Amrit, L.N. v Parnell, J. [1986] FCA 89

justice - Error of law in use of withdrawal of bail for extraneous purpose - Judiciary Act s.78B - Whether constitutional point "really and substantially arises" - Whether s.26 of

Extradition (Commonwealth Countries) Act invalidly seeks to invest a State Court with an independent head of non-judicial

power - Whether administrative powers are conferred upon a magistrate in Extradition (Commonwealth Countries) Act as a

persona designata - Effect of alleged constitutional point depending entirely upon erroneous construction - Irrelevant legislation - Effect of sub-s.(5) of s.78B, proceedings relating to the grant of urgent relief of an interlocutory nature necessary in the interests of justice - Bail during seven day remand "of an interlocutory nature" - Review under Administrative Decisions (Judicial Review) Act is proceedings which "relate to" the grant of urgent relief of an interlocutory nature.

Judiciary Act 1903, s.78B Extradition (Commonwealth Countries) Act 1966, s.26(2)

Administrative Decisions (Judicial Review) Act 1977

Ex parte Cousens; Re Blacket (1946) 47 S.R.(NSW) 145

Ammann v. Wegener (1972) 129 C.L.R. 415 Pearce v. Cocchiaro (1977) 137 C.L.R. 600

Riley and Butler v. Commonwealth of Australia (1983) 50 A.L.R. 593; and on appeal (1984) 57 A.L.R. 249

Prevato v. The Governor, Metropolitan Remand Centre, Wilcox J., unreported, 6/2/86

Reg. v. Nottingham Justices, Ex parte Davies (19811 1 Q.B. 38

R. v. Reading Crown Court, Ex parte Malik (1981) 72 Cr. App. R. Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321

Wheeler v. Leicester City Council £19851] 2 All E.R. 1106

Capelvenere v. Omega Developments Corporation Pty. Ltd. (1983) 5 A.T.P.R. 44,536

In the Marriage of Smith and Saywell (1980) 47 F.L.R. 267

In re an Application by the Public Service Association of New

South Wales; and In re the Industrial Union of Employees (Commissioned Police Officers) Award (1947) 75 C.L.R. 430

The Australian Commonwealth Shipping Board v. The Federated Seamen's Union of Australasia (1925) 36 C.L.R. 442

Mobil Oi1 Australia Proprietary Limited v. The Commissioner of Taxation (1963) 113 C.L.R. 475

Carr v. Finance Corporation of Austraifa Limited (1981) 147 C.L.R. 246

This is an application, brought under the Administrative

Decisions (Judicial Review) Act 1977, to review a decision of a

nagistrate to refuse to continue or grant bail to the applicant.

The applicant was arrested pursuant to warrants issued

under the Extradition (Commonwealth Countries) Act 1966 which referred to a charge that at Greytown in New Zealand he did assault a child, namely, Amrit Jason Sich aged about two years, and that at the same place he did unlawfully detain Nell Grace Armitt in a garage pit, without her consent, with intent to cause

her to be confined. The offences are alleged to have occurred in

the course of communal discipline at a commune, of which the

applicant was a leader, and from which the two persons who now

accuse him were expelled, apparently at his instigation. The charges are denied, and it is said that the parents of the child the subject of one of the charges will be giving evidence, one of them for the prosecution and the other for the defence. The case has apparently attracted a considerable amount of publicity. The applicant, who is aged about 50 years, has no previous criminal

The applicant was arrested on 25 January 1986, and was granted bail on 28 January by Mr. Henderson SM, after a contested hearing. His bail was conditioned upon his reporting to the Officer-in-Charge of Police at Castle Hill daily between the hours of 6-00AM and 9-00AM, surrendering his passport, entering into an agreement to forfeit, the sum of $20,000 in the event of his failure to appear in accordance with his undertaking, and

obtaining a surety in the sum of $20,000, to be deposited in cash. These conditions were fulfilled, and the applicant was

released from prison. However, under Part III of the Extradition

(Commonwealth Countries) Act 1966, the part applicable to extradition from Australia to New Zealand, it is common ground that it is not competent for a magistrate to remand a person whose extradition is sought for a longer period than seven days. Accordingly, since the matter was not ready for hearing, and in

any case an early hearing date was not available, it was

necessary for a succession of seven day remands to occur.

