Footnotes
Chapter 2 - Overview of the Bill
[1]
Schedule 1 item 117 of the Trade Practices Amendment (Cartel Conduct and
Other Measures) Bill 2008
[2]
Proposed subsection 23AB(2) of the Federal Court of Australia Act
1976
[3]
Proposed section 23AA of the Federal Court of Australia Act 1976;
and proposed sections 68A, 68B & 68C of the Judiciary Act 1903.
[4]
Proposed sections 23BA – 23BH of the Federal Court of Australia Act
1976
[5]
The Hon. Robert McClelland MP, Attorney-General, House Hansard, 3
December 2008, p. 12295. Also, see Explanatory Memorandum, p. 9.
[6]
Proposed subsection 23CA(1) and proposed section 23CB of the Federal
Court of Australia Act 1976.
[7]
Proposed sections 23CE – 23CH of the Federal Court of Australia Act
1976
[8]
Explanatory Memorandum, pp 10-11 and the Hon. Robert McClelland MP,
Attorney-General, House Hansard, 3 December 2008, p. 12295.
[9]
Proposed section 23CL of the Federal Court of Australia Act 1976
[10]
Explanatory Memorandum, p. 14.
[11]
Proposed paragraphs 23CM(2)(a)-(d) of the Federal Court of Australia
Act 1976
[12]
Proposed sections 23CN & 23CO of the Federal Court of Australia Act
1976
[13]
Proposed sections 23DA – 23DZA of the Federal Court of Australia Act
1976
[14]
Proposed sections 23EA – 23EM of the Federal Court of Australia Act
1976
[15]
Proposed sections 23FA – 23FK of the Federal Court of Australia Act
1976
[16]
Proposed paragraph 23GB(1)(b) of the Federal Court of Australia Act
1976
[17]
Explanatory Memorandum, pp 38-39.
[18]
Proposed sections 23HA – 23HE of the Federal Court of Australia Act
1976
[19]
The Bill also amends Part III Division 2 of the Act, limiting the
application of that division to appeals in civil proceedings only. The Court's
limited power to hear appeals in criminal proceedings under Division 2 will be
moved to Division 2A: Schedule 1 items 58 & 59 of the Federal Court of
Australia Amendment (Criminal Jurisdiction) Bill 2008.
[20]
Proposed subsection 30AA(1) of the Federal Court of Australia Act 1976.
Also, see proposed subsections 30AA(2)-(4) of the Federal Court of Australia
Act 1976. Part IB Divisions 6 & 9 of the Crimes Act 1914 relate
to persons who are not fit to be tried and sentencing alternatives for persons
suffering from mental illness or intellectual disability.
[21]
Explanatory Memorandum, p. 44.
[22]
Paragraphs (a)-(c) of proposed subsection 30AJ(1) of the Federal Court
of Australia Act 1976. Also, see proposed sections 30AA-30AL of the Federal
Court of Australia Act 1976
[23]
Proposed subsection 30AJ(1) of the Federal Court of Australia Act 1976
[24]
Proposed sections 30BA of the Federal Court of Australia Act 1976
[25]
Proposed section 30BC of the Federal Court of Australia Act 1976.
Subsection 19B(1) of the Crimes Act 1914 relates to the discharge of
offenders without proceeding to conviction.
[26]
Proposed sections 30CA & 30CB of the Federal Court of Australia Act
1976
[27]
Explanatory Memorandum, p. 51.
[28]
Proposed sections 58AA & 58AE of the Federal Court of Australia Act
1976
[29]
Explanatory Memorandum, p. 59.
[30]
Explanatory Memorandum, p. 60.
[31]
Explanatory Memorandum, p. 62.
[32]
In summary criminal proceedings, state/territory laws relating to bail
will apply through the operation of subsection 68(1) of the Judiciary Act
1903.
[33]
Proposed subsection 68A(5) of the Judiciary Act 1903
[34]
Proposed subsections 68C(2)-(3) of the Judiciary Act 1903
[35]
Explanatory Memorandum, p. 76.
