Federal Courts (Consequential Amendments) Act 2001

Federal Courts (Consequential Amendments) Act 2001

An Act to make further amendments consequential on the matters dealt with by the Federal Courts (State Jurisdiction) Act 1999 or by Commonwealth legislation relating to federal courts and tribunals and for other purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Federal Courts (Consequential Amendments) Act 2001 .

2.   Commencement

The provisions of this Act commence on a day or days to be proclaimed.

PART 2 - Agricultural and Veterinary Chemicals (Tasmania) Act 1994 Amended

3.   Principal Act

In this Part, the Agricultural and Veterinary Chemicals (Tasmania) Act 1994 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3(1) of the Principal Act is amended as follows:

(a) by inserting "(excluding Part IVA)" after "Commonwealth" in paragraph (a)(i) of the definition of Commonwealth administrative laws ;

(b) by omitting subparagraph (ii) from paragraph (a) of the definition of Commonwealth administrative laws .

5.    Section 8 amended (Ancillary offences (aiding, abetting, accessories, attempts, incitement or conspiracy))

Section 8(1)(b) of the Principal Act is amended by omitting "because of paragraph (a) of that subsection ".

6.    Section 16 amended (Application of Commonwealth administrative laws in relation to applicable provisions)

Section 16(2) of the Principal Act is amended by omitting ", or section 13 of the Administrative Decisions (Judicial Review) Act 1977 , of the Commonwealth as those sections apply as laws" and substituting "of the Commonwealth as that section applies as a law".

7.    Section 18A inserted

After section 18 of the Principal Act , the following section is inserted in Part 5:

18A.   Construction of references to Part IVA of Commonwealth AAT Act

For the purposes of section 16 , a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

8.    Part 6 repealed

Part 6 of the Principal Act is repealed.

PART 3 - Competition Policy Reform (Tasmania) Act 1996 Amended

9.   Principal Act

In this Part, the Competition Policy Reform (Tasmania) Act 1996 is referred to as the Principal Act.

10.    Part 5, Division 3 repealed

Division 3 of Part 5 of the Principal Act is repealed.

11.    Section 29 amended (Definition)

Section 29 of the Principal Act is amended as follows:

(a) by inserting "(excluding Part IVA)" after "Commonwealth" in paragraph (a)(i) of the definition of Commonwealth administrative laws ;

(b) by omitting subparagraph (ii) from paragraph (a) of the definition of Commonwealth administrative laws .

12.    Section 33A inserted

After section 33 of the Principal Act , the following section is inserted in Division 5:

33A.   Construction of references to Part IVA of Commonwealth AAT Act

For the purposes of sections 30 and 31 , a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

PART 4 - Corporations (Tasmania) Act 1990 Amended

13.   Principal Act

In this Part, the Corporations (Tasmania) Act 1990 is referred to as the Principal Act.

14.    Section 3 amended (Definitions)

Section 3(1) of the Principal Act is amended as follows:

(a) by inserting "(excluding Part IVA)" after "Commonwealth" in paragraph (a) of the definition of Commonwealth administrative laws ;

(b) by omitting paragraph (b) from the definition of Commonwealth administrative laws ;

(c) by inserting the following definition after the definition of Commonwealth administrative laws :

Commonwealth authority means an authority or body (whether incorporated or not) that is established or continued in existence by or under an Act of the Commonwealth;

(d) by omitting the definition of Family Court ;

(e) by inserting the following definition after the definition of officer :

officer of the Commonwealth has the same meaning as in section 75(v) of the Constitution of the Commonwealth;

15.    Section 36A inserted

After section 36 of the Principal Act , the following section is inserted in Division 3:

36A.   Construction of references to Part IVA of Commonwealth AAT Act

For the purposes of sections 35 and 36 , a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

16.    Section 40 amended (Operation of Division)

Section 40(1) of the Principal Act is amended as follows:

(a) by omitting from paragraph (b) "Territory –" and substituting "Territory; and";

(b) by inserting the following paragraphs after paragraph (b) :

