Huynh v Attorney General (NSW)

Case •

[2021] NSWCA 297

•

08 December 2021

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Huynh v Attorney General (NSW) [2021] NSWCA 297
Hearing dates: 19 August 2021
Date of orders: 8 December 2021
Decision date: 08 December 2021
Before: Bathurst CJ at [1];
Basten JA at [2];
Gleeson JA at [128];
Leeming JA at [129];
Payne JA at [251]
Decision:

(1) Declare that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW):

(a)   is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata;

(b)   is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court.

(2) Declare that the decision of Garling J purporting to determine an application lodged with the Supreme Court by Huy Huynh under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect.

(3)   Otherwise dismiss the summons.

Catchwords:

COURTS AND JUDGES – supervisory jurisdiction –

post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata

COURTS AND JUDGES – supervisory jurisdiction –

post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power

CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction

JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9

Constitution, ss 51(xxxix), 51(xxiv), 61, 71, 73, 75, 76, 77, 79, 80; Ch III

Crimes Act 1914 (Cth), ss 4AAA, 4AAB, 21D, 43; Pt 1B

Criminal Code 1995 (Cth), ss 11.5, 307.11

Judiciary Act 1903 (Cth), ss 2, 39, 39B, 68, 72, 78, 78B, 79

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), ss 4, 6

Civil Procedure Act 2005 (NSW), s 183

Courts Legislation Further Amendment Act 1998 (NSW), Sch 10[12]

Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 114; Pt 7, Divs 1, 2, 3, 4, 5

Crimes (Sentencing Procedure) Act 1999 (NSW), s 102

Crimes Act 1900 (NSW), ss 474E, 474D, 474H, 475; Pt 13A, Div 4

Criminal Appeal Act 1912 (NSW), ss 5, 5C, 5D, 26, 27; Pts 3, 4

Criminal Law Amendment Act of 1883 (46 Vic 17), ss 383, 384

Interpretation Act 1987 (NSW), ss 12, 15

Supreme Court Act 1970 (NSW), ss 17, 69, 101

Criminal Code (Qld), ss 1, 672A

Crimes Act 1958 (Vic), s 584

Sentencing Act 1995 (WA), s 140

s 73A of the Jury Act 1977 (NSW),

Service and Execution ofProcess Act 1901 (Cth), s 19

Cases Cited:

AB v Attorney General for New South Wales [2021] NSWSC 575

Aboud v R [2020] NSWSC 1648

Ammann v Wegener (1972) 129 CLR 415; [1972] HCA 58

Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048

Application by Boris Reznitsky pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2019] NSWSC 1600

Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623

Application by Brian Wayne Coles pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 797

Application by Jack Chik Chen pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1024

Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2019] NSWSC 1413

Application by Lucy Patricia Klewer pursuant to s 78 of the Crimes (Appeal and Review) Act 2001(NSW)1 [2021] NSWSC 1225

Application by Matias Eduardo Cicero Olivares pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 96

Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061

Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1364

Application by Peter James Holland pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 384

Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW); (No 3) [2021] NSWSC 263

Application by Sef Gonzales pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) (No 2) [2019] NSWSC 1412

Application by Yu Hai Li pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 544

Application of Doyle under s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1029

Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356

Application of James William Shepherd (13 September 1996)

Application of Marcus Uusimaki pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 1019

Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143

Aston v Irvine (1955) 92 CLR 353; [1955] HCA 53

Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180

Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39

BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; 94 ALJR 51

Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14

Brown v The Queen (1986) 160 CLR 171; [1986] HCA 11

Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15

Buttrose v Attorney General of New South Wales [2015] NSWCA 221; 324 ALR 562

Cheatle v The Queen (1993) 177 CLR 541; [1993] HCA 44

Chidiac, Neil – Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 157

Clark v Attorney General of New South Wales [2020] NSWCA 70

Commonwealth v Hospital Contribution Fund (1982) 159 CLR 49; [1982] HCA 13

Cranney v R; Huynh v R [2017] NSWCCA 234

Dacich v Director of Public Prosecutions [2020] NSWSC 1179

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43

Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246

DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242

Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28

Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211

Federal Council of the British Medical Association in Australia v The Commonwealth (1949) 79 CLR 201; [1949] HCA 44

Folbigg v Attorney General of New South Wales [2021] NSWCA 44

GAR – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 982

GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314

Garth v The Queen [2017] NSWDC 469; 30 DCLR (NSW) 298

GILLIES, Max Perry – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392

Grierson v The King (1938) 60 CLR 431; [1938] HCA 45

Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26

Henry White v The King (1906) 4 CLR 152; [1906] HCA 53

Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16

Holmes v Angwin (1906) 4 CLR 297; [1906] HCA 64

Holzinger v Attorney-General (Qld) [2020] QCA 165; 385 ALR 158

Hopkins v Governor-General of Australia [2013] NSWCA 365; 303 ALR 157

Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36

Huynh v The Queen [2019] HCASL 6

Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Lambert v Weichelt (1954) 28 ALJ 282

Lavender v Department of Industry (NSW) [2017] NSWDC 236; 25 DCLR (NSW) 389

Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development [2018] NSWCA 174; 359 ALR 96

Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; [1983] HCA 31

Lodhi v Attorney General of New South Wales [2013] NSWCA 433; 241 A Crim R 477

Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773

Maguire v Simpson (1977) 139 CLR 362; [1977] HCA 63

Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68

Martens v Commonwealth (2009) 174 FCR 114; [2009] FCA 207

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Medical Board of Victoria v Meyer (1937) 58 CLR 62; [1937] HCA 47

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31

Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441

North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41

Northern Territory of Australia v GPAO (1999) 196 CLR 553; [1999] HCA 8

NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48

Nudd v Minister for Home Affairs [2011] FCAFC 105; (2011) 122 ALD 529

O’Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14

Ozgen v R [2021] NSWCCA 252

Patsalis v Attorney-General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343

Pearce v Cocchiaro (1977) 137 CLR 600; [1977] HCA 31

Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59

Perrier v Kerr (unrep, Ryan J, FCA, 19 August 1997)

Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144; [1953] HCA 11.

R v Gunn (No 1) (1942) 43 SR (NSW) 23

R v Gunn (No 2) (1942) 43 SR (NSW) 27

R v Li [2020] NSWSC 59

R v Martens (No 1) [2010] 1 Qd R 564; [2009] QCA 139

R v Martens (No 2) [2011] 1 Qd R 575; [2009] QCA 351

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Rohde v Director of Public Prosecutions (1986) 161 CLR 119; [1986] HCA 50

Seaegg v The King (1932) 48 CLR 251 at 257; [1932] HCA 47

Shi v Attorney-General for New South Wales [2019] NSWSC 1686

Shi v R [2020] NSWCCA 42

Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383

Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47

State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26

The Lord Mayor, Councillors and Citizens of the City of Melbourne v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26

The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36

The Queen v Murphy (1985) 158 CLR 596; [1985] HCA 50

Varley v Attorney-General (NSW) (1987) 8 NSWLR 30

Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24

Williams v The King[No 1] (1933) 50 CLR 536; [1933] HCA 54

Williams v The King [No 2] (1934) 50 CLR 551; [1934] HCA 19

Wollongong City Council v Papadopoulos [2019] NSWCA 178

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCFCA 145

Texts Cited:

M Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017)

M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed Federation Press, 2020)

Geoffrey Lindell, Cowen and Zines’s Federal Jurisdiction in Australia (4th ed, The Federation Press, 2016)

A Sapienza, The Non-statutory Executive Power of the Commonwealth (2020, The Federation Press)

J Stellios, The Federal Judicature: Chapter III of the Constitution (2nd ed 2020, LexisNexis), Ch 10

Category:Principal judgment
Parties: Huy Huynh (Appellant)
Attorney General of New South Wales (First Respondent)
Attorney-General (Cth) (Second Respondent)
Supreme Court of New South Wales (Third Respondent)
Representation:

Counsel:

Ms R L Seiden SC / Mr P K Bruckner /
Mr W R Johnson (Appellant)
Mr M G Sexton SC SG / Mr B Lim (First Respondent)
Mr G Kennett SC / Mr T Glover (Second Respondent)

Solicitors:

Hardinlaw (Appellant)
Crown Solicitor’s Office (First Respondent)
Australian Government Solicitor (Second Respondent)
Crown Solicitor’s Office (Third Respondent)
File Number(s): 2021/15614

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2015 the applicant, Mr Huy Huynh, was convicted of conspiring to import a commercial quantity of a border-controlled precursor, in breach of the Criminal Code 1995 (Cth). He was sentenced to 12 years imprisonment with a non-parole period of 8 years. He unsuccessfully appealed against his conviction in 2017, and an application for special leave to appeal to the High Court was dismissed in 2019.

