 20^th Century was whether sections 75 and 76 were an exhaustive statement of federal judicial power. In particular, could States confer jurisdiction over State matters on federal courts? Clearly section 77 permitted the Commonwealth to confer federal jurisdiction on State courts, but could judicial power travel in the opposite direction? There was no express authority in the Constitution for the State conferral of jurisdiction on federal courts, but neither was it expressly prohibited. When the question finally came before the High Court for definitive resolution, it necessarily entailed a consideration of implications to be drawn from the constitutional text which arguably pointed in either direction.

Jurisdictional disputes and fragmentation

It is not surprising that this issue crystallised for High Court consideration only toward the end of the 20^th Century. The Federal Court of Australia only began operation in 1977 and the Family Court of Australia commenced sitting only the year before, in January 1976. The Family Law Act 1975 and the Trade Practices Act 1974 put federal legislation in the forefront of family and commercial litigation in a way which ensured that these courts would become central institutions in the legal life of the nation. Federal administrative law, such as the Administrative Decisions (Judicial Review) Act 1977, and other national legislation further reinforced the importance of the Federal Court. People and businesses, however, continued to sue each other in State courts under all kinds of State law. The potential increased for two conflicting parties to have part of their dispute classified as a federal matter to be heard in one court system and another part of their dispute defined as State jurisdiction. The inefficiencies of litigation being fragmented across jurisdictions are obvious. The pressure grew for procedures which allowed all relevant disputes between parties to be resolved in one forum.

The Jurisdiction of Courts (Cross-Vesting) Act 1987

The Commonwealth, State and Territory cross-vesting laws united the Australian court system in a dramatic way. Although some mechanisms were already available to reduce fragmentation (notably the doctrine of 'accrued' jurisdiction which allowed latitude for one court to hear both a federal and a related State matter, and section 77 of the Constitution which allowed the Commonwealth to vest federal jurisdiction in State courts) the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and its State and Territory counterparts made the transfer of proceedings between jurisdictions much more straightforward. The intention was to set up rules and procedures which encouraged the concentration in one court of all related litigation involving the disputing parties.

The Corporations Law and other Cross-Vesting Schemes

Soon after, another co-operative scheme involving legislation of the Commonwealth, States and Territories created a uniform national Corporations Law and inserted in it a cross-vesting scheme specifically designed to deal with Corporations Law disputes. In general, the scheme 'enabled participating courts to exercise jurisdiction with respect to civil matters within the jurisdiction of other participating courts, and to transfer matters to another of those courts where it was "more appropriate" that the matter be heard by that other court'.⁽²⁾

Other co-operative schemes also developed along similar principles, in areas such as competition law, the activities of the National Crime Authority and the regulation of agricultural and veterinary chemicals. One feature of these schemes relevant to the present Bill was that Commonwealth administrative laws, notably the ability to test the legality of decisions under the Administrative Decisions (Judicial Review) Act 1977, were imported into State law so that they applied to decisions taken under co-operative schemes. Thus agencies such as the Australian Securities and Investments Commission were said to be susceptible to federal judicial review even when exercising functions conferred under State law.

Another feature of the schemes was the perception that cross-vesting was conducive to the development of the Federal Court as a body expert in competition, corporate and administrative law, able to make a constructive contribution to national economic life.

Enter the High Court

There was always a question mark over the constitutional validity of the cross-vesting schemes. Cross-vesting prompted two questions in particular: did the Constitution permit States to confer jurisdiction on federal courts, and could the Commonwealth 'authorise' federal courts to exercise State jurisdiction so conferred? In 1998, cross-vesting survived constitutional challenge only by a so-called 'technical majority', the High Court splitting 3-3, leaving intact the Full Federal Court's rejection of the challenge.⁽³⁾

In 1999, however, by a 6-1 majority the High Court in the much criticised decision of Re Wakim; Ex parte McNally held that the answer to both questions stated above was 'no'.⁽⁴⁾ The decision caused widespread concern, particularly in business circles keen to retain, as far as possible, uniform national commercial law and the efficient disposal of related litigation in a single forum.