Although, as I have said, the original grant of bail was

contested, bail was continued on a number of occasions thereafter

without opposition, and its conditions were varied by consent on 18 February by Mr. Evans SM, who deleted the requirement to report on those days on which the applicant had to attend at court for the purpose of further remand, and aiso varied the

place of reporting from Castle Hill to Eastwood Police Station.

At some stage, a date for hearing was fixed for January

1987, apparently because of unavailability of court time at an earlier date for a matter of the anticipated length of this particular matter. The Director of Public Prosecutions afterwards made representations that so lengthy a delay was inappropriate, and on 4 March 1986 the hearing date was changed, as I was informed by consent. It was still not possible to obtain a date earlier than sometime in July, and, to meet the convenience of counsel, a date was fixed in August. By reason of other commitments of the magistrate by whom the original date was vacated and the new date fixed, and as the applicant wished to seek a further variation of the reporting conditions of his bail in the light of the still distant hearing date, the parties were

then referred to another magistrate, who, however, alsa became

unavailable. The matter eventually came on later inthe day zt before Mr. Parnell SM, and it is in respect of his decision that

At the time the matter came before Mr. Parnell, the applicant had been on bail for more than a month following the

original bail hearing on 28 January. Since the variation of his

reporting conditions made by consent on 18 February, he had had his bail continued on 25 February, without objection, upon the

varied conditions. He now sought a relaxation of those

conditions by deletion of the requirement of daily reporting and substitution of a requirement to report on one day occurring between each of his weekly attendances at court. Variation of the conditions of bail was opposed, but it was not suggested that there had been any breach of any of the conditions applicable from time to time, nor that bail should be refused or only

The transcript shows that the matter was introduced to

Mr. Parnell by.Mr. Guy, appearing for the Director of Public

Prosecutions, who gave the magistrate a summary of its history,

"So as it presently stands, Your Worship, e daily reporting with the exception of the day he reports to court, that being once a week. I understand my friend wishes to make an application for variation."

"My submission is that bail should not he varied." -

Later, after the applicant's submissions had been completed, Mr.

"Whilst we are not saying that we wish the Magistrate's - Mr. Henderson's - decision

overturned we say that Mr. Henderson, having made a decision on that, on all the evidence that was presented on that bail application, that it certainly should not be lessened, that the police feel that to guarantee, both from the police and from the community's point of view, that this man attend court and answer these charges and, if the extradition proceedings are successful, faces trial in New Zealand, that there should be sone security. The police view is that daily reporting is a proper means of ensuring that attendance."

It is clear, from a reading of the transcript, that no contention was raised before the magistrate by either party that the original decision to grant bail, or any of the successive decisions to continue it upon substantially similar conditions, was other than entirely appropriate, except that the applicant contended the reporting conditions should be relaxed. Whilst various matters were raised by Mr. Guy against the applicant, they were raised only in the context of opposition to a relaxation of conditions of bail. It is not surprising that, in that context, both parties relied upon statements from the bar table, and there was no suggestion that sworn evidence should be proffered on either side. Nothing was said, either by Mr. Guy or

by the magistrate, which would have put the applicant's solicitor upon notice that the matters previously determined, at the

contested hearing of 28 January, were required to be completely

The magistrate delivered reasons in which he referred to

the number of attendances at court which had been and would be

required, the original and varied hearing dates, the seriousness

of the offences and the attitude of the applicant to the proceedings, the fact that there had been threats, allegedly,

against the life of the applicant both here and in New Zealand, his Worship's understanding (which both counsel _told me was

incorrect) that the applicant had only reluctantly accepted advance of the hearing date from January 1987 to August 1986, his Worship's view that as the applicant was contesting the

proceedings he might be unwilling to comply with orders made in

"Tt is the future prospect which is relevant. The duty of the court is to ensure that the defendant attends on future occasions, whether it is seven days or seven months, and at this stage, on the material before me, I am doubtful. The prosecuting authority, the Director of Public Prosecutions, has not

pressed any particular view on that. I infer from what has been said that the original

reluctance. In my view the proper order for me in the circumstances, on the view I have

this observation, is to refuse bail and strongly ufge the executive to proceed to an early hearing date. Certainly, an early

commencement date, which in my view ought to be fixed shortly after the next return date, which I fix by adjourning this matter now until 11 March 1986. Bail will be refused in accordance with the observations I have just

