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Judiciary Amendment Act 1976

  • - C2004A01594
  • No longer in force
Act No. 164 of 1976 as made
An Act to amend the Judiciary Act 1903-1973.
Administered by: Attorney-General's
Date of Assent 09 Dec 1976
Date of repeal 25 Mar 2015
Repealed by Amending Acts 1970 to 1979 Repeal Act 2015
 

JUDICIARY AMENDMENT ACT 1976 No. 164, 1976

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 1.
Short title.

JUDICIARY AMENDMENT ACT 1976

No. 164 of 1976

An Act to amend the Judiciary Act 1903-1973.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:-
Short title and citation.
1. (1) This Act may be cited as the Judiciary Amendment Act 1976.*1*

(2) The Judiciary Act 1903-1973*2* is in this Act referred to as the Principal Act.

(3) The Principal Act, as amended by this Act, may be cited as the Judiciary Act 1903-1976.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 2.
Commencement.

2. (1) Sections 1, 2 and 10, and section 18, except to the extent it amends section 39A (1) (b) of the Principal Act, shall come into operation on the day on which this Act receives the Royal Assent.*1*

(2) The remaining provisions of this Act shall come into operation on such respective dates as are fixed by Proclamation.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 3.

3. Section 3A of the Principal Act is repealed and the following section substituted:-
Extension to Territories.
''3A. This Act extends to all the Territories.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 4.
Reference to Full Court.

4. Section 18 of the Principal Act is amended by omitting the words ''and any Judge of the Supreme Court of a State exercising federal jurisdiction''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 5.
Applications for leave to appeal to High Court.

5. Section 21 of the Principal Act is amended by omitting sub- section (1) and substituting the following sub-section:-

''(1) Applications for leave or 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.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 6.

6. (1) Section 35 of the Principal Act is repealed and the following section substituted:-
Appeals from courts of States.
''35. (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) Except as provided by the succeeding provisions of this section, an appeal shall not be brought from a judgment, whether final or interlocutory, referred to in sub-section (1) unless the High Court gives special leave to appeal.

''(3) Subject to sub-section (4), an appeal may be brought as of right from a final judgment of a Full Court of the Supreme Court of a State given or pronounced-

(a) for the sum of $20,000 or upwards; or

(b) in any proceedings in which the matter in issue amounts to or is of the value of $20,000 or upwards or which involve directly or indirectly a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards.

''(4) An appeal shall not be brought from a judgment referred to in sub-section (3) on a ground that relates to the quantum of any damages in respect of death or personal injury unless the High Court has given special leave to appeal on that ground.

''(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
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after the commencement of this section, preventing or permitting appeals from the Supreme Courts of the States in particular matters.

''(6) Notwithstanding any other Act, an appeal may be brought as of right from a final judgment of a Full Court of the Supreme Court of a State where the ground of appeal, or one of the grounds of appeal, involves the interpretation of the Constitution.

''(7) Where-

(a) an appeal from a judgment purports to have been instituted by a party in accordance with sub-section (6);

(b) an appeal as of right from the judgment could not have been brought by that party in accordance with sub-section (3); and

(c) it appears to the High Court, at any time after the institution of the appeal, that no ground on which the appeal is brought requires the decision of a substantial question of interpretation of the Constitution,
the High Court may, without prejudice to any application for special leave of appeal, decline to hear the appeal further and strike out the appeal as incompetent, with such order as to costs as it thinks just.

''(8) A reference in this section to the Full Court of the Supreme Court of a State 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.''.

(2) The amendment made by this section does 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 leave or 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, the section inserted in the Principal Act by this section applies in relation to judgments given or pronounced before that date.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 7.
Repeal of section 38A.

7. Section 38A of the Principal Act is repealed.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 8.
Federal jurisdiction of State Courts in other matters.

8. (1) Section 39 of the Principal Act is amended by omitting paragraph (b) of sub-section (2).

(2) The amendment made by this section does 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.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 9.

9. (1) Part VII of the Principal Act is repealed and the following Part substituted:-

''PART VII-REMOVAL OF CAUSES
Removal by order of the High Court.
''40. (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 or the Attorney-General of a State.

''(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.


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''(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 sub-section (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 sub-section (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 sub-section (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 such Registry of the High Court as is directed by the order.
Proceedings after removal.
''41. 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.
Remittal of causes.
''42. (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 sub-section (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.
Effect of interlocutory orders, &c., before removal of cause.
''43. 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.
Remittal of matters by High Court to other courts.
''44. Any matter that is at any time pending in the High Court, whether originally commenced in the High Court or not, 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 shall be as directed by the court to which it is remitted.
Defence in causes removed to High Court.
''45. 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 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.''.

(2) Where, before the date of commencement of this section-

(a) a cause or part of a cause had been removed into the High Court by an order under section 40 of the Principal Act; or
(b) sub-section (1) of section 40A of the Principal Act had become applicable to a cause,
and the cause or part of a cause was pending in the High Court upon that date, the provisions of Part VII of the Principal Act, as amended by this Act, apply in relation to the cause or part of the cause as if it had been removed into the High Court by an order under that Part.

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(3) Sub-section (1) of section 40A of the Principal Act shall be deemed not to have become applicable to a cause before the date of commencement of this section unless the proceedings in the cause had, before that date, been received in a Registry of the High Court upon transmission in accordance with sub-section (2) of that section.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 10.

10. Section 47 of the Principal Act is repealed and the following section substituted:-
Salaries, &c., of Justices.
''47. The Chief Justice and the other Justices of the High Court shall receive salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 11.
Payment of salaries and allowances.