A number of proposals for resolving the problems created by Re Wakim have been put forward, though all of them suffer from legal or political shortcomings of one kind or another. The list of suggested solutions includes:

• a constitutional referendum which would authorise the referral of State jurisdiction to federal courts
• a referral of legislative power over a particular area or areas (the common suggestion being corporations law) by all (or initially at least by the largest) States to the Commonwealth under section 51(xxxvii) of the Constitution⁽⁵⁾
• the passage of a Federal Corporations Act, in the hope of sparking State legislation to plug the gaps and create a seamless national scheme.⁽⁶⁾

None of these solutions is attempted in the Bill. In his Second Reading Speech the Attorney-General said he expected that a proposal for referral of powers over corporate law would be developed for consideration by Commonwealth, State and Territory ministers. In 1999 he reportedly contemplated the referendum option,⁽⁷⁾ but was quoted in March 2000 as saying his advice was 'that it would be very hard to justify a referendum on cross-vesting'.⁽⁸⁾ Essentially the Bill restores judicial review of Commonwealth decision-makers under certain co-operative schemes and a degree of cross-vesting, both generally and specifically in relation to Corporations Law.

Main Provisions

Schedule 1-Amendments relating to inability of States to confer jurisdiction on federal courts

Three types of amendment dominate Schedule 1. Many amendments capitalise on the High Court's 1987 decision in Re Cram (discussed below) as a means of restoring judicial review in situations where it has been wiped out by Re Wakim (specifically where Commonwealth officials are exercising functions under State law as part of a co-operative scheme). This involves recasting the vesting of jurisdiction and the right to take such review proceedings as matters of federal law. Many other amendments remove provisions which contemplate the conferral of State jurisdiction on federal courts. Finally a number of provisions involve the fresh conferral of jurisdiction on State courts in relation to review proceedings recast in the Bill as matters of federal law.

Administrative Appeals Tribunal Act 1975

Overview:

The Administrative Appeals Tribunal ('AAT') was established in 1976 as a review mechanism for decisions taken by Commonwealth Ministers, agencies and officials. It has the power to review both the merits and the legality of those decisions over which it is given express jurisdiction. Certain State legislation adopts the provisions of the Administrative Appeals Tribunal Act 1975 ('AAT Act') as State law, under various co-operative legislative schemes between the different tiers of government. This means that decisions taken under the co-operative schemes can be reviewed by the AAT pursuant to State law. In Re Wakim the High Court held that the Constitution prohibited the States from conferring jurisdiction on Commonwealth judicial bodies. As the AAT is not a judicial body of the Commonwealth, the decision is not seen to threaten the particular conferral of jurisdiction just described.

Appeals from decisions of the AAT, however, bring the Federal Court into the picture. So too does the capacity of the AAT to refer to the Federal Court questions of law which arise in proceedings before the AAT. The provisions dealing with appeals and questions of law are found in sections 44 to 46 of the AAT Act. Under co-operative schemes, sections 44 to 46 have been imported into State Acts and apply as State law ('equivalent State laws'). To the extent that these equivalent State laws purport to confer jurisdiction on the Federal Court they are presumed to be invalid in light of the decision in Re Wakim.

A unanimous High Court decision in 1987 found that Commonwealth decision-makers remain 'officers of the Commonwealth' and thus susceptible to judicial review under federal law, even when they are exercising functions conferred by State law.⁽⁹⁾ This principle offers a path around the problem created by Re Wakim as far as appeals and questions of law going from the AAT to the Federal Court under a co-operative scheme are concerned. This Bill introduces amendments to the AAT Act which confer jurisdiction over appeals and questions of law on the Federal Court as a matter of federal law. The Federal Court's role is preserved in this aspect of co-operative schemes without offending the principle in Re Wakim.

The Government's position is that Re Wakim does not threaten the constitutional validity of Territories conferring jurisdiction on federal courts.⁽¹⁰⁾ Thus, as part of a co-operative scheme, a Territory law could continue to confer jurisdiction on the Federal Court to hear appeals and questions of law from the AAT when the latter body was exercising powers conferred on it by Territory law. For the sake of consistency, however, the Bill will repeal the current Territory provisions and provide across-the-board as a matter of federal law that appeals and questions of law from the AAT can be heard by the Federal Court.

Specific Provisions:

Item 1 of Schedule 1 hives off the existing appeal and questions of law provisions in the AAT Act as a separate new Part IVA. New subsection 43B(1) confirms the Federal Court's role in such proceedings, whether the AAT was or is exercising powers under Commonwealth, State or Territory laws. References in Part IVA to the AAT Act are deemed by new subsection 43B(2), where appropriate, to be references to equivalent State laws applying under a co-operative scheme.

