Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)Schedule 1 Amendments relating to inability of States to confer jurisdiction on federal courts
Schedule 1 contains amendments to Commonwealth Acts that relate to the inability of federal courts, as a result of Re Wakim , to exercise State jurisdiction. Those amendments:
- •
- repeal provisions which purport to consent to the conferral of State jurisdiction on federal courts; and
- •
- make provision for judicial review of decisions of Commonwealth officersand bodies under specified State and Territory laws.
Administrative Appeals Tribunal Act 1975
As part of several co-operative State/Territory/Commonwealth schemes, the States and the two internal Territories conferred powers and functions on the Administrative Appeals Tribunal (AAT) by adopting the Administrative Appeals Tribunal Act 1975 (AAT Act) as State or Territory law. Generally speaking, the adoption of the AAT Act by States has survived the decision in Re Wakim (see comments on the ADJR Act below).
The exception to this general proposition relates to the role of the Federal Court under the AAT Act. Section 44 of the AAT Act provides for appeals from AAT decisions to the Federal Court on questions of law and section 45 provides for references by the AAT of questions of law to the Federal Court. When those provisions were adopted by the States as State laws, they purported to confer the relevant jurisdiction on the Federal Court as State jurisdiction. Re Wakim invalidated that purported conferral.
The amendments to the AAT Act contained in the Bill will make certain that the Federal Court has jurisdiction to deal with AAT matters by virtue of the AAT Act applying as Commonwealth law, even where the AAT itself is acting pursuant to powers conferred by a State or Territory. The High Court recognised in
Re Cram
(1987)
163 CLR 117
that, in general, where a Commonwealth officer or authority exercises a power or function validly conferred by State law, the officer or authority remains a Commonwealth officer or authority, amenable to federal judicial review.
Item 1 will create a new Part IVA of the AAT Act called Appeals and references of questions of law to the Federal Court of Australia. Part IVA will contain existing sections 44-46 and new section 43B.
The application of the AAT Act by the Northern Territory (NT) and Australian Capital Territory (ACT) as Territory law, and the conferral by those Territories of Territory jurisdiction on federal courts, are unaffected by the High Courts decision in Re Wakim . However, to achieve consistency in the operation of the AAT Act as Commonwealth law in relation to the States and Territories, the Bill amends the AAT Act to apply Part IVA in relation to decisions made by the AAT under Territory laws as well as State laws.
This subsection will extend the operation of Part IVA (and thus the jurisdiction of the Federal Court) to cover a proceeding before the AAT (whether the proceeding was before the AAT before or after the commencement of section 43B) where the AAT is exercising power under a law of a State or the NT or ACT.
This subsection makes provision for the operation of Part IVA in relation to a proceeding before the AAT under power conferred on the AAT by a law of a State or the NT or the ACT. It provides that, in relation to such a proceeding, any reference in Part IVA to a provision of the AAT Act outside Part IVA is to operate as if it were a reference to the corresponding provision of the law of the State or Territory.
This item contains:
- •
- transitional provisions relating to matters arising before the commencement of item 1; and
- •
- provisions that, after that commencement, apply the AAT Act to appellable State and Territory decisions as defined.
This subitem defines certain terms used in item 2.
Subsection 44(2A) of the AAT Act gives a person 28 days after being furnished with the terms of a decision of the AAT in which to appeal under subsection 44(1) or (2). The Federal Court may extend the appeal period.
Subitem 2(2) makes provision for different appeal periods to apply in the case of persons who lost appeal rights as a result of the Re Wakim decision. The object of subitem 2(2) is in effect to restore those rights. The following persons are covered:
- •
- a person who, between 20 May 1999 and the commencement of items 1 and 2, had a right under the AAT Act as it applied as State law to appeal under section 44(2A) on a question of law to the Federal Court in its exercise of State jurisdiction (this is the first situation, mentioned in paragraph 2(2)(a) );
- •
- a person who, before 17 June 1999, had been given further time by the Federal Court under section 44(2A) of the AAT Act as it purportedly applied as a law of a State to appeal from a decision of the AAT (this is the second situation, mentioned in paragraph 2(2)(b) );
- •
- a person who, before 17 June 1999, had instituted an appeal under section 44 of the AAT Act as it purportedly applied as a law of a State and the proceedings were before the Federal Court immediately before that date (this is the third situation, mentioned in paragraph 2(2)(c) ).
