An Act to make provision for the Exercise of the Judicial Power
of the Commonwealth
Part I—Preliminary
1Â
Short title [see
Note 1]
                  This Act may be cited as the Judiciary
Act 1903.
2Â
Interpretation
                  In this Act, unless the contrary
intention appears:
AGS means the Australian Government Solicitor
established under Division 2 of Part VIIIB.
Appeal includes an application for a new
trial and any proceeding to review or call in question the proceedings decision
or jurisdiction of any Court or Judge.
Cause includes any suit, and also includes
criminal proceedings.
Chief Justice includes a Justice for the time
being performing the duties and exercising the powers of the Chief Justice.
Defendant includes any person against whom
any relief is sought in a matter or who is required to attend the proceedings
in a matter as a party thereto.
Judgment includes any judgment decree order
or sentence.
Justice means a Justice of the High Court and
includes the Chief Justice.
legal practitioner means a person entitled,
under an Act or a law of a State or Territory, to practise as one of the
following:
                    (a) a legal practitioner;
                    (b) a barrister;
                    (c) a solicitor;
                    (d) a barrister and solicitor.
Matter includes any proceeding in a Court,
whether between parties or not, and also any incidental proceeding in a cause
or matter.
Plaintiff includes any person seeking any
relief against any other person by any form of proceeding in a Court.
Suit includes any action or original
proceeding between parties.
3AÂ
Extension to Territories
                  This Act extends to all the Territories.
Part III—Jurisdiction and powers of the High Court generally
Division 1—Exercise of jurisdiction
15Â
Exercise of jurisdiction
                  The jurisdiction of the High Court may,
subject to the provisions of this Act, be exercised by any one or more Justices
sitting in open Court.
Division 2—Jurisdiction of single Justice
16Â
Jurisdiction in Chambers
                  The jurisdiction of the High Court may
be exercised by a Justice sitting in Chambers in the cases following:
                    (a) Applications relating to the
conduct of a cause or matter;
                    (b) Applications relating to the
custody management or preservation of property, or to the sale of property and
the disposition of the purchase money;
                    (c) Applications for orders or
directions as to any matter which by this Act or by Rules of Court is made
subject to the direction of a Justice sitting in Chambers;
                    (d) Any other applications which by
this or any Act or by Rules of Court are authorized to be made to a Justice
sitting in Chambers.
But on the application of either party the Justice may
order the application to be adjourned into Court and heard in open Court.
17Â
State Supreme Courts invested with jurisdiction in Chambers
            (1) In any matter pending in the High Court,
not being a matter in which the High Court has exclusive jurisdiction, the
Supreme Court of a State shall be invested with federal jurisdiction to hear
and determine any applications which may be made to a Justice of the High Court
sitting in Chambers.
            (2) Such jurisdiction may be exercised by a
single Judge of the Supreme Court sitting in Chambers, and the order of the
Judge shall have the effect of an order of a Justice of the High Court sitting
in Chambers.
18Â
Reference to Full Court
                  Any Justice of the High Court sitting
alone, whether in Court or in Chambers, may state any case or reserve any
question for the consideration of a Full Court, or may direct any case or
question to be argued before a Full Court, and a Full Court shall thereupon
have power to hear and determine the case or question.
Division 3—Full Court
19Â
Quorum of a Full Court
                  Except as hereinafter provided, a Full
Court may be constituted by any two or more Justices of the High Court
sitting together.
20Â
Appeals from Judges of federal jurisdiction
                  The jurisdiction of the High Court to
hear and determine appeals from judgments:
                    (a) of a Justice of the High Court
exercising the original jurisdiction of the High Court; or
                    (b) of the Supreme Court of a State
exercising federal jurisdiction when such jurisdiction is exercised by a single
Judge; or
                    (c) of any other court exercising
federal jurisdiction; or
                    (d) of the Inter‑State
Commission;
and to hear and determine applications for a new trial of
any cause or matter, after a trial before any such Justice or any such Court
exercising federal jurisdiction, shall be exercised by a Full Court.
21Â
Applications for special leave to appeal to High Court
            (1) Applications for special leave to appeal
to the High Court from a judgment of another court may be heard and determined
by a single Justice or by a Full Court and the Rules of Court may provide for
enabling such applications to be dealt with, subject to conditions prescribed
by the Rules, without an oral hearing.
Quorum of Justices on appeals from State Supreme Courts
            (2) The jurisdiction of the High Court to
hear and determine appeals from judgments of the Supreme Court of a State
sitting as a Full Court, shall be exercised by a Full Court consisting of not
less than three Justices.
            (3) The reference in subsection (2) to
the Supreme Court of a State sitting as a Full Court shall be read as a
reference to the Supreme Court of a State when constituted by 2 or more Judges,
and includes the Supreme Court of a State when so constituted for the purpose
of sitting as the Court of Appeal of the State.
22Â
Quorum for granting leave to appeal to the Queen in Council or to High Court
                  Applications to the High Court for a
certificate that a question as to the limits inter se of the
Constitutional powers of the Commonwealth and those of any State or States, or
as to the limits inter se of the Constitutional powers of any two or
more States, which has been decided by the High Court, is one which ought to be
determined by the Queen in Council, shall be heard and determined by a Full
Court consisting of not less than three Justices.
23 Â Decision
in case of difference of opinion
            (1) A Full Court consisting of less than all
the Justices shall not give a decision on a question affecting the
constitutional powers of the Commonwealth, unless at least three Justices
concur in the decision.
            (2) Subject to the last preceding subsection,
when the Justices sitting as a Full Court are divided in opinion as to the
decision to be given on any question, the question shall be decided according
to the decision of the majority, if there is a majority; but if the Court is
equally divided in opinion:
                    (a) in the case where a decision of a
Justice of the High Court (whether acting as a Justice of the High Court or in
some other capacity), a decision of a Supreme Court of a State or Territory or
a Judge of such a Court, a decision of the Federal Court of Australia or a
Judge of that Court or a decision of the Family Court of Australia or a Judge
of that Court is called in question by appeal or otherwise, the decision
appealed from shall be affirmed; and
                    (b) in any other case, the opinion of
the Chief Justice, or if he or she is absent the opinion of the Senior Justice
present, shall prevail.
Division 4—Enforcement of process
24Â
Contempt
                  The High Court shall have the same power
to punish contempts of its power and authority as is possessed at the
commencement of this Act by the Supreme Court of Judicature in England.
25Â
Powers of court to extend to whole Commonwealth
                  The process of the High Court shall run,
and the judgments and orders of the High Court shall have effect and may be
executed, throughout the Commonwealth.
Division 4A—Summary judgment
25AÂ
Summary judgment
            (1) The High Court may give judgment for one
party against another in relation to the whole or any part of a proceeding if:
                    (a) the first party is prosecuting the
proceeding or that part of the proceeding; and
                    (b) the Court is satisfied that the
other party has no reasonable prospect of successfully defending the proceeding
or that part of the proceeding.
            (2) The High Court may give judgment for one
party against another in relation to the whole or any part of a proceeding if:
                    (a) the first party is defending the
proceeding or that part of the proceeding; and
                    (b) the Court is satisfied that the
other party has no reasonable prospect of successfully prosecuting the
proceeding or that part of the proceeding.
            (3) For the purposes of this section, a
defence or a proceeding or part of a proceeding need not be:
                    (a) hopeless; or
                    (b) bound to fail;
for it to have no reasonable prospect of success.
            (4) This section does not limit any powers
that the High Court has apart from this section.
Division 5—Costs
26Â
Costs
                  The High Court and every Justice thereof
sitting in Chambers shall have jurisdiction to award costs in all matters
brought before the Court, including matters dismissed for want of jurisdiction.
27Â No
appeal as to costs
                  An appeal shall not lie to the High
Court from a decision of a Justice of the Court, or from a decision of the
Supreme Court of a State exercising federal jurisdiction, with respect to costs
which are in the discretion of the Court, except by leave of the Justice or
Court.
Division 6—Defendants
28Â Non‑appearance
of some defendants
                  When there are several defendants in any
cause pending in the High Court, if any defendant is not served with process
and does not voluntarily appear, the Court may nevertheless entertain the cause
and proceed to hear and determine it between the parties who are properly
before the Court; but the judgment given in the cause shall not conclude or
prejudice other parties who are not regularly served with process and do not
voluntarily submit to the jurisdiction of the Court.
29Â
Absent defendants
                  When, in any suit of which the High
Court has original jurisdiction, any defendant is not a resident of or found
within the Commonwealth, and does not voluntarily appear in the suit, the Court
may nevertheless proceed to exercise its jurisdiction after such notice to the
defendant and upon such terms as are prescribed by Rules of Court.
Part IV—Original jurisdiction of the High Court
30Â
Original jurisdiction conferred
                  In addition to the matters in which
original jurisdiction is conferred on the High Court by the Constitution, the
High Court shall have original jurisdiction:
                    (a) in all matters arising under the
Constitution or involving its interpretation; and
                    (c) in trials of indictable offences
against the laws of the Commonwealth.
31Â
Judgment and execution
                  The High Court in the exercise of its
original jurisdiction may make and pronounce all such judgments as are
necessary for doing complete justice in any cause or matter pending before it,
and may for the execution of any such judgment in any part of the Commonwealth
direct the issue of such process, whether in use in the Commonwealth before the
commencement of this Act or not, as is permitted or prescribed by this or any
Act or by Rules of Court.
32Â
Complete relief to be granted
                  The High Court in the exercise of its
original jurisdiction in any cause or matter pending before it, whether
originated in the High Court or removed into it from another Court, shall have
power to grant, and shall grant, either absolutely or on such terms and
conditions as are just, all such remedies whatsoever as any of the parties
thereto are entitled to in respect of any legal or equitable claim properly
brought forward by them respectively in the cause or matter; so that as far as
possible all matters in controversy between the parties regarding the cause of
action, or arising out of or connected with the cause of action, may be
completely and finally determined, and all multiplicity of legal proceedings
concerning any of such matters may be avoided.
33Â
Mandamus Prohibition Ouster of office
            (1) The High Court may make orders or direct
the issue of writs:
                    (a) commanding the performance by any
court invested with federal jurisdiction, of any duty relating to the exercise
of its federal jurisdiction; or
                    (b) requiring any court to abstain
from the exercise of any federal jurisdiction which it does not possess; or
                    (c) commanding the performance of any
duty by any person holding office under the Commonwealth; or
                    (d) removing from office any person
wrongfully claiming to hold any office under the Commonwealth; or
                    (e) of mandamus; or
                     (f) of habeas corpus.
            (2) This section shall not be taken to limit
by implication the power of the High Court to make any order or direct the
issue of any writ.
33AÂ
Awards may be made Rules of Court
                  The High Court may by order direct that
an award in an arbitration in respect of any matter over which the High Court
has original jurisdiction, or in respect of which original jurisdiction may be
conferred upon the High Court, shall be a Rule of the High Court.
Part V—Appellate jurisdiction of the High Court
Division 1—Appeals
34Â
Appeals from Justices of High Court
            (1) The High Court shall, except as provided
by this Act, have jurisdiction to hear and determine appeals from all judgments
whatsoever of any Justice or Justices, exercising the original jurisdiction of
the High Court whether in Court or Chambers.
            (2) An appeal shall not be brought without
the leave of the High Court from an interlocutory judgment of a Justice or
Justices exercising the original jurisdiction of the High Court whether in
Court or Chambers.
35Â
Appeal from courts of States
            (1) The jurisdiction of the High Court to
hear and determine appeals from:
                    (a) judgments of the Supreme Court of
a State, whether given or pronounced in the exercise of federal jurisdiction or
otherwise; or
                    (b) judgments of any other court of a
State given or pronounced in the exercise of federal jurisdiction;
whether in civil or criminal matters, is subject to the
exceptions and regulations prescribed by this section.
            (2) An appeal shall not be brought from a
judgment, whether final or interlocutory, referred to in subsection (1)
unless the High Court gives special leave to appeal.
            (5) The foregoing provisions of this section
have effect subject to any special provision made by an Act other than this
Act, whether passed before or after the commencement of this section,
preventing or permitting appeals from the Supreme Courts of the States in
particular matters.
35AAÂ
Appeals from Supreme Court of a Territory
            (1) Subject to subsections (2) and (3),
the High Court has jurisdiction to hear and determine appeals from judgments of
the Supreme Court of a Territory.
