Attorney-General (Cth) v Huynh

2. Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 8 December 2021.

3. Remit the matter to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court.

On appeal from the Supreme Court of New South Wales

S P Donaghue KC, Solicitor-General of the Commonwealth, with T M Glover and C Ernst for the appellant (instructed by Australian Government Solicitor)

R J Wilson SC with D J Reynolds for the first respondent (instructed by Legal Aid (NSW))

G A Hill SC with J S Stellios, appearing as amici curiae (instructed by Australian Government Solicitor)

R J Orr KC, Solicitor-General for the State of Victoria, with T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

Submitting appearances for the second and third respondents

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Constitutional law (Cth) - Judicial power of Commonwealth - Jurisdiction vested in State courts - State laws applicable to offenders convicted of Commonwealth offences - Where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence - Where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place - Where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal - Where convicted person applying under s 78(1) was convicted of Commonwealth offence - Whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence - Whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence - Whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation - Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court acting in personal capacity a function without their consent - Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly imposed administrative duty on holder of State statutory office without State legislative approval.

Words and phrases - "altered meaning", "Chief Justice or authorised judge", "Commonwealth offence", "different legal operation", "federal jurisdiction", "federal offence", "inquiry into conviction or sentence", "judicial power", "jurisdiction invested", "jurisdiction of State and Territory courts", "jurisdiction of the Supreme Court", "like jurisdiction", "non-judicial power", "persona designata", "pick up and apply", "prerogative of mercy", "referral to Court of Criminal Appeal", "severance".

Crimes (Appeal and Review) Act 2001 (NSW), ss 75, 77, 78, 79, 81, 82, 85, 86, 88, 114.

1. KIEFEL CJ, GAGELER AND GLEESON JJ. Mr Huynh was convicted and sentenced to a term of imprisonment following a trial on indictment in the District Court of New South Wales for an offence under ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). He appealed against the conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) as applied by force of s 68(1) and (2) of the Judiciary Act 1903 (Cth). The Court of Criminal Appeal dismissed the appeal[1].
2. Mr Huynh subsequently applied to the Supreme Court of New South Wales pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") for an inquiry into the conviction. By that application, he sought to obtain an order under s 79(1)(b) of the CAR Act referring the whole of his case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The application was considered and dismissed on its merits by Garling J[2].
3. Mr Huynh then applied by originating summons in the Court of Appeal of the Supreme Court of New South Wales for judicial review of the decision of Garling J pursuant to s 69 of the Supreme Court Act 1970 (NSW). The respondents to the application for judicial review were the Attorneys-General of New South Wales and the Commonwealth and the Supreme Court of New South Wales.
4. On the hearing of the application for judicial review, the Court of Appeal itself raised a preliminary issue. The issue was whether ss 78(1) and 79(1) of the CAR Act apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth, either of their own force or by force of s 68(1) of the Judiciary Act. In a considered judgment[3], the Court of Appeal held by majority (Bathurst CJ, Basten, Gleeson and Payne JJA) that they do not. The dissentient (Leeming JA) took the view that they apply of their own force.
5. The holding of the majority resulted in the Court of Appeal making orders declaring the decision of Garling J to be void for want of jurisdiction and dismissing the originating summons for judicial review without the majority reaching the grounds of review sought to be raised by Mr Huynh.
6. On appeal by special leave to this Court, the Attorney-General of the Commonwealth argues with the support of Mr Huynh that the majority in the Court of Appeal was wrong to hold that ss 78(1) and 79(1) of the CAR Act do not apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth.

1. Part 7 of the CAR Act is framed against the background that a conviction and sentence following a trial on indictment constitute the conclusive determination of criminal liability, subject only to an appeal under s 5 of the Criminal Appeal Act[5], and that the Court of Criminal Appeal has no jurisdiction to reopen an appeal under s 5 of the Criminal Appeal Act which it has heard and finally determined[6].
2. Part 7 is headed "Review of convictions and sentences". Division 2 of that Part is headed "Petitions to Governor". Although Div 2 does not arise directly for consideration in the appeal, its provisions have contextual relevance. Section 76 allows for a petition for review of a conviction or sentence or the exercise of the Governor's pardoning power to be made to the Governor by or on behalf of the convicted person. Under s 77(1)(b), after the consideration of a petition, the Attorney-General is empowered to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The consequence of a reference under s 77(1)(b) is to enliven jurisdiction separately conferred on the Court of Criminal Appeal by s 86, which is within Div 5 of Pt 7 of the CAR Act.
3. Sections 78 and 79 are in Div 3, which is headed "Applications to Supreme Court".
4. Section 78 provides:

"(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister."

"(1) After considering an application under section 78 or on its own motion -

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if -

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."

1. The expression "convicted person" is not defined in the CAR Act. The term "conviction" is defined for the purposes of Pt 7, but in a manner which has no bearing on any issue in the appeal[7]. The term "sentence" is defined for the purposes of Pt 7 to include "a sentence or order imposed or made by any court following a conviction"[8].
2. The references in ss 78(1) and 79(1), (3) and (4) to "the Supreme Court" must be read in light of s 75 of the CAR Act. Section 75 provides that the "jurisdiction of the Supreme Court" under Pt 7 "is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction" and that references to "the Supreme Court" in Pt 7 "are to be construed accordingly".
3. Having regard to the declaration in s 79(4) that a proceeding under s 79 is not judicial, the majority in the Court of Appeal took the view that the effect of s 75 is that the references in ss 78 and 79 to "the Supreme Court" are not to the Supreme Court constituted by the Chief Justice or an authorised judge[9], but rather to the Chief Justice or an authorised judge acting persona designata[10]. That view has been accepted by all parties and by the amici curiae in this Court.
4. The references in ss 78(2) and 79(5) to "the Minister" must be read in light of s 15 of the Interpretation Act 1987 (NSW) as references to the Minister or a Minister of the Crown in right of the State of New South Wales for the time being administering Pt 7 of the CAR Act. Unsurprisingly, the Minister has at all material times been or included the Attorney-General of New South Wales[11].
5. Read with s 79(2) and (3), s 79(1) can be seen to be enlivened where the Chief Justice or an authorised judge, having chosen to consider an application made by or on behalf of a convicted person under s 78(1), entertains a doubt or thinks there to be a question as to the convicted person's guilt or as to mitigating circumstances in the case or evidence in the case. Where s 79(1) is so enlivened, two distinct and alternative courses of action are open to the Chief Justice or the authorised judge under the terms of that provision. In choosing whether or not to pursue either course of action, the Chief Justice or authorised judge performs what Basten JA aptly described in the Court of Appeal as a "gateway function"[12].
6. One course of action open to the Chief Justice or the authorised judge upon considering an application made under s 78(1) and entertaining a doubt or thinking there to be a question as to the convicted person's guilt or as to mitigating circumstances or the evidence is to exercise the power conferred by s 79(1)(a) to direct that an inquiry be conducted into the conviction or sentence by a judicial officer. The consequence of a direction under s 79(1)(a) is to trigger an inquiry under Div 4 of Pt 7 of the CAR Act.

Sections 78 and 79 of the CAR Act do not apply of their own force to Commonwealth offences

1. The difference between the majority and the dissentient in the Court of Appeal as to whether ss 78 and 79 of the CAR Act apply of their own force to a conviction by a New South Wales court for an offence under a law of the Commonwealth turned on a difference as to the construction of the terms "conviction" and "sentence" and of the expression "convicted person".
2. The "localising principle"[36] expressed in s 12(1)(b) of the Interpretation Act 1987 (NSW) - that "a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales" - leaves the precise nature of the connection between the "conviction" and "sentence" of the "convicted person" and the State of New South Wales to be determined as a matter of construction[37]. The constructions judicially accorded to cognate expressions in other New South Wales statutes[38] are of limited utility in making the necessary constructional choice.
3. The Court of Appeal was unanimous in concluding that the requisite connection with the State of New South Wales involves the conviction and sentence having been by a New South Wales court. What differentiated the majority from the minority was that the majority concluded that the requisite connection also involves the conviction and sentence having been for an offence punishable under New South Wales law.
4. The context of ss 78 and 79 within the scheme of Pt 7 of the CAR Act makes the conclusion of the majority compelling. In enacting Pt 7, the Parliament of New South Wales can be assumed to have used terminology consistently[39] and to have avoided the absurdity of authorising the Chief Justice or a judge of the Supreme Court to engage in an exercise of constitutional futility.
5. The report to the Governor, which is the necessary outcome of the Chief Justice or an authorised judge of the Supreme Court exercising the power conferred by s 79(1)(a) after considering an application made under s 78(1), is constitutionally utile in respect of a person convicted and sentenced for an offence punishable under New South Wales law in so far as it facilitates consideration by the Governor of the exercise of the prerogative of mercy. Such a report would be constitutionally futile in respect of a person convicted and sentenced for an offence punishable under a law of the Commonwealth. Axiomatically, within the federal system of government established by the Constitution, the prerogative of mercy in respect of a person convicted and sentenced for an offence under a law of the Commonwealth is an aspect of the executive power of the Commonwealth vested by s 61 of the Constitution exclusively in the Governor-General[40].

1. The Judiciary Act is described by its long title as an Act "to make provision for the Exercise of the Judicial Power of the Commonwealth". Part X is headed "Criminal jurisdiction". Division 1 of that Part is headed "Application of laws". Within that Division, s 68 is headed "Jurisdiction of State and Territory courts in criminal cases".
2. Section 68(1) and (2) provide:

"(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(b) their examination and commitment for trial 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:

(b) the examination and commitment for trial on indictment; or

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."

1. Section 68(1)'s application of certain State and Territory laws "so far as they are applicable" to persons charged with offences against Commonwealth laws in respect of whom jurisdiction is invested in State and Territory courts under s 68(2) has features in common with the prescription in s 79(1) of the Judiciary Act that certain State and Territory laws are binding on courts exercising federal jurisdiction "except as otherwise provided by the Constitution or the laws of the Commonwealth ... in all cases to which they are applicable". There is a substantial degree of overlap in the purposes and operations of the two provisions in so far as both "enable State [and Territory] courts in the exercise of federal jurisdiction to apply federal laws according to a common procedure in one judicial system"[42].
2. There are, however, important differences. There is a difference of focus, s 68(1) being concerned with laws applying to persons (in the sense that those persons are the subject or object of the applicable laws whether or not those persons are immediately bound by them) and s 79(1) being concerned with laws binding on courts. Underlying that difference in focus is a difference in the roles of the two provisions, s 68(1) being concerned to pick up identified aspects of State and Territory criminal procedure - so as to ensure that "federal criminal law is administered in each State [and Territory] upon the same footing as State [and Territory] law and [to avoid] the establishment of two independent systems of justice"[43] - rather than being narrowly confined to the jurisdictional gap-filling role identified for s 79(1) in Rizeq v Western Australia[44]. There is also a difference in the nature and degree of translation that is required in picking up and applying State and Territory laws. That difference will need to be explored in some detail.
3. The key to understanding the scope and operation of s 68(1) lies in an appreciation of the scope and operation of s 68(2). In its application to the "several Courts of a State", s 68(2) is an exercise of the legislative power conferred on the Commonwealth Parliament by s 77(iii) of the Constitution[45]. Section 68(2) in that application invests State courts with federal jurisdiction with respect to a class of matters within those mentioned in s 76(ii) of the Constitution. The class comprises matters arising under Commonwealth laws which create offences. The federal jurisdiction so invested is inherently limited to authority to exercise the judicial power of the Commonwealth or to perform functions incidental to the exercise of that judicial power[46].

"That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time."

1. The general policy explained by Dixon J as elaborated by Gleeson CJ is implemented through the language of s 68(1) purposively construed within the structure of s 68 as a whole. Even on the most purposive of constructions, however, the language and structure of s 68(1) and (2) make it impossible to read the reference to "appeals" in s 68(1)(d) as broader than the federal jurisdiction invested in State courts by the equivalent language in s 68(2). In referring to the procedure for the hearing and determination of appeals arising out of a trial or conviction, s 68(1)(d) refers only to the procedure for the hearing and determination of a proceeding in a court in the exercise of judicial power. The reference does not extend to non-judicial procedures engaged in by persons or institutions who do not, for the purposes of engaging in those procedures, constitute State courts.
2. If State or Territory laws providing for the review or questioning of convictions or sentences through non-judicial procedures engaged in by persons or institutions other than State or Territory courts are to fall within the purview of s 68(1), it can only be, as the amici curiae submit, because those laws answer the description of laws "respecting" one or more of the six categories of criminal procedure designated in s 68(1). The word "respecting", like the cognate expression "in respect of", takes its meaning from its context[60] and accommodates a range of potential relational connections[61].
3. Whether and to what extent State or Territory laws answer the description of laws "respecting" one or more of those categories of criminal procedure is a question of characterisation. The answer to that question necessarily turns on considerations of substance and degree.
4. To the extent that State or Territory laws are properly characterised as answering the requisite description, s 68(1)'s application of the text of those laws "so far as they are applicable" to persons charged with offences against Commonwealth laws in respect of whom federal jurisdiction is invested under s 68(2) requires a degree of translation. Not unlike s 79(1)[62], s 68(1) applies the text of a State or Territory law without change to its meaning. However, there are three important qualifications to that general proposition.
5. The first qualification, recognised in Putland v The Queen[63], is that s 68(1) does not apply the text of a State or Territory law to the extent that in so applying as a Commonwealth law it would be inconsistent with the Constitution or another Commonwealth law.

"By whom, then, can the right of appeal granted in respect of sentences pronounced regarding offences against the Federal law be exercised? In my opinion, that right is exercisable by the Crown, and the proper officer to assert it is the legal adviser and representative of the Crown in the Commonwealth; in other words, the Attorney-General of the Commonwealth."

To similar effect, Dixon J expressed the opinion that it was "clear that the appeal is not given by the legislation to the Attorney-General of the State", adding[67]:

"It is true that sub-sec (1)(d) of sec 68 of the Judiciary Act ... applies the laws of the State with respect to the procedure for the hearing and determination of appeals arising out of the trial or conviction on indictment, or out of any proceeding connected therewith, of offenders against the laws of the States. But the qualification contained in the words occurring in the sub-section, 'so far as they are applicable,' excludes the application of so much of the State law as gives the appeal to the State Attorney-General."

1. Peel and Rohde are further illustrations. In Peel, which was also concerned with federal jurisdiction invested by s 68(2) of the Judiciary Act by reference to s 5D of the Criminal Appeal Act, Gibbs J identified one of the questions to be "whether the right of appeal which s 68(2) confers is given to the Attorney-General of the Commonwealth". Answering that question with reference to what had been said by Jordan CJ in R v Williams[68], Gibbs J said[69]:

"As Jordan CJ pointed out ... if s 68(2) '... is read as meaning that the jurisdiction is to be restricted to hearing appeals by persons designated by the State Act, it becomes nugatory, because neither persons convicted on New South Wales indictments nor the Attorney-General of New South Wales could have any concern with appeals arising out of trials or convictions for offences against the laws of the Commonwealth.' This provides a sound reason for concluding that in the application of s 68(2) 'the adoption of State law must proceed by analogy'."

"Section 5 of the Criminal Appeal Act ... gives a right of appeal to a person convicted upon indictment under State law and s 68(2) in its operation on s 5 gives a right of appeal to persons convicted upon indictment under the law of the Commonwealth. Section 5D of the Criminal Appeal Act gives the Attorney-General of the State a right of appeal because he is the proper officer to represent the State; s 68(2) in its operation on s 5D gives a right of appeal to the Attorney-General of the Commonwealth as the proper officer to represent the Commonwealth. The functions exercised by the Attorney-General of the Commonwealth are like functions to those of the Attorney-General of the State and the jurisdiction exercised by the Court of Criminal Appeal in hearing and determining an appeal by the Attorney-General of the Commonwealth against a sentence imposed for an offence against Commonwealth law is a like jurisdiction to that exercised by the Court of Criminal Appeal in hearing an appeal by the Attorney-General of the State against a sentence imposed for an offence against the law of the State."

1. Although Gibbs J did not specifically address the operation of s 68(1), it is obvious that, for the federal jurisdiction so invested by s 68(2) of the Judiciary Act to be efficacious, the text not only of ss 5 and 5D but also of Pt 4 of the Criminal Appeal Act (governing the procedure for the hearing and determination of appeals under those sections) must be applied as Commonwealth laws by s 68(1)(d) of the Judiciary Act. As so applied, the text of those provisions needs to be translated to the extent of treating references to the Crown in right of the State of New South Wales as references to the Crown in right of the Commonwealth and of treating references to the Attorney-General of the State as references to the Attorney-General of the Commonwealth.
2. In Rohde, the operation of s 68(2) of the Judiciary Act to confer federal jurisdiction defined by reference to s 567A of the Crimes Act 1958 (Vic) (which was expressed to confer a right to appeal against a sentence for an offence against a Victorian law on the Victorian Director of Public Prosecutions) was held to confer a right of appeal against a sentence for an offence against a Commonwealth law on the Attorney-General of the Commonwealth. The right of appeal so conferred was held to be exercisable by the Commonwealth Director of Public Prosecutions by operation of s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).
3. Just as s 68(2) of the Judiciary Act must displace s 39(2) to the extent of any inconsistency, so s 68(1) must displace s 79(1) to the extent of any inconsistency in the translation of State laws. Section 68(1) is the more specific of the two provisions, and giving priority to s 68(1) is harmonious with the purposes of both provisions.
4. The third qualification to the general proposition that s 68(1) of the Judiciary Act applies the text of a State or Territory law without change to its meaning is that expressed in Solomons v District Court (NSW)[70] and repeated in Putland v The Queen[71] in relation to s 79. The qualification is that "where a particular provision of State law is an integral part of a State legislative scheme, [the section] could not operate to pick up some but not all of it, if to do so would be to give an altered meaning to the severed part of the State legislation". The qualification was applied in Solomons to hold that neither s 68 nor s 79 of the Judiciary Act empowered the District Court of New South Wales to grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)[72] in proceedings involving federal offences, given that the certificate would have lacked utility as no Commonwealth law effected a "corresponding transmutation" upon s 4 of that Act, which allowed a certificate granted under s 2 to be used to make an application to an executive officer of the State of New South Wales for payment of the certified costs from the Consolidated Revenue Fund of New South Wales[73].

