Bills Digest no. 98 2008–09
Federal Court of Australia Amendment (Criminal
Jurisdiction) Bill 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 3 December
2008
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Sections 1 to 3 commence
on the day the Act receives the Royal Assent. Schedule 1 of the Act
commences on the 28th day after the day the Act receives
the Royal Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and
second reading speech can be accessed via BillsNet, which is at
http://www.aph.gov.au/Bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Federal Court of Australia Amendment
(Criminal Jurisdiction) Bill 2008 (the Bill) is to provide for the
exercise of certain criminal jurisdiction by the Federal Court of
Australia.
The Explanatory Memorandum notes that the Bill will provide a
procedural framework allowing the Federal Court to exercise the
indictable criminal jurisdiction which it will be given to deal
with serious cartel offences if the Trade Practices Amendment
(Cartel Conduct and Other Measures) Bill 2008 is enacted.[1]
The Federal Court of Australia (the Court) was established by
the Federal Court of Australia Act 1976 (Cth). The
original jurisdiction of the court is set out in subsection 19(1)
of that Act:
The Court has such original jurisdiction as is
vested in it by laws made by the Parliament[2].
The Court considers matters brought under a range of statutes
including the Trade Practices Act 1974, the
Administrative Appeals Tribunal Act 1975, the
Bankruptcy Act 1966, the Copyright Act 1968 and
the Admiralty Act 1988. This also means that the Court has
dealt with some criminal offences under federal law. However, they
are summary offences and it is only the offences under the Trade
Practices Amendment (Cartel Conduct and Other Measures) Bill 2008
that will allow the Court to deal with indictable offences, that
is, offences that carry with them a penalty of 12 months
imprisonment or more.
According to the Explanatory Memorandum, no legislation giving
the Federal Court indictable criminal jurisdiction currently
exists.[3] Once the
Trade Practices Amendment (Cartel Conduct and Other Measures) Bill
2008 is enacted, the Federal Court will be able to exercise its
criminal jurisdiction over matters relating to serious cartel
conduct. That Bill is before the current Parliament and the link to
the Bill s homepage, including the Bills Digest, can be found
here.
Commonwealth criminal law continues to expand and develop far
beyond what the Fathers of Federation could have imagined. In the
1980s, drug crimes and financial crimes were catalysts to the
creation of the Office of the Commonwealth Director of Public
Prosecutions and the (now) Australian Crime Commission.
Commonwealth criminal law continues to expand beyond borders and
captures conduct such as terrorism, people trafficking and war
crimes. Despite the enormous growth in Commonwealth criminal law,
almost all federal offences are still dealt with by State and
Territory Courts.
The Government believes that the Federal Court of Australia s
jurisdiction should be expanded to allow it to deal with specific
criminal offences. Initially, it is proposed that the Federal Court
only deal with serious cartel conduct, as introduced in the
Trade Practices Amendment (Serious Cartel Conduct) Bill
2008. There would be scope in the future to allow for other
crimes such as terrorism or customs matters. At this point in time,
the Government has specifically limited the criminal jurisdiction
of the Federal Court to serious cartel offences.[4] During the Senate Legal and
Constitutional Affairs Committee public hearing into the Bill, Mr
Tim Game SC of the Law Council of Australia, said that overall, we
see limited prospects for the Federal Court to be a trial court of
federal crime .[5]
The Bill does not address every conceivable procedural matter
that may arise but does attempt to be as comprehensive as is
reasonable. The Court will create its own Rules of Court (under
section 59(1) of the Federal Court of Australia Act 1975)
and if any gaps remain, section 68 of the Judiciary Act
will allow the Court to apply the procedural rules of the State or
Territory where the Court is sitting.
There are arguments for and against expanding the Federal Court
s jurisdiction to allow it to hear matters relating to serious
cartel offences. The arguments are neatly summarised by the Hon
Justice Mark Weinberg, formerly of the Federal Court:
In principle, those charged with offences
against federal law should all be accorded the same rights and
protections when they come to trial. This does not happen at the
moment. Federal charges are dealt with in State courts, under State
rules of procedure which vary greatly from place to place. The
rules of evidence which apply to criminal trails for such offences
also vary, sometimes in significant ways.
the [Federal] Court is well-resourced. It has
effective case management procedures which can be adapted to
criminal trials, and which will facilitate the management of what
are likely to be long, costly and extremely hard-fought cases.
A number of Federal Court judges have
previously served as State Supreme Court judges, and have
significant experience in the conduct of jury trials. Many judges
have a particular interest in competition law, and are familiar
with the difficult concepts so elaborately developed in Pt IV of
the Trade Practices Act. They also have a particular
expertise in dealing with economic experts of the kind who evidence
is likely to be adduced in trials of this nature.
There is [also] a greater likelihood of
consistency of interpretation if the new offence provisions are
dealt with predominantly within the one court, rather than working
their way through a series of different courts with different
appellate structures[6].