            (2) An appeal shall not be brought from a
judgment, whether final or interlocutory, referred to in subsection (1)
unless the High Court gives special leave to appeal.
         (2A) An appeal may not be brought to the High
Court from a judgment of the Supreme Court of the Australian Capital Territory
given after the commencement of this subsection when that Court is known as the
Court of Disputed Elections under subsection 252(1) of the Electoral Act
1992 of that Territory.
            (3) Subsection (1) has effect subject to
any special provision made by an Act other than this Act, whether passed before
or after the commencement of this section, preventing or permitting appeals
from the Supreme Court of a Territory.
35AÂ
Criteria for granting special leave to appeal
                  In considering whether to grant an
application for special leave to appeal to the High Court under this Act or
under any other Act, the High Court may have regard to any matters that it
considers relevant but shall have regard to:
                    (a) whether the proceedings in which
the judgment to which the application relates was pronounced involve a question
of law:
                             (i) that is of public
importance, whether because of its general application or otherwise; or
                            (ii) in respect of which a
decision of the High Court, as the final appellate court, is required to
resolve differences of opinion between different courts, or within the one
court, as to the state of the law; and
                    (b) whether the interests of the
administration of justice, either generally or in the particular case, require
consideration by the High Court of the judgment to which the application
relates.
Division 2—Power of Court
36Â New
Trials
                  The High Court in the exercise of its
appellate jurisdiction shall have power to grant a new trial in any cause in
which there has been a trial whether with or without a jury.
37Â
Form of judgment on appeal
                  The High Court in the exercise of its
appellate jurisdiction may affirm reverse or modify the judgment appealed from,
and may give such judgment as ought to have been given in the first instance,
and if the cause is not pending in the High Court may in its discretion award
execution from the High Court or remit the cause to the Court from which the
appeal was brought for the execution of the judgment of the High Court; and in
the latter case it shall be the duty of that Court to execute the judgment of
the High Court in the same manner as if it were its own judgment.
Part VI—Exclusive and invested jurisdiction
38Â
Matters in which jurisdiction of High Court exclusive
                  Subject to sections 39B and 44, the
jurisdiction of the High Court shall be exclusive of the jurisdiction of the
several Courts of the States in the following matters:
                    (a) matters arising directly under any
treaty;
                    (b) suits between States, or between
persons suing or being sued on behalf of different States, or between a State
and a person suing or being sued on behalf of another State;
                    (c) suits by the Commonwealth, or any
person suing on behalf of the Commonwealth, against a State, or any person
being sued on behalf of a State;
                    (d) suits by a State, or any person
suing on behalf of a State, against the Commonwealth or any person being sued
on behalf of the Commonwealth;
                    (e) matters in which a writ of
mandamus or prohibition is sought against an officer of the Commonwealth or a
federal court.
Note:Â Â Â Â Â Â Â Â Â Under the Jurisdiction of Courts (Cross‑vesting)
Act 1987, State Supreme Courts are, with some exceptions and limitations,
invested with the same civil jurisdiction as the Federal Court has, including
jurisdiction under section 39B of this Act.
39Â
Federal jurisdiction of State Courts in other matters
            (1) The jurisdiction of the High Court, so
far as it is not exclusive of the jurisdiction of any Court of a State by
virtue of section 38, shall be exclusive of the jurisdiction of the
several Courts of the States, except as provided in this section.
            (2) The several Courts of the States shall
within the limits of their several jurisdictions, whether such limits are as to
locality, subject‑matter, or otherwise, be invested with federal
jurisdiction, in all matters in which the High Court has original jurisdiction
or in which original jurisdiction can be conferred upon it, except as provided
in section 38, and subject to the following conditions and restrictions:
                    (a) A decision of a Court of a State,
whether in original or in appellate jurisdiction, shall not be subject to
appeal to Her Majesty in Council, whether by special leave or otherwise.
Special leave to appeal from decisions of State Courts
though State law prohibits appeal
                    (c) The High Court may grant special
leave to appeal to the High Court from any decision of any Court or Judge of a
State notwithstanding that the law of the State may prohibit any appeal from
such Court or Judge.
39AÂ
Federal jurisdiction invested in State Courts by other provisions
            (1) The federal jurisdiction with which a
Court of a State is invested by or under any Act, whether the investing
occurred or occurs before or after the commencement of this section, including
federal jurisdiction invested by a provision of this Act other than the last
preceding section:
                    (a) shall be taken to be invested
subject to the provisions of paragraph (a) of subsection (2) of the
last preceding section; and
                    (b) shall be taken to be invested
subject to paragraph 39(2)(c) (whether or not the jurisdiction is expressed to
be invested subject to that paragraph), so far as it can apply and is not
inconsistent with a provision made by or under the Act by or under which the
jurisdiction is invested;
in addition to any other conditions or restrictions
subject to which the jurisdiction is expressed to be invested.
            (2) Nothing in this section or the last
preceding section, or in any Act passed before the commencement of this
section, shall be taken to prejudice the application of any of sections 72
to 77 (inclusive) in relation to jurisdiction in respect of indictable
offences.
39BÂ
Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
            (1) Subject to subsections (1B), (1C)
and (1EA), the original jurisdiction of the Federal Court of Australia includes
jurisdiction with respect to any matter in which a writ of mandamus or
prohibition or an injunction is sought against an officer or officers of the
Commonwealth.
         (1A) The original jurisdiction of the Federal
Court of Australia also includes jurisdiction in any matter:
                    (a) in which the Commonwealth is
seeking an injunction or a declaration; or
                    (b) arising under the Constitution, or
involving its interpretation; or
                    (c) arising under any laws made by the
Parliament, other than a matter in respect of which a criminal prosecution is
instituted or any other criminal matter.
Jurisdiction for certain writs that relate to criminal
prosecutions etc.
         (1B) If a decision to prosecute a person for an
offence against a law of the Commonwealth, a State or a Territory has been made
by an officer or officers of the Commonwealth and the prosecution is proposed to
be commenced in a court of a State or Territory:
                    (a) the Federal Court of Australia
does not have jurisdiction 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; and
                    (b) the Supreme Court of the State or
Territory in which the prosecution is proposed to be commenced is invested
with, or has conferred on it, jurisdiction with respect to any such matter.
         (1C) Subject to subsection (1D),
at any time when:
                    (a) a prosecution for an offence
against a law of the Commonwealth, a State or a Territory is before a court of
a State or Territory; or
                    (b) an appeal arising out of such a
prosecution is before a court of a State or Territory;
the following apply:
                    (c) the Federal Court of Australia
does not have jurisdiction 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;
                    (d) the Supreme Court of the State or
Territory in which the prosecution or appeal is before a court is invested
with, or has conferred on it, jurisdiction with respect to any such matter.
         (1D) Subsection (1C) does not apply where a
person has applied for 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 before the commencement of a prosecution for
an offence against a law of the Commonwealth, or of a State or a Territory.
          (1E) Where subsection (1D) applies, the
prosecutor may apply to the court for a permanent stay of the proceedings
referred to in that subsection, and the court may grant such a stay if the
court determines that:
                    (a) the matters the subject of the
proceedings are more appropriately dealt with in the criminal justice process;
and
                    (b) a stay of proceedings will not
substantially prejudice the person.
Jurisdiction for certain writs that relate to civil
proceedings
       (1EA) If:
                    (a) a civil proceeding is before the
Family Court of Australia, the Federal Magistrates Court or a court of a State
or Territory; or
                    (b) an appeal arising out of such a
proceeding is before the Family Court of Australia or a court of a State or
Territory;
the following apply:
                    (c) the Federal Court of Australia
does not have jurisdiction with respect to any matter in which a person who is
or was a party to the proceeding seeks a writ of mandamus or prohibition or an
injunction against an officer or officers of the Commonwealth in relation to a
related civil proceeding decision;
                    (d) the following court is invested
with, or has conferred on it, jurisdiction with respect to any such matter:
                             (i) if the civil
proceeding or appeal is before the Family Court of Australia—that court; or
                            (ii) if the civil
proceeding is before the Federal Magistrates Court—that court; or
                           (iii) if the civil
proceeding or appeal is before a court of a State or Territory—the Supreme
Court of the State or Territory.
Jurisdictional rules to apply despite any other law
          (1F) Subsections (1B), (1C), (1D), (1E)
and (1EA) have effect despite anything in any other law. In particular:
                    (a) neither the Jurisdiction of Courts
(Cross‑vesting) Act 1987, nor any other law, has the effect of giving
the Federal Court of Australia jurisdiction contrary to subsection (1B),
(1C) or (1EA); and
                    (b) neither section 9 of the Administrative
Decisions (Judicial Review) Act 1977, nor any other law, has the effect of
removing from the Supreme Court of a State or Territory the jurisdiction given
to that Court by subsection (1B), (1C) or (1EA).
References to officer or officers of the Commonwealth
            (2) The reference in subsection (1),
(1B), (1C) or (1D) to an officer or officers of the Commonwealth does not
include a reference to:
                    (a) a person holding office under the Workplace
Relations Act 1996 or the Coal Industry Act 1946; or
                    (b) a Judge or Judges of the Family
Court of Australia.
Definitions
            (3) In this
section:
civil proceeding has the same meaning as in
the National Security Information (Criminal and Civil Proceedings) Act 2004.
related civil proceeding decision, in
relation to a civil proceeding, means:
                    (a) a decision of the Attorney‑General
to give:
                             (i) notice under section 6A
of the National Security Information (Criminal and Civil Proceedings) Act
2004 in relation to the proceeding; or
                            (ii) a certificate under
section 38F or 38H of that Act in relation to the proceeding; or
                    (b) a decision of the Minister
appointed by the Attorney‑General under section 6A of that Act to
give:
                             (i) notice under section 6A
of that Act in relation to the proceeding; or
                            (ii) a certificate under
section 38F or 38H of that Act in relation to the proceeding.
related criminal justice process decision, in
relation to an offence, means:
                    (a) a decision (other than a decision
to prosecute) made in the criminal justice process in relation to the offence,
including:
                             (i) a decision in
connection with the investigation, committal for trial or prosecution of the
defendant; and
                            (ii) a decision in
connection with the appointment of investigators or inspectors for the purposes
of such an investigation; and
                           (iii) a decision in
connection with the issue of a warrant, including a search warrant or a seizure
warrant; and
                           (iv) a decision requiring
the production of documents, the giving of information or the summoning of
persons as witnesses; and
                            (v) a decision in
connection with an appeal arising out of the prosecution; or
                    (b) a decision of the Attorney‑General
to give a certificate under section 26 or 28 of the National Security
Information (Criminal and Civil Proceedings) Act 2004 before or during a
federal criminal proceeding (within the meaning of that Act) in relation to the
offence.
Part VII—Removal of causes
40Â
Removal by order of the High Court
            (1) Any cause or part of a cause arising
under the Constitution or involving its interpretation that is at any time
pending in a federal court other than the High Court or in a court of a State
or Territory may, at any stage of the proceedings before final judgment, be
removed into the High Court under an order of the High Court, which may, upon
application of a party for sufficient cause shown, be made on such terms as the
Court thinks fit, and shall be made as of course upon application by or on
behalf of the Attorney‑General of the Commonwealth, the Attorney‑General
of a State, the Attorney‑General of the Australian Capital Territory or
the Attorney‑General of the Northern Territory.
            (2) Where:
                    (a) a cause is at any time pending in
a federal court other than the High Court or in a court of a Territory; or
                    (b) there is at any time pending in a
court of a State a cause involving the exercise of federal jurisdiction by that
court;
the High Court may, upon application of a party or upon
application by or on behalf of the Attorney‑General of the Commonwealth,
at any stage of the proceedings before final judgment, order that the cause or
a part of the cause be removed into the High Court on such terms as the Court
thinks fit.
            (3) Subject to the Constitution, jurisdiction
to hear and determine a cause or part of a cause removed into the High Court by
an order under subsection (2), to the extent that that jurisdiction is not
otherwise conferred on the High Court, is conferred on the High Court by this
section.
            (4) The High Court shall not make an order
under subsection (2) unless:
                    (a) all parties consent to the making
of the order; or
                    (b) the Court is satisfied that it is
appropriate to make the order having regard to all the circumstances, including
the interests of the parties and the public interest.