11. Section 48 of the Principal Act is amended-

(a) by omitting from sub-section (1) the words ''and annual allowances'' and substituting the words '', annual allowances and travelling allowances''; and

(b) by omitting sub-section (2) and substituting the following sub-section:-

''(2) The salary and annual allowance of a Justice accrue from day to day and are payable monthly.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 12.
Right to practise as barrister or solicitor in federal courts and courts exercising federal jurisdiction.

12. Section 55B of the Principal Act is amended by adding at the end thereof the following sub-sections:-

''(4) A person who is, by virtue of this section, entitled to practise as a barrister or solicitor, or as both, in any federal court has a right of audience in any court of a State in relation to the exercise of federal jurisdiction by that court.

''(5) The Chief Justice of the Supreme Court of a State may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of sub-section (4) and, where such a Register is kept in a State, a person is not entitled, in a court of that State, to the right of audience referred to in sub-section (4) unless he is registered in that Register.

''(6) Where a Register is kept in a State in accordance with sub- section (5), a person who satisfies the Registrar or other officer keeping the Register that he is a person referred to in sub-section (4) is entitled to be registered in that Register.

''(7) Where it is proved to the satisfaction of the Supreme Court of a State constituted by 2 or more Judges that a person who is registered in the Register kept in that State in accordance with sub-section (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 as are required by reason of orders of the Supreme Court under sub-section (7).

''(9) Notwithstanding sub-section (6), where the registration of a person has been cancelled in accordance with sub-section (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 sub-section (7).''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 13.
Suits against the Commonwealth.

13. Section 56 of the Principal Act is amended by omitting paragraphs (b) and (c) of sub-section (1) and substituting the following paragraphs:-

''(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.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 14.
Jurisdiction of State and Territory courts in criminal cases.

14. Section 68 of the Principal Act is amended-

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(a) by inserting after the word ''State'' (wherever occurring) the words ''or Territory''; and

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

''(5) In relation to 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), the jurisdiction conferred by sub-section (2) is conferred notwithstanding any limits as to locality of the jurisdiction of the court concerned under the law of the 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 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 had been arrested in that State or Territory.

''(7) The procedure referred to in sub-section (1) and the jurisdiction referred to in sub-section (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 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 sub-sections (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 sub-section, a person may be dealt with in accordance with provisions of the kind referred to in sub-section (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 sub-section (7) refers to indictable offences, that reference shall, for the purposes of the application of the provisions of the law in accordance with that sub-section, 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 sub-section (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 sub-section.''.

15. After section 70 of the Principal Act the following section is inserted:-
Indictable offence not committed in a State.
''70A. 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.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 16.
Appearance of parties.

16. Section 78 of the Principal Act is amended by inserting after the words ''as by'' the words ''this Act or''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 17.

17. After Division 1 of Part XI of the Principal Act the following Division is inserted:-

''Division 1A-Provisions relating to Constitutional Matters
Intervention by Attorneys-General.
''78A. (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
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proceedings, make such order as to costs against the Commonwealth or the State, as the case may be, as the court thinks fit.
Notice to Attorneys-General.
''78B. (1) Where a cause pending in a federal court other than 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 Attorney-General of the Commonwealth and-

(a) if the cause is pending in a court of a State-to the Attorney-General of that State; or

(b) if the cause is pending in a federal court and was instituted in a State-to the Attorney-General of that State,
and a reasonable time has elapsed since the giving of the notice for consideration by that Attorney-General or by those Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

''(2) For the purposes of sub-section (1), a court in which a cause referred to in that sub-section 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; and

(b) may direct a party to give notice in accordance with that sub-section.

''(3) For the purposes of sub-section (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 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 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 sub-section (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.''.

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT. 18.
Formal amendments.

18. The Principal Act is amended as set out in the Schedule.

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JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SCHEDULE


SCHEDULE
Section 18

FORMAL AMENDMENTS

1. The following provisions of the Principal Act are amended by omitting any number expressed in words that it used to identify a section of that Act, and substituting that number expressed in figures:-

Sections 3A, 39A (2), 55A and 80A.

2. The following provisions of the Principal Act are amended by omitting the words ''of this Act'', ''to this Act'' and ''of this section'' (wherever occurring) :-

Sections 55B (3), 55C (3), 55D (3), (4) and 6 (b), 65 and 80A.

3. The Principal Act is further amended as set out in the following table:- ------------------------------------------------------------------------------ --
Provision Amendment ------------------------------------------------------------------------------ --
Section 3A . . . . . . Omit ''of this Act'' (second occurring). Section 9 . . . . . . . Omit ''Lord the King'', substitute ''Lady the
Queen''. Section 22 . . . . . . Omit ''King'', substitute ''Queen''. Section 39 (1) . . . . Omit ''either of the last two preceding sections'',
substitute ''section 38''. Section 39 (2) . . . . Omit ''the last two preceding sections'', substitute
''section 38''. Section 39A (1) (b) . . (a) Omit ''(b),''.
(b) Omit ''all or any'', substitute ''both or
either''. Section 39A (2) . . . . Omit ''of this Act''. Section 55D (7) . . . . Omit ''or to practise in Papua New Guinea''. Section 69 (2) . . . . Omit ''King's'', substitute ''Queen's''. ------------------------------------------------------------------------------ --
------------------------------------------------------------------------------ --

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - NOTES


NOTES
1. Act No. 164, 1976; assented to 9 December 1976.
2. Act No. 6, 1903, as amended by 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; and No. 216, 1973 (as amended by No. 20, 1974).