In March 2020 Mr Huynh applied to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his conviction. The application was considered by Garling J and dismissed in October 2020. Mr Huynh then sought an order in the supervisory jurisdiction of the Court of Appeal quashing that decision on the ground that the judge had erred in law.

The issues in this Court were whether the post-appeal inquiry procedures under Part 7 of the Appeal and Review Act:

  1. conferred judicial or administrative functions on a judge of the Supreme Court;

  2. are available, as laws of the State, to review convictions for federal offences; and

  3. if they do not apply of their own force, whether they are picked up and applied as federal law.

The Court, dismissing the application, held:

Issue 1 – nature of functions conferred by the Appeal and Review Act

By the Court:

  1. Both the express terms of s 79(4) and the legislative history demonstrate that the consideration of an application under s 79 is an administrative function. However, if the judge refers the case to the Court of Criminal Appeal under s 79(1)(b), the referral may be an exercise of power incidental to the exercise of judicial power by that Court: [1], [39]-[47]; [83]; [93]-[95]; [128]; [149]; [188]; [268]-[269].

Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143; Holzinger v Attorney-General (Qld) (2020) 5 QR 314; [2020] QCA 165, applied; Holmes v Angwin (1906) 4 CLR 297; [1906] HCA 64; Medical Board of Victoria v Meyer (1937) 58 CLR 62; [1937] HCA 47; Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, considered; Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21; Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23; The Lord Mayor, Councillors and Citizens of the City of Melbourne v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26, referred to.

  1. In accordance with s 75, the references to the Supreme Court in s 79 are to the Chief Justice or the authorised judge as a persona designata: [1]; [37]-[39]; [53]-[54]; [128]; [190]; [265].

Issue 2 – whether s 79 applies of its own force to convictions for federal offences

By Bathurst CJ, Basten, Gleeson and Payne JJA:

  1. The phrase “conviction or sentence” in ss 78 and 79 of the Appeal and Review Act refers to a conviction by or sentence imposed by a State court for an offence under State law: [1]; [68]-[69]; [128]; [254]; [262]; [267]-[269].

Interpretation Act 1987 (NSW), s 12(1).

Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, applied.

  1. The State Minister administering the Appeal and Review Act, to whom a copy of the application must be given and to whom the registrar must report can have no interest in, or responsibility for, a conviction for a federal offence. It may be inferred that ss 78 and 79 were not intended to be applied to federal convictions. Similarly, under s 76, the Governor of the State has no pardoning power with respect to federal offenders. Administrative functions with respect to federal offenders may only be exercised with the authority of the Commonwealth: [1]; [70]-[75]; [128]; [262].

Williams v The King [No 1] (1933) 50 CLR 536; [1933] HCA 54, applied. Lodhi v Attorney General of New South Wales [2013] NSWCA 433; 241 A Crim R 477 distinguished.

By Leeming JA (contra):

  1. Sections 78 and 79 of the Appeal and Review Act apply to convictions and sentences imposed by New South Wales courts, including convictions and sentences for breach of federal laws: [209]-[216].

Interpretation Act 1987 (NSW), s 12(1).

Lodhi v Attorney General of New South Wales [2013] NSWCA 433; 241 A Crim R 477, applied; Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47, distinguished; In the Application of James William Shepherd (NSWSC, 13 September 1996, unrep), not followed; DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242, referred to.

Issue 3 – whether ss 78 and 79 picked up and applied as federal law

By the Court:

  1. Section 68(1) of the Judiciary Act 1903 (Cth) picks up State laws relating to appeals arising out of the trial or conviction of a person for an offence and applies them to a person charged with a federal offence. While “appeal” is broadly defined in the Judiciary Act, it does not extend beyond an exercise of judicial power: [1]; [76]-[83]; [128]; [165]; [167]; [251].

The Queen v Murphy (1985) 158 CLR 596; [1985] HCA 50, considered; Ammann v Wegener (1972) 129 CLR 415; [1972] HCA 58; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36, referred to.

  1. Section 68(2) of the Judiciary Act confers federal jurisdiction on a State court dealing with a federal offence. However, it does not confer federal jurisdiction on a judge exercising administrative powers as a persona designata: [1]; [39]; [42]; [53]-[54]; [110]; [128]; [139]-[141].

Grollo v Palmer (1995) 184 CLR 348; [1995] HCA 26; Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16, referred to.

By Bathurst CJ, Basten, Gleeson and Payne JJA:

  1. No other Commonwealth law conferred federal executive power on such an officer: [1]; [111]-[117]; [128]; [251].

Crimes Act 1914 (Cth), ss 4AAA-4AAB.

Aston v Irvine (1955) 92 CLR 353; [1955] HCA 53; O’Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14, applied.

  1. While the post-conviction review process under s 79 of the Appeal and Review Act does not involve an exercise of judicial power, the power to refer a case to the Court of Criminal Appeal constitutes a gateway function which is incidental to the exercise of judicial power. However, to allow one aspect of the powers available under s 79 to apply to a federal offence is not to apply the State law unaltered, but to pick up and apply a separate part of the State law. That is not consistent with the operation of s 68 of the Judiciary Act: [1]; [60]; [83]; [128]; [267]-[268].

The Queen v Murphy (1985) 158 CLR 596; [1985] HCA 50; Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143, distinguished; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36, Ammann v Wegener (1972) 129 CLR 415; [1972] HCA 58, referred to.

  1. Where the Commonwealth has not legislated to confer power on a judge to invoke powers under State law, then a State law permitting a State officer to reverse a conviction under Commonwealth law will give rise to inconsistency under s 109 of the Constitution: [1]; [122]-[123]; [128]; [251]; [261].

Commonwealth Constitution, s 109.

By Leeming JA:

  1. Because ss 78 and 79 of the State law operate of their own force with respect to a federal offender convicted in a State court, it may not be necessary to consider the operation of the Judiciary Act: [187]-[188]. As a matter of construction, s 68 of the Judiciary Act did not apply to ss 78 and 79: [219]-[222].

Lodhi v Attorney General of New South Wales [2013] NSWCA 433; 241 A Crim R 477; Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23, applied.

  1. The challenge to the determination of Garling J revealed no reviewable error and should be dismissed: [236]-[237]; [239]; [241]; [244]-[246].

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441, applied; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Varley v Attorney-General (NSW) (1987) 8 NSWLR 30, referred to.

Judgment

  1. BATHURST CJ: For the reasons given by Basten JA and the additional reasons of Payne JA, I agree with the orders proposed by Basten JA.