The extent to which 68(1) of the Judiciary Act applies ss 78 and 79 of the CAR Act

1. For reasons which have been explained, determination of whether and to what extent s 68(1) of the Judiciary Act applies the text of ss 78 and 79 of the CAR Act as Commonwealth laws necessarily begins with identification of the State jurisdiction by reference to which "like jurisdiction" is invested by s 68(2) of the Judiciary Act.
2. The argument of the Attorney-General of the Commonwealth and of Mr Huynh in its broadest form is that support for the application of the text of ss 78(1) and 79(1) of the CAR Act as Commonwealth laws by force of s 68(1) of the Judiciary Act can be found in the "like jurisdiction" which was exercised under s 68(2) of the Judiciary Act by the District Court of New South Wales when convicting and sentencing Mr Huynh for an offence under ss 11.5(1) and 307.11(1) of the Criminal Code.
3. That broadest form of the argument fails at the level of characterisation of ss 78(1) and 79(1) of the CAR Act for the purpose of s 68(1) of the Judiciary Act. Those provisions cannot be characterised as laws respecting the procedure for the trial and conviction on indictment of a convicted person. The provisions speak only when jurisdiction to hear and determine the matter concerning the criminal liability to which the trial and conviction related has been spent and when the criminal liability which had been in issue in that matter has merged in the conviction and sentence[76].
4. A narrower form of the argument of the Attorney-General of the Commonwealth and of Mr Huynh is that support for the application of the text of ss 78(1) and 79(1) of the CAR Act as Commonwealth laws by force of s 68(1) of the Judiciary Act can be found in the "like jurisdiction" which might be invested by s 68(2) of the Judiciary Act by reference to the State jurisdiction conferred on the Court of Criminal Appeal under s 88 of the CAR Act, in the event of a direction under s 79(1)(a) giving rise to a referral by a judicial officer conducting an inquiry under Div 4, and that is invested under s 86 of the CAR Act, in the event of a referral under s 79(1)(b).
5. Adopting the approach of Dixon J in Williams v The King [No 2] as applied in Peel, Rohde, Gee and LK, there is no difficulty in principle in characterising the jurisdiction conferred by each of s 86 and s 88 of the CAR Act as jurisdiction with respect to the hearing and determination of an appeal arising out of the trial or conviction of a convicted person. Neither s 86 nor s 88 of the CAR Act confers jurisdiction of a kind inherently incapable of defining "like jurisdiction" invested by s 68(2) of the Judiciary Act.

1. There remains to consider the discrete constitutional argument put on behalf of the Attorney-General of Victoria. The argument is that the text of ss 78(1) and 79(1)(b) of the CAR Act applying as a Commonwealth law by force of s 68(1) of the Judiciary Act would infringe one or perhaps two limitations on Commonwealth legislative power.
2. The limitation on Commonwealth legislative power which it is said would be infringed is that recognised in Grollo v Palmer[78]: that the Commonwealth Parliament cannot confer on a judge of a court in their personal capacity a non-judicial function unless the individual judge has consented to that conferral. The limitation which it is said would perhaps be infringed is that considered but left unresolved in O'Donoghue v Ireland[79]: that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval.
3. The argument is answered sufficiently for the purposes of the present case, in which Mr Huynh's application under s 78(1) of the CAR Act was considered and dismissed by Garling J as a judge of the Supreme Court authorised by the Chief Justice under s 75 of the CAR Act, by noting that Garling J did not come under any enforceable obligation to entertain Mr Huynh's application by virtue of the authorisation under s 75 or by virtue of the application being allocated to him[80].
4. Garling J made a choice to entertain Mr Huynh's application, as is evidenced by his conduct in considering and dismissing it. Neither s 78(1) nor s 79(1)(b) of the CAR Act applying as a Commonwealth law by force of s 68(1) of the Judiciary Act imposed any duty on him to entertain the application at all. Any question concerning whether the Chief Justice might come under an enforceable obligation to entertain an application which would infringe either of the constitutional limitations to which the Attorney-General of Victoria draws attention can be addressed if and when it arises[81].

1. The appeal is to be allowed. The orders made by the Court of Appeal are to be set aside. The matter is to be remitted to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court. There is to be no order as to costs.
2. GORDON AND STEWARD JJ. On 9 June 2015, Mr Huynh was convicted in the District Court of New South Wales of an offence against a law of the Commonwealth, being one count of conspiracy to import a commercial quantity of a border-controlled precursor (pseudoephedrine) in breach of ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). He was sentenced to imprisonment for 12 years, with an eight-year non-parole period.
3. In March 2020, having exhausted all available avenues of appeal, Mr Huynh applied to the Supreme Court of New South Wales for an inquiry into his conviction under s 78 in Div 3 of Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act"). Mr Huynh's application was dismissed by Garling J in October 2020. His Honour held that having examined Mr Huynh's submissions and all of the relevant material, and having considered the issues substantively, he had "no sense of unease or doubt as to [Mr Huynh's] guilt".
4. In January 2021, Mr Huynh commenced proceedings against the Attorney‑General of New South Wales in the Court of Appeal of the Supreme Court of New South Wales under s 69 of the Supreme Court Act 1970 (NSW) seeking an order quashing the decision of Garling J, and a declaration that "there was an error of jurisdiction and law on the part of Garling J". Mr Huynh subsequently joined the Attorney-General of the Commonwealth ("the A‑G (Cth)") and the Supreme Court of New South Wales.
5. Before the Court of Appeal, a preliminary question was raised as to whether the procedure under Div 3 of Pt 7 of the CAR Act was available to a person convicted in a New South Wales court of an offence against a law of the Commonwealth. The Court of Appeal made the following orders and declarations, from which the A-G (Cth) now appeals:

"(1) Declare that the power conferred by s 79 of the [CAR Act]:

(a) is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata;

(b) is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court.

(2) Declare that the decision of Garling J purporting to determine an application lodged with the Supreme Court by Huy Huynh under s 78 of the [CAR Act] with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect.

(3) Otherwise dismiss the summons." (emphasis added)

1. Given that the interests of Mr Huynh aligned with those of the A‑G (Cth) and there was no contradictor[82], the Court appointed Mr Graeme Hill SC and Mr James Stellios as amici curiae to support the orders made by the Court of Appeal. The Attorney-General of Victoria intervened.
2. The A-G (Cth) submitted that three questions arose on the appeal, all of which should be answered "Yes":

"(a) Is the function conferred by Div 3 of Part 7 of the [CAR Act] an administrative function that is conferred on Supreme Court judges persona designata? (Question 1)

(b) If the answer to Question 1 is 'yes', then does Div 3 of Part 7 apply of its own force to federal offenders who are convicted and sentenced in New South Wales courts? (Question 2)

(c) Does s 68(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) pick up and apply Div 3 of Part 7 as federal law? (Question 3)"

For the following reasons, we would answer Question 1 "Yes" but Questions 2 and 3 "No". We would therefore dismiss the appeal.

1. To assess these questions (especially Questions 2 and 3) it is first necessary to consider the royal prerogative of mercy in New South Wales. Because Mr Huynh and the A-G (Cth) argue that only one part of one of the mechanisms in the CAR Act relating to the prerogative of mercy (Div 3 of Pt 7 of the CAR Act) applies to Commonwealth offenders, it is then necessary to pay close attention to the whole of Pt 7 of the CAR Act and the role it plays in the exercise of the prerogative of mercy, which remains unaffected by Pt 7[83].

The prerogative of mercy and the early review and referral provisions

1. Prerogative powers were "accorded to the Crown by the common law"[84]. The royal prerogative of mercy is an "ancient right of the Crown to pardon, partially or fully, those who have been convicted of a public offence"[85]. There is no need, in this case, to explore how large that power is. At common law, the pardon was not equivalent to an acquittal; its effect was merely "to remove from the subject of the pardon, 'all pains penalties and punishments whatsoever'" that may ensue from the conviction, but it did not eliminate the conviction itself[86].
2. At the Commonwealth level, the power to grant a pardon is sourced in s 61 of the Constitution[87]. In New South Wales, the power to grant a pardon under the prerogative of mercy was originally conferred by the Governor's Commission, and then by permanent Letters Patent as supplemented by Royal Instructions[88]. Those Letters Patent were revoked following the passing of the Constitution (Amendment) Act 1987 (NSW)[89], and the Governor's power is now generally to be found in s 7(2) of the Australia Act 1986 (Cth), which provides that "all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State".
3. The prerogative of mercy is a broad discretionary power exercisable by the Governor of New South Wales acting on the advice of the Executive Council and the Attorney-General[90]. Its purpose remains "to temper the rigidity of the law by dispensing clemency in appropriate circumstances"[91].
4. Over time, there came to be two distinct and alternative statutory pathways in New South Wales, now reflected in Pt 7 of the CAR Act, aimed at assisting in the exercise of the granting of a pardon under the prerogative of mercy, and providing for the quashing of convictions. Those two pathways "have different historical roots"[92]: one in s 475 of the Crimes Act 1900 (NSW) and the other in s 26(a) of the Criminal Appeal Act 1912 (NSW).
5. Section 475 of the Crimes Act, before its absorption into what became Pt 7 of the CAR Act, provided in substance that the Governor (on the petition of a convicted person or someone on their behalf) or the Supreme Court (on an application by or on behalf of the person or on its own motion) could, if a doubt or question arose as to the convicted person's guilt, mitigating circumstances, or any part of the evidence, direct a judicial officer to conduct a review by summoning and examining on oath all persons likely to give material information on the matter[93]. That evidence, along with the judicial officer's conclusions on the review, were then to be provided to the Governor "and the matter shall thereafter be disposed of, as to the Governor ... shall appear to be just"[94].

"Nothing in this Act shall affect the pardoning power of the Governor, but the Minister administering the Justices Act 1902, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may:

(a) refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted;

(b) if he desires the assistance of the court on any point arising in the case with a view to the determination of the petition, refer that point to the court for their opinion thereon, and the court shall consider the point so referred and furnish the Minister with their opinion thereon accordingly."

1. As was observed in Mallard v The Queen[99], provision for such referrals to the Court as found in s 26(a) owed its origin to public adverse reactions to the excessive imposition of capital punishment, and a judicial reluctance, even once Courts of Criminal Appeal were established and rights of appeal became more prevalent, to allow appeals in criminal cases[100]. Referrals to the Court of Criminal Appeal were, and are, "effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions"[101].
2. Those two pathways were made available, as options, in a single scheme for the first time by the Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW). The changes included inserting into the Crimes Act a new Pt 13A, titled "Review of Convictions"[102], which relevantly adopted the structure which now exists in Pt 7 of the CAR Act, containing both a form of the s 475 inquiry pathway and a form of the s 26 referral and opinion pathway.
3. The new Pt 13A incorporated a number of important reforms identified in a review undertaken a year earlier by the Criminal Law Review Division of the New South Wales Attorney-General's Department into s 475 of the Crimes Act[103]. In that review, the abolition of the s 475 pathway was not endorsed and its continued existence was said to have advantages, among other grounds, because the judicial officer has a broad discretion to determine the procedure at such an inquiry[104] and because of the limits on the scope of the s 26(a) pathway[105]. An Issues Paper published as part of that review, referred to by the Minister in his second reading speech on the Bill to introduce Pt 13A[106], stated that "the procedure under section 475 offers advantages which section 26 does not and vice versa. The availability of the section 26 procedure may not therefore on its own justify abolishing the section 475 procedure"[107]. The Issues Paper also addressed what the Minister indicated was a "present incompatibility between section 475 and section 26"[108], namely that there appeared "to be no requirement that an election be made between pursuing a section 475 inquiry and seeking a review of a conviction by any of the other means available", including by way of a s 26(a) referral[109]. As the Issues Paper noted, "[i]t will not always be a simple matter to determine which of the variety of mechanisms available for the review or scrutiny of criminal convictions is the most appropriate in a particular case"[110].

"There is no reason in principle why a corresponding power should not reside in the Supreme Court upon consideration of an application for an inquiry. It may be that the court considers that the matter warrants collective expertise of three judges sitting as the Court of Criminal Appeal rather than a judge sitting alone. This will remain a choice solely within the discretion of the Supreme Court. Given that a petitioner may choose between an application to the Governor and an application to the Supreme Court, it is considered desirable that the same outcomes be available for the disposition of the application regardless of the preferred venue."

Since 2006[113], the dual pathways and their symmetrical operation have been found in Pt 7 of the CAR Act.

1. Four interrelated aspects of the prerogative and the CAR Act should be noted. First, it is critical to recognise that by s 114 of the CAR Act nothing in that Act "limits or affects in any manner the prerogative of mercy". That is, despite the existence of Pt 7, the Governor of New South Wales retains the ability to and can grant a pardon, at any time. Second, the pardoning power, being one exercisable by the Governor of New South Wales, is in practice one which is exercised on the advice of the Executive Council and the Attorney‑General. So much is made plain by convention[114], and expressly by s 14 of the Interpretation Act 1987 (NSW)[115]. Third, s 114 indicates that the dual pathways brought together in Pt 7 of the CAR Act retain their character as avenues to both assist the Executive in its exercise of the pardoning power, and provide a substitute and alternative pathway to the invocation and exercise of that power[116].
2. Fourth, the exercise of the prerogative at all times remains politically controlled. The process of inquiries and referrals under Pt 7 reflects that essential fact. Under Pt 7, in respect of applications made to the Supreme Court, at each point in the process - when an application is made[117], when the Court decides which pathway to take[118], and on the completion of an inquiry[119] - the Supreme Court reports to the Executive. The reporting to the Executive, at each step, reflects that they are steps to assist in what is quintessentially a political decision whether to afford mercy to a person who will, apart from exceptional cases, have exhausted judicial remedies to challenge the conviction and sentence that constitute the final disposition of the judicial process. And it is a process during which the Executive Council and the Attorney‑General retain the ability to at any point advise the Governor of New South Wales to grant a pardon. Put in different terms, Pt 7 of the CAR Act is a process designed to assist in the exercise of the prerogative and to provide an alternative pathway to the invocation and exercise of that power and, for that reason, prescribes a necessary dialogue between the Executive of New South Wales and the Supreme Court of New South Wales.
3. It is therefore necessary to look, in some detail, at Pt 7 of the CAR Act to understand how it requires selecting one of two available mechanisms as the most appropriate mechanism to review a sentence or criminal conviction in a particular case.

1. Part 7, headed "Review of convictions and sentences", contains six Divisions. Division 2 deals with petitions to the Governor; Div 3 deals with applications to the Supreme Court of New South Wales; Div 4 deals with one of the mechanisms - an inquiry - and Div 5 deals in part with the second of the mechanisms - a referral to the Court of Criminal Appeal.
2. The words in the phrase "conviction or sentence", which is the hinge on which the Part operates, are defined in s 74 as follows:

(a) a verdict of the kind referred to in section 22(1)(c) or (d) of the Mental Health (Forensic Provisions) Act 1990, being a verdict that the accused person committed the offence charged or an offence available as an alternative to the offence charged, or

(b) an acquittal on the ground of mental illness, where the mental illness was not set up as a defence by the person acquitted.

sentence includes a sentence or order imposed or made by any court following a conviction."

1. Division 2 of Pt 7 concerns "Petitions to Governor". Section 76 provides that "[a] petition for a review of a conviction or sentence or the exercise of the Governor's pardoning power may be made to the Governor by the convicted person or by another person on behalf of the convicted person" (emphasis added). The "Governor" is, of course, the Governor of New South Wales.
2. Section 77 sets out the procedure for the Governor's consideration of a petition under s 76. Relevantly, after considering a petition, the Governor may direct that an inquiry be conducted by a judicial officer into the conviction or sentence[120]; the Attorney‑General may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act[121]; or the Attorney‑General may request the Court of Criminal Appeal to give an opinion on any point arising in the case[122]. The precondition to the exercise of these powers under s 77(1) is common: it must "appear[] that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case"[123].
3. The Governor or the Attorney-General may refuse to consider or otherwise deal with a petition[124], and may also defer consideration of a petition in certain circumstances[125]. Without limiting the power of refusal, they may do so if it appears that the matter has been fully dealt with in the proceedings[126], has previously been dealt with under Pt 7 or the previous review provisions[127], has been the subject of a right of appeal or to apply for leave to appeal but the convicted person has not appealed or not so applied[128], or has been the subject of an appeal or an application for leave to appeal which has been withdrawn or allowed to lapse[129]; and the Governor or the Attorney‑General is not satisfied that there are special facts or special circumstances that justify the taking of further action[130].
4. A petition made to the Governor also enlivens a duty upon the Attorney‑General to cause a report to be given to the Supreme Court as to any action taken by the Governor or the Attorney‑General under s 77 - whether that be to direct an inquiry to be undertaken, to refer the case to the Court of Criminal Appeal, to request that Court's opinion on a point in the case, to refuse to consider or otherwise deal with the petition, or to defer consideration of the petition[131]. As has been explained, this duty recognises, as does the cognate duty of the Supreme Court under s 78(2) in respect of applications for review of convictions and sentences to the Supreme Court, that the process of inquiries and referrals under Pt 7 reflects the political control of the prerogative.