To consider arguments against the creation of an indictable
criminal jurisdiction on the Federal Court, Justice Weinberg
acknowledges that it is indisputable that [full-time] State and
Territory judges are likely to be more experienced in conducting
jury trials [than Federal Court judges who have served as State
Supreme Court judges].[7]
Other contrary arguments to the creation of the jurisdiction,
such as applying various existing rules of procedure and evidence,
are mostly resolved by this Bill. All the State and Territory
courts have varying structures, law and Rules of Court relating to
the conduct of a trial. The Government has stated that it has
considered all of these models in developing this Bill and has
taken what it considers to be the best provisions from each
jurisdiction, with some modifications to suit the Federal
Court.[8] This
includes proceedings for committals, which are administrative
decisions carried out by State courts.[9] The Federal Court could not be given
the power to make administrative decisions because it would be
incompatible with its exercise of judicial power. Because the
criminal procedure rules are different in each State and have their
own recognised difficulties, this Bill too has attracted some
negative attention about which models (mainly the NSW and Victorian
models) the provisions are based on.[10] However, evidence brought before the
Senate Legal and Constitutional Committee illustrated that this
Bill has been through rigorous consultation on every provision and
careful drafting.
The Bill has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry and report by 26
February 2008. Details of the inquiry are at http://www.aph.gov.au/Senate/committee/legcon_ctte/criminal_jurisdiction/index.htm
The Explanatory Memorandum notes that the amendments are not
expected to have any significant financial impact.[11]
However, there would likely be some administrative costs for the
Federal Court to implement the new framework, including writing its
new Rules of the Court for criminal practice. Justice Weinberg has
noted that:
the court intends to develop new Rules of Court
and procedures for the conduct of criminal proceedings. It also
intends to promote further judicial education, acquire additional
library and electronic resource, improve registry facilities and
administrative arrangements, and implement changes to the court s
electronic case management system.[12]
Also, the Federal Court in most jurisdictions will have to sit
in the State or Territory s Supreme Court to accommodate jurors. In
time, this might be problematic and costly if lengthy Federal Court
criminal trials encroach on State courts accommodation.
Additionally, the State and Territory would be able to charge rent
for the use of the court and its facilities.
The existing legislative arrangements for the Federal Court do
not give the Court any capacity to hear indictable criminal
offences. Section 39B(1) of the Judiciary Act currently
provides that:
The original jurisdiction of the Federal Court
of Australia also includes jurisdiction in any matter:
- In which the Commonwealth is seeking an injunction or a
declaration; or
- Arising under the Constitution, or involving its
interpretation; or
- Arising under any laws made by the Parliament, other than a
matter in respect of which a criminal prosecution is instituted or
any other criminal matter.
This Bill will add a note (item 99 of the Bill)
to clarify that paragraph (c) does not prevent other laws of the
Commonwealth conferring criminal jurisdiction on the Federal Court
of Australia.
The Federal Court will not have exclusive jurisdiction
over serious cartel offences. The State and Territory courts will
have concurrent jurisdiction. This will allow for some flexibility
to ensure that cases are prosecuted efficiently and most
appropriately. In the case of an offender being charged with both
State and Commonwealth charges, it would not be possible to deal
with the State charges in the Federal Court.[13] In Re Wakim; Ex parte
McNally, the High Court held that it was invalid to confer
State jurisdiction on federal courts. However, it is important to
note the State Courts have had federal jurisdiction since the
commencement of the Judiciary Act 1903.
The Bill will require strict adherence to provisions relating to
pre-trial hearings and disclosure and the provisions have been met
with some opposition by sections of the legal community. Under
proposed section 23CD, the Court may order the
parties to disclose details of the case (including facts, matters,
circumstances, witnesses, documents etc) and the accused may be
required to respond to a statement of the prosecution.
Proposed section 23CF may require the accused to
take issue with any matter or circumstance that the prosecution
raises. Further, the accused must indicate the basis for taking
issue. The purpose of these provisions is to sort out the wheat
from the chaff so to speak so as to enure the trial can concentrate
on matters which are genuinely in dispute. This is not an unusual
idea and is common practice in other jurisdictions. It is of great
importance for the types of matters that the Federal Court will be
hearing, namely serious cartel offences, because they will be
enormously complex and time consuming.
The second reading speech notes the justification for these
provisions is to enable
the Court to have power to ensure that the
accused knows the case against them (sic) and has access to any
unused material which is potentially relevant to responding to that
case. An accused person will not be required to disclose their
proposed defence, unless they intend to raise an alibi or rely on
mental impairment.[14]
As mentioned, this is not an unusual concept; however in
submissions to the Senate Legal and Constitutional Inquiry into the
Bill, persons representing the legal profession have been critical
of this arrangement. The Law Council of Australia is concerned with
proposed section 23CF in that it goes too far in
requiring the defence to disclose the details of its case and not
just the nature of the issues which are in dispute with the
prosecution or the general nature of the defence. [15]
The purpose of requiring the accused to enter a plea to each
count in the indictment is to:
Ensure that the Court is in a position to take
control of the proceedings at an early stage and that it is made
clear from that stage whether the accused pleads guilty or not.