  2. BASTEN JA:

Paragraph number

Issues

8

State law: nature of Part 7 inquiry

16

(1)

Legislative history

16

(2)

Structure of Part 7

31

(a)

Applications to Governor

31

(b)

Applications to Supreme Court

35

(c)

Conduct of inquiries

49

(d)

Proceedings in the Court of Criminal Appeal

59

(e)

Conclusions as to characterisation of Pt 7, Div 3

64

(3)

State law operating of its own force

66

Application of Judiciary Act, s 68

76

(1)

An exercise of federal judicial power

76

(2)

An exercise of incidental power

84

(3)

Construction of s 68 of the Judiciary Act

99

The conferral of non-curial power

110

Conclusions

121

Orders

127

On 9 June 2015 the applicant, Huy Huynh, was convicted in the District Court of New South Wales on one count of conspiracy to import a commercial quantity of a border-controlled precursor (pseudoephedrine) in breach of ss 11.5(1) and 307.11(1) of the Criminal Code 1995 (Cth). He was sentenced to imprisonment for 12 years, with an 8 year non-parole period, commencing on 1 August 2014.

  1. The applicant appealed against his conviction, though not his sentence, pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). On 29 September 2017 that appeal was dismissed. [1] The applicant sought special leave to appeal to the High Court from that judgment; on 6 February 2019 the application was dismissed. [2]

    1. Cranney v R; Huynh v R [2017] NSWCCA 234 (Price J, Hoeben CJ at CL and Latham J agreeing).

    2. Huynh v The Queen [2019] HCASL 6.

  2. On 18 March 2020 the applicant applied to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”) for an inquiry into his conviction. Section 78 appears in Pt 7 of that Act, entitled “Review of convictions and sentences”. The application was considered by a judge of the Court, Garling J. On 13 October 2020, Garling J dismissed the application.

  3. On 18 January 2021 the applicant commenced proceedings under s 69 of the Supreme Court Act 1970 (NSW) seeking an order quashing the decision of Garling J, and a declaration that “there was an error of jurisdiction and law on the part of Garling J.”

  4. In Sinkovich v Attorney General of New South Wales,[3] this Court accepted that declaratory relief was available with respect to a decision of a judge dealing with an application under s 78 of the Appeal and Review Act. That case involved an attempt to review a conviction for an offence under State law; however, the present application concerns a conviction for an offence under a law of the Commonwealth. There is a preliminary question to be determined as to whether the procedure under Pt 7, Div 3 of the Appeal and Review Act is available to a person convicted in a New South Wales court of an offence against a law of the Commonwealth.

    3. (2013) 85 NSWLR 783; [2013] NSWCA 383.

  5. The proceedings seeking to review the decision of Garling J, filed in the Supreme Court on 18 January 2021 named the Attorney General for New South Wales as the respondent. On 1 February 2021 the Registrar directed that the Supreme Court of New South Wales be joined as a party. An issue having been raised as to whether the State Attorney was the correct party, a further amended summons was filed joining the Attorney-General for the Commonwealth.

Issues

  1. As to the preliminary question, certain matters were common ground between the parties. First, neither a State court nor an officer of the State would have power under State law to vary or affect the conviction of a person for an offence under a law of the Commonwealth, absent authority conferred by a law of the Commonwealth. Part 7 was a State law authorising such an effect. The primary source of a judge’s authority under Pt 7 with respect to a federal offender was s 68 of the Judiciary Act 1903 (Cth).

  2. Further, the constitutional basis of s 68(2) was the investing of a State court with federal jurisdiction, pursuant to s 77(iii) of the Constitution. However, s 79(4) of the Appeal and Review Act, dealing with the consideration of an application made under s 78, declares that such proceedings “are not judicial proceedings.” Accepting that characterisation, a non-judicial power could be conferred on a State court so long as it was incidental to the exercise of federal jurisdiction. That criterion was satisfied, because one outcome of the consideration of an application under s 78 was referral of the whole case to the Court of Criminal Appeal “to be dealt with as an appeal under the Criminal Appeal Act 1912”: s 79(1)(b). Such a referral would initiate an exercise of judicial power by the Court of Criminal Appeal.

  3. There remained a question of statutory construction, namely whether s 68 of the Judiciary Act, in referring to the hearing and determination of “appeals arising out of any … trial or conviction” for an offence against a law of the Commonwealth, was apt to encompass the result of an application for an investigation under s 78 of the Appeal and Review Act.

  4. The Attorneys General for the State and for the Commonwealth, though by different routes, affirmed each of the propositions set out above. If those propositions were accepted, a further question arose as to the source of the judicial review jurisdiction being invoked by the applicant in this Court. As the subject matter of the application is a conviction for an offence under a law of the Commonwealth, this Court is exercising federal jurisdiction. [4] The applicant had invoked the Court’s jurisdiction under s 69 of the Supreme Court Act; an alternative proposed by the Attorney for the Commonwealth was that the jurisdiction was conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth), being cross-vested in this Court under s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

    4. LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; [1983] HCA 31.

  5. No party sought to invoke the judicial review jurisdiction conferred on a State Supreme Court by s 39B(1C) of the Judiciary Act. Rather, it was accepted that, even if exercising power under a federal law, Garling J was not an officer of the Commonwealth.

  6. For the reasons set out below, the following propositions may be accepted:

  1. Part 7 of the Appeal and Review Act generally, and Div 3 in particular (being ss 78 and 79), does not apply of its own force to convictions for federal offences;

  2. the function exercised by a judge of the Supreme Court under s 79, namely consideration of an application under s 78, is not a judicial function;

  3. the power conferred by s 79(1)(b) to refer an application to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act, could be considered a function incidental to the exercise of judicial power in respect of a federal offender;

  4. nevertheless, that power could not be picked up by s 68 to the exclusion of all other functions arising under s 79 because to do so would give the State law an altered meaning;

  5. no other Commonwealth law purported to confer a power of review on a Supreme Court judge with respect to a federal conviction;

  6. accordingly, Garling J had no power to take either of the steps identified in s 79(1) with respect to the applicant’s application under s 78, or of his own motion.

  1. As Garling J did not take either of the steps identified in s 79(1), there is no decision to be quashed or set aside. However, it is convenient that the reasoning of the Court be crystallised in the form of a declaration as to the functions of a judge of the Supreme Court in respect of such an application by a federal offender. In those circumstances, it is not necessary to determine whether, and if so under what legislation, this Court could exercise its supervisory jurisdiction with respect to a decision relating to a review of a criminal conviction. That issue could only arise if a Commonwealth officer sought to invoke the power of referral to the Court of Criminal Appeal under either s 77(1) or s 79(1) of the Appeal and Review Act.

  2. It is inappropriate to address the grounds on which the applicant sought judicial review of the purported decision of Garling J.

State law: nature of Part 7 inquiry

  1. Legislative history

  1. The first step in the reasoning to the above conclusions requires consideration of the nature of the functions under Pt 7 conferred on a judge of the Supreme Court. It will be necessary then to consider whether the power conferred by s 79 in Pt 7 can operate as State law in relation to a conviction for a federal offence.

  2. Part 7 of the Appeal and Review Act gives statutory effect to two disparate, but related, aspects of executive power in relation to the administration of criminal justice. The first may be described as the prerogative of mercy, or pardoning power. The assumption underlying the prerogative of mercy is that the judicial system has taken its proper course, but the consequences of conviction may be ameliorated either by the grant of a pardon, or by remission of sentence. The second aspect is available to deal with apparent miscarriages of justice. It could be called upon at a time when there was no right of appeal from a conviction as a result of a trial by jury on indictment. It pre-dated the Criminal Appeal Act 1912. Although that statute reduced the significance of executive intervention, it did not entirely remove the occasions on which it could be invoked. That was because, as held in Grierson v The King,[5] once an appeal has been determined and orders entered, there is no power under the 1912 Act to reopen that decision, even on the basis of material which had not become known until after the appeal had been determined. However, as Dixon J noted in Grierson, an inquiry by the executive as to a doubt attending a conviction remained available, having been preserved by two separate provisions.