Division 3 - Application for inquiry to Supreme Court

1. Division 3 of Pt 7 then provides for an application to be made to the Supreme Court, rather than a petition to the Governor. Section 78(1) provides that "[a]n application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person" (emphasis added). A copy of the application must be given by the registrar of the Criminal Division of the Supreme Court to the Minister[132]. The "Minister" is, of course, a State Minister, namely the Attorney-General.
2. After considering an application under s 78 for an inquiry into a conviction or sentence, or on its own motion, the Supreme Court - to be construed as the Chief Justice or a judge of the Supreme Court who is authorised by the Chief Justice to exercise the jurisdiction under Pt 7[133] - has two prescribed options: under s 79(1)(a), the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or, under s 79(1)(b), the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act. That is, the Supreme Court has two of the three powers which the Governor and the Attorney-General have under Div 2 in respect of petitions[134], but does not have the power to request the Court of Criminal Appeal to give an opinion on any point arising in the case[135]. The referral to the Court of Criminal Appeal is to be dealt with as an appeal under the Criminal Appeal Act because that procedure has been adopted as a mechanism for dealing with an application for the exercise of the prerogative by a person who will, apart from exceptional cases, have exhausted judicial remedies to challenge the conviction and sentence that constitute the final disposition of the judicial process. It will be necessary to return to consider this aspect further in addressing Div 5 of Pt 7.
3. Again, like the powers of the Governor and the Attorney-General under Div 2, action under s 79(1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case[136]. The Supreme Court may refuse to consider or otherwise deal with an application[137] in the same range of circumstances that the Governor or the Attorney‑General may refuse to consider or otherwise deal with a petition[138], and may also defer consideration of an application[139] in the same set of circumstances that the Governor or the Attorney‑General may do so[140].

Division 4 - Inquiries directed by Governor or Supreme Court

1. Division 4, headed "Inquiries", provides the procedures for an inquiry to be conducted as directed by the Governor under s 77(1)(a) or as directed by the Supreme Court under s 79(1)(a). An inquiry is to be conducted as soon as practicable after a direction for it has been given under s 77 or s 79[143].
2. The procedure to be adopted for conducting an inquiry is set out in s 81: if the inquiry is directed by the Governor, a judicial officer appointed by the Governor conducts the inquiry, and, if the inquiry is directed by the Supreme Court, a judicial officer appointed by the Chief Justice conducts the inquiry[144]. The judicial officer has the powers, protections and immunities conferred on a commissioner under specific provisions of the Royal Commissions Act 1923 (NSW)[145].
3. On completing an inquiry, the judicial officer must cause a report on the results of the inquiry (incorporating a transcript of the depositions given in the course of the inquiry) to be sent to the Governor, in the case of an inquiry held on the direction of the Governor, or to the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court[146]. In addition to this mandatory reporting, the judicial officer may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal for consideration of the question of whether the conviction should be quashed (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or for review of the sentence imposed on the convicted person (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence)[147]. Where a report is furnished to the Chief Justice under s 82, the Supreme Court must, after considering that report, cause its own report on the matter (together with a copy of the judicial officer's report) to be sent to the Governor[148]. Ultimately, the Governor may then dispose of the matter in such manner as to the Governor appears just[149].

1. Division 5 of Pt 7, headed "Court of Criminal Appeal", deals with the Court of Criminal Appeal's functions and jurisdiction following: the grant of pardons under the prerogative of mercy; Div 4 inquiries; and referrals to it under s 77(1)(b), s 77(1)(c) or s 79(1)(b).
2. First, s 84 provides the Court of Criminal Appeal with a power, but not a duty[150], to quash a conviction in respect of which a free pardon has been granted[151]. An application may be made to the Court of Criminal Appeal for the quashing of a conviction by a person to whom a pardon has been granted or by another person on behalf of that person[152]. The registrar of the Court must provide a copy of any such application to the Minister[153]. Section 85 then sets out a range of procedures the Court of Criminal Appeal is to follow in any proceedings in respect of such an application, including that the Court is to consider the judicial officer's report to the Chief Justice and the Supreme Court's report to the Governor as well as any submissions made by the Crown or the convicted person on any such report[154], and that the rules of evidence do not apply to such proceedings[155]. And, importantly, the provisions of Pts 3 and 4 of the Criminal Appeal Act apply to such proceedings as if the application is an "appeal" and the convicted person an "appellant" under those Parts[156]. That is, on an application under s 84 for the quashing of a conviction following the grant of a pardon, the Court of Criminal Appeal is invested with jurisdiction under the Criminal Appeal Act by which it may quash the conviction and direct a judgment and verdict of acquittal to be entered[157] on the usual bases that it may allow an appeal against conviction under that Act[158].
3. Second, where a judicial officer has exercised their discretion following a Div 4 inquiry to refer the matter the subject of the inquiry for consideration as to whether the conviction should be quashed or for review of the sentence imposed[159], s 88 then imposes a duty upon the Court of Criminal Appeal to deal with the matter so referred in the same way as if an application had been made to it for the quashing of a conviction following the grant of a pardon, as discussed in the preceding paragraph.
4. Third, where under s 77(1)(b) the Attorney-General, or under s 79(1)(b) the Supreme Court, has referred a whole case to the Court of Criminal Appeal to be dealt with as an appeal, s 86 imposes a duty upon the Court of Criminal Appeal to exercise the jurisdiction conferred on it under the Criminal Appeal Act by mandating that that Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under that Act.

Dialogue between Executive and Supreme Court in Pt 7

1. As has been seen, the reporting required under Pt 7 indicates that there is a mandated dialogue between the judicial and Executive arms of government, reflecting the political control of the prerogative. By way of summary, the Attorney‑General must report to the Supreme Court about the Governor's or the Attorney-General's exercise of powers in relation to petitions to the Governor under Div 2[160], the Supreme Court must give to the Minister, being the Attorney‑General, a copy of any application made to the Supreme Court under s 78 for an inquiry into a conviction or sentence[161] and the Supreme Court must report to the Minister as to the Supreme Court's exercise of powers in relation to an application for an inquiry under Div 3[162]. On completing an inquiry under Div 4, where a judicial officer has been appointed by the Governor because the Governor has directed under s 77(1)(a) that an inquiry be conducted, the judicial officer is to report on the results of the inquiry to the Governor[163], but where a judicial officer has been appointed by the Chief Justice because the Supreme Court has directed under s 79(1)(a) that an inquiry be conducted, the judicial officer is to report to the Chief Justice[164], which report the Supreme Court must consider before it must give its own report on the matter, together with a copy of the judicial officer's report, to the Governor[165]. It is a politically controlled process.

1. The focus of argument in this appeal has been on one provision in Div 3 of Pt 7 - s 79 of the CAR Act. Section 79 is not to be construed in isolation from the legislative scheme of which it forms part[166].
2. As has been explained, s 78 is the entry point for both of the identified pathways in s 79(1). It is s 78(1) which provides that "[a]n application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person" (emphasis added). This is important context - the application is one which seeks an "inquiry" under s 78. It may be accepted that the s 79(1) pathways are premised upon, although not solely conditioned upon[167], an application being made under s 78, but it is relevantly only after considering an application for an inquiry under s 78 that the Court decides which of the pathways, if any - an inquiry (s 79(1)(a)), or a referral without inquiry (s 79(1)(b)) - is to be adopted.
3. And, as has been seen, once the precondition to the exercise of power under s 79(1) is satisfied - "that there is a doubt or question as to the convicted person's guilt" or one of the other matters - there are two distinct pathways open to the Supreme Court should it decide to consider an application: a direction that an inquiry be conducted by a judicial officer into the conviction or sentence (s 79(1)(a)) or a referral of the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act (s 79(1)(b)). That is, there is one power enlivened by a condition, and two choices as to how to exercise that power.
4. It is for those reasons that, in practice, the Pt 7 scheme most commonly works as an addition to the appeal process once exhausted, rather than an alternative to that process. That is unsurprising given that the grounds for the Governor or the Supreme Court to refuse to deal with a petition or application, or to defer it, include that the person has not exhausted their appeal rights[168].
5. It is necessary to say something further about each pathway.

Section 79(1)(a) pathway - inquiry into conviction or sentence

1. As has been explained, the s 79(1)(a) pathway is an inquiry conducted by a judicial officer into a conviction or sentence. If the Supreme Court chooses the inquiry pathway, there are two potential, and alternative, ultimate exercises of judicial power that may result from such an inquiry. First, if the Governor, in disposing of a matter in such manner as to the Governor appears just[169], decides to grant a pardon under the prerogative of mercy[170], that then enlivens a judicial power[171], but not a duty[172], of the Court of Criminal Appeal to quash the conviction which is the subject of the pardon[173]. Second, if the judicial officer has exercised their discretion to refer the matter to the Court of Criminal Appeal following an inquiry under s 82(2), there is the exercise of judicial power of the Court of Criminal Appeal to quash a conviction or review a sentence[174]. Accordingly, if s 79(1)(a) could apply to federal offences, then these two potential and alternative judicial outcomes of that procedure, under ss 84 and 88, would be the exercise of federal judicial power.

Section 79(1)(b) pathway - referral of whole case to Court of Criminal Appeal

1. If the Supreme Court chooses the referral pathway to the Court of Criminal Appeal under s 79(1)(b), then, under s 86, that Court "is to" - read "must" - "deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly". Thus, once referred to the Court of Criminal Appeal, the ultimate determination of the case, being a determination made under the Criminal Appeal Act, would be an exercise of judicial power. Accordingly, if s 79(1)(b) could apply to federal offences, then the ultimate judicial outcome of that procedure, under s 86 applying the Criminal Appeal Act, would be the exercise of federal judicial power.

Question 1: Division 3 of Pt 7 of the CAR Act is an administrative function conferred on Supreme Court judges persona designata

1. A majority of the Court of Appeal held that the power exercised by a judge under s 79 of the CAR Act was administrative in nature and that the judge exercising it did so persona designata. All parties and the amici curiae supported that conclusion in this Court. There being no argument to the contrary, the answer to Question 1 is "Yes".

Question 2: Section 79 does not apply of its own force to federal offences

1. Part 7 of the CAR Act does not operate, of its own force, with respect to a "conviction or sentence" for an offence against a law of the Commonwealth. Question 2 should be answered "No".
2. The phrase "conviction or sentence" is the "hinge" for each Division in Pt 7[175]. "Conviction" and "sentence" are not defined by reference to convictions or sentences imposed by State courts, but by reference to offences. The specific inclusion in the definition of "conviction" of particular verdicts provided for in New South Wales legislation[176], and not cognate provisions in federal statutes[177], is one indication that that term is confined to offences against New South Wales laws. Another is that "sentence" is inclusively defined by reference to a "conviction".
3. Further, Div 2 of Pt 7, concerned with petitions to the Governor of New South Wales for a review of a conviction or sentence or the exercise of the Governor's pardoning power, cannot operate with respect to a "conviction" or "sentence" for a Commonwealth offence. The Governor of New South Wales cannot exercise the prerogative of mercy in respect of Commonwealth offences. That power is reserved for the Governor‑General. It would therefore be futile to read Div 2 as operating, of its own force, with respect to a "conviction or sentence" for an offence against a law of the Commonwealth when the petition is one that is given to the Governor of New South Wales. Furthermore, the outcome of a decision made by the Governor, or the New South Wales Attorney-General, to direct that an inquiry be undertaken under Div 4[178] or to request the opinion of the Court of Criminal Appeal[179], respectively, would be, in the former case, for the judicial officer to provide a report to the Governor on the outcome of the inquiry[180], and, in the latter case, for the Court of Criminal Appeal to furnish the New South Wales Attorney-General with its opinion[181]. Such outcomes would, of course, be futile in respect of Commonwealth offences - they could lead to no exercise of Commonwealth executive power.
4. And there is nothing to suggest that the reference to a "conviction or sentence" in Div 3, dealing with an application for an inquiry to the Supreme Court, can be or should be read differently so as to extend to a conviction or sentence in relation to an offence against a law of the Commonwealth. On the contrary, as a matter of statutory construction, absent some contrary indicator, the same words are to have the same meaning throughout Pt 7[182].

Question 3: Section 68(1) of the Judiciary Act cannot pick up and apply Div 3 of Pt 7 of the CAR Act as federal law

1. Specific aspects of s 68 of the Judiciary Act should be noted. The section appears in Pt X of the Judiciary Act, headed "Criminal jurisdiction", and concerns the application of laws in that jurisdiction. Division 1, headed "Application of laws", contains s 68, which itself is headed "Jurisdiction of State and Territory courts in criminal cases".
2. It was common ground that the objective of s 68 is to achieve parity in criminal procedure: "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice"[190]. That policy was directed to the administration of criminal justice by courts where the exercise of federal jurisdiction by State courts could only be made effective by the adoption of an approach that "proceed[ed] by analogy"[191].
3. To achieve that objective, s 68(2) of the Judiciary Act, under the power given by s 77(iii) of the Constitution[192], invests "[t]he several Courts of a State or Territory" with "like jurisdiction" with respect to persons charged with Commonwealth offences - in the exercise of federal judicial power or the performance of functions incidental to the exercise of that judicial power - in relation to identified subject matters of State or Territory jurisdiction with respect to persons charged with State or Territory offences: the summary conviction; the examination and commitment for trial on indictment; the trial and conviction on indictment; and "the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith"[193] (emphasis added). Section 68(2) therefore expressly authorises a degree of translation "by analogy"[194] by conferring "like jurisdiction". The extent of the translation of State laws is confined practically by the fact that s 68(2) is dealing with the jurisdiction of courts.
4. Section 68(1) provides that the laws of a State or Territory "respecting the arrest and custody of offenders or persons charged with offences, and the procedure for" (emphasis added) identified matters, as well as holding accused persons to bail, shall apply and be applied "so far as they are applicable" to persons charged with Commonwealth offences in respect of whom s 68 confers jurisdiction on the several courts of that State or Territory. Relevantly, one of the identified matters is "the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith" (emphasis added).

Section 79(1)(a) not picked up by s 68(1) - not procedure for hearing and determination of an "appeal"

1. The s 79(1)(a) pathway could be picked up by s 68(1) of the Judiciary Act only if it were a procedure for "the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith", where "appeal" is defined in turn to include "any proceeding to review or call in question the proceedings [or] decision". It is not.
2. It is an administrative process - an inquiry which is conducted by a judicial officer - which is not respecting an appeal, but the potential exercise of the prerogative of mercy. And that conclusion is reinforced by the fact that if an "appeal" was taken to extend to such an inquiry (and it does not), the word would have a different operation between s 68(1) and (2) simply because s 79(1)(a) is administrative. Thus, s 79(1)(a), which authorises a Div 4 inquiry by a judicial officer in a designated capacity, does not fall within the scope of s 68(1). Section 79(1)(a) cannot be characterised as a law respecting "the procedure for ... the hearing and determination of appeals".
3. Further, as has been explained[225], although an inquiry conducted under Div 4 after a direction made pursuant to s 79(1)(a) may result in the exercise of judicial power - either by the ultimate exercise of the Court of Criminal Appeal's power to quash a conviction following the grant of a pardon, or by its exercise of jurisdiction under the Criminal Appeal Act following a discretionary referral to it following an inquiry - in no way can those exercises of judicial power be considered an "appeal" so as to be picked up under s 68(1). That exercise of judicial power is contingent only, and inextricably bound up with the administrative process of a Div 4 inquiry. It would be to pick up a part of an "integral part of a State legislative scheme" such that to pick up some but not all of it under s 68(1) "would be to give an altered meaning to the severed part of the State legislation"[226].

Section 79(1)(a) not picked up by s 68(1) - not "applicable" - meaning changed

1. Even if s 79(1)(a) were a procedure for the hearing and determination of an appeal within the terms of s 68(1) of the Judiciary Act (and it is not), the s 79(1)(a) pathway still could not be picked up by s 68(1) because it would require too much rewriting to apply it to Commonwealth offences - the meaning of the relevant State provisions in Pt 7, and thus their legal operation, would be changed.
2. In short, there are a number of possible end points of an inquiry directed under s 79(1)(a) but, in every case, a report is sent to the Chief Justice[227], which report the Supreme Court must consider before it then must send its own report and a copy of the original report to the Governor[228] and the Governor may then dispose of the matter in such manner as to the Governor appears just[229] - which disposal may include a pardon under the prerogative of mercy[230].
3. The New South Wales Governor could not dispose of a matter relating to a Commonwealth offence - that is a matter for Commonwealth executive power, not State executive power. It would only be possible to take substantive action on receiving a report in respect of a federal offence if "Governor" in s 82 could be read as "Governor-General". That is not possible because the Governor-General acts on the advice of Commonwealth officials (namely, Ministers of State for the Commonwealth[231]), not State officials, pursuant to the system of responsible government provided for by the Constitution[232]. The report sent to the Governor under s 82(3) is that of the "Supreme Court"; however, "Supreme Court" in Pt 7 is to be construed as the Chief Justice, which would mean the Chief Justice of the Supreme Court of New South Wales, or a judge authorised by the Chief Justice[233]. That report is to be sent along with a copy of the judicial officer's report previously sent to the Chief Justice, where that judicial officer - a State judicial officer - has conducted the inquiry with the powers of a commissioner under the Royal Commissions Act[234]. The context of the legislative scheme indicates that the reports are prepared so as to inform the Governor's disposal power under s 82(4), which may lead to the grant of a pardon under the prerogative of mercy[235]. Those reports are thus provided to the Governor, and are prepared, by State officials. Although, in practice, the Governor-General acts on the advice of the Executive Council[236], that interposition would not change the conclusion that to translate Governor to Governor‑General would be to presuppose that the Governor-General would, in effect, rely and act on the advice of State officials.

