Appendix 7
Judiciary
Act 1903
Act No. 6 of 1903 as amended
This compilation was prepared on
11 November 2009
taking into account amendments up to Act No. 106 of 2009
The
text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that
have been incorporated
may be affected by application provisions that are set out in
the Notes section
Prepared
by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Extract:
39B Original jurisdiction of Federal Court of
Australia
Scope of original jurisdiction
(1) Subject to subsections (1B), (1C)
and (1EA), the original jurisdiction of the Federal Court of Australia includes
jurisdiction with respect to any matter in which a writ of mandamus or
prohibition or an injunction is sought against an officer or officers of the
Commonwealth.
(1A) 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.
Jurisdiction for certain writs that relate to criminal
prosecutions etc.
(1B) If a decision to prosecute a person for an
offence against a law of the Commonwealth, a State or a Territory has been made
by an officer or officers of the Commonwealth and the prosecution is proposed
to be commenced in a court of a State or Territory:
-
the Federal Court of Australia
does not have jurisdiction with respect to any matter in which a person seeks a
writ of mandamus or prohibition or an injunction against the officer or
officers in relation to that decision; and
-
the Supreme Court of the State or
Territory in which the prosecution is proposed to be commenced is invested
with, or has conferred on it, jurisdiction with respect to any such matter.
(1C) Subject to subsection (1D),
at any time when:
-
a prosecution for an offence
against a law of the Commonwealth, a State or a Territory is before a court of
a State or Territory; or
-
an appeal arising out of such a
prosecution is before a court of a State or Territory;
the following apply:
-
the Federal Court of Australia
does not have jurisdiction with respect to any matter in which the person who
is or was the defendant in the prosecution seeks a writ of mandamus or
prohibition or an injunction against an officer or officers of the Commonwealth
in relation to a related criminal justice process decision;
-
the Supreme Court of the State or
Territory in which the prosecution or appeal is before a court is invested
with, or has conferred on it, jurisdiction with respect to any such matter.
(1D) Subsection (1C) does not apply where a
person has applied for a writ of mandamus or prohibition, or an injunction,
against an officer or officers of the Commonwealth in relation to a related criminal
justice process decision before the commencement of a prosecution for an
offence against a law of the Commonwealth, or of a State or a Territory.
(1E) Where subsection (1D) applies, the
prosecutor may apply to the court for a permanent stay of the proceedings
referred to in that subsection, and the court may grant such a stay if the
court determines that:
-
the matters the subject of the
proceedings are more appropriately dealt with in the criminal justice process;
and
-
a stay of proceedings will not
substantially prejudice the person.
Jurisdiction for certain writs that relate to civil
proceedings
(1EA) If:
-
a civil proceeding is before the
Family Court of Australia, the Federal Magistrates Court or a court of a State
or Territory; or
-
an appeal arising out of such a
proceeding is before the Family Court of Australia or a court of a State or
Territory;
the following apply:
-
the Federal Court of Australia
does not have jurisdiction with respect to any matter in which a person who is
or was a party to the proceeding seeks a writ of mandamus or prohibition or an
injunction against an officer or officers of the Commonwealth in relation to a
related civil proceeding decision;
-
the following court is invested
with, or has conferred on it, jurisdiction with respect to any such matter:
-
if the civil
proceeding or appeal is before the Family Court of Australia—that court; or
-
if the civil
proceeding is before the Federal Magistrates Court—that court; or'
-
if the civil proceeding
or appeal is before a court of a State or Territory—the Supreme Court of the
State or Territory.
Jurisdictional rules to apply despite any other law
(1F) Subsections (1B), (1C), (1D), (1E)
and (1EA) have effect despite anything in any other law. In particular:
-
neither the Jurisdiction of
Courts (Cross‑vesting) Act 1987, nor any other law, has the effect of
giving the Federal Court of Australia jurisdiction contrary to subsection (1B),
(1C) or (1EA); and
-
neither section 9 of the Administrative
Decisions (Judicial Review) Act 1977, nor any other law, has the effect of
removing from the Supreme Court of a State or Territory the jurisdiction given
to that Court by subsection (1B), (1C) or (1EA).
References to officer or officers of the Commonwealth
(2) The reference in subsection (1),
(1B), (1C) or (1D) to an officer or officers of the Commonwealth does not
include a reference to a Judge or Judges of the Family Court of Australia.
Definitions
(3) In this
section:
civil proceeding has the same meaning as in
the National Security Information (Criminal and Civil Proceedings) Act 2004.
related civil proceeding decision, in
relation to a civil proceeding, means:
-
a decision of the Attorney‑General
to give:
-
notice under section 6A
of the National Security Information (Criminal and Civil Proceedings) Act
2004 in relation to the proceeding; or
-
a certificate under
section 38F or 38H of that Act in relation to the proceeding; or
-
a decision of the Minister
appointed by the Attorney‑General under section 6A of that Act to
give:
-
notice under section 6A
of that Act in relation to the proceeding; or
-
a certificate under
section 38F or 38H of that Act in relation to the proceeding.
related criminal justice process decision, in
relation to an offence, means:
-
a decision (other than a decision
to prosecute) made in the criminal justice process in relation to the offence,
including:
-
a decision in
connection with the investigation, committal for trial or prosecution of the
defendant; and
-
a decision in
connection with the appointment of investigators or inspectors for the purposes
of such an investigation; and
-
a decision in
connection with the issue of a warrant, including a search warrant or a seizure
warrant; and
-
a decision requiring
the production of documents, the giving of information or the summoning of
persons as witnesses; and
-
a decision in
connection with an appeal arising out of the prosecution; or
-
a decision of the Attorney‑General
to give a certificate under section 26 or 28 of the National Security
Information (Criminal and Civil Proceedings) Act 2004 before or during a
federal criminal proceeding (within the meaning of that Act) in relation to the
offence.
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