Item 2 has two purposes. Subitem 2(2) restores the position of parties who lost appeal rights to the Federal Court from the AAT as a result of the decision in Re Wakim. It gives these parties 28 days from the commencement of item 2 to commence an appeal to the Federal Court. This provision applies where the AAT was acting under a State law in the following three situations:

• where the AAT's decision was made not more than 28 days before the High Court's decision in Re Wakim was handed down, on 17 June 1999
• where the Federal Court had granted an extension of time to lodge an appeal and that time had not expired when Re Wakim was handed down
• where an appeal proceeding was underway before the Federal Court when Re Wakim was handed down.

Secondly, once item 1 takes effect, sub-items 2(3)-2(5) repeal equivalent Territory laws which 'borrow' sections 44 to 46 of the AAT Act, and deem legal proceedings taken and court orders made under the equivalent Territory law to have been made under the AAT Act, as amended by this Bill.

Administrative Decisions (Judicial Review) Act 1977

Overview:

At present, when a Commonwealth agency (such as the Australian Competition and Consumer Commission) makes a decision under a State law which forms part of a co-operative legislative scheme (such as the National Competition Code), the Administrative Decisions (Judicial Review) Act 1977 ('ADJR Act') applies to that decision as a matter of State law.⁽¹¹⁾ In this situation, State law purports to confer ADJR Act jurisdiction on the Federal Court, something which Re Wakim said is constitutionally impermissible.

Items 3-27 are primarily concerned to repair the damage caused by Re Wakim to the system of judicial review under co-operative schemes. The critical provisions are items 4, 9 and 26 which ensure that decisions by Commonwealth officials under State law pursuant to five co-operative schemes are susceptible to ADJR Act review before the Federal Court. It does so by conferring ADJR Act jurisdiction on the Federal Court as a matter of federal law.

Specific Provisions:

Items 4 and 9 expand the definition of a decision to which the ADJR Act applies, to include decisions made by Commonwealth officials under a State or Territory law described in item 26. Item 26 inserts new Schedule 3, which lists five schemes involving complementary legislation by Commonwealth, State and Territory governments.

Items 11, 14 and 15 are consequential on these changes.

Another notable provision is item 24. It inserts new section 19B, which allows the removal by regulation of ADJR-based judicial review of Commonwealth officials acting under State or Territory law. This appears to leave to delegated legislation a matter of some potential substance, but the Explanatory Memorandum correctly points out that existing section 19 already permits the removal of matters from ADJR Act coverage by regulation. New section 19B also allows regulations to add new State or Territory Acts to Schedule 3 and thus expand the coverage of judicial review under the ADJR Act, and to alter the description of State and Territory Acts where these might change from time to time. Item 12 is consequential on item 24.

Item 27 provides transitional provisions very similar to those set out in item 2 (described above). It allows certain parties, directly disadvantaged by the handing down of the decision in Re Wakim, a period of 28 days from the commencement of the amendments to initiate an ADJR application. It also provides for the timed repeal of equivalent Territory provisions and the recognition of orders made and proceedings taken under those Territory provisions.

Item 5 is consequential on the technical amendment in item 6.

There are a number of technical amendments to clarify the application of the ADJR Act to decisions under laws of the Northern Territory and Australian Capital Territory ('ACT') (items 7, 8, 10, 17 and 23).

Item 18 is consequential on item 31in respect of what it says about the Corporations Act 1989. There is no parallel express statement regarding section 9 of the ADJR Act found in the Jurisdiction of Courts (Cross-Vesting) Act 1987. Presumably the comment in the Note is based on the principle that a later inconsistent Act repeals an earlier Act.

Under the ADJR Act, where a body goes out of existence but a party is still entitled to seek review of the decision it made, the federal Minister administering the relevant Act can specify a person to be treated as if he or she made the decision. Item 22 provides that where the decision-maker who no longer exists was acting under State or Territory law, it is the federal Attorney-General who specifies the 'stand-in' decision-maker.

Given that the National Companies and Securities Commission long ago ceased to operate, references in the ADJR Act to that body are now redundant and are removed by items 19, 21 and 25.