This [proposed section 23CA] is one of a set of
provisions designed to ensure that pre-trail procedures can be used
effectively to narrow the range of issues that will have to be
dealt with at trial and to reduce the length of criminal
trials.[16]
Also, the Law Institute of Victoria has noted:
with concern that the consequences of not
complying with disclosure requirements may lead to the court
allowing statements to be tendered by the prosecution as evidence
of the contents where it was not challenged prior to the
commencement of the trial, or that the accused might be prevented
from challenging a fact, matter or circumstance during the trial
which was not challenged during a pre-trial hearing (s23CM)[17].
Even though it is the current view to contain the Federal Court
s indictable jurisdiction to cover the serious cartel offences, it
is of concern that the proposed section 23CF
requires the accused to indicate whether it takes issue with the
prosecution s statement at pre-trial disclosure and on what basis
it takes issue. It will be up to the Court to interpret the meaning
of take issue by deciding how much detail is required by the
accused to fulfil the requirement to take issue . If the Court does
consider other criminal matters in the future, such as terrorism
matters, this provision seemingly has the potential to abrogate the
right to silence, particularly because of the sanctions for
non-compliance. However, it would depend on how the notices are
drafted as to what takes issue could mean to a Court. Given that
the provisions are modelled on existing Victorian criminal
procedures that seem to be effective and that the intention of the
pre-trial regime would be undermined or lost if the words takes
issue were removed, the provisions should remain as drafted.
Evidence published by the Law Reform Commission of New South
Wales in 2000 shows that, during the pre-trial disclosure
period:
- The defence did not generally voluntarily disclose substantial
information about the defence case to the prosecution before the
hearing or trial.
- Where voluntary defence disclosure occurred, it improved the
efficiency of the criminal justice system.
- Where defence disclosure was given, prosecutors tended to be
more co-operative about bail and sentencing issues.
- It was rare for an accused person to remain silent at their
hearing or trial.[18]
Based on this sort of evidence, it seems that in practice the
right to silence will not be of concern. Furthermore, given the
volume and complexity of evidence that would likely be presented in
a serious cartel offences case, the efficiency and effectiveness
justification for pre-trial disclosure is a strong one. However,
the NSW Attorney-General is strongly opposed to pre-trial
disclosure, stating that the Court should not be allowed to order
pre-trial disclosure in all matters as it will create inequities
with State jurisdictions that limit pre-trial disclosure to complex
matters.[19] The
reasons for the strong opposition to the proposed pre-trial regime
do not seem to outweigh the need and effectiveness for the Federal
Court s indictable criminal jurisdiction.
The legal professional privilege rule is defined as:
In civil and criminal cases, confidential
communications passing between a client and a legal adviser need
not be given in evidence or otherwise disclosed by the client and,
without the client s consent, may not be given in evidence or
otherwise disclosed by the legal adviser if made either
- to enable the client to obtain, or the adviser to give, legal
advice or
- with reference to litigation that is actually taking place or
was in the contemplation of the client.
Further,
Documents prepared by or communications passing
between the legal adviser or client and third parties need not be
given in evidence or otherwise disclosed by the client, and without
the consent of the client, may not be given in evidence or
otherwise disclosed by the legal adviser if they come within (2)
above.
This covers communication between;
lawyer and client, lawyer and client's agent, lawyer and third
party for contemplated litigation, client (or agent) and third
party for contemplated litigation.[20] The consequence of the application of
this rule is that the document or communication cannot be used as
evidence in proceedings unless the privilege is abolished or
modified by legislation, or waived by the person in question.
Usually, in cases involving
documents, it is the communication and not the document that needs
and is given protection by legal professional privilege.[21] However, legal
professional privilege can apply to a document that was created
about the commission of the offence for use in court
proceedings.
The Bill will require, under proposed section
23CL that a party cannot refuse to disclose a
document on the grounds of legal professional privilege:
Provisions in the Bill put it beyond doubt that
there is an obligation on a party to disclose material without
excuse at the pre-trial disclosure stage. Legal professional
privilege does not override this obligation. It would be unusual
that either party would be required to disclose legal advice or
opinions because that material would not normally be evidentiary
and thus be subject to the disclosure regime[22].
The New South Wales Attorney-General does not
support this provision and has said it:
is both unnecessary and inappropriate to
prevent claims of privilege during pre-trial disclosure in criminal
matters and the abrogation of privilege may result in reduced
disclosure in practice, by discouraging defendants from making full
and frank disclosures to their lawyers in the first place.[23]
The New South Wales Attorney-General noted in
his submission that proposed paragraph 23CL(1)(b)
also raises technical concerns:
That clause refers to an order of the Court
which can override privileges and immunities other than legal
professional privilege. However, the Act as presently drafted does
not empower the Court to make such orders.[24]
The Explanatory Memorandum notes that if material is disclosed,
that will not amount to a waiver of the privilege. Further, it will
not prevent the party from claiming legal professional privilege,
if they wish to do so at the trial or in any other
proceedings[25].