            (5) Where an order for removal is made under subsection (1)
or (2), the proceedings in the cause and such documents, if any, relating to
the cause as are filed of record in the court in which the cause was pending,
or, if part only of a cause is removed, a certified copy of those proceedings
and documents, shall be transmitted by the Registrar or other proper officer of
that court to the Registry of the High Court.
41Â
Proceedings after removal
                  When a cause or part of a cause is
removed into the High Court under section 40, further proceedings in that
cause or part of a cause shall be as directed by the High Court.
42Â
Remittal of causes
            (1) Where a cause or part of a cause is
removed into the High Court under section 40, the High Court may, at any
stage of the proceedings, remit the whole or a part of that cause or part of a
cause to the court from which it was removed, with such directions to that
court as the High Court thinks fit.
            (2) Where it appears to the High Court that
the High Court does not have original jurisdiction, whether by virtue of subsection (3)
of section 40 or otherwise, in a cause or part of a cause that has been
removed into the High Court under section 40, the High Court shall proceed
no further in the cause or part of a cause but shall remit it to the court from
which it was removed.
43Â
Effect of interlocutory orders etc. before removal of cause
                  Where a cause is removed in whole or in
part into the High Court from another court:
                    (a) every order relating to the
custody or preservation of any property the subject‑matter of the cause
that has been made before the removal remains in force until it is discharged
or varied by the High Court;
                    (b) any attachment or sequestration of
the goods or estate of a defendant had in the cause before the removal holds
the goods or estate so attached or sequestered to answer the final judgment of
the High Court in the same manner as by law they would have been held to answer
the final judgment of the court in which the cause was commenced;
                    (c) all undertakings or security given
by any party in the cause before the removal remain valid and effectual; and
                    (d) all injunctions, orders and other
proceedings granted, made or taken in the cause before the removal remain in
full force and effect until the High Court otherwise orders.
44Â
Remittal of matters by High Court to other courts
            (1) Any matter other than a matter to which subsection (2)
applies that is at any time pending in the High Court, whether originally
commenced in the High Court or not, or any part of such a matter, may, upon the
application of a party or of the High Court’s own motion, be remitted by the
High Court to any federal court, court of a State or court of a Territory that
has jurisdiction with respect to the subject‑matter and the parties, and,
subject to any directions of the High Court, further proceedings in the matter
or in that part of the matter, as the case may be, shall be as directed by the
court to which it is remitted.
            (2) Where a matter referred to in paragraph
38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court
may, upon the application of a party or of the High Court’s own motion, remit
the matter, or any part of the matter, to the Federal Court of Australia or any
court of a State or Territory.
         (2A) Where a matter in which the Commonwealth,
or a person suing or being sued on behalf of the Commonwealth, is a party is at
any time pending in the High Court, the High Court may, upon the application of
a party or of the High Court’s own motion, remit the matter, or any part of the
matter, to the Federal Court of Australia.
            (3) Where the High Court remits a matter, or
any part of a matter, under subsection (2) or (2A) to a court:
                    (a) that court has jurisdiction in the
matter, or in that part of the matter, as the case may be; and
                    (b) subject to any directions of the
High Court, further proceedings in the matter, or in that part of the matter,
as the case may be, shall be as directed by that court.
            (4) The High Court may remit a matter, or any
part of a matter, under this section without an oral hearing.
45Â
Defence in causes removed to High Court
                  When a cause is removed in whole or in
part from any court into the High Court, the defendant may set up by way of
defence any matter that he or she might have set up if the cause had been
commenced in the High Court, notwithstanding that the court from which the
cause was removed did not have jurisdiction to entertain the matter of defence
or could not entertain it in the same cause.
Part VIII—Enforcement of certain orders concerning court proceedings
46Â
Interpretation
                  In this Part:
Australia includes the external Territories.
court means a court of Victoria, and includes
a Judge of such a court and any Magistrate, Justice of the Peace or Coroner of
Victoria.
make, in relation to an order being a
direction, includes give.
order includes a direction.
proceedings means criminal proceedings
arising out of, or in any way relating to, the incident that occurred at the
Sheraton Hotel in Melbourne on the night of 30 November 1983 involving the Australian Secret Intelligence Service.
47Â
Application
                  This Part applies to and in relation to:
                    (a) all natural persons, whether
resident in Australia or not and whether Australian citizens or not; and
                    (b) all bodies corporate, whether
incorporated in Australia or not;
and extends to acts done or omitted to be done outside Australia.
48Â
Crown to be bound
                  This Part binds the Crown in right of
the Commonwealth, of each of the States, of the Northern Territory and of Norfolk
Island.
49Â
Contravention of order to constitute contempt
            (1) If a court makes an order to which this
subsection applies in relation to proceedings before the court on the ground,
or on grounds that include the ground, however the ground is expressed, that
the making of the order is necessary or desirable in the interests of the
national or international security of Australia or in the interests of the
physical safety of the accused, of a witness or of any other person, a person
shall not contravene or fail to comply with the order so far as it is
applicable in relation to the last‑mentioned person.
            (2) By force of this subsection, an order
referred to in subsection (1) applies, except so far as is inconsistent
with the express terms of the order, in like manner as this Part applies by
virtue of section 47.
            (3) Subsection (1) applies to:
                    (a) an order that the proceedings are,
or part of the proceedings is, to take place in a closed hearing;
                    (b) an order that a person is, or
persons included in a specified class of persons are, to be excluded from the
whole or part of the proceedings;
                    (c) an order prohibiting or
restricting the disclosure of information with respect to the whole or part of
the proceedings;
                    (d) an order prohibiting or
restricting the publication of a report of or relating to the whole or part of
the proceedings;
                    (e) an order for the purpose of
ensuring that no person without the approval of the court has access, whether
before, during or after the hearing of the proceedings, to any indictment,
affidavit, exhibit or other document used in the proceedings or to the records
of the court relating to the proceedings; or
                     (f) an order combining any 2 or more
of the foregoing orders.
            (4) If a person contravenes or fails to
comply with an order referred to in subsection (1), the Federal Court of
Australia has the same powers to punish the person for the contravention or
failure as if the order had been made by that Court.
50Â
Reports
            (1) Subject to subsection (2), the
Attorney‑General of the Commonwealth shall, as soon as practicable after
each 30 June, lay before each House of the Parliament a report setting
out:
                    (a) the number of proceedings in
which, to his or her knowledge, orders referred to in subsection 49(1) were
made during the year that ended on that date; and
                    (b) particulars of those proceedings,
including particulars of the judgments.
            (2) Subsection (1) does not require the
making of a report in terms that would be inconsistent with any order referred
to in subsection 49(1).
51Â
Application of this Part
                  This Part does not apply in relation to
an order made later than 2 years after the commencement of the Criminal
Proceedings Act 1984 of Victoria.
Part VIIIA—Legal practitioners
55AÂ
Right of barristers and solicitors admitted in federal courts to practise in
those courts
                  A person who has been admitted to
practise as a barrister or solicitor, or as both, under rules made in pursuance
of paragraph (ga) of section 86 of this Act is, subject to those
rules, entitled to practise in any federal court as a barrister or solicitor,
or as both, as the case may be.
55BÂ
Right to practise as barrister or solicitor in federal courts and courts
exercising federal jurisdiction
            (1) Subject to this section, a person who:
                    (a) is for the time being entitled to
practise as a barrister or solicitor, or as both, in the Supreme Court of a State;
or
                    (b) is for the time being entitled,
under a law (including this Act) in force in a Territory, to practise as a
barrister or solicitor, or as both, in the Supreme Court of that Territory;
has the like entitlement to practise in any federal court.
            (2) A person is not entitled to practise in a
federal court as a solicitor by reason of paragraph (b) of the last
preceding subsection unless:
                    (a) he or she has been admitted to
practise as a solicitor or legal practitioner by the Supreme Court of the Territory;
or
                    (b) he or she practises as a solicitor
in the Territory and his or her sole or principal place of business as a
solicitor is in the Territory.
            (3) A person is not entitled to practise as a
barrister or solicitor in a federal court by reason of subsection (1)
unless his or her name appears in the Register of Practitioners kept in
accordance with the next succeeding section as a person entitled to practise in
that capacity.
            (4) A person who is, under subsection (1),
entitled to practise as a barrister or solicitor, or both, in any federal court
has a right of audience:
                    (a) in any court of a State in
relation to the exercise by the court of federal jurisdiction; and
                    (b) in any court of an internal
Territory in relation to the exercise by the court of federal‑type
jurisdiction.
            (5) The Chief Justice of the Supreme Court of
a State or an internal Territory may direct the Registrar or other proper
officer of that Supreme Court to keep a Register of Practitioners for the
purposes of subsection (4) and, where such a Register is kept in a State
or Territory, a person is not entitled, in a court of that State or Territory,
to the right of audience referred to in subsection (4) unless he or she is
registered in that Register.
            (6) Where a Register is kept in a State or
Territory in accordance with subsection (5), a person who satisfies the
Registrar or other officer keeping the Register that he or she is a person
referred to in subsection (4) is entitled to be registered in that
Register.
            (7) Where it is proved to the satisfaction of
the Supreme Court of a State or Territory constituted by 2 or more Judges that
a person who is registered in the Register kept in that State or Territory in
accordance with subsection (5) has been guilty of conduct that justifies
it in so doing, the Supreme Court may order that person’s registration be
cancelled or be suspended for a specified period, but the Supreme Court may, at
any time, order that the registration of the person be restored or that the
suspension be terminated.
            (8) The Registrar or other proper officer of
the Supreme Court shall make such alterations and notations in a Register kept
by him or her as are required by reason of orders of the Supreme Court under subsection (7).
            (9) Notwithstanding subsection (6),
where the registration of a person has been cancelled in accordance with subsection (7)
and has not been restored, or is for the time being suspended, that person is
not entitled again to be registered in the Register except pursuant to an order
under subsection (7).
          (10) In this section:
federal‑type jurisdiction, in relation
to a court of an internal Territory, means jurisdiction conferred on the court
by or under a law of the Commonwealth, but does not include jurisdiction
conferred on the court under an Act providing for the acceptance,
administration or government of that Territory.
55CÂ
Register of Practitioners
            (1) For the purposes of section 55B, the
Chief Executive and Principal Registrar of the High Court shall cause a
Register of Practitioners to be kept at the Registry of the High Court.
            (2) Where it is shown to the satisfaction of
the Chief Executive and Principal Registrar that a person would, but for subsection (3)
of the last preceding section, be for the time being entitled by reason of that
section to practise as a barrister or solicitor, or as both, in federal courts,
the Chief Executive and Principal Registrar shall cause the name of the person,
and the capacity in which he or she is to be entitled to practise, to be
entered in the Register of Practitioners.
            (3) Where, otherwise than by reason of an
order by the High Court under subsection (5), the Chief Executive and
Principal Registrar is satisfied that a person whose name appears in the
Register of Practitioners:
                    (a) is not for the time being entitled
by reason of the last preceding section:
                             (i) to practise in federal
courts; or
                            (ii) to practise in federal
courts in a capacity specified in the Register; or
                    (b) would, but for subsection (3)
of the last preceding section, be for the time being entitled by reason of that
section to practise in federal courts in a capacity not specified in the
Register;
the Chief Executive and Principal Registrar shall cause
the particulars in the Register in relation to the person to be struck out or
amended, as the case requires.
            (4) Where the Chief Executive and Principal
Registrar is satisfied that a person whose name appears in the Register of
Practitioners has died, the Chief Executive and Principal Registrar shall cause
the particulars in the Register in relation to the person to be struck out.
            (5) Where it is proved to the satisfaction of
the High Court that a person whose name appears in the Register of
Practitioners has been guilty of conduct that justifies it in so doing, the
High Court may:
                    (a) order that the person be not
entitled to practise in federal courts and that his or her name be struck off
the Register; or
                    (b) order that the person’s
entitlement to practise in federal courts be suspended for a specified period;
but the High Court may at any time, by order, revoke or
vary such an order.
            (6) Where the High Court makes an order under
the last preceding subsection, the Chief Executive and Principal Registrar
shall cause such entries or amendments to be made in the Register of Practitioners
as are necessary to give effect to, or show the effect of, the order.
            (7) Where the Chief Executive and Principal
Registrar causes an entry to be made in the Register of Practitioners, or
causes an entry in the Register to be struck out or amended, the Registrar
shall cause the ground on which, and the date upon which, the entry is so made,
struck out or amended to be noted in the Register.
