O'Donoghue v Ireland; Zentai v Republic of Hungary; Williams v United States of America [2008] HCA 14

High Court of Australia|2008-04-23|Before: Kiefel JJ

For the reasons which follow neither submission by the appellants should be accepted. The consequence is that the constitutional inhibition for which the appellants contend, even if otherwise accepted, would not apply. This is the consequence of the presence of a power and the absence of a duty imposed by the arrangement made under s 46(1)(a) of the Act with respect to the performance by State magistrates of the functions of a magistrate under that law.

"Under a law of the Commonwealth relating to criminal matters"

Part IV of the Act (ss 40-44) is concerned with requests by Australia for surrender of persons convicted of an offence against a law of Australia or accused of such an offence and with the consequences of this surrender to Australia. Here there readily may be found a relationship with "criminal matters", namely conviction or accusation of guilt under domestic criminal law. However, the present appellants resist extradition from Australia which is sought under Pt II. The "criminal matters" directly concerned here are offences against the laws of the extradition countries.

Two points should be made here. The first is that consideration of Australian criminal law is engaged by Pt II through the "double criminality" ground of extradition objection provided by par (d) of s 7 (which is to be read with the interpretative provision in s 10(3)). The present appellants will only be eligible for surrender by Australia if the magistrate has the satisfaction required by par (c) of s 19(2), namely:

"that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia".

In answering that question, any difference between the denomination or categorisation of offences under the domestic and foreign law are to be disregarded (s 10(3)(b)). This issue of "double criminality" stamps the Act with the character of a federal law relating to subject matter which necessarily involves consideration of the operation of domestic criminal law as a step in the magistrate's eligibility determination under s 19. That is sufficient to attract s 4AAA of the Crimes Act.

The second point was urged particularly by the Commonwealth Solicitor-General. It is that given the anterior enactment of the Act in 1988, the long-standing involvement of State magistrates in extradition matters, and the need for reciprocity as a means of assisting enforcement of Australian criminal law in proceedings by Australia under Pt IV, it would be an unduly narrow construction of s 4AAA to exclude its operation where what was involved was extradition in aid of the laws of the extradition country. The second point also should be accepted.

The arrangement between the Governor-General and the Governor of a State for which par (a) of s 46(1) provides is "for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under this Act" (emphasis added). Those functions are variously identified throughout Pts II, III and IV of the Act. Reference may now be made to some of them.

Reference may first be made to some of the provisions in Pt II. The requirement under s 19(1) to conduct proceedings to determine eligibility for surrender should not be considered in isolation from what goes before s 19 in the administration of Pt II. The magistrate shall issue a provisional arrest warrant, upon application on behalf of an extradition country, if the magistrate "is satisfied" on the basis of information on affidavit, that the person in question "is an extraditable person in relation to the extradition country" (s 12(1)(b)). After arrest the person must be brought before a magistrate and ordinarily "shall be remanded by a magistrate in custody" (s 15(2)) and "shall not" be remanded on bail in the absence of "special circumstances" (s 15(6)). If the Attorney-General exercises power conferred by s 16(1) the magistrate may be directed by the Attorney-General to order release from custody (s 17(1)(c)).

With respect to proceedings under Pt II and extradition to New Zealand under Pt III provision is made for the issue of search and seizure warrants (ss 14, 31). The magistrate "may issue" such a warrant upon provision of adequate material on affidavit. Part IV provides for the taking of evidence in Australia where "the Attorney-General suspects that a person is an extraditable person in relation to Australia" (s 43(1)). A magistrate then "may take" the evidence from witnesses and then "shall" cause it to be reduced to writing and, with a certificate, to be sent to the Attorney-General (s 43(2)).

Paragraph (a) of s 46(1) does not isolate or differentiate between performance of the range of functions of a magistrate under the Act. The arrangement applies to all of them. The significance of s 4AAA is that it supplements the operation of par (a) of s 46(1) and focuses upon each magistrate who from time to time holds office and is a subject of the inter-governmental arrangement. Each magistrate, as a matter of federal law, is not obliged to accept the performance of the functions of a magistrate under the Act.

The circumstance that those functions under the Act may be so formulated, as to any one or more of them, in terms which require the taking of steps by the magistrate if conditions precedent or jurisdictional facts be satisfied does not supply a "contrary intention" for the purposes of s 4AAA(6A). Section 46(1) speaks in terms of inter-governmental arrangement, and not, for example, in the peremptory terms of the law upheld in the First Uniform Tax Case[55], to which reference has been made. Any operative "contrary intention" here would need to spell out that a State magistrate is obliged to accept the obligation to perform the functions of a magistrate under the Act.

The submissions by the appellants respecting the imposition of a duty rather than a power should not be accepted.

Much attention in submissions was devoted to examination of the legislation of Western Australia and New South Wales under which magistrates are appointed[56]. It was said by the appellants that this showed an absence of the necessary legislative consent to the imposition of duties upon the State magistrates by federal law, and that the statement in the State legislation of the duties of these office holders was exhaustive and thus not to be supplemented by federal-State executive arrangements.

It is unnecessary to resolve these issues here. This is because the appellants' case fails at the earlier stage indicated in these reasons, the federal law operating to confer powers rather than impose duties.

The appeals should be dismissed with costs. The application for special leave should be granted, and the appeal treated as heard instanter and dismissed with costs.

KIRBY J. In the opening words of the reasons of Gummow, Hayne, Heydon, Crennan and Kiefel JJ ("the joint reasons")[57], it is recognised that these proceedings concern the operation of the Australian federal system of government.

The point upon which I differ from the other members of the Court derives from the federal idea. It is not consistent with that idea, as expressed in the Australian Constitution, for the Federal Parliament, still less the federal Government, to impose federal administrative functions on State magistrates, distinct from the functions provided for by State law. As senior State office-holders, such magistrates cannot have duties imposed on them unilaterally by federal legislation. Any resulting gap in their legal authority cannot be filled by State Government consent. At least, that cannot be done unless the State Parliament so provides with sufficient clarity.

These reasons will seek to demonstrate that the attempt in these cases to impose federal administrative duties on State magistrates lacks the essential authority of the State Parliaments concerned. It is therefore invalid.

To meet this argument, the majority embrace a statutory fiction that State magistrates are mere volunteers, free to perform or refuse the tasks assigned by federal law. For me this is wholly unconvincing. It is not the first time in recent years that such a legislative sleight of hand has succeeded.

In the argument of the Communist Party Case[58] before this Court, the Commonwealth urged the "limited nature"[59] of the impugned federal Act and advanced a submission that the Governor-General's determinations under the Act could be examined one way or another thereby meeting a major challenge to the validity of the law[60]. In those more robust and realistic times the majority of this Court saw through this device. They flatly rejected the disingenuous argument[61]. They upheld the challenge to validity. We should be no less insistent. A "minimalist approach" to constitutional adjudication has the "perverse effect of ... imperiling fundamental values"[62]. The challengers should succeed.

The Constitution and this Court's central function

No higher duty is imposed on this Court than that of ensuring that the Commonwealth and the States conform to the Constitution in their relations with each other[63]. This high duty found recognition in the framers' insistence (against the wishes of the Imperial power) that decisions "upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States" should be reserved to this Court and not subject to appeal to the Privy Council, save in the exceptional circumstances of a certificate, granted but once[64]. It explains the need for "legalism" in declaring and upholding the constitutional requirements governing the constituent parts of the federation. Other nations manage without such irksome rules. But they lie at the heart's core of our system of government.

As it has evolved in Australia, federalism has tended to favour, and enhance, the law-making powers of the Commonwealth at the expense of the States. However, the governmental arrangements expressed in the Constitution remain inescapably those of a dualist federal polity. So much is clear from the provisions of the Constitution, and in particular Ch V ("the States"). Section 107, in that Part, provides:

"Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth ...".

This Court must defend the powers of the Parliaments of the States of which this provision speaks. Save where a law-making power is exclusively vested in the Federal Parliament or where, otherwise, the Federal Parliament is authorised to act under the Constitution, this Court must defend the residual powers of the State Parliaments. It must do so, no matter what might have been done in Imperial and colonial times, before the Constitution came into force. It must do so however well-intentioned the federal intrusion might appear to be. It must even do so where the governments of the States concerned (as here) intervene in support of the federal law. Governments are constituted by transient electoral majorities. Parliaments, on the other hand, represent all of the people. They have a separate existence, dignity and role under the Constitution.