However, this is problematic, particularly in light of a recent
decision of the Federal Court that was handed down subsequent to
the introduction of this Bill. AWB Limited v Australian
Securities and Investments Commission [2008] FCA 1877 (11
December 2008) held that ASIC was entitled to make use of such
information during trial proceedings, notwithstanding the possible
privilege claim. In applying the common law principles,
the court quoted Cowell v British American Tobacco Australia
Services Ltd [2007] VSCA 301 who in turn referenced Heydon in
Cross on Evidence:
once information in a privileged document has
come into the hands of a party to litigation even as a result of
compulsive process which is later reversed, the fact that the
document was and remains privileged does not of itself prevent that
party from making use of the information.[26]
The Explanatory Memorandum emphasises that the Bill does not
detract from or alter the normal duties and obligations of an
investigative agency to ensure that the prosecution is equipped to
discharge its disclosure obligations, and will not affect the
normal powers of the Court to prevent a trial from
proceeding.[27]
Proposed section 58DB will allow the Court to
grant or refuse bail as soon as the accused person appears before
the Court[28] and
it sets out various matters the court must consider in deciding
whether to grant bail. There is no explicit presumption in favour
of bail.[29] Even
though States such as Victoria legislatively provide for a
presumption in favour of bail, it is not necessary to explicitly
provide for it in criminal procedure rules. A witness from the
Attorney-General s Department to the Senate Legal and
Constitutional Affairs Committee s Inquiry reasoned that there is
no presumption of bail in this Bill because:
These are serious offences, 10 years
imprisonment, about to be enacted. There is the need to control
white-collar crim. To then put a provision in saying but there is a
presumption of bail seemed to be slightly contrary to that message.
On the other hand, of course, it has been pointed out that these
are going to be long trials; people have got ties to the community.
The position we came to was, This the Federal Court. These bail
provisions are designed to be applied by Federal Court judges.
State bail laws are applied by the whole range, from bail sergeants
up to Supreme Court and Court of Appeal judges. There is not the
same need for prescription and guidance. We can trust the Federal
Court judges to consider those matters and to make appropriate
orders. So the decision was to not have a presumption for or
against bail. [T]hat is the policy that was underpinning that
decision.[30]
Some of the bail provisions in the Bill are fairly restrictive,
possibly because of the gravity of the offences that they relate
to. For example, proposed subsection 58DA(2) will
only allow for a subsequent application for bail when there is a
significant change in circumstances following a previous refusal of
bail. While the provisions do differ from state and territory
provisions, they are not excessively prescriptive. It would be
useful if the Government was able to provide more detail on whether
there is a possibility of any problematic inconsistency in the
application of bail provisions across the various state and
territory jurisdictions in which they may be heard.
Indeed, the Bill does not include provisions allowing the Court
to take into account a matter agreed by the prosecution and the
accused during the consideration of bail applications. The Law
Council of Australia submitted that the Bill should include further
explanation of what must be considered in a bail application (in
addition to what is proposed by subsection
58DB(2), covering:
The character, antecedents, background and/or
community ties of the accused;
The strength of the evidence against the
accused
The period that the person may be obliged to
spend in custody if bail is refused;
The accused s previous failure to appear
The nature and seriousness of the
offence.[31]
Proposed subsection 58DB(3) allows the Court to
grant bail during criminal appeal proceedings if it can be
satisfied that there are exceptional circumstances that justify
granting bail. This provision is based on section 15AA of the
Crimes Act 1914.
The Bill will allow for the empanelment of a jury to sit on
matters that invoke the indictable criminal jurisdiction.
There are a number of jury offences that are outlined in the
Main Provisions section of this Bills Digest. The only concern is
whether or not the penalty imposed on an offending juror is
proportionate to the inconvenience to the Court hearing a long and
complex serious cartel offences matter.
An offence against the jury offence provisions will be
prosecuted in State and Territory courts which exercise federal
jurisdiction under section 68 of the Judiciary Act 1903.
The jury offences do not raise any special issues that would
justify not giving criminal jurisdiction to the Federal Court.
Director of Public Prosecutions Act 1983
Item 1 inserts two new subsections to section 6
of the Director of Public Prosecutions Act 1983 (DPP
Act).
These subsections will allow the DPP to institute proceedings
against a person in a court that has jurisdiction over the matter
other than the one in which that person was committed for trial.
Proposed subsection 6(2F) of the DPP Act will
allow the Director to institute a prosecution for any of all of the
offences. Proposed subsection 6(2G) adds
clarification to new subsection 6(2F) by stating
that even if the Director instituted the initial proceedings, the
Director is able to institute proceedings in another court provide
that the initial prosecution is discontinued.
The Explanatory Memorandum explains fully why these provisions
are necessary and clarifies that both the Federal Court and
State/Territory Supreme Courts will have the inherent power to stay
proceedings if the court considers that there has been any abuse of
process or that the DPP has engaged in forum shopping .[32]
Federal Court of Australia Act 1976
Item 2 inserts a new Division
1A that establishes the new procedures for the Federal
Court when it hears indictable offences. It is not intended to be
comprehensive and the simplified outline (proposed section
23AA) notes that it is supplemented by Rules of Court and
procedures set out in State and Territory laws and Rules of Court
of the State and Territory Courts.