Subitem 2(2) provides that the 28 day period referred to in section 44(2A) runs from the commencement of the amendments to the AAT Act made by the Bill. The note to subitem 2(2) makes clear that a person may, after the amendments to the AAT Act made by the Bill come into force, apply for an extension of any 28 day period applicable in relation to a decision of the AAT made more than 28 days before 17 June 1999.
As noted above, while Re Wakim invalidated the conferral of State jurisdiction on the Federal Court by the State applied AAT Acts, it did not affect the conferral of Territory jurisdiction on the Court. Therefore, until the commencement of the amendments to the AAT Act made by the Bill, those provisions of the AAT Act which confer jurisdiction on the Federal Court, as they apply as laws of the NT and ACT, continue to operate.
However, for the sake of national consistency, subitem 2(3) provides that a law of the NT or ACT which provides for the application of the AAT Act as a law of the Territory will be of no effect after that commencement in so far as it purports to apply sections 44-46 of that Act. Part IVA will apply to the Territories by virtue of the Commonwealth Act only.
This subitem makes provision in relation to proceedings with respect to an appellable Territory decision (as defined) that were before a court under any of sections 44 to 46 of the AAT Act (as it applied as a law of the NT or ACT) immediately before the commencement of item 1. Subitem 2(4) provides that, after the commencement of item 1, those proceedings continue in the court as if they had been commenced in the court under the Act as so amended, that is, under the jurisdiction conferred by the AAT Act applying as Commonwealth law.
This subitem makes provision in relation to orders made by a court, before the commencement of the amendments to the AAT Act made by the Bill, under any of sections 44 to 46 of the AAT Act as it applied as a law of the NT or ACT. Those orders have effect, after the commencement, as if they had been made by the court under the AAT Act as so amended.
Administrative Decisions (Judicial Review) Act 1977
As a result of the decision in Re Wakim , the purported adoption by States of the ADJR Act fails entirely. The object of the amendments to the ADJR Act is to restore the pre- Wakim system of judicial review, as it applied to Commonwealth officers and authorities performing functions under State law, but as Federal rather than State jurisdiction.
The amendments in the Bill to the ADJR Act will extend the Acts operation as Commonwealth law to conduct and decisions taken by Commonwealth officers and authorities under powers and functions conferred by specified classes of State or Territory laws. A new Schedule 3 will be added to the ADJR Act which will list those classes of laws. As noted above, the High Court has recognised that, in general, where a Commonwealth officer or authority exercises a power or function validly conferred by a State law, the officer or authority remains a Commonwealth officer or authority, amenable to federal judicial review (
Re Cram
(1987)
163 CLR 117
).
The amendments will mean that where a State or Territory law confers functions or powers on a Commonwealth officer or authority, and the law is one of a class listed in new Schedule 3, the Commonwealth ADJR Act will apply as Commonwealth law to those functions and powers. Since the jurisdiction conferred on the Federal Court will be federal jurisdiction, the Federal Court will be able to undertake ADJR review.
This item inserts a new definition of the term Commonwealth authority in subsection 3(1) of the ADJR Act.
This item repeals the existing definition of the term decision to which this Act applies in subsection 3(1) of the ADJR Act and replaces it with a new definition. The new definition relates to the new definition of enactment created by item 9, and extends to decisions made by a Commonwealth authority or officer of the Commonwealth under a State or Territory enactment described in Schedule 3 to the ADJR Act, (or instruments made under such an enactment).
These items amend the definition of enactment in subsection 3(1) of the ADJR Act.
The definition is altered by adding two new paragraphs (item 9). This will expand the definition of enactment to cover Acts or parts of Acts of the States or the Territories which are described in Schedule 3, and instruments made under such Acts or parts of Acts.
The inclusion of these new paragraphs means that it has been necessary to clarify other paragraphs of the definition, particularly in relation to Territories. Items 5 and 6 ensure that Acts of the ACT other than those described in Schedule 3 do not fall within the definition of enactment. Item 7 ensures that the definition of enactment extends to ordinances of both the ACT and the NT (although, generally speaking, such ordinances are excluded from the definition of enactment by section 3A of the ADJR Act). Item 8 ensures the exclusion from the concept of enactment of instruments covered by section 3A.