For the applicant it is said that this decision was an administrative decision made under s.26(2) of the Extradition

(Commonwealth Countries) Act 1966, a provision in Part III which

deals with extradition to and from New Zealand. Section 26(2)

"2. A Magistrate may remand a person brought before him under this section, either in custody or on bail, for a period or periods not exceeding seven days at any one time and, where a Magistrate remands a person for such a period, the person may, at the expiration of the period, be brought before that Magistrate or before any other Magistrate."

That the decision upon the question of bail is an administrative one seems to me to follow from the nature of the

functions of a magistrate under the Act, to which I shall refer later in these reasons, and to be in keeping with the authorities

which hold that a magistrate hearing committal proceedings is acting in an administrative, not a judicial, capacity. In Ex parte Cousens; Re Blacket (1946) 47 S.R.{(NSW) 145 at 146-7, Jordan C.d., speaking for a Full Court, contrasted the judicial duties of magistrates with their duties in respect of committal

"In relation to charges of offences which they have no jurisdiction to try and dispose of, their authority is not judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence adduced against him, and if they think that there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a Court which has jurisdiction to try him. This is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly four hundred years, no instance can be found of a superior Court having interfered with a magistrate by certiorari or prohibition in his exercise of this function: Cox v. Coleridge (1822) 1 B.

& C. 37. It is quite true, as was pointed out by Griffith C.J. in Huddart Parker & Co.

Proprietary Ltd. v. Moorehead (1908) 8 C.L.R. 330 at 357, that, in the course of the nineteenth century, many laws were passed both in England and Australia regulating the procedure in such inquiries, but, as his Honour also pointed out, they have not' the effect of altering the essential nature of the inquiry, which cannot be regarded now, any more than formerly, as an exercise of judicial functions."

There have been a number of more recent decisions affirming the administrative character of committal hearings (see Ammann v. Wegener (1972) 129 C.L.R. 415 at 435; Pearce v. Cocchiaro (1977) 137 C.L.R. 600; Lamb v. Moss (1983) 49 A.L.R. 533; and R. v. Murphy (1985) 61 A.L.R. 139 at 144), but I have quoted from the judgment of Jordan C.J. in Cousens' Case, perhaps unnecessarily, because its language emphasises that the decision whether to release on bail is an integral part of the administrative function of the magistrate. (As to this, see also

In the present case, the decision was not made in the exercise of a general power to grant bail to persons charged with indictable offences. It was made under the specific power conferred by s.26(2). But I think that power is likewise administrative in nature, being not only comparable to the corresponding power of a committing magistrate, but also an incident of the performance of duties in respect of extradition procedures which are themselves administrative: Riley and Butler v. Commonwealth of Australia (1983) 50 A.L.R. 593, and on appeal

(1984) 57 A.L.R. 249; Prevato v. The Governor, Metropolitan Remand Centre (Wilcox J., unreported, 6 February 1986).

It cannot be suggested that the power of this Court to review a decision concerning bail in an extradition matter should not be exercised because of the availability of an alternative remedy of application to the Supreme Court of the State. An argument of that kind would be open upon refusal of bail at a committal hearing in respect of a Commonwealth offence, but it has been held that there is no jurisdiction in a Supreme Court of a State to grant bail, where a magistrate has refused it, in a

matter under the Extradition (Commonwealth Countries) Act 1966 or

the Extradition (Foreign States) Act 1966: Re Groves (1973) Qd.R. 310; R. v. Rademeyer (1985) 1N.S.W.L.R. 285.