55DÂ
Right to practise as barrister or solicitor in Territories
            (1) Subject to this section, a person whose
name is on:
                    (a) the roll of barristers and
solicitors of the High Court kept under the Rules of Court; or
                    (b) the roll of barristers,
solicitors, barristers and solicitors or legal practitioners of the Supreme
Court of a State or Territory;
is entitled to practise as a barrister and solicitor in
any Territory unless the entitlement to practise is suspended under the Rules
of Court, the law of the State or the law in force in the first‑mentioned
Territory (including this Act), as the case may be.
            (3) Where it is proved to the satisfaction of
the Supreme Court of a Territory that a person who is entitled to practise as a
barrister and solicitor in the Territory under subsection (1) has been
guilty of conduct that justifies it in so doing, the Court may:
                    (a) order that the person be not
entitled to practise as a barrister and solicitor in the Territory; or
                    (b) order that the person’s
entitlement to practise as a barrister and solicitor in the Territory be
suspended for a specified period;
but the Court may at any time, by order, revoke or vary
any such order.
            (4) A person who is entitled under subsection (1)
to practise as a barrister and solicitor in a Territory is entitled so to
practise in any court of the Territory and is so entitled whether the court is
sitting within or outside the Territory.
            (5) This section does not affect the
operation of a law of a Territory (whether made before or after the
commencement of this section) in so far as that law provides for the admission
by the Supreme Court of the Territory of persons to practise as barristers or
solicitors, or as both, in the Territory and for the suspension or
discontinuance of their entitlement to practise.
            (6) Where:
                    (a) a law of a Territory contains
provisions of the kind referred to in subsection (5); and
                    (b) under the provisions, a person
who:
                             (i) would, but for this
subsection, be entitled under subsection (1) to practise as a barrister
and solicitor in the Territory;
                            (ii) duly applies to the
Supreme Court of the Territory to be admitted to practise as a barrister and
solicitor in the Territory; and
                           (iii) satisfies the Supreme
Court that he or she is of good fame and character;
                           is entitled, even though the
person resides or practises in a State or another Territory:
                           (iv) to be admitted to
practise as a barrister and solicitor in the Territory; and
                            (v) on being admitted to
practise, to practise in the Territory, subject only to the same conditions and
restrictions as apply in relation to other persons admitted to practise in the
Territory;
subsections (1), (3) and (4) do not apply in relation
to practice in the Territory.
            (7) Nothing in this section applies in
relation to practice in a federal court or to practice in the Northern
Territory, the Territory of Christmas Island or the Territory of Cocos
(Keeling) Islands.
55EÂ
Attorney‑General’s lawyers
            (1) In this section and in sections 55F
and 55G:
Attorney‑General’s lawyer means a
person:
                    (a) whose name is on a roll referred
to in subsection 55D(1); and
                    (b) who is either:
                             (i) the Secretary to the
Attorney‑General’s Department; or
                            (ii) a person in the
Attorney‑General’s Department who is engaged under the Public Service
Act 1999.
            (2) An Attorney‑General’s lawyer acting
in that capacity is entitled:
                    (a) to do everything necessary or
convenient for that purpose; and
                    (b) to practise as a barrister,
solicitor, or barrister and solicitor in any court and in any State or
Territory; and
                    (c) to all the rights and privileges
of so practising;
whether or not he or she is so entitled apart from this
subsection.
            (3) An Attorney‑General’s lawyer acting
in that capacity in a State or Territory is not subject to a law of a State or
Territory that relates to legal practitioners except to the extent that such
laws:
                    (a) impose rights, duties or
obligations on legal practitioners in relation to their clients or to the
courts; or
                    (b) provide for disciplinary
proceedings in relation to the misconduct of legal practitioners.
            (4) Subsection (3) is subject to subsection (6)
and to section 55F (Attorney‑General’s lawyer may act for more than
one party).
            (5) In considering the nature of the rights,
duties and obligations of an Attorney‑General’s lawyer in relation to a
client, regard must be had to the lawyer’s position as a person in the Attorney‑General’s
Department engaged under the Public Service Act 1999.
            (6) An Attorney‑General’s lawyer acting
in that capacity is not subject to a law of a State or Territory that is
prescribed for the purposes of this section.
55FÂ
Attorney‑General’s lawyer may act for more than one party
                  An Attorney‑General’s lawyer may
act in a matter for 2 or more parties who have conflicting interests in the
matter if to do so has been approved by the Attorney‑General:
                    (a) by way of approval in relation to
the particular matter; or
                    (b) by way of written arrangements
covering the circumstances in which an Attorney‑General’s lawyer may so
act.
55GÂ
Commonwealth may charge for services of Attorney‑General’s lawyer
            (1) The Commonwealth may charge fees:
                    (a) in relation to services of a legal
professional nature provided by an Attorney‑General’s lawyer in his or
her capacity as a person in the Attorney‑General’s Department engaged
under the Public Service Act 1999; and
                    (b) for disbursements incurred by the
Commonwealth in the course of providing those services.
            (2) If the Commonwealth has charged a client
an amount under subsection (1), the amount may be recovered by the client
as costs incurred by the client.
55HÂ
Lawyers employed by a State, the Australian Capital Territory or the Northern
Territory
            (1) If:
                    (a) services of a legal professional
nature are provided to a person or body (the client) by an
officer of, or a person employed in, a Government Department of a State, of the
Australian Capital Territory or of the Northern Territory in his or her
capacity as such an officer or employee in the course of acting for the client
in proceedings in a federal court or in a tribunal established by a law of the
Commonwealth; and
                    (b) the Department charges the client
for any of the services or for disbursements incurred in connection with any of
the services;
the amount charged may be recovered by the client as costs
incurred by the client in the proceedings.
            (2) If an amount charged as mentioned in paragraph (1)(b)
is not an amount of disbursement then, for the following purposes:
                    (a) an application to a federal court,
or to a tribunal established by a law of the Commonwealth, for the award of
costs;
                    (b) the taxation of those costs;
                    (c) the recovery of those costs by the
client;
the amount charged is taken to have been paid by the
client.
Part VIIIB—The Australian Government Solicitor
Division 1—Definitions
55IÂ
Definitions
                  In this Part, unless the contrary
intention appears:
AGS lawyer means:
                    (a) the CEO; or
                    (b) an employee of the AGS whose name
is on a roll referred to in subsection 55D(1).
CEO means the Chief Executive Officer of the
AGS.
company means a body corporate that is
incorporated, or taken to be incorporated, under the Corporations Act 2001.
Finance Minister means the Minister for
Finance and Administration.
State includes the Australian Capital
Territory and the Northern Territory.
Territory does not include the Australian
Capital Territory or the Northern Territory.
Division 2—Establishment and functions of the Australian Government
Solicitor
55JÂ
Establishment of the Australian Government Solicitor
                  This Division establishes the Australian
Government Solicitor.
55KÂ
Functions
                  The AGS has the following functions:
                    (a) to provide legal services and
related services to the Commonwealth;
                    (b) to provide legal services and
related services to persons and bodies for any purpose for which the
Commonwealth has power to make laws;
                    (c) to provide legal services and
related services, upon the request of the executive government of a State or of
Norfolk Island, to persons and bodies mentioned in subsection 55N(2);
                    (d) to provide legal services and
related services to the Territories;
                    (e) to perform any function conferred
on it by this Act or any other Act;
                     (f) to do anything incidental to any
of its functions.
55LÂ
Powers
            (1) The AGS has power to do all things
necessary or convenient to be done for or in connection with the performance of
its functions.
            (2) Without limiting subsection (1), the
AGS has power to do any of the following:
                    (a) acquire, hold and dispose of real
and personal property;
                    (b) form, or participate in the
formation of, companies;
                    (c) enter into partnerships;
                    (d) enter into contracts, agreements
or arrangements;
                    (e) raise money, by borrowing or
otherwise;
                     (f) obtain goods or services on
credit from any person by the use of a credit card.
55MÂ
Constitution
                  The AGS:
                    (a) is a body corporate; and
                    (b) may have a seal; and
                    (c) may sue and be sued.
Note:Â Â Â Â Â Â Â Â Â The Commonwealth Authorities and Companies
Act 1997 applies to the AGS. That Act deals with matters relating to
Commonwealth authorities, including reporting and accountability, banking and
investment, and conduct of officers.
55NÂ
Persons and bodies for whom the AGS may provide services
            (1) In performing its functions, the AGS may
provide services to the following:
                    (a) the Commonwealth;
                    (b) a person suing or being sued on
behalf of the Commonwealth;
                    (c) a Minister of the Commonwealth;
                    (d) a body established by an Act or
regulations or by a law of a Territory;
                    (e) an officer of, or a person
employed by:
                             (i) the Commonwealth; or
                            (ii) a body established by
an Act or regulations or by a law of a Territory;
                     (f) a person holding office under an
Act or a law of a Territory;
                    (g) a member of the Defence Force;
                    (h) a company in which the
Commonwealth has a controlling interest (including a company in which the
Commonwealth has a controlling interest through one or more interposed
Commonwealth authorities or Commonwealth companies);
                     (i) a person who has at any time been
a person referred to in paragraph (c), (e), (f) or (g).
Note:Â Â Â Â Â Â Â Â Â For Territory see subsection (5).
            (2) In performing its functions, the AGS may
provide services to the following persons and bodies if the AGS receives a
request to do so from the executive government of the State concerned or of
Norfolk Island (as the case requires):
                    (a) a State or Norfolk Island;
                    (b) a person suing or being sued on
behalf of a State or of Norfolk Island;
                    (c) a Minister for a State or a member
of the Government of Norfolk Island;
                    (d) a body established by a law of a
State or of Norfolk Island;
                    (e) a person employed by:
                             (i) a State or Norfolk
Island; or
                            (ii) a body established by
a law of a State or of Norfolk Island;
                     (f) a person holding office under a
law of a State or of Norfolk Island;
                    (g) a company in which a State or
Norfolk Island has a controlling interest (including a company in which the
State or Norfolk Island has a controlling interest through one or more
interposed State or Norfolk Island authorities or State or Norfolk Island
companies).
Note:Â Â Â Â Â Â Â Â Â For State see section 55I.
            (3) The AGS may provide services to a person
or body, or class of persons or bodies, not referred to in subsection (1)
or (2) if:
                    (a) the Attorney‑General
requests the AGS to do so; and
                    (b) to do so would be within the
functions of the AGS.
            (4) The AGS may provide services to a person
or body, or class of persons or bodies, not referred to in subsection (1)
or (2) if:
                    (a) the CEO so determines; and
                    (b) to do so would be within the
functions of the AGS.
            (5) In this section:
Territory does not include the Australian
Capital Territory, the Northern Territory or Norfolk Island.
55PÂ
AGS may charge for services
            (1) The AGS may charge fees:
                    (a) in relation to services provided
by it in the course of performing its functions; and
                    (b) for disbursements incurred by the
AGS in the course of providing those services.
            (2) If the AGS has charged a client an amount
under subsection (1), the amount may be recovered by the client as costs
incurred by the client.
Division 3—Capacity of AGS and AGS lawyers to act
55QÂ
AGS lawyers
            (1) An AGS lawyer acting in that capacity is
entitled:
                    (a) to do everything necessary or
convenient for that purpose; and
                    (b) to practise as a barrister,
solicitor, or barrister and solicitor in any court and in any State or
Territory; and
                    (c) to all the rights and privileges
of so practising;
whether or not he or she is so entitled apart from this
subsection.
            (2) An AGS lawyer acting in that capacity in
a State or Territory is not subject to a law of a State or Territory that
relates to legal practitioners except to the extent that such laws:
                    (a) impose rights, duties, or
obligations on legal practitioners in relation to their clients or to the courts;
or
                    (b) provide for disciplinary
proceedings in relation to the misconduct of legal practitioners.
            (3) Subsection (2) is subject to subsection (5)
and to section 55R (AGS may act for more than one party).
            (4) In considering the nature of the rights,
duties and obligations of an AGS lawyer in relation to a client, regard must be
had to the lawyer’s position as an employee of the AGS.
            (5) Neither the AGS, nor an AGS lawyer acting
in that capacity, is subject to a law of a State or Territory that is prescribed
for the purposes of this section.