Lest this view of the Constitution seem unduly old-fashioned and traditional, it is necessary to say that it derives from the prescriptions and implications of the written text. The text is the source of this Court's powers and legitimacy. As well, the federal division of powers and responsibilities, although sometimes inconvenient and inefficient, affords important protections for the people of the Commonwealth. It ensures that, to the stated extent, government is decentralised and more responsive to electors than it would be in a unitary state, operating in a country of continental size. In addition, it tends to protect the liberties of the people by dividing governmental power. History, and not just ancient history, demonstrates that centralisation of governmental power can operate inimically to freedom. Modern technology has a tendency to centralise power. The federal form of government is a beneficial antidote[65].

There are, of course, arguments for different systems of government and different federal arrangements (for example, the abolition of the States and their replacement by enhanced local government). However, these do not reflect the provisions of the Constitution. Whilst it endures in its present terms, this Court's duty is to give effect to its meaning faithfully. Our constitutional system of checks and balances does not work according to its intended design unless this Court plays its proper part.

In these proceedings, the moving parties challenge what they portray as an attempt by the Federal Parliament, unilaterally, to impose administrative duties or functions upon magistrates of two Australian States. It is common ground that, in this instance, no "mirror"[66] or express State law has been enacted by the States concerned to authorise the federal legislative imposition.

When the constitutional point was taken in these cases, it resulted in a scramble by the federal and State authorities to justify the law in question. In the courts below[67], that attempt was almost entirely confined to an endeavour to squeeze out of ambiguous and opaque State laws an indication that the relevant State Parliaments had indeed given their express approval for the deployment of State magistrates in the manner apparently contemplated by the federal law. Although such arguments succeeded below, so fragile and contestable was the reasoning supporting them that by the time these proceedings reached this Court, the arguments (at least of some of the interveners) had changed.

Some of the respondent parties and interveners now contend that executive government agreement alone was sufficient to permit the deployment of the magistrates, despite the fact that the office of "magistrate" in each of the States concerned was created by State legislation and did not arise out of delegated, implied or prerogative executive power. In addition, a new argument - and one that hardly featured in the courts below[68], and was not the subject of any notice of contention in this Court - sought cleverly to escape from the problem altogether. It relied upon the federal legislative sleight of hand to which I have referred[69]. It was contended that individual State magistrates "need not accept the function or power conferred" by the contested provisions of federal law[70]. So, it was submitted, whatever a State magistrate did under the federal law was done personally and voluntarily, rather than as a magistrate.

Both the reasons of Gleeson CJ and the joint reasons now embrace this apparent forensic afterthought[71]. It has the immediate attractiveness of absolving this Court of any obligation to decide the important and serious federal questions that comprised the greater part of the arguments of the parties. It would have the happy consequence of circumventing the inconvenient (if, in all likelihood, temporary) outcome of frustrating the extradition of three persons to friendly requesting countries. Not for the first time in recent years, an important problem arising under the Constitution is escaped by adopting a construction of the challenged legislation that has not featured, significantly or at all, until the case has reached this Court[72]. The parties who invoke the Constitution come to this Court in the faith that we will uphold the basic law. They find that the Court is not really there. It sends them away saying that their problem does not really exist. I have no sympathy with such a view of the Constitution and of this Court's function under it.

I do not agree that the problem presented by these cases can be circumvented in the manner suggested by my colleagues. I deprecate the avoidance of important constitutional questions by defining them out of existence. That is not the function of a constitutional court.

I must therefore explain my reasons for rejecting the approach of the other judges of this Court. My conclusion, in that regard, obliges me to grapple with the constitutional and statutory issues that have hitherto engaged the courts below and otherwise engaged this Court.

When those issues are correctly addressed, the submissions of Messrs O'Donoghue, Zentai and Williams ("the appellants")[73] must be accepted. Because of the absence of State laws signalling clear consent to the purported conferral of federal functions on State magistrates by the Extradition Act 1988 (Cth) ("the Act"), that Act is, in this respect, invalid under the Constitution. The Federal Parliament cannot impose such functions in a unilateral manner. Nor can it do so by invoking executive arrangements.

For the purposes of resolving the constitutional question, it is unnecessary to explain, in detail, the facts surrounding the attempted extradition of the appellants. It is sufficient to note that Ireland is seeking the extradition of Mr O'Donoghue in respect of charges involving alleged fraud on his part. The Republic of Hungary is seeking the extradition of Mr Zentai in respect of an alleged war crime. The United States of America is seeking the extradition of Mr Williams in respect of multiple allegations of wilful attempts to avoid federal income tax[74].

In each case, the appellant was brought before a State magistrate for the performance of functions (I use a neutral word) under the Act, anterior to extradition to the respective "extradition country". In accordance with s 12 of the Act, those countries had earlier engaged the first of four stages set out in the Act, prerequisite to the serious step of the extradition of a person from Australia. The step is serious because it impinges upon the liberty of a person within Australia, protected by Australian law. It involves a surrender by Australia to an extradition country of an attribute of this nation's sovereignty. Conventionally, extradition law is strictly interpreted and applied because of these and other features[75].

An extradition country having applied to a "magistrate", as defined in the Act[76], for the arrest of each of the appellants, it was for the "magistrate", in the first stage of the process, to be "satisfied" that the person was an "extraditable person"[77]. The Act provides that, if he or she is so satisfied, the magistrate "shall issue a warrant" for the arrest of that person[78]. It was pursuant to such a warrant that each of the appellants was arrested under order of the State magistrate concerned.

In the second stage of the extradition process, the arrested person is brought before a magistrate to be remanded in custody or on bail pending the conduct of proceedings under, relevantly, s 19 of the Act[79]. Once again, it is clear from the scheme of the Act that the "magistrate" has, and retains, authority over the liberty of the arrested person.

The third stage of the extradition process involves the magistrate conducting proceedings under s 19 of the Act to determine whether the person is "eligible for surrender in relation to the extradition offence or ... offences for which surrender of the person is sought"[80]. It is a prerequisite to s 19 proceedings that the federal Attorney-General has issued a notice under s 16(1) of the Act, notifying the magistrate that he or she has received an extradition request from an extradition country in relation to that person.

If, in accordance with s 19 of the Act, the magistrate decides that the person is eligible for surrender, the fourth stage of the extradition process is reached. It is then for the Attorney-General, under s 22 of the Act, to determine whether the eligible person should be surrendered. The magistrate has no part in the decision made at the fourth stage. However, self-evidently, his or her decisions at the earlier stages are preconditions to the ultimate removal of the person from Australia to an extradition country.

Under s 5 of the Act, the word "magistrate" is defined to mean, relevantly, "a magistrate of a State ... being a magistrate in respect of whom an arrangement is in force under section 46".

By s 46 of the Act, relevantly, it is provided that the Governor-General may:

"arrange with the Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under this Act".

The challenges that are now before this Court were raised by the appellants at the third stage of the extradition process. Each of them sought (pursuant to s 39B of the Judiciary Act 1903 (Cth)) to prohibit or restrain the respective State magistrates from conducting proceedings to determine their eligibility for surrender to the extradition country.

The appellants also sought a declaration that ss 19 and 46 of the Act were invalid under the Constitution, in so far as those provisions purported to authorise, or permit, proceedings before State magistrates. In the proceedings of Messrs O'Donoghue and Zentai, the second respondents were individual magistrates of the Magistrates Court of Western Australia. Mr Williams's process named, as the second respondent, "Magistrates appointed by commission under the public seal of New South Wales".

It was not contested that, on 24 November 1988, the Governor-General had, by instrument and in stated compliance with s 46 of the Act, arranged relevantly with the Governors of Western Australia and New South Wales for "all or any of the persons who from time to time hold office as Magistrates of [each] State" to perform the functions "of a Magistrate under the Act"[81]. The record shows that in the cases of Messrs O'Donoghue and Zentai, the arrest warrants issued under s 12(1) of the Act were authorised by magistrates of the State of Western Australia other than those who later had before them the third ("eligibility") stage, at which point the constitutional relief was claimed.

It was accepted for the appellants that no attempt had been made in the courts below to establish the precise factual situation governing the assignment of particular magistrates to the performance of functions under the Act which they severally discharged. As a matter of evidence, there is no indication of the existence, or absence, of any internal arrangements within the Magistrates Court of Western Australia or the Local Court of New South Wales by which particular magistrates were, or are, afforded the opportunity to participate in (or to object to or decline to perform) the functions described in the Act. It was common ground that those functions are administrative and not judicial in character[82].

Neither the character of the powers conferred by the Act, nor the language in which those powers are expressed, is apt to engage the judicial functions of a State court as contemplated by s 77(iii) of the Constitution. By that unique provision, the Federal Parliament may make laws "investing any court of a State with federal jurisdiction" in respect of any matter arising under any law made by that Parliament. Section 19 of the Act is not, and does not purport to be, a law investing a State court with federal jurisdiction. Instead, it is a law designating members of a nominated class (State "magistrates") as persons authorised to perform what s 46(1)(a) of the Act itself describes as "functions ... under this Act".