    5. (1938) 60 CLR 431; [1938] HCA 45.

  3. The first, a procedure under s 475 of the Crimes Act 1900 (NSW), predated the enactment of the Criminal Appeal Act 1912 (NSW), but continued thereafter. It then provided:

(E) ENQUIRY SUBSEQUENT TO CONVICTION

475 Governor or Judge may direct inquiry etc

(1)   Whenever, after the conviction of a prisoner, any doubt or question arises as to his guilt, or any mitigating circumstance in the case, or any portion of the evidence therein, the Governor, on the petition of the prisoner, or some person on his behalf, representing such doubt or question, or a Judge of the Supreme Court of his own motion, may direct any Justice to, and such Justice may, summon and examine on oath all persons likely to give material information on the matter suggested.

(2)   The attendance of every person so summoned may be enforced, and his examination compelled, and any false statement wilfully made by him shall be punishable, in like manner as if he had been summoned by, or been duly sworn and examined before, the same Justice, in a case lawfully pending before him.

(3)   Where on such inquiry the character of any person who was a witness on the trial is affected thereby, the Justice shall allow such person to be present, and to examine any witness produced before such Justice.

(4)   Every deposition taken under this section shall be stated in the commencement to have been so taken, and in reference to what case, and in pursuance of whose direction, mentioning the date thereof, and shall be transmitted by the Justice, before whom the same was taken, as soon as shall be practicable, to the Governor if the inquiry was directed by him, or to the Judge directing the inquiry, and the matter shall thereafter be disposed of, as to the Governor, on the report of such Judge, or otherwise, shall appear to be just.

The purpose of the provision, first formulated in 1883, [6] was to regularise the informal processes for considering possible miscarriages of justice, not conducted on oath and not in public, which had pre-existed the legislation. [7]

6. Criminal Law Amendment Act of 1883 (46 Vic 17), ss 383, 384, set out in Varley (see fn 7 below) at 43D-G.

7. Henry White v The King (1906) 4 CLR 152 at 165 (O’Connor J); [1906] HCA 53; Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 44G-45D (Hope JA).

  1. Secondly, s 26 of the 1912 Act, permitted a petition for leniency invoking the pardoning power of the Governor:

PART VI

PETITIONS FOR LENIENCY

26   Nothing in this Act shall affect the pardoning power of the Governor, but the Minister of Justice, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence other than the sentence of death passed on a convicted person, may—

(a)   refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted;

(b)   if he desires the assistance of the court on any point arising in the case with a view to the determination of the petition, refer that point to the court for their opinion thereon, and the court shall consider the point so referred and furnish the Minister with their opinion thereon accordingly.

  1. It will be convenient shortly to refer to recent cases dealing with provisions in other states which still reflect s 26. Two cases dealing with s 475 (since repealed) may be noted at this point. Each characterised the power to commence an inquiry as administrative, but the inquiry itself as judicial.

  2. In Henry White v The King [8] the High Court held that a forgery designed to persuade the Chief Justice (under the second limb of s 475(1)) to initiate an inquiry constituted an attempt to pervert the course of justice. Such an inquiry was held to be a “judicial proceeding.” [9] However, Griffiths CJ noted that the power conferred on the Chief Justice to initiate a judicial inquiry was not itself the exercise of “any judicial function.” [10]

    8. Fn 7 above.

    9. White at 165 (O’Connor J); similar language was used by Griffiths CJ at 159 and Barton J at 163.

    10. White at 159.

  3. In Varley v Attorney-General (NSW) [11] this Court followed White in concluding that an inquiry under s 475 was indeed a judicial inquiry, but one which was not to be sought by a formal process of application, such as the issue of a summons. Hope JA (with whom Samuels JA agreed) stated: [12]

    11. Fn 7 above.

    12. Varley at 49B.

“Relevantly White is authority for the proposition that in its pre-1970 form, the section did not require proceedings to be instituted in the Court by an applicant in order to give a judge of the Court authority, of his own motion, to direct an inquiry. The mere receipt by a judge of documents containing allegations sufficient to give rise to a doubt entitled him to give the direction. The decision to give (or not to give) the direction in such a case was clearly not a judicial act; it was an administrative act.”

The 1970 amendment referred to in this passage substituted the Supreme Court for the references to a judge of the Court in s 475(1). The effect was not, as held in Varley, to vary the nature of the power.

  1. Because the pre-repeal caselaw addressing s 26 of the Criminal Appeal Act has been noted in cases considering similar provisions in other States which remain in force, it may conveniently be referred to here. In R v Gunn (No 1) Jordan CJ noted the background to s 26 in the following terms: [13]

    13. (1942) 43 SR (NSW) 23 at 25.

“In the case of Grierson v R it was decided by the High Court … that when an appeal or application for leave to appeal has been heard and dismissed on the merits, the Court of Criminal Appeal has no jurisdiction to entertain a subsequent appeal or application for leave to appeal by the same appellant in respect of the same conviction or sentence; but that the powers conferred by s 26 of the Criminal Appeal Act of 1912 and by s 475 of the Crimes Act, 1900, remain exercisable at the instance of the Executive.”

  1. The Chief Justice considered that a reference under s 26(a) should be regarded “as investing the Court with jurisdiction to deal with the matter as if it were an appeal against conviction duly instituted by the prisoner himself in the ordinary way, notwithstanding that his ordinary right of appeal has been exercised and exhausted.” [14] However, it is clear that the Court envisaged that there were significant limits on such a further appeal. In Gunn (No 1) Halse Rogers J stated: [15]

    14. Gunn (No 1) at 26.

    15. Gunn (No 1) at 27.

“When the section directs that the case referred shall be heard and determined as in the case of an appeal by a person convicted I do not think it is contemplated that the matter already regularly dealt with and disposed of in an appeal—a matter already ‘heard and determined’—should be reopened and again heard and determined on the same grounds. Such an interpretation would mean that the section confers on the Minister the power, in effect, to direct the Court to rehear any appeal and not once but any number of times. Such a reading does not seem to me possible.”

  1. That limitation was repeated by Jordan CJ (Davidson and Halse Rogers JJ agreeing) when the matter came back as R v Gunn (No 2): [16]

    16. (1942) 43 SR (NSW) 27 at 29.

“[I]n a case in which there has already been an appeal which has been disposed of on the merits, I am of opinion that the Court, in the case of a reference such as the present, is not called upon to re-adjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.”

  1. Any such limitation on the scope of a second appeal was rejected by the High Court in Mallard v The Queen [17] dealing with s 140(1)(a) of the Sentencing Act 1995 (WA), which was in similar terms to s 26(a). Arguably Jordan CJ’s approach is now encapsulated in s 77 of the Appeal and Review Act, which mirrors s 79, discussed below.

    17. (2005) 224 CLR 125; [2005] HCA 68.

  2. Provisions similar to s 26 have been discussed in cases in Victoria [18] and Queensland, [19] including cases dealing with federal offenders. However, in each federal case the question was whether a Commonwealth Minister could invoke the power of referral to a State appeal court. [20] Although doubts have been expressed about the availability of the State procedure in relation to a federal conviction, [21] the authorities generally support its availability. [22] That course was not invoked by Mr Huynh in the present case.

    18. See Ratten v The Queen (1974) 131 CLR 510 at 513-514 (Barwick CJ); [1974] HCA 35, dealing with s 584 of the Crimes Act 1958 (Vic).

