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Jurisdiction of Courts (Cross-Vesting) Amendment Bill 1993
JURISDICTION OF COURTS
(CROSS-VESTING) AMENDMENT BILL
1993
EXPLANATORY NOTES
GENERAL OUTLINE
The Jurisdiction of Courts (Cross-Vesting) Act 1987 implemented a
nation-wide scheme for the sharing of jurisdiction between state and federal
superior courts, and amongst state superior courts. The purpose of the
scheme is to avoid arid disputes about jurisdiction, whilst allowing for the
transfer of cases more suitably belonging in another court. In vesting full
federal jurisdiction in state courts, the Commonwealth was concerned that
certain issues of exceptional importance to federal law should ordinarily still
be determined in federal courts. Such matters are listed as "special federal
matters" in the federal Act, and this definition is picked up by the
Queensland Act. They include most matters under Part IV of the Trade
Practices Act 1974 (Cth), matters under the Administrative Decisions
(Judicial Review) Act 1977 (Cth), and appeals and references from
Commonwealth tribunals.
This Bill is the result of consideration by the Standing Committee of
Attorneys-General of certain aspects of the cross-vesting scheme. In
particular, the present scheme does not fully reflect a presumption in favour
of transfer of "special federal matters". Currently there is an awkward
procedure whereby the federal Attorney-General can effectively direct a
state supreme court judge to transfer a "special federal matter". This power
does not reflect the proper divisions between the executive and the judiciary,
and between federal and state powers.
This Bill is modelled on uniform legislation to be enacted nation-wide.
Details of specific clauses are as follows.
Clause 1 provides the citation of the Act.
Clause 2 provides for the commencement of the provisions of the Act,
which will be by proclamation to coincide with the commencement of the
amendments nation-wide.
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Jurisdiction of Courts (Cross-Vesting) Amendment Bill 1993
Clause 3 names the Principal Act.
Clause 4 includes the Australian Capital Territory in the definition of
"State" for the purposes of the principal Act. This reflects the full
participation of the Supreme Court of that Territory on the same basis as
State Supreme Courts.
Clause 5 When a `special federal matter' arises in a proceeding in the
Queensland Supreme Court ("the Court"), there will be a presumption in
favour of transfer to the appropriate federal court.
The Court may order that the proceeding remain in its list, but only if
there are special reasons for so doing. Such reasons are not to include the
convenience of the parties. This reflects the fact that special federal matters
are matters of peculiar importance to Commonwealth law. The Court must
particularly have regard to the general rule favouring transfer.
Before it could make an order retaining the proceeding, the Court must
be satisfied that both the Commonwealth and Queensland
Attorneys-General have notice of the proceedings and a reasonable time to
respond to that notice. This is to enable either Attorney to present
submissions to the Court about whether the proceeding should be retained
or transferred.
Clause 6 omits s.15, which is now provided for in all Acts by s.9 of the
Acts Interpretation Act 1954.
Clause 7 omits words which are provided for by s.11 of the Statutory
Instruments Act 1992.
Clause 8 inserts a new s.17, expressly stating that the amendments are
not retrospective but only apply to proceedings brought after the
proclamation of the amendment Act.
© The State of Queensland 1993