O'Donoghue and Zentai appeals: The challenges of Messrs O'Donoghue and Zentai were heard together by Siopis J in the Federal Court of Australia. His Honour rejected two arguments then advanced for the appellants which have not been pursued in this Court[83]. However, most of his attention was addressed to what remained the principal focus of debate in all of the proceedings in the courts below. This was the suggested need for State legislative approval of the imposition of federal "functions" on a "magistrate" of the State[84]. Siopis J did not consider that there was such a need[85]. His Honour also accepted the submission that, in any event, "consent and approval" for the performance of the functions could be found in s 6(3)(b) of the Magistrates Court Act 2004 (WA) ("the WA Act")[86].

There is no record in his Honour's reasons of any reliance on s 4AAA of the Crimes Act 1914 (Cth) ("the Crimes Act") or principles of the common law that now prove determinative in this Court. Nor were those matters referred to by the Full Court of the Federal Court in dismissing an appeal from the orders of Siopis J. To the contrary, that Court confined its attention to the question whether s 6(3)(b) of the WA Act amounted to a State legislative provision authorising "the imposition of functions and duties on State magistrates under s 19 of the Act"[87]. Repeatedly, the Full Court characterised the "function" imposed on the State magistrates under the federal Act as a "duty"[88]. The Full Court simply concluded that "the State has approved the performance of duties under s 19 of the Act by persons holding office under the Magistrates Court Act"[89].

Mr Williams's application: When Mr Williams initiated his challenge in the Federal Court, the proceeding was referred to a Full Court. Despite the somewhat different legislation governing magistrates in New South Wales, the judges in the Full Court followed the general approach that had earlier been adopted in respect of Messrs O'Donoghue and Zentai. Specifically, their Honours concluded that s 23(2) of the Local Courts Act 1982 (NSW) ("the NSW Act"), on its proper construction, was "sufficiently extensive to enable the Governor [of New South Wales] to make an arrangement in relation to any function, including the imposition of a duty by the Commonwealth, as occurs in s 19 of the [Act]"[90].

In her separate reasons, Branson J mentioned in passing s 4AAA of the Crimes Act [91]. However, her Honour concluded that it was unnecessary to decide the applicability of that section to the circumstances of the case. She too regarded the federal deployment of State magistrates as sufficiently authorised by s 23(2) of the NSW Act[92].

Common arguments below: This summation demonstrates what is clear from the record. Until this matter arrived at this Court, no one seriously considered (and certainly no one decided) that the functions imposed on magistrates by the Act were not duties, such that the constitutional and statutory problems raised could be side-stepped.

In my respectful opinion, the general approach of the earlier judges was correct but their ultimate conclusions were wrong. The approach taken in this Court is wrong, as is its conclusion. I will demonstrate why that is so.

Three issues are presented for decision by this Court. Re-arranging them somewhat to accord with the new basis upon which the majority of this Court decides that the deeper questions may be ignored, the issues are:

(1) The construction issue: Does s 19 impose legal "duties" on State magistrates? Or is s 4AAA of the Crimes Act effective to deprive it of a compulsory character?

(2) The constitutional issue: If s 19 does impose duties, is it an implication from the federal structure of the Constitution that the Federal Parliament cannot impose such duties on the holder of the office of "magistrate", established under State law, without State legislative approval?

(3) The States' supposed approval issue: If State approval is required, is it afforded in these proceedings (a) in the cases of Messrs O'Donoghue and Zentai, by ss 6(1) or 6(3) of the WA Act; and (b) in the case of Mr Williams, by s 23(2) of the NSW Act?

Nature of the argument: The postulate underpinning the argument of the respondents and interveners on the first issue is that, because the Act does not purport to impose affirmative legal duties on State magistrates, no problem of a constitutional kind arises. Upon this view, it is for the State magistrates concerned to decide for themselves whether to perform the functions to which s 19 of the Act refers. In that sense, the magistrate is no more than a type of volunteer, performing functions as an individual who, although otherwise a State magistrate, in effect elects to undertake needlessly additional duties independent of the requirements of their office.

One need do no more than set out the chain of reasoning to demonstrate what an unconvincing argument is advanced. Yet the argument is now accepted by all of my colleagues. It is said to derive support from the decision of this Court in Aston v Irvine[93] and now s 4AAA of the Crimes Act [94]. It is therefore necessary to indicate, with a little care, why it should be rejected.

Before doing so, however, it is appropriate to pause for a moment and to reflect a little further on what, with respect, is the unreality of the submission now embraced. Although State "magistrates" are singled out by express reference to their office, the suggestion is made not only that they perform functions under the Act as personae designatae[95] but that, when doing so, they are somehow to be treated as disjoined from the very office that is a prerequisite to their selection to perform such functions. Each magistrate is to be "detached from the court to which he [or she] belongs and used for particular purposes"[96].

There is nothing in the Act that warrants such a conclusion. There is much that speaks against it.

Decision in Aston: The foundation for the argument that now finds favour in this Court is the earlier holding of the Court in Aston[97]. That case concerned the constitutional validity of s 18 of the Service and Execution of Process Act 1901 (Cth) ("the 1901 Act"). Section 18 conferred functions on, inter alios, a Stipendiary or Special Magistrate, a Justice of the Peace or an officer of a court having the power to issue a warrant for the apprehension of a person under the law of one State to make an indorsement on a warrant issued in another Australian jurisdiction authorising the execution of that warrant in that State.

In Aston, this Court unanimously rejected an argument that, since the persons named in the federal law as having the power to indorse warrants exercised that power under the authority of that law (and not as agents deriving authority from the executive governments of the States concerned), it was not a valid exercise of federal constitutional power. The suggestion is now made that, by analogy, the same result follows for s 19 of the Act in question in these proceedings. The analogy is unsound.

Distinguishing Aston: There are several reasons why it is unsound. First, and most importantly, the gravamen of the decision in Aston was a consideration of the ambit, and interpretation of the power to legislate expressly afforded to the Federal Parliament by s 51(xxiv) of the Constitution [98]. This confers power to make laws with respect to "the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States". There is no equivalent provision pursuant to which the Federal Parliament is empowered to make laws with respect to extradition. Its powers in that respect derive (for the most part) from the federal legislative power with respect to "external affairs"[99]. That power, like all others in ss 51 and 52, is granted to the Federal Parliament "subject to this Constitution". This qualification imports the express provisions protective of the constitutional power of State Parliaments[100]. It also imports any implied limitations deriving from the federal character of the Constitution and the role of the States in such a federal polity.

The decision reached in Aston was supported by the express and unambiguous terms in which the power to make federal laws with respect to the service and execution of criminal process throughout the Commonwealth was granted. Measured against the particularity of par (xxiv) of s 51, other provisions of, or implications in, the Constitution could not prevail. The decision in Aston is therefore no more than what it purports to be: a construction of the provisions of s 51(xxiv). On this basis, that decision can quite easily be distinguished from the present proceedings.

Section 18 of the 1901 Act had a firm foundation in an explicit grant of legislative power. There is no equivalent foundation for s 19 of the Act in question here. The general source of power is susceptible to the attack on its deployment, made by the appellants. The decision in Aston does not repel that attack. On the contrary, by contrasting the respective legislative sources, the susceptibility to a collateral constitutional attack of the source founded, for example, in the external affairs power is made plain.

There is a second response to the invocation of Aston. It relates to the nature of the functions conferred by s 18 of the 1901 Act when compared to those purportedly authorised by s 19 of the Act under present scrutiny. It was possible, in Aston, for this Court to conclude that the 1901 Act had done no more than enhance, pursuant to s 51(xxiv), powers already enjoyed by State magistrates to issue warrants under State law. This was seen as permissible because it involved "no interference with the functions of the executive government of the State"[101]. By way of contrast, the challenge in the present case is expressed much more broadly. It is not founded on suggested federal interference with the executive government of the State but rather with the office of magistrate and with the powers of the Parliament of the State concerned, having established that office, to provide exclusively for the deployment of holders of that office.

Nothing in Aston contradicts the argument advanced by the appellants in these proceedings. The decision is founded in the express language of s 51(xxiv) of the Constitution. Neither the holding nor the reasoning answers the appellants' submissions or justifies the conclusion that the constitutional issues here presented are avoidable. The Act under consideration, as will be plain, does much more than confer powers upon magistrates. It imposes functions and duties. Indeed, it is clear that "magistrates" have been chosen to exercise the federal functions for the very reason that they hold offices making them apt repositories of the powers and duties which the Federal Parliament has purportedly assigned to them.