Australian Sports Drug Agency Act 1990

The Australian Sports Drug Agency (ASDA) is a Commonwealth statutory authority which primarily focuses on the conduct of comprehensive drug testing in competitive sport. Section 9A of the ASDA Act facilitates a State or Territory law which confers jurisdiction on certain Commonwealth entities including the Federal Court. Item 28 would amend this provision by confining the Commonwealth's co-operation in certain ways. Territory laws may continue to confer such jurisdiction on the Federal Court (new subsection 9A(3)) while State laws may no longer confer jurisdiction on the Federal Court but still may confer it on 'a member or officer' of that court (new subsection 9A(2)). Presumably this latter provision is based on an assumption that Re Wakim does not invalidate the conferral by States of jurisdiction on federal judges acting in their personal (rather than judicial) capacity or on officers of a federal court.⁽¹²⁾ The basis for this legal opinion is not set out in the Explanatory Memorandum to the Bill. Even if a judge may act in a personal capacity for or in relation to ASDA it is difficult to separate the conferral of power on an officer of the court from a conferral on the court itself. If this is correct then a Re Wakim question might surround this provision.

Corporations Act 1989

Overview:

Section 82 of the Corporations Act 1989 ('Corporations Act') contains the Corporations Law. The Corporations Law is a uniform national law which deals with companies, takeovers, securities and futures. Each State has a law which adopts the Corporations Law. This is designed to achieve uniform national corporations legislation, despite the constitutional limitations on Commonwealth legislative power.

The Corporations Law contains its own cross-vesting scheme designed to achieve the efficient handling of corporations litigation as free as possible of jurisdictional fragmentation. It also applies Commonwealth administrative law as State law in the States and confers (in addition to the Federal Court) jurisdiction on State and Territory Supreme Courts with respect to civil matters arising under the Corporations Law of the ACT, with the exclusion of ADJR Act proceedings.

Re Wakim endangers the cross-vesting provisions because they include the conferral by State law of jurisdiction on federal courts. It also imperils ADJR Act litigation regarding decisions by Commonwealth decision-makers (such as the Australian Securities and Investments Commission) made under State law, because the State Supreme Courts are prevented from hearing them by the Corporations Law (see above paragraph), and the Federal Court is constitutionally prohibited from exercising a jurisdiction conferred by State law (in this case, the State law which imports Commonwealth administrative law).

Items 29-46 propose three main responses to these problems. They confer jurisdiction on State and Territory Courts to hear ADJR Act proceedings involving decisions by Commonwealth officials under State or Territory Corporations Law. They also provide for the Federal Court to transfer such matters to State or Territory Courts in appropriate circumstances and vice versa. The latter form of transfer is constitutionally possible because items 4, 9 and 26 recast State-based ADJR proceedings against Commonwealth officials as matters of federal law. The much wider range of non-ADJR legal proceedings possible under the Corporations Law of a State cannot, however, be cross-vested in federal courts as a result of Re Wakim, and so the Corporations Act provisions which consent to such cross-vesting are removed.

Specific Provisions:

Section 51 of the Corporations Act confers jurisdiction on courts regarding federal Corporations Law matters. Item 31 adds to that list those ADJR proceedings recast by this Bill as federal matters in the way described immediately above, and confers jurisdiction over them on State and Territory Supreme Courts. Items 29, 30, 32, 39 and 40 are consequential on this change.

Section 53 of the Corporations Act provides for the transfer of federal Corporations Law matters between the Federal Court and State and Territory Supreme Courts. Item 33 adds the ADJR Act proceedings dealt with in item 31 (decisions by Commonwealth officials under a State or Territory Corporations Law) to the list of proceedings in which such transfers are possible. Thus State and Territory Supreme Courts may hear ADJR Act proceedings arising out of the Corporations Law for the first time. This will reduce the fragmentation of litigation, given that, post-Re Wakim, most matters arising under State Corporations Laws must be heard in State Supreme Courts. The transfer of these particular ADJR Act proceedings is, however, regulated by the conditions set out in item 35. The Explanatory Memorandum predicts that the effect of the wording in new subsections 53(4) and (5) is that 'in the ordinary course of events' the ADJR Act proceedings will end up in the Supreme Court, but this is debatable. Item 34 is consequential on item 35.

Re Wakim prevents a federal court exercising general civil jurisdiction over matters arising under a State Corporations Law, though not, the Government believes, under a Territory law (see endnote 3) and this is reflected by the changes in items 38, 42, 45 and 46.

The Government also believes that there is no constitutional obstacle to vesting of jurisdiction in Territory courts by State laws, which explains the restatement of existing law in item 43. This same sentiment is evident in item 44 dealing with the enforceability of court judgments.

Item 41 is consequential on item 43.

Gas Pipelines Access (Commonwealth) Act 1998

Overview:

Since the early 1990s the Commonwealth has been promoting competition in the natural gas industry. As a result of intergovernmental agreement, the National Third Party Access Code for Natural Gas Pipeline Systems ('the National Code') allows parties to negotiate access to natural gas transmission pipelines and distribution networks, under a broad regulatory framework.