(c) the jurisdiction of courts in respect of matters arising under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth involving or related to decisions made under the Corporations Law of a State or the Capital Territory by Commonwealth authorities and officers of the Commonwealth; and

(d) the jurisdiction of courts in civil matters in respect of decisions made by officers of the Commonwealth to prosecute persons for offences against the Corporations Law of a State or the Capital Territory and related criminal justice process decisions –

17.    Section 41 amended (Interpretation)

Section 41 of the Principal Act is amended as follows:

(a) by omitting the definition of superior court from subsection (1) and substituting the following definition:

superior court means the Supreme Court of a State or Territory or a State Family Court;

(b) by omitting subparagraph (viii) from subsection (2)(a) .

18.    Section 42 amended (Jurisdiction of Federal Court and State and Territory Supreme Courts)

Section 42 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "as it applies as a law of Tasmania,";

(b) by inserting the following subsections after subsection (1) :

(1A)  Despite section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, jurisdiction is conferred on the Supreme Court of Tasmania and of each State and the Capital Territory with respect to matters arising under that Act involving or related to decisions made, or proposed to be made, under the Corporations Law of a State or the Capital Territory by a Commonwealth authority or an officer of the Commonwealth.

(1B)  Subsection (1A) applies to a decision made, or proposed or required to be made –

(a) whether or not in the exercise of a discretion; and

(b) whether before or after the commencement of section 19(b) of the Federal Courts (Consequential Amendments) Act 2001 .

(c) by omitting from subsection (2) " subsection (1) " and substituting " subsection (1) or (1A) ";

(d) by omitting subsection (3) and substituting the following subsection:

(3)  This section has effect subject to section 42AA .

19.    Section 42A amended (Jurisdiction of Family Court and State Family Courts)

Section 42A of the Principal Act is amended as follows:

(a) by omitting subsection (1) ;

(b) by omitting from subsection (2) "as it applies as a law of Tasmania,";

(c) by inserting the following subsection after subsection (3) :

(4)  This section has effect subject to section 42AA .

20.    Section 42AA inserted

After section 42A of the Principal Act , the following section is inserted in Division 1:

42AA.   Jurisdiction of Supreme Court in relation to certain decisions made by Commonwealth officers

(1)  If a decision to prosecute a person for an offence against the Corporations Law of Tasmania has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of Tasmania, jurisdiction is conferred on the Supreme Court 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.

(2)  At any time when –

(a) a prosecution for an offence against the Corporations Law of Tasmania is before a court of Tasmania; or

(b) an appeal arising out of such a prosecution is before a court of Tasmania –

jurisdiction is conferred on the Supreme Court 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.

(3)  Subsections (1) and (2) have effect despite anything in this Act or in any other law.

(4)  In this section –

appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge;

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.

21.    Section 42B amended (Jurisdiction of lower courts)

Section 42B(1) of the Principal Act is amended by omitting "as it applies as a law of Tasmania,".

22.    Section 43 amended (Appeals)

Section 43 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "or to the Federal Court or to the Family Court";

(b) by omitting subsections (2) and (3) ;

(c) by omitting from subsection (4) "to the Federal Court, to the Family Court,";

(d) by omitting from subsection (5) "or to the Family Court";

(e) by omitting from subsection (6) "to the Federal Court,".

23.    Section 44 amended (Transfer of proceedings)

Section 44 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  This section applies to the following:

(a) a proceeding with respect to a civil matter arising under the Corporations Law of Tasmania that is in a court having jurisdiction under section 42(1) or (2) ;

(b) a proceeding with respect to a matter referred to in subsection (1A) of section 42 that is in a court having jurisdiction under that subsection or in the Federal Court.

(b) by omitting from subsection (2) "Where" and substituting "Subject to subsections (3) , (4) and (5) , if";

(c) by inserting the following subsections after subsection (2) :

(3)  If a proceeding with respect to a matter referred to in section 42(1A) is pending in the Supreme Court of a State or the Capital Territory (the "relevant jurisdiction"), the court must transfer the proceeding to the Federal Court unless the matter for determination in it arises out of, or relates to, another proceeding pending in any court of the relevant jurisdiction –

(a) that arises, or a substantial part of which arises, under the Corporations Law of a State or the Capital Territory; and

(b) that is not a proceeding with respect to a matter referred to in section 42(1A)  –

regardless of which proceeding was commenced first.