Statutory language signifies duty: Many indications in the language, subject matter and structure of the Act confirm that, in enacting s 19 of the Act, the Federal Parliament intended to impose duties upon State "magistrates":

(1) The Act provides that where an application is made under s 19, "[a] magistrate shall conduct proceedings to determine whether [a] person is eligible for surrender". By definition the "magistrate" concerned must be "a magistrate of a State". The Act thus purports to impose a duty on a State magistrate, its character being signified by the imperative verb "shall". This is the language of duty. It is a language well understood, as such, by office-holders such as magistrates;

(2) The choice of State magistrates as the repositories of power under the Act also indicates that s 19 was drafted upon the expectation that persons of such a designation would be both competent and appropriate to perform the functions conferred (and invariably willing and able to do so) simply by reason of their office. That office involves numerous coercive functions, with which the functions purportedly imposed by the Act are, in many respects, analogous. Specifically, it is not uncommon for State magistrates to make decisions directly affecting the liberty of individuals, such as are required to be made under s 19 of the Act (and also, for example, s 12);

(3) There is no evidence in the Act or otherwise to suggest the existence, and exercise, by State magistrates, of an entitlement to refuse, or decline, to perform functions under the Act. Indeed, there are several indications in applicable State law that argue against an entitlement to do so. From the flimsiest of evidentiary foundations, the joint reasons appear prepared to infer that the State magistrates, who have performed functions under the Act affecting the appellants, have done so merely on the basis of their personal "acceptance" of the function or power concerned[102]. In the absence of direct evidence one way or the other (taking into account history, experience and common practice), the better inference to draw is that the State magistrates have each performed the federal functions pursuant to regular official assignment to those functions in the manner provided for under State law. In Western Australia, s 25 of the WA Act permits the Chief Magistrate, "by directions given from time to time to a person who is a magistrate", to "specify which administrative duties the person is to perform for the time being" and to "specify where, when and at what times to ... perform those ... duties". In New South Wales, a similar provision allows the Chief Magistrate to allocate particular functions to particular magistrates[103]. If, as appears to have been the case, the Federal Parliament (and Government) and the State Governments all assumed that functions under s 19 of the Act might lawfully be conferred by means of mutual executive arrangements, it is stretching the judicial imagination even of this Court to suppose that the State magistrates, at any stage in these proceedings, conceived of themselves, or acted, as if performing anything other than statutory duties binding upon them. All available indications point in the opposite direction. A factual inference that State magistrates were not obliged to perform s 19 functions should not be drawn by this Court, in effect for the first time, in the exercise of the Court's appellate jurisdiction. If such were to be established, the evidentiary or forensic burden of proving that the magistrates were volunteers rested on the governments concerned, each having the requisite knowledge, resources and motivation to provide such proof. None was forthcoming; and

(4) Against this background, the notion that a State magistrate to whom an application was made under s 19 of the Act could treat the exercise of the resulting functions as purely personal and voluntary to him or her is impossible to reconcile with the scheme and purpose of the Act. It would not be open to such a magistrate to "simply abnegate his authority"[104]. Should a State magistrate fail (actually or constructively) to perform functions imposed by the Act, performance of those functions would doubtless be compellable by mandamus, assuming their constitutional validity. Alternatively, a declaration might be made, to which it would be expected that an office-holder such as a magistrate would conform without question. In essence, that is a consequence inherent in the choice of "magistrates" as the class of persons in whom the relevant powers are reposed. In establishing the nature of the functions imposed under a statute, and in particular the degree to which they are compulsory, it is appropriate to have regard to the character and functions of the donee of the power. As Earle Cairns LC observed in Julius v Lord Bishop of Oxford[105]:

"[T]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

In the same reasons, his Lordship explained[106]:

"[W]here a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised."

The power reposed by the Act in State "magistrates" is to be used for the benefit of the extradition country but also, in a sense, of the person subject to the application. The selection by the Act of a State "magistrate" to exercise the functions and powers indicates, clearly enough, that they are so reposed as duties and not "voluntary" or purely personal or "optional" activities. They are, and are intended to be, serious public powers. They impinge immediately on the rights of those seeking their exercise and the liberties of those potentially affected. It follows that, when the federal Act was enacted, it was never intended that anything less than a compulsory duty to exercise those powers should be imposed upon State magistrates. The contrary has not been demonstrated.

Section 4AAA of the Crimes Act: But has the subsequent enactment of s 4AAA altered this situation in a material way? Does that section render non-compulsory the functions which the Federal Parliament, by the Act, initially imposed upon State magistrates assigned to consider applications at successive stages of the extradition process, effectively as part of their official duties?

Reliance was placed on s 4AAA(3) by the first respondent in Mr Williams's case. At no stage was it relied on by any of the respondents in the earlier proceedings of Messrs O'Donoghue and Zentai. I shall overlook any difficulties that might be presented in this regard by the course of the proceedings, the state of the record and the absence from any of the proceedings of any relevant notice of contention. I can safely do this because of the conclusion that I reach adverse to the substance of the contention.

The construction issue: s 4AAA of the Crimes Act

Provisions of s 4AAA: The enactment of s 4AAA of the Crimes Act represents an attempt, in effect, to repair a perceived defect in pre-existing (and later enacted) federal law.

Relevantly, s 4AAA states:

"Application > > (1) This section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of the following persons: > > (aa) ... > > (ab) ... > > (a) a State or Territory judge; > > (b) a magistrate; > > (c) a Justice of the Peace or other person: > > (i) employed in a State or Territory court; and > > (ii) authorised to issue search warrants, or warrants of arrest. > > Functions and powers conferred personally > > (2) The function or power is conferred on the person only in a personal capacity and not, in the case of a ... State or Territory judge or magistrate, as a court or a member of a court. > > Function or power need not be accepted > > (3) The person need not accept the function or power conferred. > > Protection and immunity provided > > (3A) ... > > (4) A State or Territory judge or magistrate performing a conferred function, or exercising a conferred power, has the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the judge or magistrate is a member). > > (5) ... > > This section applies regardless of when Commonwealth law made > > (6) This section applies whether the law conferring a function or power was made before, on or after, the commencement of this section. > > Contrary intention > > (6A) Despite subsection (1), a rule set out in this section does not apply if the contrary intention appears. > > A law of the Commonwealth relating to criminal matters > > (7) In this section a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act."

There follows s 4AAB which provides for the Governor-General to make arrangements with the Governor of a State for the conferral of non-judicial functions and powers on, amongst others, a State magistrate. This section does not advance the matter as it operates on the same basis as s 46 of the Act in contest here.

Section 4AAA(1) contains a marginal note indicating that the word "magistrate" is defined in s 16C of the Acts Interpretation Act 1901 (Cth). That section provides that the word "magistrate" does not include a federal magistrate but does include a reference, unless the contrary intention appears, to a "Chief, Police, Stipendiary, Resident or Special Magistrate" or "any other Magistrate in respect of whose office an annual salary is payable". The context makes it plain that this extends to State magistrates of the kind respondent to these appeals.

There are three reasons why s 4AAA of the Crimes Act does not perform the function attributed to it by the majority in this Court.

Existence of a contrary intention: The first reason is that s 4AAA is inapplicable according to its own terms because "the contrary intention appears" in s 19 of the Act. There is nothing specific in s 4AAA to indicate that, in enacting the provision, the Federal Parliament gave any particular attention to the case of that Act. The reasons previously collected to indicate why the language, structure and context of s 19 are impossible to reconcile with a notion that the "functions" imposed on State magistrates are "voluntary" or "optional" sufficiently indicate why the general provisions of s 4AAA are inapplicable because "the contrary intention appears". It is unnecessary to repeat these reasons. It would require language of far greater specificity and clarity than appears in s 4AAA to have the effect of converting the manifestly obligatory administrative functions envisaged under s 19 of the Act into voluntary or optional functions.

No law relating to criminal matters: The second reason for holding s 4AAA inapplicable to the functions contemplated by s 19 of the Act rests on the requirement in s 4AAA(1) that the federal law operated upon must be one "relating to criminal matters".

The fact that s 4AAA is addressed to federal laws appears in terms. It is concerned with rules applicable "under a law of the Commonwealth". It would be normal to read the following phrase "relating to criminal matters" as confined to "criminal matters" provided for under the federal law of Australia. This is because the reader expects federal law to be addressed to the proper subject matters of federal law, in this case Australian federal criminal matters. If some other, further or different subject matter were intended, it is reasonable to presume that an expansive definition of "criminal matters" would have been adopted. In sub-s (7) of s 4AAA, the phrase "a law of the Commonwealth relating to criminal matters" is stated to encompass the Crimes Act itself, without doubt a federal law providing for federal criminal matters. Why, then, should "criminal matters" be read, exceptionally, to extend to foreign criminal matters? Or to the "criminal matters" of a foreign "extradition country"? The statutory context and the general canons of construction argue for the narrower meaning.

