House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)

Schedule 2 - Review of decisions made in the criminal justice process

Schedule 2 contains amendments to the ADJR Act, the Corporations Act and the Judiciary Act which, in criminal matters, restrict defendants access to administrative law remedies.

Defendants will not, at any time, be able to use the ADJR Act to challenge decisions to prosecute. Nor will they be able to use the ADJR Act to challenge other decisions taken in the criminal justice process at any time after a prosecution has commenced, or when an appeal is on foot.

Similarly, defendants will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court in relation to a decision to prosecute made by a Commonwealth officer, where the prosecution is to be begun in a State or Territory Court. Section 39B(1) deals with applications for injunctions and writs of prohibition and mandamus against Commonwealth officers. The Supreme Court of the State or Territory in which the prosecution is to be commenced is to be given jurisdiction with respect to those matters.

Section 39B of the Judiciary Act is also to be amended so that, when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court will not have jurisdiction to hear an application made by the defendant in relation to a decision in the criminal justice process relating to that offence. The Supreme Court of the State or Territory in which the prosecution is being heard will be given jurisdiction with respect to those matters.

Amendments to the Corporations Act are also required to ensure that Corporations Law matters are treated in the same way as applications for judicial review by defendants in other Commonwealth criminal matters.

As it currently stands, decisions in relation to the Corporations Law of the Capital Territory may be reviewed under the ADJR Act. The effect of Schedule 1 to the Bill would be to extend this kind of review to decisions by Commonwealth officers under the Corporations Law of the States (including the NT). Amendments made by Schedule 2 will, however, operate to prevent a defendant in a prosecution for a Corporations Law offence from instituting ADJR Act review to challenge decisions to prosecute or decisions taken in the criminal justice process.

The extent of the Federal Courts jurisdiction under section 39B of the Judiciary Act with respect to decisions made by Commonwealth officers under the Corporations Law is presently unclear. Amendments made by Schedule 2 will provide that a defendant in a prosecution for a Corporations Law offence will be able to seek injunctive relief or relief by way of writs of prohibition or mandamus in the Supreme Court of the State or Territory where he or she is prosecuted but not in the Federal Court.

The amendments will apply to challenges to actions or decisions taken in the criminal justice process after the commencement of the Act, and also apply to challenges to actions or decisions taken before the commencement of the Act, whether or not the Federal Court review proceedings are already on foot.

Part 1

Administrative Decisions (Judicial Review) Act 1977

ITEM 1

This item adds new section 9A to the ADJR Act.

New subsection 9A(1) prevents a court from hearing, continuing to hear or determining an application made by the defendant under the ADJR Act for review of a related criminal justice process decision when a prosecution for an offence, or an appeal arising out of a prosecution is before any court.

An application that is extinguished by the operation of subsection 9A(1) could be re-commenced if the prosecution or appeal, as the case may be, were discontinued.

New subsection 9A(2) defines appeal and related criminal justice process decision.

An application for a new trial, and a proceeding to review or call into question the proceedings, decision or jurisdiction of a court or judge are included within the meaning of appeal.

Decisions taken in relation to the investigation and prosecution process are included in the meaning of related criminal justice process decisions. Five categories of decisions are illustrated. They are decisions in connection with:

(a)

the investigation, committal for trial or prosecution of a defendant;

(b)

the appointment of investigators or inspectors for such an investigation;

(c)

the issuing of a warrant;

(d)

the requiring of the production of documents, the giving of information or the summoning of persons as witnesses; and

(e)

an appeal arising out of the prosecution.

ITEM 2

A new class of decision is added to Schedule 1 to the ADJR Act. That class encompasses decisions to prosecute for any offence against of law of the Commonwealth, a State or a Territory. That means that decisions in that class are not decisions to which the ADJR Act applies.

ITEM 3

Subparagraph (e)(i) of Schedule 2 to the ADJR Act is amended by the addition of committal for trial to the matters there included. That will mean that decisions relating to committal for trial are one of the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.

ITEM 4

Subparagraph (e)(iii) of Schedule 2 to the ADJR Act is amended by substituting warrants, including search warrants and seizure warrants for search warrants. That will mean that decisions relating to warrants, including search and seizure warrants, are included within the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.

ITEM 5

Subparagraphs (e)(iv) and (v) of Schedule 2 to the ADJR Act are repealed and replaced. The current subparagraph (e)(iv) is subsumed into new subparagraph (e)(iii). The current subparagraph (e)(v) is replaced by new subparagraph (e)(iv).