Section 79(1)(b) not picked up by s 68(1) - cannot be picked up without s 79(1)(a) - integral part of legislative scheme

1. The next question is whether, despite the s 79(1)(a) pathway being unable to be picked up, the s 79(1)(b) pathway may nevertheless be picked up by s 68(1) of the Judiciary Act. For the following reasons, it cannot.
2. Section 79(1)(b) is but one pathway or mechanism - part of an integrated scheme - available for the review or scrutiny of criminal convictions and sentences[238]. Its selection, where an application is made to the Supreme Court, as the pathway for the potential review or scrutiny of criminal convictions and sentences is not automatic. The integrated scheme is drafted on the basis that it is not always a simple matter to determine, in any particular case, what is the most appropriate pathway[239]. Put in different terms, the text, structure, operation and history of Pt 7 of the CAR Act, in the context of the royal prerogative of mercy, recognise that there is a choice to be made about the appropriate way to address an application for mercy. In particular, the bringing together of the two pathways in the CAR Act in respect of applications made to the Supreme Court was not to remove one as an available option in an appropriate case but to ensure that the "same outcomes be available for the disposition of the application regardless of the preferred venue"[240]. That is, the inclusion of the s 79(1)(b) pathway as an option for applications made to the Supreme Court was consistent with the original legislative intention, in respect of petitions to the Governor, to fuse the inquiry and referral pathways into the one scheme so as to eliminate their "incompatibility"[241] and because, critically, each "offers advantages" which the other does not[242].
3. If s 79(1)(b) was capable of being picked up without s 79(1)(a), the alternative pathway critical to the scheme - an inquiry - would be absent. The need to retain a separate s 79(1)(a) pathway (formerly s 475) was addressed and accepted[243]. If s 79(1)(b) was picked up so as to be available for Commonwealth offences without the s 79(1)(a) pathway it would, in effect, abolish the s 79(1)(a) pathway for such offences[244]. That abolition was the very thing that the 1992 review did not endorse[245], and the Parliament ultimately rejected. The desirability of the continued existence of the s 79(1)(a) pathway was recognised, among other grounds, because the judicial officer has a broad discretion to determine the procedure at such an inquiry[246] and because of the limited scope of what is now the s 79(1)(b) pathway[247]. Adapting and adopting what was said in the Issues Paper, "the procedure under [s 79(1)(a)] offers advantages which [s 79(1)(b)] does not and vice versa. The availability of the [s 79(1)(b)] procedure may not therefore on its own justify abolishing the [s 79(1)(a)] procedure"[248]. It is not the role of the Court to redraft Pt 7 of the CAR Act to abolish the s 79(1)(a) pathway for Commonwealth offences but leave it intact for State offences. The A-G (Cth) accepted that the Commonwealth could enact a like procedure. If the Parliament wishes such a procedure to be available for federal offences, it should do so.

Section 79(1)(b) not picked up by s 68(1) - not "applicable" - meaning changed

1. Even if picking up s 79(1)(b) divorced from s 79(1)(a) were permissible (which it is not), s 79(1)(b) is not "applicable" within the meaning of s 68(1).
2. As has been explained, a referral to the Court of Criminal Appeal under s 79(1)(b) proceeds after an application is made under s 78(1) and is considered by the Supreme Court[249]. Such an application enlivens a duty upon the Supreme Court to provide a copy of that application to the State Attorney-General[250], and a referral under s 79(1)(b) enlivens a further duty upon the Supreme Court to report to the State Attorney‑General as to the fact of that referral[251]. In order to pick up s 79(1)(b), the Supreme Court's duties to report would need to be translated so that it would be required to make such reports to the A-G (Cth) in respect of applications concerning Commonwealth offences, or to the State Attorney-General and the A-G (Cth) in respect of applications concerning Commonwealth offences and State offences.
3. It is important to emphasise the purposes of the reporting duties. The first is practical. For example, there is utility in the Executive being provided with a copy of an application made to the Supreme Court and notice of the Supreme Court's decision under s 79(1)(a) to direct an inquiry under Div 4, because the outcome of such an inquiry is that the Executive will be provided with the relevant reports[252], which are intended to assist in the Governor's decision whether to grant a pardon. That is, the Executive is given notice of an application and an inquiry because it will, at some stage in the future, have to form a view on whether to grant a pardon. The same practical reasons attend the inverse reporting requirement in Div 2, whereby the Attorney-General is to report to the Supreme Court on any action taken on a petition[253] - the Supreme Court is informed of what it may, in the future, have to do in respect of such a petition.
4. However, if those practical reasons were the only reasons for such reporting, then the Supreme Court's duty to report to the Executive in respect of a referral under s 79(1)(b) would only have utility insofar as it would indicate to the Executive that the Executive has nothing further to do in respect of an application it has been advised of - it has no future role in the outcome of the Court of Criminal Appeal's exercise of power under s 86. But there is a second and more critical reason for these provisions, as explained earlier in these reasons. Such reporting reflects the legislative intention that there be a mandated dialogue between the judicial and Executive arms of government - a political process[254] - in respect of the mechanisms available to assist in the Executive's consideration of the exercise of the prerogative of mercy. And an essential reason for that dialogue is that, at all times, the Executive may decide, notwithstanding a s 79(1)(b) referral (or any action taken or not taken under s 79), to grant a pardon[255].

1. The Attorney-General of Victoria submitted that Div 3 of Pt 7 of the CAR Act applying as a Commonwealth law by force of s 68(1) of the Judiciary Act may infringe specific limitations on Commonwealth legislative power. Two were identified: that the Commonwealth Parliament cannot confer on a judge of a court in their personal capacity a non‑judicial function unless the individual judge has consented[256]; and that it cannot impose an administrative duty on the holder of a State statutory office without State legislative approval[257]. Given the views expressed, it is unnecessary to address these important issues[258]. But the issues raised reinforce that the Commonwealth should enact its own procedure if it wishes such a procedure to be available for federal offences; and if, as part of that procedure, it seeks to engage with a Chief Justice or judge of a State court or a State official, it must do so within power.

1. For those reasons, the appeal should be dismissed. There should be no order as to costs.

1. Four issues arise in a case concerning a State or Territory law applied by a State or Territory court exercising federal jurisdiction. First, what is the State or Territory law that is sought to be applied? This requires characterisation of rules within a State or Territory statute, at a level of generality consistent with their common purpose, that are so closely associated as to form a single "law". Secondly, is there a Commonwealth law that confers federal jurisdiction upon the relevant State or Territory court to adjudicate upon the subject matter of the relevant State or Territory law? Two such Commonwealth laws which are relevant to this appeal are ss 39(2) and 68(2) of the Judiciary Act 1903 (Cth). Thirdly, if the State or Territory court has federal jurisdiction over the subject matter, does the State or Territory law apply of its own force? This requires consideration of (i) whether the State or Territory law purports to operate in federal jurisdiction, and (ii) if so, whether it is within the power of the State or Territory Parliament to provide for the law to operate in federal jurisdiction. Fourthly, if the State or Territory law does not apply of its own force in federal jurisdiction, then is the text of that law picked up by a provision such as s 68(1) or s 79(1) of the Judiciary Act and applied as a Commonwealth law to permit the State or Territory court to exercise jurisdiction by reference to that Commonwealth law?
2. These issues arise in this appeal in the context of Mr Huynh's conviction of a Commonwealth offence in the District Court of New South Wales, namely conspiracy to import a commercial quantity of a border-controlled precursor in breach of ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). After his appeals were dismissed, Mr Huynh applied to the Supreme Court of New South Wales for an inquiry into his conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act").
3. Mr Huynh's application for an inquiry into his conviction was dismissed by Garling J, on the basis that the requirements of s 79(2) of the CAR Act were not satisfied. Mr Huynh sought judicial review of that decision. The Court of Appeal of the Supreme Court of New South Wales raised, and decided, a preliminary question as to whether the procedure for an inquiry was available to a person who had been convicted of a Commonwealth offence - that is, who had been convicted in federal jurisdiction. That preliminary question raised the four issues mentioned at the start of these reasons. A majority of the Court of Appeal dismissed Mr Huynh's application for judicial review.

Sections 78 and 79 of the CAR Act and s 68 of the Judiciary Act

1. Sections 78 and 79 of the CAR Act relevantly provide as follows:

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

(1) After considering an application under section 78 or on its own motion -

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if -

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."

1. Section 68 of the Judiciary Act relevantly provides as follows:

"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:

(b) their examination and commitment for trial 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:

(b) the examination and commitment for trial on indictment; or

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."

Three questionable assumptions that weaken the authority of this decision

1. A court decision is only authority for propositions it contains if those propositions have been the subject of argument. Even a matter that forms part of a decision's ratio decidendi "is not binding on later courts if the particular court merely assumed its correctness without argument"[260]. Where a decision is based upon an assumption that has not been the subject of argument, a later court is not bound by that decision if it concludes that the assumption was not correct. In that respect, the authority of a decision is only as strong as the assumptions which support it.
2. Unfortunately, the foundations of this appeal were built upon three questionable and compounding assumptions, which significantly reduce the extent of this decision's authority. The falsification of any of these assumptions would prevent any aspect of s 79(1) of the CAR Act from being picked up and applied as a Commonwealth law.

1. The first assumption was that s 79(1) of the CAR Act does not confer power on the Supreme Court at all, but rather empowers the Chief Justice or an authorised Judge of the Supreme Court (who can conveniently be described as the "designated officer") acting personally as persona designata[261]. This assumption means that the "jurisdiction" of the "Supreme Court"[262], being exercised by a designated officer under s 79(1), is not the jurisdiction of the Supreme Court at all.
2. To the extent that s 79(1) can be picked up and applied as a Commonwealth law, the first assumption has two associated aspects. First, it means that neither the Chief Justice nor any Judge authorised by the Chief Justice can be compelled to be a designated officer[263]. Secondly, it arguably means that the designated officer cannot be under a duty to act in any circumstance[264] (or, if the designated officer were under such a duty, then somehow s 4AAA of the Crimes Act 1914 (Cth) could operate upon a law of a State to remove that effect[265]).
3. This assumption - that the power under s 79(1) was a non-judicial power conferred persona designata - was questioned by this Court at the start of the oral hearing of this appeal. But none of the parties sought to depart from it and there was no argument as to its correctness. If the assumption were incorrect, then s 68(1) of the Judiciary Act could not, consistently with the separation of powers at the Commonwealth level, operate in federal jurisdiction to pick up and confer the non-judicial power under s 79 of the CAR Act[266], unless that non-judicial power could be said to be merely incidental to judicial power[267]. Further, as the Attorney-General for the State of Victoria cogently submitted, if either the first or the second associated aspects to this assumption were incorrect then s 68(1) would be unable to pick up s 79 of the CAR Act because to do so would contravene the Constitution[268].

1. The first assumption was compounded by a further assumption. The parties assumed that s 68(1) of the Judiciary Act - requiring various laws of a State or Territory to "apply and be applied" to persons who are charged with offences against the laws of the Commonwealth - operated generally to provide power to officials including State or Territory judicial officers and State or Territory police officers. But just as s 79(1) is expressed to apply various State or Territory laws to courts rather than officials or other persons[269], s 68(1) is expressed to apply various State or Territory laws to "persons who are charged with offences against the laws of the Commonwealth". Section 68(1) is not expressed to apply State or Territory laws to officials or other persons.
2. It would be one thing, for example, for s 68(1) to pick up a State law to enable a court warrant to be issued for the arrest of a person charged with a Commonwealth offence. That would arguably be to apply a State law to the person charged with a Commonwealth offence. But it may be another thing for s 68(1) to pick up and apply to a Commonwealth offence those State laws concerning the extent and operation of a State police officer's powers of arrest without a court warrant[270]. That might, arguably, be a law addressed to the police officer, not to a person charged with a Commonwealth offence.
3. So, too, it would be one thing for s 68(1) to pick up a State law empowering, or even requiring, the Court of Criminal Appeal to accept an application for referral by a person convicted of a Commonwealth offence, or their representative. That would arguably be to apply a State law to the person charged with a Commonwealth offence. The same point might even be made of a broad power of referral by the Executive: "it seeks to set in train, by a referral, the case to be heard and determined as if it were an appeal by the offender"[271]. But it may be another thing for s 68(1) to pick up a State law that requires a designated officer to consider an application for referral in a particular way and subject to particular criteria and, applying those criteria, to decide whether to exercise the power of referral. That would arguably be a law addressed to the designated officer, not to the person charged with a Commonwealth offence. In all of these cases, it will depend on the characterisation of the law as a matter of substance as to whether the law is one that applies to persons who are charged with offences against the laws of the Commonwealth. But no submissions were made about this issue on this appeal. It was simply assumed that s 79 of the CAR Act was a law that applied to persons charged with offences against a law of the Commonwealth.

1. The second assumption was compounded by a third assumption. The third assumption was that s 68(2) of the Judiciary Act is capable of picking up s 86 of the CAR Act, with the effect of conferring jurisdiction on the Court of Criminal Appeal to hear and determine an application referred to it by the designated officer under s 79(1)(b) of the CAR Act.
2. There are two aspects to the third assumption. The first is that s 86 of the CAR Act involves the exercise of judicial power within the broad meaning of an "appeal" by requiring the Court of Criminal Appeal to hear and determine a case "in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912". That assumption can readily be accepted, particularly in light of the history of the exercise of such a power[272], and the breadth of the essential meaning of "appeal[]" in s 68(2) as explained later in these reasons.
3. The second aspect to this assumption is more difficult. It assumes that the designated officer's discretion under s 79(1)(b) to refer a case to the Court of Criminal Appeal is an incident of the appellate power in s 86 of the CAR Act, and therefore that s 79(1)(b) is a law "respecting ... the procedure for ... the hearing and determination of appeals"[273]. A referral might readily be seen to be an incident of appellate power where the referral to the Court of Criminal Appeal is made following an application to the Court of Criminal Appeal by the convicted person, or even by a law officer[274]. But the legislated process of applying to, and obtaining a decision from, a designated officer is arguably sufficiently separate from any later appeal to preclude it from being treated as a mere incident of appellate power.
4. The designated officer, as the decision maker, is interposed between the statutory application by the convicted person and the referral of the case to the Court of Criminal Appeal. There is no obligation for the application to be considered by the designated officer[275]. But, unlike a broad power of referral that might be conferred upon a law officer, there may arguably be a duty upon the designated officer, subject to exceptions[276], to make the referral if the designated officer chooses to consider the application[277] and has "a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case"[278]. It is therefore arguable that the step taken in s 79(1)(b) is more than a mere incident of appellate jurisdiction or procedure for determining an appeal. But that was not the subject of any argument in this Court.

The first issue: what is the State or Territory law that is sought to be applied?

1. When difficult issues arise in federal jurisdiction the starting point will almost always be to identify the State or Territory law that is sought to be applied, either of its own force or by being picked up and applied as a Commonwealth law by a provision such as ss 79(1) and 68(1) of the Judiciary Act. In this context, a "law" is a statutory rule on a particular subject. A statutory enactment might contain rules on different subjects and, therefore, different "laws". But difficult questions may arise when determining where one rule ends and another begins. Further, the subject of the rule can be stated at a higher or lower level of generality. The higher the level of generality at which the rule is stated, the broader will be its scope.
2. In some instances, the relevant law will be a large part of, or the entirety of, the statutory regime on a subject. In The Commonwealth v Mewett[279], one question was whether s 79(1) of the Judiciary Act picked up the limitation period contained in ss 14(1) and 63(1) of the Limitation Act 1969 (NSW) with the effect that upon expiry of the time period (including any extension of time under the Act) the causes of action of two of the respondents were extinguished. The initial period of limitation had expired before any action was commenced by the relevant respondents, but each had applied for an extension of time under the extension provisions in the Limitation Act, so the period could not yet be said to have expired.
3. In the reasons of Gummow and Kirby JJ in Mewett, with which Brennan CJ generally agreed, it was explained that s 79 had to operate upon the whole of the Limitation Act regime, including the extension provisions. Since the "regime of extensions" was "an integral part of the legislative scheme", s 79 "could not operate to pick up some but not all of the otherwise applicable terms of the [Limitation Act], for to do so would be to give an altered meaning to the State legislation"[280]. That reasoning was later applied by five members of this Court[281].

1. Yet another assumption upon which this appeal was conducted was that the relevant law to apply in federal jurisdiction was the provisions of Div 3 of Pt 7 of the CAR Act in respect of an application for an inquiry into a conviction or sentence, namely ss 78 and 79 of the CAR Act. That law must necessarily include the provisions concerning an inquiry under s 79(1)(a)[282] and the provisions concerning a referral to the Court of Criminal Appeal under s 79(1)(b)[283].
2. On one view, however, it is artificial to treat ss 78 and 79 in isolation from the rest of the scheme of review of convictions and sentences of which they form part. That view would treat the law as one concerned with review of convictions and sentences and comprised by all the provisions of Pt 7 of the CAR Act. The careful analysis by Gordon and Steward JJ of the interrelationship of many of these provisions provides support for this broader view of the law that would need to be picked up in its entirety by s 68(1), subject to the severance of any of the provisions of Pt 7 which could not be picked up in federal jurisdiction.

The second issue: can federal jurisdiction be conferred upon the State or Territory court?

