Attorney-General (Cth) v Huynh & Ors

[2022] HCATrans 191

[2022] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S78 of 2022

B e t w e e n -

ATTORNEY-GENERAL (CTH)

Appellant

and

HUY HUYNH

First Respondent

ATTORNEY GENERAL (NSW)

Second Respondent

SUPREME COURT OF NSW

Third Respondent

GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 NOVEMBER 2022, AT 10.02 AM

(Continued from 8/11/22)

Copyright in the High Court of Australia

GAGELER J:   Mr Hill.

MR HILL:   Thank you, your Honours.  Could I just inform the Court of the discussions the parties have had about timing?

GAGELER J:   Yes.

MR HILL:   The proposal is that I will endeavour to finish my submissions by the morning break, and since I have not yet addressed the Judiciary Act point, what I hope to do is to deal fairly briefly with the remaining point on question 2, which is the direct application, which is State legislative power.  So, I hope just to make a few brief points to supplement what appears in paragraphs 23 and 24 of our submissions.

So, if I could start with the question:  could the provision for an executive inquiry in Division 4 combined with 79(1)(a) apply of its own force in respect of Commonwealth offences?  We say no.  In our outline, we have given a citation – this is our outline at paragraph 5, in the first dot point, your Honours will see a reference to Cadia Holdings (2010) 242 CLR 195. The paragraphs referred to are just talking about the division of prerogatives as between the Commonwealth and the States. That, in itself, does not suggest any lack of State legislative power, but it does suggest that the relevant prerogative is held by the Commonwealth to dispense with the effect of a conviction for a Commonwealth offence.

GAGELER J:   I am not sure that there is any opposition to that proposition.

MR HILL:   Yes, exactly, your Honour.  If your Honours would like me just to talk about 79(1)(b) and Division 5, I can.  I had thought for thoroughness I should mention why we say there is no ‑ ‑ ‑

GAGELER J:   I do not think you need to take us to the authority.

MR HILL:   Definitely not, your Honour.  All I thought is to give some what I hope are uncontentious references because it might be implicit in what your Honour has put to me, Justice Gageler, that in New South Wales’ courts it is accepted that Division 4 does not apply of its own force to Commonwealth offences and Justice Leeming refers to that in paragraph 217. 

We say if it came to it, which we say it does not, but if it came to it, such a State law purporting to apply in relation to Commonwealth offences and have a provision of direct application for executive inquiry would be contrary to the Commonwealth’s implied immunity from constitutional law.  Could I give the Court a quick reference and then move on, which is Spence v Queensland (2019) 268 CLR 355. In paragraph 101, the joint reasons say that a State law cannot burden the exercise of the Commonwealth prerogative. In my submission, that is exactly what a Division 4 inquiry would be doing. So we say if Division 4 cannot be picked up, then neither can the gateway provision. It cannot be a gateway to nowhere, to put it colloquially.

Could I just then make a brief submission to expand very slightly on what we have said in writing about whether 79(1)(b) and section 86 procedure in the Court could apply of its own force.  We do say that the 79(1)(b) gateway provision cannot be picked up of its own force, and we rely on Rizeq.  In writing, we have quoted from paragraph 103 of that decision.  Rizeq, is a decision of the Court from 2017, reported in 262 CLR 1, at tab 29.

There is a passage I want to take the Court through very briefly, which we have quoted in our submissions from paragraph 103. In our submission, there is also a very – perhaps even more – applicable explanation of the same principle in the Chief Justice’s judgment at paragraph 22. If I could just briefly take the Court to that. At the end of paragraph 2 ‑ ‑ ‑

GORDON J:   Did you say 2 or 22?

MR HILL:   I am so sorry.  Paragraph 22.  At the end of paragraph 22, what her Honour points out is certain laws, such as limitation periods and contribution laws, have been understood by reference to the purpose of section 79.  We particularly rely on the second last sentence.  These laws: 

may be understood as laws which define the circumstances in which a proceeding may, or may not, be brought in a court –

We say that explanation of the sorts of laws, that it must be picked up by section 79 of the Judiciary Act, explains why section 79(1)(b) of the New South Wales Act would need to be applied as federal law.  It comes within the extent of the Commonwealth’s exclusive legislative power.

Unless your Honours have any questions about our submissions on question 2 – the direct application – I propose to move to our submissions on question 3; whether section 79 of the New South Wales Act can be picked up by the Judiciary Act.  Just to summarise, I think your Honour Justice Jagot anticipated where we will be going with this, is that we say – it comes down to a question of divisibility.  We say, section 79(1)(a) and the executive inquiry – Division 4 – cannot be picked up.  We say, section 79(1)(b) and section 86, if they were all that existed in the statute, could be picked up by the Judiciary Act, but that it is not possible to pick up paragraph (b) in section 79(1) separately from paragraph (a).

What we do say – just to anticipate a submission that will become important later – is we emphasise that this is a submission on severability that takes account of the particular features of this New South Wales Act and the integration between the two streams once an application is made under section 78.  We say, quite different questions of severability would arise if an application were made under the common form provisions that appear in the table we have provided next to our oral outline.

So, just for example, the Commonwealth this morning has provided the Court with a decision of the Full Court in Yasmin which considered section 140 of the Sentencing Act (WA). The short point is it is a very differently expressed provision and so therefore the result in that case does not tell us anything about the divisibility of these two New South Wales provisions. So could I start by ‑ ‑ ‑

GORDON J:   Is it also in relation to the severability?  As I understood it, was your – I just want to make sure.  Do you put the proposition that because section 68 sought to achieve parity between the Commonwealth and State offences that when you get to the inapplicability, if that is right, of (a) as distinct from (b), then parity falls away?  In other words, you have lost one mechanism, or one stream, of this integrated scheme being available to Commonwealth offences.

MR HILL:   We certainly make that submission, that it is the integrated nature of the scheme which means that you cannot pick up only half of it.  One of the important submissions I am coming to, I think now, is a submission about the full scope of section 68 of the Judiciary Act.  So, there seemed to us to be four points of common ground between our submissions and those of the Commonwealth and first respondent.  What I am trying to do in the following submissions is explain the extent of the common ground but why none of the propositions we accept require the answer that section 79(1)(b) could be picked up by the Judiciary Act.  So the first ‑ ‑ ‑

GLEESON J:   Mr Hill, can I interrupt you.  One of the points of distinction that the Solicitor‑General made yesterday was to describe Division 4 as an administrative pathway and to describe Division 5 as a judicial pathway.  One of the provisions of Division 5 is section 87, in which the Governor seeks an advisory opinion.  I wanted to understand whether you would accept the possibility of the whole of Division 5 being picked up by section 81 or whether it is only section 86 that you accept.

MR HILL:   Your Honour, can I say we have been careful to limit our concession to section 86 because I had not thought particularly about section 87, but I have thought about sections 84 and 85, and Justice Basten remarks there is a question as to the nature of those proceedings and sections 84 and 85 and whether they are properly described as judicial.  So, this is a case, as I understand it, where an application is sought for the section 86 proceeding, and if those provisions are severable, then it would not affect the result where the – the other provisions in Division 5.

So, perhaps if I can answer your Honour’s question this way.  Our concession is limited to section 86 and we certainly would not be making any ready concession about the other provisions in Division 5, and that, in fact, is part of our submission why this is an integrated scheme.  It is not as simple as saying there is two mutually exclusive pathways.

I was going to attempt to outline what I see as common ground.  And the first aspect of common ground – if I could just ask your Honours to have the Judiciary Act open in front of you.  So that is under tab 4, section 68.  The common ground is that we accept that section 68(1) is not limited to laws that are applied by courts and, in that respect, it is different from section 79 of the Judiciary Act.

This is a point that I started yesterday, where our submission is, yes, section 68(1) does include laws that are not applied by courts, but there are all laws that apply before and during the exercise of judicial power.  In our submission, they are not laws that apply after the exercise of judicial power through the – once a verdict is entered by the courts and then including appeals and statutory second appeals, as your Honour Justice Gageler raised with me yesterday.  We say the matter covered by section 68 is that initial exercise of judicial power including any initial appeals.

GLEESON J:   So, you are saying that custody in section 68(1) does not extend to detention post‑conviction?

MR HILL:   We do make that submission and, in fact, your Honour has anticipated my next submission which is to say that, as your Honours are well aware ‑ ‑ ‑

GORDON J:   You need 120 of the Constitution, do you not?

MR HILL: Yes, exactly, your Honour. Sections 120 of the Constitution uses the word “detention” not “custody”, and 120 of the Constitution says:

Every State shall make provision for the detention –

“detention” not “custody”:

in its prisons of persons accused or convicted of offences . . . and the Parliament of the Commonwealth may make laws to give effect to this provision.

So, in our submission, the Constitution provides for an intersection of State laws and State institutions at two points:  in section 77(3), in a conferral of federal jurisdiction on State courts, and in section 12, in the application of State laws to Commonwealth prisoners in State prisons, subject to the Commonwealth making laws to give effect to this provision.

GLEESON J:   That raised a question in my mind about the Punishment of Offences Act (1901) that you referred to yesterday.  And I understand that to be a provisional – like a precursor to the 1903 Judiciary Act.

MR HILL:   Yes.

GLEESON J:   But I was struck by the title of the legislation and, as I understand it, what you are saying is that that legislation, in effect, where it refers to custody, it is not referring to any concept of the Commonwealth picking up legislation in relation to detention of prisoners post‑conviction.

MR HILL:   Post‑conviction.  Yes, that is our submission.  Sorry, the reason I was looking down, your Honour, was just to have the Punishment of Offences Act in front of me to make sure that certainly section 2 of that 1901 Act is in very similar terms to section 68(1), and what I just wanted to check is that there is no relevant difference – but that is our submission.

The effect of this – there are some limited provisions in the Crimes Act in Part 1B, Division 3.  I think it is a provision like section 19A of the Crimes Act permits a person to be transferred between States – a federal prisoner.  So, the short point is we accept that section 68(1) picks up some non‑curial laws, but to say it picks up some does not mean it picks up these non‑curial laws, because these occur, we say, after the exercise of federal jurisdiction has finished – after that matter has been finally determined.

Just to avoid any confusion, we say that if there were a referral that could validly apply to federal offences and if there were a proceeding such as under section 86, that would be a new federal matter, we say.  The interposition of the executive process with a petition made to the Governor and the decision to refer means it is no longer part of the initial matter; it is a new matter, we would say.  So, that is the first point of common ground.

The second point of common ground is that we agree that the constitutional power for section 68(1) is not limited to the incidental power.  Your Honours said in Rizeq that the source of power to make section 79 of the Judiciary Act is section 51(xxxix).  It is incidental to the conferral of the jurisdiction, too, and that then affected the scope of laws that could be picked up. 

We accept that with section 68(1), it is not the incidental power that would pick up the laws prior to the exercise of jurisdiction such as arrest, and so on.  That is properly more accurately described as, it is within the power, we have supported the offence for which the person has been arrested in a R v Hughes sort of sense.  Your Honours remember that in R v Hughes this Court held that Acts such as the Director of Public Prosecutions Act are supported by whatever heads of power support making the offences which are then prosecuted by that Office.

The answer to that – to say that there is constitutional power not limited to 51(xxxix) does not then compel the conclusion that, therefore, section 68(1) extends to laws post‑conviction.  It is a question of construction.  A third point of common ground, which I said yesterday, is we do accept that the Commonwealth could enact a section 79(1)(b) procedure if that is all it was.  If there was the leave requirement, an administrative process, and then the section 86 proceedings, we accept there is power to enact that, and that law could be picked up by the Judiciary Act.  So, the Commonwealth Solicitor‑General correctly said that we do accept that and so the burden of our argument on this question falls on severability.

Then, fourth – and this is important – it seemed to us that the Commonwealth argument places a great deal of weight about the general objective of section 68.  We would say that general objective is more confined than the Commonwealth would have it because, I think, the Commonwealth’s submission is that section 68 attempts to achieve parity between Commonwealth and State offenders in all aspects of the criminal law.  We say, it is a narrower objective; it is to achieve parity between Commonwealth and State offenders in the trial and determination of criminal offences in courts.  That is why we say, once the objective of section 68 is understood as being limited to the trial and conviction of criminal offences in courts, then that supports our submission that the scope of section 68 does not extend to laws such as Part 7.  There is a reference ‑ ‑ ‑

GORDON J:   So, yesterday, I think the phrase that was used was the “criminal justice system” and that is how you would define a criminal justice system for that aspect.

MR HILL:   Yes, exactly.  We say, section 68(2) clearly is about the conferral of jurisdictions – a law made under section 77(3) – section 68(1) is to give effect to that conferral of jurisdiction so it includes all laws necessary to make that conferral of jurisdiction effective.  But once that exercise of jurisdiction is concluded, that is when the scope of section 68 ceases.