(4)  Even if the Supreme Court of a State or the Capital Territory is not required by subsection (3) to transfer a proceeding with respect to a matter referred to in section 42(1A) to the Federal Court, it may nevertheless do so if it considers that to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction.

(5)  If a proceeding with respect to a matter referred to in section 42(1A) is pending in the Federal Court, the Federal Court may only transfer the proceeding, or an application in the proceeding, to the Supreme Court of a State or the Capital Territory (the "relevant jurisdiction") if –

(a) the matter arises out of, or relates to, another proceeding pending in any court of the relevant jurisdiction –

(i) that arises, or a substantial part of which arises, under the Corporations Law of a State or the Capital Territory; and

(ii) that is not a proceeding with respect to a matter referred to in section 42(1A)  –

regardless of which proceeding was commenced first; and

(b) the Federal Court considers the transfer to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction.

(6)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

(7)  The fact that some references in this section to the interests of justice include the desirability of related proceedings being heard in the same jurisdiction does not of itself mean that other references to the interests of justice, in this section or elsewhere in this Act, do not include that matter.

24.    Section 44A amended (Transfer of proceedings by Family Court and State Family Courts)

Section 44A of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "a court" and substituting "a State Family Court";

(b) by omitting from subsection (2)(a) "in the Federal Court, or";

(c) by omitting from subsection (2)(b) "the Federal Court, or";

(d) by omitting from subsection (2)(c) "the Federal Court, or";

(e) by omitting from subsection (2) "to the Federal Court, or";

(f) by omitting from subsection (2) ", as the case may be";

(g) by omitting from subsection (3)(a) "another court" and substituting "another State Family Court";

(h) by omitting from subsection (3)(b) "another court" and substituting "another State Family Court";

(i) by inserting the following subsection after subsection (4) :

(5)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

25.    Section 44AA amended (Transfer of proceedings in lower courts)

Section 44AA of the Principal Act is amended by inserting after subsection (6) the following subsection:

(6A)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

26.    Section 45 amended (Conduct of proceedings)

Section 45(3) of the Principal Act is amended as follows:

(a) by omitting paragraphs (a) and (b) from the definition of relevant jurisdiction ;

(b) by omitting " Corporations Law of Tasmania ." from paragraph (d) of the definition of relevant jurisdiction and substituting " Corporations Law of Tasmania ; or";

(c) by inserting the following paragraph after paragraph (d) in the definition of relevant jurisdiction :

(e) jurisdiction conferred on a court of a State or the Capital Territory with respect to matters referred to in section 42(1A) .

27.    Section 46 amended (Courts to act in aid of each other)

Section 46 of the Principal Act is amended by inserting ", or in matters referred to in section 42(1A) ," after " Corporations Law of Tasmania ".

28.    Section 50 amended (Enforcement of judgments, &c.)

Section 50 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  A judgment of a court of Tasmania that is entirely or partly given in the exercise of jurisdiction conferred by this Division, or by a law of another State that corresponds to this Division, is enforceable in Tasmania as if the judgment had been given by that court entirely in the exercise of the jurisdiction of that court apart from this Division or any such law.

(b) by omitting from subsection (2)(a) "the Federal Court, the Family Court,";

(c) by omitting from subsection (2) "the Federal Court, the Family Court," second occurring.

29.    Section 52 repealed

Section 52 of the Principal Act is repealed.

30.    Section 52A amended (Rules of the Family Court or State Family Court)

Section 52A of the Principal Act is amended by omitting subsection (1) .

31.    Section 54 amended (Interpretation)

Section 54(2)(a)(vii) of the Principal Act is amended by omitting ", and rules of court applied by the Federal Court because of a provision of this Act,".