New subsection 23AB(4) is of particular
importance in that it defines which offences the Division applies
to. New paragraph 23(4)(a) specifically notes
proposed sections 44ZZRF and 44ZZRG of the Trade Practices Act
1974[33]. New paragraph
23(4)(b) also confers jurisdiction on the Court to hear
matters that arise under any laws made by the Parliament; and
- are not otherwise within the Court s jurisdiction;
- and relate to one or more indictable offences that are
associated with an indictable offence matter in which the
jurisdiction of the court is invoked.[34]
Subdivision B addresses matters relating to
indictments. These are non-controversial provisions
(proposed sections 23BA-23BH) and deal with time
limits to file indictments, the consequences of failing to file the
indictment within that time and the procedure for amending
indictments.
Subdivision C contains provisions
(proposed provisions 23CA-23CQ)
relating to pre-trial matters including hearings, disclosure and
quashing indictments.
Proposed sections 23CA-23CC requires that
following the filing of an indictment, the Court must order a
pre-trial hearing to take place as soon as practicable. At that
hearing, the Court must direct the accused to enter a plea to each
count in the indictment (proposed paragraph
23CA(1)(b)).
Under proposed section 23CD, the court may make
orders for disclosure by the prosecution and the accused.
Proposed section 23CE outlines the requirements
for disclosure by the prosecution. The prosecution must:
- provide a notice of its case, including facts, matters and
circumstances: (a).
- provide copies or access to the material it intends to rely on:
(d) and (e),
- disclose any material which it does not intend to use but which
is potentially relevant to the case of the accused or that might
adversely affect the reliability or credibility of a prosecution
witness: (g).
- provide a list that is not in its possession but which the
prosecutor reasonably believes may be relevant to the accused s
case: (j).
- provide a cope of any information, document or other thing that
is adverse to the accused s credit or credibility:
(k).
The list is not exhaustive.
The accused must then respond to this notice under
proposed section 23CF by stating whether the
accused agrees or takes issue with it. It does appear then, that
the accused is not required to disclose their defence unless he or
she intends to raise a defence of alibi or propose to adduce
supporting evidence that he or she was suffering from a mental
impairment (23CE(i) and (j)).[35] Proposed section
23CG then allows the prosecutor to respond to the accused
s response and proposed section 23CH sets out
ongoing disclosure obligations for both parties.
Proposed subsection 23CL(1) makes it clear the
requirement to disclose material under a section 23CD order
includes both material to which legal professional privilege is
claimed, and material that is subject to a court order in respect
to an immunity, privilege or restriction. However, the operation of
these sections, and others in proposed subdivision
B is subject both to both legislative national security
information restrictions and the law on public interest
immunity.[36]
Notwithstanding that certain classes of privileged, immune or
restricted material may be required to be disclosed under
proposed section 23D, proposed paragraph
23CL(2)(a) states that the disclosure provisions does not
abrogate any immunity, privilege or restriction that applies to the
disclosure of any information or other thing. This includes legal
professional privilege.
To facilitate cooperation at the pre-trial disclosure stage,
proposed section 23CM will allow
the Court to make certain orders if a party fails to comply with
its obligations under the disclosure regime. It may order, for
example, that material not disclosed at the pre-trial stage cannot
be admitted as evidence.
A consequential amendment to subsection 16A(2) of the Crimes
Act 1914 is necessary to provide that the Court must take into
account the extent to which the person has failed to comply with
any order or other obligation about pre-trial disclosure, or
ongoing disclosure, in proceedings relating to the offence
(item 21 Part 2).
The remaining provisions in this subdivision (proposed
subsections 23CN, 23CO and 23CP) are procedural, relating
to the restriction of further disclosure in other proceedings,
admissibility of disclosed material in other proceedings and formal
objections to indictments.
Proposed section 23CQ allows the Court to
direct that a prosecution witness appear before a judicial official
to preliminarily examine a witness if the Court considers that it
would be unfair to proceed to trial without an examination. In
practice, this is known as a Basha inquiry. A Basha inquiry can
also be used if the Court considers that there is a realistic
prospect of shortening the trial if the proposed witness is
examined before the trial.
Proposed sections 23DB-23DZA covers preliminary
administrative matters relating to the empanelment of a jury. These
provisions are not controversial and include the number of jurors
(12 or no more than 15, proposed section
23DC). There is flexibility to have a slightly larger jury
so that in the circumstance of a lengthy trial, there is no
mistrial due to a juror s illness or other absence. No more than 12
jurors can consider the verdict (proposed section
23DE). Other provisions in this subdivision address
qualification and disqualification from serving on a jury
(23DI), the Sheriff s power to excuse and duty to
prepare the empanelment of the jury (23DR-23DT),
and the process when a party seeks to challenge potential jurors
(23DX).
Subdivision E outlines procedural matters
relating to juries including giving juries directions
(proposed section 23ED) and when and how a jury
can be discharged (proposed section 23EL). There
does not appear to be a provision for the jury to ask for further
guidance from the Judge but perhaps this detail is to be addressed
by the Federal Court s Rules.