STEWARD J:   Just so I am clear about that – I am sorry to interrupt.

MR HILL:   Of course.

STEWARD J:   But you do not cavil with the proposition that 68 could be used for a new proceeding such as the sort of review under section 86?

MR HILL:   Yes, your Honour.  Just to make clear – it is a very important point, so I apologise if it feels to the Court as though I am labouring this point.  What we say is that the section 79(1)(b) type of provision would be a law respecting the hearing and determination of appeals.  We would say the proceedings would be the section 86 proceedings; that proceedings in section 68(1) are talking about judicial proceedings – I will be coming to this – but section 68(1) includes laws respecting, which can include an administrative procedure leading to the proceedings.

GORDON J:   I think I put this to you yesterday.  I just want to make sure – or make it clear – is that you define what you have just made in relation to the fourth proposition, which you accept, but you say it is more confined to this criminal justice system, being the hearing of these appeals ‑ ‑ ‑

MR HILL:   Yes.

GORDON J:   ‑ ‑ ‑ and you have explained that.  I do not understand how that then sits with the submission you just made, because if you are dealing with a proceeding which is not a proceeding within your defined content of criminal justice system, is it not then a proceeding respecting, in effect, an appeal which is a substitute for a prerogative or something like that?  It is outside that system that you have accepted is that to which 68 is directed?

MR HILL:   The way we put it is this, your Honour, because I understand your Honour’s concern because we do emphasise our section 68 is to do – perhaps one way of answering your Honour’s question is to say this.  “Criminal justice system” is a convenient shorthand, but ultimately section 68 is talking about the hearing and determination of offences in courts.  The section 86 proceeding comfortably answers that description of hearing and determination of things in courts.  It is true there is the interposition of the executive process connected with the prerogative of mercy, but there is a second journey into the hearing and determination of criminal offences in courts under section 86.  There was – just to attempt to support our ‑ ‑ ‑

EDELMAN J:   Mr Hill, just so I understand that, your submission about severability then is only concerned really with the State dimension rather than the Commonwealth dimension.

MR HILL:   Yes.

EDELMAN J:   In other words, severability could have two aspects to it.  One aspect could be that the State Parliament never intended that section 79(1)(b) could operate independently of 79(1)(a), and that submission has to overcome the Knight issues that – the way this Court explained the prospect of severability in Knight, which is that Parliament would have to have intended that there be no operation rather than a partial operation.

MR HILL:   Yes.

EDELMAN J:   But the other dimension of it is to say that section 68 was never intended by the Commonwealth Parliament to pick up part of a provision such as section 79, and that is the aspect that you do not cavil with.  You say section 68 could pick up part of a provision.

MR HILL: So I will answer your Honour briefly. I am going to come to severability last, but just to anticipate our argument, yes, we say that when it comes to the question of whether you can pick up only part of a State law, the relevant intention is only that of a State Parliament. Just to anticipate a submission we will be making, we say that it is not a 15A constitutional invalidity severability question, we say it is more analogous to section 109 inconsistency severability. That difference is important because when it is constitutional invalidity you actually have a positive command from the Parliament to try to keep as much of the law as you can, whereas under section 109, inconsistency in determining the extent of the inconsistency, it is just the ordinary process of construing a law to work out whether something is divisible or not.

EDELMAN J:   So, in your submission, then, does section 68, by itself, present any obstacles at all to the picking‑up of a scheme like this?

MR HILL:   Can I put it this way.  So the obstacles we see arising from a State law – can I put it this way.  Section 68(1), as with section 79(1), has what you could call a gap‑filling exercise, and so, given its function, it is not – it is going to be common that the gap is only addressed by part of a State Act and not the whole State Act.  So the mere fact that if you were going to apply State law you only need to pick up certain parts of it is not enough to say that you cannot pick up that State law.

That is why this Court has said it is a question of whether you are giving the State law provisions an altered meaning because it is inherent in the nature of section 68, as with section 79, that the gaps only require certain provisions of State law to be picked up.  So, that is why I say I do not attempt to get any further legislative intention from section 68 because, in my submission, the intention of section 68 is as I have just described.

What I was going to do is just to give your Honours a brief reference to R v Gee, which is tab 26.  The reason for this is to go to paragraph 63 and particularly the quote from Blacklock’s Case that appears at the top of page 255 of the report.  If your Honours have that, it is a statement from Justice Mason in Loewenthal; Ex parte Blacklock, extract at the top of page 255.  In my submission, this is a more helpful statement of the purpose of section 68.  Do your Honours see how his Honour Justice Mason said this:

The purpose of the section was, so far as possible, to enable State courts in the exercise of federal jurisdiction to apply federal laws according to a common procedure in one judicial system.

So we emphasise those last words “in one judicial system”.  That is what section 68 is talking about.  That is why we say it is concerned with the trial of and conviction of federal criminal offences in courts.  That is all it is talking about.  It is not talking about what happens after courts, and that is why the general purpose of section 68 does not assist in asking whether these provisions are picked up by the Judiciary Act or not.

For similar reasons, we accept that the word “appeal” should be read generally and it has an ambulatory operation.  But we say, ultimately, one has to engage with the words of the text in the definition and ask whether this sort of proceeding comes within that definition, given the scope of section 68 as properly understood.  So, could I ask your Honours to turn back to the Judiciary Act, and if I could take your Honours back to the definition of “appeal” – your Honours have been to taken to this already.  So we would just read this with a different emphasis.

The learned solicitor emphasised “appeal” as an inclusive definition, but what we would say to that is that this procedure under section 79 of the New South Wales Act does not come within the ordinary meaning of “appeal”.  If it is an appeal for the purposes of this Act, it would have to come within the words of extension.  That is why we have focussed on asking:  is it any proceeding to review or call in question the proceeding’s decision or jurisdiction of any Court or judge?

GAGELER J:   But let us be clear about this.  The section 86 procedure is an appeal.  It is the section 79 procedure that you say is not an appeal.

MR HILL:   Yes.  And also the Division 4 executive inquiry, that is not an appeal either.  So, thank you, your Honour.  I have neglected to explain why I am talking about this.  We say “proceeding”, in this definition, means a judicial proceeding.  Therefore, the section 79 gateway is not a proceeding, because it is expressly said not to be judicial proceeding.  Therefore, we say, the executive inquiry under Division 4 is not a proceeding, and that is why we say 79(1)(a) ‑ ‑ ‑

STEWARD J:   But you accept, do you not, that subject to the issue of severability, the 79(1)(b) legislative step could be one respecting an appeal?

MR HILL:   We accept that it could be respecting if it were taken alone.  Yes.

STEWARD J:   All right.  Thank you.

MR HILL:   So, that is why we are making this submission, just to support our proposition that the executive inquiry is not a proceeding within these terms, because it is not a judicial proceeding; why we say the section 79 gateway is not itself a proceeding.

The first respondent refers to definitions in other parts of the Act, and we say, particularly, the definitions in Part 10AA and 10AB – vexatious proceedings – we say, these are provisions added well after the event dealing with quite different matters, and we submit this ‑ ‑ ‑

GORDON J:   The short answer might be that they had to define “proceeding” in a particular way for a particular subject matter, which were the subject matters being dealt with in those specific parts.

MR HILL:   Exactly.  That is exactly our submission.  One thing we do need to answer, though, is – if your Honours still have the definition of “appeal”, your Honours will scroll ahead and see that there is – I think your Honour Justice Gleeson observed that there is a definition of “matter” which:

includes any proceeding in a Court –

There is a definition of “suit” and there is a definition of “cause”.  Can we make this submission.  Our understanding is that these definitions – “cause”, “suit”, “matter” – they are either derived directly or they are certainly very similar to common form Judicature Act provisions.  So I have looked at the Judicature Act 1883 (Vic) and it contains – sorry, I am just going to pull it up to make sure I can talk accurately to the Court.  It contains definitions of “action”, “cause” and “matter” which are almost identical to these definitions that your Honours in the Judiciary Act.  The one term that is not defined in the Judicature Act, at least of 1883 of Victoria, is “appeal”. 

That is why, in our submission, it is not one of those situations where there are carefully crafted definitions which are interlocking, such that specific reference to “judicial proceeding” and the word “matter” therefore can be taken to mean it has a different meaning in the definition of “appeal”.  The legislative history rather suggests there were some convenient common form definitions that were relied on and then a new definition of “appeal” added.  In any event, just coming back to the definition of “appeal” in the Judiciary Act, we say it is clear enough that if your Honours look at the reference to:

the proceedings decision or jurisdiction of any Court or Judge.

the proceedings there is clearly a court and so therefore we say within the definition of “appeal” it is necessary to look at the purposes and scope of the Act to work out what sort of proceedings it is applying to.

So, in case it was not clear, we do accept that, in theory or in principle, proceedings can extend to proceedings that are not in a court.  We just say it is a question of construing the particular Act.  And that is why we say certain provisions here, particularly when one looks to the Judiciary Act as originally enacted – so that is under tab 9.  If I could ask your Honours to go to that briefly, here is the point:  that “appeal” was defined the same way in 1903 when this provision was originally enacted, and when one sees how that word was used, it is clearly applying only to judicial proceedings.  We say that is courts, the submission that “appeal”, when it uses the word “proceeding”, is talking about judicial proceedings.

GAGELER J:   The long title to the Act – the short title, which is the Judiciary Act, but the long title says it is:

An Act to make provision for the Exercise of the Judicial Power of the Commonwealth.

MR HILL:   Your Honour, I could stop there, but I will not.  I am sorry, your Honours, I will – because your Honour has anticipated – you encapsulate our submission perfectly.  That is exactly our submission.  The whole purpose of the Act is to provide for a federal judicial system and therefore, when it says “appeal”, one is talking about appeals within a judicial system.

GORDON J:   That is why I keep harping on – that is why I still find the difficulty with your submission in the sense that that is right, and yet we somehow extend – you are happy to extend 79(1)(b) if it stood on its own to something which is dealing with a substitute for the prerogative which has its own weird creation by a State Act.

MR HILL:   I understand your Honour’s difficulty.  The reason we make that concession is a point I think I made to your Honour Justice Edelman yesterday.  This Court has heard appeals from proceedings such as section 86, and it would only have heard those appeals if they were the exercise of judicial power properly so‑called, which is why we are prepared to – we are trying to do the least violence to the exiting jurisprudence, your Honour.  I think for us to say section 86 is not a proceeding that can engage section 68 would fly in the face of a lot of case law, whereas our submission is looking at this particular scheme.

The only provision I wish to emphasise after – actually, your Honours will have seen that “appeal” is in the same terms.  Your Honours might also see that the definitions are not in alphabetical order and “appeal” is added at the end, and “suit”, “cause” and “matter” – which are the ones taken from the Judiciary Act – are all grouped together.  I am not sure whether one can read too much into that, but it is certainly consistent with my submission as to the legislative history.

The point I wanted to particularly draw your Honours’ attention to, in fairness, is section 20 of the Judiciary Act – section 20 and 21.  The only reason for emphasising section 20 is it is talking about the jurisdiction of this Court to hear and determine appeals from judgments and then it talks about courts.  But in paragraph (d), it talks about the Inter‑State Commission which, obviously, is not a court.  I just want to address a possible argument that this somehow suggests that the proceeding is a limited judicial proceeding.  What we say is, of course, the Judiciary Act was enacted before it was discovered in the wheat case in 1915 – the wheat case being New South Wales v The Commonwealth (1915) 20 CLR 54 – that it could not confer judicial power on the Inter‑State Commission.

So, what we say is, at the very least, the definition of “proceeding” means a proceeding involving the exercise of judicial power, as indicated by the fact that section 20 talks about appeals from judgments.  So, it is enough for us to say “proceeding” in that definition of “appeal” is talking about the exercise of judicial power in the federal judicial sphere, that means a judgment of a court because, of course, only courts can exercise federal judicial power.

What is put against us is that everything changed in 1932 when the Judiciary Act was amended but, we say, what your Honours are aware of is that what happened in 1932 is that paragraph (d) was added to section 68(1) but there was no change in definition of “appeal”.  We say, the mischief of that amendment was to overcome the decision of this Court in Seaegg which was about hearing appeals in courts.  So, there is nothing in the mischief of these amendments, or the texts of these amendments, to suggest that “appeal”, following 1932, has a broader scope of application to apply to proceedings other than proceedings in courts.

EDELMAN J:   But there does not need to be, under 68(1)(d).  The focus on proceedings is not so much proceedings in the definition of “appeals”, as proceedings in the subsection which is concerned with those proceedings connected therewith.  Your submission on this point really needs to be not just that proceedings in the context of the appeal must be judicial but also proceedings connected therewith must also be judicial.

