Attorney-General for the Commonwealth v Tse

The Attorney-General for the Commonwealth (the appellant) appealed to the High Court of Australia against a decision of the Federal Court of Australia concerning the interpretation of section 118 of the *Constitution*. The dispute centred on whether the appellant was entitled to recover from the respondent, Mr Tse, the costs incurred by the Commonwealth in prosecuting Mr Tse for offences under the *Crimes Act 1914* (Cth). The Federal Court had found in favour of Mr Tse, holding that the Commonwealth was not entitled to recover these costs.

The High Court was required to determine whether section 118 of the *Constitution*, which provides that "Full faith and credit shall be given, throughout the Commonwealth, to the public Acts, records, and judicial proceedings of every State," had any application to the recovery of costs in criminal proceedings instituted by the Commonwealth. Specifically, the court had to consider whether the Commonwealth could rely on the *Costs Act 1867* (NSW) or equivalent state legislation to recover its prosecution costs from a convicted defendant in federal criminal proceedings.

The High Court, by majority, held that section 118 of the *Constitution* did not extend to the recovery of costs in federal criminal proceedings. The majority reasoned that section 118 primarily concerned the recognition and enforcement of public Acts, records, and judicial proceedings of the States within the Commonwealth, and did not operate to confer upon the Commonwealth the power to recover costs in its own criminal prosecutions. The court distinguished between the operation of state laws in relation to state matters and their potential application to federal matters, concluding that the *Costs Act 1867* (NSW) did not apply to federal prosecutions.

The appeal was dismissed.