[36]
Section 80 of the Australian Constitution
[37]
Proposed subsection 68C(8) of the Judiciary Act 1903
[38]
The Hon. Robert McClelland MP, Attorney-General, House Hansard, 3
December 2008, p. 12295.
[39]
Proposed subsection 6(2F) of the Director of Public Prosecutions Act
1983
[40]
Explanatory Memorandum, p. 3. Some examples of changed circumstances are
provided.
Chapter 3 - Issues
[1]
Proposed subsection 68A(2) of the Judiciary Act 1903
[2]
Law Institute of Victoria, Submission 2, p. 1.
[3]
Victorian Bar Association, Submission 3, p. 5. Also, see Mr John
Champion SC, Chairman, Criminal Bar Association Victoria, Committee Hansard,
Melbourne, 29 January 2009, p. 44.
[4]
Mr Tim Game SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2009, p. 36.
[5]
Victorian Bar Association, Submission 3, p. 5.
[6]
Proposed section 337 of the Criminal Procedure Bill (Vic)
[7]
Mr John Champion SC, Chairman, Criminal Bar Association Victoria, Committee
Hansard, Melbourne, 29 January 2009, p. 54. Also, see Justice Mark
Weinberg, Committee Hansard, Canberra, 5 February 2009, p. 10.
[8]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 31.
[9]
For example, see Mr Phillip Priest QC, Law Council of Australia, Committee
Hansard, Melbourne, 29 January 2009, pp 36.
[10]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 31.
[11]
Commonwealth Director of Public Prosecutions, Submission 1, p. 2,
and Explanatory Memorandum, p. 3.
[12]
Mr John Thornton, CDPP, Committee Hansard, Melbourne, 29 January
2009, p. 40. Also, see Mr Geoffrey Gray SC, Attorney-General's Department, Committee
Hansard, Canberra, 6 February 2009, p. 31.
[13]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 10.
[14]
This issue is further explored later in this chapter under the heading
'Resources and Capacity'.
[15]
Mr Tim Game SC and Dr David Neal SC, Law Council of Australia, Committee
Hansard, Melbourne, 29 January 2009, pp 34-35.
[16]
NSW Office of the Attorney-General and Minister for Justice, Submission
6, p. 3.
[17]
Proposed subsections 23CE(h) - (j) of the Federal Court of Australia
Act 1976
[18]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 2.
[19]
Attorney-General's Department, answers to questions on notice, 12 February
2009, p. 2 (received 12 February 2009)
[20]
Proposed subsections 23CF(a) & (b) of the Federal Court of
Australia Act 1976
[21]
Law Council of Australia, Submission 5, p. 4. Also, see Dr David
Neal SC, Law Council of Australia, Committee Hansard, Melbourne, 29
January 2009, p. 26.
[22]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, pp 2-3 & p. 10. Also, see Mr Geoffrey Gray SC,
Attorney-General's Department, Committee Hansard, Canberra,
6 February 2009, p. 28; and Attorney-General's Department, answers to
questions on notice, 12 February 2009, p. 8 (received 12 February 2009) where
the department notes that disclosure provisions in the UK go beyond what is
proposed in the Bill.
[23]
NSW Office of the Attorney-General and Minister for Justice, Submission
6, p. 3.
[24]
Victorian Bar Association, Submission 3, p. 4.
[25]
Dr David Neal SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2009, p. 26. Also, see Mr John Champion SC,
Chairman, Criminal Bar Association Victoria, Committee Hansard,
Melbourne, 29 January 2009, p. 49; and Mr Geoffrey Gray SC, Attorney‑General's
Department, Committee Hansard, Canberra, 6 February 2009,
p. 29.
[26]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, pp 23-24 & 29.
[27]
Dr David Neal SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2009, p. 28. Also, see Law Council of Australia, Submission
5, p. 4; and Victorian Bar Association, Submission 3, p. 4.
