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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FEDERAL COURT OF AUSTRALIA AMENDMENT
(CRIMINAL JURISDICTION) BILL 2008
SUPPLEMENTARY EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Hon Robert McClelland MP)
AMENDMENTS TO THE FEDERAL COURT OF AUSTRALIA AMENDMENT (CRIMINAL
JURISDICTION) BILL 2008
OUTLINE
The purpose of these amendments to Schedule 1 of the Federal Court of
Australia Amendment (Criminal Jurisdiction) Bill 2008 (the Bill) is to
respond to the recommendations of the Senate Standing Committee on Legal
and Constitutional Affairs (the Committee) following its inquiry into the
Bill and to make certain other amendments.
The Bill currently provides the procedural framework which will allow the
Federal Court to exercise the indictable jurisdiction which it will be
given in relation to serious cartel offences under the Trade Practices Act
1974.
The substantive amendments proposed to the Bill will provide the following:
. that the accused must give notice of a proposed defence of alibi or
mental impairment even if there is no Court order for disclosure
. that the accused is only required to give a general indication of
their reasons for dispute of the prosecution case against them and
is not required to disclose details of a proposed defence
. that there is no general removal of legal professional privilege but
that such privilege is temporarily overridden in a limited range of
circumstances at the pre-trial stage
. clarification of the consequences of non-compliance with disclosure
requirements
. clarification of the process of preparation of jury rolls and jury
lists by the Federal Court
. clarification of the test for a further application for bail
. clarification that there is a general presumption in favour of bail
in relation to cartel offences heard in the Federal Court
. clarification that the prosecution does not have power to give
directions to the Court.
FINANCIAL IMPACT STATEMENT
The amendments are not expected to have any significant financial impact.
NOTES ON AMENDMENTS
Amendment 1
1. This is a consequential amendment which updates the note
at the end of proposed section 23CA to reflect the
insertion of new proposed subsection 23CD(2) at
amendment 5 and removes some words which potentially may
be unclear from the context.
Amendment 2
2. This amendment inserts references to subsection 23CD(1).
It is consequential to the insertion of new proposed
subsection 23CD(2) at amendment 5.
Amendment 3
3. This amendment omits the heading to clause 23CD and
substitutes a new heading. It is consequential to the
insertion of new subsection 23CD(2) at amendment 5.
Amendment 4
4. This amendment reflects the need to renumber existing
clause 23CD to reflect the insertion of new proposed
subsection 23CD(2) at amendment 5.
Amendment 5
5. This amendment adds new proposed subsection 23CD(2) to provide that
the accused must give notice of a proposed defence of alibi or mental
impairment as soon as practicable after the first pre-trial hearing in the
matter. This reflects the position that an accused should give notice of
an intention to raise one of these defences as soon as practicable, in any
circumstances, regardless of whether there is an order for pre-trial
disclosure by the Court.
6. A note is also added to make it clear that a party may be subject to
other disclosure obligations outside the disclosure obligations under the
Bill.
Amendment 6
7. This is a consequential amendment which updates the numbering for
proposed subsection 23CF to reflect the insertion of new proposed
subsection 23CF(2) at amendment 10.
Amendments 7 and 8
8. These amendments add the word 'general' to 'basis' where occurring in
proposed subsection 23CF in relation to the disclosure obligations of the
accused. Where the Court makes an order under proposed section 23CD the
accused must, in general terms, indicate the basis for taking issue in
relation to any fact, matter or circumstance set out in the notice of the
prosecution's case.
9. The addition of 'general' to the word 'basis' is intended to clarify
that the disclosure requirement will be satisfied if the accused states
whether they take issue with a particular fact, matter or circumstance
asserted by the prosecution, and if so, the general basis for taking issue.
There is no requirement to disclose details of a proposed defence other
than a defence based on alibi or mental impairment. There is also no
requirement for the accused to disclose what evidence they intend to lead
to refute a particular fact. It will be a matter for the Court to
determine in the individual case whether the requirement to indicate the
general basis for taking issue with a fact, matter or circumstances has
been satisfied.
Amendment 9
10. This amendment omits paragraphs 23CF(i) and (j) and is consequential
to the insertion of new proposed subsection 23CD(2) at amendment 5.
Amendment 10
11. New proposed subsection 23CF(2) reinforces that the accused is not
required to disclose details of their proposed defence, except in relation
to a proposed defence of alibi or mental impairment.
Amendment 11
12. This amendment inserts a reference to paragraph 23CF(1)(k). It is
consequential to amendment 10 which inserts a new subsection 23CF(1).
Amendment 12
13. This amendment inserts a reference to subsection 23CD(1). It is
consequential to amendment 5 which inserts a new proposed subsection
23CD(2).
Amendment 13
14. This amendment deletes reference to subsection 23CH(3). It is
consequential to amendment 5.
Amendment 14
15. This amendment reflects the fact that there will no longer be a
paragraph 23CH(2)(f). It is consequential to amendment 15.
Amendment 15
16. This amendment omits paragraph 23CH(2)(f) as a consequence of
amendment 19 which inserts new proposed subsections 23CM(3) and (4).
