Williams v United States of America

PLEADINGS 31 The grounds for the application are as follows: '3. Sections 19(1) and 46(1)(a) of the Extradition Act 1988 curtail or interfere in a substantial manner with the exercise by New South Wales of its constitutional powers and functions, in that: (a) by sections 19(1) and 46(1)(a), the Commonwealth Parliament has sought to impose an administrative duty on, relevantly, magistrates appointed by commission under the public seal of New South Wales; (b) by section 23 of the Local Courts Act 1982 (NSW), the New South Wales Parliament has enacted that, except as provided by that section, a magistrate shall devote the whole of the magistrate's time to the duties of the magistrate's office and that a person may, with the approval of the Governor (which approval the Governor is thereby authorised to grant), hold and exercise the functions of the office of magistrate and another office or appointment; (c) neither section 23 of the Local Courts Act 1982 (NSW) nor any other enactment of the New South Wales Parliament approves, authorises or permits the imposition of the duty to conduct proceedings for the determination of eligibility for surrender under section 19 of the Extradition Act 1988; and (d) it is critical to the capacity of New South Wales to function as a government that it have the ability to determine the terms and conditions on which those persons appointed as a magistrate are engaged and exercise their powers and duties. 4. Sections 19(1) and 46(1)(a) of the Extradition Act 1988 impose a burden upon, or interfere with or impede, the activities of New South Wales such that they are beyond the legislative power of the Commonwealth.' 32 In order to succeed in its application, the applicant acknowledges that it must establish all four of the following propositions: 1. that it is an implication from the federal structure of the Constitution that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval; 2. that the duty imposed by s 19 of the Extradition Act is an administrative duty; 3. that such a duty is imposed on a New South Wales Magistrate as the holder of a State statutory office; and 4. that the imposition of the duty is not approved by the statute appointing and regulating New South Wales Magistrates, namely, ss 17 and 23 of the Local Courts Act 1982 (NSW) ("the NSW Act").

LEGISLATION AND GAZETTE 33 Due to the importance of the proper construction of both the Extradition Act and the NSW Act, it is necessary to set out the relevant legislative provisions. The relevant provisions of the Extradition Act are as follows: '19 Determination of eligibility for surrender (1) Where: (a) a person is on remand under section 15; (b) the Attorney-General has given a notice under subsection 16(1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.' (Emphasis added.) '46 Arrangements relating to magistrates (1) The Governor-General may: (a) 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; or (b) arrange with the Administrator of the Northern Territory or of Norfolk Island for the performance, by all or any of the persons who from time to time hold office as magistrates of the Northern Territory or of Norfolk Island, as the case may be, of the functions of a magistrate under this Act. (2) A copy of each arrangement made under this section shall be published in the Gazette.' 34 The expression 'magistrate' is defined in s 5 of the Extradition Act to include a magistrate of a State in respect of whom an arrangement is in force under s 46. 35 Section 23 of the NSW Act is also relevant: '23 Employment of Magistrates in other offices etc (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) A Magistrate may not, however, practise as an Australian legal practitioner for fee, gain or reward, and no approval under subsection (2) may be granted to permit it.' (Emphasis added.) 36 As s 12 of the Interpretation Act 1987 (NSW) clarifies, the reference in any New South Wales Act or instrument to an office is a reference to such an office in and for the State of New South Wales. 37 Pursuant to s 46 of the Extradition Act, a notice was published in the Commonwealth of Australia Gazette (No S 366, 30 November 1988, p2) recording an arrangement between the Governor-General of the Commonwealth, acting on the advice of the Executive Council, and the Governor of New South Wales, acting on the advice of the Executive Council of New South Wales. The arrangement, dated 24 November 1988, was expressed in the following terms: 'NOW, IT IS HEREBY ARRANGED in pursuance of section 46 of the Act that all or any of the persons who from time to time hold office as Magistrates of the State of New South Wales may perform the functions of a Magistrate under the Act.'