The National Code and the Gas Pipelines Access Law originated with South Australian legislation. It has subsequently been applied or 'borrowed' by Parliaments in other jurisdictions (including by the Commonwealth's Gas Pipelines Access (Commonwealth) Act 1998 ('GPAC Act')) to form a co-operative national legislative scheme. The scheme includes the conferral of functions on the Federal Court and certain Commonwealth administrative bodies (including the Australian Competition and Consumer Commission) by State as well as federal law.

The decision in Re Wakim invalidates the conferral of jurisdiction on the Federal Court by State laws, including in relation to ADJR Act proceedings against Commonwealth administrative bodies acting under State law.

Specific Provisions:

Item 49 removes reference to the Federal Court exercising jurisdiction conferred by the States. Item 48 does the same, and the reference in existing subsection 16(2) to ADJR Act proceedings is unnecessary in light of the amendments in items 4, 9 and 26. Item 50 is consequential on the same set of ADJR Act amendments.

Removal of reference to the Federal Court in items 51 and 52 is explicable by reference to the principle in Re Wakim, although it is not clear why references to the Supreme Court have also been deleted.

Judiciary Act 1903

Item 53 is consequential on the changes in items 54-66.

Jurisdiction of Courts (Cross-Vesting) Act 1987

Overview:

The Jurisdiction of Courts (Cross-Vesting) Act 1987 ('JCCV Act') is the Commonwealth's legislative contribution to the general scheme by which proceedings have been transferred between federal, State and Territory courts. Re Wakim invalidates that element of the scheme which involves the conferral of State jurisdiction on federal courts. Amendments are necessary to isolate cross-vesting to those situations where it apparently remains constitutionally permissible.

In addition, under section 6 of the JCCV Act, certain matters ordinarily ended up being transferred to the Federal Court. These 'special federal matters' related to competition and certain trade practices litigation, ADJR Act proceedings, orders to produce documents to the National Crime Authority ('NCA'), certain family law proceedings relating to adoption, and appeals and questions of law from Commonwealth bodies and matters within the original jurisdiction of the Federal Court under section 39B of the Judiciary Act 1903. Earlier amendments in this Bill seek to ensure that judicial review of decisions by Commonwealth officials under State law is available as a matter of federal law. This basic change expands the definition of certain categories of 'special federal matter' and thus the possibility that a matter arising essentially under State law may end up in the Federal Court. To reduce the fragmentation of litigation, certain amendments described below increase the capacity for State Courts to retain such matters. The JCCV Act is also amended to facilitate the transfer of such proceedings to State Supreme Courts, which are invested by still other amendments with jurisdiction to hear them.

Specific Provisions:

Items 55, 57, 61, 65 and 66 remove or alter provisions which otherwise contemplate the conferral of State jurisdiction on federal courts.

Item 56 is consequential on item 69 (see below). Item 62 is consequential on item 61. Item 63 corrects a technical error in the JCCV Act.

Item 58 slightly revises the threshold criteria for the Federal Court or Family Court deciding to transfer a matter pending before it to a State or Territory Supreme Court, where that latter court already has before it a related matter and the first-mentioned matter is more appropriately dealt with by that Supreme Court.

Item 64 is a critical provision and facilitates the transfer to or retention in a State Supreme Court, under specified conditions, of a federal judicial review proceeding against a Commonwealth official exercising a State function, where there is a related State proceeding in a State court.

National Crime Authority Act 1984

Overview:

The National Crime Authority (NCA) was established in 1984. As its most recent annual report states:

The NCA can, by notice, compel a person to furnish information, produce a document or attend a hearing and answer questions, subject to a claim of lawful refusal or excuse. Section 32 of the NCA Act empowers the NCA to make a finding on whether such a claim is justified. It also provides for review proceedings in the Federal Court where a person is dissatisfied with the NCA's finding. Section 32A provides for such proceedings to be heard by State Supreme Courts in defined circumstances. Subsection 32(8) provides a separate right to take proceedings in the Federal Court in relation to particular types of documents. Subsection 32(8A) requires notice to be given to the NCA that a court order is being sought under subsection 32(8).

Complementary State legislation also purports to provide for review proceedings before the Federal Court when the NCA exercises the same powers of compulsion albeit conferred under State law. Re Wakim prevents State law conferring jurisdiction on the Federal Court in this way.