Whereas legislation dealing with extradition to Australia for an offence against a law of the Commonwealth might attract a provision such as s 4AAA, each of the appellants here is the subject of an application by a foreign "extradition country". Section 19 of the Act deals with "extradition offences" committed against the laws of such countries, and therefore with those countries' "criminal matters".

Whilst this point of construction is more disputable than the "contrary intention" point, an appropriately strict reading of s 4AAA demonstrates that the section is not applicable here.

Federal statutory sleight of hand: I reach the third reason. I have earlier referred to the argument based on s 4AAA as an instance of attempted federal sleight of hand. By this I mean that it reflects an endeavour of the Federal Parliament, by the enactment of generally expressed provisions, to avoid serious constitutional problems by stating its commands in conflicting terms. Thus, whilst s 19 of the Act selects State "magistrates" eo nomine to perform magistrate-like functions affecting the liberty of persons subject to extradition orders, s 4AAA allegedly seeks to propound the notion that the dutiful office-holders so selected for such functions "need not accept the function or power conferred"[107]. They can, in effect, treat them as optional, voluntary, non-compulsory: as functions which they may or may not care to do.

The argument that s 4AAA of the Crimes Act applies to s 19 defies the obvious scheme, purpose and intended operation of the Act. In the present context, it also reflects an unacceptable attempt by the Federal Parliament, wholly by the terms of its own legislation, unilaterally to escape the constitutional requirement of Commonwealth/State legislative mutuality. If it were to succeed, it would mean that, by introducing a fiction of voluntary or optional service, whilst relying on the actuality of dutiful performance of legal functions, the Federal Parliament could not only bypass the State Parliaments concerned. It could also, as a matter of law, bypass even executive "arrangements" between the Governor-General and the Governors. Such unilateralism is alien to the notion of federal governance implied in the Australian Constitution.

This conclusion affords an additional reason for regarding s 4AAA as inapplicable in respect of the State judicial officers ("magistrates") in whom the Act reposes federal "functions" which those officers "shall" perform, if the Act is to be effective according to its tenor.

A suggestion is made that any coercion that is imposed by s 19 of the Act is limited to coercion upon those magistrates who voluntarily and optionally accept the functions or powers conferred by that section. This is not an answer to the third point. Such persons are still (as they are required by the Act to be) "magistrates". Necessarily, they serve as such as part of the judiciary of the State concerned. There thus remains on the face of the federal statute an attempt by federal law to impose on such high State office-holders federal "functions" assigned (as the appellants assert) without the authority of enacted State law.

If State legislative consent is constitutionally required for such a deployment of State magistrates, it cannot be avoided or circumvented by the unilateral federal device attempted in s 4AAA. If the section directly endeavoured to remove altogether the need for State law authorising such a deployment (voluntary or obligatory), it would be contrary to the Constitution. The section would be read down to avoid such an operation[108]. So confined, the section does not perform the task assigned to it by the majority in this Court. We should flatly reject such a disingenuous argument[109].

Constitutional issues remain: It follows that it is necessary for me to consider the remaining issues argued by the appellants.

The constitutional issues: requirement of State legislative approval

Dualist federalism: The starting point for an appreciation of the need for State legislative approval of the vesting by the law of another polity (the Commonwealth) of "functions" to be exercised by State statutory office-holders ("magistrates") is a recognition that the Australian Constitution creates a "federation of a dualist kind"[110].

The Commonwealth of Australia is a federation comprising, relevantly, "a central government and a number of State governments separately organized"[111]. This feature of the nation's political arrangements is at once familiar, self-evident and vital. It must be given effect by this Court.

In Re Wakim; Ex parte McNally[112], Gummow and Hayne JJ acknowledged the part that cooperation between the component parts of the federation can play. But they emphasised, correctly, that[113]:

"[N]o amount of co-operation can supply power where none exists. To hold to the contrary would be to hold that the Parliaments of the Commonwealth and the States could, by co-operative legislation, effectively amend the Constitution by giving to the Commonwealth power that the Constitution does not give it."

A consistent line of decisions: Throughout the history of the Commonwealth, in a series of well-known cases, this Court has upheld a limitation on the power of the Federal Parliament to impose administrative "functions" on State office-holders unilaterally. Thus, in The Commonwealth v New South Wales[114], the Court invalidated a provision of federal law that had purported to impose on a State Registrar of Titles a duty to register land compulsorily acquired by the Commonwealth. In his reasons, Isaacs J, by reference to general principles of the Constitution, explained why such a provision was ultra vires the federal power[115]:

"[The section] is a command to a State official as such in the performance of his State functions to disregard the conditions of his statutory authority and to act in accordance with Commonwealth directions. His action is a State service, not an individual service. [The section] attempts to create, not a new individual duty on the part of an inhabitant of the Commonwealth, but a new State governmental duty towards the Commonwealth. In the circumstances here appearing, that is not warranted by any provision of the Constitution, and the attempt fails."

At the height of the Second World War, this Court upheld as valid the Income Tax (War-time Arrangements) Act 1942 (Cth), which authorised the Federal Treasurer, by notice to the State Treasurer, to "bring about the temporary transfer to the Public Service of the Commonwealth of any specified officers of the State service who have been engaged in duties [of collecting taxes]"[116]. A majority, drawing on the defence power in the Constitution [117], emphasised the particular needs of national defence at that time[118]. Latham CJ, who dissented, observed[119]:

"Apart from the defence power it would hardly be argued that the Commonwealth could, as it were, forcibly seize a State department, its personnel, accommodation and equipment, under a law specifically directed to this object."

The federal law concerned went far beyond giving effect to a cooperative arrangement between officers of the executive government. It involved the imposition of a federal statutory duty on a State employee without counterpart State legal authority. Only the defence power, and then only for the wartime period, was held sufficient to sustain the constitutional validity of such an imposition.

In Melbourne Corporation v The Commonwealth[120], Dixon J explained the limitations inherent in the Constitution that restrict unilateral federal attempts to impose "a particular disability or burden upon an operation or activity of a State, and more especially upon the execution of its constitutional powers"[121]. With the type of problem later to emerge in Aston in mind, Dixon J said[122]:

"[T]he efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority."

The extension of this principle to State judicial office-holders was recognised in Queen Victoria Memorial Hospital v Thornton[123]. Drawing a negative inference from the explicit power in s 77(iii) of the Constitution, by which the Federal Parliament may "[invest] any court of a State with federal jurisdiction", this Court made it plain that it was not competent for a federal law, of itself, to call upon a State court "to perform a function which ... is of a non-judicial character"[124].

In Queensland Electricity Commission v The Commonwealth[125], Gibbs CJ made clear what was implicit in the foregoing decisional authority, pointing out that[126]:

"[T]here is no reason to limit the doctrine to laws which interfere only with the executive power of a State. A Commonwealth law which is directed at the exercise by a State of any of its governmental powers - legislative, executive or judicial - will fall within the ban."

In the same case, Brennan J explained the "ban" by reference to the text of the Constitution [127]:

"The independence of the States in exercising their powers, implicit in s 106 of the Constitution, and the binding effect of Commonwealth law upon them is thus reconciled".

The role of the canons of constitutional interpretation in evaluating intrusions of powers within a federation was recognised by Brennan J in The Queen v Duncan; Ex parte Australian Iron and Steel Pty Ltd[128]:

"[A]n attempt by a State Act to vest similar State powers in the same [federal] tribunal would fail - not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament had chosen to vest in it."

This principle was, in turn, applied in Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd[129]. That was a decision concerning the Coal Industry Tribunal created by "mirror" or counterpart federal and State legislation. Crucial to the validity of such a legislative endeavour was the avoidance of unilateral imposition of functions and the enactment of complementary laws. In words directly applicable to the present proceedings, the entire Court, referring to the passage from Duncan quoted above, said[130]:

"While it is unnecessary to investigate the matter here, it may well be, of course, that precisely the same comments could be made, mutatis mutandis, in relation to an attempt by a Commonwealth Act to confer federal duties upon a State-constituted non-judicial tribunal, which was not expressly or impliedly authorized to exercise them by State law."

Analogous principles have been recognised in several more recent decisions including Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[131] and R v Hughes[132]. In Hughes, the joint reasons expressed succinctly the proposition for the counterpart of which the appellants contended in these proceedings[133]:

"[A] State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth".