    19. Criminal Code (Qld), s 672A.

    20. See Perrier v Kerr (unrep, Ryan J, FCA, 17 August 1997), referred to by Logan J in Martens v Commonwealth (2009) 174 FCR 114; [2009] FCA 207 at [20].

    21. R v Martens (No 1) [2010] 1 Qd R 564; [2009] QCA 139 (Keane and Fraser JJA and Appelgarth J); Nudd v Minister for Home Affairs [2011] FCAFC 105; (2011) 122 ALD 529 at [10] (Dowsett, Bennett and Greenwood JJ).

    22. R v Martens (No 2) [2011] 1 Qd R 575; [2009] QCA 351 (Muir and Chesterman JJA, Fraser JA dissenting); Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCFCA 145 at [10]-[12] (Kenny, Robertson and Mortimer JJ); Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180 (Allsop CJ, Flick and Griffiths JJ).

  3. In 1993, s 475 was replaced by Pt 13A of the Crimes Act 1900 and expanded into a suit of 16 sections (ss 474A-474P). An equivalent to s 26 of the Criminal Appeal Act, which was duly repealed, was incorporated in Pt 13A. The two pre-existing statutory schemes were thus amalgamated.

  4. In 2001, Pt 13A, together with a novel form of review by a DNA Review Panel, was re-enacted as Pt 7 of the Appeal and Review Act by the simple technique, in relation to Pt 13A, of transferring verbatim and renumbering existing provisions.

  1. As the Gunn cases demonstrated, once the Criminal Appeal Act provided a curial mechanism for the review of convictions and sentences for indictable offences the role of the executive in checking possible miscarriages of justice was rendered vestigial. Its apparent function was to address claims of fresh evidence. The statutory language which allowed a judge to act “of his own motion” had no practical function unless the judge had conducted the trial. When Pt 7 provided a mechanism for an application seeking to raise a doubt or question, the power of a judge to act on his or her own motion was rendered obsolete; why it has been retained is obscure.

  1. Structure of Part 7

(a)   Applications to Governor

  1. The structure of Pt 7 is by no means straightforward. First, it provides for two streams of applications. The first (Div 2) is by way of a petition to the Governor; the second (Div 3) is by way of an application to the Supreme Court. Division 2 reflects the repealed s 26 of the Criminal Appeal Act which conferred powers on the Minister of Justice with respect to any “petition for the exercise of the pardoning power”. Because s 26 had allowed the Minister to refer the “case” to the Court of Criminal Appeal, or to seek assistance on “any point arising in the case”, it had allowed a somewhat inchoate mechanism for review of a conviction or sentence. The same powers are now found in s 77(1)(b) and (c). However, there is now an additional power, providing for the Governor to direct an inquiry to be conducted by a judicial officer. (As will be noted below, the power to direct an inquiry by a judicial officer is also available in relation to an application to the Supreme Court.) That greater diversity is reflected in the fact that, pursuant to s 76, a petition may invoke one of two courses, namely “a review of a conviction or sentence” or “the exercise of the Governor’s pardoning power”. Petitions under s 76 appear to be unusual, although the procedure was invoked in a matter recently heard by this Court, Folbigg v Attorney General of New South Wales. [23]

    23. [2021] NSWCA 44.

  2. As the present case is not concerned with a petition to the Governor, the procedure available under Div 2 may be dealt with briefly, by way of three observations. The first is that s 114 of the Appeal and Review Act states that “[n]othing in this Act limits or affects in any manner the prerogative of mercy.” A similar provision is still to be found in s 27 of the Criminal Appeal Act, and in s 102 of the Crimes (Sentencing Procedure) Act 1999 (NSW). While the purpose of such provisions (not to limit the operation of the prerogative) is clear, its claim to eschew affectation is not to be read literally. (Adopting one procedure may foreclose another.)

  3. The second observation is that decisions by the Governor or the Attorney General under s 77(1) are clearly administrative, being taken by the executive. The same is true for other provisions in s 77, including the acceptance that there is a doubt or question as to the person’s guilt (subs (2)), the power to refuse to consider or otherwise deal with the petition (subs (3)), and the power to defer consideration of a petition (subs (3A)). Finally, there is an obligation on the Attorney to cause a report to be given to a registrar of the Supreme Court as to any action taken by the Governor or the Attorney. Significantly for present purposes, each of these administrative steps is reflected in s 79 of the Appeal and Review Act, dealing with applications to the Supreme Court.

  4. The third observation is that each step which may be taken in relation to a petition to the Governor leads to a procedure by way of inquiry, dealt with in Div 4, or a referral to the Court of Criminal Appeal, dealt with in Div 5. These steps mirror the outcome of consideration of an application to the Supreme Court under Div 3.

(b)   Applications to Supreme Court

  1. The process for an application to the Supreme Court is provided in s 78 (former s 474D in the Crimes Act), in the following terms:

78   Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

  1. Two aspects of this provision may be noted. First, at a mechanical level, the reference to the registrar of the Criminal Division (which no longer exists) is to be taken as a reference to the registrar of the Common Law Division, to whom, in practice, applications are directed. [24]

    24. Courts Legislation Further Amendment Act 1998 (NSW), Sch 10[12].

  2. Secondly, there is a specific provision dealing with the exercise of the Supreme Court’s jurisdiction in Div 1, namely s 75:

75   Exercise of Supreme Court’s jurisdiction

(1)   The jurisdiction of the Supreme Court under this Part is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction.

(2)   References in this Part to the Supreme Court are to be construed accordingly.

  1. As a matter of statutory construction, that direction cannot apply to s 78: the application must be delivered to the Supreme Court in its institutional sense. However, references in s 79 dealing with consideration of applications by the Supreme Court should be understood in accordance with s 75. That may be applied to the following aspects of s 79:

79   Consideration of applications

(1)   After considering an application under section 78 or on its own motion—

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. …

(3A)   The Supreme Court may defer consideration of an application under section 78 if—

…

…

(4)   Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5)   The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

  1. There are references in the caselaw, noted below, to the characterisation of powers conferred on a judge who does not act as a member of the institution, but rather as a persona designata. Such powers are usually characterised as administrative powers because, although the recipient of the power is identified by reference to his or her office, the power is not intended to be exercised by the recipient as a member of the court.

  2. There are two reasons why the question of characterisation is important in the present case. First, if the exercise of authority under s 78 of the Appeal and Review Act is undertaken by a judge as an exercise of the judicial function of the Supreme Court, it may follow that, as Mr Huynh submitted, there is a right of appeal under s 101 of the Supreme Court Act. If not, an unsuccessful applicant will be limited to the exercise of the supervisory jurisdiction of this Court with respect to a decision made otherwise than in the exercise of judicial power. Secondly, to the extent that ss 78 and 79 of the Appeal and Review Act do not operate of their own force in relation to a conviction for a federal offence, their availability will depend upon federal legislation conferring authority on the judge. However, the only federal law identified was a provision of the Judiciary Act investing a “court of the State” with federal jurisdiction. The legislative power of the Commonwealth does not extend to the selection of members of a court in whom to vest a judicial function. The distinction was identified by Latham CJ in Medical Board of Victoria v Meyer,[25] a case in which an appeal lay from the Medical Board to a judge of the Supreme Court of Victoria, the question being whether an appeal lay from the decision of the judge to the High Court pursuant to s 73 of the Constitution. The relevant distinction was identified by Latham CJ in the following terms:

    25. (1937) 58 CLR 62 at 71; [1937] HCA 47.