Amendment 16
17. This amendment omits proposed subsection 23CH(3) in its entirety as
it is superseded by amendment 19. Amendment 19 clarifies the procedure in
relation to additional or supporting evidence of an alibi or mental
impairment.
Amendment 17
18. This amendment omits reference to section 23CD to reflect the
consequences of amendment 5.
Amendment 18
19. This amendment omits proposed section 23CL in its entirety and
substitutes a new proposed section 23CL. The intention is to clarify what
effect an order for disclosure under Subdivision C of the Bill will have on
legal professional privilege and other rights and privileges that may apply
to material that is required to be disclosed.
20. New proposed subsection (1) clarifies that a party cannot refuse to
disclose material on the basis that it is covered by litigation privilege.
This clarifies that a party cannot refuse to disclose material which there
is an obligation to disclose on the basis that it came into existence for
use in or in connection with the current proceedings or other litigation.
21. New proposed subsection 23CL(2) clarifies that subsection (1) is not
a general abrogation or waiver of legal professional privilege. This means
that the law relating to legal professional privilege is not affected
except as specified in subsection (1). In particular, the fact that
material is disclosed under subsection (1) will not amount to a waiver of
any litigation privilege that may apply to the material. It will remain
open to a party who holds privilege in the material to claim privilege, if
they wish to do so, in later proceedings or at a later stage in the current
proceedings.
22. New proposed subsection 23CL(3) clarifies that the operation of the
National Security Information (Criminal and Civil Proceedings) Act 2004 and
the law relating to public interest immunity are not abrogated or affected
by this Subdivision.
23. New proposed subsection 23CL(4) clarifies that the Subdivision does
not affect the law governing any other duties relating to disclosure. That
will include any law that imposes duties and obligations on an
investigating agency.
24. New proposed subsection 23CL(5) provides definitions for legal
privilege and litigation privilege.
Amendment 19
25. This amendment substitutes a new section for existing section 23CM.
The Bill currently lists a range of orders the Court may make in relation
to a party's compliance, or failure to comply, with an order under section
23CD. The proposed subsection (1) provides that the Court has the
discretion to make such orders as it thinks appropriate to ensure full
compliance with any order for pre-trial and on-going disclosure by a party
under section 23CD.
26. New proposed subsection 23CM(2) would provide that the Court's power
to make orders under proposed section 23CM must not be exercised if to do
so would result in an unfair trial.
27. New proposed subsections 23CM(3) and (4) would provide that if the
accused fails to provide notice of an intention to rely on a defence of
alibi or mental impairment in accordance with subsection 23CD(2), evidence
of such matters may only be adduced with the leave of the Court. This is
intended to achieve an appropriate balance between ensuring the efficiency
of pre-trial disclosure while also ensuring fairness to the accused in
cases where the Court considers it justified to grant leave. It will be up
to the Court to decide when to grant leave according to the circumstances
of each case.
Amendments 20, 21, 22 and 23
28. These amendments omit reference to subsection 23CD and are
consequential to amendment 5.
Amendment 24
29. This amendment omits proposed section 23DG in its entirety and
substitutes a new section 23DG. The effect is to leave the preparation of
a written jury roll for a jury district to the Sheriff without specifying
or limiting the source of information the Sherriff may use. The amendment
also confirms, for the avoidance of doubt, that a jury roll prepared under
this proposed provision is not a legislative instrument.
Amendment 25
30. This amendment omits proposed subsection 23DM(2) and substitutes new
proposed subsection 23DM(2) to provide that the jury list consists of the
names and addresses of persons, and if readily available, the dates of
birth and sex. This distinguishes between information that is essential
(name and address) and that which is desirable (date of birth and sex) and
avoids possible challenge to a jury list on the basis that it does not
include information which is not essential and which may not always be
readily available.
Amendment 26
31. This amendment would replace 'significant' with 'material' in
proposed subsection 58DA(2) to avoid any doubt about what test applies when
an accused who has been denied bail makes a further application for bail.
32. The current test is that there must have been a significant change in
circumstances. The terms 'significant' and 'material' are generally used
as synonyms but the amendments will remove any possible doubt about what
test applies.
Amendment 27
33. This amendment inserts new proposed subsection 58DB(2A) to provide a
presumption in favour of bail for the proposed serious cartel offences.
The presumption will apply in indictable primary proceedings which means
that the presumption will apply only at first instance, and not at the
appeal stage. There will be no presumption under the Bill, either for or
against bail, for any other offence if the indictment also includes counts
for one or more associated offences which are not serious cartel offences.
Amendment 28
34. This amendment will alter proposed section 58DD to ensure that if a
bail order is stayed pending appeal, the stay operates by virtue of the
legislation and not because the prosecutor has given a direction to the
Court.
Amendment 29
35. This amendment inserts reference to proposed section 23CD(1) and is
consequential to amendment 5.
Amendment 30
36. This amendment omits item 32 of the Bill and is consequential to
amendments 24 and 25.
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