32.   Schedule 1 amended (Savings and Transitional Provisions (Amending Acts))

Schedule 1 to the Principal Act is amended by inserting the following clause after clause 4:

PART 5 - Jurisdiction of Courts (Cross-vesting) Act 1987 Amended

33.   Principal Act

In this Part, the Jurisdiction of Courts (Cross-vesting) Act 1987 is referred to as the Principal Act.

34.    Section 4 amended (Vesting of additional jurisdiction in certain courts)

Section 4 of the Principal Act is amended as follows:

(a) by omitting subsections (1) and (2) ;

(b) by omitting subsection (5) and substituting the following subsection:

(5)  Subsection (3) or (4) does not –

(a) invest a Supreme Court or a State Family Court with; or

(b) confer on any such court –

jurisdiction with respect to criminal matters.

35.    Section 5 amended (Transfer of proceedings)

Section 5 of the Principal Act is amended as follows:

(a) by omitting subparagraph (i) from subsection (1)(b) ;

(b) by omitting from subsection (1)(b)(ii)(A) "this Act and";

(c) by omitting from subsection (1)(b)(ii) "be; or" and substituting "be –";

(d) by omitting subparagraph (iii) from subsection (1)(b) ;

(e) by omitting subparagraph (ii) from subsection (4)(b) and substituting the following subparagraph:

(ii) having regard to –

(A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State and not within the jurisdiction of the first court apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and

(D) the interests of justice –

it is more appropriate that the relevant proceeding be determined by the Supreme Court; or

(f) by omitting subsection (5) ;

(g) by inserting the following subsection after subsection (8) :

(9)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

36.    Section 6 amended (Special federal matters)

Section 6 of the Principal Act is amended as follows:

(a) by inserting the following subsection after subsection (1) :

(1A)  However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in subsection (2)(b) , as the case may be.

(b) by omitting from subsection (2) "be transferred, the proceeding" and substituting "or part of a proceeding be transferred, the proceeding or part of the proceeding".

37.    Section 6A inserted

After section 6 of the Principal Act , the following section is inserted:

6A.   Special federal matters: Commonwealth authorities or officers acting under the laws of States

(1)  This section applies to a proceeding (in this section referred to as the "federal matter proceeding") if –

(a) a matter for determination in the proceeding is covered by paragraph (c) or (e) of the definition of "special federal matter" in section 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth; and

(b) the matter for determination in the proceeding involves or relates to the exercise, or purported or proposed exercise, of functions or powers conferred on a Commonwealth authority, or officer of the Commonwealth, by an enactment (in this subsection referred to as "the State enactment") referred to in paragraph (ca) or (cb) of the definition of "enactment" in section 3(1) of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth; and

(c) the matter for determination in the proceeding arises out of, or relates to, another proceeding (in this section referred to as the "State matter proceeding") pending in any court of this State –

(i) that arises, or a substantial part of which arises, under the State enactment or a corresponding enactment of another State; and

(ii) none of the matters for determination in which are covered by paragraph (c) or (e) of the definition of "special federal matter" in section 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth –

regardless of which proceeding was commenced first.

(2)  If –

(a) the federal matter proceeding is pending in the Federal Court or the Family Court; and

(b) having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction, the Federal Court or the Family Court considers it appropriate to transfer the proceeding to the Supreme Court –

the Federal Court or the Family Court may transfer the proceeding to the Supreme Court and section 5(4) does not apply to the federal matter proceeding.

(3)  If –

(a) the federal matter proceeding is pending in the Supreme Court; and

(b) the State matter proceeding is pending in any court of this State –

neither section 5(1) nor section 6 applies to require the Supreme Court to transfer the federal matter proceeding to the Federal Court or the Family Court.

(4)  The Supreme Court may transfer the federal matter proceeding if it considers that to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction.

(5)  Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

(6)  The fact that references in this section to the interests of justice include the desirability of related proceedings being heard in the same jurisdiction does not of itself mean that references to the interests of justice elsewhere in this Act do not include that matter.

(7)  In this section –

Commonwealth authority means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act of the Commonwealth;

officer of the Commonwealth has the same meaning as in section 75(v) of the Constitution of the Commonwealth.