“It is not disputed that the order of a judge in chambers is an order of the court …., but it is contended that a judge of the Supreme Court acting under these provisions does not act in his capacity as a judge but that he is a person designated by description for the purpose of hearing the appeal so that his decision is not an order of the Supreme Court and therefore is not appealable to this court.

If a person who happens to be a judge of a court is selected to perform a particular function but that function is not judicial in character, as, for example, presiding over a board of inquiry, it is clear that a decision made by him would not be an order of that court. Again, if a judge of a court is selected to perform a function because he is a judge of that court, but it appears from the statutory provisions which provide for the appointment that it was not intended by virtue of his appointment for a particular purpose to give jurisdiction to the court as such over the matters with which he is authorized to deal, then any order made by him would not be an order of the Supreme Court.”

  1. As the Chief Justice noted in Meyer, an early decision of the High Court in Holmes v Angwin [26] held that a decision of the Chief Justice of Western Australia on a petition under the Electoral Act 1904 (WA), sitting as a Court of Disputed Returns, did not give rise to a right of appeal.

    26. (1906) 4 CLR 297; [1906] HCA 64.

  2. It is true that doubt has been cast on the distinction, particularly in circumstances where a question arises as to the possible incompatibility of a function imposed on a judge with the essential characteristics of a court for the purpose of being invested with federal jurisdiction under Ch III of the Constitution. [27] However, that is not to deny the distinction between the exercise of a judicial function and the exercise of an administrative power, nor the significance of the distinction for particular purposes. Section 68(2) of the Judiciary Act may be invoked because jurisdiction is conferred on a court of a State. If the State law picked up and applied in the exercise of federal jurisdiction is not conferred on a court exercising State jurisdiction, s 68 will not be engaged.

    27. See Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [49] (French CJ and Kiefel J).

  3. It is also necessary to consider whether the State law which confers the administrative function operates of its own force, regardless of some federal element. As explained in Rizeq v Western Australia,[28] and as applied in Masson v Parsons,[29] a State law which creates rights, powers, obligations or immunities, may be applied by a court exercising federal jurisdiction, absent inconsistency with a Commonwealth law, without reliance on provisions of the Judiciary Act.

    28. (2017) 262 CLR 1; [2017] HCA 23.

    29. (2019) 266 CLR 554; [2019] HCA 21.

  4. There are three further reasons for characterising the powers conferred by s 79 as administrative. The first is that the powers reflect those conferred on the Governor and the Attorney General under s 77, which, from their context, are clearly intended to be administrative powers. The fact that the powers to consider an application to the Supreme Court are expressed in identical terms is a strong indication that they do not confer a judicial function.

  5. The second indicator is to be found in the express terms of s 79(4) that proceedings under s 79 “are not judicial proceedings.” Further, the express power to consider “written submissions made by the Crown” demonstrates that the application does not create a justiciable dispute (or lis) as between the Director of Public Prosecutions as the prosecutor in the criminal trial and the offender. Nor is it expected that there would be any oral hearing.

  6. Thirdly, it is inconsistent with the nature of judicial power that the judge to whom an application is made has no obligation to consider it on the merits. That factor is reflected in the reasoning of the Queensland Court of Appeal in Holzinger v Attorney-General (Qld) [30] that the offender who sought unsuccessfully to engage the Queensland equivalent of s 26 of the Criminal Appeal Act had not had any right or legal interest affected by the dismissal of his petition.

    30. (2020) 5 QR 314; [2020] QCA 165; at [52]-[53] (Sofronoff P, Morrison and Mullins JJA).

  7. Although the applicant contended that, if the proceeding before a judge of the Court pursuant to s 79 were not administrative, he had a right of appeal under s 101 of the Supreme Court Act as from a judgment or decision of the Court in a Division, he presented no basis for concluding that Garling J was involved in a judicial proceeding. While the statement in s 79(4) may not be determinative, taken with the other factors considered above, it is a legally correct characterisation of the proceedings.

  8. This conclusion has consequences for the engagement of various provisions of the Judiciary Act which might otherwise operate to pick up procedural provisions of State legislation, so that they apply in the exercise of federal jurisdiction, that is, in an exercise of judicial power.

(c)   Conduct of inquiries

  1. When Varley was decided in 1987, under the old form of s 475 of the Crimes Act, power to direct an inquiry was conferred on a judge of the Supreme Court “of his own motion”. The question in Varley was whether that function could be engaged by an offender making an application to the Court. This Court held that it could not, although any material supplied to a judge might be taken into account in determining whether, of his or her own motion, to direct an inquiry. Although clearly not determinative of that issue, the nature of the inquiry which might be directed was a material consideration. The direction which a judge could give would require a justice to summon and examine persons on oath, the power of attendance being enforceable as if the justice were hearing a case. It seems to have been assumed in Varley that a direction to a justice to consider any “unease” about a conviction was a direction “to hold a judicial inquiry to decide what the facts truly were and to report upon whether that unease was justified.” [31] That assumption did not affect the conclusion that the direction itself, given by the judge acting on his or her own motion, was an administrative act.

    31. Varley at 48D.

  2. As has already been noted, the assumption in White that the inquiry was a judicial inquiry supported the finding that sending a false declaration to a judge of the Supreme Court involved an attempt to pervert the course of law and justice. However, it did not follow that the inquiry under s 475 of the Crimes Act would have been characterised as an exercise of judicial power in relation to a federal offender, nor would it necessarily have engaged the power to issue prerogative writs. A Royal Commissioner will have powers to administer oaths and take evidence, but it does not follow that the Royal Commissioner is exercising judicial power. The taking of evidence by a justice of the peace under s 475 merely resulted in a deposition being taken from each witness called, which was transmitted by the justice to the Governor or the judge, depending on who had directed the inquiry: s 475(4). Thereafter the matter was to be disposed of “as to the Governor, on the report of such Judge, or otherwise, shall appear to be just.” Where directed by a judge, the inquiry thus resulted in the taking of evidence, on the basis of which the judge prepared a report for the Governor. What happened thereafter was a matter of executive discretion. The taking of evidence was not any part of the exercise of judicial power, nor was it a precondition to the exercise of an executive power.

  3. As will be addressed below, the characterisation of the inquiry (which was a possible outcome of an application under s 78), may affect whether the consideration under s 79 is conduct “incidental to” an exercise of federal jurisdiction. Bearing in mind this historical background, it is necessary to turn to the statutory scheme for an inquiry which now appears in Div 4 of Pt 7 of the Appeal and Review Act (ss 80-82), and initially appeared as Div 4 of Pt 13A of the Crimes Act.

  4. Section 80 requires that the inquiry be conducted “as soon as practicable”, noting that the direction may have been given either by the Governor under s 77(1)(a), or by “the Supreme Court” under s 79(1)(a). With respect to procedure, s 81 provides:

“81   Procedure for conducting inquiry

(1)   An inquiry under this Division is to be conducted by—

(a)   a judicial officer appointed by the Governor, if the conduct of an inquiry was directed by the Governor, or

(b)   a judicial officer appointed by the Chief Justice, if the conduct of an inquiry was directed by the Supreme Court.

(2)   The judicial officer conducting the inquiry has—

(a) the powers, authorities, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923, and

(b) in the case of a person who is a Judge of the Supreme Court or whose instrument of appointment under this section expressly so provides, the powers and authorities conferred on a commissioner by Division 2 of Part 2 of the Royal Commissions Act 1923 (except for section 17).

(3)   The Royal Commissions Act 1923 applies to any witness summoned by or before the judicial officer conducting the inquiry (except for sections 13 and 17 and, subject to subsection (2) (b), Division 2 of Part 2).