MR HILL:   Yes.  And we say – I think, essentially, for the same reasons – that when one looks at what this Act is talking about – it is talking about the conferral exercise of judicial power – that as long as the appeal is from a judicial proceeding, that any proceedings connect with the trial or conviction would also be judicial proceedings so as to engage a judicial proceeding from which there is an appeal.

EDELMAN J:   You may be right about that, but it is not as self‑evidently true as your submissions about the scope of the meaning of appeal, particularly when proceedings connected therewith are read in light of things that are respecting appeals and proceedings connected therewith which do not need to be judiciary.

MR HILL:   Certainly.  We would say the reason we have focussed on appeal though, your Honour, is that the conferral of – or the subject matter of laws picked up by section 68(1)(d) is respecting the procedure for the hearing determination of appeals, which is why we say that is what the subject matter is – and it includes not just appeals from trial or conviction, but appeals from any proceeding connected therewith.  But, nevertheless, section 68(1)(d) – what it is operating on is the laws respecting the procedure for the hearing and determination of appeals.

GAGELER J:   You would also say, I suppose, Mr Hill, that you see exactly the same language in subsection (2), which is a conferral of jurisdiction where it can only be referring to judicial power.

MR HILL:   Thank you, your Honour.  That is exactly our submission.  It is sort of buried within the subsection, but it is the same language and it could only be the conferral of jurisdiction and thus the exercise of judicial power.

GAGELER J:   Mr Hill, I know your time is limited, but I would assisted by your response at some stage to the Commonwealth Solicitor‑General’s submissions that section 68(1) can be read similarly to section 68(2) so as to be able to mould the language of State statutes to make them applicable to Commonwealth entities.

MR HILL:   Thank you, your Honour.  What I will do then is merely sketch – I think all the steps in our argument between where I am now and getting to the point that your Honour is interested in can be dealt with shortly.  We say, although section 68(1) has the words respecting and they could, in theory, be words of extension, that 79(1) as a whole is not respecting because it is not divisible.

That drives us back to the divisibility point.  Our divisibility argument has two steps.  The first is that the executive inquiry process – 79(1)(a) in Division 4 – is not applicable as those words appear in section 68(1).  Then, 79(1)(b) is not severable from 79(1)(a).  What I might do is move directly to the second step.  We have dealt with the first business about applicability – first step – in paragraphs 41 to 49 of our submissions, and there are just some points that I wanted to elaborate on, including the point raised by your Honour Justice Gageler.

The first point came out of a question from your Honour Justice Edelman.  This is about the extent to which State laws can be translated to apply a federal subject matter when, in their terms, they apply a State subject matter and State matters.  Your Honour Justice Edelman I understood to ask, well, there must be some level of translation because otherwise a State law for arrest could not apply in respect of a Commonwealth offender.

So our submission is, exactly; that is, as with section 79, where it is obvious on the face of the provision that it applies to courts exercising federal jurisdiction, including federal courts, the section permits that level of translation, if required, so that a State law that in terms would only apply to a State court exercising State jurisdiction can apply to a federal court exercising federal jurisdiction.  So, by parity of reasoning, it is plain on the face of section 68(1) that the intention is that State laws for arrest, custody and bail – just to take the obvious ones – can apply to Commonwealth offenders.  So, to the extent that any translation is required so that those State laws are applicable, that is plainly contemplated by section 68(1) and that is permissible.

Now, a preliminary point I should make before moving on is, of course, the underlying limit here is that courts cannot be asked to exercise a legislative power.  So, that is why we say the criterion by which the translation occurs has to be obvious on the face of the provision, such as section 68; that the court cannot be asked to guess as to what the translation might be and pick amongst various different options that are available.  That is the basic problem we have with saying that Division 4 could be translated to federal law.

What I want to do, your Honours, is go to Edensor Nominees but before I do I will answer your Honour Justice Gageler’s question.  Our submission is that section 68(2) contains the express reference to like jurisdiction, which expressly enables the court to proceed by analogy.  Section 68(1) does not contain any similar words that permit a greater degree of translation, so we say section 68(1) and its operation is much more similar to the exercise that is permitted under section 79(1) of the Judiciary Act. 

There is a possible exception.  We do accept that section 68(1) is linked textually to the exercise of jurisdiction.  So there may be instances – we would submit they would be rare – where the like jurisdiction conferred by section 68 would require section 68(1) laws to be applied to make that like jurisdiction effective and, in that situation, indirectly there may be a greater degree of translation – a slightly greater degree of translation permitted, but we submit that would be rare.  And, certainly, it is not an invitation to engage in wholesale rewrites of State laws.

GAGELER J:   Can I just use a very simple example to test the proposition.  Assume you have a State law that says a State police officer can arrest a person for a State offence.  As picked up by section 68(1), I suppose, you say that the law becomes that a State police officer can arrest a person for a Commonwealth offence.

MR HILL:   We certainly say that, your Honour.  I wonder if your Honour would forgive me.  It is at this point that I would value the input from my learned junior to see whether he has anything ‑ ‑ ‑

GAGELER J:   Let me just ask the follow‑up question.  Section 68 would not translate that law to say that a Commonwealth police officer can arrest a person for a Commonwealth offence?

MR HILL:   That is the  – obviously your Honour has put your finger right on the critical point, because what I have submitted is that section 68(1), on its face, is requiring a level of translation to apply to Commonwealth offenders.  One way of understanding this is to say that the system that section 68(1) presupposes is that Commonwealth laws are enforced by Commonwealth officials.  So that when one sees – so, to that extent, yes, there is something closer to the like jurisdiction and translating the office is permitted by section 68(1).  But I would be more content if I could, your Honour, just to confer with my learned junior as to what he considers be answer to that question.

I have permission to maintain that submission I just put your Honour.  So, we do say, clearly, State officer arresting for Commonwealth offences is one way of reading it.  In fact, we say – and this actually supports our submissions on translation later – section 68(1) should be understood against the background of how responsible government works in the division of responsibility within a federation, consistent with what I have said; that Commonwealth officials enforce Commonwealth laws, State officials enforce State laws.  It is possible for there to be a measure of cooperation, but in fact, if anything, the natural reading might be if a State provision confers authority on a State officer to arrest for a State offence, it confers authority on a Commonwealth ‑ ‑ ‑

GAGELER J:   I just do not think historically that it has been the case that Commonwealth officers have been even the primary enforcers of Commonwealth law, certainly not at the time section 68 was enacted.

MR HILL:   I take your Honour’s point because the Australian Federal Police Act I think is a 1979 Act, but this is the sort of exercise one would need to say – one looks at the context of the provision.  It is ambulatory in its operation, so once there are ‑ ‑ ‑

GAGELER J:   It starts to become pretty fuzzy once you move beyond the primary translation to make it applicable to Commonwealth offenders.  The difficulty is, Mr Hill, also with this sort of fuzzy, ambulatory nature, we are dealing with provisions that are concerned with liberty of the individual.  One would hope to find fairly tight application of those sorts of provisions, to know who can arrest who for what offences.

MR HILL:   I endorse that completely, your Honour.  This is an area that has always been a difficult area in these provisions and your Honour has put your finger on the importance of having fair rules as to who has which powers.

GORDON J:   It is not just even responsible government.  It is also about questions of power in this sense – is that at what point are we redrafting legislation in the sense of redrafting the way in which provisions themselves are to operate?  So the fuzziness is – back to your first point – not only do we have imprecision of subject matter by reference to liberty, but we also have where does the line become drawn in relation to the courts’ functions.  This is your rewrite argument.

MR HILL:   Yes, exactly.  This is exactly the point.  Your Honour, I endorse that completely.  Could I take the Court to Edensor Nominees.  There are two passages from Edensor Nominees which is under tab 13.  Edensor Nominees is a 2001 case reported in (2004) CLR 559. I wish to take the Court just to paragraphs 72 through 75. The reason for doing this, your Honours, is there is a very neat discussion of the extent to which State laws can be translated for the purposes of section 79 of the Judiciary Act and, as I have submitted, we say 79(1) is a much closer analogy to section 68(1) than the like jurisdiction 72.

What their Honours say – this is the Chief Justice with Justices Gaudron and Gummow – they are talking about section 79 of the Judiciary Act and they refer to a passage from Justice Gaudron in Kruger and how there may be some statutory provisions which are impossible to be picked up by the Judiciary Act.  If I skip over the example in paragraph 73 – because that is an example of a State provision which does involve the exercise of judicial power – and spend more time on paragraphs 74 and 75, paragraph 74 is talking about Owens [No 2] and that was – as your Honours see, this is towards the bottom of page 593:

The grant of a certificate . . . formed a step in machinery which had been established for the indemnification out of a fund set up and administered by –

the State.  So, that is like Solomons; that sometimes there is a provision that is a part of a scheme, it is clear that other parts of the scheme cannot be applied as Commonwealth law, and there is no meaningful independent operation that can be given to a State provision, therefore it cannot be picked up by the Judiciary Act.

Now, that is not really this case, unless one was going to say that somehow Division 5 could be picked up as Commonwealth law without the gateway provision in section 79, which I had understood to be one of the Commonwealth’s arguments.  In our submission, either the judiciary picks up Division 5 and the gateway provision as an incidental provision, or it picks up none of them.  What it cannot do is only apply the Division 5 as Commonwealth law and have the State gateway provision applying of its own force.  That would be, we say, to create a disjointed scheme.

The second example in paragraph 75 is much closer to this case.  Their Honours discuss the decision in Thomas v Ducret and the effect of that.  There was section 18A of the Crimes Act which was:

analogous to that of s 79 of the Judiciary Act.

If I let your Honours read the quoted passage at the end of paragraph 75, the effect was section 18A of the Crimes Act, one can apply State provisions:

so far as they are applicable –

for criminal offences.  The relevant provision is summarised in paragraph 76:

the Victorian legislation provided that, where a magistrate imposed a fine, the magistrate should order that in default of payment the offender should be imprisoned –

If your Honours skip ahead, that provision was not able to be picked up by the Judiciary Act because the Victorian statute applied only to courts of summary jurisdiction, not to superior courts.  That is an example of a level of impermissible translation.  If you have a State provision that applies to summary jurisdiction, it cannot be picked up and applied to a federal superior court.

We say that the cases on section 68(2) of the Judiciary Act are cases such as Rohde, which the learned Solicitor took you to yesterday.  At the very least, in a very different sort of provision, because they are talking about an exercise of power by a named official that then engages the jurisdiction of the court.  It is not a multi‑stage executive scheme.  There is a simple power given.  And so the question is:  if a State law gives a power to a State official, can that same power be exercised by the Commonwealth so as to engage the like jurisdiction which is federal in nature?  We say that is a very different field of discourse than the elaborate provision in Division 4 engaging multiple State officials and ultimately involving a decision by the Governor of the State.

Could I just take your Honours to Division 4.  We have summarised this in paragraph 41 of our submissions, but there was just two points I wanted to make.  Division 4 starts at section 80, and the key point I want to make, which I think overcomes a point made by the Commonwealth – do your Honours see that section 81(1) talks about who chooses the judicial officer who conducts the inquiry.  Paragraph (a) was referred to yesterday by the Commonwealth, saying the Governor would choose, but that paragraph only applies if the conduct of the inquiry was directed by the Governor, as in under section 77.  If the inquiry is ordered by a judicial officer, it is paragraph (b), which is:

a judicial officer appointed by the Chief Justice –

So you do not have that easy translation of Governor means Governor‑General, the Governor appoints who – what you have – and we have said this in writing at paragraph 41 – is you have multiple references to officers such as “the Chief Justice”.  We would say section 82(1)(b), the Chief Justice is sent a copy of the report, and then the Court of Criminal Appeal under subsection (2) may be referred a matter by the judicial officer.  Then, under subsection (4) of section 82:

The Governor may then dispose of the matter . . . as . . . appears just.

So, we say, all through this scheme is a reference to identified State officers, and we have said in writing it is not possible to work out with any clarity who the corresponding Commonwealth official would be.  The Commonwealth’s response in oral argument was all you need to do is change Governor to Governor‑General and it is just like a joint royal commission.  Our submission is it is nothing like a joint royal commission.  The reason a royal commission has joint authority under Commonwealth and State laws is precisely so they can report to both levels of government.  It is the joint nature that does not exist here.

For that reason, we submit it is not possible to say Governor just means Governor‑General and everything else stays the same.  That is why we submit these laws are not applicable, which brings me to the severance argument.