[28]
Mr John Thornton, CDPP, Committee Hansard, Melbourne, 29 January
2009, p. 41.
[29]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, pp 2-3 & p. 10.
[30]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 24-25, 27 & 28.
[31]
Dr David Neal SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2008, p. 29. Also, see Mr Tim Game SC, Law
Council of Australia, Committee Hansard, Melbourne, 29 January 2008, pp
24-25.
[32]
Mr Tim Game SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2008, p. 30. Also, see Law Council of
Australia, Submission 5, p. 4.
[33]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 24.
[34]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, pp 2.
[35]
Proposed paragraphs 23CM(2)(c) & (d) of the Federal Court of
Australia Act 1976
[36]
Law Institute of Victoria, Submission 2, p. 2.
[37]
See: Attorney-General's Department, answers to questions on notice, 12
February 2009, pp 7-8 (received 12 February 2009)
[38]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 25.
[39]
Dr David Neal SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2008, p. 27 & p. 25.
[40]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 3. Also, see Mr John Thornton, CDPP, Committee
Hansard, Melbourne, 29 January 2009, p. 41.
[41]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 26.
[42]
Law Council of Australia, answer to question on notice, 9 February 2009,
pp 3-4 (received 9 February 2009). Also, see Explanatory Memorandum, p.
14.
[43]
NSW Office of the Attorney-General and Minister for Justice, Submission
6, p. 3. Also, see Law Council of Australia, answer to question on notice,
9 February 2009, p. 4 (received 9 February 2009); and Mr John Champion SC,
Chairman, Criminal Bar Association Victoria, Committee Hansard,
Melbourne, 29 January 2009, pp 49-50.
[44]
AWB Limited v Australian Securities and Investments Commission [2008]
FCA 1877 (11 December 2008) at 14 quoted in Bills Digest, No. 98 2008-09, 18
February 2009, p. 10.
[45] Justice Mark
Weinberg, Committee Hansard, Canberra, 5 February 2009, p. 3.
His Honour also disagreed with the Accused ever being obliged to disclose
legally privileged documents.
[46]
Dr David Neal SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2008, p. 33.
[47]
Law Council of Australia, answer to question on notice, 9 February 2009,
(received 9 February 2009). Also, see Mr Tim Game SC, Law Council of Australia,
Committee Hansard, Melbourne, 29 January 2008, p. 33.
[48]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 30. Also, see Attorney-General's Department,
answers to questions on notice, 12 February 2009, p. 2 (received 12 February
2009)
[49]
Law Council of Australia, answer to question on notice, 9 February 2009,
p. 4 (received 9 February 2009).
[50]
Proposed paragraphs 23DI(1) (a), (c) & (e) of the Federal Court of
Australia Act 1976
[51]
Law Council of Australia, Submission 5, p. 9.
[52]
NSW Law Reform Commission, 'Report 117 (2007) – Jury Selection', http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_r117toc
(accessed 31 January 2009)
[53]
Law Council of Australia, Submission 5, p. 9. Also, see proposed
section 23DJ of the Federal Court of Australia Act 1976; and NSW Office
of the Attorney-General and Minister for Justice, Submission 6, p. 4.
[54]
Proposed paragraph 23DQ(2)(e) of the Federal Court of Australia Act
1976
[55]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 4.
[56]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 4.
[57]
Attorney-General's Department, answers to questions on notice, 12 February
2009, p. 6 (received 12 February 2009)
[58]
Mr John Champion SC, Chairman, Criminal Bar Association Victoria, Committee
Hansard, Melbourne, 29 January 2009, p. 46 & p. 51. Also, see NSW
Office of the Attorney-General and Minister for Justice, Submission 6,
p. 3.
[59]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 5.
[60]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 34.
[61]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 6.
[62]
Attorney-General's Department, answers to questions on notice, 12 February
2009, p. 3 (received 12 February 2009)
[63]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 6.