(4)   If it appears that the character of any person (being a person who was a witness at the proceedings from which the conviction or sentence arose) may be affected by the inquiry, the judicial officer must permit the person to be present at the inquiry and to examine any witness who attends the inquiry.

  1. There are a number of aspects of this provision which warrant attention. First, the jurisdiction of the Supreme Court under Pt 7 may be exercised by the Chief Justice or a judge “who is authorised by the Chief Justice to exercise that jurisdiction”. By contrast, an inquiry under Div 4 is to be undertaken by a judicial officer, [32] not necessarily a judge of the Supreme Court, “appointed by the Chief Justice”, or by the Attorney, depending on the source of the direction. This is not the language of conferral of judicial power on a court.

    32. The term “judicial officer” is defined as “a judicial officer (or former judicial officer) within the meaning of the Judicial Officers Act 1986”: Appeal and Review Act, s 74(1).

  2. Secondly, by conferring on the judicial officer powers, authorities, protections and immunities conferred on a Commissioner under the Royal Commissions Act, it is clear that the judicial officer is not acting as a judge of a court, but as a persona designata.

  3. Thirdly, the provision in subs (4) of procedural fairness to a person whose character may be besmirched has a long history, dating back to 1883, apparently as a concession to female complainants whose character might be attacked by the offender.

  4. The only other provision relating to inquiries is s 82, which addresses the action to be taken on completion of the inquiry:

82   Action to be taken on completion of inquiry

(1)   On completing an inquiry under this Division, the judicial officer must cause a report on the results of the inquiry (incorporating a transcript of the depositions given in the course of the inquiry) to be sent to—

(a)   the Governor, in the case of an inquiry held on the direction of the Governor, or

(b)   the Chief Justice, in the case of an inquiry held on the direction of the Supreme Court.

(2)   The judicial officer may also refer the matter (together with a copy of the report) to the Court of Criminal Appeal—

(a)   for consideration of the question of whether the conviction should be quashed (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to the guilt of the convicted person), or

(b)   for review of the sentence imposed on the convicted person (in any case in which the judicial officer is of the opinion that there is a reasonable doubt as to any matter that may have affected the nature or severity of the sentence).

(3)   After considering a report furnished to the Chief Justice under this section, the Supreme Court must cause its own report on the matter (together with a copy of the judicial officer’s report) to be sent to the Governor.

(4)   The Governor may then dispose of the matter in such manner as to the Governor appears just.

  1. Putting to one side subs (2), which did not find a place in former s 475 of the Crimes Act, it is clear that little changed in 1993 with respect to the outcome of the inquiry. A report must be prepared (including the depositions) to be sent to the Chief Justice; the Chief Justice must cause a report to be sent to the Governor and the Governor may then dispose of the matter in such manner as appears just. None of those acts involves an exercise of judicial power.

  2. The new provision, introduced in 1993 as s 474H(2) in the Crimes Act, provided for the judicial officer to refer the matter directly to the Court of Criminal Appeal. The result of such a referral may be an exercise of judicial power by the Court of Criminal Appeal, but the referral itself is clearly an administrative act.

(d)   Proceedings in the Court of Criminal Appeal

  1. Division 5 of Pt 7 deals with proceedings in the Court of Criminal Appeal. There are five routes by which a matter may reach the Court of Criminal Appeal. The first two bypass any inquiry by a judicial officer, namely a referral by the Attorney General under s 77(1)(b) and a referral by “the Supreme Court” under s 79(1)(b). In such cases, the Court is to deal with the case referred “in the same way as if the convicted person had appealed … under the Criminal Appeal Act 1912, and that Act applies accordingly”: s 86.

  2. The third route is that the Court may be required to deal with a “request” by the Attorney to give an opinion on any point arising in the case, pursuant to s 77(1)(c). Again no inquiry precedes the request. The Court is required to consider the request and furnish the Attorney with its opinion; the Governor is then empowered to dispose of the matter as appears just to him or her: s 87. It is by no means clear that the provision of such an opinion constitutes an exercise of judicial power, given that it does not lead to any judgment or order affecting the rights of the offender, nor is it a necessary gateway to a pardon or other exercise of the Governor’s executive powers.

  3. The fourth route is that, by a process not otherwise dealt with in Pt 7, the Court of Criminal Appeal may hear an application for the quashing of a conviction by a person to whom a pardon has been granted, pursuant to s 84(3). The procedure on such an application is dealt with in s 85. It appears that such a process must by implication be conditional upon the completion of an inquiry under Div 4, and the preparation of reports under s 82 by the judicial officer. That report, and any report prepared by the Supreme Court under s 82(3), together with submissions “on any such report” made by “the Crown” or the convicted person, constitute the only material upon which the Court may act, unless the Court gives leave otherwise: s 85(1). It is further stated that the rules as to the admissibility of evidence do not apply, but that Pts 3 and 4 of the Criminal Appeal Act dealing with appeals against conviction do apply. Precisely how the scheme would operate in practice need not be addressed: it is by no means clear that it constitutes an exercise of judicial power, although it may result in the quashing of a conviction.

  4. The fifth route by which a matter may reach the Court of Criminal Appeal is a referral by the judicial officer conducting an inquiry under Div 4, pursuant to s 82(2). In deciding whether a conviction should be quashed, the Court is required to deal with the referral as if an application had been made for the quashing of a conviction by a person to whom a pardon was granted under s 84. Section 85 then applies with the concomitant uncertainty as to the precise role of the Court. What is clear, however, is that in such a case the straightforward requirement that the Court deal with the matter as if the person had appealed under the Criminal Appeal Act (s 86) does not operate.

  5. In the present case, the matter proceeded no further than an exercise of administrative discretion by Garling J not to direct an inquiry under Div 4, pursuant to s 79(1)(a), and, by necessary inference, not to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act, pursuant to s 79(1)(b). It has been necessary to consider the functions exercised by the Court of Criminal Appeal only because, on one aspect of the submissions, the power of the judge was said to be “incidental to” an exercise of judicial power even though it did not have that result.

(e)   Conclusions as to characterisation of Pt 7, Div 3

  1. The application for review of the applicant’s conviction was made pursuant to s 78 of the Appeal and Review Act. A decision to take none of the steps available under s 79, other than to consider the application, was the decision sought to be reviewed in this Court. The analysis set out above demonstrates that the decision was either (i) an exercise of administrative power on the part of a judge of the Supreme Court, acting as a persona designata and not exercising the judicial functions of the Supreme Court, or (ii) to the extent there could have been a decision “to refer the whole case to the Court of Criminal Appeal”, the exercise of a power incidental to a future judicial proceeding in federal jurisdiction. Each possibility will be addressed.

  2. There can be no doubt that, with respect to convictions for offences under a law of the Commonwealth, the Commonwealth could establish a statutory scheme for review in circumstances where the usual rights of appeal have been exhausted but a doubt has arisen as to the correctness of the conviction (or the appropriateness of the sentence). The power could derive from s 61 of the Constitution (the executive power of the Commonwealth), or as a matter incidental to the execution of judicial power, or the power giving rise to the offence, pursuant to s 51(xxxix). The circumstances in the cases referred to above [33] demonstrate the availability of a non-statutory Commonwealth executive power. [34] However, it may also be that the State legislation can operate of its own force, up to the point where judicial power is engaged. As this last possibility, if accepted, would avoid the need to explore the complexities of federal power, it will be addressed first.

    33. See fns 21 and 22 above.

    34. See further A Sapienza, The Non-statutory Executive Power of the Commonwealth (2020, The Federation Press) at pp 87-91.