At the level of principle, I think the parties are agreed it is not possible to pick up only part of a State law if to do so would give it an altered meaning.  My learned friend for the Commonwealth referred to Solomons at paragraph 24, and we embrace that. We say – and this is to respond to the question from Justice Edelman – this altered meaning question is a question of construing the State Act. One thing we do say is that it is a different exercise from the severance inquiry under provisions such as section 31 of the Interpretation Act (NSW).  So, we are aware, of course, that cases such as Pearson, in the Supreme Court – that my learned friend took you to yesterday – considered that it was a relevant point of comparison but, we say, that was mistaken; it is similar, but it is not the same. 

What we say is a provision such as section 31 is talking about the instance of a State law being partially invalid by reason of breaching the Constitution.  The question of how much a State law can be picked up by the Judiciary Act has no bearing on the validity of a State law.  The State law is perfectly valid in its operation as a State law.  It is just a question of how much of it can be picked up and applied as Commonwealth law.  Even when one says, part of a State law cannot be picked up because it is contrary to the Constitution, it is not invalid as a matter of State law, it just means it cannot validly apply as a Commonwealth law.

Section 31 of the Interpretation Act has nothing to say about this situation.  We say it is much closer – and we have got this in our outline if your Honours – if I can just point out where we cite the relevant cases.  This is in our outline at paragraph 14.  What your Honours will see in the dot point, we have cited two cases.  What your Honours will see is that Wenn’s Case is where Justice Dixon says if a State law is inconsistent with a Commonwealth law, that renders inoperative all inseverable parts of that State Act.  We say, that is exactly the same analysis because the question is – sorry, we say that is a much closer point of comparison because a State law that is rendered inoperative under the Constitution is not invalid, it is just that, by rendering specific provisions inconsistent and inoperative, it has the flow‑on effect of rendering other provisions inoperative. 

We have cited Bell Group v WA (2016) 260 CLR 500, at paragraph 71. The relevance of that paragraph is that the Court held that a provision such as section 31 – it was the Western Australian equivalent – has no part to play when the question is the extent of inconsistency under the Constitution because a State law is not invalid. Now, it is a very similar exercise, but here is the crucial difference. A provision such as section 31 is a positive command by Parliament to preserve as much of a State law as is possible. That is why you have the statements in Knight – cases such as Knight saying you ask would the State have intended that none of this operate.  But that is not the right question to be asking, coming from that starting point of ‑ ‑ ‑

EDELMAN J:   My concern is that you are mixing up two different inquiries.  One inquiry is what did the Commonwealth Parliament intend under section 68.  Does section 68 intend to pick up as much as it is possible – as much as the section is able to pick up – without engaging in an impermissible exercise of Pedoto‑type exercise agreed writing the law, which would not be permissible.  That is one inquiry. 

A separate inquiry is whether, according to the State law, the intention of the State Parliament would prevent that picking‑up exercise from going ahead, because the intention of the State Parliament is that this whole scheme just has to operate together.  That does seem to meet to be a lot like the Knight‑type inquiry, because, does the State Parliament intend that this is one inseparable whole that can never be separated or does it intend that it is the sort of scheme that could be picked up if section 68 were to operate.

MR HILL: So, there is two answers, your Honour. One is that in this area, intention is a difficult concept to apply because, of course, it is a situation that the State did not have in contemplation when enacting its scheme. It enacts a law to operate as State law applying according to its terms. A more substantive answer though is, I accept there are some similarities in the inquiry as to constitutional reading down under section 31 of the Interpretation Act, and the analysis I am urging on your Honours.  The difference is the strength or the presumption required by a provision, such as 31, to presume much as possible, whereas, in my submission, when it is the question of how much can be picked up, it is a more neutral question of just interpreting the State Act without starting with any presumption as to how much should be preserved.

On the severability point, we have said in writing, the basic point is that section 79 confers a single power on a judge to decide what to do, that an inevitable part of deciding which pathway is to compare both pathways and decide whether that is an appropriate way to proceed.  We say it would not operate the same way if one of those pathways was closed off.  One thing I do need to address ‑ ‑ ‑ 

GORDON J:   Your strongest argument, is it not, is that there is a one gateway, and that is 79(2).

MR HILL:   Yes, exactly.

GORDON J:   And then the gateway itself then gives rise to two different paths.

MR HILL:   Can I address matters of legislative history, which were raised by Honour Justice Gleeson, because it might be thought the strongest argument against our view of the world is that these two pathways had their origin in two completely separate statutory provisions.  Your Honours understand the executive inquiry has its origins in section 475 of the Crimes Act – and that actually is based on an even earlier provision from 1883.

So, even before there were criminal appeals, there was this provision to have an executive inquiry into convictions.  Then, as your Honours are well‑aware, in 1912, New South Wales enacted the Criminal Appeal, and one of those provisions was section 26.  The Criminal Appeal Act conferred power on the Minister of Justice to refer a whole case to the court to be dealt with as an appeal or to refer a point arising in the case.

The argument against us might go, given these separate sources, why would the Court now treat these pathways as inextricably linked?  Our answer to that is that the history does not stop there; that these provisions were combined in Part 13A of the Crimes Act in 1993.  Your Honours see that in paragraph 28 of Justice Basten’s reasons.  But, as originally enacted in 1993, the provision that conferred the gateway function on the court – the section 79 equivalent which was section 474E – only gave the Supreme Court the power to refer a matter for inquiry.  At that stage, as originally enacted, it did not have a power to refer to the court to be dealt with on appeal.

That facility or power for the court also to refer the matter to the Court of Appeal was added in 1996.  If I could give your Honours a

reference to the Amending Act – it is the Crimes Amendment (Review of Convictions and Sentences) Act (NSW), and the relevant amendments in Schedule 1, item [7]. That is why I think your Honour Justice Gleeson observed that even now section 78 talks about making an application for inquiry even though under section 79(1) there is the inquiry or the referring to the Court of Appeal. That may be the reason for that apparent discrepancy that in 1996 section 79 was amended but no amendment was made to section 78.

What we say is that whatever the origins of the powers to refer matters from the executive arm – the section 77 equivalent – certainly as far as this Court is concerned, has only ever had this power to refer to a court as an adjunct to a power to order an inquiry.  That is why we say it should be construed as – at least in the section 79 gateway, it is a single gateway.

There are two last submissions to make here.  One is that, even though this case is not about section 77, probably our argument – it may well proceed along the same lines, but we say it does not really matter because different considerations apply.  It is a different legislative history where it has always been a provision that conferred multiple ways.  But we do emphasise that, even with a section 77 inquiry, there is an integration of the processes under Division 4 and Division 5.

The last submission is to say, still less do our submissions – about this Act, section 79 – have anything to say about what I have called the common form provision set out in our table.  So, to say that something – there is ability in Yasmin to pick up just the referral to a court without any other part of the Act says nothing about whether these two processes provided for in section 79 are inextricably linked.

Unless your Honours have any questions, they are our submissions.

GAGELER J:   Thank you, Mr Hill.  Ms Orr, we may take five minutes for your – you can start your submissions, I think.

MS ORR:   As your Honour pleases.  If the Court pleases, our submissions will focus on just two issues; those two issues are connected to question 3.  The first is the intersection between 68(1) of the Judiciary Act and constitutional limits on Commonwealth legislative power, and the second is the intersection between 68(1) and 4AAA of the Crimes Act (Cth).

Victoria’s submission on the first issue is that the words “so far as they are applicable” in 68(1) operate to confine the operation of the section so that it does not operate to pick up and apply any State of Territory law that would, if applied as a Commonwealth law, infringe a constitutional limitation on Commonwealth legislative power.

No participant in this proceeding appears to advance a contrary submission, but if support is needed for that proposition we rely principally on the reasoning of Chief Justice Gleeson in Putland v The Queen. I will not take the Court to that decision, (2004) 218 CLR 174. The relevant passage is paragraph 7 of the decision, and we have set that paragraph out in paragraph 12 of our written submissions. In that passage, his Honour drew attention to the qualifying expression in section 68 “so far as they are applicable”, “they” being the relevant laws, and his Honour described there as being:

little, if any, functional difference between –

that form of qualifying expression and the form of qualification that appears in more express terms in section 79(1) of the Judiciary Act.  That qualifying expression, of course, is:

except as otherwise provided by the Constitution or the laws of the Commonwealth –

So although that formulation in 79(1) expressly directs attention to potential constitutional limitations and potential inconsistency between Commonwealth laws, the effect of the equivalence drawn by Chief Justice Gleeson in Putland is that the same two forms of qualification are given content in 68(1) in the expression “so far as they are applicable”.

GAGELER J:   This is really a submission that section 68(1) being a Commonwealth law cannot exceed Commonwealth legislative power.

MS ORR:   Yes, of course that is another way of reaching exactly the same result.  It is not the course that Chief Justice Gleeson took in Putland, but we would embrace that route to the same conclusion.

EDELMAN J:   But it would also apply to Commonwealth laws that are inconsistent with State laws under section 109 of the Constitution, so that section 68 would not resurrect or pick up the inconsistent State laws.

MS ORR:   Yes, that is right, your Honour.  The question that arises, which might be slightly more contentious, is how that qualification applies in practice if one does view it through the lens of Chief Justice Gleeson’s use of the qualifying expression “so far as they are applicable”.  And what we say is that – as explained by the plurality in Rizeq in relation to section 79(1) – when that provision picks up a State law, what it does is it operates to take the text of the State law and to apply that text as a

Commonwealth law.  Our submission is that 68(1) operates in the same way; it takes the text of the State law and it applies that text as a Commonwealth law.

What is important, we say, is that it is still the State law that is to be applied and the State law will only be applied so far as it is applicable.  That means that it is necessary to assess whether the text of the State law would, if it is applied as a Commonwealth law, infringe any limitation on Commonwealth legislative power.  If it would, then it is not applicable and it cannot be picked up and applied as Commonwealth law under 68(1), but if the hypothetical Commonwealth law would not infringe any constitutional limitation, then it is applicable and can be picked up and applied, subject to any other reason why it might not be applicable – such as the reasons advanced by the amicus.

GAGELER J:   Do you have any submission on the degree of translation that is required by section 68(1)?

MS ORR:   No.  We accept that some degree of translation is permissible, but I do not think in the circumstances of this case, about a NSW statute, we wish to take the submission any further than that.

GAGELER J:   Very well.  At this stage, we will take our morning adjournment.

MS ORR:   Thank you, your Honour. 

GAGELER J:   Thank you.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

MS ORR:   If the Court pleases, having explained why we say it is necessary to assess the text of the State law to see whether or not, if applied as a Commonwealth law, it would infringe a constitutional limitation on Commonwealth legislative power, in the circumstances of the present Act in this matter we have identified two potentially relevant constitutional limitations.  We have referred to those in our written submissions as the third and fourth limits.  They were both referred to by the judges in the court below.

What we have referred to is the third limit.  We have labelled the individual consent requirement.  That prevents the Commonwealth Parliament from conferring on a judge of a Chapter III court, in their personal capacity, a non‑judicial function unless the individual judge has consented to that conferral.  We have addressed that limit at paragraphs 19 to 22 of our submissions, and it was referred to by Justice Basten below at appeal book page 86, paragraph 117, and page 87, paragraph 120.

The limit that we have called the fourth limit, we have described as the State authorisation requirement.  A limit that prevents the Commonwealth Parliament from conferring upon a State official, including a judge acting in their personal capacity, an administrative duty, unless the State has authorised that conferral.  We have addressed that limit, also, in our written submissions at paragraphs 27 to 30.  We have acknowledged in those paragraphs that the existence and scope of that limit remains somewhat unresolved.  It was referred to by Justice Basten below at page 76 of the appeal book, paragraph 93.

GAGELER J:   Is section 79(3) a complete answer to both of those concerns?

MS ORR:   Yes.  I want to address that, your Honour, without, I hope, making submissions about the proper construction of the New South Wales statute.  As your Honour may have seen from our written submissions, we have made clear that we do not intend to make submissions about the proper construction, but in light of the submission that has been made by Mr Huynh, I would like to make some observations about how the Court should approach that construction task.  It seems to us that section 79(3) is not necessarily determinative of this issue.  Can I start with some observations in relation to what we have called the individual consent requirement first.

The first of those observations is that Justice Basten, in the court below, thought that there was an issue, on the proper construction of 78 and 79, with the individual consent requirement.  His Honour said at paragraph 117 on page 86 of the appeal book:

there is nothing in s 79 of the Appeal and Review Act which provides for voluntary acceptance of federal power.  The State Act cannot, therefore, operate in its own terms without contravening the essential element of conferral of federal administrative power on a State officer identified in Grollo.

That is the starting point.  Justice Basten had a concern.  The next point we would make is that this is not a legislative regime that contains any express requirement that the Chief Justice or a judge authorised by the Chief Justice provide consent before receiving an application made under section 78 or considering an application under 78.