The nature of federal jurisdiction and the need for its conferral

1. Jurisdiction is "the authority which a court has to decide the range of matters that can be litigated before it"[284]. Following Federation, State courts had concurrent State jurisdiction for some matters that fell within federal jurisdiction, such as matters between residents of different States[285]. But where a matter concerned exclusive federal jurisdiction then, by definition, that jurisdiction (authority) required federal authorisation. Prior to the enactment of s 39 of the Judiciary Act in 1903, the federal authority for State courts to decide matters under Commonwealth laws was conferred by covering cl 5 to the Constitution, which bound State courts and State judges to use their existing powers to apply Commonwealth laws[286].
2. Immediately after Federation, a State court dealing with a matter arising under a Commonwealth law would therefore have exercised its powers with federal authority. A State court might have been treated as a component part of the federal judicature, but it was not a federal court. The Constitution recognises "in the most pronounced and unequivocal way" that it remains a State court even where the adjudication of a federal matter "utilize[s] the judicial services of State Courts"[287].
3. Section 39(1) of the Judiciary Act, enacted pursuant to s 77(ii) of the Constitution, removed the authority of State courts to adjudicate upon federal matters. Then, pursuant to s 77(iii) of the Constitution, s 39(2) and s 68(2) invested new federal authority in State courts with conditions regulating that federal authority. The new federal authority took State courts as they existed[288]: the conferral was of "additional judicial authority upon a Court fully established by or under another legislature"[289]. The new federal authority also left unaffected many existing State laws that could be the subject of adjudication with the new authority conferred: there was a single composite body of law within the federal jurisdiction that "remains the same, but the source [of authority to adjudicate upon those laws] is different"[290].

The conferral of federal jurisdiction by s 68(2) of the Judiciary Act

1. Since s 68(2) of the Judiciary Act confers federal jurisdiction upon the courts of a State or Territory, any consideration of the operation of s 68 must begin with the federal jurisdiction conferred by s 68(2), before turning to the State or Territory laws within that federal jurisdiction that are picked up and applied as Commonwealth laws by s 68(1).
2. The general policy of s 68(2) is "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice"[291]. In implementing that policy, the federal jurisdiction conferred by s 68(2) in relation to Commonwealth criminal matters is in addition to the federal jurisdiction conferred by s 39(2)[292].
3. In cases in which both provisions have been potentially applicable, this Court has not previously resolved which of them contains the relevant conferral of jurisdiction - or whether it is contained in both[293]. On some occasions, this Court has focused upon the jurisdiction conferred by s 39(2) on the premise that s 68(2) had not relevantly detracted from the conferral of jurisdiction in s 39(2)[294]. On other occasions, members of this Court have focused upon s 68(2), as the more specific of the two provisions[295], or because it may be "more extensive" even though s 39(2) "also confers upon State courts federal jurisdiction in criminal matters"[296].
4. The focus in this case was upon s 68(2) simply because it was the relevantly broader provision. Section 68(2) was extended in 1932[297] in response to the decision of this Court in Seaegg v The King[298], which had denied that State courts had jurisdiction under either s 39(2) or s 68(2) to hear appeals from convictions for Commonwealth offences[299]. It suffices to focus upon s 68(2) for that reason. Importantly, in the present case it was not suggested by counsel for any party, or by the amici curiae, that s 68(2) "displaces" s 39(2), at least if that expression is taken to mean that s 68(2) covers the field in the areas of its subject matter generally so that s 39(2) would be incapable of conferring jurisdiction over a matter that falls within the subject matter but outside the scope of s 68(2). That would be a most unusual interpretation of a jurisdictional provision[300]. It may also be an interpretation that is contrary to the background and purpose of s 39(2), especially in light of the existence, until 2006, of s 39(2)(d) of the Judiciary Act[301]. And it may also be an interpretation that is inconsistent with the approach unanimously taken by this Court regarding the concurrent operation of ss 68 and 79(1) of the Judiciary Act[302]. In any event, consistently with the caution exercised by this Court in previous cases[303], it is neither necessary nor appropriate to decide such a large question without argument.

Section 68(2) of the Judiciary Act confers federal jurisdiction on a State or Territory court with respect to Div 3 of Pt 7 of the CAR Act

1. In assessing whether s 68(2) confers federal jurisdiction on the Supreme Court in relation to the relevant subject matter in Div 3 of Pt 7 of the CAR Act, it is useful to conceive of ss 79(1)(a) and 79(1)(b) as "gateways" (to adopt the metaphor used by Basten JA in the New South Wales Court of Appeal[306]) to the jurisdiction that is conferred by ss 86 and 88 of the CAR Act.
2. Section 86 confers jurisdiction on the Court of Criminal Appeal following: (i) a referral under s 77(1)(b) by the Attorney-General in response to a petition for the exercise of the Governor's pardoning power; or (ii) a referral by the designated officer under s 79(1)(b). It confers jurisdiction on the Court of Criminal Appeal to exercise its existing powers to deal with the case referred in the same way as if the convicted person had appealed against the conviction or sentence. That exercise of judicial power involves considering all relevant questions of fact and law in assessing the ultimate question of whether a miscarriage of justice has occurred. The ultimate question is "the same question as would exercise the mind of the Executive were it to deal with a petition rather than refer it to the Court of Criminal Appeal for determination"[307]. But the proceeding remains an exercise of judicial power and a species of appeal within the jurisdiction conferred by s 68(2) concerning the hearing and determination of appeals arising out of a conviction on indictment. It is capable of being the subject of federal jurisdiction.
3. The same is true of s 88. Under s 88, following a referral to the Court of Criminal Appeal by the judicial officer who conducted the inquiry under s 79(1)(a), the Court of Criminal Appeal is to deal with the matter so referred in the same way as if an application for the quashing of the conviction had been made to the Court by the convicted person. The Court is to consider whether to exercise its power to quash the conviction[308], or to review the sentence imposed[309]. The process for the exercise of those powers, provided in s 85, is different from a conventional appeal, in that the only material to be considered without leave of the Court is the report by the judicial officer, the report by the designated officer and any submissions by the Crown or by the convicted person. Nevertheless, the matter remains a judicial proceeding and an "appeal" within s 68(2) of the Judiciary Act, falling within the extended definition in s 2 as an application for review of the decision of any court.

The third issue: can ss 78 and 79 of the CAR Act operate of their own force in federal jurisdiction?

Limits on the power of State Parliaments to legislate within federal jurisdiction

1. Although the new federal authority conferred by provisions such as ss 39(2) and 68(2) of the Judiciary Act took State courts as it found them and generally authorised the adjudication of disputes arising from existing State laws, the conditions upon, and regulation of, that authority over federal subject matters is exclusively a matter for the Commonwealth Parliament. State laws cannot "govern" or "regulate" the exercise of federal jurisdiction over those subject matters any more than they can confer that federal jurisdiction[310].
2. There is, unfortunately, significant difficulty in identifying whether a State law is one that governs or regulates the exercise of federal jurisdiction, or whether it is one that can apply of its own force in federal jurisdiction. In McKain v R W Miller & Co (SA) Pty Ltd[311], Mason CJ said that "rules which are directed to governing or regulating the mode or conduct of court proceedings" are "the essence of what is procedural". Subsequently, five members of this Court referred to this statement and said that "'rules which are directed to governing or regulating the mode or conduct of court proceedings' are procedural and all other provisions or rules are to be classified as substantive"[312].
3. Those laws that are said to govern or regulate the exercise of federal jurisdiction are plainly, at their heart, procedural. There is also no difficulty in describing as "procedural laws" those described in s 79(1) of the Judiciary Act as "laws relating to procedure, evidence, and the competency of witnesses". But the distinction between procedural and substantive laws is "sometimes doubtful or even artificial"[313]. And it may have been an overstatement by members of this Court to describe all laws that govern or regulate the exercise of federal jurisdiction as procedural.
4. In Rizeq v Western Australia[314], this Court did not explain how to identify a law that governs or regulates the exercise of federal jurisdiction. As Professor Gummow has observed, that case created a "fresh area for disputed characterisation", arising from the purported distinction drawn between those laws that govern or regulate the exercise of federal jurisdiction and those that do not[315]. The joint judgment in Rizeq did contrast laws that regulate the manner of exercise of federal jurisdiction with laws that are determinative of the rights and duties of persons and which operate of their own force[316]. But that distinction is not exhaustive, because there will be some laws that fall into neither category. And, as Leeming JA observed in the Court of Appeal in this case, there will also be some laws that could fall into either category, depending upon the circumstances of their application[317].

Two obstacles to s 79 of the CAR Act operating of its own force in federal jurisdiction

1. In principle, it could have been possible for s 79 of the CAR Act to operate of its own force to federal offenders over whom the Court of Criminal Appeal exercises jurisdiction under s 86 or s 88 of the CAR Act. For instance, s 79 would have been within State legislative power if it were limited to permitting a judicial officer to: (i) inquire into, and provide a report to the Governor in respect of, a State conviction or sentence; and (ii) inquire into, and provide a report to the Governor-General in respect of, a federal conviction or sentence. A State Parliament has power to confer such a non-judicial, executive power on State judges, acting persona designata, provided that the power is not one that purports to govern or regulate the way federal jurisdiction is exercised[322].
2. In dissent in the New South Wales Court of Appeal, Leeming JA saw s 79 as operating in this manner. His Honour's view was that s 79: (i) was a law that applied to State judges as persona designata; (ii) was intended to apply to Commonwealth offences as well as to State offences; and (iii) was not a law that governed or regulated federal jurisdiction. On these premises, the conclusion of Leeming JA that Div 3 operated of its own force was incontrovertibly correct. But, with great respect and recognising that the ill-defined notion of governing or regulating federal jurisdiction has no clear boundaries, steps (ii) and (iii) cannot be accepted.

Section 79 of the CAR Act does not purport to apply to Commonwealth offences

1. Although the matter is finely balanced, the better interpretation is that the Parliament of New South Wales impliedly confined Div 3 of Pt 7 of the CAR Act to New South Wales offences, including offences under the common law of Australia as modified from time to time in New South Wales[323]. It is true that Div 3 makes no express mention of the jurisdiction of the laws under which offenders were convicted. It is also true that the definition of "sentence", relevant to "an inquiry into a conviction or sentence" in s 78, includes a sentence or order "made by any court following a conviction"[324]. But the implication throughout Pt 7 is that a "conviction" and a "sentence" (the inclusive definition of which is based on a "conviction") will be for a State offence and (necessarily) that "any court" means any State court. Three matters contribute to this implication.
2. First, the "hinge" or central subject matter upon which Div 3 of Pt 7 operates, at the appropriate level of generality, is a "conviction or sentence". Subject to indications to the contrary, s 12(1)(b) of the Interpretation Act 1987 (NSW) recognises common expectations that, in a New South Wales Act, the central subject matter of a "conviction or sentence" will be taken to refer to a conviction or sentence "in and of" New South Wales[325].
3. Secondly, an inquiry by a judicial officer into a conviction or sentence can be ordered by the Governor under Div 2[326] or by the Supreme Court under Div 3[327]. The scope of a "conviction or sentence" must be the same in each case. And the "conviction or sentence" with which the Governor is concerned in Div 2 can only be a conviction or sentence under State law. That is because, as s 76 contemplates, a consequence of the inquiry could be a pardon by the Governor, and the State Governor cannot pardon a person who has been convicted of a Commonwealth offence.
4. Thirdly, the inclusive definition of "conviction" in s 74(1) focuses only on an extension within State law to verdicts under the particular State mental health legislation.

The Parliament of New South Wales would not have had power to extend s 79(1)(b) to Commonwealth offences

1. Another reason that s 79 of the CAR Act cannot operate of its own force, at least in part, is that, on the assumptions upon which this appeal was conducted, s 79(1)(b) is a law that governs or regulates federal jurisdiction. As explained, a State or Territory Parliament has no power to pass a law that governs or regulates federal jurisdiction.
2. On the first and third assumptions upon which this appeal was conducted, the exercise of power under s 79(1)(b) by a designated officer of the Supreme Court acting persona designata is an exercise of executive power which is incidental to the jurisdiction of the Court of Criminal Appeal. This executive power gateway to the jurisdiction of the Court of Criminal Appeal operates as a pre-condition upon any federal jurisdiction of the Court of Criminal Appeal. If the terms of the CAR Act purported to apply s 79(1)(b) to Commonwealth offences, the consequence would therefore be that, to that extent, s 79(1)(b) would be an impermissible attempt to govern or regulate the federal jurisdiction of the Court of Criminal Appeal.

The fourth issue: can s 68(1) of the Judiciary Act pick up the text of ss 78 and 79 of the CAR Act?

1. Since those State or Territory laws that purport to govern or regulate federal jurisdiction are unable to operate in federal jurisdiction of their own force, and since some State or Territory laws do not purport to operate in federal jurisdiction, there will be some laws concerning subject matters of federal jurisdiction which do not apply uniformly in State (or Territory) and federal jurisdiction. Provisions such as ss 68(1) and 79(1) of the Judiciary Act have been said to fill the "gap in the law governing the exercise of federal jurisdiction by picking up State laws which regulate the exercise of State jurisdiction"[328] and "operat[ing] only" to that extent[329]. But the metaphor of "filling the gap" is not entirely apt. A better description of the purpose of these provisions is that they seek to ensure, as far as possible, that the laws in federal jurisdiction are the same as those in State or Territory jurisdiction in respect of the relevant subject matters.
2. The differences between State or Territory laws that operate in federal jurisdiction and those that operate outside federal jurisdiction are not confined to laws that govern or regulate a court's jurisdiction. In the field of criminal justice, for example, State or Territory laws might concern processes that are anterior to the exercise of a court's jurisdiction, such as arrest and custody of offenders by State or Territory police officers. Or State or Territory laws might concern processes that are posterior to the exercise of a court's jurisdiction, such as whether a pardon should be granted for an offender.
3. Section 68(1) is not merely concerned with the judicial processes governing or regulating the jurisdiction of a court. It is also concerned with anterior and posterior processes. Just as the purpose of s 68(2) in conferring federal jurisdiction with respect to a particular subject matter - criminal justice - on State or Territory courts is to avoid the creation of two substantively different jurisdictions of criminal justice, so too the purpose of s 68(1) is to avoid the creation of substantively different legal rules for persons charged with Commonwealth offences. Section 68(1) seeks to achieve this alignment in respect of: (i) those rules governing or regulating the administration of criminal justice that apply to persons charged with State or Territory offences; and (ii) those rules concerning the anterior or posterior processes of criminal justice that apply to persons charged with State or Territory offences.

1. In order to "apply" the State or Territory law, as s 68(1) requires, the meaning and scope of application of the law's text can be extended in a limited way, without changing its essential meaning, from State or Territory circumstances to federal circumstances. For instance, a State law applicable to the Attorney-General or Director of Public Prosecutions of a State can be extended to apply to the Attorney-General of the Commonwealth or the Commonwealth Director of Public Prosecutions[330]. Or, a State law that applies to the Crown in right of the State of New South Wales can be extended to apply to the Crown in right of the Commonwealth[331].
2. The meaning and scope of application of the text of the law can also be narrowed in applying the law to federal circumstances but without changing its essential meaning. This process of picking up the text of a State or Territory law and converting it into a Commonwealth law is not an exercise of interpretation of either a State or Territory law or a Commonwealth law, so it does not involve the application of any State (or Territory) or Commonwealth interpretation provisions. But three ways by which a court can change the non-essential meaning or application of a State or Territory law in the process of picking up that law correspond with the three techniques under s 15A of the Acts Interpretation Act 1901 (Cth), and its State and Territory equivalents: (i) the law can be "read down" to give it a more limited interpretation; (ii) independent and separate words can be severed from the text of the law; or (iii) the scope of the terms of the law can be limited by "partial disapplication" of the law[332]. These techniques mark the boundary beyond which a court will move from adjudicating to legislating.
3. The relevant technique relied upon by the Attorney-General of the Commonwealth in this case was severance of s 79(1)(a) from s 79(1)(b) of the CAR Act. In Harrington v Lowe[333], six members of this Court described the process of severance as "textual surgery by operation of the 'blue pencil' rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified". But, their Honours emphasised, severance is only possible where:

"there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be".

1. As explained above, in Mewett this Court rejected the possibility of the severance of part of the single law concerning limitation of actions. In Mewett, the limitation of actions scheme was too closely interrelated and interdependent to be the subject of severance. Another example where the possibility of severance was rejected is Solomons v District Court (NSW)[334]. The issue in that case was whether s 2 of the Costs in Criminal Cases Act 1967 (NSW) could be picked up and applied as a Commonwealth law by s 68 or s 79 of the Judiciary Act. Section 2 created a power for a court to grant a costs certificate, including to a defendant who had been acquitted of an offence. Section 4 provided that a person who had been granted a costs certificate could apply to the Under Secretary of the Attorney-General's Department for payment from the Consolidated Revenue Fund of the costs to which the costs certificate related. A decision as to whether the making of a payment was justified was to be made by the Treasurer. It was held that s 4 could not be picked up and made "applicable" in federal jurisdiction by the "transmutation" of an obligation for payment by a State official for a State offence to an obligation for payment by a State official for a Commonwealth offence[335]. And given that s 2 was part of the same law as s 4, the joint judgment posed the question: "what would be the utility of the certificate, unless it might found an application under s 4 ... ?"[336]
2. In contrast with cases such as Mewett and Solomons, however, two decisions of this Court that were discussed by Basten JA in the Court of Appeal can be seen as instances that fall on the other side of the divide. Those cases illustrate the scope of legitimate severance in relation to a State law concerning juries that, following the severance of an invalid part, could be picked up and applied by s 68(1) of the Judiciary Act[337].
3. The first case permitting severance is Brown v The Queen[338]. In South Australia, s 68(2) of the Judiciary Act had vested federal jurisdiction in State Supreme and District Criminal Courts for the trial on indictment of offences against laws of the Commonwealth[339]. It appears to have been assumed in Brown that prior to 1984 the text of the provisions of the Juries Act 1927 (SA) that regulated such trials would be picked up by s 68(1) of the Judiciary Act.
4. In 1984, a new s 7 of the Juries Act came into force. That provision added a discrete and separate component to the regulation of trials on indictment. It gave an accused person, in certain circumstances, a power to elect for a trial by judge alone. A majority of this Court held that s 7 would have been inconsistent with s 80 of the Constitution and therefore invalid if it had purported to apply to Commonwealth offences. Section 7 was not "applicable" to those offences[340]. The effect, as Dawson J in the majority described it, was to "disregard s 7 in the application of the Juries Act" because the remaining provisions of the Juries Act could "operate independently of s 7 which introduced waiver of trial by jury by election only in 1984"[341].