HISTORY OF EXTRADITION PROCEDURES IN AUSTRALIA 38 Before considering the propositions advanced by the applicant, it is appropriate to set out a brief history of the development of Australia's extradition system. 39 The major step forward in Australia's extradition system occurred when the Commonwealth Parliament enacted the Extradition (Commonwealth Countries) Act 1966 (Cth) and the Extradition (Foreign States) Act 1966 (Cth). Before the promulgation of these Acts, Australia's extradition procedures were governed by the domestic law and international treaties of the United Kingdom. Indeed, some of those treaties have been inherited by and are still in force in Australia, including for example those with Iraq, Lithuania and Estonia: Extradition Treaty between the United Kingdom and Iraq (opened for signature 2 May 1932) [1934] ATS 4 (entered into force in Australia 31 August 1934); Extradition Treaty between the United Kingdom of Great Britain and Ireland and the Republic of Lithuania (opened for signature 18 May 1926) [1928] ATS 18 (entered into force in Australia 4 May 1928); Extradition Convention between the United Kingdom of Great Britain and Ireland and Estonia (opened for signature 18 November 1925) [1927] ATS 4 (entered into force in Australia 23 February 1927). 40 However, in 1966 Commonwealth countries adopted the so-called "London scheme". This scheme required all Commonwealth countries to enact their own domestic legislation to govern extradition within the Commonwealth of people against whom a requesting state could raise a prima facie case. The scheme's intention was to obviate the need for these countries to enter into international treaties with each other. The Extradition (Commonwealth Countries) Act 1966 (Cth) gave effect to the scheme in Australia, and Parliament simultaneously enacted the Extradition (Foreign States) Act 1966 (Cth) to establish a similar scheme in respect of non-Commonwealth countries. An aspect of both schemes which is relevant to the present proceedings was the provision for arrangements to be concluded between the Governor-General of the Commonwealth and Governors of the States for the appointment of State magistrates to implement the new extradition system. 41 In the 1980s significant reform of Australian extradition procedures was conducted. The reform was intended in part to address the complexity of the existing system, reliant as it was on two separate Acts of Parliament, and the lacuna in the legislation which was exposed by the High Court's decision in Barton v Commonwealth (1974) 131 CLR 477. The culmination of this period of reform came in 1988 when Parliament enacted one Act which was intended to regulate the entirety of Australia's extradition system. 42 Section 46 of the Extradition Act continued the preference in Australia for extradition procedures to be carried out by State magistrates. Although the Extradition Act was promulgated six years after the NSW Act (which was enacted in 1982), the system which it adopted by way of s 46 was in existence in Australian legislation for 16 years before the NSW Act.

CONSIDERATION OF THE APPLICATION 43 I turn now to the four propositions advanced by the applicant. As noted above, each of these propositions must be established if the application is to be successful. If the applicant fails to establish one of its propositions, then the application as a whole must fail. 44 For the reasons set out below, I am of the opinion that, on a proper construction of the meaning and operation of s 23 of the NSW Act, the State of New South Wales has given statutory approval for its Magistrates to perform the duty required of them under s 19 of the Extradition Act. It is therefore not necessary for the Court to consider the first, second or third propositions advanced by the applicant. However, in order to properly contextualise the construction of s 23 of the NSW Act, I will briefly elaborate in a general sense the content of those three propositions.

Proposition one - the Constitutional premise 45 The applicant submits that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval. This proposition is disputed by the respondents. The proposition is said to be based on the principle expressed in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82-83 and, it is claimed, on an implication drawn from the 'dualist' federal structure of the Australian Constitution which comprises a central government and a number of State governments separately organised. The applicant submits that one result of this dualist structure is that not only is a State unable to unilaterally vest functions under its laws in officers of the Commonwealth (see Bond v The Queen (2000) 201 CLR 213 at 219; R v Hughes (2000) 202 CLR 535 at 553 (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ)), but also that the Commonwealth has a reciprocal incapacity to unilaterally impose by its laws administrative duties on the holder of a State office, such as a magistrate. The argument put by counsel for Mr Williams draws heavily on principles set out in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82-83 and Austin v Commonwealth (2003) 215 CLR 185 at 217-220 (per Gleeson CJ), 245-246, 249, 251, 257-261, 265 and 269 (per Gaudron, Gummow and Hayne JJ). 46 It is not necessary to decide whether this first proposition is correct. Accordingly, I refrain from investigating and deciding the question of Constitutional law raised by the applicant because it is unnecessary to do so: see Cheng v The Queen (2000) 203 CLR 248 at 270 (per Gleeson CJ, Gummow and Hayne JJ). I note that, as stated by Gaudron, Gummow and Hayne JJ in Austin v Commonwealth (2003) 215 CLR 185 at 269, and reiterated by a Full Court of this Court in Zentai v Republic of Hungary (2007) 157 FCR 585 at 589, this proposition involves 'a large proposition' which was not in those cases, and is not in this case, necessary to decide and therefore is 'best left for another day.'