GLEESON J:   Well, in a sense, that makes sense in the light of the identification of the Supreme Court as the party exercising the section 79 power.

MS ORR:   Yes, but if we proceed on the basis that that is to be construed by virtue of section 75 of the Act as still a persona designata – a conferral of power on an individual, being the Chief Justice or a judge authorised by the Chief Justice ‑ ‑ ‑

GLEESON J:   Why would a State court feel the need to confer this jurisdiction on a judge’s persona designata?

MS ORR:   I am not sure I can answer why the New South Wales Parliament ‑ ‑ ‑

GLEESON J:   Well, I mean, there is no separation of powers issue.  It seems rather odd to me that that is – I cannot see the benefit, the advantage of this being construed as conferring power persona designata.

MS ORR:   Yes.  But perhaps there was a desirability to keep this function separate from the operation of the court, although there are – as I will come to – some provisions within sections 78 and 79 which connect it back to the court through the registrar of the criminal division of the court.  But I suppose the starting point that we are just wanting to emphasise is that there are different ways of doing this, of ensuring in a statutory regime that the individual consent requirement is not infringed.  The legislation in Grollo v Palmer is one example of how you can ensure that.  You can set up a regime such as was done in the Telecommunications (Interception) Act in that case where you define an eligible judge to mean a judge to mean a judge who has provided consent to the Minister in that case and then have the Minister deal with those who are nominated and declare them to be eligible judges.

GORDON J:   There is the scheme under the Extradition Act which was an arrangement between the Governor‑General and the States directly.

GLEESON J:   Again, these are all instances where there is a separation of powers concern.

MS ORR:   That is so, in Commonwealth legislation, we accept that, your Honour.  Our point is just that that is not the mechanism that has been used by the New South Wales Parliament in this statute, which means we are forced to look instead at 79(3) and try and work out what 79(3) means and whether it is doing the same work as those other more express ways of dealing with the individual consent requirement.  And, I suppose, when the Court comes to deciding whether 79(3), properly construed, is the answer to the individual consent requirement insofar as applications are made in relation to federal offenders, we would make the point that 79(3) is a somewhat interesting provision in that, although it starts with the language of:

The Supreme Court may refuse to consider or otherwise deal with an application.

It then goes on, in subparagraphs (a) and (b), to give some examples of scenarios that appear to amount to a circumstance of refusing to consider or otherwise dealing with the application.

But it is clear, when one looks at what those scenarios involve, that they involve embarking on a form of consideration of the matter, because they involve the Chief Justice or the authorised judge assessing things like whether these arguments have been raised before, whether an application has been made under this part before, and whether there are special facts or special circumstances in subparagraph (b) that justify the taking of further action.

GAGELER J:   But that is without limiting the first sentence.

MS ORR:   That is so.  This is by no means an exhaustive list.  These are examples of scenarios.  But the fact that these examples have been chosen as examples of refusing to consider or, otherwise, deal with an application, is something that we say bears on the proper construction of 79(3).  Other matters that we say bear on whether this should be understood as dealing with the individual consent requirement are 78(2).

Section 78(2) makes clear that once an application is received – because the function here seems to us to be not only the considering of the application but the receipt of the application.  The Chief Justice cannot opt out of receiving these applications under this scheme.  Once an application is received, the registrar of the criminal division has to cause a copy of the application to be given to the Minister and that connects up with 79(5), which makes clear that the registrar of the criminal division has another function which is to report again to the Minister about any action taken by the Supreme Court under this section.

Importantly, that report has to include no action.  So, the Minister has to be told if the Chief Justice or authorised judge refused to consider or, otherwise, deal with an application.  So, there is a reporting to the Executive about the fact that the application has been received and there is then a reporting back to the Executive about what the Chief Justice or the authorised judge did or did not do with the application.  We raise those matters just a contextual matters that we think bear on how your Honours ought receive the submission from Mr Huynh that 79(3) is the answer to there being no potential breach of the individual consent requirement.

EDELMAN J:   But, even if it were not, one would, as a matter of construction, still then read it consistently with the State equivalent of 15A of the Acts Interpretation Act. 

MS ORR:   Yes, that is so, your Honour.  As Mr Wood points out – and as I am sure is evident – of course, this is not a limitation in relation to State offenders, only in relation to applications that are made by federal offenders.  This is all part of our submission about analysing the text of the State law before it can pass through the gateway of being picked up and applied under 68(1).  If, in its application to federal offenders, the individual consent requirement would be infringed because there is not sufficient protection in this State statutory scheme, our submission is that it would not be picked up and applied under 68(1).

The same matters that we rely on as being relevant to the question of whether the statute should be construed as protecting against infringement of the individual consent requirement are also relevant to the second limit that we raise – the State authorisation limit – which is, of course, about whether what is required of the Chief Justice and the authorised judge here is in the form of the imposition of an administrative duty or some form of power, and the same provisions that I have pointed to, we say, bear on the answer to that question.

GAGELER J:   How is it a duty?

MS ORR:   I cannot put the matter any higher, your Honour, than to say that those provisions that I have referred to which made clear that the Chief Justice has to receive the application, that there needs to be a report to the Executive about the receipt of the application, that there is some uncertainty about the scope of the refusal to consider provision in subsection (3), and the Executive is involved again through this reporting function to be told about what action was taken are matters that bear on whether you could construe these provisions as imposing a duty.  A duty, at least, to receive these applications, because at the point that I have made about this not being a Grollo‑style type of legislation which allows judges to opt out, not on an application by application basis, but opt out from dealing with and knowing anything about these types of applications.

Having made those submissions about our first issue, could I turn then to the second issue which involves section 4AAA of the Crimes Act (Cth).  The submission that we wish to make about that is that if either of the two identified limits on Commonwealth legislative power that I have been speaking of prevent Division 3 from being applicable under 68(1) and therefore applied as Commonwealth law, that outcome cannot be avoided by section 4AAA of the Crimes Act.  That provision, if the Court would like to go to it, is set out on page 317 of the joint book of authorities, volume 2, tab 7.

Section 4AAA, as the Court would know, sets out a series of rules of construction that apply to certain Commonwealth laws, and those rules of construction apply only if the criteria in subsection (1) of 4AAA are satisfied.  There are two criteria in 4AAA(1):  the Commonwealth law must relate to “criminal matters” and it must confer:

a function or power that is neither judicial nor incidental to –

judicial power:

on one or more of the –

persons specified in 4AAA(1), who include State or Territory judges.  If those criteria are satisfied by the particular Commonwealth law, the rule in 4AAA(3) provides that the person on whom the function is conferred “need not accept” that function.

We accept that if Division 3 had been enacted as a Commonwealth law, 4AAA(3) would operate to ensure that it did not infringe either of the two constitutional limitations we have identified.  But we say it is not possible for the rule in 4AAA(3) to apply to Division 3, enacted as it is, as a State law, and that is because for 4AAA(3) to operate, a function has to be conferred under a law of the Commonwealth.

While Division 3 does confer a function, it cannot be applied as a Commonwealth law that confers that function unless it is applicable under 68(1).  The assessment, as we have said, of whether it is applicable under 68(1) depends upon whether the text of the law as a State law, if applied as a Commonwealth law, would infringe a constitutional limitation.  Necessarily, that analysis must take place before any operation of 4AAA because, if the State law would infringe a constitutional limitation, it will not be applicable and it cannot be translated into a Commonwealth law on which 4AAA can operate. 

In other words, there will never be a version of Division 3 that operates as Commonwealth law and there will never therefore be any conferral of a function under a Commonwealth law relating to criminal matters under 4AAA.  That is what we have referred to as the temporal issue in our submissions and we say it prevents 4AAA from operating in the way for which the Commonwealth contends.  We say that what the Commonwealth seeks to do is strain the operation of 4AAA to operate to alter the construction of a State law before section 68 operates to translate it into a Commonwealth law.

GAGELER J:   Why do you not start at the point where you have a Commonwealth law – that is, section 68 – which picks up, so far as is relevant, the text of the State law.  Why can section 4AAA(3) not operate at that point?

MS ORR:   Because you do not have a Commonwealth law, is our submission, your Honour, until the law passes through the gateway of 68(1).  Until it is picked up and applied, it remains a State law to which 4AAA can have no interaction.  So, what the Commonwealth seeks to do, we say, is to use 4AAA, which is a Commonwealth rule of construction, to alter the construction of a State law before it becomes a Commonwealth law.  And that is not something, we say, that 4AAA was either intended to do or, on its terms, does.

GAGELER J:   So it is really a submission about the proper construction of 4AAA, rather than about the operation of section 68.

MS ORR:   Yes, it is, your Honour.

GAGELER J:   I see.

GORDON J:   Is the other way of putting it to say that because 79, on its face, on your argument suffers from one or both of your constitutional limits ‑ ‑ ‑

MS ORR:   May, yes.

GORDON J:   May.

MS ORR:   Yes.

GORDON J:   That one then does not have a State law that is able to be picked up by section 68?

MS ORR:   Yes, we would accept that that is another way of looking at it.

GORDON J:   And, therefore, when one gets to 68, there is nothing to pick up because you have these potential two problems?

MS ORR:   Yes.

GORDON J:   That is the first ‑ ‑ ‑

MS ORR:   That is our first issue, and the second issue that we are dealing with is whether you can avoid that result by pointing to 4AAA ‑ ‑ ‑

GORDON J:   Yes, I see.

MS ORR:  ‑ ‑ ‑ and we say you cannot avoid that result.

EDELMAN J:   Nor could you, for the reasons you made earlier, avoid it by, say, the Interpretation Act saving‑type provisions, for the same reasons.  You have to got to start with the State Act in its application ‑ ‑ ‑

MS ORR:   Applying State construction principles – common law and State Interpretation Act principles.  You cannot bring your Commonwealth construction tool in 4AAA into that stage of the analysis.

GORDON J:   So, is your contention that the Commonwealth’s argument takes section 4AAA and applies it and alters the State law before it gets picked up by 68?

MS ORR:   It is an attempt, I think we would say, to alter the State law to make it amenable to being picked up and applied as a Commonwealth law, and that is more than 4AAA can do, we say.  I do not think we need to say that that is not something that a Commonwealth law could do, but we do say it is not something that 4AAA does.  If the Commonwealth had intended to do what appears to us to be a quite unusual thing, it could have made that clear in 4AAA.  It has made a number of things clear about the way 4AAA operates within the subsections of 4AAA.  It has made clear that it operates on laws that had been enacted prior to 4AAA in subsection (6).  It has made clear in subsection (7) that it applies to functions conferred under the Crimes Act itself.  So, it has thought about how it wants 4AAA to operate and where it wants it to reach.

GORDON J:   Can I ask a really dumb question?  Does that mean that under a law of the Commonwealth in the opening words of section 4AAA(1), you read that, or construe it, by reference to the fact that the law has already been picked up and been through your gateway?

MS ORR:   Yes, that is right.

GORDON J:   That it, it has overcome both verdicts that you have identified.

MS ORR:   That is right.  That is exactly right, your Honour.  But we anticipate from the Commonwealth submissions that they seek to bring 4AAA earlier into the picture to fix the constitutional limitation problems and allow the Act to be picked up and applied as State law.  And that is what we object to.  We say that that is not work that 4AAA can do.  And we say, for those reasons, that Justice Basten was right below at paragraph 119 of the appeal book to express doubts about whether 4AAA could have this function.

I was going to, if time permits, respond just briefly to three points that are made in the Commonwealth reply about the contention I just made about 4AAA, if that is convenient to the Court.

GAGELER J:   Yes.

MS ORR:   So, the Commonwealth reply – and I think Mr Huynh’s submissions, to some extent – advance three points that, they say, stand in the way of our construction of 4AAA.  The first point is that they seek to make something of the analytical distinction between whether the function is conferred by 68(1) itself or whether the function is conferred by Division 3 once you go through the 68(1) picking‑up process.

Our primary response to that submission is that nothing turns on which of those ways you look at which law confers the function, and I will explain why that is so, but we also say that the better view is that it is Division 3 of the State Act as picked up and applied by 68(1) that confers the function, not 68(1).  We say that that follows from the text of 68(1).  There is nothing in the text to suggest that what 68(1) purports to do when it is engaged is to take on the form of the State law that it has turned into a surrogate Commonwealth law.  It does not do that.  Instead, what it does is commands that State laws shall apply and be applied to persons charged with federal offences.

So, our position is that it is the State law that continues to be the law that confers the function even once it has passed through the gateway of 68(1).  Even if we are wrong about that and you could view the function as being conferred by 68(1) instead of Division 3, we say nothing turns on that because the identification of the relevant Commonwealth law conferring the function is not the critical question.  The critical question is whether there is a Commonwealth law – any Commonwealth law – that confers a function.  For the reasons that I have explained, unless Division 3 is picked up – unless it is applicable under 68(1) – there will be no Commonwealth law conferring any function to which 4AAA can attach.