55RÂ
AGS may act for more than one party
                  The AGS may act in a matter for 2 or
more parties who have conflicting interests in the matter if to do so has been
approved by the Attorney‑General:
                    (a) by way of approval in relation to
the particular matter; or
                    (b) by way of written arrangements
covering the circumstances in which the AGS may so act.
Division 4—Appointment and terms and conditions of CEO and staff
55SÂ
Chief Executive Officer of the AGS
            (1) There is to be a Chief Executive Officer
(the CEO) of the AGS.
            (2) The CEO is the director of the AGS for
the purposes of the Commonwealth Authorities and Companies Act 1997, and
has the function of managing the AGS.
55TÂ
Appointment of CEO
            (1) The CEO is to be appointed by instrument
in writing signed by the Attorney‑General and the Finance Minister.
            (2) The CEO must be a person whose name is on
a roll referred to in subsection 55D(1).
            (3) The appointment is to be on a full‑time
basis.
            (4) The CEO holds office for a period of up
to 5 years specified in the instrument of appointment, and is eligible for re‑appointment.
            (5) An appointment under this section is not
affected by any defect or irregularity in or in connection with the
appointment.
55UÂ
Terms and conditions of appointment
            (1) The CEO’s appointment is subject to any
terms and conditions set out in the instrument of appointment.
            (2) The office of CEO is a principal
executive office for the purposes of the Remuneration Tribunal Act 1973.
55VÂ
Resignation
                  The CEO may resign from office by giving
the Attorney‑General and the Finance Minister a signed notice of
resignation.
55WÂ
Termination of CEO’s appointment
                  The Attorney‑General and the
Finance Minister (acting jointly) may terminate the CEO’s appointment at any
time, by instrument in writing.
55XÂ
CEO must disclose interests
            (1) The CEO must give written notice to the
Attorney‑General and the Finance Minister of any interest that the CEO
has or acquires if the interest could conflict with the proper performance of
the CEO’s functions.
            (2) In subsection (1), interest
is not limited to a pecuniary interest.
55YÂ
Outside employment
                  The CEO must not, except with the
approval of the Attorney‑General and the Finance Minister (acting
jointly), engage in paid employment outside the duties of the CEO’s office.
55ZÂ
Acting CEO
            (1) The Attorney‑General and the
Finance Minister (acting jointly) may appoint a person to act as CEO:
                    (a) if there is a vacancy in the
office of CEO, whether or not an appointment has previously been made to the
office; or
                    (b) during any period, or during all
periods, when the CEO is absent from duty or from Australia or is, for any
reason, unable to perform the duties of the office.
            (2) Anything done by or in relation to a person
purporting to act under this section is not invalid merely because:
                    (a) the occasion for the appointment
had not arisen; or
                    (b) there was a defect or irregularity
in connection with the appointment; or
                    (c) the appointment had ceased to have
effect; or
                    (d) the occasion to act had not arisen
or had ceased.
55ZAÂ
Delegation
                  The CEO may delegate to an employee of
the AGS all or any of the CEO’s powers.
55ZBÂ
Staff and consultants
            (1) The CEO may, on behalf of the AGS, employ
persons as staff of the AGS.
            (2) The terms and conditions of employment of
staff are to be determined by the CEO in writing.
            (3) The CEO may, on behalf of the AGS, engage
persons as consultants to provide services to the AGS.
Division 5—Money
55ZCÂ
Exemption from State and Territory taxation
                  The AGS is not subject to taxation under
a law of a State or Territory other than a law prescribed for the purposes of
this section.
55ZDÂ
AGS must make tax‑equivalent payments to the Commonwealth
            (1) The Attorney‑General and the Finance
Minister (acting jointly) may inform the CEO in writing of arrangements that
are to apply to the AGS in relation to a tax‑equivalent payment to be
made by the AGS to the Commonwealth in respect of each financial year.
            (2) The amount of the payment to be made
under the arrangements is to be worked out having regard to the purpose of
ensuring that the AGS does not enjoy net competitive advantages over its
competitors because of:
                    (a) the operation of section 55ZC
(exemption from State and Territory taxation); or
                    (b) any other exemption from taxation
liability applying to the AGS.
            (3) The AGS must pay the amount to the
Commonwealth within 4 months after the end of the financial year concerned,
unless the Attorney‑General and the Finance Minister (acting jointly)
determine a period other than 4 months within which the amount, or a specified
part of the amount, must be paid.
55ZEÂ
Corporate governance requirements
            (1) The Attorney‑General and the
Finance Minister (acting jointly) may, after consultation with the CEO, inform
the CEO in writing of corporate governance arrangements that are to apply to
the AGS.
            (2) If so informed, the CEO must ensure that
the AGS complies with the arrangements.
            (3) Without limiting subsection (1),
corporate governance arrangements may require the AGS:
                    (a) to pay a dividend to the
Commonwealth in respect of a period specified in the arrangements; or
                    (b) to make a payment of a specified
amount to the Commonwealth for the purpose of ensuring that the AGS does not
enjoy net competitive advantages over its competitors by virtue of its public
sector ownership.
            (4) The AGS must pay to the Commonwealth any
amount required to be paid under this section.
Part VIIIC—Attorney‑General’s Legal Services Directions
55ZFÂ
Attorney‑General may issue directions
            (1) The Attorney‑General may issue
directions (Legal Services Directions):
                    (a) that are to apply generally to
Commonwealth legal work; or
                    (b) that are to apply to Commonwealth
legal work being performed, or to be performed, in relation to a particular
matter.
            (2) The Attorney‑General may publish or
give notice of Legal Services Directions in any manner the Attorney‑General
considers appropriate.
            (3) In this section:
Commonwealth legal work means:
                    (a) any work performed by or on behalf
of the AGS in the performance of its functions; or
                    (b) any legal work performed by a
person for any of the following:
                             (i) the Commonwealth;
                            (ii) a body established by
an Act or regulations or by a law of a Territory (other than the Australian Capital
Territory, the Northern Territory or Norfolk Island);
                           (iii) a company in which the
Commonwealth has a controlling interest (including a company in which the
Commonwealth has a controlling interest through one or more interposed
Commonwealth authorities or Commonwealth companies);
                           (iv) other persons or bodies
referred to in subsection 55N(1), to the extent that the work relates to the
person’s or body’s performance of a Commonwealth or Territory function.
55ZGÂ
Compliance with Legal Services Directions
            (1) The following persons or bodies must
comply with Legal Services Directions that have been published and with Legal
Services Directions of which the person or body has been notified:
                    (a) a person or body referred to in
subsection 55N(1);
                    (b) a person or body referred to in
subsection 55N(2), in relation to a matter, if the AGS is acting for the person
or body in that matter;
                    (c) a person or body in respect of
whom the Attorney‑General has made a request under subsection 55N(3), in
relation to a matter, if the AGS is acting for the person or the body in that
matter;
                    (d) a person or body in respect of
whom the CEO has made a determination under subsection 55N(4), in relation to a
matter, if the AGS is acting for the person or body in that matter;
                    (e) the AGS;
                     (f) a legal practitioner or firm of
legal practitioners, in relation to a matter, if the legal practitioner or firm
is acting for a person or body referred to in subsection 55N(1) in that matter.
            (2) Compliance with a Legal Services
Direction is not enforceable except by, or upon the application of, the
Attorney‑General.
            (3) The issue of non‑compliance with a
Legal Services Direction may not be raised in any proceeding (whether in a
court, tribunal or other body) except by, or on behalf of, the Commonwealth.
55ZHÂ
Legal Services Directions and legal professional privilege
            (1) If a Legal Services Direction requires a
person to provide any information, or produce a document or record, to another
person, the person must not refuse to comply with the Direction on the ground
of legal professional privilege or of any other duty of confidence.
            (2) A person performing Commonwealth legal
work (within the meaning of subsection 55ZF(3)) may provide information or
produce a document or record relating to that work to the Attorney‑General
or to a person authorised by the Attorney‑General for that purpose.
            (3) If:
                    (a) a person provides information or
produces a document or record under subsection (2); and
                    (b) the person would, apart from this
subsection, be breaching legal professional privilege or any other duty of
confidence in so doing;
the person is taken, for all purposes, not to have
breached legal professional privilege or the duty of confidence in so providing
the information or producing the document or record.
            (4) If a communication that is the subject of
legal professional privilege is disclosed under subsection (1) or (2),
then, in spite of the disclosure, privilege is taken not to have been waived in
respect of the communication.
55ZIÂ
Anything done under Legal Services Directions not actionable
            (1) The Attorney‑General is not liable
to an action or other proceeding, whether civil or criminal, for or in relation
to an act done or omitted to be done in compliance, or purported compliance,
with a Legal Services Direction.
            (2) A person (other than the Attorney‑General)
is not liable to an action or other proceeding, whether civil or criminal, for
or in relation to an act done or omitted to be done by the person in
compliance, or in good faith in purported compliance, with a Legal Services
Direction.
Part IX—Suits by and against the Commonwealth and the States
56Â
Suits against the Commonwealth
            (1) A person making a claim against the
Commonwealth, whether in contract or in tort, may in respect of the claim bring
a suit against the Commonwealth:
                    (a) in the High Court;
                    (b) if the claim arose in a State or
Territory—in the Supreme Court of that State or Territory or in any other court
of competent jurisdiction of that State or Territory; or
                    (c) if the claim did not arise in a
State or Territory—in the Supreme Court of any State or Territory or in any
other court of competent jurisdiction of any State or Territory.
            (2) For the purposes of paragraphs (b)
and (c) of the last preceding subsection:
                    (a) any court exercising jurisdiction
at any place in the capital city of a State, or in the principal or only city
or town of a Territory, that would be competent to hear the suit if the
Commonwealth were, or had at any time been, resident in that city or town, or
in a particular area in that city or town, is a court of competent
jurisdiction; and
                    (b) any other court is not a court of
competent jurisdiction if its competence to hear the suit would depend upon the
place where the Commonwealth resides or carries on business or at any time
resided or carried on business.
57Â
Suits by a State against the Commonwealth
                  Any State making any claim against the
Commonwealth, whether in contract or in tort, may in respect of the claim bring
a suit against the Commonwealth in the High Court.
58Â
Suits against a State in matters of federal jurisdiction
                  Any person making any claim against a
State, whether in contract or in tort, in respect of a matter in which the High
Court has original jurisdiction or can have original jurisdiction conferred on
it, may in respect of the claim bring a suit against the State in the Supreme
Court of the State, or (if the High Court has original jurisdiction in the
matter) in the High Court.
59Â
Suits between States
                  Any State making any claim against
another State may in respect of the claim bring a suit against that State in
the High Court.
60Â
Injunction against a State and its officers
                  In a suit against a State brought in the
High Court, the High Court may grant an injunction against the State and
against all officers of the State and persons acting under the authority of the
State, and may enforce the injunction against all such officers and persons.
61Â
Suits by Commonwealth
                  Suits on behalf of the Commonwealth may
be brought in the name of the Commonwealth by the Attorney‑General or by
any person appointed by him or her in that behalf.
62Â
Suits by a State
                  Suits on behalf of a State may be
brought in the name of the State by the Attorney‑General of the State, or
by any person appointed by him or her in that behalf.
63Â
Service of process when Commonwealth or State is party
                  Where the Commonwealth or a State is a
Party to a suit, all process in the suit required to be served upon that party
shall be served upon the Attorney‑General of the Commonwealth or of the
State, as the case may be, or upon some person appointed by him or her to
receive service.
64Â
Rights of parties
                  In any suit to which the Commonwealth or
a State is a party, the rights of parties shall as nearly as possible be the
same, and judgment may be given and costs awarded on either side, as in a suit
between subject and subject.
65Â No
execution against Commonwealth or a State
                  No execution or attachment, or process
in the nature thereof, shall be issued against the property or revenues of the
Commonwealth or a State in any such suit; but when any judgment is given
against the Commonwealth or a State, the Registrar or other appropriate officer
shall give to the party in whose favour the judgment is given a certificate in
the form of the Schedule, or to a like effect.
66Â
Performance by Commonwealth or State
                  On receipt of the certificate of a
judgment against the Commonwealth or a State the Minister for Finance or the
Treasurer of the State as the case may be shall satisfy the judgment out of
moneys legally available.
67Â
Execution by Commonwealth or State
                  When in any such suit a judgment is
given in favour of the Commonwealth or of a State and against any person, the
Commonwealth or the State, as the case may be, may enforce the judgment against
that person by process of extent, or by such execution, attachment, or other
process as could be had in a suit between subject and subject.