Proposition two - whether an administrative duty is imposed by s 19 of the Extradition Act 47 There is no dispute between the parties that the task imposed by s 19 of the Extradition Act is an administrative task. That is confirmed by the authorities in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538 (per Brennan CJ, Dawson and McHugh JJ) and Pasini v United Mexican States (2002) 209 CLR 246 at 254-255 (per Gleeson CJ, Gaudron, McHugh and Gummow JJ). 48 Although some argument in submissions addressed whether s 19 of the Extradition Act imposes a 'duty' instead of conferring a 'power' or 'function', it is not necessary to decide this question.

Proposition three - persona designata 49 The applicant submits that the duty is imposed on New South Wales Magistrates as holders of a State statutory office and not as persona designata. This proposition is disputed by the respondents. 50 Again, it is not necessary to express an opinion on this third proposition. In light of my decision not to accept the applicant's construction of s 23 of the NSW Act, and bearing in mind the acknowledgment by the applicant that it must establish all four propositions to be successful in its application, any consideration of the arguments on persona designata is redundant.

Proposition four - whether s 23 of the NSW Act, properly construed, provides State legislative approval 51 The fourth and final proposition advanced by the applicant involves a question of statutory construction as to whether s 23 of the NSW Act confers legislative approval by New South Wales for the imposition of the duty contained in s 19 of the Extradition Act upon its magistrates. 52 This question arises because, if it can be established that New South Wales has given statutory approval to the imposition of the tasks under s 19 of the Extradition Act on its Magistrates, then the application must fail. In this sense, the case for the applicant hinges on the absence of such approval of the New South Wales legislature. 53 Counsel for Mr Williams submits that the reference to 'another office or appointment' in s 23(2) of the NSW Act means another office or appointment 'in and for, or in and of, New South Wales', and does not extend to an office or appointment under a federal Act. In support of this approach, the applicant cites s 12 of the Interpretation Act 1987 (NSW) and relies on the principle of statutory construction expressed in R v Hughes (2000) 202 CLR 535 at 569 that the functions of a donee of legislative power are generally taken to be restricted to those relevant to the polity within which the officer or authority operates. As a consequence, it is said, the general words 'another office or appointment' must be read down to cover only other offices or appointments in and for, or in and of, New South Wales. The 'exceptional situation', as the applicant calls it, in s 23(2) of the NSW Act is thereby limited to include only administrative duties in and for the State of New South Wales. Accordingly, the applicant submits, the provision cannot be said to confer legislative authority on the Governor of New South Wales to enter into an arrangement with the Governor-General of the Commonwealth which requires New South Wales Magistrates to perform an administrative role under a federal Act. 54 There are a number of difficulties with this reading down of the language of s 23(2), which on its face is sufficiently broad to cover an appointment to perform the duties imposed by s 19 the Extradition Act. 55 The first difficulty is that s 23 of the NSW Act itself points away from any such limitation. Subsection 23(3), which clarifies that no approval of the Governor of New South Wales under s 23(2) will allow a magistrate to 'practise as an Australian legal practitioner', suggests that offices or appointments which may be approved extend to include offices or appointments anywhere in Australia. This would include assuming an office or appointment in another State or Territory, which clearly is not a matter in or for the State of New South Wales. In this way, the section itself suggests that a construction which limits s 23(2) to offices or appointments only in or for New South Wales is not correct. 56 A second difficulty which indicates a construction contrary to the one advanced by the applicant arises out of s 7 of the NSW Act, which provides that the Local Courts in which New South Wales Magistrates sit can have jurisdiction conferred upon them 'by or under any Act or other law'. Likewise s 17 of the NSW Act envisages a situation where 'any other Act' may affect the exercise by a Magistrate of the functions of the office of a Magistrate. The term 'Act' as used in ss 7 and 17 is defined in s 4(3)(a) as including 'a reference to an Act of the Commonwealth'. Accordingly, the NSW Act expressly leaves open the possibility that the offices and appointments of a New South Wales Magistrate may actually be conferred or at least affected by an Act of the Commonwealth Parliament, such as the Extradition Act. 57 When considering the construction of s 23, it is also important to take into account the character of the individual, authority or officer in whom the power to make an exception to the prohibition in s 23(1) is vested. The repository of the power under s 23(2) to make exceptions in this case is the Governor of New South Wales acting on the advice of the Executive Council. The Governor, acting with such advice, is in a position at the highest level of government to make such decisions and represent the State's position. Whilst not necessarily determinative as to the construction of any individual legislative provision, where the power is entrusted to such a senior officer acting on the advice of elected Ministers, it is appropriate not to construe that power narrowly. 58 A further significant consideration is the historical context in which the NSW Act was enacted. As the High Court noted in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ), and reiterated in Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at 280-281 (per McHugh A-CJ, Gummow and Hayne JJ) and Insurance Commission of Western Australia v Container Handlers Pty Limited (2004) 218 CLR 89 at 138ff (per Heydon J), the modern approach to statutory interpretation is one which considers the context of the provision in the first instance, and not merely at a later stage when ambiguity might be thought to occur. 'Context' is a broad expression. It covers various things, such as other provisions and headings in the same Act, the subsequent practice the parties when fulfilling obligations or exercising powers under the provision, extrinsic materials such as explanatory memoranda and second reading speeches, the existing state of the law, and the mischief which the provision or Act as a whole seeks to remedy. Another role which 'context' plays in statutory interpretation derives from the principle which allows a court to consider the inconvenient results of one interpretation, and consequently prefer an alternative construction to a strict literal interpretation: see CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-321 (per Mason and Wilson JJ). 