The second point that the Commonwealth makes is that our submissions about 4AAA undermine its purpose.  We do not accept that.  It can be accepted that 4AAA was – to use the language of the Commonwealth in its reply – intended to secure the constitutional validity of certain Commonwealth laws insofar as it makes clear that where such laws confer a function or power on a judicial officer, that function or power is to be understood as having been conferred on a personal and voluntary basis.

Our construction of 4AAA does not undermine that purpose.  Section 4AAA still operates to secure the constitutional validity of those Commonwealth laws – those laws being laws enacted by the Commonwealth Parliament – and it does so by applying its special Commonwealth rule of statutory construction to those Commonwealth laws, therefore ensuring they do not infringe the limit in Grollo.  Our construction just keeps out of the field of operation of 4AAA State laws; State laws that are to be picked up and applied under 68.  There is nothing to suggest, as I have already said, I think, in the text of 4AAA, that it was ever intended to interact with State laws prior to those State laws becoming Commonwealth laws. 

The final point that the Commonwealth makes against us is to suggest that our construction of 4AAA is inconsistent with the outcome in O’Donoghue v Ireland.  I will not take the Court to O’Donoghue, but it is at volume 4, tab 23.  We reject that submission.  O’Donoghue, as the Court is aware, concerns section 19 of the Extradition Act; a law enacted by the Commonwealth Parliament.  Section 4AAA(3), as a Commonwealth rule of construction, has, since its enactment, operated to inform the construction of that provision.

There is no temporal issue that arises there in its application to the Extradition Act.  Being enactments of the same legislature, the Crimes Act and the Extradition Act have operated simultaneously and in conjunction with each other ever since 4AAA was enacted.  In that sense, there is no difference between the way in which 4AAA operates, as a rule of construction, and the way in which other statutory construction principles in the Acts Interpretation Act operate to inform the construction of Commonwealth laws.

In contrast, Division 3 is a New South Wales statute.  Its construction is governed by the Interpretation Act (NSW) and common law principles of statutory construction.  It is the text of that Act, construed by reference to those principles of interpretation that is to be assessed to

determine whether it would infringe a constitutional limitation and therefore is incapable of being picked up and applied as a Commonwealth law under 68(1).

Those are our submissions, if the Court pleases.

GAGELER J:   Thank you, Ms Solicitor.  Before you address in reply, Mr Solicitor for the Commonwealth, I need to ask Mr Hill whether he has any submissions in response to the submissions of the intervener.

MR HILL:   No, your Honour.  We saw our role as a contradictor on that issue.  There seems to be ample contradiction.  If it please the Court.

GAGELER J:   Very well.  Thank you.  Mr Solicitor, I should make it clear that the Court does not require submissions on the question of persona designata.

MR DONAGHUE:   Thank you, your Honour.  Your Honours, in reply, I propose to start with some remarks about Mallard; turn to our primary argument, which is the argument I have identified in chief as a narrow argument focussing on 79(1)(b) and section 86, and that is going to be my principal focus; then I will pick up some miscellaneous points at the end, including briefly responding to Victoria.

We have given your Honours two cases, one of them is Mallard (2005) 224 CLR 125. Could I ask your Honours to turn to that. I believe we have given it to you. Yes, we have. Can I ask your Honours to go to page 127, at the start of the joint judgment of four members of the Court. In paragraph 2, you can see the legislation that the Court was there concerned with, which was the Sentencing Act of Western Australia.

Mallard of course, is a purely State case, so there is no Judiciary Act issue floating around in Mallard; it is just about the construction of these review‑type powers. Without focussing on them, you will see that in paragraph 2, the extract from the statute starts with “Part 19 – Royal Prerogative of Mercy”, and there are a few sections about that. There was an option under the State Act that involved a purely executive exercise of prerogative power. That was there. But then you reach over the page – still in paragraph 2 – section 140, which creates a different option of dealing with a petition seeking the exercise of the royal prerogative; a discretionary power.

So, you could still deal with the application on its terms, as an application for the exercise of the prerogative as a matter of executive power, but there is a choice that is able to be made in terms by the Attorney‑General – which is obviously in a Western Australian Act statute the Western Australian Attorney‑General – to refer the matter to the Court of Criminal Appeal for the whole case to be heard and determined as if it were an appeal – same language as your Honours have seen in the familiar provision that is the before the Court now, as if on appeal.

Admittedly, it is a different structure, but it is nevertheless a State provision that contains the two same basic pathways:  executive power under, here, Division 4, or a referral for the court to decide as if on appeal under Division 5.  Your Honours see in paragraph 4 the history recounted of provisions for referral to the Court.  It is linked to:

public adverse reaction to excessive imposition of capital punishment –

Then, in the last two lines on that page:

appeals for pardons to the Crown tended to be made in cases of asserted miscarriages of justice, despite the anomaly to which a successful petition might give rise, that a person who has in fact come to be considered to have been wrongly convicted or innocent, is pardoned, and not acquitted of the crime.

In other words, it recognises that a consequence of the exercise of prerogative of mercy is not to quash the conviction.  The conviction remains.  The difference in the judicial procedure is to deal with that identified historical anomaly.  You see the Court goes on in paragraph 6 to say:

The significance of this history for present purposes, is that the exercise for which s 140(1)(a) of the Act provides is effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative –

The Court is not saying that this is some sort of prerogative procedure that is being exercised by the Court.  It is saying that in addition to that option, there is a judicial option that overcomes the anomaly of leaving the conviction in place, and provides a different mechanism.  That mechanism, as you see when you immediately go on to paragraph 7, is the criminal appeal mechanism.  What is set out in paragraph 7 is a common form criminal appeal provision, including at the end of it the proviso.

EDELMAN J:   That may be right, but that has to be qualified by the fact that in light of what it is doing it is not a standard criminal appeal‑type exercise of judicial power.  It is a criminal appeal exercise of judicial power that is informed by its nature as a substitute for the prerogative and so it proceeds in a manner that is so informed.

MR DONAGHUE:   Certainly in respect of the evidence aspects of it, which is what Mallard was concerned with, yes.  So their Honours go on to explain in paragraph 10, which I am about to take your Honours to – or if you could turn to paragraph 10 – in the words of “the whole case”, when you refer to “the whole case”, had that consequence that your Honour Justice Edelman puts to me.  So, that is all of the evidence, whether it be new evidence or fresh evidence or previously adduced, you do not worry about those kinds of things.

What the Court then explains at the end of paragraph 10 is that the significance of the words “as if it were an appeal”, which their Honours mention at the start of the sentence and they say they will – subject to what appears later, and what appears later is the second half of this paragraph – the:

effect of the words “as if it were an appeal” are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal . . . and perhaps most relevantly, to –

focus the Court on the proviso.  So it is saying what you are doing has to be a judicial‑type thing.  The end result of this appeal, this judicial process, is orders of a court following judicial procedures, including looking at what you would look at on a criminal appeal – a proviso‑type related question.  So, it is, in our respectful submission, just not correct to treat Mallard as suggesting that this judicial pathway is not a judicial pathway.  It does involve the exercise of judicial power, and that is ‑ ‑ ‑

GORDON J:   I thought the proposition put against you was not that it was not a judicial pathway but it was a particular kind of judicial pathway.  In other words, as Justice Edelman put to you, it has its own character.

MR DONAGHUE:   But that, in my submission, does not present any impediment to the argument that is being advanced, which is that, in the Division 5 context, a referral to the Court is a referral that involves an exercise of judicial power capable of being picked up by section 68(2) and exercised in relation to a Commonwealth offence.  It is a judicial process.  The amici does not dispute that, and they are right not to do so.

As Mr Hill pointed out, Mallard itself could not have come to this Court on appeal; if the referral that had been made to the Court of Criminal Appeal in that case was not a judicial proceeding, an appeal would not have lain to the High Court.  So, the starting point, in our submission, must be that the section 86 procedure is a judicial procedure.  That is all I wish to say about Mallard.

Can I ask your Honours to recall what, we submit, was a critical series of exchanges in the middle of the afternoon yesterday.  Unfortunately, the transcript is not available yet.  But I am asking your Honours to cast your minds back to a series of questions that started with Justice Steward and then progressed to Justice Gageler and then progressed to Justice Jagot.  Justice Steward, as I recall, asked Mr Hill, did he accept that section 68(1) could pick up 79(1)(b) and 86, and he said, yes.

Your Honour Justice Gageler then said, and is that on the basis that – and there were two parts to it – 68(2) confers as federal jurisdiction under 77(xxx) of the Constitution the like jurisdiction to that conferred by section 86, which is a law with respect to the hearing and determination of appeals, and that 68(1)(d) then picks up the gateway, 79(1)(b), as a law respecting the procedure for the hearing and determination of an appeal.  There was some exchange about the detail of that but, at the end of that, Mr Hill said, yes, in respect of that combination.

That then caused your Honour, Justice Jagot, to say, that just means it collapses to the severance point and Mr Hill took issue with “collapse” but did not take issue with the basic point that, ultimately, what happens is that that aspect of the argument – the aspect of the response to the narrow‑form submission that the Commonwealth puts – collapses, or reduces, or is refined to just the severance the question.  There is no problem asserted about the inter‑relationship between the Judiciary Act, section 68, and those two provisions that I have mentioned.

That is not said to be a difficulty.  They interact in the way that your Honour Justice Gageler put to Mr Hill, which he accepted, and that also accords with the submission I gave in answer to your Honour Justice Gleeson yesterday.  We both say that is how these provisions – that subset 79(1)(b) and 86 – interact with the Judiciary Act.  So, the only question that your Honours are left with is the severance question.  That is the question that, in our oral outline, in paragraph 5 ‑ ‑ ‑

EDELMAN J:   So, that is the only question on, if one puts to one side the standing alone argument and one puts to one side, also, the question of how the Division 2 would operate.

MR DONAGHUE:   The standing alone argument, I think, is the severance – or that is what I am calling the severance question, unless I am misunderstanding ‑ ‑ ‑

EDELMAN J:   Operating of its own force.

MR DONAGHUE:   Sorry, yes.  On the narrowest version of my argument, I am putting to one side “operates of its own force” and I am putting to one side Division 4.

I am not conceding Division 4 does not apply, but I am just saying your Honours do not decide that.  So, on the narrowest argument, you just need to decide severance.  I am not, however, putting aside Division 2, your Honour, because one – and Mr Hill mentioned this right at the end of his oral submissions.  We focus in this appeal on 79(1)(b) because 79(1) is the section that Justice Garling was directing his attention to.  That is what I called in opening one of the two entry points.  The other entry point is in Division 2, where you see section 77; and it is relevantly the same, 77(1)(b).

GORDON J:   This is the conversation or discussion I had with you yesterday about the connection between 77 and 79.

MR DONAGHUE:   But, in my submission, if you apply under 77(1)(b) to the Attorney‑General, who has the power to refer the whole case to the Court of Appeal to be dealt with as on an appeal, that application takes you, if it is successful, to section 86 in exactly the same way as an application under 79(1)(b) takes you to section 86.  Both of them are exercised as executive power; administrative decisions that have a consequence of engaging the 86 appeal.

So, whatever your Honours say about how the Judiciary Act interacts with 79(1)(b), it will necessarily apply to the 77(1)(b) equivalent.  That is significant because it is the 77(1)(b) equivalent that you see throughout the country and it is exercised all the time, as I said in answer to your Honour Justice Gordon yesterday.

So, we are here concerned with a question of quite considerable public importance where the amici and the Commonwealth both say there is no problem insofar as the Judiciary Act interacting with these provisions.  All I need to do – and I accept there is something wrapped up in this – but I need to persuade your Honours that 77(1)(b) and 79(1)(b) can operate with their meaning unchanged independently of the other parts of the scheme that I am not indicting your Honours to decide.

GORDON J:   There are two questions, are there not?  There is a question of translation, and then there is a question of meaning of operation on their own.

MR DONAGHUE:   Meaning of operation on their own?

GORDON J:   Without causing effect to the other parts.

MR DONAGHUE:   Yes.  Without it changing the meaning of the other parts.  Indeed.  There are a number of authorities that bear on this question – and we turned them up in the context of the translation question your Honour Justice Gageler asked me yesterday, but they are useful more generally.  I will take your Honours to two intermediate court authorities on this point.  The first is Yasmin v Attorney‑General (2015) 236 FCR 169, which is the other of the two cases we have handed up; a joint judgment of Justices Kenny, Robertson and Mortimer in the Full Federal Court.