1. The first problem with picking up the text of s 79 to be applied as a Commonwealth law is that s 79(1)(a) is not even within the scope of the jurisdiction conferred by s 68(2)[346]. Section 68(2) could arguably provide authority for the exercise of an executive power that could be characterised as one that was with respect to the hearing and determination of appeals by a State or Territory court[347]. But s 68(2) cannot provide authority for the exercise of the independent executive power by a designated officer under s 79(1)(a). On the first assumption upon which this appeal was conducted, a direction by a designated officer under s 79(1)(a) of the CAR Act confers executive power for an inquiry upon a judicial officer as persona designata. The power to order an inquiry under s 79(1)(a) is independent of any appeal. It has an inquiry as the immediate consequence. Indeed, it need not even result in a referral to the Court of Criminal Appeal.
2. In any event, the text of s 79(1)(a) of the CAR Act cannot be picked up and applied as a law of the Commonwealth by s 68(1) of the Judiciary Act. Contrary to Mr Huynh's submission, s 68(1) is not capable of picking up the text of s 79(1)(a). There is a broad scope to the laws encompassed by the reference in s 68(1)(d) to "the procedure for ... the hearing and determination of appeals"[348]. But one significant limit to the breadth of that scope is that an "appeal" has an essential meaning which excludes a non-judicial proceeding, as discussed above in reference to s 68(2) and as reflected in the 1932 extension of s 68.

Section 79(1)(b) could be picked up by s 68(1) if s 79(1)(a) were severed

1. As to s 79(1)(b), the combination of the three assumptions upon which this appeal was conducted has the effect that if s 79(1)(a) were severed, the remainder of s 79 would fall within s 68(1)(d) respecting the procedure for the hearing and determination of an appeal. Section 79(1)(b) would theoretically be picked up and applied to a person charged with a Commonwealth offence by empowering a designated officer, acting persona designata, to refer a case to the Court of Criminal Appeal as an incident of the appellate power in s 86 of the CAR Act.

1. The severance that was recognised in Brown[349] and Cheatle[350] was in the context of judge-alone trial provisions and majority verdict provisions that had been separately added to a law concerning the operation of juries. Unlike the law in Solomons, the South Australian law considered in Brown and Cheatle had previously operated, and could continue to operate in the same manner, without the judge-alone trial provisions and majority verdict provisions.
2. Section 79(1)(a) of the CAR Act cannot be seen as independent of the remainder of ss 78 and 79 in a manner analogous to the particular judge-alone trial provisions and majority verdict provisions in Brown and Cheatle. Those decisions were based on a characterisation of the law in question as one concerning the "jurisdiction in respect of trials on indictment"[351]. The two streams of jurisdiction - trial by jury and trial by judge alone - and the two modes of verdict that could be taken were severable from each other. By contrast, apart from acts of the Court's own motion, ss 79(1)(a) and 79(1)(b) both depend upon an application by the convicted person under s 78 for an inquiry into conviction or sentence. The invalidity in federal jurisdiction of an inquiry means that the application under s 78 would be for a remedy in federal jurisdiction that does not exist.
3. A closer analogy to the issue of severance of s 79(1)(a) of the CAR Act is the decision of this Court in Australian Railways Union v Victorian Railways Commissioners[352]. In that case, this Court held that it was not possible to sever an invalid provision (which provided for a particular application) from a related provision (which provided for a consequence of that application). Section 34 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) provided for the appointment of Conciliation Committees by the Governor-General upon application. Section 33 had the effect that the result of a successful application would be to transfer the authority of the Court of Conciliation and Arbitration to the Conciliation Committee. A majority of the Court held that s 34 was invalid and that it could not be severed from s 33. As Rich, Starke and Dixon JJ observed, the terms of s 33 were "expressed to depend upon [s 34(2)]"[353].
4. There is, however, an even more fundamental reason that prevents s 79(1)(a) from being severed from s 79 in the process of picking up the law as a Commonwealth law under s 68(1) of the Judiciary Act. Such severance would defeat the purpose of the legislative amendments that created this scheme. That purpose was to ensure that the "Supreme Court" would have the same powers as the Executive.

"It may be that the court considers that the matter warrants collective expertise of three judges sitting as the Court of Criminal Appeal rather than a judge sitting alone. This will remain a choice solely within the discretion of the Supreme Court. Given that a petitioner may choose between an application to the Governor and an application to the Supreme Court, it is considered desirable that the same outcomes be available for the disposition of the application regardless of the preferred venue."

1. If the text of s 79(1)(b) of the CAR Act were to be picked up by s 68(1) of the Judiciary Act without s 79(1)(a), this severance of s 79(1)(a) - in relation to Commonwealth offences - would defeat the purpose of the 1996 legislative amendment that introduced s 79 of the CAR Act. Such selective picking up of s 79 would not merely create an inequality between the Executive and the designated officer of the Supreme Court that the 1996 legislative amendment sought to avoid; it would also exacerbate that inequality by authorising the designated officer of the Supreme Court to only exercise the alternative power of referral to the Court of Criminal Appeal.

1. The scope for dealing with post-conviction, and usually post-appeal, miscarriages of justice involving Commonwealth offences has relied, on a wing and a prayer, upon the creativity of the judiciary to permit provisions of the Judiciary Act to pick up the text of a patchwork of different State legislative schemes, administrative in part and judicial in part. The conclusion reached in these reasons is that such judicial creativity crosses the Rubicon between (permissible) adjudicating and (impermissible) legislating when it is applied to divide the single scheme of s 79 of the CAR Act. But even if such judicial creativity were permissible, s 68(1) of the Judiciary Act would only be capable of picking up s 79(1)(b) of the CAR Act on the three compounding and questionable assumptions set out at the beginning of these reasons. The rejection of any of those assumptions would also preclude s 68(1) of the Judiciary Act from picking up the text of s 79(1)(b).
2. The result which I would reach on this appeal is unfortunate. It would mean that there is a gap for miscarriages of justice in federal jurisdiction because a State law that is intended to respond to miscarriages of justice is unable to be picked up by s 68(1) of the Judiciary Act and applied in federal jurisdiction. But even on the result favoured by a majority of this Court, and on the large assumptions on which this appeal was conducted, there remains a gap for miscarriages of justice which is the very gap which the New South Wales Parliament had legislated to avoid. The Supreme Court does not have the same power as the Executive to order an inquiry. On any view, there is a solution to either gap which would bring clarity, certainty and consistency for the approach to Commonwealth offences throughout the Commonwealth. The Commonwealth Parliament could legislate its own scheme to deal with miscarriages of justice of this nature and that scheme could apply consistently across Australia in relation to Commonwealth offences.
3. Orders should be made as proposed by Gordon and Steward JJ.
4. JAGOT J. The question discussed in these reasons is whether s 68(1) of the Judiciary Act 1903 (Cth) operates to apply s 78(1), s 79(1)(b) and, to the extent it refers to s 79(1)(b), s 86 in Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") to a person convicted by a New South Wales court in respect of an offence against a law of the Commonwealth.

1. Section 68(1) of the Judiciary Act applies to the relevant "laws of a State or Territory ... so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth".
2. The "laws" of the State or Territory referred to in s 68(1) are statutory laws. The direction in s 68(1) is that the relevant State or Territory laws apply, and are to be applied, so far as they are applicable to offences against the laws of the Commonwealth. This direction, and the whole of s 68(1), is to be construed in context, including the context given by s 68(2), which provides for the courts of a State or Territory, exercising jurisdiction with respect to the identified topics, to have "like jurisdiction" with respect to persons who are charged with offences against the laws of the Commonwealth as those courts have with respect to persons charged with offences against the laws of the State or Territory.
3. The vesting of "like jurisdiction" in s 68(2) of the Judiciary Act means that the application of that provision "must proceed by analogy"[364] and on the assumption that "State laws on the topics mentioned are to be applied in federal jurisdiction"[365]. Section 68(1) also necessarily operates on the assumption that laws applying to persons charged with an offence against a law of a State or Territory may apply to a person charged with an offence against a law of the Commonwealth. This potential extension of the operation of a State or Territory law does not give the State or Territory law an altered meaning merely because the State or Territory law evinces an intention to apply only to offences against the laws of the State or Territory[366]. Accordingly, and not unlike s 68(2) in its application to courts, the required hypothesis for s 68(1) is that persons charged with an offence against a law of the Commonwealth "do not necessarily lie outside [of the] field of application"[367] of State or Territory laws for the topics specified in s 68(1). But if an altered meaning is given to the law or that part of the law that s 68(1) would apply to a person charged with an offence against a law of the Commonwealth, s 68(1) is precluded from operating[368]. This flows from the principle that no court can, "by adopting a standard criterion or test merely selected by itself, ... redraft a statute"[369]. Redrafting a statute is an exercise of legislative, not judicial, power.

Examples of s 68(1): permissible extension or impermissible alteration?

1. In Brown v The Queen[377], s 68(1) of the Judiciary Act did not apply to a person charged with an offence against a law of the Commonwealth a provision of a State Act permitting an accused to elect a trial before a judge alone (because the application of that provision in federal jurisdiction would contravene s 80 of the Constitution) but did apply to that person the balance of the State Act relating to juries. The effect was that an accused charged with an offence against a law of the Commonwealth did not have the same right to make an election for a trial before a judge alone which an accused charged with an offence against the laws of the State would enjoy. This effect, implicitly at least, was not characterised as giving an altered meaning to the part of the State law applied by s 68(1) of the Judiciary Act.
2. Similarly, in Cheatle v The Queen[378], s 68(1) of the Judiciary Act did not apply to a person charged with an offence against a law of the Commonwealth a provision of a State Act enabling majority verdicts (because the application of that provision in federal jurisdiction would contravene s 80 of the Constitution) but did apply to that person the balance of the State Act relating to trials on indictment. The effect was that an accused charged with an offence against a law of the Commonwealth could be convicted only by unanimous verdict of the jury, whereas an accused charged with an offence against a law of the State could be convicted by a majority verdict. Again, this effect, implicitly at least, was not characterised as giving an altered meaning to the part of the State law applied by s 68(1) of the Judiciary Act.
3. A case in which the nature and extent of the integration of the relevant provisions of the laws of the State, and the lack of relevant equivalent legal or factual circumstances in federal jurisdiction, meant that no part of the law could be applied by s 68(1) of the Judiciary Act is Solomons v District Court (NSW)[379]. In that case, the statute concerned the grant of a costs certificate by a court in which the only purpose of the grant was to enable an application for the payment of costs by the State[380].