In the same case, I remarked[134]:

"An officer or authority of the Commonwealth (such as the Commonwealth DPP) would ordinarily be immune from the imposition, by a law of a State or Territory, of functions and powers distinct from, or additional to, those imposed by federal law. Effective immunity from such imposition arises from several sources. These include the provisions of the Constitution itself; the implication derived from the Constitution that the laws of the States and self-governing Territories may not impermissibly restrict or modify the capability of the Commonwealth to perform its functions as such; and the principle of statutory construction that the functions of a donee of legislative power will ordinarily be taken as confined to those relevant to the polity within which the officer or authority concerned operates."

Over the history of the Commonwealth, and of this Court, there have been many variations on the same theme. They have been addressed, for example, to the invalidity of federal laws that discriminate against the States or single them out to "curtail their freedom in the execution of their constitutional powers"[135].

In the United States of America, in recent years, a principle forbidding "conscription" of State officers and employees has been developed by the Supreme Court. That principle was expressed in Printz v United States[136], which was referred to in both the majority and minority reasons in Austin v The Commonwealth[137]. It is unnecessary to consider Austin here because it was not part of the appellants' case either that particular States had been "singled out" for discriminatory federal imposition or that the federal Act in question here amounted to "conscription" of State officials[138].

The appellants' objection to the Act in these appeals was simple. It was that the Act, as a federal law, purported to impose "functions" on State office-holders (so named as "magistrates") without the approval of the State Parliament that created their offices and provided for the functions and duties of office. Without "mirror" or counterpart State laws, the imposition of such "functions" by federal law alone could not be valid.

In light of the long series of decisions of this Court that I have collected, the constitutional proposition advanced by the appellants is plainly right. Performing its functions, protective of the constitutional design and purpose, it is the simple duty of this Court to uphold their submission.

Particular constitutional powers: In Melbourne Corporation, Dixon J acknowledged that, occasionally, a particular head of federal legislative power might, of its nature, be sufficient to sustain a unilateral imposition of federal functions on State office-holders, or some of them[139]. This explains the apparently exceptional use of the defence power in wartime[140], and the supplementation of the powers of State court officers under service and execution of process laws[141]. It also explains why, in some cases, a federal law of general application may be held to stand outside the constitutional conception[142].

Such was the view I accepted concerning the federal taxation law burdening judicial pensions which the Court invalidated in Austin[143]. My opinion did not prevail. Every other member of the Court in Austin held that the federal law was invalid. How much stronger is the present case, where the office-holders, who are members of the State judiciaries, are not simply swept up in a federal taxing law of general application but are named by their office in the federal Act and then have additional and federal administrative functions imposed on them eo nomine? A consistent application of the majority approach in Austin requires a resistance to the unilateral federal imposition of specific functions attempted in these appeals.

Whatever might conceivably be the position in respect of minor State employees deployed on integrated and cooperative federal functions by consent of the executive government of the State concerned, the position of State magistrates is surely different. Magistrates are necessarily members of the judicial arm of a State government. Even when performing administrative functions, or functions as personae designatae, where they are chosen to do so as "magistrates" they inescapably retain the general character of their offices as such. Inferentially, they perform their functions in State facilities, using State resources, assisted by State officials, performing their functions in State time, by inference paid for in this respect by salaries and allowances drawn on the State Treasury.

The constitutional requirement that the legal supplementation of the duties of State magistrates be authorised by State law is therefore unsurprising. In every sense, magistrates are in fact amongst the most senior office-holders of the State. Their deployment, as such, is provided for by State law enacted by the State Parliament enjoying the relevant State constitutional authority to do so[144].

Negative implication of s 77(iii): A final reinforcement of the foregoing conclusions may be found in the express provision in s 77(iii) of the Constitution for the compulsory imposition on State magistrates, as members of State courts, of federal jurisdiction as expressed in laws enacted solely by the Federal Parliament. The fact that, in this particular respect, the Constitution acknowledges expressly a federal power of imposition of functions gives rise to a negative implication where the federal law in question involves the imposition of administrative functions on the very same person, even if in a different capacity.

It is true (as I have often acknowledged) that care needs to be exercised in applying the expressio unius principle to the elucidation of the meaning of the sparse language of the federal Constitution [145]. However, one of the steps in the reasoning that led to the majority conclusion in Re Wakim[146] was the negative implication arising from the express words of s 77(iii). That paragraph of the Constitution had no counterpart authorising the conferral of State jurisdiction on federal courts. Consistency by this Court in the deployment of the negative implication to which this gave rise in the present proceedings favours the conclusion for which the appellants argue.

Government agreement insufficient: All this aside, is it sufficient that agreement in the present case was "arranged" between the Governor-General and the State Governors concerned, acting on the advice of the respective executive governments of the Commonwealth and the States of Western Australia and New South Wales?

The sufficiency of the executive agreement was strongly defended by the Commonwealth. Plainly, s 46 of the Act was drafted on the assumption of such sufficiency. Given this, it is unsurprising that explicit attention does not appear to have been given to the enactment of counterpart State law by the organ of the State empowered to make such law, namely the State Parliament as envisaged by s 107 of the Constitution. Only when the present challenge was brought was the search for a State legislative approval joined in an energetic way.

It would be contrary to fundamental principle for the State executive government to presume to a power, under its own authority, to vary or alter, in a material way, the "functions" of State magistrates, as established by the State Parliament. Yet that is what s 46 of the Act seems to envisage in this context.

Insufficiency of "regal authority": The principle that the executive government cannot unilaterally vary provisions enacted by the State Parliament is part of the basic historical underpinning of our Constitution. It was inherited from Great Britain when our Constitution was adopted. The use of "regal authority", so far as it pretended to a power of suspending or dispensing with enacted laws, or the execution of those laws, without consent of Parliament, was declared illegal in the first section of the original Bill of Rights[147].

In contemporary Australian circumstances, "regal authority" is equivalent to executive power[148]. It was the claim of James II to an "uncertain power of dispensation"[149] that led to the Trial of the Seven Bishops in England in 1688[150]. The verdicts of the jury in that trial, acquitting the bishops, have been taken to endorse the view of the Constitution expressed by the judges who summed up against the propositions of the Crown. Within months of the verdicts, there followed the flight of the King, a legal revolution, the passing of the British Crown to King William III and Queen Mary II and the new constitutional settlement expressed by Parliament in the Bill of Rights, accepted in the United Kingdom by the new monarchs and by their successors.

Since that time it has been clear doctrine in countries of our constitutional tradition that the executive may not, without authority of Parliament, revoke, ignore or purport to vary an enactment of Parliament. This rule has a textual foundation in the Australian Constitution, being its provisions establishing the Federal and State Parliaments which, by the language and postulates of the Constitution, are accountable to the electors.

In so far as, by any agreement between the Governor-General and a Governor of a State, the executive government of a State pretends to a power to ignore, vary or modify an enactment of the State Parliament governing State magistrates, a fundamental postulate of the Constitution is offended. No agreement between the executive government of the Commonwealth and of a State would be valid if it purported to ignore, vary or modify a State law duly enacted.

In these proceedings, both Western Australia and New South Wales relied on particular State laws as authorising the executive government of the State to agree to the "arrangement" contemplated by s 46 of the Act. Western Australia specifically accepted the submission of the appellants that the State approval in question had to be legislative, as the State executive government had no power of itself to alter or detract from enacted State legislation. Indeed, Western Australia acknowledged that "the correctness of that proposition cannot be doubted"[151]. In this, its submission was accurate.

Conclusion: parliamentary consent? The result of this analysis is to sustain the constitutional proposition advanced by the appellants.

Neither federal legislation on its own nor the "arrangement" agreed between the executive governments of the Commonwealth and the States could be effective to ignore, vary or modify the functions conferred on State magistrates by State statute law establishing the State office of "magistrate" and providing for the duties and functions of that office. To be effective, any variation, modification or supplementation had also to be authorised by, or under, enacted State law.

This conclusion leads to the remaining issue, being whether the laws of Western Australia and New South Wales said to signal such State parliamentary consent do in fact so provide with sufficient clarity.

Western Australia: statutory provisions: In Western Australia, "magistrates" are members of the Magistrates Court of Western Australia, established by the WA Act. The Court is a court of record[152]. It may be constituted by one magistrate[153]. The functions of magistrates are provided for in s 6 of the WA Act. That section reads, relevantly:

"(1) A magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including this Act and other written laws. > > (2) ... > > (3) With the Governor's approval, a magistrate - > > (a) may hold concurrently another public or judicial office or appointment, including an office or appointment made under the law of another place; and > > (b) may perform other public functions concurrently with those of a magistrate. > > (4) A magistrate must not be appointed to an office that does not include any judicial functions without his or her consent."

Section 25 of the WA Act empowers the Chief Magistrate to specify which administrative duties a magistrate is to perform and where, when and at what times he or she is to do so. A magistrate is required to ("must") comply with the Chief Magistrate's directions in this regard[154].

