National Consumer Credit Protection Act 2009

CHAPTER 4 - REMEDIES  

PART 4-3 - JURISDICTION AND PROCEDURE OF COURTS  

Division 2 - Civil proceedings  

Subdivision B - Conferral of civil jurisdiction  

SECTION 188   JURISDICTION - DECISIONS TO PROSECUTE AND RELATED CRIMINAL JUSTICE PROCESS DECISIONS MADE BY COMMONWEALTH OFFICERS  

188(1)   [ Where proposed prosecution in court of State or Territory]  

If a decision to prosecute a person for an offence against this Act has been made by an officer of the Commonwealth, and the prosecution is proposed to be brought in a court of a State or Territory:

(a) the Federal Court does not have jurisdiction in relation to any matter in which a person seeks a writ of mandamus or prohibition, or an injunction, against the officer in relation to that decision; and

(b) jurisdiction in relation to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution is proposed to be brought.

188(2)   [ Where prosecution is in progress or appeal proceedings arise]  

Subject to subsection (4), at any time when:

(a) a prosecution for an offence against this Act is before a court of a State or Territory; or

(b) an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

(c) the Federal Court does not have jurisdiction in relation 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 of the Commonwealth in relation to a related criminal justice process decision;

(d) jurisdiction in relation to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution or appeal is before a court.

188(3)   [ Definition]  

A 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) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(b) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(c) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(d) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(e) a decision in connection with an appeal arising out of the prosecution.

188(4)   [ Exception to subsection (2)]  

Subsection (2) does not apply if a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer 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.

188(5)   [ Application for permanent stay of proceedings where subsection (4) applies]  

If subsection (4) 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:

(a) the matters that are the subject of the proceedings are more appropriately dealt with in the criminal justice process; and

(b) a stay of proceedings will not substantially prejudice the person.

188(6)   [ Effect of subsection (1), (2), (4) and (5)]  

Subsections (1), (2), (4) and (5) have effect despite anything in this Act or in any other law. In particular:

(a) neither this Act, nor any other law, has the effect of giving the Federal Court jurisdiction contrary to subsection (1) or (2); and

(b) 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 (1) or (2).