Part IXA—Suits relating to the Northern
Territory
67AÂ
Interpretation
                  In this part, unless the contrary
intention appears:
Commonwealth includes a person suing or being
sued on behalf of the Commonwealth.
Territory means the Northern Territory, and
includes a person suing or being sued on behalf of the Territory.
67BÂ
Suits between Commonwealth and Northern Territory
                  The Commonwealth may bring a suit
against the Territory, and the Territory may bring a suit against the
Commonwealth, in the Supreme Court of the Territory in respect of a cause of
any description, whether at law or in equity, including (but without limiting
the generality of the foregoing) a claim in tort.
67CÂ
Jurisdiction of Supreme Court of Territory
                  The jurisdiction of the Supreme Court of
the Territory extends to:
                    (a) matters in which an injunction or
declaratory order or writ of mandamus, prohibition or certiorari is sought by
the Commonwealth against the Territory or an officer of the Territory;
                    (b) matters in which a writ of
mandamus or prohibition or an injunction is sought against the Commonwealth or
an officer of the Commonwealth, being matters arising in, or under the laws in
force in, the Territory; and
                    (c) matters in which the Supreme Court
of the Territory would, but for the repeal of the Northern Territory
Supreme Court Act 1961, have jurisdiction by virtue of subsection 15(2) of
that Act.
67DÂ
Prosecution of indictable offences in Supreme Court of Territory
                  Nothing in this or any other Act shall
be taken to limit the power of the Legislative Assembly of the Territory in
relation to the making of laws relating to the prosecution in the Supreme Court
of the Territory of indictable offences against laws in force in the Territory
under or by virtue of the Northern Territory (Self‑Government) Act
1978.
67EÂ No
execution against Territory
                  No execution or attachment, or process
in the nature thereof, shall be issued against the property or moneys of the
Territory.
67FÂ
Effect of this Part
            (1) Subject to section 67D, nothing in
this part shall be taken to limit the operation of any other provision of this
Act.
            (2) The jurisdiction conferred on the Supreme
Court of the Territory by this Part is in addition to, and not in derogation
of, any jurisdiction otherwise conferred on that Court.
Part X—Criminal jurisdiction
Division 1—Application of laws
68Â
Jurisdiction of State and Territory courts in criminal cases
            (1) The laws of a State or Territory
respecting the arrest and custody of offenders or persons charged with
offences, and the procedure for:
                    (a) their summary conviction; and
                    (b) their examination and commitment
for trial on indictment; and
                    (c) their trial and conviction on
indictment; and
                    (d) the hearing and determination of
appeals arising out of any such trial or conviction or out of any proceedings
connected therewith;
and for holding accused persons to bail, shall, subject to
this section, apply and be applied so far as they are applicable to persons who
are charged with offences against the laws of the Commonwealth in respect of
whom jurisdiction is conferred on the several courts of that State or Territory
by this section.
            (2) The several Courts of a State or
Territory exercising jurisdiction with respect to:
                    (a) the summary conviction; or
                    (b) the examination and commitment for
trial on indictment; or
                    (c) the trial and conviction on
indictment;
of offenders or persons charged with offences against the
laws of the State or Territory, and with respect to the hearing and
determination of appeals arising out of any such trial or conviction or out of
any proceedings connected therewith, shall, subject to this section and to
section 80 of the Constitution, have the like jurisdiction with respect to
persons who are charged with offences against the laws of the Commonwealth.
            (4) The several Courts of a State or
Territory exercising the jurisdiction conferred upon them by this section
shall, upon application being made in that behalf, have power to order, upon
such terms as they think fit, that any information laid before them in respect
of an offence against the laws of the Commonwealth shall be amended so as to
remove any defect either in form or substance contained in that information.
            (5) Subject to subsection (5A):
                    (a) the jurisdiction conferred on a
court of a State or Territory by subsection (2) in relation to the summary
conviction of persons charged with offences against the laws of the
Commonwealth; and
                    (b) the jurisdiction conferred on a
court of a State or Territory by virtue of subsection (7) in relation to
the conviction and sentencing of persons charged with offences against the laws
of the Commonwealth in accordance with a provision of the law of that State or
Territory of the kind referred to in subsection (7);
is conferred notwithstanding any limits as to locality of
the jurisdiction of that court under the law of that State or Territory.
         (5A) A court of a State on which jurisdiction in
relation to the summary conviction of persons charged with offences against the
laws of the Commonwealth is conferred by subsection (2) may, where it is
satisfied that it is appropriate to do so, having regard to all the
circumstances, including the public interest, decline to exercise that
jurisdiction in relation to an offence against a law of the Commonwealth
committed in another State.
         (5B) In subsection (5A), State
includes Territory.
         (5C) The jurisdiction conferred on a court of a
State or Territory by subsection (2) in relation to:
                    (a) the examination and commitment for
trial on indictment; and
                    (b) the trial and conviction on
indictment;
of persons charged with offences against the laws of the
Commonwealth, being offences committed elsewhere than in a State or Territory
(including offences in, over or under any area of the seas that is not part of
a State or Territory), is conferred notwithstanding any limits as to locality
of the jurisdiction of that court under the law of that State or Territory.
            (6) Where a person who has committed, or is
suspected of having committed, an offence against a law of the Commonwealth,
whether in a State or Territory or elsewhere, is found within an area of waters
in respect of which sovereignty is vested in the Crown in right of the
Commonwealth, he or she may be arrested in respect of the offence in accordance
with the provisions of the law of any State or Territory that would be
applicable to the arrest of the offender in that State or Territory in respect
of such an offence committed in that State or Territory, and may be brought in
custody into any State or Territory and there dealt with in like manner as if
he or she had been arrested in that State or Territory.
            (7) The procedure referred to in subsection (1)
and the jurisdiction referred to in subsection (2) shall be deemed to
include procedure and jurisdiction in accordance with provisions of a law of a
State or Territory under which a person who, in proceedings before a court of
summary jurisdiction, pleads guilty to a charge for which he or she could be
prosecuted on indictment may be committed to a court having jurisdiction to try
offences on indictment to be sentenced or otherwise dealt with without being
tried in that court, and the reference in subsections (1) and (2) to any
such trial or conviction shall be read as including any conviction or
sentencing in accordance with any such provisions.
            (8) Except as otherwise specifically provided
by an Act passed after the commencement of this subsection, a person may be
dealt with in accordance with provisions of the kind referred to in subsection (7)
notwithstanding that, apart from this section, the offence would be required to
be prosecuted on indictment, or would be required to be prosecuted either
summarily or on indictment.
            (9) Where a law of a State or Territory of
the kind referred to in subsection (7) refers to indictable offences, that
reference shall, for the purposes of the application of the provisions of the
law in accordance with that subsection, be read as including a reference to an
offence against a law of the Commonwealth that may be prosecuted on indictment.
          (10) Where, in accordance with a procedure of
the kind referred to in subsection (7), a person is to be sentenced by a
court having jurisdiction to try offences on indictment, that person shall, for
the purpose of ascertaining the sentence that may be imposed, be deemed to have
been prosecuted and convicted on indictment in that court.
          (11) Nothing in this section excludes or limits
any power of arrest conferred by, or any jurisdiction vested or conferred by,
any other law, including an Act passed before the commencement of this
subsection.
Division 2—Indictable offences
69 Â Indictments
            (1) Indictable offences against the laws of
the Commonwealth shall be prosecuted by indictment in the name of the Attorney‑General
of the Commonwealth or of such other person as the Governor‑General
appoints in that behalf.
            (2) Any such appointment shall be by
commission in the Queen’s name, and may extend to the whole Commonwealth or to
any State or part of the Commonwealth.
         (2A) Nothing in subsection (1):
                    (a) affects the power of the Director
of Public Prosecutions to prosecute by indictment in his or her official name;
or
                    (b) affects, or shall be taken to have
affected, the power of a Special Prosecutor to prosecute by indictment in his
or her own name;
indictable offences against the laws of the Commonwealth.
            (3) Any person committed for trial for an
offence against the laws of the Commonwealth may at any time within fourteen
days after committal and before the jury is sworn apply to a Justice in
Chambers or to a Judge of the Supreme Court of a State for the appointment of
counsel for his or her defence. If it be found to the satisfaction of the
Justice or Judge that such person is without adequate means to provide defence
for himself or herself, and that it is desirable in the interests of justice
that such an appointment should be made, the Justice or Judge shall certify
this to the Attorney‑General, who may if he or she thinks fit thereupon
cause arrangements to be made for the defence of the accused person or refer
the matter to such legal aid authorities as the Attorney‑General considers
appropriate. Upon committal the person committed shall be supplied with a copy
of this subsection.
70Â
Offences committed in several States
                  When an offence against the laws of the
Commonwealth is begun in one State or part of the Commonwealth and completed in
another, the offender may be dealt with tried and punished in either State or
part in the same manner as if the offence had been actually and wholly
committed therein.
70AÂ
Indictable offence not committed in a State
                  The trial on indictment of an offence
against a law of the Commonwealth not committed within any State and not being
an offence to which section 70 applies may be held in any State or
Territory.
71Â
Discharge of persons committed for trial
            (1) When any person is under commitment upon
a charge of an indictable offence against the laws of the Commonwealth, the
Attorney‑General or such other person as the Governor‑General
appoints in that behalf may decline to proceed further in the prosecution, and
may, if the person is in custody, by warrant under his or her hand direct the
discharge of the person from custody, and he or she shall be discharged
accordingly.
            (2) Nothing in subsection (1):
                    (a) affects the power under subsection
9(4) of the Director of Public Prosecutions Act 1983 of the Director of
Public Prosecutions; or
                    (b) affects, or shall be taken to have
affected, the power under subsection 8(2) of the Special Prosecutors Act
1982 of a Special Prosecutor.
71AÂ
Trial of indictable offence without preliminary examination
            (1) Notwithstanding anything contained in
this Part, or any provision of any law of a State or Territory, the Attorney‑General
of the Commonwealth may file an indictment for any indictable offence against
the laws of the Commonwealth in the High Court or the Supreme Court of a State
or Territory, without examination or commitment for trial.
            (2) Upon an indictment being so filed, the
Court or a Justice or Judge thereof, may cause a summons to be issued to the
defendant to appear at the time and place mentioned in the summons there to
answer the charge mentioned in the indictment, or may issue a warrant for the
defendant’s arrest, and may hold the defendant in custody or admit the
defendant to bail.
            (3) Nothing in subsection (1) affects
the power under subsection 6(2D) of the Director of Public Prosecutions Act
1983 of the Director of Public Prosecutions.
Division 3—Appeals
72Â
Reservation of points of law
            (1) When any person is indicted for an
indictable offence against the laws of the Commonwealth, the Court before which
he or she is tried shall on the application by or on behalf of the accused
person made before verdict, and may in its discretion either before or after
judgment without such application, reserve any question of law which arises on
the trial for the consideration of a Full Court of the High Court or if the
trial was had in a Court of a State of a Full Court of the Supreme Court of the
State.
            (2) If the accused person is convicted, and a
question of law has been so reserved before judgment, the Court before which he
or she was tried may either pronounce judgment on the conviction and respite
execution of the judgment, or postpone the judgment until the question has been
considered and decided, and may either commit the person convicted to prison or
admit him or her to bail on recognizance with or without sureties, and in such
sum as the Court thinks fit, conditioned to appear at such time and place as
the Court directs and to render himself or herself in execution or to receive
judgment as the case may be.
            (3) The presiding judge is thereupon required
to state in a case signed by him or her the question of law so reserved with
the special circumstances upon which it arose, and if it be reserved for the
High Court the case shall be transmitted to the Registry of the High Court.
73Â
Hearing
                  Any question so reserved shall be heard
and determined after argument by and on behalf of the Crown and the convicted
person or persons if they desire that the question shall be argued, and the
Court may:
                    (a) affirm the judgment given at the
trial; or
                    (b) set aside the verdict and judgment
and order a verdict of not guilty or other appropriate verdict to be entered;
or
                    (c) arrest the judgment; or
                    (d) amend the judgment; or
                    (e) order a new trial; or
                     (f) make such other order as justice
requires;
or the Court may send the case back to be amended or
restated.
74Â
Effect of order of Full Court
            (1) The proper officer of the Court by which
the question reserved was determined shall certify the judgment of the Court
under his or her hand and the seal of the Court to the proper officer of the
Court in which the trial was had, who shall enter the same on the original
record.
