McArthur v Williams [1936] HCA 10

McArthur v Williams [1936] HCA 10 - HCA 1936 case summary — Zoe

[44]

general words, following specific words, should be limited by reference to the specific words so as to apply only to things or circumstances of the same kind as those described by the specific words. In some cases, unless this rule were applied, the general words would have a meaning which, in view of the nature of the subject matter, would be irrational, and they would deprive the specific words of all real significance (In re Clark ; Ex parte Schulze (1) ). . But this rule is not a rule of law ; it is a rule of construction, applied for the purpose of ascertaining intention, and the rule is accordingly controlled by another " equally general " rule, namely, " that statutes ought, like wills or other documents, to be construed so as to carry out the objects sought to be accomplished by them" so far as it can be collected from the language employed. "Hence, the same general words would receive a wider interpretation in a remedial than in a penal statute " (Halsbury, Laws of England, 1st ed., vol. 27, p. 145, and the cases there cited). In the case of this particular statute, it is clear, in my opinion, that sec. 19 is remedial in character. The object of the provision is to give a prisoner an opportunity of showing that it would be unjust or oppressive to carry out the order of the magistrate. Special mention is made of the trivial nature of a case and of absence of good faith as grounds for the discharge of the prisoner. It would be a strange position if there were an opportunity of reviewing the magistrate's order upon these grounds, but no opportunity of raising, in a proceeding by way of review, such a question as that of the validity of the warrant upon which the whole proceeding was based. I would not accept such an interpretation of the section unless the words were clearly capable of no other meaning. These words are capable of a more generous construction and that construction should, in my opinion, commend itself in the case of a provision directed towards the preservation of the liberty of the subject against possible unjust and oppressive detentions and

[71]

magistrate whose jurisdiction possibly does not extend over the whole of the British possession in which he acts. Though the jurisdiction of a New South Wales magistrate is limited, in reference to locality, to New South Wales within the Commonwealth, and though his jurisdiction may be limited within New South Wales itself to a part of that State, I am of opinion that such a magistrate is "a magistrate in Australia." It is true that he can only act within certain local limits, but that does not, in my opinion, make him any the less a magistrate in the British possession described as Australia. This conclusion follows from the reasoning in the case of McKelvey v. Meagher (1), where this court had to consider the provisions of Part I. of the Fugitive Offenders Act. (The case was considered at a time when an Order in Council - made in 1883 - specified the then Australian colonies as members of a group. But, as the application which was under consideration in that case was for the return of an alleged fugitive offender to Natal, and not to any other member of a group, the terms of the Order in Council were not important.) In that case it was necessary to consider the meaning in sec. 4 of the Act of the phrase "a magistrate of any part of Her Majesty's dominions." It was argued that if the Commonwealth were to be regarded as one British possession, the police magistrate in Melbourne was not a police magistrate of that "part of Her Majesty's dominions." It was held that the expression meant a person who in the place where the fugitive was found had authority to exercise the function of a magistrate (per Griffith C.J. (2)). Similarly Mr. Justice Barton held that "a magistrate in a 'British possession' means a magistrate performing his functions in the possession. That, of course, applies to the particular part of the possession where he performs his functions " (3). Mr. Justice O'Connor was of the same opinion (4). 'The decision on this point in McKelvey v. Meagher (1) applies equally to Part II. of the Act where reference is made to magistrates in sees. 13 and 14.

[122]

exclusive of the United Kingdom, the Channel Islands, and Isle of Man; all territories and places within Her Majesty's dominions which are under one legislature shall be deemed to be one British possession and one part of Her Majesty's dominions" (sec. 39). "The expression ' legislature,' where there are local legislatures as well as a central legislature, means the central legislature only " (ibid.). Despite the observations in McKelvey v. Meagher (1), the Commonwealth of Australia clearly falls, I think, within this defini- tion. It is a territory of His Majesty under a federal form of government, the chief characteristic of which is a division of power between the Federal and the State Governments. But territories and places within His Majesty's dominions which have local legis- latures as well as a central legislature are deemed one British posses- sion, or a unit, for the purpose of the Fugitive Offenders Act. In McKelvey's Case (2), Holroyd, then the Acting Chief Justice of Victoria, said: "When the Fugitive Offenders Act was passed, nearly nineteen years before the Commonwealth Constitution Act, the colony of Victoria was unquestionably one of the British possessions, and if it has ever lost that character that can only be by virtue of the definition clause before referred to" (sec. 39 of the Fugitive Offenders Act) " and in such territories and places only within His Majesty's dominions as are under one central legislature. It may be difficult to define what is intended by the words 'central legis- lature'; but, as it appears to me, in declaring that British territories which severally enjoyed a greater or less degree of local self-govern- ment, but had already, or should thereafter, become subject in various matters to a higher legislative authority, should be deemed to form one part of His Majesty's dominions, the object of the Imperial Parliament must have been to enable the confederate body, if it pleased, to exercise those powers of arresting and returning fugitive offenders which, by the same Act, were being conferred upon the British dependencies composing, or which might thereafter compose,