So I turn to the challenges brought by the applicant to the Magistrate's decision. The Application, which raised in general terms a number of grounds under s.5 of the Administrative Decisions (Judicial Review) Act, was somewhat lacking in precision, doubtless because of time constraints and the delay which occurred in the obtaining of a transcript, which only became available during the course of the hearing, but the argument before me highlighted as issues the applicant''s claims: (1) that there had been a breach of the rules of natural justice by the effective denial of an opportunity to present a case for bail, since the only issue raised before the magistrate was the terms of bail; (2) that an error of law was involved in that a relevant consideration was ignored, namely, that at a contested

hearing the applicant had satisfied a magistrate that he should

be granted bail, and the only significant change of circumstances

since then was that the applicant had fully complied with the conditions of his bail; and (3) that irrelevant considerations

were taken into account, namely, the magistrate's erroneous views about the fixing of the delayed hearing date, and his concern to

ensure an early hearing, although the hearing date had already

been fixed by another magistrate who had been apprised of the

I think there is substance in each of these contentions. Indeed, though they were debated, the emphasis of the

respondent's argument was placed ona submission under s.78B of

the Judiciary Act 1903, with which I shall deal later in these

' It was not only a relevant, but also a most important, consideration that the applicant had been granted bail after a contested hearing, and had since complied with its conditions. So much is established by the decision of the Divisional Court, delivered by Donaldson L.J. (as the Master of the Rolls then

was), in Reg. v. Nottingham Justices, Ex parte Davies £1981] 1

Q.B. 38. (See also R. v. Reading Crown Court, Ex parte Malik (1981) 72 Cr.' App. R. 146.) The judgment of Donaldson L.J. (at

p.44) makes 'it clear that justices should not, ona second or

subsequent bail application, "ignore their own previous decision or a previous decision of their colleagues." Donaldson L.J.

referred to a finding on a relevant issue on an earlier

application for bail as requiring "to be treated like every other finding of the court. It is res judicata or analogous thereto. It stands asa finding unless and until it is overturned on appeal. And appeal is not to the same court, whether or not of the same constitution, on a later occasion." The application

there in question concerned the effect of a prior contested

application which had resulted in the refusal of bail. The Court

"But the starting point must always he the ' finding of the position when the matter was last considered by the court. _ I would inject only one qualification to the general rule that justices can and should only investigate whether the situation has changed since the

last remand in custody. The finding on that occasion that Schedule 1 circumstances

existed will have been based upon matters known to the court at that time. The court considering afresh the question of bail is both entitled and bound to take account not only of a change in circumstances which has occurred since that last occasion, but also of circumstances which, although they then existed, were not brought to the attention of the court. To do so is not to impugn the previous decision of the court and is necessary in justice to the accused. The question is a little wider than 'Has there been a change?' It is 'Are there any new

: considerations which were not hefore the court when the accused was last remanded in custody?' ."

It is not necessary, for the purposes of this application, to go the full distance of the Nottingham Justices Case. At least, in my opinion, that case is compelling in favour of the view that the earlier decision of Mr. Henderson SM to grant bail was a very important matter to be taken into account.

It was, as I read the decision of Mr. Parnell SM, simply ignored.

And it was ignored notwithstanding the absence of any submission

that it was erroneous, or that there was any new consideration

adverse to the applicant which modified its effect.

The duty to accord natural justice has also been referred to as a "duty to act fairly" (see, for example, Kioa_ v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321 at 346; Wheeler v. Leicester City Council £1985] 2 All E.R. 1106 at 1111). The exemplar of one kind of breach of natural justice is a denial of an opportunity to be heard. In this case the

applicant was heard, but on an issue which assumed he would be

granted bail, and without any notice either that bail was opposed or that it was intended to treat the matter as entirely

unaffected by the earlier decision to grant bail. In ny view the duty of fairness demanded he be told in the clearest terms that he must call all his evidence over again. I should in this matter accept-the law as stated in the Nottingham Justices Case,

but in any event it so clearly represents virtually universal practice that a departure from it, without adequate warning, would be highly likely to mislead a party into failing to present all his evidence. In Kioa's Case (supra, at p.349) Mason Jd. referred to "the importance which the law attaches to the need to

bring to a person' 8 attention the critical issue or factor on

'which the- administrative decision is likely to turn so that he

may have an opportunity of dealing with it." The circumstances

of the present case conspired to ensure that the applicant's

attention was on one issue, while his application was rejected

a te cee rr tT a en ee ny hae YN tate we tee eee vere ee

upon another issue to which his case was not directed. His opportunity to be heard was an illusion. (Cf. Mahon v. Air New Zealand Ltd. £19843 1 A.C. 808 at 820-1.)

