Solomons v District Court of New South Wales [2002] HCA 47 | Case summary

Solomons v District Court of New South Wales [2002] HCA 47 | Case summary | Zoe

On Wednesday, 22 July 1998, the appellant, at a trial in the New South Wales District Court, by direction was found not guilty on two counts of being knowingly concerned in the importation of a trafficable quantity of ecstasy contrary to par (d) of s 233B(1) of the Customs Act 1901 (Cth) ("the Customs Act").
The District Court had been exercising federal jurisdiction invested by s 68(2) of the Judiciary Act. This had come to pass as follows. Section 166 of the District Court Act 1973 (NSW) stated that the District Court had the criminal jurisdiction conferred on it by the Criminal Procedure Act 1986 (NSW). Section 11(2) of the latter statute[2] conferred on the District Court jurisdiction in respect of all indictable offences against the laws of New South Wales, including common law offences. The offence under s 233B(1)(d) of the Customs Act was punishable by a term of imprisonment exceeding 12 months; the consequence was that s 4G of the Crimes Act 1914 (Cth) rendered it an indictable offence. As the last step, the effect of s 68(2) of the Judiciary Act was that the District Court, exercising jurisdiction "with respect to" the trial and conviction on indictment of persons charged with offences against the laws of New South Wales, had, subject to s 68 itself and s 80 of the Constitution, "the like jurisdiction" with respect to persons charged with offences against s 233B(1) of the Customs Act. It will be necessary later in these reasons to set out the text of s 68(2) more fully.
The prosecution in the District Court was conducted by the Director of Public Prosecutions ("the Director") in the name of the Queen and in exercise of the functions and powers conferred by ss 6(1)(a) and 9(1) of the Director of Public Prosecutions Act 1983 (Cth). On Friday, 24 July 1998, two days after the appellant had been discharged, he applied to the trial judge (Keleman DCJ) for the grant of a certificate pursuant to s 2 of the Costs Act. The Director appeared by counsel and told his Honour that he was present to assist the Court on the question of jurisdiction, and other matters if the Court held it had the necessary jurisdiction.
His Honour held that there was no power to grant the certificate in respect of the prosecution on indictment of a person charged with an offence against a law of the Commonwealth. Later, on 12 December 2000, an order was entered "Application refused". In the meantime, the Costs Act had been amended, with effect from 3 August 1998, by the Courts Legislation Further Amendment Act 1997 (NSW) and the Courts Legislation Amendment Act 1998 (NSW) ("the 1998 Act"). This litigation has been conducted on the basis that the relevant legislation is the Costs Act in its form on 24 July 1998.
The appellant commenced by summons a proceeding pursuant to s 69 of the Supreme Court Act 1970 (NSW) ("the Supreme Court Act"), seeking relief in the nature of certiorari to set aside the decision of the District Court and remit the application for a certificate to that Court to be considered according to law. The effect of s 48 of the Supreme Court Act was to assign the proceeding to the Court of Appeal; that Court thus was exercising original jurisdiction. The only party joined initially in the Court of Appeal was "the Queen", meaning the Director, who appears in this Court as third respondent. At the hearing in the Court of Appeal, the District Court of New South Wales and the State of New South Wales were added; the former entered a submitting appearance and the latter made no submissions. The State, the second respondent in this Court, has now taken an active role, appearing by the Solicitor-General.
In the Court of Appeal, no party submitted that there was involved a matter arising under the Constitution or involving its interpretation; the arguments turned purely on questions of statutory construction. The Court of Appeal dismissed the summons. In this Court, the argument assumed constitutional dimensions; the Attorneys-General of Queensland, Western Australia and South Australia and the Commonwealth Attorney-General intervened. However, as will appear, this appeal may be disposed of without entering upon a number of the constitutional issues which were debated. The central issues concern the construction of the Judiciary Act and the Costs Act.

The Costs Act is not drafted with a close eye to the distinctions between jurisdiction and power, and between judicial and non‑judicial power which are required by Ch III of the Constitution for the laws of the Commonwealth. The better view is that the statute confers on New South Wales courts a power which is exercisable after (i) acquittal or discharge as described in par (a) of s 2 or (ii) allowance of an appeal as described in par (b) of s 2. Section 3A makes provision for the adducing on the application for the certificate of "further relevant facts", and for examination of witnesses called by the applicant and the adducing of evidence tending to show why the certificate should not be granted.
Section 2 of the Costs Act is not to be construed in isolation from the balance of the legislative scheme of which it forms part. The grant of a certificate under s 2 of the Costs Act has no purpose but the satisfaction of a necessary precondition for the exercise by a State officer of the discretions conferred by s 4, the favourable exercise of which may result in the making of a payment from the Consolidated Fund of the State. Despite the emphasis in the appellant's submissions upon the "picking up" of s 2 by federal law, what is involved on his case is the translation of the whole of the State legislative scheme and its transformation, by force of federal law, to a scheme for payments out of the State Consolidated Fund in respect of certain concluded prosecutions in State courts determined in the exercise of federal jurisdiction invested by laws supported by s 77(iii) of the Constitution.
The appeal should be determined on the footing that no federal law rendered applicable to the appellant the power, with respect to State prosecutions, created by s 2 of the Costs Act. Two steps are involved. The first is the identification of the law enacted pursuant to s 77(iii) of the Constitution, relevantly conferring federal jurisdiction with respect to any of the matters specified in ss 75 and 76 of the Constitution. This has been identified earlier in these reasons as s 68(2) of the Judiciary Act. Further, or in the alternative, the appellant also founded upon what was said to have been an investment of federal jurisdiction by s 39(2) of the Judiciary Act. In the event, it is unnecessary to pursue that line of inquiry.
Section 68(2) of the Judiciary Act provides:

It does not appear what was the state of the record in the District Court on 24 July 1998 after the appellant had on 22 July been found, by direction, not guilty. However, we assume for present purposes in the appellant's favour that, in entertaining in those circumstances with respect to a State prosecution an application under s 2 of the Costs Act, a State court would be exercising jurisdiction, in the opening words of s 68(2) of the Judiciary Act, which was "with respect to … the trial and conviction on indictment" of a person charged with an offence against State law[10]. The hypothesis assumed in the appellant's favour is that an application under s 2 of the Costs Act, after verdict and before judgment, is made when the jurisdiction with respect to the prosecution is not exhausted. The State court then remains invested by s 68(2) with "the like jurisdiction" where what is involved is a person tried for an offence against a law of the Commonwealth such as the Customs Act.
The difficulties for the appellant's submissions then begin with the phrase in s 68(2) "the like jurisdiction". Section 68 itself distinguishes between jurisdiction on the one hand and powers and procedures on the other. Sub‑section (1) provides for State laws with respect to procedure to apply "so far as they are applicable". Sub‑sections (4) and (5A) confer powers respectively to amend informations and, in appropriate circumstances, to decline to exercise jurisdiction. Sub‑section (2) is concerned with the ambit of the jurisdiction rather than the content of the powers to be exercised under it.
If, as the appellant submits, the exercise of federal jurisdiction had not been spent with the verdict by direction of not guilty, the appellant then has to take the second of the steps referred to above. That is, to show that s 79 of the Judiciary Act rendered the Costs Act a surrogate federal law, the powers in which then were applicable in the exercise of that federal jurisdiction.
It is well settled, despite a contrary disposition apparent in some of the appellant's submissions, that State laws upon which s 79 operates do not thereby apply of their own force in the exercise of federal jurisdiction. The State laws apply, as Kitto J put it in Pedersen v Young[11], "as federal law".
Section 79 is couched in mandatory terms. It provides:

The appellant was acquitted in the District Court of New South Wales of two charges of being knowingly concerned in the importation of a trafficable quantity of ecstasy, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). Two days after his acquittal, he sought a certificate under s 2 of the Costs Act from the trial judge, Keleman DCJ. The Costs Act provides machinery that enables a person who successfully defends a criminal charge to have his or her costs reimbursed from the State's Consolidated Revenue Fund.
Section 2 of the Costs Act provides that the Court or Judge may grant to a person, acquitted of a criminal offence, a certificate specifying the matters referred to in s 3 of the Act. Section 3 requires the Court or Judge to specify two matters. First, that instituting the proceedings would not have been reasonable if the prosecution had had all the relevant facts when it instituted the proceedings. Second, that any act or omission of the defendant that might have contributed to the prosecution was reasonable in the circumstances. A person who receives a certificate may apply to the Under Secretary of the Attorney-General's Department for payment, from the Consolidated Revenue Fund, of the costs certified[20]. A certificate is payable only if the Treasurer forms the opinion that, "in the circumstances of the case, the making of a payment to the applicant is justified". If the Treasurer considers the making of a payment is justified, the Treasurer "may pay to the applicant his or her costs or such part thereof as the Treasurer may determine"[21]. When a determination has been made under the Act, the payment may be made without further appropriation from the Consolidated Revenue Fund[22].
Keleman DCJ rejected the application for a certificate. He held that he had no power to grant the certificate. Subsequently, the Court of Appeal[23] dismissed the appellant's application for orders in the nature of certiorari and mandamus to quash the order refusing the certificate and require the District Court to reconsider the application according to law.

The appellant contended, however, that the trial judge and the majority judges in the Court of Appeal erred in holding that neither s 39(2), s 68(2) nor s 79 of the Judiciary Act made the Costs Act applicable in criminal cases in federal jurisdiction. Accordingly, he contended that the power conferred by s 2 of the Costs Act applies in a prosecution for an offence against a law of the Commonwealth. In my opinion, however, the Judiciary Act does not pick up and apply the Costs Act to proceedings in federal jurisdiction.
Section 68(2) of the Judiciary Act invested the District Court with federal jurisdiction to hear the charges against the appellant. This was the result of the combined operation of that sub-section, s 166 of the District Court Act 1973 (NSW), s 11(2) of the Criminal Procedure Act 1986 (NSW), s 233B(1)(d) of the Customs Act and s 4G of the Crimes Act 1914 (Cth). Section 68(2) of the Judiciary Act applies to State courts exercising jurisdiction "with respect to" the trial and conviction on indictment of persons charged with offences against the laws of the State. It declares that those courts shall "have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth". Section 166 of the District Court Act declares that the District Court has the criminal jurisdiction conferred on it by the Criminal Procedure Act, and s 11(2) of that Act gave the District Court jurisdiction in respect of all indictable offences against the laws of New South Wales. By force of s 4G of the Crimes Act, the offence against s 233B(1)(d) of the Customs Act was an indictable offence. Accordingly, s 68(2) of the Judiciary Act invested the District Court of New South Wales with "like jurisdiction" to hear the offence against s 233B(1)(d) of the Customs Act. The "like jurisdiction", so invested, was federal jurisdiction[26].
The respondents submitted that, once the appellant was acquitted, the federal jurisdiction of the District Court was spent or, at all events, did not extend to an application under s 2 of the Costs Act, made two days after his acquittal. In my opinion, s 2 did not apply in federal jurisdiction. But this was not because the federal jurisdiction was spent when the appellant was acquitted. It was because neither the conferral of "like jurisdiction" by s 68(2) nor the laws applied in federal jurisdiction by s 79 of the Judiciary Act gave the District Court jurisdiction or power to apply the Costs Act in federal jurisdiction.
In s 68(2), "like jurisdiction" means a jurisdiction analogous to the State jurisdiction of the court. It is not the same jurisdiction as the District Court exercises when hearing indictable offences against State laws. Federal jurisdiction is not State jurisdiction. The Parliament has carefully and deliberately chosen the term "like jurisdiction" to distinguish between the State jurisdiction of the court and its invested federal jurisdiction. Jurisdiction is a protean term that "is used in a variety of senses and takes its colour from its context", as Diplock LJ pointed out when Anisminic Ltd v Foreign Compensation Commission[27] was in the English Court of Appeal. In s 77 of the Constitution, it means the authority to decide matters that are presented to it for formal decision[28]. That is also the meaning that is ordinarily given to it in a curial context[29]. It should be given that meaning wherever it appears in s 68(2) of the Judiciary Act which is a law made under ss 75-77 of the Constitution. In s 68(2), therefore, "like jurisdiction" is the authority to decide "matters"[30] arising under federal laws in a manner similar to the authority of the court to decide matters arising under State law after allowance is made for the fact that the State jurisdiction arises under State law and federal jurisdiction arises under federal law[31].
What then was the relevant State jurisdiction of the District Court? It was not only the authority to decide the "matter" involved in an indictment alleging an offence against State law. It also included the authority to decide an application under s 2 of the Costs Act. On one view, s 2 of the Costs Act does not itself confer jurisdiction. On that view, it assumes jurisdiction in a Court or Judge or "in any proceedings relating to any offence" and merely confers power on that Court or judicial officer to grant a certificate. In R v Manley[32], for example, Simpson J referred to the "power conferred by s 2 ... [as] clearly intended to be conferred on all New South Wales courts, at whatever level, exercising criminal jurisdiction". But I think that the better view of s 2 is that it simultaneously confers both jurisdiction and power. Without s 2 of the Costs Act, the District Court would have no jurisdiction or power to decide whether a certificate should be granted after an acquittal in State jurisdiction. Without that section, the Court or Judge would have no jurisdiction to determine that a costs certificate should be granted. Nor would the grant of the certificate require the Treasurer to consider whether the costs certified, or some part of them, should be paid to the applicant.
The concept of power is different from the concept of jurisdiction as Toohey J pointed out in Harris v Caladine[33] when he said:

But it is one thing to say that s 2 of the Costs Act gives the District Court jurisdiction to determine whether a certificate should be granted in the exercise of State jurisdiction. It is another question whether s 68(2) gives it "like jurisdiction" over the grant of a costs certificate in the exercise of federal jurisdiction. For present purposes, the invested federal jurisdiction - the "like jurisdiction" - is limited to jurisdiction "with respect to … the trial and conviction on indictment". It is also limited by the constitutional imperative that the "like jurisdiction" must be concerned with the exercise of judicial power.
The respondents contended that authority to grant a certificate under s 2 of the Costs Act was not jurisdiction with respect to the trial on indictment of the appellant. But to adopt that argument is to take an unnecessarily restrictive view of the phrase "with respect to … the trial" in s 68(2) of the Judiciary Act. That phrase has a very wide meaning. In the constitutional context, Latham CJ once said that "[n]o form of words has been suggested which would give a wider power"[38]. This Court has also given a wide meaning to the not dissimilar phrase "in respect of", saying that it only requires "some discernible and rational link" between the matters in question[39]. In its natural and ordinary meaning, jurisdiction "with respect to … the trial" is wide enough to embrace applications made after an acquittal. Such applications include orders for the return of property or exhibits, for stays of sentences, for bail, for costs or for a certificate for costs under a statutory enactment. A discernible and rational link exists between the trial and applications for orders in respect of these matters.
Seaegg v The King[40], upon which the respondents relied, is not an authority for holding that s 68(2) of the Judiciary Act does not extend to an application for a certificate made after the applicant was acquitted. In Seaegg, the Court held that the phrase "with respect to … the trial and conviction on indictment" did not confer jurisdiction upon a court to hear an appeal against a conviction for an offence against a law of the Commonwealth[41]. But Seaegg does not govern this case. It is one thing to hold that the words "with respect to … the trial and conviction" do not confer jurisdiction on another court to hear an appeal against that conviction. It is an entirely different matter to hold that a jurisdiction to grant a costs certificate to a person who has been acquitted of an indictable offence is not "with respect to" the trial on indictment of that person. In my opinion, there is no relevant similarity between Seaegg and the issue in the present appeal.
The third respondent also submitted that the acquittal of the appellant quelled the federal controversy between the Crown and the appellant, that thereafter the District Court no longer had a "matter" before it, and that accordingly its federal jurisdiction was spent. However, to adopt that argument would give too restrictive a meaning to the constitutional term "matter". A "matter" is not at an end because the court has settled the controversy that is central to the matter. Inevitably, incidental matters and procedures may remain alive. In a civil action, for example, the parties may be given "liberty to apply". If the jurisdiction and power conferred by s 2 of the Costs Act would otherwise apply to a court exercising federal jurisdiction, the acquittal of the applicant would not prevent s 2 from applying in federal jurisdiction. Indeed, an application under s 2 could be made long after the fact of acquittal and even to a different judge of the court where the applicant had been tried[42].
So the fact that the appellant had been acquitted of the s 233B(1)(d) offence was not itself sufficient to deprive the District Court of its federal jurisdiction to make grants of the kind described in s 2 of the Costs Act. Nor is the power exercised in granting a s 2 application of such a nature that it could not be invested in federal jurisdiction.
The jurisdiction of State courts under the Costs Act involves exercising judicial power. It is a jurisdiction that could be invested as "like jurisdiction" without contravening Ch III's requirement that the federal jurisdiction invested in State courts must be confined to the exercise of judicial power. The paradigm case of an exercise of judicial power involves the making of binding declarations of rights in the course of adjudicating disputes about rights and obligations as a result of the operation of the law upon events or conduct that have or has occurred[43]. The issue determined in a s 2 application is within that paradigm. No narrow view should be taken of what constitutes judicial power[44].
Under s 2 of the Costs Act, the Court or Judge must determine whether to grant a certificate that specifies the matters referred to in s 3 of that Act. By necessary implication, the grant declares that the applicant has the right to apply under s 4(2) of the Costs Act to the Under Secretary for reimbursement of the costs that the applicant incurred in his or her successful defence. Before granting a certificate, the Court or Judge must consider the matters in s 3 of the Act and make a determination as to whether the proceedings were reasonably instituted or maintained. Although reasonableness involves a value judgment, it is not inconsistent with the exercise of judicial power[45]. Nor does the objective test of reasonableness as prescribed by s 3 involve any reference to external policy considerations, considerations that often tell against the power invested being judicial power[46]. Moreover, although s 2 states the Court or Judge may grant the certificate, no discretionary decision is involved. Upon fulfilment of the conditions specified in s 3 of the Act, the Court or Judge must grant the certificate in accordance with the principles expounded by the House of Lords in Julius v Lord Bishop of Oxford[47] and affirmed by this Court in Ward v Williams[48].
If the Court is satisfied of the matters set out in s 3 and grants a certificate, its effect is to empower the applicant to apply to the Under Secretary for a compensatory payment out of the Consolidated Revenue Fund of New South Wales. It binds the Under Secretary and Treasurer to give consideration to such an application and to determine the eligibility of the applicant to receive payment. Under s 4(5), despite a determination of the Court or Judge as to an applicant's right to a certificate because of the prosecution's unreasonableness, the Treasurer has a discretion to refuse to pay the applicant. No doubt the Treasurer may have regard to policy factors - particularly the strength of competing demands on the Treasury - in determining whether to make a payment under the power conferred by s 4(5) of the Costs Act.
However, the fact that the legislature has given the Treasurer the discretion to refuse payment does not mean that the Court or Judge does not exercise judicial power in determining an application under s 2. A court may exercise judicial power although it is reviewing an exercise of non-judicial power and its declaration of right is but a step to the exercise of a discretionary administrative power. That principle was affirmed by this Court in Pasini v United Mexican States[49] where the Court held that the Federal Court was exercising judicial power in determining whether a magistrate had erred in law in making an administrative decision under s 19 of the Extradition Act 1988 (Cth). This was so even though the Attorney-General had to make the ultimate decision as to whether the person, the subject of the magistrate's and Federal Court's decision, would be extradited. Similarly, a determination by a Court or Judge as to a person's entitlement to seek compensation from the Consolidated Revenue Fund of the State is an exercise of judicial power even though the Treasurer may refuse to act on a certificate granted under s 2.

Nevertheless, s 68(2) does not invest a court with federal jurisdiction to grant a costs certificate under s 2 of the Costs Act. That is because such a jurisdiction would not be "like jurisdiction" within the meaning of s 68(2). As I have pointed out, "like jurisdiction" means a jurisdiction that is similar to State jurisdiction when allowance is made for the fact that State jurisdiction is the authority to decide matters arising under State laws and federal jurisdiction is the authority to decide matters arising under federal laws[50].
State jurisdiction under s 2 of the Costs Act gives the Court or Judge authority to determine whether the applicant, as a person acquitted of an offence against State law, has the right to be granted a certificate, which is a condition for a compensatory payment out of the Consolidated Revenue Fund of New South Wales. The grant requires the Under Secretary and Treasurer to give consideration to an application, made on the basis of the certificate, whether the applicant should receive a payment. Thus, there can be no "like jurisdiction" in this context unless the applicant for a certificate has been acquitted of a federal offence and a federal law requires some official to consider whether the costs specified in the certificate should be paid. There is no federal law - and no State law - that authorises the reimbursement of costs after an acquittal and the grant of a certificate in federally invested criminal jurisdiction. Section 79 of the Judiciary Act does not do so because, as will appear, it binds only courts, not State or federal officials.
So although the District Court has jurisdiction "with respect to" the trial on indictment and the granting of a certificate under s 2 when the proceedings concern an offence against State law, its invested "like jurisdiction" under s 68(2) of the Judiciary Act does not include jurisdiction to grant a certificate to a person acquitted of an indictable federal offence. The appellant's answer is that the District Court had invested federal jurisdiction with respect to his trial on indictment and that, in exercising that federal jurisdiction, s 79 of the Judiciary Act gave the District Court power to grant a certificate under s 2 of the Costs Act.
Section 79 enacts:

However, s 79 cannot pick up s 2 of the Costs Act because to do so would give it a meaning different from that which it has in State jurisdiction. Section 79 "does not purport to do more than pick up State laws with their meaning unchanged"[54]. It does not operate to give a State law a new or extended meaning when it is made applicable in federal jurisdiction[55].
When the Costs Act applies as State law, it gives an acquitted person who obtains a s 2 certificate the right to have the certificate considered by the Treasurer. The Treasurer is bound to consider whether the applicant should be reimbursed the costs of successfully defending charges under State law. Under State law, the grant of the certificate by the Court or Judge also imposes a duty on the Treasurer, enforceable by mandamus, to consider whether a payment should be made. Because s 79 does not make any part of the Costs Act binding on the Treasurer as federal law, the Costs Act, if it applied in federal jurisdiction, would have a meaning different in that jurisdiction from its meaning in State jurisdiction. The Court's grant of a certificate in federal jurisdiction would impose no duty of any kind on the Treasurer who would be free to disregard it. Indeed, the Treasurer would have no right to make a payment under the Costs Act to a person acquitted of an indictable offence against a federal law. Of its own force, the Costs Act only authorises payments in respect of acquittals of offences against State law. And no other law - State or federal - authorises the Treasurer to make a payment in respect of an acquittal of an offence against a federal law.
Accordingly, the nature of the Costs Act is such that it cannot be "picked up" as federal law and made applicable in the exercise of federal jurisdiction. If s 79 "picked up" s 2 of the Costs Act, the Act would have a different meaning and a different legal effect in federal jurisdiction than it has in State jurisdiction. Even the grant of the certificate under s 2 would have a different legal effect in federal jurisdiction from what it has in State jurisdiction. In State jurisdiction, it requires State officials to whom it is submitted to consider whether the applicant's costs should be paid. In federal jurisdiction, it would have no legal effect whatsoever. Therefore, when the Costs Act is considered in its entirety, it is impossible to apply it in federal proceedings. Section 2 of that Act is merely part of a broad scheme provided by the New South Wales legislature for the recoupment of legal costs by some persons acquitted of charges under State law. No payment can be made under that scheme without the approval of the Treasurer of New South Wales. The scheme cannot apply to persons who are acquitted of charges under federal laws because no State or federal law authorises the reimbursement of costs incurred in defending a charge brought under a federal law.

Exercise of federal jurisdiction: The District Court is created by a statute of the Parliament of New South Wales[69]. Being the creation of legislation, its powers are not at large. They are limited to the powers conferred by the constituting Act, by any other statutes and by any powers necessarily implied either from such express grants of powers or from that Court's character as a court[70]. Such a court has no inherent powers[71].
In conferring federal jurisdiction on the District Court, pursuant to the Constitution[72], it is implicit that the Federal Parliament accepts that Court as it finds it[73]. No jurisdiction or powers could be conferred, or imposed, on that Court which would be inconsistent, or incompatible, with the jurisdiction and powers enjoyed by that Court pursuant to State law. Federal law might supplement such jurisdiction and powers. However, it could not contradict the jurisdiction and powers otherwise enjoyed by the District Court[74]. So much is acknowledged, in terms, by the Judiciary Act[75].
Power to order costs: To make an order against a party binding on that party, a judge of a court such as the District Court must be able to point to the jurisdiction and power that sustains such an order. In criminal proceedings, before the enactment of relevant legislation, the basic common law principle applied, that "the Crown neither pays nor receives costs"[76]. Against the background of that rule it was held, correctly, that the general provisions of the legislation constituting the District Court confer no power on that Court to make an order for the payment of costs in criminal proceedings[77].
In recent decades law-makers in this and other countries have come to recognise the "injustice inherent in the system"[78]. This recognition led to legislation in England[79], and later in New South Wales[80], to repair the perceived injustice of the common law. The appellant did not advance any separate argument that the District Court had any other, or different, source of power to order a party to pay his costs in the proceedings. His reliance was upon the provisions of the Costs Act.
A threshold question arises as to whether, without enabling federal legislation, the Costs Act applied to the appellant's application. To answer that question, I leave aside for the moment the issue of whether, once a matter is within federal jurisdiction, any State law applies of its own force. In my opinion, no State law applies, for federal jurisdiction involves a different realm of law[81]. Such jurisdiction would be restricted to that provided by the Constitution, federal legislation made applicable according to its own terms, or State laws made applicable as "surrogate" federal laws[82] by virtue of the consent and enactment of the Federal Parliament[83].
Yet even if one were able to confine attention to the language of the Costs Act, it would be impossible to contend that it would apply, without more, to the appellant's proceedings in the District Court, viewing such "proceedings" in the most ample terms. By s 2 of the Costs Act, an application for a certificate under that Act can only be made in "proceedings relating to any offence". The word "offence" refers only to a State "offence".
This is so for at least four reasons. First, that is how the statute law of any polity, even one within a federation, would ordinarily be read. Secondly, such a reading is endorsed by the applicable Interpretation Act[84]. Thirdly, the State Parliament could probably not enact a law expressly governing the detail of what was to be done in respect of a federal offence. Any such law, without more, would have to run the gauntlet of s 109 of the Constitution. Fourthly, the context suggests that the Costs Act is addressing only State offences. This is because the Act goes on to provide for applications to be made to named State officials[85].
All members of the Court of Appeal so concluded. All rejected the argument that the phrase "in any proceedings relating to any offence" in the Costs Act was broad enough, without supplementation of federal law, to apply to the federal offence of which the appellant was acquitted[86]. They were correct to so decide.
Lack of explicit federal provision: In respect of proceedings relating to such federal offences, it would be open to the Federal Parliament, in circumstances such as those involving the appellant, to provide legal remedies for the costs incidental to such proceedings. Perhaps the considerations of justice mentioned in Latoudis v Casey[87] should by now have attracted legislative attention. However, no such legislation has been enacted. This default, and the foregoing conclusion about the non-applicability of the Costs Act according to its own terms, led the appellant to seek a foundation in federal law to provide for the costs incurred by him in defending himself against the federal charge of which he was acquitted. The spectacle of the appellant receiving no costs, despite his acquittal, when a person charged with a connected State offence would be entitled to a certificate under the Costs Act in equivalent circumstances, is not one that brings much credit on the Commonwealth or its laws.
In offences of which the appellant was charged and acquitted, it is not uncommon for prosecutors to couple federal and State offences in the indictment[88]. The lack of legislation similar to the Costs Act in some of the States of Australia is hardly a justification for the want of federal law. Keeping in mind the "injustice inherent in the system"[89] where no provision is made for the recovery of costs following acquittal of a serious criminal charge, I approach the appellant's arguments with as much sympathy for the construction urged by him as fidelity to legal principle permits.

In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd ("Edensor")[96] the majority of this Court relied upon the above reasoning, being of the view that, were it not so, the operation of federal jurisdiction might too readily be stultified. There might then be withdrawn from courts exercising federal jurisdiction (including this Court) "the effective authority to quell controversies in respect of which … s 75 of the Constitution had conferred original jurisdiction upon this Court and s 77 empowered the Parliament to grant authority to the other federal courts and to State courts exercising federal jurisdiction"[97]. I adopted a narrower view about the adaptability, by analogy, of State legislation to the federal setting in that case. All other members of this Court embraced the broader view. No one in these proceedings questioned the approach of the majority of this Court in Edensor. I feel obliged to follow it.
Thirdly, in rejecting the application for a certificate, the primary judge did so on the footing that he regarded the request made to him as incompatible with the holding of this Court in Commissioner of Stamp Duties (NSW) v Owens [No 2][98]. With respect, that decision turned on a different consideration, a fact pointed out in the Court of Appeal[99]. Owens [No 2] involved the availability to this Court of the provisions of the Suitors' Fund Act 1951 (NSW) when this Court had allowed an appeal from a New South Wales court on a point of law. In issue was whether the State Act could afford jurisdiction and power to this Court, imposing upon it a duty to hear and determine an application under the State Act. The inability of a State Parliament to impose such functions on this Court, a federal court, was the turning point of the decision in Owens [No 2][100]. It was because the State Act could not apply to the High Court that it was held that it should not be construed as intended to do so.
The issue in the present matter is different. The State Act was intended to apply (relevantly) to the District Court of the State. It did so in terms. The true issue is thus whether, having regard to the language of the State Act, it did so in a case involving the exercise of federal jurisdiction. If it did, the primary judge's decision amounts to a constructive failure on the part of the District Court to exercise jurisdiction it had under the Costs Act to resolve the appellant's application for a certificate. On the face of things, any such error would entitle the appellant to succeed unless it would be futile to uphold his claim for relief because federal law, or the Constitution, denied its availability.
Three issues: This analysis brings me to the three issues that must be resolved:

The constitutional issue presents a threshold question, agitated by some of the respondents and interveners. The Commonwealth and the States of New South Wales and Queensland urged that the appeal could and should be determined solely by reference to the construction and application of the provisions of the Judiciary Act invoked by the appellant.
It was argued that, if the appeal could be decided upon that basis, that was all that should be done, on the footing that issues of constitutionality should be left as a "last resort", approached only "as a necessity in the determination of real, earnest and vital controversy between individuals"[101]. It was submitted that this was the ordinary practice of this Court[102]. The recent practice of some of the Justices was referred to, although in several of the cases cited, those Justices were in dissent[103].
I agree that it is commonly useful, and sometimes essential, to construe legislation before questions of constitutional validity are tackled. This will often be prudent as, depending upon the construction adopted, it may obviate the necessity of considering any larger constitutional questions[104]. I have myself called attention to this beneficial practice and conformed to it[105].
Nevertheless, occasions arise where such a separation of the Constitution and federal legislation is neither sensible nor desirable. After all, federal legislation must always be such that, if challenged, its constitutional source can be demonstrated[106]. Federal legislation is normally written by the drafter with an eye on the Constitution, specifically on the ultimate source of the legislative power, any relevant prohibitions that appear expressly stated in the Constitution and other limitations that are implied from the Constitution's provisions, its federal character and structure. Where one interpretation of a federal statute would lead to constitutional invalidity and another would uphold the validity of the provision impugned, the latter construction will be preferred both by common law principle and by statutory enactment of that principle[107].
The Constitution is part of the law of the land. It is the fundamental law. It must be applied by every court of Australia and in every matter to which its provisions are relevant. Its provisions influence the interpretation of a great deal of legislation, particularly federal legislation. In a sense, it is artificial to attempt to put out of mind such a cardinal influence upon the meaning of the law. Nevertheless, acknowledging that the task I am involved in is an integrated one, requiring a reading of the federal legislation in question together with the Constitution and in the light of its requirements, I shall commence my analysis by referring, as the Court of Appeal did, to the provisions of the Costs Act and the Judiciary Act before turning to the requirements of the Constitution that I regard as ultimately determinative of this appeal.