This case, like Mallard, concerned section 140 of the Sentencing Act, which their Honours quote in paragraph 4 of the reasons.  Your Honours will recall that it refers to the Attorney General – the Western Australian Attorney‑General.  The court itself – the Full Court, that is – as you see in paragraph 3, raised a preliminary question of jurisdiction on the appeal in the course of case management as to whether 140 was picked up by section 68, so as to apply 140 as a Commonwealth law.  So, their Honours were on to this possible question, they raised, they sought submissions on it.

They set out in paragraph 6 the two subsections, 68(1) and 68(2).  They set out in paragraph 7 the definition of “appeal” and refer, as I referred yesterday, to Chief Justice Gleeson’s judgment in R v Gee about “no reason why” that should not be read with full generality, and referenced:

the general policy –

of the provision in:

placing the administration of the criminal law of the Commonwealth in each State upon the same footing –

They then, in paragraph 10, expressed the opinion – not the opinion.  Hold, rather, in our opinion, at the level of determining which law applies, 68(1).  Your Honours yesterday asked me were there any cases about 68(1) rather than 68(2).  Yasmin is such a case.

Section 68(1) “has work to do”.  It is not so much a matter of whether the court has jurisdiction, but a question of whether 140, as picked up by 68, confers the power on the Commonwealth Attorney‑General, because that what had happened in this case.  Actually, it had not happened.  What had happened was an exercise of power had been sought from the Commonwealth Attorney‑General in this case.  The case is actually about whether the Commonwealth Attorney‑General had a duty to exercise the power or not. It recognises, in the second half of paragraph 10, that:

the petition may never reach the Court of Appeal.

Which I think was a question your Honour Justice Gleeson raised yesterday about the possibility that one might never get to the judicial phase.  But their Honours contemplate, and indeed hold in the next paragraph, that section 68(1) will pick up that provision, even if that be the end result.  So, you then see in paragraph 11, which is the key paragraph, three relevant observations.  First:

s 140 of the Sentencing Act is a law of the State respecting the procedure for the hearing and determination of appeals arising out of the trial or conviction –

So, that is the language of 68(1):

We see no difficulty with s 140 being taken to be part of the available procedure for the hearing and determination of appeals arising out of any trial or conviction . . . Even if a petition is not successful it may be seen as . . . the procedure for the hearing and determination of appeals as it seeks to set in train, by a referral, the case to be heard and determined as if it were an appeal –

Then finally, in the balance of the paragraph, their Honours conclude that there is no reason to construe “proceedings” as:

to exclude a petition “for the exercise of the Royal Prerogative –

insofar as it involves the referral to the Court of Appeal.  They express agreement in paragraph 12 with an early decision of the Queensland Court of Appeal to the same effect in Martens (No 2).

I seek to take two points away from Yasmin.  First, it is clearly a case, in our submission, of picking up under section 68 an administrative power.  There is no suggestion that the gateway function of the Attorney‑General in making the referral under 140 is any different from the gateway function here.  So, it is a case where section 68(1) – (1)(d) in particular – has been held to pick up power of the relevantly same kind as your Honours are concerned with.  Second, it is clearly a case of translation of meaning, because their Honours, in terms, said the power could be – in paragraph 10:

confers on the Commonwealth Attorney‑General –

It is a translation of meaning of the same kind as one sees in the Judiciary Act in the 1979‑type context, and in Rohde – that I took your Honours to yesterday – changing the officer of the State to the officer of the Commonwealth, with the same responsibilities.  That, we submit, makes sense because it would not make a lot of sense to allow the Western Australia Attorney to refer cases for Commonwealth criminal convictions.

To go back to your Honour Justice Gageler’s example about police – State police officers arresting for State offences – we would accept that 68(1) can make the State police officer able to arrest for Commonwealth offences as well, but it can also enable a Commonwealth officer to arrest for a Commonwealth offence in the same circumstances, if that is all you are changing.  You are changing Commonwealth officer, Commonwealth offence; section 68 can have that operation.  That is why AFP officers can apply for warrants to arrest under State laws – as they do – because it has that translating effect.

There are other cases – Yasmin is another example – the next one I am going to come to – but there are cases about State sentencing laws, where the State law is translated to apply it to the Commonwealth regime.  I will give your Honours one – I will not take you to it, but there is the case called Ilic v The Queen (2020) 103 NSWLR 430 at 29 to 32 – is a translation analysis in the sentencing context; there is translation analysis in the bail context. The leading case seems to be an unreported decision of Justice Smart in R v Rowell from 1986.

So, there is a variety of cases that recognise the possibilities of translation and indeed, I did not understand the amici to argue that translation was not possible.

GAGELER J:   Where do you stop the translation?  I mean, if you go to section 79 here and you read the Supreme Court as persona designata, why could it not be the Chief Justice of the Federal Court or a justice nominated by the Chief Justice of the Federal Court?

MR DONAGHUE:   Your Honour, there will, of course, be – so one is directed by section 68 to apply the State law so far as it is applicable, and that, in itself, in our submission, recognises that you – and this is a related point, but you might not be picking up the whole law because otherwise those words do not seem to do any work.  You would not change the meaning of the – ultimately, in our submission, it is a question of construction.  You have to work out, consistently with the policy of section 68, what you need to do in order to try to put the administration of the Commonwealth offence within a State on the same footing as the State officers.

So, in our submission, for example, one does not need – the reason I said yesterday you can pick up Division 4 on my alternative argument, just changing the Governor to the Governor‑General, is there is no reason to change the State Chief Justice, for example, to anyone else.  This is a regime that the State has created dealing with convictions in the State courts with inquiries by State judges appointed by the Chief Justice.  So that whole regime works fine as long as the end point of the regime is the person with authority to make the decision, the Commonwealth Governor‑General.

So, consistently with the policy of section 68, all you need to do is change that officer and nothing more, but I accept there might be difficult questions of construction sometimes, but the objective is as I have described it.

GAGELER J:   The reasoning in Jasmin – perhaps because the point was not taken by the parties but by the court – is perhaps a little cryptic. I am not at all suggesting it was wrong, but one explanation for it might be that reading section 140 of the Western Australian Act as containing conferral of jurisdiction, one reads section 68(2) consistently with Peel and Rohde as making that conferral of equivalent or like Commonwealth jurisdiction a conferral that is in respect of a proceeding commenced by the Attorney‑General of the Commonwealth.  That is effectively the way in which appeal provisions were read in Rohde and Peel.

MR DONAGHUE:   Because it is a double function provision, in effect.

GAGELER J:   Correct.  So you have the section 68(2) like jurisdiction effecting the translation in that case.  I do not know, but it is not obvious to me that section 68(1) is being invoked in that sort of general sense that you would have us treat it.

MR DONAGHUE:   All I can say to that, your Honour Justice Gageler, is that in paragraphs 10 and 11 you have references to section 68(1) in paragraph 10 twice, and one reference to section 68(2) right at the end.  But, in the context of the jurisdiction of the Court, you then have 68(1) again in 11.

I should perhaps note for the sake of completeness that there is a somewhat cryptic observation in paragraph 51, in a different context, where their Honours are talking about delegation and whether the attorney could delegate to anyone else.  They go to the Law Officers Act of the Commonwealth.  At paragraph 51, their Honours refer to section 68(2) rather than section 68(1), and it is not easy to understand how that is to be reconciled with the 68(1) references earlier, so I cannot really help your Honours on that.

GAGELER J:   This becomes a problem only because you want us to focus on section 77(1)(b), where you also want us to translate Attorney‑General from State Attorney‑General to Commonwealth Attorney‑General, where ‑ ‑ ‑

MR DONAGHUE:   I very much do want you to translate it in that way, and I want that because without that, we have a gaping hole in the administration of justice in relation to Commonwealth criminal offences.  To give your Honours an example I am about to come to ‑ ‑ ‑

GAGELER J:   This case though, Mr Solicitor ‑ ‑ ‑

MR DONAGHUE:   In my submission there will be no basis to distinguish what your Honours say about 79(1)(b) from 77(1)(b).  So, for example, there is a recent decision of the Victorian Court of Appeal – and it does not look at the Judiciary Act issues.  It is a case called Visser v Commonwealth DPP [2020] VSCA 327. There is a Victorian provision in the same form as this. It refers to the Attorney‑General – the Victorian Attorney‑General, one would read it as.

It concerns Lawyer X‑related matters, and the possibility of miscarriages of justice in relation to Lawyer X‑related matters.  Many of those matters are Commonwealth matters as well as many State matters; they are just interrelated to each other, so the Lawyer X issue arises in both contexts.  The Victorian Court of Appeal had referred to it under the State provision by the Commonwealth Attorney‑General a review to be conducted as if on appeal.  If section 68 does not pick up that kind of referral function, then there is no way to address the miscarriages of justice arising from a Lawyer X ‑ ‑ ‑

GLEESON J:  I am sorry, you finish.

MR DONAGHUE:   You can fix the miscarriages of justice for the State offences, but you cannot fix it for the Commonwealth offences, because ‑ ‑ ‑

GORDON J:   But the problem on your construction, if you accept – is it right that if I accepted your narrow construction, I would end up with a disconformity between State and federal offences anyway for a person charged with both?  The disconformity would be, if I had been convicted of a State offence, I would have the benefit of both pathways; if I am Commonwealth, I have one pathway; and if I have State and Commonwealth convictions, I am, in effect, forced to have one pathway.  So, there is a disconformity, on any view, here.  The question is, which is the least disconformity.

MR DONAGHUE:   But the answer to that question, in my submission, is clear because your Honour put this to some of my friends yesterday, that if – you referred to my submissions about the purpose of section 68 being to seek to avoid disconformity and said, there is disconformity if you only get part rather than the whole.  But if that is a line of reasoning that leads to the conclusion that instead of getting part, you get nothing ‑ ‑ ‑

GORDON J:   No, I think the question is, why does not the Commonwealth have its own system which it could enact which would, in effect – and this is the point, really, if you strip‑back, I think, the Victorian submissions, is that there are mechanisms available for the Commonwealth to enact a system which would give parity – to use your language – between Commonwealth and State offenders.

MR DONAGHUE:   True, but your Honour, to say that the Commonwealth can enact its own system is to say there can be parallel systems of justice, and in Williams – because that is what it would be.  The Commonwealth system would be a system for Commonwealth offences that would sit beside the State, and in the case of a joint trial – a Lawyer X trial for Commonwealth – you might have to refer the same criminal proceeding in the Victorian Supreme Court, partly to the Commonwealth and partly to the State, because you cannot deal with them under the one procedure.  The point – the purpose of section 68 is to stop the need to require the Commonwealth to enact the parallel criminal regime and that would be – so, I am not saying it is impossible as a matter of power, but it is not the policy that underlines section 68(2).

GLEESON J:   Mr Donaghue, I had a question about section 77(4).  That imposes a duty upon the Attorney‑General which – well, my question is, do you say that that provision would be translated in some way to apply to the Commonwealth Attorney‑General?  Does that not rather make the point that section 77 is really directed only to the State Attorney‑General?

MR DONAGHUE:   Your Honour, on this limb of my argument, I am not suggesting these provisions are applying of their own force.  I am suggesting that they are applying by reason of pick‑up under section 68.

GLEESON J:   But how would that work?

MR DONAGHUE:   In my submission, as Jasmin and the case I am about to go to – sorry, as Yasmin and the case I am about to go to, which is Jasmin, both suggest that the Commonwealth Attorney‑General can be the relevant Attorney‑General.  In my submission, you could similarly read the Attorney‑General in the same consistently in the federal law that has picked up the provision.  That creates no particular difficulty because justice has been administered in this case by a State board exercising federal jurisdiction.  There is no reason that that Court should not be told that something went wrong in the way that that State could.

EDELMAN J:   But it does shade very, very quickly into your Division 4 argument because, under subsection (4), “Governor” would then be read as “Governor‑General”, would it not?

MR DONAGHUE:   Sorry, your Honour, I was reading this:

The Attorney‑General must cause a report to be given to the registrar . . . as to any action taken –

I was reading it as, by the Attorney‑General under this section.  If the Governor is taking – the reference to the “Governor” in subsection (4) is, in my submission, to the 77(1)(a) pathway.  So, you have got under 77, both a Governor taking action and an Attorney taking action.  In my submission, 77(4) is using both terms.  Action taken by the Governor is (1)(a), or by the Attorney‑General is (1)(b), in my submission.

GORDON J:   But the Governor in (1)(a), on your argument, is the Governor‑General.