Specific Provisions:

Item 69 applies the provisions of section 32 and 32A, with certain modifications, to situations where a person is compelled by the NCA acting under a State law to answer, furnish information or produce a document. The approach appears similar to the AAT Act amendments: to recast in the form of federal law the right to seek review in the Federal Court or State Supreme Courts, where a Commonwealth authority is exercising powers conferred by State law. Items 67 and 68 apparently deny the possibility of legal aid in these particular proceedings. No rationale for this measure is evident in the Explanatory Memorandum, apart from the statement that it ensures that the circumstances in which applications may be made remain the same. The amendments recast the provisions in question so that they are matters of federal law. Under current legal aid policies the general responsibility for legal aid in federal matters falls to the Commonwealth.

Items 70 and 71 repeal or replace provisions which rest on the premise now known to be false that State jurisdiction can be conferred on federal courts.

Item 73 contains transitional provisions very similar in nature to those described above in relation to item 2. It restores to certain parties review rights lost as a result of Re Wakim, by allowing five days from the commencement of the amendments to apply to the Federal Court for review of NCA decisions made under State law. Although not constitutionally necessary, for the sake of consistency with review procedures for NCA decisions under Commonwealth and State law, subitems 73(5)-(7) treat decisions under Territory law as they are treated in item 2. Once the amendments take effect, equivalent Territory laws which 'borrow' sections 32 or 32A of the NCA Act are repealed, and legal proceedings taken and court orders made under the equivalent Territory law are deemed to have been made under the NCA Act, as amended by this Bill.

Trade Practices Act 1974

Overview:

The Competition Policy Reform Acts passed by the Commonwealth, States and Territories in the mid-1990s created a uniform National Competition Code. The competition provisions in Part IV of the Trade Practices Act 1974 ('TPA') were thereby applied throughout Australia because State and Territory laws applied the Commonwealth legislation as if it were a law of its own State or Territory Parliament.

The Commonwealth's Competition Policy Reform Act 1995 also created a new regulator, the Australian Competition and Consumer Commission ('ACCC'), following the merger of the Trade Practices Commission and the Prices Surveillance Authority. The ACCC is responsible for the enforcement of the competition provisions of the TPA. State and Territory Competition Codes confer exclusive jurisdiction over matters arising under those Codes on the Federal Court. As far as the State Codes are concerned, these provisions conflict with the finding in Re Wakim.

A similar co-operative scheme of Commonwealth, State and Territory legislation will create a National Price Exploitation Code to monitor prices and take legal action in relation to price exploitation under the GST.

The Explanatory Memorandum states that, in light of Re Wakim, the States will repeal those provisions of their Codes which purport to confer jurisdiction over matters arising under them on the Federal Court. Those matters will instead be heard by State Courts.

Items 74-76 remove references from the TPA which contemplate that State jurisdiction could be conferred on federal courts.

Item 77 acknowledges that as a result of Re Wakim the Federal Court can no longer exercise exclusive jurisdiction in relation to prosecutions arising out of the Competition and Price Exploitation Codes, but item 78 reasserts that exclusive jurisdiction to the extent it is constitutionally possible. Item 79 is consequential on item 77.

Similarly in relation to non-criminal proceedings arising from the National Codes, items 80-83 acknowledge that the Federal Court no longer exercises exclusive jurisdiction and that proceedings may be taken in State courts. Item 84 extends to State Courts the prohibition on the ACCC initiating proceedings under this section, to take account of the fact that proceedings under this section will no longer be within the exclusive jurisdiction of the Federal Court. Item 86 reasserts the exclusive jurisdiction of the Federal Court in relation to proceedings for declarations and orders under this section, to the extent it is constitutionally possible. Items 85 and 87 are technical amendments.

Workplace Relations Act 1996

Item 88 repeals provisions which contemplate that the Federal Court could exercise jurisdiction conferred by State laws dealing with industrial relations in the coal industry or with the termination of employees whose terms and conditions of employment are governed by an award, a certified agreement or an Australian Workplace Agreement.

Schedule 2--Amendments relating to review of decisions made in the criminal justice process

The amendments in this Schedule are aimed at taking away statutory rights to review the legality of decisions made in the criminal justice system, otherwise available under the ADJR Act. The purpose of these amendments, which do not relate to the High Court's decision in Re Wakim, is said by the Government to be the elimination of delay and increased efficiency 'without reducing fairness or access to justice', by avoiding the fragmentation of litigation between two court systems. As the Concluding Comments point out, there are reasons to doubt the extent to which either objective will be achieved.