[185]

composed of old units and, according to the very terms in which the Fugitive Offenders Act 1881 is expressed, it applied to the new unit. the Commonwealth. The Imperial statute was part of the law of a colony only because the colony was a British possession or single part of the King's dominions. When it ceased to be so, the Imperial statute ceased to be part of the law of the State as such. Sec. 108 is expressed to be "subject to this Constitution" and it is the Constitution which wrought the change in the unit of jurisdiction. The Order in Council of 1925 revokes previous Orders in Council and then applies Part IT. of the Act to a group which includes New Zealand and the Commonwealth of Australia, Papua and Norfolk Island. It treats the Commonwealth of Australia as one possession. It is impossible to regard the States and Federal territories within the political boundaries of that possession as themselves British possessions liable to render to one another offenders against their respective laws pursuant to the Fugitive Offenders Act. Unless Australia, as a whole, is one possession within the meaning of the statute, the proclamation is misconceived and we do not think that sec. 31 would save its provisions other than the repealing clause from the invalidity which, in the absence of such a section, would result (Cp. Minister of Health vy. The King (On the prosecution of Yaffe) (1) ). But, upon the view we have adopted, the Order in Council is correctly conceived, except, perhaps, in separately men- tioning Papua and Norfolk Island which should be considered as under the central Government of the Commonwealth of Australia. The view which we have adopted is at variance however with the decision of the Supreme Court of New Zealand in Re Munro and Campbell (2). It was there held that, under the Order in Council, the Common- wealth was the entity, the unit, and the States only parts of it. So far we agree. But, as we understand the judgment, the consequence was deduced that the offence charged must be an offence according to the law of the Commonwealth as opposed to the law of a State. With respect, we are unable to agree in the distinction. The Commonwealth of Australia is a single unit for the purposes of the statute, because it is considered as a country, one country. It is not the Federal Government which is the unit of jurisdiction, but

[195]

Was it necessary that the informant himself should possess, or appear to the justice to possess, direct knowledge of circumstances amounting to just cause for suspecting the offence, or should produce a witness who possessed, or appeared to possess, such knowledge ? This is a question of New Zealand law, but it is raised here because sec. 14 requires that the magistrate before whom a prisoner is brought after his apprehension under a warrant backed under sec. 13 shall, before ordering the return of the fugitive, be satisfied that the warrant was issued by a person having lawful authority to issue the same. Sec. 13 also requires that the magistrate who is invited to back the warrant shall be so satisfied before he indorses it. It may be doubted whether this means more than that the magistrate must be satisfied of the existence in the person issuing the warrant of an authority to issue such a warrant. The sufficiency of the materials to enable him to exercise the power does not seem a fit subject for inquiry by the tribunal of another possession. The magistrate making an order under sec. 14 acts judicially and must be satisfied by evidence of such a matter of foreign law. The validity of his order, as distinguished from the legal propriety of his making it, could not, in our opinion, be affected by an erroneous determination of such a question. The actual existence under the law of one possession in the magistrate who issued the warrant of an authority to do so is not made a condition precedent to the jurisdiction of the magistrate of the other possession to order the fugitive's return. On the contrary, it is a matter which he is called upon to decide in the course of exercising his jurisdiction. It is, therefore, not a ground upon which a prerogative writ of prohibition can be obtained. No irregularity in the proceedings before the magistrate is suggested, and mere error, as distinguished from excess of jurisdiction, is no ground for a writ of certiorari and no other ground appears. These, however, were not the only remedies sought. Reliance was placed upon sec. 19 of the Fugitive Offenders Act as a sufficient source of authority to order the prisoner's discharge both to the Supreme Court from which special teave is sought and to this court, regarded not only as a court of appeal but as exercising

At a glance

Court

Decision date

Source

Judgment (210 paragraphs)

Cited By (2)