concluded, after reading and re-reading the transcript, that the "Magistrate did take into account, in refusing bail, his view that the matter should not have been fixed for hearing in August, but

should be heard within a week or two. Bearing in mind' that another 'Magistrate had fixed it, that there was no reason to think all the factors which had warranted the other Magistrate in doing so were before Mr. Parnell SM, and that the legitimate purposes of bail do not include compelling a party to alter his

approach to the conduct of his case, I think an error of law is

demonstrated. In R. v. Greenham £19401 V.L.R. 236 at 239 Mann

C.J. said: "The discretion in certain circumstances to refuse bail can never be used by way of punishment or by way of putting coercion on.a prisoner to do something he is not''hbound in law to do.*. 'This, of course, is not to say that practical realities,

related 'to the projected hearing date of a case, cannot enter

Accordingly, che decision should be set aside, unless

the submission which': I 'shall now consider prevails.

Counsel for the Director of Public Prosecutions claimed

that I ought not to proceed to determine this matter until

eee Se en a Oe ee ee oe ee ee eee ee me me ee ee met owe

satisfied that appropriate notices had been given, and a reasonable time had elapsed, under s.78B of the Judiciary Act 1903. To have acceded to counsel's submission would, of course, have completely stultified the present proceedings, which relate to a period of seven days only. But if s.78B has indeed the effect asserted, it is the duty of the court to apply it,

notwithstanding that the consequences may seem to reveal it as a

The section, which was inserted (together with 3s.78A)

'into the Judiciary Act in 1976, and amended in 1983, reads as

"q1) Where a cause pending ina 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.°

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

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

(b) ig 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."

Of this section, Fitzgerald J. said in Capelvenere_ v.

Omega Developments Corporation Pty. Ltd. (1983) 5 A.T.P.R. 44,536 at 44,546:

"There ig need for sec.78B of the Judiciary Act to be reconsidered. It creates an impediment to the orderly disposition of the business of the Courts which is

disproportionate to any benefits which it provides. It is not obvious why at least

this Court and the Supreme Courts should not generally decide all questions of law which are raised in proceedings before them, particularly questions concerning the ambit of their respective jurisdictions. It is necessary for the legislature to recognize that matters which fall within sec.78B of the Judiciary Act may arise at any time in the course of proceedings. Often such matters are raised, but, if the litigation could he concluded, would not have to be decided. Further, often such matters are raised which are patently without substance. Many jurisdictional questions afford good examples. Even if the High Court has recently decided the precise point in indistinguishable circumstances, a party can raise it again and halt proceedings. It is impractical to require that proceedings

always be stopped whenever such a matter is raised to enable the Attorneys-General to

consider whether they wish to become involved or to have the proceedings removed to the High Court which is already over-burdened. When an action has to be stopped it causes great inconvenience to the Court, the parties, their witnesses and indeed other litigants whose cases could have been set down for hearing during the days wasted because allotted to the matter which cannot go forward. Further, the already burdensome cost of litigation is increased, and judicial resources are used inefficiently, at a considerable cost to the public purse. It would not require an excess of confidence in the judges of. the superior courts to permit them a discretion as to when notice should be given to the Attorneys-General. No doubt it would be necessary to take into account circumstances such as the possibility that an order, e.g. an acquittal, might not be able to be challenged on appeal, as well as' the

In two reported decisions, courts have felt able to avoid the extreme example offered by Fitzgerald J. of an alleged constitutional point recently and precisely decided by the High Court. In Green v. Jones (1979) 39 F.L.R. 428, the discretionary

remedy of a declaration having been sought to compel a magistrate to interrupt a committal hearing upon such a point being asserted by the defence, Hunt J. refused it on the ground that the circumstances did not justify an exceptional use of the

"Although, in a strictly technical sense, such a challenge may be said to be a matter arising under the Constitution, I cannot imagine that s.78B, was intended to permit never-ending challenges to matters which have

already been determined by the High Court, particularly recently by that court.