New subparagraph (e)(iv) refers to decisions under a Commonwealth or Territory law requiring the production of documents, the giving of information or the summoning of persons as witnesses. That will mean that those decisions are included within the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.

New subparagraph (e)(v) adds decisions in connection with an appeal arising out of the prosecution of persons for offences against a law of the Commonwealth or of a Territory. The meaning of appeal in this subparagraph is the same as in new subsection 9A(2) of the ADJR Act. That will mean that decisions in connection with an appeal are included within the classes of decisions relating to the administration of criminal justice that are not decisions to which section 13 of the ADJR Act applies.

The amendments in items 3, 4, and 5 are made to Schedule 2 so that that Schedule and the definition of related criminal justice process decision in new subsection 9A(2) of the ADJR Act are kept in parallel. Section 13 of the ADJR Act relates to applications to obtain reasons for decisions.

Corporations Act 1989

Division 1 of Part 9 of the Corporations Act will be amended in relation to decisions or actions taken in the criminal justice process in a manner similar to that described above in relation to the ADJR Act, (and below in relation to the Judiciary Act).

The effect of these amendments will be to ensure that the restrictions on the availability of administrative law remedies in federal courts in the case of a prosecution under the Corporations Law are the same as those applicable in the case of a Commonwealth prosecution under any other law of the Commonwealth, a State or a Territory. In the case of a prosecution under the Corporations Law, a defendant will not be able to use the ADJR Act to challenge decisions taken in the criminal justice process at any time after a prosecution has commenced, or during the period when an appeal is on foot. Similarly, if a Corporations Law prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court will not have jurisdiction to hear an application by the defendant seeking a writ of mandamus or prohibition or an injunction against a Commonwealth officer in relation to a decision in the criminal justice process relating to that offence. The Supreme Court of the State or Territory in which the prosecution is being heard will be given jurisdiction with respect to those matters.

ITEM 6

Subsection 49(1) of the Corporations Act, which sets out the operation of Division 1 of Part 9 is amended so that it also includes reference to the jurisdiction of courts in civil matters, in respect of decisions made by Commonwealth officers to prosecute persons for offences against the Corporations Law of a State or the ACT, and related criminal justice process decisions.

ITEM 7

This item amends subsection 50(1) by adding a definition of officer of the Commonwealth. The phrase officer of the Commonwealth has the same meaning as in paragraph 75(v) of the Constitution.

ITEM 8

Existing section 51 deals with the jurisdiction of the Federal Court and State and Territory Supreme Courts. New subsection (4) is added to section 51, to provide that section 51 has effect subject to new section 51AA.

ITEM 9

Existing section 51A deals with the jurisdiction of the Family Court and State Family Courts. New subsection (4) is added to section 51A, to provide that section 51A has effect subject to new section 51AA.

ITEM 10

This item adds new section 51AA.

New paragraph 51AA(1)(a) provides that when a Commonwealth officer makes a decision to prosecute a person for an offence against the Corporations Law of a State or the ACT, and that prosecution is to be commenced in a Court of a State or the ACT, then neither the Federal Court nor the Family Court has jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the Commonwealth officer in relation to that decision.

Further, the Supreme Court of the State or Territory where the prosecution is to be commenced is given jurisdiction by new paragraph 51AA(1)(b) with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to that decision.

New subsection 51AA(2) is added, to provide that when a prosecution for an offence against the Corporations Law of a State or the ACT or an appeal arising out of such a prosecution is before a court of a State or the ACT, neither the Federal Court nor the Family Court will have jurisdiction to hear an application made by the defendant seeking a writ of mandamus or prohibition or an injunction against a Commonwealth officer in relation to a decision in the criminal justice process relating to that offence. The Supreme Court of the State or Territory in which the prosecution is being heard will be given jurisdiction with respect to those matters.

An application that is extinguished by the operation of paragraph 51AA(2) could be re-commenced if the prosecution or appeal were discontinued.

New subsection 51AA(3) makes it clear that no law has the effect of giving the Federal Court or the Family Court jurisdiction contrary to subsections 51AA(1) or 51AA(2). and no law has the effect of removing from the Supreme Court of a State or the ACT the jurisdiction given by subsections 51AA(1) or 51AA(2).

New subsection 51AA(4) defines appeal for the purposes of section 51AA and related criminal justice process decision.

An application for a new trial, and a proceeding to review or call into question the proceedings, decision or jurisdiction of a court or judge are included within the meaning of appeal.