MR DONAGHUE:   That would shade into my Division 4 argument.  At the moment, I am just talking about Division (1)(b) – sorry, about 77(1)(b) or 79(1)(b) and the judicial pathway.  I am not seeking to avoid anything there.  I put some submissions on Division 4 yesterday and I maintain those submissions.  But a lot of the argument your Honours have heard in this Court – a lot of the argument you heard this morning – is about problems with Division 4.  A lot of the arguments about power or suggesting there is some State – there is some problem with States interfering with federal proceedings – if the Commonwealth thought that was a problem, your Honours, you can rest assured I would be telling you that that was a problem. 

What is happening here is not that.  What is involved at the point where you get to interference – possible interference with federal convictions – you need the Judiciary Act, whether under Division 4 or Division 5.  My point, on the narrow part of the case, is that all of the interesting complexities of that go nowhere in terms of the resolution of the appeal, because the appeal should be allowed to accept my narrow argument.  And, in my submission, the only thing against the narrow argument is the severance point, and the severance point is weak.

GAGELER J:   Mr Solicitor, what has confused me is your narrow argument has become expanded by taking us to 77(1)(b); the forensic purpose of which, I must say, escapes me.

MR DONAGHUE:   Your Honour, my narrow argument, for the purposes of this appeal, needs to focus only on 79(1)(b), but all I was indicating to your Honours is that I see no relevant basis to distinguish the administrative function under 77(1)(b).  I mention this only because Mr Hill said to you, do not worry about all these cases where exactly the Commonwealth Attorney‑General refers things to State Courts of Appeal, they have got nothing to do with it.  In my submission, you should worry about those cases, because what your Honours say in this appeal could easily – likely would – effectively overrule those decisions.

EDELMAN J:   There may be an aspect in which 77(1)(b) does become part of your argument, even on the narrow basis.  That may be the question of how severance is affected.  In other words, what it really means to say that one part of the Act can be treated independently of the rest of the Act.  Could 79(1)(b) be treated independently in the State scheme of section 77(1)(b) which seems to have a coordinate operation?

MR DONAGHUE:   In my submission, it has a potential parallel operation, depending on the entry point that is chosen.  I do not wish to unnecessarily complicate things.  Justice Gleeson’s question helpfully threw up an arguable point of distinction, I suppose, in that there is no equivalent to 77(4) in 70(9), so perhaps one might be able to try to fashion some argument that there was a distinction between Divisions 2 or 3.

In my submission, it cannot be right that if the State had put 79(1)(b) as the opening section of Division 5 – if it just relocated it, that you could pick up Division 5, but that because it has drafted it structurally by having (a) and (b) in section 79 you cannot pick it up.  That would be to elevate form totally over substance, because as the legislative history that Mr Hill took you through demonstrates, these were different powers with different origins, and they have been grouped together in 79(1).  But they are still different powers with different origins, and where it sits cannot answer these questions of substance about whether these procedures are available with respect to Commonwealth offences.

I am conscious of the time, your Honours.  Can I ask you to briefly note Jasmin v The Queen (2017) 51 WAR 505. It is in volume 5, tab 40. This is a decision of the Western Australian Full Court on a referral, again under section 140 of the Sentencing Act, again by the Commonwealth Attorney‑General.  Without translation, this case is wrong.  Without pick‑up under the Judiciary Act and translation, this case is wrong. At paragraph 228 ‑ ‑ ‑

GORDON J:   What was the first paragraph reference, sorry, Mr Solicitor?

MR DONAGHUE:   Sorry, I had not given your Honours one yet.

GORDON J:   Thank you.

MR DONAGHUE:   At 228 in the joint judgment of Justices Mazza and Mitchell.  At 288, which is at the bottom of page 549, under the heading, “Authority of the Commonwealth Attorney General to refer”:

We agree with the Full Federal Court in Yasmin, and Buss P in the present case, that s 68(1)(d) of the Judiciary Act operates to apply s 140 of the Sentencing Act to the appellant.

So, again, 68(1)(d) and the endorsement of the Full Court of Western Australia – Supreme Court with the Full Federal Court.  The President – and I will not take you to it – at 69 through to 70, reasons in much more detail on this point and he deals with matters now familiar to your Honours through the hearing:  the breadth of the appeal, the application by analogy to change officers, uniformity, the policy of uniformity with Western Australian law, and consistency of the judgment, in this case, with Martens (No 2) and Yasmin.

The consequence of all of that, your Honours, in our submission, is that if you cannot pick up the referral to the Court of Appeal part of a State regime without the petition part, then the Full Federal Court in Yasmin are wrong, the Western Australian Full Court in Jasmin are wrong, the New South Wales Court of Appeal in Lodhi are wrong at 52 to 53 that I took your Honours to yesterday, the majority of the Queensland Full Court in Martens (No 2) are wrong, and the Victorian Supreme Court in the Lawyer X case I just mentioned had no power to do what they did.  So, the Victorian Supreme Court were wrong.  The line of New South Wales authorities since Pearson in New South Wales, which we think has about 12 cases in it concerning Commonwealth offences, are also wrong. 

Your Honours are being asked to disturb quite a considerable body of authority and practice, and why, in our submission, there is no reason your Honours should construe the Judiciary Act as requiring you to accept that submission because we know from section 31 of the Interpretation Act (NSW) that as a matter of State law the section is divisible – section 79 is divisible.  There is no reason to treat the Commonwealth Parliament in enacting section 68 as having had any different intention.  Indeed, all the parties agree that section 68 works to pick up a provision as long as it does not change its meaning.   Here, the question reduces, in my submission, except in the policy of section 68 to, so far as applicable, make State laws concerning criminal procedure – or the administration of justice in the State is actually the phrase. 

So, I divert somewhat but, your Honours will recall this morning, Mr Hill said the policy of section 68 is actually about courts – the administration of justice in courts.  And he took your Honours to a passage from Justice Dixon in Blacklock that did say something to that effect.  Justice Dixon in ‑ ‑ ‑

GAGELER J:   Mason, I think.

MR DONAGHUE:   Sorry, Mason in Blacklock said that.  Justice Dixon in Williams (No. 2) in the passage that is quoted immediately after the Justice Mason passage, and in all the judgments in Gee did not say courts; he said the administration of justice in a State.  That is the policy that was identified in Williams and endorsed regularly since then.

In our submission, when one says to put the administration of justice in a State for Commonwealth offences and State offences on the same footing, if you are asking the question did the Commonwealth Parliament intend that there be a mechanism – referral to a court – to address miscarriages of justice with Commonwealth offences or no mechanism to address miscarriages of justice with Commonwealth offences, the answer to that can only be that one of the mechanisms, if it is properly available in its terms, should be available, even if the other one is not.  Now, I am not conceding the other one is not, but even if the other one is not, there is no basis to treat section 68 consistently with its purpose as not picking up the one that is available, and that is enough, in my submission, for your Honours to resolve the appeal.

Noting the time, your Honours, can I be very brief on the remaining points.  I do not want your Honours to go back to it – I took your Honours through Lodhi at the end of my submissions yesterday.  If your Honours, in your own time, return to paragraphs 52, 53 and 61, you will see that the reasoning in those paragraphs has nothing to do with the jury point – the Jury Act inquiry.  That reasoning is about Part 7 of the Appeal and Review Act, including Division 3.  That is specifically what their Honours were interpreting as a step in their reasoning, and no answer has been given to that reasoning. 

There was, at the start of my friend’s submissions this morning, a reference to Rizeq and a submission about power.  This topic casts me in the unfamiliar role of defender of State legislative power because the Rizeq implication is an implication that limits State legislative power.  The proposition is that State Parliaments have no power to confer an administrative function on their officers that engages the exercise of federal jurisdiction, which might be engaged in a State court for reasons that have – all of the reasons that your Honours are familiar with:  diversity reasons, or there is a Commonwealth law in play, or all sorts of other matters of that kind. 

Now, maybe, one will be able to overcome that absence of State power by section 68, but it is a large proposition to say that Rizeq and implication about filling gaps in State power to regulate the exercise of federal jurisdiction stops States conferring administrative powers on officers outside of the State.

Your Honours do not have all of the State Attorney‑Generals to let you know what they think of that extension of the implication, but it is not a small proposition, in my submission, that Rizeq extends so far.  That argument I think only applies on the direct application limb of our case so, in my submission, you should not get there, and you should not accept the argument in any event for the reasons I have given, but it is a large claim.

The legislative history I have already noted. I do not disagree with what our friends put here on this about that, but, in our submission, it rather highlights the unlikelihood of the proposition that 79(1) is a single power.  It is instead a drafting arrangement of what are historically discrete and different powers.  And it might be of interest to your Honours to note that post‑Pearson, the New South Wales Parliament has re‑enacted the provisions that your Honours are now looking at.  Part 7 is a post‑Pearson enactment.  And in that case, of course, the New South Wales Court had held that 79(1)(b) did apply, and 79(1)(a) did not.

So, if, as the amici say, the question is one of State legislative intent, the State Parliament knew at the time it enacted the provisions that your Honours are looking at now, that the way the State Court was applying that was to say the judicial pathway part – the 79(1)(b) to section 86 – can be picked up and the rest of it cannot; and it re‑enacted the provision in the same terms.

Even framing the inquiry through the lens that the amici have invited your Honours to adopt, you should accept that these provisions are severable and that, on the narrow case as I put it, Justice Garling had power at least to refer to the Court of Appeal for hearing as if on an appeal under section 86, or to decide not to – and that is what he did.

In our submission, he had authority to make that decision and the declaration that Part 7, Division 3 has no application to Commonwealth offences is wrong, and that that is enough to allow the appeal, so that the interesting question about Division 4 can await another day, bearing in mind that that pathway is the rarely‑used pathway.  What matters in practice is the pathway that would be upheld by the narrow submission that I have advanced.  Your Honours, unless there are any questions, those are ‑ ‑ ‑

EDELMAN J:   Did you want to say anything about Victoria’s submission of the construction of section 79(3)?

MR DONAGHUE:   Sorry, I forgot.  Thank you, your Honour, I appreciate the reminder.

We, of course, do not contest the proposition that a Commonwealth law must comply with constitutional limits.  When section 68 picks up State laws, they operate as Commonwealth laws, they must comply with constitutional limits.  The particular limit that seems to be most strongly asserted as relevant against us is the persona designata limit requiring consent of the relevant officer.

That issue and the 4AAA question would arise only if, as a matter of the construction of the State law – forgetting about pick‑up for the moment.  When the Chief Justice of New South Wales asked the Justice of the Supreme Court – or proposes to appoint a person on the Supreme Court as persona designata to exercise the Division 3 function, can that judge say no?  That is the question of the construction of the State law.  Victoria does not seek to answer that question.  It does not address the question whether, as a matter of implication of the State law, the judge is obliged to accept the power or not, and nobody else does either.  Your Honours actually do not have a submission before you that there is a duty upon the judge appointed under the State Act to receive the function if the Chief Justice asks them to.

Unless your Honours found that there was that duty, then that is the end of the point.  You never get to 4AAA, because you do not need 4AAA to remove a duty that does not exist as a matter of a State law then picked up under the – so, Victoria expressly note the possibility that there is an argument on this topic, and then say, we do not seek to be heard on the point.  They do that at paragraphs 20 to 21 in their written submissions.

In my submission, it is interesting, but your Honours do not get there because no one is actually saying that there is a problem.  If I am wrong about that, and your Honours do find that there – this is in the section 79(3) point, which the first respondent addresses, and I do not seek to add to what they said.  If that, too, is rejected, then we get to 4AAA, and in our submission – put shortly, given the time – 4AAA is, as our friends said, a rule of construction; a rule of construction of Commonwealth law.  It needs a law of the Commonwealth relating to criminal matters in subsection 1 in order to engage it.  But our friends accept, in footnote – Victoria accepts in footnote 28 of their submissions that section 68 of the Judiciary Act is a law of the Commonwealth relating to criminal matters.

The point distils to the proposition that one has to break into a sequence what is, in our submission, really a simultaneous process.  When section 68 seeks to give effect to a law of a State as a Commonwealth law, do you need to seek to give it that effect before section 4AAA operates, or

do you just do it all at once, bearing in mind that 4AAA is a rule of construction?  It is not a substantive rule that can operate later.  It is telling you how to construe a Commonwealth law.  What Commonwealth law?  The State law that has become a Commonwealth law.  How do you construe it?  Subject to a consent requirement.

It does not make sense, in our submission, to separate an interpretive rule from the content of the rule that is to be interpreted,  So, if your Honours get there – but you do not, for the reasons that I have identified – in our submission, that is the answer.

Your Honours, unless there are any further questions, those are our submissions.

GAGELER J:   Thank you, Mr Solicitor.  The Court will reserve its decision in this matter and will adjourn until 2.00 pm.

AT 12.47 PM THE MATTER WAS ADJOURNED