In In the Marriage of Smith and Saywell (1980) 47 F.L.R. 267 at 296, the majority judgment (delivered by Watson J.) of the

Full Family Court rejected the application of s.78B to a constitutional challenge to its powers under a provision the validity of which had previously been tested and upheld in the High Court.

On the other hand, in In re an Application by the Public

Service Association of New South Wales; and In re the Industrial

Union of Employees (Commissioned Police Officers) Award (1947) 75 C.L.R. 430, dealing with an application for removal into the High

Court under s.40 of the Judiciary Act, Williams J. said at p.433:

"It was submitted that no cause or part of a cause arises under the Constitution or involves its interpretation because this Court has already decided the question which

the Attorney-General applied to have removed into this Court. ... But however close and authoritative the previous decisions, if the

substantially arises under the Constitution or involves its interpretation, the Court has

In the present case, as will appear, it is unnecessary

Constitution or involving its interpretation" was a submission that the applicant's case depended upon an invalid attempt by the Parliament to invest a State Court with non-judicial power pursuant to s.77(iii) of the Constitution (see Hilton v. Welis (1985) 58 A.L.R. 245 at 251 and cf. R. v. Murphy (1985) 61 A.L.R. 139). The contention related to the power conferred upon the magistrate by s.26(2) of the Extradition (Commonwealth Countries) Act 1966 to deal with the question of bail. Of course, if the power to remand in custody, conferred by the same sub-section, is, according to the argument put on behalf of the Director of Public Prosecutions, similarly tainted, there could be difficulties about the legality of the applicant's imprisonment. The proposition was put on the assumption that the powers of the magistrate, other than in respect of bail, to deal with the applicant, were judicial powers (not administrative powers conferred upon the magistrate as a persona designata - see Hilton v. Wells and cf. ss.31 and 32 of the Extradition (Commonwealth

Countries) Act), but that the power to deal with an application

for bail was purportedly an independent grant of administrative power. The argument assumed that the case was analogous in that respect to Hilton v. Wells, where the power to issue warrants under s.20 of the Telecommunications (Interception) Act 1979 was "not ancillary or incidental to any judicial function" (Hilton v. Wells at p.250). I have considerable difficulty in appreciating this step in the argument, since it seems to me that, both historically and conceptually, the power to grant bail is an essential incident to a civilised exercise of criminal jurisdiction, including jurisdiction with respect to extradition. According to 0.W. Holmes J. in the seventh of his famous lectures 'on The Common Law, its origins as a feature of the criminal law

But whether the magistrate's power to grant bail in an extradition matter, under the Extradition (Commonwealth Countries) Act, is or is not incidental to his powers in respect of extradition procedures, is a question which will only have significance if, in relation to those procedures, the Magistrate is properly to be regarded as exercising judicial power of the Commonwealth, and not an administrative function. I have already referred, in these reasons, to Riley and Butler v. Commonwealth

Of Australia (1983) 50 A.L.R. 593, and on appeal (1984) 57 A.L.R.

249, and Prevato v. The Governor, Metropolitan Remand Centre (Wilcox J., umreported, 6 February 1986), where extradition

procedures under the Extradition (Foreign States) Act 1966 were

held to be administrative in nature, so as to be subject to

review under the Administrative Decisions (Judicial Review) Act 1977. I think it was also implicitly accepted that, in such proceedings, the magistrate was acting as a persona designata by virtue of an arrangement between the Governor-General and the Governor of the relevant State for the performance by him of the functions of a magistrate under the Act. In the case of the Extradition (Commonwealth Countries) Act, the contrast between sS.31 and 32 (notably prior to the amendment of the latter section in 1985, but also thereafter) adds weight to the view that there is an investment of federal judicial power in the

Supreme Court of the State, but not in the Magistrate's Court. (See Re Groves £1973] Qd.R. 310 at 311.)