Decisions in relation to the investigation and prosecution process are included in the meaning of related criminal justice process decisions. Five categories of decisions are illustrated. They are decisions in connection with:

(a)

the investigation, committal for trial or prosecution of a defendant;

(b)

the appointment of investigators or inspectors for such an investigation;

(c)

the issuing of a warrant;

(d)

the requiring of the production of documents, the giving of information or the summoning of persons as witnesses; and

(e)

an appeal arising out of the prosecution.

Judiciary Act 1903

ITEM 11

Section 38, which sets out the matters in relation to which the High Court has exclusive jurisdiction, is amended so that it is made subject to section 39B and section 44.

ITEM 12

Subsection 39B(1) is amended by making the subsection subject to new subsections 39B(1B) and 39B(1C).

ITEM 13

New subsection 39B(1B) is added, to provide that when a Commonwealth officer makes a decision to prosecute a person for an offence against a Commonwealth, State or Territory law, and that prosecution is to be commenced in a State or Territory Court, then the Federal Court does not have jurisdiction to hear or determine an application under subsection 39B(1) in relation to that decision.

Further, the Supreme Court of the State or Territory where the prosecution is to be commenced is given jurisdiction by new paragraph 39B(1B)(b) with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to the decision to prosecute.

New subsection 39B(1C) is added, to provide that when a prosecution for an offence or an appeal arising out of a prosecution is before a court other than the Federal Court, the Federal Court does not have jurisdiction to hear an application made by the defendant under section 39B(1) in relation to a decision made in the criminal justice process in relation to that offence; and the Supreme Court of the State or Territory in which the prosecution is being heard is given jurisdiction with respect to applications for injunctions and writs of prohibition and mandamus against a Commonwealth officer in relation to those decisions.

An application that is extinguished by the operation of subsection 39B(1C) could be re-commenced if the prosecution or appeal, as the case may be, were discontinued.

New subsection 39B(1D) makes it clear that new subsections 39B(1B) and 39B(1C) have effect despite any provision of any other law. In particular, no law, including the Jurisdiction of Courts (Cross-vesting) Act 1987 has the effect of giving the Federal Court jurisdiction contrary to subsections 39B(1B) or 39B(1C). Similarly, no law, including the ADJR Act has the effect of removing the jurisdiction given to the Supreme Court of a State or Territory by subsection 39B(1B) or 39B(1C).

ITEM 14

Subsection 39B(2) is amended to add to the reference to subsection 39B(1), a reference to the new subsections (1B) and (1C).

ITEM 15

New subsection 39B(3) defines related criminal justice process decision.

Decisions taken in relation to the investigation and prosecution process are included in the meaning of related criminal justice process decisions. Five categories of decisions are illustrated. They are decisions in connection with:

(a)

the investigation, committal for trial or prosecution of a defendant;

(b)

the appointment of investigators or inspectors for such an investigation;

(c)

the issuing of a warrant;

(d)

the requiring of the production of documents, the giving of information or the summoning of persons as witnesses; and

(e)

an appeal arising out of the prosecution.

Part 2: Application of Amendments

These new provisions make it clear when the amendments in Part 1 apply to decisions.

ITEM 16

Subitem (1) defines commencement for this part to mean the commencement of the amendments of the ADJR Act, the Corporations Actand the Judiciary Act made by Part 1. Paragraph 1 also defines related criminal justice process decision in relation to an offence as having the same meaning as in new section 9A of the ADJR Act, new subsection 51AA(4) of the Corporations Act and section 39B(3) of the Judiciary Act, described above in items 1, 10, and 15.

Subitem (2) makes it clear that the amendments made in Part 1 to the ADJR Act. the Corporations Act and the Judiciary Actapply to:

(a)

a decision to prosecute made on or after the commencement of the amendments, whether or not the conduct alleged occurred before that commencement; and

(b)

a related criminal justice process decision made on or after the commencement of the amendments, whether or not the conduct alleged occurred before the commencement, or the prosecution or an appeal arising out of the prosecution was begun before the commencement of the amendments.

Subitem (3) makes it clear that the amendments made in Part 1 to the ADJR Act, the Corporations Act and the Judiciary Act also apply in relation to:

(a)

a decision to prosecute made before the commencement of the amendments, even where that decision is the subject of an application under the ADJR Act or the Judiciary Act that is before a court at the commencement of the amendments; and

(b)

a related criminal justice process decision made before the commencement of the amendments, even where the decision is the subject of an application under the ADJR Act or the Judiciary Act before the commencement of the amendments, or the prosecution or an appeal arising out of the prosecution was begun before the commencement of the amendments.

The effect of those provisions is that the amendments will apply to actions or decisions taken in the criminal justice process after the commencement, and also apply to challenges to actions or decisions taken before commencement, whether or not any Federal Court review proceedings are on foot.