[64]
Attorney-General's Department, answers to questions on notice, 12 February
2009, p. 3 (received 12 February 2009). Also, see proposed section 30CB of the Federal
Court of Australia Act 1976; section 77 of the Crimes (Appeal and
Review) Act 2001 (NSW); and section 584 of the Crimes Act 1958 (Vic).
[65]
Proposed paragraph 30AI(1)(c) of the Federal Court of Australia Act
1976
[66]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, pp 6-7.
[67]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 7.
[68]
Attorney-General's Department, answers to questions on notice, 12 February
2009, p. 4 (received 12 February 2009).
[69]
Law Council of Australia, Submission 5, p. 5.
[70]
Mr Phillip Priest QC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2009, pp 32-33. Also, see Law Council of
Australia, Submission 5, p. 5.
[71]
Mr John Champion SC, Chairman, Criminal Bar Association Victoria, Committee
Hansard, Melbourne, 29 January 2009, p. 49.
[72]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 32.
[73] Law Council
of Australia, Submission 5, p. 6. Article 9(3) of the International
Covenant on Civil and Political Rights states: Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule that persons
awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgement.
[74]
Law Council of Australia, Submission 5, p. 7.
[75]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 8 & pp 9-10. Also, see Mr John Champion SC,
Chairman, Criminal Bar Association Victoria, Committee Hansard,
Melbourne, 29 January 2009, pp 44 & 48.
[76]
Mr Phillip Priest QC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2008, p. 32. Also, see section 4 of the Bail Act 1977 (Vic)
and Mr John Champion SC, Chairman, Criminal Bar Association Victoria, Committee
Hansard, Melbourne, 29 January 2009, p. 49.
[77]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, pp 32-33.
[78]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 32.
[79] Mr John
Thornton, CDPP, Committee Hansard, Melbourne, 29 January 2009, p. 42.
[80]
Proposed paragraphs 58DB(2)(a)-(e) of the Federal Court of Australia
Act 1976
[81]
Law Council of Australia, Submission 5, p. 7.
[82]
Mr Geoffrey Gray SC, Attorney-General's Department, Committee Hansard,
Canberra, 6 February 2009, p. 33.
[83]
Mr John Thornton, CDPP, Committee Hansard, Melbourne, 29 January
2009, p. 40. Also, see Commonwealth Director of Public Prosecutions, Submission
1, p. 4.
[84]
Commonwealth Director of Public Prosecutions, Submission 1, p. 1.
Dual jurisdiction can also arise when criminal behaviour constitutes an offence
under both Commonwealth law and state/territory law.
[85]
Commonwealth Director of Public Prosecutions, Submission 1, p. 2.
[86]
Mr Tim Game SC, Law Council of Australia, Committee Hansard,
Melbourne, 29 January 2009, p. 24.
[87]
Office of the Attorney-General and Minister for Justice, Submission 6,
p. 1.
[88]
Attorney-General's Department, answers to questions on notice, 12 February
2009, p. 1 (received 12 February 2009)
[89]
Mr John Champion SC, Chairman, Criminal Bar Association Victoria, Committee
Hansard, Melbourne, 29 January 2009, p. 53; and Mr John Champion SC, Submission
4, p. 7.
[90]
The one exception was the NSW Attorney-General: see NSW Office of the
Attorney-General and Minister for Justice, Submission 6, p. 2.
[91]
Justice Mark Weinberg, Committee Hansard, Canberra,
5 February 2009, p. 11.
[92]
Chief Justice Michael Black AC, Federal Court of Australia, Correspondence
dated 6 February 2009, pp 1-2.
[93]
Chief Justice Michael Black AC, Federal Court of Australia, Correspondence
dated 6 February 2009, p. 2.
[94]
Mr John Thornton, CDPP, Committee Hansard, Melbourne, 29 January
2009, p. 39.
[95]
Mr John Champion SC, Chairman, Criminal Bar Association Victoria, Committee
Hansard, Melbourne, 29 January 2009, p. 54; and Justice Mark Weinberg, Committee
Hansard, Canberra, 5 February 2009, p. 11.