Features of s 68(2): Both ss 68(2) and 39(2) of the Judiciary Act invest federal jurisdiction in State courts. They do so independently of each other[108]. The relationship between the two provisions is not yet entirely clear. But perhaps because s 39 is addressed to State courts in their generality and s 68 concerns State (and Territory) courts in criminal cases, the appellant concentrated most of his argument on the latter. It was not suggested that a different, larger source of jurisdiction and power could be found in s 39(2).
Although s 68(2) is not expressed to create substantive rights, its provisions perform a double function. They confer and invest jurisdiction. With the support of s 68(1) the provision applies within such jurisdiction "[t]he laws of a State … respecting" nominated criminal procedures. Such laws are to "apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred … by this section".
The respondents' arguments: Leaving aside for the moment the requirements of the Constitution, the respondents submitted that the intersection of the Costs Act and the Judiciary Act took the application of the appellant outside the statutory conferral of jurisdiction contained in s 68 of the Judiciary Act, without which, on the present hypothesis, the State Act would not apply to the appellant's proceedings. So far as the Judiciary Act was concerned, the respondents argued that the jurisdiction of the District Court had expired by the time the application was made for the costs certificate after acquittal. This was because that Court was no longer exercising jurisdiction with respect to "the trial and conviction on indictment"[109] of a person charged with a federal offence. By virtue of the acquittal, the "charge" had been disposed of. The "trial" was concluded.
It must be conceded that there is some support for the respondents' approach in observations of this Court in early cases[110]. According to the respondents, the application for the costs certificate was a separate and distinct proceeding. It was divorced from the "trial" of the appellant on indictment. It was also separate from the "hearing and determination of appeals arising out of any such trial"[111]. The respondents submitted that, to acknowledge jurisdiction in the District Court to hear and determine an application under the Costs Act, would not involve the vesting of "the like jurisdiction with respect to persons who are charged with [federal] offences". Instead it would involve "like jurisdiction with respect to persons acquitted of such offences". It was argued that such a rewriting of the State Act, under the guise of applying federal law, was impermissible.
The respondents also submitted that, within s 68(1) of the Judiciary Act, the Costs Act could not be categorised as a State law "respecting the arrest and custody of … persons charged with offences" nor one respecting "the procedure for … their trial … on indictment". By the time the appellant had been acquitted he fell outside the provisions of that sub-section. Moreover, so it was submitted, the application for the costs certificate fell within none of the specified "procedures" spelt out in s 68(1).
Preferred construction of s 68: A narrow reading of s 68 of the Judiciary Act would sustain these arguments. However, for a number of reasons, confining myself for the moment to the statute, I would disagree.
First, it is increasingly accepted that the proper approach to statutory construction is, so far as the language of the text (and constitutional warrant) permits, to give effect to the purpose expressed in the legislation[112]. The obvious purpose of s 68 of the Judiciary Act is to ensure, so far as possible and in accordance with its terms, that the trial of federal offenders in State (and Territory) courts will closely mirror the trial in the same courts of State (and Territory) offenders. Section 68 should be read, so far as possible, to achieve that broad objective. It is one that is grounded in economy of specific federal criminal legislation, efficiency in the exercise of federal jurisdiction, and justice to persons tried on criminal charges in State courts, some of whom may be charged both with State and federal offences.
It may be accepted that there are limits. Some of them are expressly stated, being the requirements of s 80 of the Constitution[113] and the terms of s 68 itself. However, the need for a measure of adaptation and consequential analogical reasoning is indicated by the use of the words "like jurisdiction"[114]. As Dixon J pointed out long ago[115], this expression "recognizes that the adoption of State law must proceed by analogy".
Secondly, a reason for not confining the jurisdiction and power of a State court narrowly is the clear indication in s 68(1) of a general purpose of the Federal Parliament to cover all aspects of what might be called the criminal process in court. Following the decision of this Court in Seaegg v The King[116], to the effect that (as originally worded) the Judiciary Act did not confer jurisdiction with respect to appeals against convictions, s 68(1) was amended to include, in par (d), a reference to appeals. Thus the section, by its terms, now includes summary convictions, committals, trials on indictment and the hearing and determination of appeals. Whatever may have been the initial purpose of s 68(1), following the amendment in 1932 it was made plain that it was to cover the broad gamut of the criminal process involving federal offenders. This tells strongly against a narrow construction that would exclude a Costs Act application. Typically (although not universally), such an application would be made before the conclusion of the hearing of the trial of an accused and, certainly, normally before a hearing of any appeal.
Thirdly, the history of s 68 also tells strongly against a narrow reading of "offences" and "procedure" in s 68(1). A broad reading of the section was given by this Court to permit the adaptation and application of State laws enabling an Attorney-General to appeal against a sentence imposed on a convicted federal offender[117]. If the same ample view is adopted in this case, there is nothing in s 68 of the Judiciary Act that would exclude the federal jurisdiction conferred on the District Court extending to the hearing and determination of an application under the Costs Act.
It is true that at the time of any such application the applicant is no longer, in one sense, a person "charged with offences". However, the addition of provision for the hearing and determination of appeals makes it clear that that phrase cannot be given a narrow meaning. By definition, once an appeal is brought, the "charges" have merged either in a conviction or acquittal of the accused. Obviously therefore, in this context, the phrase "charged with offences" must be read distributively. Similarly, the word "procedure" must be read broadly to give effect to the large purpose and wide ambit stated in the section.
Fourthly, whilst acknowledging that earlier authority lends some support to the respondents' arguments about the construction of s 68, notably the reasoning of the majority in Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2][118], each case of suggested adaptation of State law to federal jurisdiction must necessarily depend upon examination of its own particular statutory texts. The large number of dissenting opinions in this field of discourse indicates the scope for differences of view as to the statutory leeways for adaptation. Thus in Gurnett[119] Dixon CJ wrote a telling dissent. Later authority of this Court[120] seems more consonant with his Honour's approach. The most recent pronouncement of this Court on the subject of adaptation of State laws to federal jurisdiction, in Edensor[121], does not evidence a narrow view either as to the conferral of jurisdiction on federal courts or the grant of powers adapted from State law made applicable to the jurisdiction so conferred. So far as possible, this Court should endeavour to follow a consistent approach to such questions.
Fifthly, it is not consistent with long-established principle to construe narrowly legislation conferring jurisdiction and powers upon courts. Whatever may be the approach proper to other repositories of public power, courts are not, on conventional theory, closely confined[122]. This is because of the wide variety of circumstances with which they must deal in exercising a granted jurisdiction and because they can be entrusted to exercise powers properly and in accordance with the grant[123]. This principle applies with added force to s 68 of the Judiciary Act because of the variety of State courts and State laws affected by the section if it is to perform its stated purpose. Moreover, the use of broad words of connection ("respecting" and "so far as they are applicable" in s 68(1) and "with respect to" and "like jurisdiction with respect to" in s 68(2)) is an additional reason for avoiding a narrow reading of s 68.
Sixthly, when regard is had to the Costs Act, at least when read according to its terms without specific attention to constitutional limitations, there is nothing, so far as that Act goes, that repels application and adaptation to proceedings respecting charges of a federal offence in a State court. Indeed, the terms of s 2 of that Act make it plain that it contemplates that any application made under the Act is made "in … proceedings relating to any offence". It is inconsistent with that language to treat the application as being disconnected from, and subsequent to, the proceedings simply because the applicant has been acquitted. Such a view of the application cannot stand with the hypothesis expressed in s 2 of the Costs Act, which states that the application, notwithstanding the acquittal or discharge, is made "in [the] proceedings".
For the purposes of the Costs Act, the fact that the application may be made later in time, may concern other parties and (possibly) even involve a court differently constituted, is beside the point. The Costs Act treats such applications as still being "in [the] proceedings". For its purposes at least, such "proceedings" remain extant so that consideration can be given to the exercise of the discretion enlivened by the application for the certificate. Moreover, this view of the section is reinforced by the criteria by reference to which a certificate is to be considered. Such criteria concern the evidence in the proceedings[124] and, indeed, conduct that occurred before the proceedings were instituted[125].
The Costs Act does not purport to impose duties on officers of the Commonwealth. It does not purport to impose a burden on the Consolidated Revenue Fund of the Commonwealth[126]. Any payment that is to be made pursuant to the State law is made out of the State Consolidated Revenue Fund[127]. Provision is made in the Costs Act for appropriation from that fund[128]. Accordingly, within the four walls of the Costs Act and without for the moment referring to constitutional doctrine, there is no difficulty, in my view, in adapting the general provisions of the State law, according to its terms, for application in a State court with respect to the trial on indictment of a person, like the appellant, charged with a federal offence.
It is true that mention is made in the Costs Act of State officials. However, the certifying court is not immediately concerned with their supposed obligations or discretions. The issue presented relates only to the jurisdiction and power of the District Court. That is a question separate from any conduct or functions of officials in the Executive Government of the State, although obviously such conduct and functions are mentioned in the State Act propounded for federal application. I will consider the separate functions that would be cast on State officials when I turn to the constitutional implications of the supposed operation of the Judiciary Act to "pick up" and apply the Costs Act. However, so far as the jurisdiction and functions of the District Court are concerned, I discern no difficulty.
I would therefore reject the statutory argument that was determinative for the majority in the Court of Appeal[129]. I do not consider that an application under the Costs Act is collateral to, separate from, and independent of, the trial of the appellant (and the exercise of federal jurisdiction) simply because it cannot be made until after the acquittal is ordered in that trial. By the scheme of the Costs Act, the application is still determined in the proceedings. Clearly it is incidental or adjunct to them. Any other view would be unduly narrow and artificial, paying insufficient attention to the practical realities of how trials are fought and how, typically, a legal defence, necessarily incurring costs, is essential to securing an acquittal.
Conclusion: It follows that, according to one reading of its terms, s 68 of the Judiciary Act is applicable to this case. It remains to consider whether such a reading would exceed, or be incompatible with, the requirements of the Constitution, thereby obliging a different reading. But first I shall deal with the appellant's arguments relying on s 79 of the Judiciary Act.

