Federal Courts (State Jurisdiction) Bill



About this Item
SpeakersWhelan Mr Paul
BusinessBill, First Reading, Second Reading

FEDERAL COURTS (STATE JURISDICTION) BILL

Bill introduced and read a first time.
Second Reading

Mr WHELAN (Strathfield - Minister for Police) [9.11 p.m.]: I move:
      That this bill be now read a second time.

The Federal Courts (State Jurisdiction) Bill is introduced as a matter of urgency arising from the determination of the High Court that State parliaments cannot effectively confer State jurisdiction on Federal courts and that the Commonwealth Parliament is not able to consent to the conferral of State jurisdiction on Federal courts. The main purposes of the bill are to provide that certain decisions of a Federal court in relation to State matters are taken to be judgments of the Supreme Court; to provide for the transfer to the Supreme Court of current proceedings in Federal courts in relation to State matters; and to enable State courts to deal with matters that arise under
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applied law schemes and that would otherwise have been dealt with by a Federal court.

On 17 June 1999 the High Court handed down its decisions in the matters of Re Wakim; Ex parte McNally, Re Wakim; Ex parte Darvall, and Re Brown; Ex parte Amman, which considered the validity of certain provisions of the Commonwealth Corporations Act 1989 and the Commonwealth Jurisdiction of Courts (Cross-Vesting) Act 1987 that provide for the cross-vesting of jurisdiction between Federal, State and Territory courts. The majority of the High Court determined that the vesting of State jurisdiction in Federal courts is ineffective. The effect of the court’s decisions is to invalidate decisions previously made by the Federal Court and the Family Court relying purely on cross-vesting arrangements and to prevent the further exercise of such jurisdiction by those Federal courts. The cross-vesting of jurisdiction between State and State, and State and Territory courts is not affected.

The High Court’s decisions impact on the general cross-vesting scheme introduced by the Jurisdiction of Courts (Cross-Vesting) Act 1987 under which State and Federal courts have reciprocal jurisdiction. Also the jurisdiction of the Federal Court under the Corporations Law, which operates throughout Australia as State and Territory law, is reliant on cross-vesting arrangements. In addition, some other State laws, in general laws associated with Commonwealth-State co-operative schemes, apply certain Federal laws as State law and also confer jurisdiction on the Federal Court. These co-operative schemes include the agriculture and veterinary chemicals scheme, competition policy scheme, gas pipeline scheme, National Crime Authority scheme and the therapeutic goods regime.

The Federal Courts (State Jurisdiction) Bill primarily deals with decisions of Federal courts made under various schemes enacted under State laws which, following the High Court’s determination, have been rendered ineffective. The existing schemes will continue to apply to the courts referred to in them, except Federal courts to the extent that the laws establishing the existing schemes are incapable of applying to Federal courts. The bill has been prepared through the Standing Committee of Attorneys-General, in conjunction with the Special Committee of Solicitors-General and the Parliamentary Counsel’s Committee, as a model which all States will follow.

The bill declares that the rights and liabilities under a current judgment of the Federal Court or Family Court, including current judgments of the full Federal Court or the full court of the Family Court of Australia, in the purported exercise of State jurisdiction, are the same as if it had been a valid judgment given by the Supreme Court. The bill specifically provides that such rights and liabilities are exercisable and enforceable as if they were rights and liabilities under judgments of the Supreme Court. Similarly, any acts or omissions in relation to such rights and liabilities are taken to have the same effect and consequences as if occurring under a judgment of the Supreme Court. The Supreme Court is also given power to vary or otherwise deal with any such rights and liabilities.

In addition, the bill provides a mechanism for the transfer to the Supreme Court of current proceedings in Federal courts relating to State matters where a Federal court determines that it has no jurisdiction to hear the State matters. The bill makes consequential amendments to the Competition Policy Reform (NSW) Act 1995 arising from the High Court’s determination that the Federal courts cannot exercise cross-vested State jurisdiction, as it is intended that State courts will now exercise jurisdiction under the competition code. The bill also enables regulations to be made in connection with matters arising under the proposed Act. In particular, as an interim measure, regulations may be made in connection with applied law regimes for the purpose of enabling jurisdiction conferred on a Federal court by State legislation to be exercised by a State court. Regulations may also be made to validate matters arising from or ancillary to ineffective judgments of Federal courts. I commend the bill to the House.

Debate adjourned on motion by Mr R. H. L. Smith.