Item 10 amends paragraph (d) of the definition, to ensure that the NT laws other than Schedule 3 laws may be declared by the regulations to be enactments.
Item 11 ensures that the definition of enactment includes parts of Acts, or instruments made under Acts described in Schedule 3. The combined effect of paragraphs (ca) or (cb), and the final lines of the definition, is that part of an Act or instrument made under an Act may be an enactment for the purposes of the ADJR Act.
Item 12 adds a note to the end of the definition of enactment directing the reader to the fact that regulations made for the purposes of section 19B can amend Schedule 3 to the ADJR Act.
Item 13 adds a definition of officer of the Commonwealth to subsection 3(1).
Subsection 3(7) of the ADJR Act provides that a reference to an Act in a Schedule to the ADJR Act shall be read as including a reference to delegated legislation in force under that Act. Item 14 ensures that subsection 3(7) of the ADJR Act also applies to State and Territory Acts.
This item inserts a new subsection (7A) in section 3 of the ADJR Act. Subsection (7A) will ensure that where an Act, or part of an Act, of a State or Territory applies all or part of another Act or other instrument as a law of the State or Territory, that other Act or instrument is to be treated as if it were part of the State or Territory Act. This means that where, for example, a Corporations Act of a State applies the Corporations Law contained in section 82 of the Commonwealth Corporations Act as a law of the State, the Corporations Law is to be treated as part of the Corporations Act of the State for the purposes of the ADJR Act.
This item repeals the existing definition of Commonwealth authority in subsection 3(9) which applies only to the Schedule to that Act. There is a new definition of Commonwealth authority in subsection 3(1) which is in similar terms to this repealed definition, but which will apply to the whole of the ADJR Act.
This item ensures that the general exemption of ACT enactments from the operation of the ADJR Act does not extend to enactments which are described in Schedule 3, or instruments made under such enactments.
This item inserts a note at the end of subsection 9(1). The note draws the readers attention to the fact that, although subsection 9(1) is expressed to be in absolute terms, some jurisdiction over decisions described in subsection 9(1) is conferred on State and Territory Supreme Courts by the Acts noted.
This item, item 21 and item 25 remove from the ADJR Act references to the National Companies and Securities Commission, and the Ministerial Council for Companies and Securities. These bodies exercised powers under the precursor to the Corporations Law. The bodies no longer exist, and references to them in the ADJR Act are now redundant.
This item removes the definition of officer of the Commonwealth from section 9 of the ADJR Act. Item 13 inserts a general definition of officer of the Commonwealth in subsection 3(1), and the definition in subsection 9(2) is now superfluous.
See item 19.
Paragraph 17(d) of the ADJR Act deals with the situation where no person currently holds or performs the duties of an office, or the office no longer exists. In such a case, the ADJR Act is to have effect as if the relevant decision had been made by a person specified by the Minister administering the enactment (or his or her delegate). However, in cases where the relevant enactment is a State or Territory enactment, the Minister administering the enactment would be a State or Territory Minister, while the relevant office would be a Commonwealth office.
Item 22 will provide that, where decisions made under State or Territory enactments are concerned, the Commonwealth Attorney-General will be the person responsible for specifying the person, as required by paragraph 17(d).
Subsection 19A(1) of the existing Act permits regulations to declare a law or part of a law of the NT to be an enactment for the purposes of the ADJR Act. This item adds a note to the end of the subsection directing the readers attention to the fact that certain laws of the NT are enactments without the need for a declaration to be made under subsection 19A, because they are described in new Schedule 3A to the ADJR Act.
New Schedule 3 to the ADJR Act contains a list of classes State and Territory Acts to which the ADJR Act is to apply, in so far as they confer powers and functions on Commonwealth officers and authorities.
