Judiciary Amendment Act (No. 2) 1984 (Cth)

Judiciary Amendment Act (No. 2) 1984

No. 12 of 1984

An Act to amend the Judiciary Act 1903

[Assented to 10 April 1984]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Judiciary Amendment Act (No. 2) 1984.

(2) The Judiciary Act 19031 is in this Act referred to as the Principal Act.

Commencement

2. (1) Sections 1 and 2 shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining provisions of this Act shall come into operation on such day as is, or such days as respectively are, fixed by Proclamation.

Appeal from courts of States

3. (1) Section 35 of the Principal Act is amended—

(a) by omitting from sub-section (2) “Except as provided by the succeeding provisions of this section, an” and substituting “An”; and

(b) by omitting sub-sections (3), (4), (6), (6a),(7) and (8).

 

(2) The amendments made by this section do not affect—

(a) the hearing and determination of an appeal instituted before the date of commencement of this section; or

(b) the institution of an appeal in pursuance of special leave granted before that date or the hearing and determination of an appeal so instituted,

but, subject to the foregoing provisions of this sub-section, those amendments apply in relation to judgments given or pronounced before that date.

4. After section 35 of the Principal Act the following section is inserted in Division 1 of Part V:

Criteria for granting special leave to appeal

“35a. 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.”.

Matters in which jurisdiction of High Court exclusive

5. Section 38 of the Principal Act is amended by omitting “The jurisdiction” and substituting “Subject to section 44, the jurisdiction”.

Remittal of matters by High Court to other courts

6. Section 44 of the Principal Act is amended—

(a) by inserting “other than a matter to which sub-section (2) applies” after “matter” (first occurring); and

(b) by adding at the end thereof the following sub-sections:

“(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.

 

“(3) Where the High Court remits a matter, or any part of a matter, under sub-section (2) 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.”.

7. Section 55e of the Principal Act is repealed and the following section is substituted:

Australian Government Solicitor

“55e. (1) There is hereby established an Australian Government Solicitor.

“(2) The Australian Government Solicitor is a body corporate.

“(3) The Australian Government Solicitor may act as solicitor for

(a) the Crown in right of the Commonwealth;

(b) the Commonwealth;

(c) a person suing or being sued on behalf of the Commonwealth;

(d) a Minister;

(e) a body established by an Act or a law of a Territory other than the Northern Territory;

(f) an officer of, or a person employed by—

(i) the Commonwealth; or

(ii) a body established by an Act or a law of a Territory other than the Northern Territory;

(g) a person holding office under an Act or a law of a Territory other than the Northern Territory;

(h) a member of the Defence Force; or

(j) any other person or body for whom the Attorney-General requests the Australian Government Solicitor to act,

and is, for the purpose of so acting, entitled to practise as a solicitor in any court and entitled to all the rights and privileges of a solicitor in each State or Territory.

“(4) The Secretary to the Attorney-General’s Department may act personally in the name of the Australian Government Solicitor and may also, either generally, or otherwise as provided by the instrument of authorization, by writing signed by him, authorize an officer of that Department whose name is on a roll referred to in sub-section 55d (1) to act in the name of the Australian Government Solicitor.

“(5) Any act or thing done in the name of the Australian Government Solicitor by, or under the direction or authority of—

(a) the Secretary to the Attorney-General’s Department; or

(b) a person authorized under sub-section (4),

shall be deemed to have been done by the Australian Government Solicitor.

 

“(6) In or in respect of the doing by a person of any act or thing pursuant to an authorization under sub-section (4), the person is responsible to the Secretary to the Attorney-General’s Department and, through the Secretary to that Department, to the Attorney-General, and shall comply with such directions, if any, as are given to him by the Secretary to that Department.

“(7) Any act or thing done or omitted to be done by a person in the name of the Australian Government Solicitor pursuant to a direction given by the Secretary to the Attorney-General’s Department shall be deemed to have been done or omitted to be done, as the case may be, by the Secretary to that Department personally.

“(8) The Secretary to the Attorney-General’s Department or a person authorized pursuant to sub-section (4) is, for the purpose of acting in the name of the Australian Government Solicitor, entitled to do all things necessary or convenient and entitled to all the rights and privileges of a solicitor in each State or Territory whether or not he is entitled to practise as a solicitor in any State or Territory.

“(9) Notwithstanding sub-section (5) but subject to sub-section (8)—

(a) the Secretary to the Attorney-General’s Department; or

(b) a person authorized pursuant to sub-section (4),

is, in respect of any act or thing done or omitted to be done by him, or by a person at his direction or under his authority, in the name of the Australian Government Solicitor in relation to a matter in a State or Territory, subject to the duties and obligations to which he would be subject if that act or thing had been done or omitted to be done in the course of practice by him as a solicitor in the State or Territory concerned.

“(10) A copy of every authorization under sub-section (4) shall be published in the Gazette.

“(11) In any Act, in any instrument under an Act, in any award or other industrial determination or order or any industrial agreement, in any other order (whether executive, judicial or otherwise), in any contract, in any pleading in, or process issued in connection with, any legal or other proceedings or in any other instrument, a reference to the Crown Solicitor for the Commonwealth or a Deputy Crown Solicitor for the Commonwealth shall, except in relation to matters that occurred before the commencement of section 7 of the Judiciary Amendment Act (No. 2) 1984, be construed as including a reference to the Australian Government Solicitor.”.

NOTE

1. No. 6, 1903, as amended. For previous amendments, see No. 5, 1906; No. 8, 1907; No. 34, 1910; No. 31, 1912; No. 11, 1914; No. 4, 1915; No. 38, 1920; No. 39, 1926; No. 9, 1927; No. 60, 1932; Nos. 34 and 65, 1933; No. 45, 1934; No. 5, 1937; No. 43, 1939; No. 50, 1940; No. 10, 1946; No. 52, 1947; No. 65, 1948; Nos. 51 and 80, 1950; Nos. 17 and 35, 1955; No. 50, 1959; Nos. 32 and 109, 1960; No. 91, 1965; Nos. 55 and 93, 1966; No. 134, 1968; No. 39, 1969; No. 216, 1973 (as amended by No. 20, 1974); No. 164, 1976; No. 36, 1978; Nos. 19, 86 and 138, 1979; No. 61, 1981; No. 26, 1982; Nos. 39, 91 and 114, 1983; and No. 7, 1984.