Section 75(v) of the Constitution constitutionally guarantees a right to obtain certain forms of judicial review against an 'officer of the Commonwealth'. The High Court has jurisdiction to hear such matters, but typically they are heard in the Federal Court, which has jurisdiction over such matters conferred on it by section 39B of the Judiciary Act 1903. While the Parliament can remove the right to take statutory proceedings for judicial review of Commonwealth decisions under the ADJR Act, it cannot take away the constitutional right to take proceedings under section 75(v). In contemplation that defendants in criminal proceedings will continue to take section 75(v) proceedings despite the absence of rights under the ADJR Act, the Bill deprives the Federal Court of its jurisdiction to hear such proceedings in certain circumstances and vests it instead in State Supreme Courts.

Administrative Decisions (Judicial Review) Act 1977

Item 2 of Schedule 2 removes the right to seek review under the ADJR Act of decisions to prosecute, whether under Commonwealth, State or Territory law. It does so by adding such decisions to Schedule 1 of the ADJR Act. On the other hand, the right of a defendant to seek ADJR Act review of other pre-trial decisions in the criminal justice process is diminished but not abolished altogether by item 1. Under this amendment, the right to seek review of a range of such decisions, some of which are spelled out in new subsection 9A(2), will still exist up until the point at which a prosecution comes before a court. The right is then suppressed for as long as the prosecution is before the court, and indeed for as long as any appeal arising out of the prosecution is before any court.

The restriction or abolition of the right to take ADJR Act proceedings cannot deprive defendants of their right guaranteed in section 75(v) of the Constitution to take judicial review proceedings against Commonwealth officers.

Existing section 13 of the ADJR Act gives people affected by a decision covered by the Act the right to obtain a statement of reasons from the decision-maker. Certain decisions are excluded from this requirement by the contents of Schedule 2 of the ADJR Act. Items 3-5 add more exclusions. They ensure there is no right to reasons when a decision relates to committal for trial, warrants, or a requirement to produce documents, furnish information or appear as a witness. It also adds decisions in connection with an appeal from a Commonwealth or Territory prosecution to the list of exclusions in Schedule 2 of the ADJR Act. Parliament has already provided in Schedule 2 of the ADJR Act a general exclusion of decisions relating to the administration of criminal justice and specified certain decisions which to some extent overlap with the proposed amendments.

Corporations Act 1989

Items 8 and 9 indicate that the vesting of Corporations Law jurisdiction in federal and State courts by sections 51 and 51A are subject to new section 51AA. That latter provision, contained in item 10, specifies which courts can hear judicial review proceedings under section 75(v) of the Constitution, in relation to decisions made by Commonwealth officers in the criminal justice process. It is designed to avoid the fragmentation of litigation. Where a Commonwealth prosecution of a State or Territory Corporations Law offence is heading for a State or Territory Court, the Supreme Court in that State or Territory will have jurisdiction over proceedings for judicial review of the decision to prosecute taken under section 75(v) of the Constitution. Federal courts are expressly precluded from hearing such matters.

Jurisdiction under section 75(v) is similarly vested in the local Supreme Court and denied to federal courts when a prosecution for a State or Territory Corporations Law offence (or an appeal therefrom) is actually before a State or Territory court and the judicial review proceedings relate to pre-trial decisions other than the decision to prosecute.

Item 6 is consequential on item 10.

Judiciary Act 1903

The amendments in items 11-15 achieve generally what the provisions in items 6-10 achieve specifically for the Corporations Law. In other words they alter the jurisdiction of courts under the Judiciary Act 1903 to ensure that where a prosecution is proposed to be commenced by a Commonwealth officer in a State or Territory court, or where a prosecution or consequent appeal is already before such a court, the Supreme Court in the State or Territory has jurisdiction over section 75(v) proceedings relating to pre-trial decisions and the Federal Court does not.

Application of Schedule 2 amendments

Finally item 16 makes clear that the amendments in Schedule 2 to the Bill apply not only to pre-trial decisions made after those amendments commence, but retrospectively even where the relevant criminal or judicial review proceedings are currently before a court.

Concluding Comments

Schedule 1 amendments

The decision in Re Wakim was handed down on 17 June 1999, over 9 months ago. A finding of constitutional invalidity was at least a plausible possibility at least from the time the High Court reserved its decision. The first question to be asked, then, is given the seriousness of Re Wakim's destructive effect on cross-vesting and co-operative legislative schemes, is this Bill an adequate Commonwealth response? It restores judicial review where possible and provides for a degree of cross-vesting. Large issues, however, remain for the moment unaddressed. The inability of many litigants to take advantage of the Federal Court's particular expertise and that institution's loss of an important area of jurisdiction is one example. The potential for a new round of jurisdictional fragmentation between State and federal courts is another.