59 In relation to extradition proceedings in Australia, for sixteen years prior to its enactment there was an arrangement in place between the State of New South Wales and the Commonwealth which was similar in effect to the arrangement provided by s 46 of the Extradition Act. Both before and after the promulgation of the Extradition Act, State magistrates have been available to determine the eligibility of persons for surrender. The provision in s 46 of the Extradition Act was paralleled by s 24 of the Extradition (Foreign States) Act 1966 (Cth) and s 31 of the Extradition (Commonwealth Countries) Act 1966 (Cth). Given thisestablished pattern of practice and cooperation between the State and federal governments, it would require a clear expression of intent in the provisions of the NSW Act or in the extrinsic material surrounding it to justify a conclusion that it was intended to significantly depart from the previously existing pattern of cooperation. If, as seems correct to me, s 23(1) of the NSW Act is to be read as precluding, subject to any exception which might be found elsewhere in s 23, a Magistrate from performing any functions outside those of the Magistrate's office, then, in the absence of a clear indication to the contrary, it is appropriate to give a liberal construction to the exception which is found in s 23(2). This approach is supported when one has regard to the inconvenience of the result which a contrary interpretation of the provision would procure, namely the disruption and even total prevention of the cooperative arrangements adopted by the State of New South Wales and the Commonwealth at the highest level of government over a significant period of time. 60 Another consideration which is to be borne in mind when construing s 23 of the NSW Act is that the objective of the provision, as evident from its language, is to ensure that Magistrates have sufficient time and capacity and resources to perform their role as New South Wales Magistrates. Indeed, there are similar provisions to s 23 of the NSW Act in the legislation of almost all other States and Territories: see s 6 of the Magistrates Court Act 2004 (WA); s 41 of the Magistrates Act 1991 (Qld); s 11 of the Magistrates Act 1977 (NT); s 18A of the Magistrates Act 1983 (SA); s 12 of the Magistrates Court Act 1987 (Tas); s 7G of the Magistrates Court Act 1930 (ACT). These provisions are not identical in terms to the NSW Act, but the clear object of each of them is to ensure that by restricting the capacity of a magistrate to engage in other activities his or her magisterial functions can be carried out properly. Furthermore, prior to the NSW Act, New South Wales Magistrates were appointed under the Public Services Act 1979 (NSW), s 99 of which provided that Magistrates should not engage in commercial or other employment without the permission of the Public Service Board. This provision was plainly intended, on its face, to ensure that Magistrates spent their time on magisterial duties, and did not engage in activities which might distract them from this. Similarly, it can be inferred that the NSW Act has a similar objective in that it sought to limit the activities of a Magistrate in areas outside their magisterial duties. To give effect to this objective (and to the similar objectives of each of the provisions in the various State and Territory Acts), it is irrelevant whether the additional function is the exercise of power or performance of a duty pursuant to a State or federal Act. As the Solicitor-General for New South Wales pointed out, it is not material for the achievement of the object of s 23 of the NSW Act whether the other function which could interfere with the performance of the duties of a Magistrate is 'in and of' New South Wales or otherwise. There is therefore no basis for implying a limitation that such interference should only derive from an appointment in and for New South Wales. 61 Counsel for Mr Williams also submits that s 19 of the Extradition Act does not validly impose a duty on New South Wales Magistrates because, before a duty can be performed, one must hold 'another office or appointment', and s 19 does not provide for a magistrate to hold an office or appointment other than or in addition to that of a New South Wales Magistrate. In particular, it is submitted that the word 'appointment' cannot include a requirement to perform a task unless some office, or position akin to an office, is held by the person performing that task and pursuant to which his or her functions can be exercised. Because there is no such office or appointment which can be held by the magistrate, s 46 is said not to apply. 62 I do not agree. The word 'appointment' on its ordinary meaning can include the assignment of a duty, function or task. According to the Oxford English Dictionary, one meaning of the expression 'an appointment' is the act of directing what is to be done. The word 'appoint' can include a grant of authorisation to fulfil or perform a task. One often speaks of a person being appointed to perform a task such as to conduct an investigation or inquiry. In ordinary parlance, it is common and appropriate to refer to a person as being appointed to carry out a task - there is no necessity to create an office or position which is capable of being 'held' by that person. The holding of a position or office is not necessary to give meaning to the term. Indeed, the notion of appointment is consistent with either holding or not holding a particular position: see Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455 at 470. It does not strain the language of s 23(2) of the NSW Act to speak of an appointment to exercise a function which includes duty, power, or authority. The expression 'another appointment' is broad enough to cover the functions provided for in s 19(1) of the Extradition Act. 63 In my opinion, s 23(2) of the NSW Act, on its proper construction, is sufficiently extensive to enable the Governor 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 Extradition Act. The provision does not operate to vest a discretion in the recipient of the function to reject the exercise of the function, but rather invests the Magistrate with a capacity to carry out other functions, including a duty, which do not attach to the office of a New South Wales Magistrate. In other words, s 23(2) provides that before a person who currently holds and exercises the function of the office of a New South Wales Magistrate can exercise the functions pursuant to another appointment, the Governor must give his or her approval. By s 4(2)(b) of the NSW Act, the 'exercise of a function' under s 23(2) includes the 'performance of [a] duty'. Accordingly, when the Governor approves the holding and exercising of functions pursuant to another office or appointment by the Magistrates, that approval extends to include an arrangement for the performance of a duty imposed by that additional appointment, regardless of whether the individual magistrate elects to do so. 64 Having regard to these considerations I do not accept the submission that s 23(2) of the NSW Act should be read down so that the expression 'another office or appointment' is limited to an office or appointment in and for, or in and of, New South Wales. Nor do I accept that a magistrate must 'hold' an office or appointment under the Extradition Act before he or she can perform the task required of them. As stated above, I am of the opinion that s 23, on its correct construction, provides statutory approval for New South Wales Magistrates to perform the duty encompassed in s 19 of the Extradition Act. Accordingly, I consider that the construction contended for by the respondents is correct and that there is legislative approval by New South Wales to the arrangement made under s 46(1) of the Extradition Act. Consequently, even assuming that the first three propositions can be made out by the applicant, the application must fail because of the construction of the language of s 23(2) of the NSW Act.