WA reliance on s 6(3)(b): No explicit approval is given in the WA Act for acceptance by magistrates of Western Australia of the "functions" purportedly conferred on them by ss 12 and 19 of the Act. To find such authority, it is necessary to perform upon the language of s 6 of the WA Act a highly creative act of interpretation. This is precisely what the primary judge and the Full Federal Court did, considering s 6(3)(b) to afford the requisite approval[155]. In my view that was an erroneous holding:

(1) The reference to the performance of "other public functions", in a statute of the Parliament of Western Australia is, on the face of things, a reference only to "other public functions" of that State and not to those of another polity[156]. This interpretation follows from the general principle that one does not expect to see one Parliament providing for the performance of functions by its office holders other than those the subject of its own laws;

(2) The fact that par (b) refers to Western Australian "public functions" is also confirmed by the Explanatory Memorandum circulated with the Bill. It explained that s 6(3)(b) of the WA Act was similar in intent to s 34 of the Justices Act 1902 (WA), which the WA Act replaced. By s 34 of that earlier Act, it had been provided that a magistrate "may discharge the duties of clerk of petty sessions". Obviously, that was a State "public function";

(3) In any case, s 19 of the Act does not purport to confer federal functions on a State magistrate to be performed "concurrently with those of a magistrate". The function imposed by the Act is evidently separate and different from State functions and not, as such, conferred on the court of which the magistrate is a member. It is not, therefore, a public function to be performed "concurrently with [the functions] of a magistrate". It is an additional and distinct function. It follows that s 6(3)(b) does not address the imposition of functions on a magistrate by s 19; and

(4) The comprehensiveness of the statement of functions of a magistrate under the WA Act is confirmed not only by commonsense and the detailed provisions of that Act but also by the universal and unqualified entitlement of the Chief Magistrate, under s 25(1), to assign duties to each magistrate by giving directions with which the magistrate must comply. There is no mention in s 25, or anywhere else in the WA Act, of the performance by a magistrate of additional, distinct and different federal administrative "functions". The notion that a "magistrate" may perform those functions as a volunteer, personally and optionally, does not fit comfortably with the explicit identification of the duties of a "magistrate" of the State and the provisions enacted for the deployment of magistrates upon such duties by the Chief Magistrate.

WA reliance on s 6(1): Although not earlier relied on, Western Australia placed much emphasis in this Court on the suggested function of s 6(1) of the WA Act as a source of State legislative consent to the Governor's "arrangement" with the Governor-General under s 46 of the federal Act. The State argued that the reference to "other written laws" in s 6(1) included a reference to written laws of the Commonwealth and hence to s 19 of the Act. This belated argument should also be rejected:

(1) The reference to "other written laws", given the context, is a reference to Imperial enactments still applicable in Western Australia. So understood, s 6(1) has clear work to perform without the need to import federal functions for that purpose;

(2) This approach to the meaning of "written laws" is confirmed by the Interpretation Act 1984 (WA). Under s 5, "written law" is stated to encompass "all Acts for the time being in force". "Act" refers to laws of Western Australia, or laws made "by any Council previously having authority or power to pass laws" in that State. The term "Commonwealth Act" is separately defined to mean "an Act passed by the Parliament of the Commonwealth". Given this, it seems clear that the general term "written law", used in s 6(1) of the WA Act, was not intended to refer to "Commonwealth Acts" applicable in Western Australia. Had this been intended, a mode of expression conformable with the Interpretation Act would have been used;

(3) It would be extremely surprising if a reference to laws that apply in Western Australia were intended to pick up, without qualification, the laws of another polity, in particular given the explicit recognition in s 6(3) of the WA Act of the need for the State Governor's approval for a magistrate to hold a concurrent public or judicial office or appointment under the law of another place. It is necessary to read s 6(1) alongside s 6(3) so as to ascertain the separate purposes for which each has been enacted; and

(4) The reliance on s 6(1) of the WA Act is misconceived. This conclusion will cause no real surprise because it is obvious that the Commonwealth and the State proceeded on the assumption, expressly affirmed in s 46 of the federal Act, that agreement between the executive government was all that was legally required to vary, modify or supplement the State law. That assumption was constitutionally incorrect.

Reliance on s 6(3)(a): Although Western Australia itself disclaimed the argument, the Commonwealth (by this time clutching at straws) indicated its reliance, if need be, on s 6(3)(a) of the WA Act to authorise the Governor's "arrangement" with the Governor-General and to sustain the imposition of extraneous non-State duties on a State magistrate. It is sufficient to say, in answer to this proposition, that a law of the Commonwealth is not, in relation to Western Australia, a "law of another place". The Commonwealth is not "another place". It exists throughout Western Australia and is not "other" in relation to the States.

Conclusion: no WA approval: The result is that neither in s 6(3)(b), relied on by the Full Court, nor in any other provision of the WA Act or any other law of the Parliament of Western Australia to which reference was made, was approval given by the State legislature to vary, modify or supplement the duties of persons holding office as "magistrates" under and in accordance with the WA Act.

In the absence of such approval, it was not competent for the executive government to advise the Governor to execute the arrangement with the Governor-General. No such arrangement could be lawfully made to vary, modify or supplement the State law. In accordance with the constitutional principle previously explained[157], such State approval was a precondition to the imposition upon State magistrates of federal functions, such as those stated in s 19 of the Act.

It follows that the second respondents in the proceedings of Messrs O'Donoghue and Zentai had no lawful power or authority to perform the federal "functions" purportedly conferred on them by s 19 of the Act. Those appellants are therefore entitled to the relief they seek.

New South Wales: statutory provisions: The provision of New South Wales law relied on to afford legislative approval for the inter-governmental agreement and the performance by State magistrates in that State of federal functions under the Act, was s 23 of the NSW Act. Relevantly, that section provides:

"(1) Except as provided by this section, a Magistrate shall devote the whole of the Magistrate's time to the duties of the Magistrate's office. > > (2) A person may, with the approval of the Governor (which approval the Governor is hereby authorised to grant), hold and exercise the functions of the office of Magistrate and another office or appointment. > > (3) ... > > (4) Subsection (1) does not prevent a person from holding office as and exercising the functions of a Magistrate on a part-time basis, but such a person must not, while so holding office: > > (a) accept or continue to hold or discharge the duties of or be employed in any paid office in connection with any commercial business, or > > (b) ... > > (c) engage in or continue in the private practice of any profession, occupation or trade, or enter into any employment, whether remunerated or not, with any person so engaged."

In New South Wales, magistrates are members of the Local Court of the State, established by the NSW Act[158]. Under s 8, a court shall be constituted by a magistrate sitting alone. A magistrate holds public office of the State and is appointed by the Governor by commission under the public seal of the State[159]. A person's appointment as a magistrate "is taken to be an appointment on a full-time basis unless the appointment is expressed, in the commission by which the person was appointed, to be on a part-time basis"[160].

By s 52 of the Constitution Act 1902 (NSW), the office of magistrate of the Local Court is amongst those defined as a "judicial office" for the purposes of Pt 9 of that Act. By s 53, within Pt 9, no holder of a judicial office may be removed from the office except by the constitutional procedure of an address from both Houses of Parliament seeking removal on the ground of proved misbehaviour or incapacity. Holders of judicial office in New South Wales have protection against the abolition by legislation of their office[161]. Whether or not such provisions are "entrenched" and require approval at referendum for their alteration or repeal[162] does not need to be determined here. Clearly, in New South Wales the office of "magistrate" is one of very high constitutional importance in terms of the government of the State. For the deployment of such "magistrates" upon duties of office, including administrative, a requirement for the consent of the State Parliament would not be surprising. Indifference or lack of involvement would be astonishing.