Subdivision F contains procedural matters
relating to pleas, trial procedure and verdicts. It allows for the
changing of pleas (section 23FG) and prescribes
that the jury s verdict must be unanimous (section
23FI). This subdivision also outlines the consequences of
guilty pleas and verdicts (23FJ). Proposed
section 23FJ notes that the Court must accept a guilty
plea unless the accused seeks leave to change the plea or it would
be contrary to the interests of justice to accept the plea.
Subdivision G deals with what happens when a
person who has pleased guilty at committal is committed to the
Court for sentencing. Proposed section 23GB
requires that the order be taken to have been made on the day the
committal order was made.
Subdivision H (proposed sections
23HA-23HE) details the procedural requirements for
custody, taking oaths and affirmations, protecting witnesses,
unsworn statements and costs.
Division 2A Appellate and related jurisdiction (criminal
proceedings)
Proposed section 30AA addresses appeals about
indictable offences, against summary judgments, about bail and
forfeiture of bail security and against interim judgments and
decisions. 30AA only allows certain appeals and the Director of
Public Prosecutions cannot generally appeal an acquittal.
Further, an appeal against an acquittal on grounds of mental
illness cannot be brought by the prosecutor (proposed
subsection 30AC(2)).
Proposed section 30AB clarifies that an appeal
can only be brought when the court or a judge gives leave to appeal
or the appeal involves a question of law alone. Proposed
section 30AC further clarifies that only the accused and
the prosecutor may appeal.
Furthermore, in the appellate jurisdiction, the Attorney-General
may consent for the accused to appeal (proposed subsection
30AD). This gives an additional power to the
Attorney-General to deal with cases where there may have been a
miscarriage of justice.[37]
Proposed section 30AE lists the applications
that can be heard on appeal, exercised by a Full Court. These
include:
- leave to appeal under proposed subsections 30AA(1) or (2)
(proposed paragraph 30AE(2)(a))
- for an extension of time within which to file prescribed
notices (proposed paragraph 30AE(2)(b))
- to stay an order of a Full Court (proposed paragraph
30AE(2)(d))
Notably, proposed subsection 30AE(5) provides
that the Rules of Court may make provision enabling matter of the
kind mentioned above to be dealt with without an oral hearing.
Proposed section 30AF requires that filing of
certain notice must be filed before the end of 28 days after
sentencing, judgment, decision or discharge of the accused.
However, the court can extend (under proposed subsection
30AF(3)) the time if satisfied that to do so is in the
interests of justice
To remove any doubt, proposed section
30AHdetails the laws that apply at the time of the appeal.
Unless the Court orders otherwise, the laws of the Commonwealth and
the laws of the State or Territory applying under subsection 68(1)
of the Judiciary Act 1903 and the Rules of Court relating
to the practice and procedure to be followed during criminal appeal
proceedings are to be those in force at the time the prescribed
notices are filed in the Court.
Proposed section 30AI addresses the issue of
fresh evidence on appeal and allows for the Court to receive
further evidence if it is in the interests of justice to do so.
This evidence may de taken on affidavit, by videolink or similar,
by oral examination.
Under proposed section 30AJ, the Court must
allow a proposed section 30AA appeal against a
conviction if it is satisfied that the verdict was unreasonable,
unsupported by the evidence or there had been a substantial
miscarriage of justice, or that it should be set aside due to a
wrong decision on a question of law. However, if the court decides
the verdict of the jury was unreasonable or not supported by the
evidence, it may nonetheless dismiss the appeal if it is satisfied
there has been no substantial miscarriage of justice.[38] In respect of this,
the Explanatory Memorandum comments:
This ensures that a conviction cannot be set
aside on the basis of an error or irregularity which did not result
in a substantial miscarriage of justice.[39]
The Court can also allow an appeal on the sentence, and
substitute a greater or lesser sentence.
If an appeal has been instituted in relation to a judgment or
decision, the Court may stay or otherwise suspend any order arising
from the appealed decision (proposed section
30AK).
If a person is convicted of an indictable offence and sentenced
to a term of imprisonment and the person appeals against the
conviction or sentence (or both), proposed section
30AL notes that any time during which the person is
released on bail pending the determination of the appeal does not
count as part of the term of imprisonment to which the person has
been sentenced.
Subdivision B (proposed sections
30BA-30BH) outlines the options for the Court when
allowing appeals in certain circumstances. These are not
controversial and not complex.
Subdivision C contains a useful provision from
a time-saving perspective. When a single judge or another court is
dealing with a criminal matter in circumstances where there is a
right of appeal to the Federal Court (serious cartel offences),
proposed section 30CA gives the judge or court
power to get a ruling on a legal issues before making a judgment or
decision.