65 The application is therefore dismissed and the applicant is to pay the costs of the first respondent in this proceeding. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1038 OF 2007

MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES

ALLSOP J 66 I agree with the reasons of Branson J and with her Honour's agreement with the orders proposed by, and reasons of, Tamberlin J (subject to the express qualification in her Honour's reasons). In particular, I agree with the views expressed by Tamberlin J (with which Branson J agrees) as to the relevance of the historical context of the arrangements for co-operation between the States and the Commonwealth about an important aspect of external affairs such as extradition. One would not easily construe s 23 of the Local Courts Act 1982 (NSW) to be so narrow as not to provide for such well-known arrangements as

those for extradition between the Governor of New South Wales and the Governor-General of Australia as existed in 1982.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Counsel for the Appellant: Mr S Gageler SC, Mr R Lancaster and Ms G Mahony

Solicitor for the Appellant: Watsons Solicitors

Counsel for the Respondent and for the Commonwealth Attorney-General, intervening: Mr H Burmester QC and Mr G Hill

Solicitor for the Respondent and for the Commonwealth Attorney-General, intervening: Office of the Commonwealth Director of Public Prosecutions and Australian Government Solicitor

Counsel for the New South Wales Attorney-General, intervening Mr M Sexton SC, Solicitor-General for the State of New South Wales, and Ms N Sharp

Date of Hearing: 16 July 2007

Date of Judgment: 3 August 2007