Item 24 provides for Schedule 3 to be amended by regulation. The reason this approach has been adopted is that Schedule 3 deals with co-operative legislative schemes which operate as the result of agreement between the States and the Commonwealth. The inclusion of State legislation in Schedule 3 will be necessary in order for ADJR remedies to be available to individuals aggrieved by the actions of Commonwealth officers or authorities. If it is necessary in a given case to wait until Schedule 3 can be amended by legislation, a period may pass in which individuals are unable to seek ADJR Act review of a decision made by a Commonwealth officer or authority.
Descriptions of State and Territory Acts will also be removable from Schedule 3 by regulation. This will allow for a quick alteration of the Schedule in a situation where a Commonwealth/State scheme is dissolved.
Matters can currently be removed from the coverage of the ADJR Act by regulation, without amending the text of Schedule 1 (see section 19 of the ADJR Act).
See item 19.
This item adds a new Schedule 3 to the ADJR Act. Schedule 3 describes classes of Acts of the States and the Territories that will be enactments for the purposes of the ADJR Act. Decisions made by Commonwealth officers and authorities under the Acts described in Schedule 3 will be subject to judicial review under the ADJR Act.
This item contains transitional provisions dealing with the implementation of the amendments to the ADJR Act contained in items 3 - 26.
This subitem contains definitions of certain terms used in item 27.
Subsection 11(1) of the ADJR Act provides that when a person is applying for an order of review of a decision that has been made, the terms of which were recorded in writing and set out in a document that was furnished to the applicant, the application must be lodged within the prescribed period. Subsection 11(3) provides that the prescribed period, generally speaking, ends 28 days after the document recording the decision was furnished to the applicant. The Federal Court may extend the application period (subsection 11(1)).
Subitem 27(2) makes provision for different prescribed periods to apply in the case of persons who lost the right to make an application under the ADJR Act as a result of the Re Wakim decision. The object of subitem 27(2) is in effect to restore those rights. The subitem extends the prescribed period in each of the following cases to a date 28 days after the commencement of these amendments:
- •
- the first situation (paragraph 27(2)(a)), where the decision to be reviewed was made between 20 May 1999 and the commencement of the amendments to the ADJR Act made by the Schedule (the prescribed period);
- •
- the second situation (paragraph 27(2)(b)), where prior to 17 June 1999 the Federal Court, acting pursuant to powers purportedly conferred on it by a State, had purported to make an order extending the period in which a person could apply for an order of review of the decision and the period had not expired by 17 June;
- •
- the third situation (paragraph 27(2)(c)), where before 17 June 1999 proceedings involving an application for an order of review had already commenced in the Federal Court pursuant to powers purportedly conferred on that Court by a State.
Subitem 27(2) provides that the 28 day period referred to in section 11 runs from the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill. The note to subitem 27(2) makes clear that a person may, after the amendments to the ADJR Act made by Schedule 3 of the Bill come into force, apply for an extension of any 28 day period applicable in relation to a reviewable State decision made more than 28 days before 17 June 1999.
As noted above, while Re Wakim invalidated the conferral of State jurisdiction on the Federal Court by the State applied ADJR Acts, it did not affect the conferral of Territory jurisdiction on the Court. Therefore, until the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill, those provisions of the ADJR Act which confer jurisdiction on the Federal Court, as they apply as laws of the NT and ACT, continue to operate.
However, for the sake of national consistency, subitem 27(3) provides that a law of the NT or ACT which provides for the application of the ADJR Act as a law of the Territory will be of no effect after that commencement in so far as it purports to apply that Act in relation to a reviewable Territory decision. Part IVA will apply to the Territories by virtue of the Commonwealth Act only.
This subitem deals with proceedings in relation to a reviewable Territory decision that were before a court under the ADJR Act (as it applied as a law of the NT or ACT) immediately before the commencement of the amendments to the ADJR Act made by Schedule 3 to the Bill. Subitem 27(4) provides that, after that commencement, those proceedings continue in the court as if they had been commenced in the court under the amended ADJR Act, that is, under the jurisdiction conferred by the ADJR Act applying as Commonwealth law.
This subitem deals with orders made by a court, before the commencement of the amendments to the ADJR Act made by Schedule 3 of the Bill, under the ADJR Act as it applied as a law of the NT or ACT. Those orders have effect, after the commencement, as if they had been made by the court under the amended ADJR Act.