Supposed NSW State approval: The only legislation identified in the Full Court as constituting approval by the New South Wales Parliament of the inter-governmental "arrangement" for the deployment of State magistrates on "functions" provided for in s 19 of the Act was s 23(2) of the NSW Act. Tamberlin J held that the expression there appearing, "another office or appointment", was "broad enough to cover the functions provided for in s 19(1) [of the Act]"[163]. In my view, with respect, this conclusion was wrong:

(1) First, the reference to "another office or appointment" is, in accordance with established canons of construction, to another office or appointment in and of New South Wales. This conclusion finds support in s 12(1) of the Interpretation Act 1987 (NSW) (a reinforcing provision not present in the statute law of Western Australia). The effect of that provision is that a reference, in a State law, to an "office" or "officer", is presumed to mean an office or officer "in and for" the State[164]. Whilst the presumption may be displaced by a "contrary intention"[165], there must be some "positive reason which supports"[166] such a result. There is no such reason here. Given that the office of magistrate is specially a constitutionally protected "judicial office" in New South Wales, it is entirely unsurprising that the State Parliament would exhibit an intention to confine the exercise of the functions and powers of a magistrate only to those expressly provided for by State law. The reservation of such matters to State law involves nothing more than affording appropriate constitutional respect to the State Parliament concerned;

(2) The reference in s 23(2) of the NSW Act to the ability to "hold" another "office or appointment" confirms what is otherwise evident. Thus, a magistrate might be "appointed" to another State tribunal[167]. On the face of things, this is the kind of separate "office or appointment" contemplated by s 23(2). It is distinguishable from the performance of federal "functions" under s 19 of the Act;

(3) The reference to a person holding the functions of the office of magistrate and another office suggests the contemplation of a different office from that of "magistrate". Yet the whole point of s 19 of the Act is to enlist State office-holders who are "magistrates", inferentially because of the very integrity, experience and skills inherent in their office; and

(4) The inaptness of s 23(2) of the NSW Act to perform the functions propounded for it should cause no surprise. Clearly enough, those who drafted s 46 of the Act thought that State legislation was unnecessary. For the reasons already given, that assumption was constitutionally erroneous.

Conclusions: no NSW approval: It follows that, as in Western Australia, no approval on the part of the New South Wales Parliament for the variation, modification or supplementation of the duties of magistrates under the NSW Act has been shown. There is therefore no consent by State law for the performance of those duties. It was not competent to the executive government to vary the duties stated in the NSW Act. Nor was it competent to the Federal Parliament unilaterally to impose those duties without "mirror" or "counterpart" legislation of the State Parliament giving approval to that course.

It follows that the applicant, Mr Williams, has made good his attack on the validity of the purported performance by a New South Wales magistrate of the functions provided under s 19 of the Act. He too is entitled to the relief sought.

A critique of criticisms: It might be said that the points raised by the appellants are technical, having nothing to do with the factual merits of the several claims of the extradition countries for their extradition. However, where "technical" objections raise important constitutional principles, they must be resolved conformably with the Constitution. At stake is observance of the rule of law and obedience of all affected office-holders to the requirements of the Constitution. If this Court does not uphold the basic principles of the Constitution, to whom can the people of the Commonwealth look for the discharge of that function?

It might further be said that the Act and the impugned inter-governmental arrangements are an example of sensible cooperation within the Australian federation, and should be upheld for that reason. However, no amount of cooperation between governments can cure a demonstrated defect in obedience to constitutional requirements[168]. The true "cooperation" required in this case was a form of intergovernmental cooperation involving the respective parliaments of the States concerned.

To the argument that, for more than a century, State magistrates have been involved in extradition hearings, and that this sensible arrangement should not be disturbed, there are several answers. For most of the 20th century, such magistrates performed their functions under an Imperial statute[169] or a federal Act giving it effect in Australia[170]. In recent years, the federal law has changed, as has the role of magistrates under that law[171]. When a specific challenge to the operation of present law is brought, this Court cannot disclaim its functions because the challenge was not raised earlier. Nor do federal constitutional requirements meekly observe earlier Imperial assumptions, which characteristically were untroubled by the features of federal governance here in question.

Any suggestion that the need to enact "mirror" or "counterpart" legislation is an unnecessary burden on inter-federal cooperation must be firmly rejected. There are countless examples of such legislation[172]. When needed, such legislation can be quickly proposed to the State Parliament concerned and generally enacted without delay. That process observes the dignity and respect due to the State Parliaments under the Constitution. Even more importantly, it respects the federal character of Australia's constitutional arrangements and the accountability of the Parliaments concerned to the electors both in the Commonwealth and the States. This Court should uphold the status and role of State Parliaments in our constitutional arrangements. It should not sanction laws that ignore them.

A sensible outcome: Had the Western Australian and New South Wales Governments proposed amendments to the WA Act and the NSW Act to permit State magistrates to perform federal functions, it is extremely doubtful that such amendments would have been rejected. However that may be, approval or disapproval was a matter for the Parliaments concerned.

Those Parliaments should not have been bypassed leading to the unedifying attempt to squeeze the requisite State permission out of statutory language intended for other purposes, or, when this proved unsustainable, to resort to the unconvincing statutory fiction that the magistrates were no more than personal volunteers, although deploying powers that impinged directly on the liberties of people such as the appellants. As the majority reasons of four Justices said in Ha v New South Wales[173]:

"When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates - its practical operation - must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices."

Inter-governmental and inter-jurisdictional cooperation is often desirable. However, such cooperation must be attained within the framework of the Constitution, under which the Parliaments of the States (representing all of the State electors) enjoy functions and powers that cannot be exercised solely by executive agreements without specific legislative authority[174]. An insistence on this attribute of federal "dualism" is not only necessary because of the terms of the constitutional text. It is also more likely to achieve the dual objectives of federation: cooperation upon agreed matters under appropriate terms and conditions and diversity, disagreement and experimentation where that is lawful and appropriate[175].

In the present cases, it can hardly be said that making the required amendments to the WA Act and the NSW Act would have been a great burden. However, had it been done, it would have meant that the State Parliament, which created the office of magistrate, would have had the opportunity and duty to address its attention to, and give its assent for, the imposition of federal functions. Perhaps doing so would have called specific notice to the need for appropriate financial or other contributions to be made by the Commonwealth in respect of the federal component of the work of the State magistrates concerned. Moreover, one could theoretically envisage the attempted imposition of some federal administrative functions upon State magistrates which, either because of their character or their burdens, the State Parliament might prefer not to accept.

Upholding the Constitution consistently: This is the way, in such important matters, that the federal system of government operates in Australia. The appellants were correct to assert that clear State legislation was required for the imposition of the functions set out in s 19 of the Act. None was enacted. I can only repeat what Gummow and Hayne JJ said in this respect in Re Wakim[176]:

"A federal structure of government involves the demarcation of powers and ... this has been understood as placing upon a court such as this Court responsibility to construe the Constitution and to determine where the line falls in particular instances. The Court is entrusted with the preservation and application of constitutional distinctions. Were the Court to discard those distinctions, on the ground that at a particular time and to some minds they appear inconvenient or otherwise unsatisfactory, the Court not only would fail in its task but would exceed its authority."

In the appeal by Mr O'Donoghue and the appeal by Mr Zentai, order that each appeal be allowed; that, in each case, the order of the Full Court of the Federal Court of Australia be set aside; that in place of such order the appeal to the Federal Court be allowed; the order of the primary judge (Siopis J) be set aside; and in place of that order this Court should order that the second respondent in each proceeding be prohibited from conducting proceedings to determine whether the applicant is eligible for surrender for extradition pursuant to s 19 of the Extradition Act 1988 (Cth). The first respondent should pay the appellants' costs of the appeal to this Court and of the proceedings in the Federal Court.

In the application by Mr Williams, special leave should be granted; the appeal should be treated as instituted, heard instanter and allowed and the orders of the Full Court of the Federal Court of Australia should be set aside. In place of those orders, this Court should order that the second respondents be restrained from hearing and determining any proceedings under s 19 of the Extradition Act 1988 (Cth) to decide whether Mr Williams is eligible for surrender to the United States of America. The first respondent should pay the costs of Mr Williams in this Court and in the Federal Court.

[1] Vasiljkovic v The Commonwealth [2006] HCA 40; (2006) 227 CLR 614 at 622-627 [16]- [28]; [2006] HCA 40.

[2] Zentai v Republic of Hungary [2007] FCAFC 48; (2007) 157 FCR 585.

[3] Williams v United States of America [2007] FCAFC 109; (2007) 161 FCR 220.

[4] Singh v The Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at 331-337 [8]- [20]; [2004] HCA 43.

[5] [2007] FCAFC 109; (2007) 161 FCR 220 at 228-229 [39]- [42].

[6] (1947) 74 CLR 31; [1947] HCA 26.

[8] [1997] USSC 77; 521 US 898 (1997).

[9] Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 at 270 [58]; [2000] HCA 53.

[10] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 268; [1956] HCA 10.

[11] [1947] HCA 26; (1947) 74 CLR 31 at 83.

[12] (1942) 65 CLR 373; [1942] HCA 14.

[13] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146 at 153 [4]; [2004] HCA 31.

[14] (1955) 92 CLR 353; [1955] HCA 53. See also R v Humby; Ex parte Rooney (1973) 129 CLR 231; [1973] HCA 63.

At a glance

Court

Decision date

Before

Source

Judgment (341 paragraphs)

Legislation Cited (52)

Cases Cited (46)

O'Donoghue v Ireland; Zentai v Republic of Hungary; Williams v United States of America [2008] HCA 14 (23 April 2008)