In the present case, the majority in the Court of Appeal distinguished Brown and Cheatle on the basis that those decisions concerned parts of a law of a State inconsistent with the Constitution and not "the extent to which a particular State law can be changed" in its operation[381]. In so doing, the majority also disapproved of Application of Pearson[382], in which Wood CJ at CL held that s 68(1) of the Judiciary Act operated to "pick up some, but not all of the otherwise applicable terms, of Div 3 of Pt 13A" of the Crimes Act 1900 (NSW)[383]. Wood CJ at CL reasoned that the State law, the then equivalent to Pt 7 of the CAR Act, was not being altered in its meaning by the partial application effected by s 68(1) of the Judiciary Act, the difference being procedural rather than substantive (that is, confining the options available to the Supreme Court, being a direction for the conduct of an inquiry or the referral of the case to the Court of Criminal Appeal to be dealt with as an appeal for State offences, to the latter option only for offences against a law of the Commonwealth)[384]. 2. It is not apparent why the reason that s 68(1) of the Judiciary Act does not apply to one part of a State or Territory law (such as constitutional invalidity, or inconsistency with a law of the Commonwealth, or practical impossibility) determines whether the application of s 68(1) to another part of the law involves giving an altered meaning to that part. In Brown and Cheatle, the State laws as to juries, by operation of s 68(1) of the Judiciary Act, operated differently on an accused charged with an offence against a law of the Commonwealth from an accused charged with an offence against a law of the State. 3. In the present case, there is undoubtedly a statutory scheme. The statutory provisions have a complex legislative history, as identified in the other judgments. Section 78 of the CAR Act, in referring to an "application for an inquiry into a conviction or sentence", reflects the legislative history of the provisions in which the prerogative power of mercy was (and, by s 114 of the CAR Act, remains) vested in the Governor of each State as the representative of the Crown. The other provisions of the CAR Act supplement this prerogative power, reflecting two main statutory pathways. The first is a pathway available since the late 19th century enabling the Supreme Court to conduct an inquiry into a conviction or sentence, resulting in a report to the Governor and a potential exercise of the prerogative power of mercy[385]. The second is a pathway available since the commencement of the Criminal Appeal Act 1912 (NSW) by which the relevant Minister could refer a petition to the Governor for an exercise of the prerogative of mercy to the Court of Criminal Appeal for the case to be "heard and determined by the court as in the case of an appeal by a person convicted"[386]. 4. The Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), for the first time, enabled the Supreme Court, on an application for an inquiry into a conviction or sentence, to either "direct that an inquiry be conducted by a prescribed person into the conviction or sentence" or "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912"[387]. These options are now reflected in s 78(1) together with s 79(1)(a) and (b) of the CAR Act. 5. The fact that s 78(1) of the CAR Act refers to an "application for an inquiry" and not an application for an inquiry or referral to the Court of Criminal Appeal is of no great moment for present purposes. Section 78(1) is to be construed in the context of s 79. Under s 79, an application for an inquiry may result in one of three outcomes: (a) under s 79(3), the Supreme Court may "refuse to consider or otherwise deal with [the] application"; (b) under s 79(1)(a), the Supreme Court may "direct that an inquiry be conducted by a judicial officer into the conviction or sentence"; or (c) under s 79(1)(b), the Supreme Court may "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912". 6. It follows that while an application under s 78 is styled as an application for an inquiry, that application may engage two distinct powers - a direction for an inquiry under s 79(1)(a) or a referral of the whole case to the Court of Criminal Appeal under s 79(1)(b). Further, while the Supreme Court's consideration of the application as a pre‑condition to any exercise of power as specified in s 79(1) does not involve an exercise of judicial power[388], if there is a referral under s 79(1)(b): (a) it is the "whole case" which is referred to the Court of Criminal Appeal; and (b) that "whole case" is to be dealt with "as an appeal under the Criminal Appeal Act 1912". In such a case, moreover, the only further provision of the CAR Act which is engaged is s 86, which provides that, on receiving a referral under s 77(1)(b) (from the Attorney‑General on receipt of a petition for a pardon by the Governor) or s 79(1)(b), "the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly". That is, once the Court of Criminal Appeal is seized of the whole case by reason of a referral under s 79(1)(b), the Court of Criminal Appeal is doing nothing other than exercising judicial power. 7. On this basis, if ss 78, 79(1)(b) and 86 of the CAR Act are considered in isolation (for the moment): (a) the operation of s 68(1) of the Judiciary Act on the making of an application under s 78 for an inquiry (understood in context as an application potentially engaging a referral under s 79(1)(b) and not merely an inquiry under s 79(1)(a)); (b) the referral of the whole case to the Court of Criminal Appeal under s 79(1)(b); and (c) the Court of Criminal Appeal dealing with that whole case "as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912", with that Act applying "accordingly", involve no alteration to these State laws or parts of State laws. 8. The potential alteration in meaning arises at, and is confined to, the first stage, in the exercise of the non‑judicial incidental power of the Supreme Court under s 79 of the CAR Act to consider the application and decide which pathway to take (to make a direction for an inquiry, or to make a referral to the Court of Criminal Appeal, or to refuse to consider or otherwise deal with an application). In that exercise of non‑judicial power, for an offence against a law of the Commonwealth, one option which would otherwise have been available to the Supreme Court for an offence against a law of the State (a direction for an inquiry under s 79(1)(a)) is unavailable. 9. As will be explained, ss 78, 79(1)(b) and 86 of the CAR Act, understood in their context, are not given an altered meaning in their application to a person charged with an offence against a law of the Commonwealth. They apply to that person exactly as they would apply to a person charged with an offence against a law of the State. The unavailability of one option to the Supreme Court on the making of an application for an inquiry by a person charged with an offence against a law of the Commonwealth (a direction for an inquiry to be conducted) does not alter the State law. 10. Section 78(1), s 79(1)(b) and, to the extent it refers to s 79(1)(b), s 86 in Pt 7 of the CAR Act are not integrated with the other provisions forming the scheme in Pt 7 of the CAR Act in a manner rendering them altered in their application to a person charged with an offence against a law of the Commonwealth merely because one option (a direction for an inquiry) is inapplicable to such a person. They are capable of independent operation. 11. This conclusion gives effect to: (a) the language of s 68(1) of the Judiciary Act (requiring application of the law of the State so far as applicable); (b) the purpose of s 68(1) and (2) of the Judiciary Act (to put offences against a law of the Commonwealth on the same footing as offences against the laws of the relevant State or Territory in which the offence is dealt with[389]); and (c) the required hypothesis or assumption on which sub‑ss (1) and (2) of s 68 of the Judiciary Act operate, that a law of a State or Territory can be applied by that section notwithstanding that the legislative intention evinced by that law is that it apply only to offences against the laws of the State or Territory. On analysis, this conclusion also accords with the legislative intention evinced by Pt 7 of the CAR Act construed in context, as a matter of State law. The question remains the application of s 68(1) to the provisions of the CAR Act. But the proper construction of the State or Territory legislation, although not the issue to be determined, informs the answer[390]. 12. The following matters in respect of the construction and characterisation of the provisions of Pt 7 of the CAR Act as a matter of State law indicate that ss 78, 79(1)(b) and 86 of the CAR Act, understood in their context, are not given an altered meaning in their application to a person charged with an offence against a law of the Commonwealth merely because s 68(1) of the Judiciary Act cannot apply s 79(1)(a) of the CAR Act to that person. 13. First, s 31(2) of the Interpretation Act 1987 (NSW) provides that if "any provision of an Act or instrument, or the application of any such provision to any person, subject‑matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament" then: (a) "it shall be a valid provision to the extent to which it is not in excess of that power"; and (b) "the remainder of the Act or instrument, and the application of the provision to other persons, subject‑matters or circumstances, shall not be affected". Section 31 applies to the CAR Act except insofar as the contrary intention appears in that Act[391]. Provisions such as s 31 "reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible"[392]. To displace this presumption "it must sufficiently appear that the invalid provision forms part of an inseparable context"[393]. What is required is "a positive indication ... in the enactment that the legislature intended it to have either a full and complete operation or none at all"[394]. 14. No such positive indication is apparent in Pt 7 of the CAR Act. The text and context of Pt 7 of the CAR Act support the conclusion that ss 79(1)(a) and 79(1)(b) are divisible and are intended to have a distributive operation to the extent legally or practically required in respect of any application for an inquiry made under s 78. If that is so as a matter of State law, it is difficult to conclude that the operation of s 68(1) of the Judiciary Act to ss 78 and 79(1)(b) of the CAR Act, but not s 79(1)(a) of that Act, would give an altered meaning to the CAR Act. 15. Second, and as noted, an "application for an inquiry" in s 78 of the CAR Act must be construed in the context of s 79 as embracing both options - a direction for an inquiry or a referral to the Court of Criminal Appeal. It follows that, at least to the extent that the application for an inquiry can engage the power of the Supreme Court to refer the whole case to the Court of Criminal Appeal, an application for an inquiry by a person convicted and sentenced by a court of New South Wales in respect of an offence against a law of the Commonwealth can be a valid application and that application can have utility if s 68(1) of the Judiciary Act operates. This may be contrasted with the legal and practical circumstances in Solomons. 16. Third, while one option (the direction for an inquiry) is removed from the Supreme Court in response to an application by a person charged and convicted of an offence against a law of the Commonwealth, the Supreme Court retains the options of doing nothing under s 79(3) of the CAR Act or referring the whole case to the Court of Criminal Appeal under s 79(1)(b). That is, in such a case, the Supreme Court is not forced to take one pathway rather than another merely by reason of the unavailability of the pathway of a direction for an inquiry. It can decide to do nothing in respect of the application. Further, the Supreme Court would not be precluded from considering the unavailability of the option of a direction for an inquiry, whatever the reason for that unavailability, to the extent it might be relevant to its administrative decision either to refuse to consider or otherwise deal with an application or to "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912". That is, the unavailability of the option of a direction for an inquiry under s 79(1)(a) could not be said to undermine the sensible and cogent operation of the provisions. By its own processes of consideration under s 79(1) to (3), the Supreme Court can ensure the available provisions do have a sensible and cogent operation. If it were otherwise, practical unavailability of the option of an inquiry (for whatever reason) itself might invalidate the Supreme Court's process of consideration. 17. Fourth, and related to the third consideration, while the Supreme Court undertakes a single process of consideration under s 79(1) of the CAR Act ("[a]fter considering an application ..."), ss 79(1)(a) and 79(1)(b) vest two distinct powers in the Supreme Court, each conditioned on the appearance of doubt under s 79(2). This is reinforced by the fact that each of s 79(1)(a) and (b) starts with the words "the Supreme Court may ...". Consistently with this, s 79(3) provides that the "Supreme Court may refuse to consider or otherwise deal with an application". As noted, the Supreme Court may refuse to deal with an application even if it concludes that it appears there is a doubt within the meaning of s 79(2). 18. Fifth, the fact that the power to refer the whole case to the Court of Criminal Appeal under s 79(1)(b) of the CAR Act, like the power in s 79(1)(a), is enlivened only when, under s 79(2), "it appears that there is a doubt or question as to the convicted person's guilt ...", is important. In the face of this provision, it is difficult to conclude that Pt 7 of the CAR Act manifests a legislative intention that ss 78 and 79 not operate at all if, for any reason, the options in both ss 79(1)(a) and 79(1)(b) are not available. For example, assume invalidity of s 79(1)(a) of the CAR Act for some reason. Given s 31(2) of the Interpretation Act, it is not apparent why the doctrine of severance would not operate to preserve the operation of s 79(1)(b). 19. Sixth, the s 79(1)(a) pathway (a direction for an inquiry) involves an administrative and not a judicial function. In contrast to the duty on judges to exercise judicial functions, the judges of the Supreme Court may agree or not agree to exercise the administrative functions involved in Pt 7 of the CAR Act[395]. It follows from this that there may be practical reasons why the administrative function of an inquiry may not be able to be performed either at all or in a timely manner in response to an application for an inquiry under s 78. The circumstances of the application, such as urgency of a final judicial determination of the conviction or sentence, may make the pathway of a direction for an inquiry impractical or unjust, especially given that one possible outcome of an inquiry under s 79(1) of the CAR Act (and no doubt the outcome sought by the person making the application under s 78) is referral of the matter to the Court of Criminal Appeal. Further, and for example, the judge considering the application under s 78 may take the view that their doubt as to the soundness of the conviction is sufficiently strong so as to make the "considerable resources required to mount and conduct an inquiry"[396], before any possible referral to the Court of Criminal Appeal, unjustified. Again, given that the taking of any action in response to an application requires it to appear that "there is a doubt or question as to the convicted person's guilt ...", it seems unlikely that the New South Wales legislature intended that, if the administrative option of an inquiry under s 79(1)(a) was unavailable or unable to be performed in a timely manner for some reason, the s 79(1)(b) pathway also would be unavailable. The potential for serious injustice, in that event, is manifest. 20. Seventh, the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), which enabled the Supreme Court, on an application for an inquiry into a conviction or sentence, to either "direct that an inquiry be conducted by a prescribed person into the conviction or sentence" or "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912", was enacted against the background of s 31(2) of the Interpretation Act. The statement in the Second Reading Speech for the Crimes Amendment (Review of Convictions and Sentences) Bill 1996, that "it is considered desirable that the same outcomes be available for the disposition of the application regardless of the preferred venue"[397], concerns giving to the Supreme Court the same power as vested in the Governor either to direct the conduct of an inquiry or to "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912"[398]. It does not concern the distributive or unitary operation of the provisions once a person has selected their "venue" (be it a petition to the Governor or an application for an inquiry to the Supreme Court). 21. Eighth, it is one thing to conclude that Pt 7 of the CAR Act applies only to convictions and sentences imposed by a court of New South Wales for offences against a law of New South Wales. It is another thing to conclude that the CAR Act, contrary to fact, operates in a vacuum sealed off from the reality that the courts of New South Wales routinely convict and sentence people for offences against a law of the Commonwealth. In this context, a construction of Pt 7 of the CAR Act which gives s 79(1)(a) and (b) a distributive operation better accords with: (a) this reality; (b) the unlikelihood that the New South Wales legislature intended that, where a judge entertains a genuine doubt about a person's conviction or sentence, that person would be left without any remedy merely because the option of a direction for an inquiry under s 79(1)(a) was unavailable for whatever reason (legal or practical); and (c) the lack of any positive indication constituting a "contrary intention" for the purpose of s 31(2) of the Interpretation Act. 22. For these reasons, the effect of s 68(1) of the Judiciary Act applying ss 78(1), 79(1)(b) and 86 of the CAR Act to a person charged with an offence against a law of the Commonwealth, and not the provisions of that Act enabling a direction for the conduct of an inquiry, is to create a permissible extension of the laws of the State to a person charged with an offence against a law of the Commonwealth, as in Brown and Cheatle, and not the giving of an altered meaning to the laws of the State. 23. I otherwise agree with Kiefel CJ, Gageler and Gleeson JJ that: (a) whether the notification and reporting requirements in ss 78(2) and 79(5) of the CAR Act are applied and translated by s 68(1) of the Judiciary Act need not be determined; and (b) Garling J, being the judge authorised by the Chief Justice to exercise the jurisdiction of the Supreme Court under Pt 7 of the CAR Act in respect of Mr Huynh's application, must be taken to have consented to the conferral of that function. 24. The orders Kiefel CJ, Gageler and Gleeson JJ propose should be made.

Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356. ↑

Huynh v Attorney General (NSW) (2021) 107 NSWLR 75. ↑

See Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 550 [1], 568 [68], 591-592 [149]. ↑

Elliott v The Queen (2007) 234 CLR 38 at 41-42 [5]. ↑

Section 74(1) of the CAR Act (definition of "conviction"). ↑

Section 74(1) of the CAR Act (definition of "sentence"). ↑

Compare Love v Attorney-General (NSW) (1990) 169 CLR 307 at 318-323. ↑

Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 80 [1], 88-89 [37]-[39], 90 [44]-[47], 92 [53]-[54], 112 [128], 144 [265]. ↑

See Allocation of the Administration of Acts 2001 (NSW), cl 20(1). ↑

Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 100 [83]. ↑

Section 3(1) of the Judicial Officers Act 1986 (NSW) (definition of "judicial officer"). ↑

18. Section 114 of the CAR Act. See Folbigg v Attorney-General (NSW) (2021) 391 ALR 294 at 303 [35]. ↑

22. Sections 10 and 16 of the Criminal Appeal Act. ↑

Sections 8 and 9 of the Criminal Procedure Act 1986 (NSW). ↑

Sections 383 and 384 of the Criminal Law Amendment Act of 1883 (NSW) (46 Vic No 17). ↑

Schedule 1 to the Criminal Legislation (Amendment) Act 1992 (NSW), enacted after Varley v Attorney-General (NSW) (1987) 8 NSWLR 30. ↑

Schedules 1 and 2 to the Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW). ↑

Schedule 1 to the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW). ↑

Schedule 3 to the Crimes Legislation Amendment Act 2003 (NSW). ↑

Enacted as the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). ↑

Schedule 2 to the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW). ↑

See ss 474D(1) and 474E(1) of the Crimes Act. ↑

Items 7 and 11 of Sch 1 to the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW). ↑

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. See also New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 June 1996 at 2897. ↑

Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 95 [68]. ↑

See BHP Group Ltd v Impiombato (2022) 96 ALJR 956 at 964-965 [36], 971-972 [63]; 405 ALR 402 at 410, 418-419. ↑

Compare Seaegg v The King (1932) 48 CLR 251 at 255; Solomons v District Court (NSW) (2002) 211 CLR 119 at 130 [9]. ↑

Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618. ↑

See Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 at 226 [86]-[87]. ↑

Rizeq v Western Australia (2017) 262 CLR 1 at 25 [60]. ↑

R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345. See also Putland v The Queen (2004) 218 CLR 174 at 179-180 [7], 188 [36], 189 [41], 215 [121]. ↑

44. (2017) 262 CLR 1 at 18 [32], 36-37 [90]-[92], 41 [103]. ↑

47. Williams v The King [No 2] (1934) 50 CLR 551 at 561. ↑

48. Williams v The King [No 1] (1933) 50 CLR 536 at 543. ↑

49. Brown v The Queen (1986) 160 CLR 171 at 197; R v Gee (2003) 212 CLR 230 at 256 [66]-[67]. See Lindell, Cowen and Zines's Federal Jurisdiction in Australia, 4th ed (2016) at 302-303. ↑

50. cf R v Hughes (2000) 202 CLR 535 at 555-556 [40]. ↑

53. See R v LK (2010) 241 CLR 177 at 188-189 [14]-[16]. ↑

57. (2010) 241 CLR 177 at 187-191 [12]-[20], 215-216 [86]. ↑

60. State Government Insurance Office (Q) v Rees (1979) 144 CLR 549 at 561. ↑

62. Rizeq v Western Australia (2017) 262 CLR 1 at 32-33 [81], 36-37 [91]. ↑

63. (2004) 218 CLR 174 at 179 [7], 189 [41], 215 [121]. ↑

64. John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 95; Maguire v Simpson (1977) 139 CLR 362 at 376. ↑

71. (2004) 218 CLR 174 at 188 [36]-[37]. See also R v Gee (2003) 212 CLR 230 at 254 [62]. ↑

72. (2002) 211 CLR 119 at 128 [1], 134 [19], 136 [29]. ↑

76. Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106. ↑

78. (1995) 184 CLR 348 at 364-365. See also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 13. ↑

80. cf O'Donoghue v Ireland (2008) 234 CLR 599 at 618 [24]. ↑

81. See Knight v Victoria (2017) 261 CLR 306 at 324 [32], 326 [37]. ↑

82. On appeal to this Court, each of the Supreme Court of New South Wales (the third respondent) and the Attorney-General of New South Wales (the second respondent) filed submitting appearances. ↑

Barton v The Commonwealth (1974) 131 CLR 477 at 498. ↑

Milne, "The Second or Subsequent Criminal Appeal, the Prerogative of Mercy and the Judicial Inquiry: The Continuing Advance of Post-Conviction Review" (2015) 36 Adelaide Law Review 211 at 216-217, citing Smith, "The Prerogative of Mercy, the Power of Pardon and Criminal Justice" [1983] Public Law 398. ↑

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 350-351 [98], quoting R v Cosgrove [1948] Tas SR 99 at 106 and R v Foster [1985] QB 115 at 130. ↑

See CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 538 [42] and the cases there cited. ↑

Twomey, The Constitution of New South Wales (2004) at 624, 662. See Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171 at 180 [28]. ↑

Constitution (Amendment) Act 1987 (NSW), s 2, Sch 1 item 3, inserting s 9F into the Constitution Act 1902 (NSW). ↑

Mallard v The Queen (2005) 224 CLR 125 at 129 [6]; Interpretation Act 1987 (NSW), s 14. See also FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364‑365. ↑

New South Wales Department of Communities and Justice, "Royal Prerogative of Mercy: Fact Sheet" (2022) at 1. See also Holzinger v Attorney-General (2020) 5 QR 314 at 324 [17], citing Bentley [2001] 1 Cr App R 21. ↑

Reasons of Kiefel CJ, Gageler and Gleeson JJ at [26]. ↑

95. Criminal Law Amendment Act 1883 (NSW), ss 383 and 384. ↑

97. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 February 1883 at 618, quoted in Eastman (2003) 214 CLR 318 at 340 [68]. ↑

98. New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 February 1883 at 618, quoted in Eastman (2003) 214 CLR 318 at 340 [68]. ↑

Mallard (2005) 224 CLR 125 at 129 [6] (emphasis added). ↑

Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW), s 3, Sch 1 item 3. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 18-20, especially at 19. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 17. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 18-19. ↑

New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1993 at 4575. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 19. ↑

New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1993 at 4575. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 8-9. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 11. ↑

Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), s 3, Sch 1 item 7. ↑

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. See also New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 June 1996 at 2897. ↑

Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW), s 4, Sch 2.1 item 1. At that time, the CAR Act was named the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). ↑

See FAI Insurances (1982) 151 CLR 342 at 364-365; Mallard (2005) 224 CLR 125 at 129 [6]. ↑

Section 14 of the Interpretation Act 1987 (NSW) provides that "[i]n any Act or instrument, a reference to the Governor is a reference to the Governor with the advice of the Executive Council, and includes a reference to any person for the time being lawfully administering the Government". ↑

127. CAR Act, s 77(3)(a)(ii). Section 74(1) relevantly defines the "previous review provisions" as s 475 of the Crimes Act and s 26 of the Criminal Appeal Act before the introduction of Pt 13A of the Crimes Act, and the provisions of Pt 13A before their transfer into Pt 7 of the CAR Act. ↑

141. CAR Act, s 79(4). See the reasons of Kiefel CJ, Gageler and Gleeson JJ at [17]. ↑

151. CAR Act, s 84(1) read with s 83 definition of "pardon". ↑

152. CAR Act, s 84(3). However, s 84(4) provides that such an application may not be made in respect of a free pardon arising from an inquiry under Div 4 if the matter has previously been dealt with under Div 5 as a consequence of a reference to the Court, under s 82(2) (or so dealt with under the corresponding previous review provisions), by the judicial officer conducting the inquiry. ↑

157. CAR Act, s 84(1) read with s 85(4) and Criminal Appeal Act, s 6(2). ↑

158. Section 6(1) of the Criminal Appeal Act provides that:

"The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." ↑

166. Solomons v District Court (NSW) (2002) 211 CLR 119 at 132 [15]. ↑

167. Because the Supreme Court may invoke either pathway "on its own motion": CAR Act, s 79(1). ↑

168. See CAR Act, ss 77(3)(a)(iii)-(iv), 77(3A)(a)-(b), 79(3)(a)(iii)-(iv), 79(3A)(a)-(b). ↑

170. CAR Act, s 83 definition of "pardon" and s 114. ↑

175. See BHP Group Ltd v Impiombato (2022) 96 ALJR 956 at 964-965 [36], 970 [59]; 405 ALR 402 at 410, 417. ↑

176. Mental Health (Forensic Provisions) Act 1990 (NSW), s 22(1)(c) and (d). ↑

177. See, eg, Crimes Act 1914 (Cth), Pt IB Divs 7-9. ↑

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21 at 39 [25], quoting Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618. ↑