A related question is whether the Bill tackles all of the co-operative schemes imperilled by Re Wakim. For example do the national codes in areas such as agricultural and veterinary chemicals, and civil aviation carriers' liability also require attention?⁽¹⁴⁾

Clearly, however, the technical issues involved are highly complex, cross a number of areas of public policy and most importantly entail intergovernmental negotiations which are notoriously difficult.

A question raised in the Main Provisions regarding item 28 and its conferral of functions on a member or officer of the Federal Court was whether the provision has any purpose and whether the latter conferral is consistent with Re Wakim. It is also questionable whether federal legal aid should be denied in certain review proceedings under the NCA Act now that they have been recast as matters of federal law. It seems unlikely legal aid would be available at the State level if the provisions in the Bill become law.

Schedule 2 amendments

The amendments in Schedule 2 are essentially unrelated to Re Wakim. Indeed to a large extent they push in the opposite direction. Whereas much of Schedule 1 is about restoring judicial review under the ADJR Act, Schedule 2 in part is concerned to remove it.

The removal of judicial review at least under the ADJR Act warrants the close attention of Parliament, given that it involves the lawfulness of official action and particularly so here, where criminal proceedings are involved. Views may differ at the level of principle whether administrative law is a desirable discipline on decision-making in the criminal justice context or an unnecessary duplication of judicial supervision more appropriately carried out by a trial judge in a criminal proceeding. The prospective and retrospective removal of ADJR Act review in relation to search and seizure warrants, once a prosecution or appeal is before a court, perhaps calls for the closest attention. It should be noted in this context that Parliament has already excluded from the ADJR Act scrutiny of decisions about warrants under telecommunications interception, national security and like legislation.

At a more pragmatic level, questions surround the rationale for removal of ADJR Act jurisdiction. It is said to be the avoidance of delay and fragmented proceedings. The Attorney-General in his Second Reading Speech also asserted that:

The apparent assumption that all proceedings which test the legality of pre-trial decision-making are 'unmeritorious' and 'collateral' is surely open to question. Moreover, as noted in the Main Provisions, Parliament cannot escape the constitutional guarantee of judicial review against officers of the Commonwealth under section 75(v) of the Constitution. Thus judicial review continues to be an option to defendants and potential defendants, albeit by more cumbersome and arcane legal means than those available under the ADJR Act. Will delay be eliminated or even reduced by the Bill's proposals? As to fragmentation, most major criminal proceedings, in the populous State of New South Wales at least, are conducted in the District Court. The Bill vests jurisdiction in the related judicial review proceedings in the State Supreme Courts. It is questionable whether a reduction in fragmented litigation will be achieved.

Endnotes

2. Re Wakim; ex parte McNally [1999] HCA 27.

3. Graeme Hill, 'The Demise of Cross-Vesting' (1999) 27 Federal Law Review 547 at 547-548.

4. Gould v Brown (1998) 193 CLR 346.

5. [1999] HCA 27

6. See for example, R Baxt, 'The Wakin Decision: What should Be Done to Overcome its impact?' (1999) 17, Company and Securities Law Journal 518 at 519-520.

7. Ibid., at 520.

8. 'Federal Court, Canberra' at odds', Australian Financial Review, 23 July 1999, p. 1.

9. 'Attorney-General stuck for solution on Corporations Law status', Australian Financial Review, 24 March 2000.

10. Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117.

11. For arguments in support of this position see Graeme Hill, 'The Demise of Cross-Vesting' (1999) 27 Federal Law Review 547 at 564-566.

12. See, for example, section 30 of the Competition Policy Reform (New South Wales) Act 1995 (NSW).

13. Certain constitutional limits apply to the conferral of non-judicial functions on federal judges, such as an apparent requirement that such functions cannot be incompatible with a judge's exercise of federal judicial power and the need for consent to the conferral on the part of the individual judge.

14. National Crime Authority, 1998-1999 Annual Report, Commonwealth of Australia, 1999, p. 2.

15. In the House of Representatives Debate on the Bill the Government introduced amendments to deal with the Agricultural and Veterinary Chemicals Code Act 1994.

16. House of Representatives, Debates (Hansard), 8 March 2000, proof copy at p. 13918.

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