Proposed section 30CB gives the prosecution
power to bring a precedent appeal where an accused person has been
acquitted on the basis of a ruling of law which the prosecutor
wants to test on appeal. The Explanatory Memorandum explains that
the Full Court has jurisdiction to hear the appeal and rule on the
legal issue. The ruling will not affect the position of the accused
but will clarify the legal issue for future cases thus there is no
possibility a person s acquittal could be reversed, although a
successful appeal by the prosecution under this section might
potentially expose the acquitted person to further proceedings if,
for example, a ruling on the admissibility of certain evidence was
overturned on appeal.
In relation to costs, proposed section 30DA
provides that the Court does not have power to award costs in
criminal appeal proceedings, proceedings before the Court under
sections 30CA or 30 CB, or proceedings referred to the Court under
section 20B of the Crimes Act 1914.
The penalties for the more minor offences relating to juries are
reasonable in fact they may be relatively low considering the
length of time that a jury trial in the Federal Court would take.
It could take months or years to gather the evidence and empanel
the jury (even if it contains up to 15 members). To penalise a
person (30 Penalty Units[40]) for failing to attend, failing to comply with
directions, failing to complete questionnaires and providing false
or misleading information (60 Penalty Units) (proposed
sections 58AA-58AF) seems a low penalty compared to the
costs the court would have to bear to empanel a new juror. However,
they are consistent with similar provisions in the State
jurisdictions and, being strict liability offences, the penalties
are reasonable.[41]
Proposed sections 58AG-58AM outlines more
serious offences relating to the interference with the course of
justice. The offences carry varying penalties of imprisonment from
12 months to 10 years. The offences include:
- bribing jurors or potential jurors (proposed section
58AG)
- causing or threatening harm to jurors, potential jurors or
former jurors (proposed section 58AH)
- obstructing jurors or potential jurors (proposed
section 58AI)
- publishing or broadcasting information identifying jurors,
potential jurors or former jurors (proposed section
58AJ)
- soliciting information from jurors (proposed section
58K)
- disclosing information about a jury (proposed section
58AL)
- making improper inquiries as a juror or potential juror
(proposed section 58AM)
Division 2 provides for a Sheriff to issue
infringement notices if the Sheriff has reasonable grounds to
believe that a person has committed an offence against section 58AA
(fail to attend for service) or 58AE (fail to complete and return a
questionnaire).
Proposed section 58BA requires that the
infringement notice must be given within 12 months after the day on
which the offence is alleged to have been committed.
Matters to be included in an infringement notice are listed in
proposed section 58BB and proposed section
58BC specifies that the pecuniary penalty in the
infringement notice must be equal to one-fifth of the maximum
penalty that a court could impose for the offence.
Proposed sections 58BD 58BG address other
administrative matters relating to the issuing of infringement
notices including specifying that the regulations may make further
provisions in relation to infringement notices and refusal notices
given under proposed subsection 58BD(4).
Division 2 (proposed sections 58DA-58EA)
contains provisions relating to the application for and the
granting of bail, noting that the accused can apply to the court
for bail for one or more offences but if the court refuses to grant
bail, the accused cannot apply again for bail unless there has been
a significant change in circumstances since the refusal. There is a
right of appeal, without leave, under proposed subsection
30AA(3). Proposed subsection 58DB(4) notes that the bail
provisions are also subject to other Acts.
Bail conditions include that:
- the accused reside at a specified place (proposed
paragraph 58DC(2)(a))
- the accused report to a specified person at a specified place
at a specified time (proposed paragraph
58DC(2)(b))
- that the accused surrender any passport and agree not to
approach a point of international departure (proposed
paragraph 58DC(2)(c))
- that the accused provide security in the form of money, or
other property, for forfeiture if the accused fails to appear
before the Court in accordance with the accused s bail undertaking
(proposed paragraph 58DC(2)(d))
- one or more other specified persons provide security in the
form of money, or other property, for forfeiture if the accused
fails to appear before the Court in accordance with the accused s
bail undertaking (proposed paragraph
58DC(2)(e)).
Other administrative matters relating to bail are contained in
proposed sections 58DD-58DH.
Division 3 addresses circumstances and
consequences where bail arrangements are sought to be varied or
revoked (proposed sections 58EA, 58EB and
58EC).
Division 4 creates an offence provision for a
person failing to appear before the Court whilst on bail.
Proposed section 58FA creates a penalty of
imprisonment for 2 years if the person cannot show reasonable
excuse as to why they failed to appear before the Court.
Proposed sections 58FB-58FE cover forfeiture
arrangements if the accused fails to appear before the Court in
accordance with the accused s bail undertaking. The Registrar of
the Court may be directed to give a notice to show cause to each
person who provided security for the accused s bail; and any other
person who may have an interest in security provided for the
accused s bail. This application cannot be made more than 6 months
after the alleged failure to appear before the Court.
The Court must order the forfeiture of all specified security
provided by a particular person for the accused s bail if the Court
is satisfied that the accused failed to appear before the Court in
accordance with the accused s bail undertaking. (Proposed
section 58FC). The Court may take into account whether the
accused had a reasonable excuse for failing to appear, whether it
is in the interests of justice to do so and whether there are any
objections to be considered (proposed section
58FC). A forfeiture order takes effect at the end of the
time for filing such a notice under section 30AF.