See above at [124]. See also CAR Act, ss 78(2), 79(5), 82(1)(a), 82(1)(b), 82(3). ↑

Rizeq v Western Australia (2017) 262 CLR 1 at 41 [103]; see also 15 [22]; Masson v Parsons (2019) 266 CLR 554 at 574-575 [30]. ↑

CAR Act, s 82(2), s 88 read with s 85(4). See above at [130]. ↑

Rizeq (2017) 262 CLR 1 at 41 [103]; see also 15 [22]. ↑

Reasons of Kiefel CJ, Gageler and Gleeson JJ at [37]. ↑

Solomons (2002) 211 CLR 119 at 130 [9], citing Seaegg v The King (1932) 48 CLR 251 at 255 and Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 169. See also BHP Group (2022) 96 ALJR 956 at 964-965 [36], 970 [59]; 405 ALR 402 at 410, 417. ↑

Seaegg (1932) 48 CLR 251 at 255; Solomons (2002) 211 CLR 119 at 130 [9], 138 [37]; Interpretation Act 1987 (NSW), s 12. ↑

Williams v The King [No 2] (1934) 50 CLR 551 at 560. See also R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345; R v Murphy (1985) 158 CLR 596 at 617; Leeth v The Commonwealth (1992) 174 CLR 455 at 467; R v Gee (2003) 212 CLR 230 at 240-241 [6]-[7], 254-255 [63]-[64], 269-270 [115]; Putland v The Queen (2004) 218 CLR 174 at 178-179 [4]. ↑

Williams [No 2] (1934) 50 CLR 551 at 561; Peel v The Queen (1971) 125 CLR 447 at 468-469. ↑

Section 68(2) of the Judiciary Act therefore invests State and Territory courts with federal jurisdiction in relation to offences created by laws made by the Commonwealth Parliament: Constitution, s 76(ii). ↑

Williams [No 2] (1934) 50 CLR 551 at 561; Peel (1971) 125 CLR 447 at 468-469. ↑

Judiciary Act 1903 (Cth) (No 6 of 1903, as made), ss 20 (appeals from judges of federal jurisdiction), 21 (application for leave to appeal to the High Court), 23 (decision in case of difference of opinion), 27 (no appeal as to costs), 34, 35, 37 (appellate jurisdiction of the High Court), 39 (federal jurisdiction of State courts), 40 (removal into the High Court), 77 (no other appeals to the High Court). ↑

Moorcroft (2021) 273 CLR 21 at 39 [25], quoting Franzon (1975) 132 CLR 611 at 618. ↑

See Williams [No 2] (1934) 50 CLR 551 at 560; Peel (1971) 125 CLR 447 at 457, 460, 467‑468; Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 124‑125. ↑

199. See Williams [No 2] (1934) 50 CLR 551 at 560; Peel (1971) 125 CLR 447 at 457, 460, 467‑468; Rohde (1986) 161 CLR 119 at 124‑125. ↑

200. Putland (2004) 218 CLR 174 at 179 [7], 189 [41], 215 [121]. ↑

202. Rizeq (2017) 262 CLR 1 at 32-33 [81], 36-37 [91], 72 [200]. See also Pedersen v Young (1964) 110 CLR 162 at 165-166; Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 143 [13], 154 [52]; British American Tobacco Australia Ltd v Western Australia (2003) 217 CLR 30 at 60 [67], 87 [157], 90 [171]. ↑

203. Putland (2004) 218 CLR 174 at 188 [36]-[38], 215 [121]. ↑

Williams [No 2] (1934) 50 CLR 551 at 561; Peel (1971) 125 CLR 447 at 468-469. ↑

John Robertson & Co Ltd (In liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 95. ↑

John Robertson (1973) 129 CLR 65 at 95; see also 80-81, 83, 88, cited in Maguire v Simpson (1977) 139 CLR 362 at 376. ↑

Bank of NSW v The Commonwealth ("the Bank Nationalisation Case") (1948) 76 CLR 1 at 164, 252, 371-372; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 503-504, 520; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 485-486. ↑

R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268‑270; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513 [102]. ↑

Spence v Queensland (2019) 268 CLR 355 at 415 [87], quoting Pidoto v Victoria (1943) 68 CLR 87 at 111. ↑

Williams [No 2] (1934) 50 CLR 551 at 561; Peel (1971) 125 CLR 447 at 468-469. ↑

Williams v The King [No 1] (1933) 50 CLR 536 at 543, 545; Williams [No 2] (1934) 50 CLR 551 at 557-558, 561-562; Peel (1971) 125 CLR 447 at 457, 460, 469; Rohde (1986) 161 CLR 119 at 125, 127. ↑

Kruger v The Commonwealth (1997) 190 CLR 1 at 140, quoted in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 593 [72], in turn quoted in Solomons (2002) 211 CLR 119 at 135 [24]. ↑

Solomons (2002) 211 CLR 119 at 135 [24], citing The Commonwealth v Mewett (1997) 191 CLR 471 at 556. See also Maguire (1977) 139 CLR 362 at 376, quoting Pedersen (1964) 110 CLR 162 at 165, in turn citing Owens [No 2] (1953) 88 CLR 168. ↑

(1986) 161 CLR 119 at 125, 127. See also Williams [No 1] (1933) 50 CLR 536 at 543, 545; Williams [No 2] (1934) 50 CLR 551 at 557-558, 561-562; Peel (1971) 125 CLR 447 at 457, 460, 469. ↑

Brown v The Queen (1986) 160 CLR 171 at 200-201, 206-207, 218-219. ↑

Cheatle v The Queen (1993) 177 CLR 541 at 563. ↑

224. Solomons (2002) 211 CLR 119 at 135 [24], citing Mewett (1997) 191 CLR 471 at 556. ↑

226. Solomons (2002) 211 CLR 119 at 135 [24], citing Mewett (1997) 191 CLR 471 at 556. See also Maguire (1977) 139 CLR 362 at 376, quoting Pedersen (1964) 110 CLR 162 at 165, in turn citing Owens [No 2] (1953) 88 CLR 168. ↑

230. CAR Act, s 83 definition of "pardon" and s 114; see [130] above. ↑

232. FAI Insurances (1982) 151 CLR 342 at 364-365. ↑

235. CAR Act, s 83 definition of "pardon" and s 114; see [130] above. ↑

236. FAI Insurances (1982) 151 CLR 342 at 364-365; Mallard (2005) 224 CLR 125 at 129 [6]. ↑

237. Williams [No 1] (1933) 50 CLR 536 at 543, 545; Williams [No 2] (1934) 50 CLR 551 at 557-558, 561-562; Peel (1971) 125 CLR 447 at 457, 460, 469; Rohde (1986) 161 CLR 119 at 125, 127. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 11. ↑

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. See also New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 June 1996 at 2897. ↑

New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1993 at 4575. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 19. ↑

Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW), s 3, Sch 1 item 3. ↑

cf Brown (1986) 160 CLR 171 at 200-201, 206‑207, 218-219; Cheatle (1993) 177 CLR 541 at 563. See above at [153]. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 16-23. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 17. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 18-19. ↑

New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 19. ↑

Or on the Supreme Court's own motion: CAR Act, s 79(1). ↑

Grollo v Palmer (1995) 184 CLR 348 at 364-365; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 13. ↑

O'Donoghue v Ireland (2008) 234 CLR 599 at 614-617 [13]‑[20], 624-626 [52]-[57]. ↑

Lambert v Weichelt (1954) 28 ALJ 282 at 283; Duncan v New South Wales (2015) 255 CLR 388 at 410 [52]; Knight v Victoria (2017) 261 CLR 306 at 324 [32]. ↑

Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 386. ↑

CSR Ltd v Eddy (2005) 226 CLR 1 at 11 [13]. See also Spence v Queensland (2019) 268 CLR 355 at 486-487 [294]; Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at 346 [28]. ↑

263. Grollo v Palmer (1995) 184 CLR 348 at 364-365. ↑

O'Donoghue v Ireland (2008) 234 CLR 599 at 615 [15]-[16], 622 [44]-[45]. See also Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83. ↑

See CAR Act, s 79(4). See also Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 593 [73]; Solomons v District Court (NSW) (2002) 211 CLR 119 at 135 [24]. ↑

Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144 at 151; R v Murphy (1985) 158 CLR 596 at 614. ↑

Putland v The Queen (2004) 218 CLR 174 at 179-180 [7]. ↑

Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [23], 136 [25], 145 [54], [57]; Rana v Australian Federal Police (2006) 44 AAR 151 at 155-156 [30]; Rizeq v Western Australia (2017) 262 CLR 1 at 33 [82]. ↑

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99. Compare Australian Federal Police Act 1979 (Cth), s 14A, read with s 4(1) (definitions of "protective service offence" and "protective service officer"); Crimes Act 1914 (Cth), s 3W. ↑

Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 at 174 [11]. ↑

Mallard v The Queen (2005) 224 CLR 125 at 127-130 [2]‑[7]. ↑

274. See Criminal Appeal Act 1907 (7 Edw VII c 23). ↑

278. CAR Act, s 79(2). See Ward v Williams (1955) 92 CLR 496 at 505-508; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135, 138-139. ↑

281. Solomons v District Court (NSW) (2002) 211 CLR 119 at 135 [24]. ↑

Harris v Caladine (1991) 172 CLR 84 at 136. See also Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 [64]; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at 263 [5]. ↑

Rizeq v Western Australia (2017) 262 CLR 1 at 50 [136], 51 [138]. ↑

Felton v Mulligan (1971) 124 CLR 367 at 394. See also Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 587 [57]; Rizeq v Western Australia (2017) 262 CLR 1 at 12 [6]. ↑

R v Murray and Cormie (1916) 22 CLR 437 at 452. See also Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37. ↑

See Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37; Russell v Russell (1976) 134 CLR 495 at 517; Brown v The Queen (1986) 160 CLR 171 at 218-219. See also The Commonwealth v Mewett (1997) 191 CLR 471 at 493. ↑

Le Mesurier v Connor (1929) 42 CLR 481 at 496. ↑

Momcilovic v The Queen (2011) 245 CLR 1 at 69 [100] (emphasis in original), quoting Cowen and Zines's Federal Jurisdiction in Australia, 3rd ed (2002) at 90. See also Cowen and Zines's Federal Jurisdiction in Australia, 4th ed (2016) at 135. ↑

Williams v The King [No 2] (1934) 50 CLR 551 at 560. ↑

Judiciary Act 1903 (Cth), s 68(11), inserted by Judiciary Amendment Act 1976 (Cth), s 14. ↑

See Leeming, Authority to Decide: The Law of Jurisdiction in Australia, 2nd ed (2020) at 158. ↑

See, for instance, R v Bull (1974) 131 CLR 203 at 258‑259, 272‑273, 275. See also at 242. ↑

See, for instance, Brown v The Queen (1986) 160 CLR 171 at 197. See also Solomons v District Court (NSW) (2002) 211 CLR 119 at 133 [16]; R v Gee (2003) 212 CLR 230 at 248 [39]. ↑

Brown v The Queen (1986) 160 CLR 171 at 217. ↑

299. See Peel v The Queen (1971) 125 CLR 447 at 466. ↑

300. Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 260-261 [11]. ↑

301. Repealed by Judiciary Legislation Amendment Act 2006 (Cth) in order to expand the operation of s 39(2). See Australia, House of Representatives, Parliamentary Debates (Hansard), 28 November 2006 at 157. ↑

302. Cheatle v The Queen (1993) 177 CLR 541 at 563, fn 11. ↑

304. Judiciary Act 1903 (Cth), ss 20, 21, 23, 27, 34, 35, 37, 39, 40, 77. ↑

306. Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 100‑101 [83]. ↑

307. Mallard v The Queen (2005) 224 CLR 125 at 132 [13]. ↑

310. Rizeq v Western Australia (2017) 262 CLR 1 at 41 [103]; Masson v Parsons (2019) 266 CLR 554 at 564 [1]. ↑

311. (1991) 174 CLR 1 at 26-27. See also Stevens v Head (1993) 176 CLR 433 at 445. ↑

312. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 543-544 [99]. ↑

313. McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 40, quoted in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 528 [46], 543 [97]. ↑

Gummow, "The Law Applicable in Federal Jurisdiction", in Griffiths and Stellios (eds), Current Issues in Australian Constitutional Law: Tributes to Professor Leslie Zines (2020) 104 at 117. ↑

(2017) 262 CLR 1 at 41 [105], as explained in Masson v Parsons (2019) 266 CLR 554 at 575 [30]. ↑

Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 129 [199], 130 [202], quoting BMW Australia Ltd v Brewster (2019) 269 CLR 574 at 659-660 [229]. ↑

Masson v Parsons (2019) 266 CLR 554 at 579 [43]. ↑

Zakrzewski, Remedies Reclassified (2005) at 158. ↑

Continued by s 22 of the Supreme Court Act 1970 (NSW). See R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7. See also at 5, 9, 10; PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 at 17 [37]. ↑

NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546 at 581 [69]. ↑

See O'Donoghue v Ireland (2008) 234 CLR 599. ↑

See John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 514‑515 [2]. Compare D151 v New South Wales Crime Commission (2017) 94 NSWLR 738. ↑

CAR Act, s 74(1), definition of "sentence" (emphasis added) read with definition of "sentence" in s 3(1). ↑

BHP Group Ltd v Impiombato (2022) 96 ALJR 956 at 971-972 [61]-[63]; 405 ALR 402 at 418-419. ↑

Masson v Parsons (2019) 266 CLR 554 at 564 [1]. ↑

Masson v Parsons (2019) 266 CLR 554 at 579 [43]. ↑

Williams v The King [No 2] (1934) 50 CLR 551 at 557-558, 561-562; Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 125, 126-127. ↑

Peel v The Queen (1971) 125 CLR 447 at 457, 460, 469. ↑

Clubb v Edwards (2019) 267 CLR 171 at 313-318 [415]-[425]; LibertyWorks Inc v The Commonwealth (2021) 95 ALJR 490 at 511 [89]; 391 ALR 188 at 209‑210; Thoms v The Commonwealth (2022) 96 ALJR 635 at 651-652 [75]; 401 ALR 529 at 547. ↑

337. Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 105 [96]-[97]. ↑

345. See Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 105 [97]. ↑

347. Compare Solomons v District Court (NSW) (2002) 211 CLR 119 at 141 [45]. ↑

348. See Williams v The King [No 2] (1934) 50 CLR 551; Peel v The Queen (1971) 125 CLR 447; Rohde v Director of Public Prosecutions (1986) 161 CLR 119; R v Gee (2003) 212 CLR 230. ↑

351. Cheatle v The Queen (1993) 177 CLR 541 at 563. ↑

355. As s 474C(1)(b) of the Crimes Act 1900 (NSW). See Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW), Sch 1, Item 3. ↑

356. Criminal Law Amendment Act of 1883 (NSW), s 383. ↑

357. See Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), Sch 1, Items 7, 11. ↑

358. New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. ↑

360. Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356 at [53]‑[55]. ↑

361. Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 80 [1], 94 [63], 100‑101 [83], 112 [128], 144 [267]‑[268]. ↑

362. Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 112 [127]. ↑

364. Williams v The King [No 2] (1934) 50 CLR 551 at 561, quoted in Peel v The Queen (1971) 125 CLR 447 at 469. ↑

365. John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 ("John Robertson") at 95. ↑

366. John Robertson (1973) 129 CLR 65 at 83, 95; Maguire v Simpson (1977) 139 CLR 362 at 376; Putland v The Queen (2004) 218 CLR 174 at 188 [37]. ↑

368. Putland v The Queen (2004) 218 CLR 174 at 188 [37]. ↑

Section 23(b) of the Acts Interpretation Act 1901 (Cth). ↑

Solomons v District Court (NSW) (2002) 211 CLR 119 ("Solomons") at 135 [24], citing The Commonwealth v Mewett (1997) 191 CLR 471 at 556. ↑

Brown v The Queen (1986) 160 CLR 171 at 218. ↑

eg, Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 125, 130. ↑

Section 31(2) of the Interpretation Act 1987 (NSW). ↑

381. Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 105 [97] (emphasis in original); see also at 80 [1], 112 [128], 144‑145 [269]. ↑

383. (1999) 46 NSWLR 148 at 164 [73]. Division 3 of Pt 13A of the Crimes Act 1900 (NSW), at the time, contained the predecessor provisions to those in the CAR Act relating to inquiries into a conviction or sentence, including the referral of an application for an inquiry "to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912": s 474E(1) of the Crimes Act 1900 (NSW). ↑

Sections 383 and 384 of the Criminal Law Amendment Act of 1883 (NSW); s 475 of the Crimes Act 1900 (NSW), as enacted. ↑

Section 26(a) of the Criminal Appeal Act 1912 (NSW) as enacted, the relevant Minister in that Act then being referred to as the Minister of Justice. ↑

Section 474E of the Crimes Act 1900 (NSW), as amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW). ↑

Section 79(4) of the CAR Act provides that proceedings under s 79 are not judicial proceedings. ↑

Williams v The King [No 2] (1934) 50 CLR 551 at 560. ↑

Section 5(2) of the Interpretation Act 1987 (NSW). ↑

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371. ↑

Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371. ↑

Cam & Sons Pty Ltd v The Chief Secretary of New South Wales (1951) 84 CLR 442 at 454. See also Tajjour v New South Wales (2014) 254 CLR 508 at 585‑586 [169]‑[170]. ↑

Section 75 of the CAR Act provides that the "jurisdiction of the Supreme Court under this Part is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction". ↑

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. ↑

New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. ↑

The equivalent powers of the Governor are now in s 77(1) of the CAR Act. See also New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. ↑