            (2) If the convicted person is in custody,
the proper officer of the Court by which the question reserved was determined
shall also forthwith transmit another certificate of the same tenor under his
or her hand and the seal of the Court to the superintendent of the prison or
other person who has the custody of the convicted person. The certificate shall
be a sufficient warrant to all persons for the execution of the judgment if it
is certified to have been affirmed or as it is certified to be amended, and
execution shall thereupon be executed upon the judgment as affirmed or amended:
And if the judgment is set aside or arrested the certificate shall be a
sufficient warrant for the discharge of the convicted person from further
imprisonment under that judgment, and in that case the superintendent is
required forthwith to discharge him or her from imprisonment under that
judgment, and if he or she is at large on bail the recognizance of bail shall
be vacated at the next criminal sitting of the Court in which the trial was
had: And if that Court is directed to pronounce judgment, judgment shall be
pronounced at the next criminal sitting of the Court at which the convicted
person appears to receive judgment.
75Â
Certain errors not to avoid conviction
                  A conviction cannot be set aside upon
the ground of the improper admission of evidence if it appears to the Court
that the evidence was merely of a formal character or not material, nor upon
the ground of the improper admission of evidence adduced for the defence.
76Â
Appeal from arrest of judgment
            (1) When the Court before which an accused
person is convicted on indictment for an offence against the laws of the
Commonwealth arrests judgment at the trial, the Court shall on the application
of counsel for the prosecution state a case for the consideration of a Full
Court of the High Court or a Full Court of the Supreme Court of the State in
manner hereinbefore provided.
            (2) On the hearing of the case the Full Court
may affirm or reverse the order arresting judgment. If the order is reversed
the Court shall direct that judgment be pronounced upon the offender, and he or
she shall be ordered to appear at such time and place as the Court directs to
receive judgment, and any Justice of the Peace may issue his or her warrant for
the arrest of the offender.
            (3) An offender so arrested may be admitted
to bail by order of the Court which may be made in Court or in Chambers, at the
time when the order directing judgment to be pronounced is made or afterwards.
77Â No
other appeal
                  Except as aforesaid, and except in the
case of error apparent on the face of the proceedings, an appeal shall not
without the special leave of the High Court be brought to the High Court from a
judgment or sentence pronounced on the trial of a person charged with an
indictable offence against the laws of the Commonwealth.
Part XA—Procedure of the High Court
Division 1—Trials
77AÂ
Trial without jury
                  In every suit in the High Court, unless
the Court otherwise orders, the trial shall be by a Justice without a jury.
77BÂ
Power of High Court to direct trial with jury
                  The High Court may, in any suit in which
the ends of justice appear to render it expedient to do so, direct the trial
with a jury of the suit or of an issue of fact, and may for that purpose make
all such orders, issue all such writs and cause all such proceedings to be had
and taken as the Court thinks necessary, and upon the finding of the jury the
Court may give such decision and pronounce such judgment as the case requires.
77CÂ
Trial of an issue and new trials
            (1) The High Court may, in any case in which
the Court directs the trial of an issue or grants a new trial, impose such
conditions on a party, and direct such submissions to be made by a party, for
the purpose of the trial or new trial as are just.
            (2) Where the High Court grants a new trial,
the Court may:
                    (a) grant the new trial, either
generally or on particular issues only, as the Court thinks fit; and
                    (b) order that testimony of a witness
examined at the former trial may be used in the new trial in such manner as is
specified in the order.
77DÂ
Juries
            (1) Subject to subsection (4) and to any
other law of the Commonwealth, the laws in force in a State or Territory
relating to:
                    (a) the qualification of jurors;
                    (b) the preparation of jury lists and
jury panels;
                    (c) the summoning, attendance and impanelling
of juries;
                    (d) the number of jurors;
                    (e) the right of challenge;
                     (f) the discharge of juries;
                    (g) the disagreement of jurors;
                    (h) the remuneration of jurors; and
                     (j) other matters concerning jurors
after they have been summoned, appointed or sworn;
that apply for the purposes of the trial of civil
proceedings in the Supreme Court of that State or Territory extend and shall be
applied in civil matters in which a trial is had with a jury in the High Court
in that State or Territory.
            (2) Subject to subsection (4) and to any
other law of the Commonwealth, the laws in force in a State or Territory
relating to the matters mentioned in paragraphs (1)(a) to (j), inclusive,
that apply for the purposes of the trial of criminal matters in the Supreme
Court of that State or Territory extend and shall be applied in the trial of
indictable offences in the High Court in that State or Territory.
            (3) For the purposes of a trial of a civil or
criminal matter in the High Court in a State or Territory as mentioned in subsection (1)
or (2), the lists of jurors made for the purposes of the Supreme Court of the
State or Territory shall be deemed to have been made as well for the purposes
of the High Court.
            (4) The precept for a jury shall be issued by
the Registrar or such other officer of the High Court as the Court directs, and
the Marshal shall prepare the jury panels and summon jurors.
            (5) An officer of a State or Territory who
has the custody of a jury list shall furnish a copy of the list to the proper
officer of the Commonwealth on demand and on payment of a reasonable fee.
Division 2—Evidence
77EÂ
Production of books
            (1) The High Court may in any suit order a
party to produce any books or writings in his or her possession or power that
contain evidence pertinent to any issue in the suit.
            (2) If a party fails to comply with an order
under subsection (1), the High Court may:
                    (a) where the party is the
plaintiff—dismiss the suit; or
                    (b) where the party is the
defendant—give judgment against the defendant as by default.
77F Â Oaths
and affirmations
            (1) The High Court may require and administer
all necessary oaths and affirmations.
77GÂ
Orders and commissions for examination of witnesses
                  The High Court may, in any cause pending
in the Court and at any stage of the proceedings:
                    (a) order the examination of a person
upon oath orally or on interrogatories before the Court, an officer of the
Court or another person at any place within Australia; or
                    (b) order that a commission issue to a
person, either within or beyond Australia, authorizing him or her to take the
testimony upon oath of a person orally or on interrogatories;
and the Court may:
                    (c) by the same or a subsequent order
give any necessary directions concerning the time, place and manner of the
examination; and
                    (d) empower any party to the cause to
give in evidence in the cause the testimony so taken on such terms (if any) as
the Court directs.
77HÂ
Oral and affidavit evidence
            (1) On the hearing of any matter, not being
the trial of a cause, evidence may be given by affidavit or as otherwise
directed or allowed by the High Court.
            (2) At the trial of a cause, proof may be
given by affidavit of the service of a document in or incidental to the
proceedings in the cause or of the signature of a party to the cause or of his
or her solicitor to such a document.
            (3) The High Court may at any time, for
sufficient reason and on such conditions as are just, order that particular
facts may be proved by affidavit at the trial of a cause, or that the affidavit
of a person may be read at the trial of a cause.
            (4) Notwithstanding any order under subsection (3),
if a party to a cause desires in good faith that the maker of an affidavit
(other than an affidavit referred to in subsection (2)) proposed to be
used in the cause be cross‑examined with respect to the matters in the
affidavit, the affidavit may not be used in the cause unless that person
appears as a witness for cross‑examination or the High Court, in its
discretion, permits the affidavit to be used without the person so appearing.
            (5) If the parties to a suit so agree and the
High Court does not otherwise order, testimony at the trial of the suit may be
given by affidavit.
            (6) Subject to the foregoing provisions of
this section, testimony at the trial of a cause shall be given orally.
Division 3—Defects and errors
77JÂ
Amendment
            (1) At any stage of a proceeding before the
High Court, the Court may, on such terms as are just, make such amendment as it
thinks necessary to correct any defect or error in the proceeding.
            (2) All necessary amendments shall be made
for the purpose of determining the real questions in controversy or otherwise
depending on the proceedings.
77KÂ
Formal defects not to invalidate
            (1) No proceedings in the High Court are
invalidated by a formal defect or an irregularity unless the Court is of
opinion that substantial injustice has been caused by the defect or
irregularity and that the injustice cannot be remedied by an order of the
Court.
            (2) The High Court may, on such conditions
(if any) as the Court thinks fit, make an order declaring that a proceeding is
not invalid by reason of a defect that it considers to be formal, or by reason
of an irregularity.
Division 4—Reserved judgments
77LÂ
Reserved judgments
            (1) When any cause or matter, after being
fully heard before a Full Court, is ordered to stand for judgment, it is not
necessary that all the Justices before whom it was heard be present together in
court to declare their opinions on the cause or matter, but the opinion of any
of them may be reduced to writing and may be read or otherwise made known by
any other Justice at any subsequent sitting of a Full Court at which judgment
in the cause or matter is delivered. At that subsequent sitting, it is only
necessary for a single Justice to be present in court for the purpose of
delivering that judgment.
            (2) In any such case the question shall be
decided in the same manner, and the judgment of the Court has the same force
and effect, as if the Justice whose opinion is so read or otherwise made known had
been present in court and had declared his or her opinion in person.
Division 5—Judgment and execution
77MÂ
Enforcement of judgments
            (1) Subject to the Rules of Court, a person
in whose favour a judgment of the High Court is given is entitled to the same
remedies for the enforcement of the judgment in a State or Territory, by
execution or otherwise, against the person, or against the property of the
person, against whom the judgment is given, as are allowed in like cases by the
laws of that State or Territory to persons in whose favour a judgment of the
Supreme Court of that State or Territory is given.
            (2) This section does not affect the
operation of any provision made by or under any other Act or by the Rules of
Court for the execution and enforcement of judgments of the High Court.
77MAÂ
Interest up to judgment
            (1) In any proceedings, other than
proceedings on appeal, for the recovery of any money (including any debt or
damages or the value of any goods) in respect of a cause of action that arises
after the commencement of this section, the High Court shall, upon application,
unless good cause is shown to the contrary, either:
                    (a) order that there be included in
the sum for which judgment is given interest at such rate as the Court thinks
fit on the whole or any part of the money for the whole or part of the period
between the date when the cause of action arose and the date as of which
judgment is entered; or
                    (b) without proceeding to calculate
interest in accordance with paragraph (a), order that there be included in
the sum for which judgment is given a lump sum in lieu of any such interest.
            (2) Subsection (1) does not:
                    (a) authorize the giving of interest
upon interest or of a sum in lieu of such interest;
                    (b) apply in relation to any debt upon
which interest is payable as of right whether by virtue of an agreement or
otherwise;
                    (c) affect the damages recoverable for
the dishonour of a bill of exchange;
                    (d) limit the operation of any
enactment or rule of law which, apart from this section, provides for the award
of interest; or
                    (e) authorize the giving of interest,
or a sum in lieu of interest, otherwise than by consent, upon any sum for which
judgment is given by consent.
            (3) Where the sum for which judgment is given
(in this subsection referred to as the relevant sum) includes, or
where the High Court, in its absolute discretion, determines that the relevant
sum includes, any amount for:
                    (a) compensation in respect of
liabilities incurred which do not carry interest as against the person claiming
interest or claiming a sum in lieu of interest;
                    (b) compensation for loss or damage to
be incurred or suffered after the date on which judgment is given; or
                    (c) exemplary or punitive damages;
interest, or a sum in lieu of interest, shall not be given
under subsection (1) in respect of any such amount or in respect of so
much of the relevant sum as in the opinion of the Court represents any such
amount.
            (4) Subsection (3) shall not be taken to
preclude interest or a sum in lieu of interest being given, pursuant to this
section, upon compensation in respect of a liability of the kind referred to in
paragraph (3)(a) where that liability has been met by the plaintiff, as
from the date upon which that liability was so met.
77NÂ
Interest on judgment debts
                  A judgment debt under a judgment of the
High Court carries interest, at such rate as is fixed by the Rules of Court,
from the date as of which the judgment is entered.
77PÂ Interpleader
                  When any claim is made to property taken
in execution upon process issued out of the High Court, the Marshal or a Deputy
Marshal may take in the Supreme Court of the State or Territory in which the
property is situated the same proceedings by way of interpleader as if the
process had been issued out of that Supreme Court, and that Supreme Court and
the Judges of that Supreme Court have jurisdiction to entertain and determine
the matter.
77QÂ
Discharge of property taken in execution
                  A seizure or attachment of property in
execution upon process issued out of the High Court becomes inoperative upon
the occurrence of any event by which, according to the laws of the State or
Territory in which the property is situated, the seizure or attachment would
become inoperative if made upon like process issued out of the Supreme Court of
that State or Territory.