The effect of a forfeiture order is outlined in proposed
section 58FE by differentiating between the various types
of security (whether money or registrable property) that might have
been placed over the accused s bail.
Division 5 allows for the Court to direct that
a bail order continue to have effect and that a bail order ceases
to have effect if the Court discharges the accused in relation to
all the offences for which bail was granted (proposed
sections 58GA and 58GB). These bail
provisions are self-explanatory and accord with other bail regimes
in the States and Territories.
Division 6 contains proposed section
58HA which outlines the documents which are to be received
as prima facie evidence of their contents. The Explanatory
Memorandum explains that this clause facilitates the proof of
certain formal matters relating to bail[42]. Proposed subsection
58HA(3) will allow that the following matters can be
proved on the basis of a written certificate issues by an officer
of the Court:
- a condition specified in a bail order has not been varied or
has been varied in a specified way (proposed paragraph
58HA(3)(a))
- a notice was given under subsection 58FB(2) to a specified
person in a specified way on a specified day (proposed
paragraph
58HA(3)(b))
- an accused did not appear in person before the Court at a
specified place or on a specified day or during a specified period
(proposed paragraph 58HA(3)(c))
- the accused did not notify the Court of a change in the accused
s residential address to a specified address and on a specified day
(proposed paragraph 58HA(3)(d))
- and the accused notified the Court of a change in the accused s
residential address to a specified address and on a specific day
(proposed paragraph 58HA(3)(e)).
Judiciary Act 1903
The Judiciary Act 1903 allows for the exercise of
judicial power of the Commonwealth.
The amendments to the Judiciary Act 1903 by
proposed section 68A deal with matters relating to
committals if both the Federal Court and a State or Territory Court
have jurisdiction in relation to indictable offences. Jurisdiction
is provided by:
- proposed subsection 68A(1) provides that
section 68A applies if both the Federal Court and a superior court
of a State or Territory have jurisdiction to try a person on
indictment for an indictable offence against a law of the
Commonwealth.
- proposed subsection 68(2) provides that a
State or Territory committal court that has jurisdiction can commit
the person for trial or sentence, as appropriate, to either the
Federal Court or the superior court of the State or Territory.
- proposed subsection 68(3) provides that the
committal court must invite the DPP to suggest which court should
be named in the committal order. The committal court must consider
specifying the court suggested by the DPP in the committal order,
but is not bound to comply with the suggestion[43]. This is a considerable power
for the DPP because, according to the Explanatory Memorandum, the
committal court must invite the DPP to suggest a court even if the
DPP is not a party to the committal proceedings and even if there
is reason to believe that the trial, if there is one, will be
conducted by someone other than the DPP[44].
Proposed section 68B will remove
any doubt about which laws apply if both the Federal Court and a
State or Territory court have jurisdiction in relation to an
offence. For example, if a person is charged with a Commonwealth
offence, the person s committal proceedings and preliminary
proceedings will be dealt with under the applicable State or
Territory laws.
Proposed section 68C provides a useful table to
illustrate which laws are to be applied depending on what
proceedings are before the Court. For example, if the proceedings
are primary proceedings but not sentencing proceedings then the
laws of the State or Territory in which the Federal Court hears the
proceedings is to apply. Importantly, the laws include the Rules of
the Supreme Court of that particular court that apply in criminal
proceedings (proposed paragraph 68C(6)(a)).
Part 2 of the Bill makes consequential
amendments arising out of Part 1 of the Bill to the following
Acts:
- Bankruptcy Act 1966
- Crimes Act 1914
- Federal Court of Australia Act 1976
- Judiciary Act 1903
- Mutual Assistance in Criminal Matters Act 1987
- Proceeds of Crime Act 2002
- Transfer of Prisoners Act 1983
For an explanation of the amendments, see pages
78-99 of the Explanatory Memorandum.
Concluding comments
The rigour in the detail of this Bill suggests that the
Government is taking a cautious approach to giving the Federal
Court indictable criminal jurisdiction. Much of the detail of the
Bill contains prescriptive rules of procedure that might normally
be found in the Rules of Court. The Federal Court is being tested
to see how it responds to the new jurisdiction, both legally and
administratively. This is a significant step in judicial practice
in that there will remain a capacity to expand the Court s criminal
jurisdiction to existing Commonwealth criminal offences such as
terrorism offences, although this would require additional
legislation. Even though the present Government has not indicated
any further plans to add to the criminal jurisdiction of the
Federal Court, the Court s procedural rules will be flexible enough
to accommodate this if future Parliaments desire it.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2430.
[13] Re
Wakim (1999) 163 ALR 270.
[41] Where
strict liability applies to an offence, the prosecution does not
need to prove any fault on the part of the defendant, for example,
recklessness, negligence, or in the case of this Bill, that the
defendant had the required knowledge of the applicable fuel
standard as determined by the Minister. Strict liability offences
are those which do not require guilty intent for their commission,
but for which there is a defence if the wrongful action was based
on a reasonable mistake of fact.
Monica Biddington
20 February 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top