Respondents' arguments: Many of the arguments mounted for the respondents to rebuff the application of s 79 of the Judiciary Act are similar to those already rejected in the context of s 68.
First, the respondents submitted that the provisions of the Costs Act lay outside the scope of s 79 on the footing that the District Court, having entered an order for the appellant's acquittal, had then lost any federal jurisdiction to deal with any other issue. It was argued that the federal controversy or lis was concluded. Hence the Costs Act could not be "applicable" because the exercise of federal jurisdiction was complete. Reliance was placed on Owens [No 2][130]. Secondly, it was submitted that the State law was "picked up" by s 79 but with its meaning unchanged[131]. Accordingly, it was argued that the Costs Act would still apply only to proceedings relating to an offence against State law, as its original terms contemplated. Thirdly, it was argued that it was impossible, within the language of the Costs Act, to regard it as a "surrogate" federal law because its machinery addressed State officials and, as it was put, "would lead nowhere". Any certificate granted under the Costs Act would not be "pursuant to this Act" (being the State Act) for the purposes of s 4(2) of the Costs Act.
Construction of s 79: These arguments concerning the application of s 79 of the Judiciary Act are rejected.
First, the notion that federal jurisdiction in the District Court was lost in this case at the moment of acquittal of the appellant involves too narrow a view of the conferral of such jurisdiction. It is by no means uncommon for ancillary questions to arise in a criminal court following a judgment of acquittal and discharge of a prisoner who had been charged with, and tried for, an offence. Questions can arise as to the return or safekeeping of exhibits; the return of property; the lodgment of appeals, including appeals on issues of legal principle that cannot affect the acquittal[132]; victim compensation and so forth. It would be seriously inconvenient for a court, such as the District Court in the proceedings involving the appellant, to lose jurisdiction in the matter at the instant an order of acquittal was pronounced. Nothing in the Judiciary Act obliges such an artificial construction.
Secondly, established authority of this Court that obliges acceptance, unchanged, of State laws "picked up" by s 79 of the Judiciary Act, necessarily involves some adaptation of those laws. Of their character, such laws were drawn to apply to State jurisdiction alone. Without adaptation, the hypothesis involved in s 79 (as in ss 39 and 68) could not be given effect. That hypothesis is integral to the efficient application in federal jurisdiction of State (and Territory) laws that are then necessarily read in a more ample way, freed from their provenance for the purpose. Such adaptation is also consistent with what this Court has repeatedly done[133]. The prohibition arises when the propounded adaptation would change or distort the State law, ignore unwelcome parts of it or involve such a legal hybrid that it could no longer answer to the description of a law "of each State or Territory"[134]. That was not the case here. The appellant simply asked for the application by a State court, in proceedings before it, of a State law burdening the State Consolidated Revenue Fund that would have applied to those proceedings if, and to the extent that, they were in State jurisdiction.
Thirdly, the argument that any certificate granted under the Costs Act would not be granted "pursuant to this Act" (as s 4(2) of that Act requires) is unpersuasive. For the appellant, the certificate would indeed be granted pursuant to the State Act but as that Act was made binding on the District Court exercising federal jurisdiction in a case to which, by the terms of that law, it was made "applicable" by federal law. This was not a case where any attempt was made to impose on a federal court jurisdiction extraneous, or alien, to its character as a federal court[135]. Nor was it a case where the jurisdiction was confined, by the terms of the State Act, to a particular State court[136]. The Costs Act is framed in deliberately wide terms to cover a broad variety of criminal proceedings at all levels of the State judicial hierarchy[137]. Nor, in my view, is the relevant conferral of jurisdiction and power to grant a certificate addressed, as such, to officers of the Executive Government of the State[138]. In terms, it is addressed to the court on which the power to grant the certificate was conferred. Such a certificate permits an application to named State officials. But for the moment we are only concerned with the application to the District Court and the certificate that that Court might issue.
Fourthly, it is important to remember the generality in which s 79 is expressed. Although the section makes special reference to "laws relating to procedure, evidence, and the competency of witnesses", these are mentioned only by way of illustration ("including"). Once it is accepted that the scope of "federal jurisdiction" is not narrowly or artificially confined, it is clear that a State law as to costs, determined after and in the light of a judgment disposing of the substance of the matter in federal jurisdiction, could, so far as its nature goes, be "picked up" and rendered available for use by the State court in concluding the discharge of such jurisdiction[139].
Conclusion: a broad approach: It follows that the operation of s 79 reinforces the earlier conclusion reached in terms of s 68 of the Judiciary Act. On the face of things, both sections, according to their terms, "pick up" and apply the provisions of the Costs Act to the proceedings involving the appellant, incidental to his acquittal of the federal criminal offence with which he was charged. They do so in like manner, as if his case had been wholly or partly within State jurisdiction. Any other view of the legislative language would, in my opinion, be unduly narrow and contrary to the approach taken by this Court in Edensor.
Residual constitutional issues: There is within ss 39 and 68 of the Judiciary Act implicitly, and in s 79 explicitly, a reservation excluding the possibility of adaptation of a State law to federal jurisdiction where it is "otherwise provided by the Constitution"[140]. The explicit mention of the Constitution in s 79 (and the express mention of s 80 of the Constitution in s 68(2) of the Judiciary Act) were not strictly necessary. Like all federal laws, the Judiciary Act must be read subject to the Constitution. All State and Territory laws are likewise subject to its terms.
It is therefore necessary to consider the arguments advanced by the respondents and interveners in this Court to the effect that the Constitution requires a reading down of ss 39, 68 and 79 of the Judiciary Act, on the footing that the application of the Costs Act to the appellant's proceedings would, unless confined, be inconsistent with the Constitution, rendering invalid any purported operation of the Judiciary Act to provide differently.

The constitutional "matter" was not concluded: It follows from my earlier reasons that, subject to the outcome of the other constitutional arguments, I do not accept the argument that the federal jurisdiction conferred on the District Court respecting the proceedings against the appellant terminated at the moment of his acquittal. In so far as the argument is repeated in terms of the requirements of the Constitution limiting the conferral of federal jurisdiction and the investing of it in any court of a State to laws "with respect to … matters"[141], it is not improved.
The concept of "matter" is elusive[142]. This is not the occasion to re-explore it. But it is a constitutional word. For that reason it is not to be subjected to a narrow or artificial meaning. The Commonwealth might regard the controversy between the parties to the appellant's trial as having been "quelled" by the order of acquittal. But in practical terms, from the point of view of the accused, the recoupment of the costs incurred in securing that outcome could, quite reasonably, be treated as a residual aspect of the controversy. Certainly, it would be incidental or appurtenant to it. So much is implicit in the recognition of the Costs Act itself that the court or judicial officer concerned is still engaged, after acquittal, in the proceedings. Common experience confirms that applications for such orders are normally made immediately the verdict is announced and the judgment entered. At that time the "matter" has not magically evaporated. Such occult notions can be left to theological disputation. The Constitution is a practical document. It is intended to operate in the real world of government, including in the courts. I would therefore reject the first constitutional argument[143].
There is no offence to the judicial power: Similarly, I am not convinced that there is any offence to Ch III in the scheme set out in the Costs Act that would render the application of that Act in federal jurisdiction incompatible with the exercise of the judicial power of the Commonwealth[144].
Nor do I regard it as arguable that the performance by a State court of the functions committed to it by the Costs Act would otherwise be incompatible with, or repugnant to, the discharge of federal jurisdiction by such a court[145]. The State of New South Wales so submitted. However, in my opinion there is no difficulty in a court, in federal jurisdiction, exercising powers of the kind conferred by the Costs Act. This is because the functions performed by the judicial officer under the Costs Act are "truly appurtenant" to the exercise of the judicial power. Federal courts themselves grant like certificates all the time[146]. No one suggested that, in doing so, they exceeded their judicial warrant. It would be seriously disruptive and unjust to parties if it were held otherwise.
The fact that such functions can lead to a further exercise by a Minister in the Executive Government (in this case the State Treasurer) of a discretion under the Costs Act[147] does not of itself alter the judicial character of what the judge is asked to do. In our legal tradition it is by no means unusual for the Executive Government to retain a final say after the disposal of judicial proceedings. So it has long been in respect of the exercise of the prerogative of mercy. So it is in relation to decisions made under the Extradition Act 1988 (Cth), recently upheld as constitutionally valid[148].
Even if this view were incorrect[149] (a possibility I find difficult to contemplate), there could be no doubt that certification by a court of a party's eligibility for relief in meeting costs incurred by him or her as a result of an erroneous prosecution would be "a function truly appurtenant to the exercise by that court of its judicial power to determine" the proceedings and to award costs in them[150]. The second constitutional argument should also be rejected.
Burden on State revenue would be impermissible: Narrowing the constitutional objections in this way brings me to the critical arguments for the respondents. These were that, to the extent that provisions of the Judiciary Act were invoked to support a federal law imposing functions on State officials in the Executive Government of a State, and requiring payment from the State revenue of costs to a person acquitted of a federal offence, such provisions would:

Each of these contentions is correct. Each represents the counterpart of the other. Each reinforces the strength of the other. These points were not argued in the Court of Appeal. Indeed, as that Court records, the State, with the most obvious interest to do so, declined an invitation to address the constitutional questions[152]. It is these arguments that, for me, are determinative of the appeal.
The want of federal legislative power: By force of s 77(iii) of the Constitution, the Federal Parliament is empowered to invest any State court with federal jurisdiction. But it is only so empowered "[w]ith respect to any of the matters mentioned" in ss 75 and 76 of the Constitution. Relevantly, this includes matters "arising under any laws made by the Parliament". Such laws include the Customs Act 1901 (Cth), which here created the offence with which the appellant was charged and the Judiciary Act which here invested the District Court with jurisdiction (and the necessary powers) to try the appellant on an indictment charging him with that federal offence.
Not only did the foregoing grant of constitutional authority carry with it legislative power incidental to making effective the investment of federal jurisdiction in a court of a State. By virtue of s 51(xxxix) of the Constitution there was expressly conferred on the Parliament the power to make laws with respect to matters incidental to the execution of any power vested in the Parliament by the Constitution. Such incidental powers must be construed "with all the generality which the words used admit"[153].
I accept that discerning the point when the source of constitutional power is lost will sometimes be a matter of controversy. In the present case, the appellant, correctly, pointed to the undisputed vesting of federal jurisdiction in the State court, the intimate relationship of the subject of costs to the proceedings in such a court, the structure and language of the Judiciary Act and of the Costs Act and the large scope of the incidental power under the Constitution. Most especially, the appellant relied on the fact that the power to invest federal jurisdiction in State courts was a coercive one. Necessarily, the investing of federal jurisdiction in State courts has cost implications not only for State courts themselves but also for the duties and functions of State officials who exercise their powers in relation to State courts, although not officers of them. The States could not reject the jurisdiction so invested. They could not complain that it necessarily imposed upon the State and its officers (and ultimately the taxpayers in the State) the burdens of providing courts, judicial officers, officials, security guards, sheriffs and other officers, police and all the other administrative back-up and paraphernalia that goes with the compulsory imposition of jurisdiction on State courts pursuant to the Constitution[154].
The appellant submitted that the imposition of one further cost, namely (in proper cases) the possible reimbursement of legal costs authorised by a court and accepted by a State Minister to a person acquitted of a federal offence, was not different in terms of constitutional principle. By inference, it was suggested, any added financial burden upon the State Consolidated Revenue Fund might be the subject of later inter-governmental negotiations and possible federal recoupment. The federal legislative power to so provide was thus (according to the appellant) merely incidental to the legislative power sustaining both the Customs Act and the Judiciary Act. There was no difference in kind so far as the marginal costs involved in a Costs Act certificate were concerned.
I disagree. There is a difference. It forbids any attempt (if that had indeed been ventured) to stretch the federal legislative power to the point needed by the appellant to render the Costs Act applicable to his case. At that point, the link to the federal legislative power is snapped. This is so because to "pick up" the Costs Act and to apply it, according to its terms, necessarily postulates the operation of a federal law that imposes a distinct and additional burden on the State Consolidated Revenue Fund not, as such, for the discharge of federal jurisdiction by a State court but for a related but different legislative purpose, namely the provision of legal aid to a person accused of a federal offence.
There was no equivalent provision in the United Kingdom nor in the exercise of State or federal jurisdiction by Australian courts at the time of federation. There is still no such provision in some States of Australia. There is no such provision in federal legislation. Many courts overseas exercise criminal jurisdiction without such provision. Accordingly, such provision is not involved, as such, in the exercise of the jurisdiction contemplated in s 77(iii) of the Constitution. At least it is not so involved at this stage of the understanding of that constitutional expression. It cannot be put there merely by notions of the incidental enlargement of the constitutional power. Constitutionally speaking, the provision for criminal costs is a separate subject matter of legislation.
Moreover, it was accepted by the Attorney-General of the Commonwealth, correctly in my view, that the Federal Parliament could not, by its laws, appropriate money from the Consolidated Revenue Fund of a State[155]. Nor could the Commonwealth impose a special burden or disability on a State; nor one that prevented, or interfered with, the functioning of a State as a polity created by the Constitution[156]. These rules rest, in part, on the preservation of the State Constitutions by s 106 of the Constitution. But they are reinforced by the implied limitations imposed upon the intrusion of laws made by the Federal Parliament into the matters properly belonging to the Parliaments of the States[157]. Where an imposition on the Consolidated Revenue Fund of a State is contemplated, it is essential to the representative democracies envisaged by the Constitution that any such imposition must have the clear authority of law. Ordinarily, appropriations must be approved by the Parliament representative of the electors from whom the revenue is raised. The principle "no taxation without representation" was a cause that ignited the War of Independence of the United States of America. It informed the establishment of the constitution of that country. But it also influenced the constitutions, colonial, federal and State, of Australia and elsewhere in the former British colonies and dominions. It is a principle reflected both in the federal[158] and State[159] Constitutions as they now stand.
Unless this principle were upheld in a case such as the present (where necessary by this Court) there would be a risk that legislation could undermine the accountability of the legislators in a given State for the appropriations from the Consolidated Revenue Fund of that State, disapproved by the electors in that State yet for which the Parliament of that State was not answerable at elections. There would be a risk that federal legislation could discriminate against the States by imposing special burdens or disabilities on them or by curtailing or impairing their continued existence by enacting laws burdening their Consolidated Revenue Funds[160]. Subject to the Constitution, the power of a State to control its finances, to raise income and expend moneys from out of its Consolidated Revenue Fund as it sees fit, is a prerequisite to the viability of the State as a polity within the Commonwealth[161]. It is essential to its capacity to function as a government[162]. If, in the name of investing a State court with obligatory federal jurisdiction, the Federal Parliament could, by provisions such as those contained in the Judiciary Act, tack unwanted burdens onto State Ministers and officials and the State Consolidated Revenue Fund that had not been expressly enacted by the State Parliament, the freedom of action of the State Parliament would thereby be diminished.
It is one thing to impose on a State the vesting of federal jurisdiction in its courts. This is done pursuant to s 77(iii) of the Constitution. That provision, and the necessary incidents to its discharge, have inescapable implications for State revenue. Inevitably, they burden State officers and the State Consolidated Revenue Fund. However, they do so by force of the Constitution itself. Although the special provision for criminal costs is, in practical terms, appurtenant or incidental to the investment of federal jurisdiction, it is not, constitutionally speaking, part of it. Any federal law providing such a burden on the State Consolidated Revenue Fund would therefore need additional constitutional support. Such support is missing here. Indeed, no explicit federal law even purports to deal with that subject matter. Neither the Attorney-General of the Commonwealth nor the prosecutor for the Commonwealth suggested otherwise.
Conclusion: The result is that, to the extent that the Judiciary Act might, read without appropriate regard to the Constitution, be thought to "pick up" and apply the Costs Act to the appellant's proceedings, when the former Act is read alongside the Constitution, it cannot validly have such an operation. To read it in such a way would sever its link with the federal legislative powers that sustain it. Moreover, so read, it would conflict with a fundamental postulate of the Constitution that respects and upholds the control over the State Consolidated Revenue Fund of the State Parliament, save to the extent that the federal Constitution or valid federal law expressly or implicitly provides otherwise. Here there is no such express or implied provision.

Solomons v District Court of New South Wales

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