Division 6—Receivers and managers
77RÂ
Receivers and managers
            (1) The High Court may, at any stage of a
proceeding and on such terms and conditions as the Court thinks fit, appoint a
receiver or manager in any case in which it appears to the Court to be just or
convenient to do so.
            (2) A receiver or manager appointed under subsection (1)
may, without the previous leave of the High Court, be sued in respect of any
act or transaction done or entered into by him or her in carrying on the
business connected with the property of which he or she is receiver or manager.
            (3) When in any cause pending in the High
Court a receiver or manager appointed by the Court is in possession of any
property, the receiver or manager shall manage and deal with the property
according to the requirements of the laws of the State or Territory in which
the property is situated in the same manner as that in which the owner or
possessor of the property would be bound to do if in possession of the property.
Part XB—Appeals to the High Court
Division 1—Security
77SÂ
Security
            (1) The Rules of Court may make provision for
and in relation to the giving, in an appeal to the Court, of security for the
prosecution of the appeal without delay and for the payment of costs that may
be awarded against the appellant.
            (2) If security is not given as required by
or in accordance with the Rules of Court, the High Court may order that the
appeal be dismissed.
            (3) This section does not affect the
operation of any provision made by or under any other Act for or in relation to
the giving of security.
Division 2—Procedure
77TÂ
Institution of appeals
                  Appeals to the High Court shall be
instituted within such time and in such manner as are prescribed by Rules of
Court.
77UÂ
Stay of proceedings
                  When an appeal has been instituted, the
High Court or the Court or Judge appealed from may order a stay of all or any
proceedings under the judgment appealed from.
77VÂ
Death of party to an appeal
            (1) When a party to a judgment from which an
appeal lies to the High Court has, whether before or after the commencement of
this section, died before the time allowed for instituting an appeal has
expired, it is not necessary to revive the cause or matter by any formal
proceedings.
            (2) If the personal representative of the
deceased party desires to appeal, he or she may file in the Court by which the
judgment was given or made a duly certified copy of the instrument by which he
or she is appointed, and thereupon may institute an appeal in the same manner
as the party whom he or she represents might have done.
            (3) In the case of the death of the party in
whose favour the judgment is given or made, notice of appeal may be given to
his or her personal representative, or, if there is no such representative, to
such person as the High Court directs.
Part XI—Supplementary provisions
Division 1—Appearance of Parties
78Â
Appearance of parties
                  In every Court exercising federal
jurisdiction the parties may appear personally or by such barristers or
solicitors as by this Act or the laws and rules regulating the practice of
those Courts respectively are permitted to appear therein.
Division 1A—Provisions relating to Constitutional matters
78AAÂ
State includes Australian Capital Territory and Northern Territory
                  In this Division:
State includes the Australian Capital
Territory and the Northern Territory.
78AÂ
Intervention by Attorneys‑General
            (1) The Attorney‑General of the
Commonwealth may, on behalf of the Commonwealth, and the Attorney‑General
of a State may, on behalf of the State, intervene in proceedings before the
High Court or any other federal court or any court of a State or Territory,
being proceedings that relate to a matter arising under the Constitution or
involving its interpretation.
            (2) Where the Attorney‑General of the
Commonwealth or of a State intervenes in proceedings in a court under this
section, the court may, in the proceedings, make such order as to costs against
the Commonwealth or the State, as the case may be, as the court thinks fit.
            (3) Where the Attorney‑General of the
Commonwealth or of a State intervenes in proceedings in a court under this
section, then, for the purposes of the institution and prosecution of an appeal
from a judgment given in the proceedings, the Attorney‑General of the
Commonwealth or the State, as the case may be, shall be taken to be a party to
the proceedings.
            (4) Where the Attorney‑General of the
Commonwealth or of a State institutes an appeal from a judgment given in
proceedings in which the Attorney‑General of the Commonwealth or the
State, as the case may be, has intervened under this section, a court hearing
the appeal may make such order as to costs against the Commonwealth or the
State, as the case may be, as the court thinks fit.
78BÂ
Notice to Attorneys‑General
            (1) Where a cause pending in a federal court
including the High Court or in a court of a State or Territory involves a
matter arising under the Constitution or involving its interpretation, it is
the duty of the court not to proceed in the cause unless and until the court is
satisfied that notice of the cause, specifying the nature of the matter has
been given to the Attorneys‑General of the Commonwealth and of the
States, and a reasonable time has elapsed since the giving of the notice for
consideration by the Attorneys‑General, of the question of intervention
in the proceedings or removal of the cause to the High Court.
            (2) For the purposes of subsection (1),
a court in which a cause referred to in that subsection is pending:
                    (a) may adjourn the proceedings in the
cause for such time as it thinks necessary and may make such order as to costs
in relation to such an adjournment as it thinks fit;
                    (b) may direct a party to give notice
in accordance with that subsection; and
                    (c) may continue to hear evidence and
argument concerning matters severable from any matter arising under the
Constitution or involving its interpretation.
            (3) For the purposes of subsection (1),
a notice in respect of a cause:
                    (a) shall be taken to have been given
to an Attorney‑General if steps have been taken that, in the opinion of
the court, could reasonably be expected to cause the matters to be notified to
be brought to the attention of that Attorney‑General; and
                    (b) is not required to be given to the
Attorney‑General of the Commonwealth if he or she or the Commonwealth is
a party to the cause and is not required to be given to the Attorney‑General
of a State if he or she or the State is a party to the cause.
            (4) The Attorney‑General may authorize
the payment by the Commonwealth to a party of an amount in respect of costs
arising out of the adjournment of a cause by reason of this section.
            (5) Nothing in subsection (1) prevents a
court from proceeding without delay to hear and determine proceedings, so far
as they relate to the grant of urgent relief of an interlocutory nature, where
the court thinks it necessary in the interests of justice to do so.
Division 2—Application of laws
79Â
State or Territory laws to govern where applicable
            (1) The laws of each State or Territory,
including the laws relating to procedure, evidence, and the competency of
witnesses, shall, except as otherwise provided by the Constitution or the laws
of the Commonwealth, be binding on all Courts exercising federal jurisdiction
in that State or Territory in all cases to which they are applicable.
            (2) A provision of this Act does not prevent
a law of a State or Territory covered by subsection (3) from binding a
court under this section in connection with a suit relating to the recovery of
an amount paid in connection with a tax that a law of a State or Territory
invalidly purported to impose.
            (3) This subsection covers a law of a State
or Territory that would be applicable to the suit if it did not involve federal
jurisdiction, including, for example, a law doing any of the following:
                    (a) limiting the period for bringing
the suit to recover the amount;
                    (b) requiring prior notice to be given
to the person against whom the suit is brought;
                    (c) barring the suit on the grounds
that the person bringing the suit has charged someone else for the amount.
            (4) For the purposes of subsection (2),
some examples of an amount paid in connection with a tax are as follows:
                    (a) an amount paid as the tax;
                    (b) an amount of penalty for failure
to pay the tax on time;
                    (c) an amount of penalty for failure
to pay enough of the tax;
                    (d) an amount that is paid to a
taxpayer by a customer of the taxpayer and is directly referable to the
taxpayer’s liability to the tax in connection with the taxpayer’s dealings with
the customer.
80Â
Common law to govern
                  So far as the laws of the Commonwealth
are not applicable or so far as their provisions are insufficient to carry them
into effect, or to provide adequate remedies or punishment, the common law in
Australia as modified by the Constitution and by the statute law in force in
the State or Territory in which the Court in which the jurisdiction is
exercised is held shall, so far as it is applicable and not inconsistent with
the Constitution and the laws of the Commonwealth, govern all Courts exercising
federal jurisdiction in the exercise of their jurisdiction in civil and
criminal matters.
80AÂ
Application of sections 79 and 80 to Territory courts
                  The provisions of the last two preceding
sections apply, in so far as they are capable of application, to and in
relation to a court of a Territory exercising jurisdiction in a suit brought by
virtue of section 56 or Part IXA.
81Â
Security of the peace and for good behaviour
                  The Justices of the High Court, and the
Judges and magistrates of the several States and Territories who are empowered
by law to authorize arrests for offences against the laws of the Commonwealth,
shall have the like authority to hold to security of the peace and for good
behaviour in matters arising under the laws of the Commonwealth as may be
lawfully exercised by any Judge or Magistrate of the respective States and
Territories in other cases cognisable before them.
Division 3—Venue
82Â
Venue in suits for penalties
                  Suits to recover pecuniary penalties and
forfeitures under the laws of the Commonwealth may be brought either in the
State or Territory where they accrue or in the State or Territory where the
offender is found.
83Â
Venue in suits for taxes
                  Suits to recover taxes accruing under
any revenue law of the Commonwealth may be brought either in the State or
Territory where the liability for the tax occurs or in the State or Territory
where the debtor resides.
84Â
Venue in suits for forfeiture
                  Proceedings on seizures made on the high
seas for forfeiture under any law of the Commonwealth may be prosecuted in any
State or Territory into which the property seized is brought. Proceedings on
such seizures made within any State or Territory shall be prosecuted in the
State or Territory where the seizure is made, except in cases when it is
otherwise provided by law.
85Â
Property seized as forfeited
                  All property taken or obtained by any
officer or person under the authority of any revenue law of the Commonwealth
shall be deemed to be in the custody of the law, and subject only to the orders
and judgments of the Courts having jurisdiction thereof under this or any Act.
Division 4—Rules of Court
86Â
Rules of Court
            (1) The Justices of the High Court or a
majority of them may make Rules of Court necessary or convenient to be made for
carrying into effect the provisions of this Act or so much of the provisions of
any other Act as confers jurisdiction on the High Court or relates to the
practice or procedure of the High Court, and in particular for the following
matters, that is to say:
                    (a) Appointing and regulating the
sittings of the High Court and of the Justices;
                    (b) Regulating procedure pleading and
practice in the High Court in civil or criminal matters in the exercise both of
its original and of its appellate jurisdiction;
                   (ba) Regulating the means by which
particular facts may be proved and the mode in which evidence thereof may be
given;
                    (d) Prescribing the forms to be used
for the purposes of the proceedings of the High Court;
                    (e) Prescribing and regulating the
fees to be charged by practitioners practising in the High Court for the work
done by them in relation to proceedings in the Court and for the taxation of
their bills of costs, either as between party and party or as between solicitor
and client;
                   (ga) Providing for the admission of
persons to practise as barristers or solicitors in any Federal Court, and
prescribing the conditions of and qualifications for admission, and continuance
of the right to practise as aforesaid;
                    (h) Generally regulating all matters
of practice and procedure in the High Court.
            (2) The Legislative Instruments Act 2003
(other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in
relation to rules of court made by the Court under this Act or another Act:
                    (a) as if a reference to a legislative
instrument were a reference to a rule of court; and
                    (b) as if a reference to a rule‑maker
were a reference to the Chief Justice acting on behalf of the Justices of the
Court; and
                    (c) subject to such further
modifications or adaptations as are provided for in regulations made under
paragraph 88(cb) of this Act.
            (3) Despite the fact that section 16 of
the Legislative Instruments Act 2003 does not apply in relation to rules
of court made by the Court under this Act or another Act, the Department may
provide assistance in the drafting of any of those Rules if the Chief Justice
so desires.
88Â
Regulations
                  The Governor‑General may make
regulations, not inconsistent with this Act, prescribing matters:
                    (a) required or permitted by this Act
to be prescribed; or
                    (b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations:
                    (c) prescribing the content and form
of a notice to be given under subsection 78B(1) and specifying the documents
(if any) that are to accompany such a notice;
                   (ca) prescribing the fees payable in
respect of proceedings in the High Court and the execution of the process of
the High Court;
                   (cb) modifying or adapting provisions
of the Legislative Instruments Act 2003 (other than provisions of Part 5
of that Act or any other provisions whose modification or adaptation would
affect the operation of that Part) in their application to the Court;
                    (d) prescribing the practice and
procedure for the filing and giving of such a notice, including the manner in
which, the time within which, the persons to whom, and the persons by whom,
such a notice is to be given; and
                    (e) specifying any affidavits to be
filed following the giving of a notice under subsection 78B(1) and prescribing
the persons by whom and times within which the affidavits are to be filed.