38.    Section 10 amended (Transfer of matters arising under Division 1 or 1A of Part V of the Trade Practices Act 1974)

Section 10(a) of the Principal Act is amended by omitting "the Federal Court, the Family Court,".

39.    Section 11 amended (Conduct of proceedings)

Section 11 of the Principal Act is amended by omitting subsection (2) .

40.    Section 14 amended (Enforcement and effect of judgments)

Section 14 of the Principal Act is amended by omitting subsection (1) .

PART 6 - National Crime Authority (State Provisions) Act 1985 Amended

41.   Principal Act

In this Part, the National Crime Authority (State Provisions) Act 1985 is referred to as the Principal Act.

42.    Section 12 amended (Search warrants)

Section 12(11) of the Principal Act is amended by omitting paragraph (a) .

43.    Section 15 repealed

Section 15 of the Principal Act is repealed.

44.    Section 20 amended (Warrant for arrest of witness)

Section 20 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  Where, upon application by or on behalf of the Authority, a Judge of the Supreme Court is satisfied by evidence on oath that there are reasonable grounds to believe –

(a) that a person who has been ordered, under section 24 of the Commonwealth Act, to deliver the person's passport to the Authority, whether or not the person has complied with the order, is nevertheless likely to leave Australia for the purpose of avoiding giving evidence before the Authority; or

(b) that a person in relation to whom a summons has been issued under section 17 (1) –

(i) has absconded or is likely to abscond; or

(ii) is otherwise attempting, or is otherwise likely to attempt, to evade service of the summons; or

(c) that a person has committed an offence under section 19 (1) or is likely to do so –

the Judge may issue a warrant for the apprehension of the person.

(b) by omitting from subsection (3) "of the Federal Court or";

(c) by omitting from subsection (4) "of the Federal Court or".

45.    Section 21 amended (Applications to Federal Court of Australia)

Section 21 of the Principal Act is amended as follows:

(a) by omitting subsections (2) , (3) , (4) and (5) ;

(b) by omitting from subsection (6)(b) " subsection (2) " and substituting "section 32(2) of the Commonwealth Act (as it has effect because of section 32B of that Act)";

(c) by omitting subsections (7) , (8) , (9) , (10) and (11) ;

(d) by omitting from subsection (12)(a) " subsection (9) " and substituting "section 32(8A) of the Commonwealth Act (as it has effect because of section 32B of that Act)";

(e) by omitting from subsection (12)(b) " subsection (8) " and substituting "section 32(8) of the Commonwealth Act (as it has effect because of section 32B of that Act)";

(f) by omitting subsections (13) and (14) ;

(g) by omitting paragraph (b) from the definition of relevant day in subsection (15) ;

(h) by omitting subsections (16) and (17) .

46.    Section 22 repealed

Section 22 of the Principal Act is repealed.

PART 7 - New Tax System Price Exploitation Code (Tasmania) Act 1999 Amended

47.   Principal Act

In this Part, the New Tax System Price Exploitation Code (Tasmania) Act 1999 is referred to as the Principal Act.

48.    Section 26 amended (Interpretation, Division 4)

Section 26 of the Principal Act is amended as follows:

(a) by inserting "(excluding Part IVA)" after "Commonwealth" in paragraph (a)(i) of the definition of Commonwealth administrative laws ;

(b) by omitting subparagraph (ii) from paragraph (a) of the definition of Commonwealth administrative laws .

49.    Section 31 substituted

Section 31 of the Principal Act is repealed and the following section is substituted:

31.   Construction of references to Part IVA of Commonwealth AAT Act

For the purposes of sections 27 and 28 , a reference in a provision of the Administrative Appeals Tribunal Act 1975 of the Commonwealth (as that provision applies as a law of this jurisdiction) to the whole or any part of Part IVA of that Act is taken to be a reference to the whole or any part of that Part as it has effect as a law of the Commonwealth.

[Second reading presentation speech made in:

House of Assembly on 13 MARCH 2001

Legislative Council on 21 MARCH 2001]