Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (106 of 2009)

Schedule 1   Amendments

Part 1   Main amendments

Judiciary Act 1903

6   After section 68

Insert:

68A Committals jurisdiction if both Federal Court of Australia and State or Territory court have jurisdiction in relation to indictable offence

(1) This section applies if both:

(a) the Federal Court of Australia; and

(b) a court of a State or Territory (the superior State or Territory court );

have jurisdiction to try a person on indictment for an indictable offence against a law of the Commonwealth (the indictable offence ).

Working out which court the person should be committed to

(2) If a court of the State or Territory (the State or Territory committals court ) has, under subsection 68(2), jurisdiction with respect to the examination and commitment for trial on indictment of a person who is charged with the indictable offence, the court may, in exercising that jurisdiction:

(a) commit the person for trial on indictment for the offence before either:

(i) the Federal Court of Australia; or

(ii) the superior State or Territory court; or

(b) if the person pleads guilty to the offence, commit the person for sentencing for the offence by either:

(i) the Federal Court of Australia; or

(ii) the superior State or Territory court.

This subsection has effect subject to subsections (3) and (4).

Note: Paragraph (2)(b) refers to committal for sentencing. For the power of the State or Territory committal court to commit for sentencing, see subsection 68(7).

(3) Despite subsection 68(1), if:

(a) a person is charged with the indictable offence; and

(b) at the end of the proceedings before the State or Territory committals court, the State or Territory committals court proposes to make an order (the committal order ) that the person be committed for trial on indictment, or for sentencing, for the indictable offence;

the State or Territory committals court must invite the Director of Public Prosecutions to suggest the court before which the person is to be tried or sentenced.

Note: The State or Territory committals court must make this invitation even if the Director of Public Prosecutions is not a party to the committal proceedings.

(4) When making the committal order, the State or Territory committals court must consider specifying the court suggested by the Director of Public Prosecutions as the court before which the person is to be tried or sentenced.

Committal court may grant bail to person to appear before Federal Court

(5) If the committal order relating to the person specifies the Federal Court of Australia, then a power of the State or Territory committals court:

(a) that is conferred by a law applying under subsection 68(1) in relation to indictable offences against the laws of the Commonwealth; and

(b) that enables the State or Territory committals court to grant bail to persons accused of such offences to appear before the superior State or Territory court if committed for trial, or for sentencing, before the superior State or Territory court;

applies as if the power included the power to grant bail to the first-mentioned person to appear before the Federal Court of Australia.

Note: Appeals or reviews of the exercise of this power will be dealt with under the laws of the State or Territory applying under subsection 68(1). However, bail will be dealt with under Part VIB of the Federal Court of Australia Act 1976 once indictable primary proceedings (within the meaning of that Act) commence for the person.

If question about person’s fitness to be tried

(6) Subsection 20B(1) of the Crimes Act 1914 applies as if the reference in that subsection to the court to which the proceedings would have been referred had the person been committed for trial were a reference to a court to which the proceedings could have been referred had the person been committed for trial.

Note: This means the committal court may choose whether to refer a question of the person’s fitness to be tried to either the Federal Court of Australia or the superior State or Territory court.

68B Application of State and Territory laws if Federal Court of Australia and State or Territory court both have jurisdiction in relation to an offence

(1) To avoid doubt:

(a) subsection 68(1) applies to a person:

(i) who is charged with an offence against a law of the Commonwealth; and

(ii) in respect of whom jurisdiction is conferred on a court of a State or Territory by section 68;

even if jurisdiction in relation to that person and that offence is also conferred on the Federal Court of Australia by another law of the Commonwealth; and

(b) subsection 68(1) applies to the person and the offence in relation to:

(i) any proceedings in relation to the offence that are brought before a court of the State or Territory; and

(ii) any proceedings in relation to the offence that are brought before the Federal Court of Australia.

(2) Paragraph (1)(b) has effect subject to section 68C.

68C Adjustments to State and Territory laws applying to proceedings before Federal Court of Australia

(1) This section applies if:

(a) an offence referred to in subsection 68(1) is an indictable offence; and

(b) the Federal Court of Australia (the Federal Court ) has jurisdiction to try a person on indictment for the offence; and

(c) proceedings commence in the Federal Court in relation to the offence that are:

(i) indictable primary proceedings (within the meaning of the Federal Court of Australia Act 1976) ( primary proceedings ); or

(ii) criminal appeal proceedings (within the meaning of that Act) that relate to primary proceedings; or

(iii) proceedings under section 30CA of that Act that relate to primary proceedings; or

(iv) proceedings under section 30CB of that Act that relate to primary proceedings; or

(v) proceedings referred to the Federal Court under section 20B of the Crimes Act 1914 (as that section applies because of subsection 68A(6)).

The State or Territory in which trial proceedings must be heard

(2) If the proceedings are primary proceedings that:

(a) are to include either the person, the prosecutor or both appearing before the Federal Court in accordance with an order of a court of a State or Territory committing the person for trial on indictment before the Court for the offence; or

(b) if paragraph (a) does not apply - include the filing in the Federal Court, in a State or Territory, of an indictment against the person for the offence;

the Federal Court must hear the proceedings in that State or Territory unless and until the Federal Court makes an order under subsection (3).

Note: The place in which any other proceedings are to be heard is a matter for the Court.

(3) If the proceedings are covered by subsection (2), the Federal Court may, before the jury is empanelled for the trial, make an order specifying the State or Territory in which the Federal Court will hear the proceedings.

(4) Subsections (2) and (3) have effect subject to section 80 of the Constitution and sections 70 and 70A.

Which State’s or Territory’s laws are to apply?

(5) The laws to be applied under subsection 68(1) in relation to the proceedings are those referred to in the following table:

What those laws include

(6) The laws of that State or Territory are taken:

(a) to include the Rules of the Supreme Court of that State or Territory that apply in relation to criminal proceedings; and

(b) not to include the Rules of any other court of that State or Territory.

How those laws apply

(7) The laws of that State or Territory apply as if any reference in those laws to the Supreme Court of that State or Territory, and any reference to a court that includes a reference to the Supreme Court of that State or Territory, were a reference to the Federal Court.

(8) The laws of that State or Territory apply to the proceedings only to the extent to which they are:

(a) not inconsistent with the laws of the Commonwealth; and

(b) not inconsistent with the Rules of the Federal Court.