Unless I first construe the Extradition (Commonwealth

Countries) Act in the, manner contended for, that is as attempting

to invest with an independent non-judicial power, not a persona designata, but a State Court as such, the constitutional point

simply does not arise. (Cf. The Australian Commonwealth

Shipping Board v. The Federated Seamen's Union of Australasia

(1925) 36 C.L.R. 442 at 450-1; Ihe King v. Bevan (1942) 66 C.L.R. 452 at 466, 480; Mobil Oil Australia Proprietary Limited v. The

Commissioner of Taxation (1963) 113 C.L.R. 475 at 492.) I do not think, particularly in the light of the Riley and Butler Case, that I should so construe it. Section 78B only operates when the circumstances it postulates are made to appear to the Court: it does not operate simply because a party asserts those

circumstances. It is clear, from the reference to the

possibility of intervention or removal of the cause to the High Court upon the initiative of an Attorney-General, that what the

section contemplates is a constitutional question which is a live issue in the proceedings. On the basis that the constitutional

point depends entirely upon an erroneous construction of the

Extradition (Commonwealth Countries) Act, the cause pending in

this Court does not "really and substantially" (to use the language of Williams J. in the passage cited above) involve a

matter arising under the Constitution or involving its

Furthermore, if the case is within sub-s.(1) of s.78B, I think it 1s also within sub-s.(5), which takes from the Court the paralysis laid on it by sub-s.(1), so far as the proceedings "relate to the grant of urgent relief of an interlocutory nature where the Court thinks it necessary in the interests of justice" to determine the proceedings. In Carr v. Finance Corporation of Australia Limited (1981) 147 C.L.R. 246 the High Court considered

the meaning of the word "interlocutory" in another section of the

dudictary Act, s.35. The Court accepted that the test was "whether the judgment or order appealed from, as made, finally

determines the rights of the parties" (per Gibbs C.J. at p.248).

Mason J. at p.255 quoted from a Judgment of Taylor J. a passage _

"So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only."

At p.256 he referred to the traditional classification of orders refusing to get aside a judgment as interlocutory "because there is the right to make another application and because the order does not deal directly with the rights in contest in the action". According to these tests, an order granting or refusing bail for a seven day period of remand, prior to the hearing of proceedings for extradition, should, in my opinion, be regarded as "of an

But it was objected by counsel for the Director of Public Prosecutions that if I made an order pursuant to the Administrative Decisions (Judicial Review) Act, which had the effect of setting aside the decision of the Magistrate, ny order could not be of an interlocutory nature. It does not seem to me that this argument rebuts the application of sub-s.(5) of 3.78B. For the sub-section does not except proceedings only in which this Court, or another court to which s.78B is directed, makes an interlocutory order; it provides that the Court way without delay hear and determine proceedings so far as they relate to the grant of urgent relief of an interlocutory nature. The expression "relate to" is an expression of. very wide import. In R. v. Murphy (1985) 61 A.L.R.- 139 at 145 the joint judgment of the High Court states:

"The words 'in relation to' simply connote the existence of a connection or association...".

Accordingly, in that case what wag said to have occurred in committal proceedings, which were not themselves an exercise of judicial power, was nevertheless regarded as occurring "in relation to the judicial power of the Commonwealth", which would be exercised at any subsequent trial. Analogously, it seems to me that the proceedings in this Court relate to the grant of urgent relief of an interlocutory nature with which the decision under review is concerned. That the matter was urgent, the alternative being immediate imprisonment, cannot I think be doubted. In all the circumstances I unhesitatingly thought it

necessary, in the interests of justice, that the Court should

proceed without delay to hear and determine the proceedings.

For the foregoing reasons, which I now deliver, I did on 7 March 1986 set aside the decision to refuse bail with effect from 10-O00AM on Monday 10 March 1986, and directed that the applicant should' be brought before a magistrate at St. James Local Court, having authority under s.31 of the Extradition (Commonwealth Countries) Act 1966, for reconsideration of the

a] question of bail and conditions of bail at that time and date.

I certify that this and the - preceding twenty-two (22)

pages are a true copy of the Reasons for Judgment herein of

his Honour Mr. Justice Burchett. . - a eee Associate