  1. State law operating of its own force

  1. The first question, which was not expressly raised before Garling J, but the answer to which was assumed to be favourable to the applicant, is whether the judge had power to carry out such a review. It may be assumed for present purposes that the question includes the powers to (i) refuse to deal with the application (s 79(3)), (ii) defer consideration (s 79(5)), (iii) direct the holding of an inquiry under Div 4 (s 79(1)(a)) and (iv) refer the “whole case” to the Court of Criminal Appeal under s 79(1)(b). It is further assumed, consistently with the declaration in s 79(4), that consideration of the exercise of these powers is not a judicial function.

  2. The answer to this question must come in two (interrelated) parts. The first concerns the constitutional scope of State legislative power; the second concerns the specific exercise of an available power. In terms relevant to the present case, the first part asks to what extent a State can pass laws affecting a conviction for a federal offence; the second whether s 79 of the Appeal and Review Act purports to do that. The parts are interrelated because there is a principle of statutory interpretation which, especially in construing laws having the potential to affect the exercise of government powers by another polity, reads a law which does not expressly identify the scope of its operation as having local effect only.

  3. The localising principle is identified in s 12(1) of the Interpretation Act 1987 (NSW) and may confine the operation of the function to a conviction by a New South Wales court, as an institution, regardless of whether the court was exercising State or federal jurisdiction at a particular time. That is because where the Commonwealth has invested federal criminal jurisdiction in a State court, it takes the court as it finds it and has no power to alter the nature or scope of its functions. [35] However, the localising principle may also require that the conviction be for an offence under State law, or that the court of trial was exercising State jurisdiction.

    35. Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49; [1982] HCA 13.

  4. In Solomons v District Court of New South Wales,[36] the High Court rejected the proposition that the power of a court or judge to grant a certificate under the Costs in Criminal Cases Act 1967 (NSW) was picked up by s 68 of the Judiciary Act. The Court also considered, but rejected, the proposition that the State law could operate of its own force in relation to a prosecution for a federal offence. The joint reasons of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ stated:

    36. (2002) 211 CLR 119; [2002] HCA 47.

“[9] There is a ‘general rule of construction’ which would confine the State enactment to State proceedings and officers (45). In any event, the ‘Justices’ referred to in s 2 of the Costs Act are Justices of the Peace. This follows from the definition in s 21 of the Interpretation Act 1987 (NSW). The power conferred by s 2 ‘was clearly intended to be conferred on all New South Wales courts, at whatever level, exercising criminal jurisdiction’ [37] . The ‘Court[,] Judge [and] Justices’ identified in s 2 of the Costs Act, and the phrase therein ‘any proceedings relating to any offence’, do not extend to federal courts created by the Parliament under Ch III of the Constitution or to this Court or to judicial officers of the Commonwealth, and the offences in question do not include offences under a law of the Commonwealth. This follows as a matter of construction of s 2 of the Costs Act in the light of s 12(1) of the Interpretation Act. [38] ”

37. R v Manley (2000) 49 NSWLR 203 at 215.

38. Section 12(1) of the Interpretation Act provides: ‘In any Act or instrument: (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.’

On that approach, the reference to a “conviction or sentence” in s 78 of the Appeal and Review Act is to be read as a reference to a conviction for an offence under a State law.

  1. In Lodhi v Attorney General of New South Wales,[39] this Court held that the exercise of power by a judge in requesting the Sheriff to investigate whether a member of a jury may have been ineligible to serve was a non-judicial power available in the administration of criminal justice and operated as such in respect of a trial which had been conducted in federal jurisdiction. The Court held that it is “only where some step has a potential effect on a federal conviction that a federal source of power is required”: at [61]. The power in question, conferred by s 73A of the Jury Act 1977 (NSW), provided for the Sheriff, “with the consent of or at the request of the Supreme Court or District Court”, to investigate whether any criminal proceedings may have been affected by improper conduct by a member of the jury. The conduct the subject of challenge in Lodhi was the refusal of the Chief Judge at Common Law to request or consent to such an investigation. No step had been taken which could result in the calling into question of the validity of the conviction, although, if an investigation were held and a concern were raised, an application might have been made under s 78 of the Appeal and Review Act. The Court held:

    39. [2013] NSWCA 433; 241 A Crim R 477 (Bathurst CJ, Beazley P and Basten JA).

“[62]   The jurisdiction which this Court is called upon to exercise is, however, at one remove from a direct challenge to the conviction for a federal offence. This Court is being asked to review a decision by the Chief Judge with respect to the instigation of an inquiry which will not, of itself, affect the applicant's convictions. In addition, it is itself being asked to exercise the power of request or consent under the Jury Act.

[63]   Any step which had a direct effect on a conviction would involve an exercise of judicial power and fall outside the category of executive procedures which were the subject of consideration in Crump v State of New South Wales [2012] HCA 20; 247 CLR 1; Elliott v The Queen [2007] HCA 51; 234 CLR 38 at [5]; cf Baker v The Queen [2004] HCA 45; 223 CLR 513 at [32]-[33]. Because no party argued to the contrary, it should be accepted that the State law applied of its own force with respect to the powers of the Sheriff and the executive power conferred on the Supreme Court.

[64]   The question arising in the present case does not directly involve the possible means by which the applicant could challenge his conviction, if a sufficient basis were established. Rather, it concerns the means by which such a basis might be established and, in particular, the exercise by the Supreme Court and the Sheriff of powers which are, it is accepted, non-judicial.”

  1. No party challenged the ultimate finding in Lodhi, although the Commonwealth Attorney was critical of aspects of the reasoning. Its relevance for present purposes is that the greater the distance between the administrative function and any exercise of judicial power, the greater the likelihood that the function falls within State legislative power, and that the legislation was intended to operate regardless of any possible distant federal effect. That issue did not arise in Solomons, because the power was one conferred on the trial court which had, prior to the conclusion of the trial, been exercising federal jurisdiction.

  2. An administrative function may be characterised as “incidental to” the exercise of judicial power. [40] In that case, if the judicial power is that of the Commonwealth, the function may only be exercisable with the authority of the Commonwealth. One part of the function conferred by s 79 of the Appeal and Review Act, namely the power to refer to the Court of Criminal Appeal, may reasonably be treated as incidental to an exercise of federal jurisdiction by that Court, where the referral involves a conviction for a federal offence. Putting that matter to one side, there are other indicators in Pt 7, Div 3 that it was not intended to operate of its own force with respect to federal convictions. In particular, s 78(2) and s 79(5) require that the registrar of the Supreme Court, Common Law Division, provide a copy of an application (under s 78) and a report of any action taken (under s 79) to “the Minister”. In accordance with s 15(2) of the Interpretation Act, the reference to “the Minister” is a reference to the Minister administering the Appeal and Review Act; that is, a Minister of the State government. The assumption is that that Minister has an interest in the operation of criminal justice within the State. It cannot be read as referring to a Commonwealth Minister. The significance of this point may be illustrated by the manner in which the High Court has dealt with the application by analogy of State law in relation to federal offences when dealing with the right of appeal conferred on a (State) Attorney-General.

    40. The scope of this concept is addressed below in dealing with s 68 of the Judiciary Act.

  3. In 1924 the Criminal Appeal Act was amended to include ss 5C and 5D, permitting an appeal by the Attorney General to the Court of Criminal Appeal where the trial court had quashed an indictment or imposed an inadequate sentence. In Williams v The King[No 1] [41] the High Court held that, whilst the reference to appeals might include an appeal by the Attorney against sentence, [42] the language of s 68(2) did not confer a power on the State Attorney (who had prosecuted the appeal) to bring an appeal in relation to a federal offence. Dixon J noted: [43]

    41. (1933) 50 CLR 536; [1933] HCA 54.

    42. Evatt and McTiernan JJ left the question open: Williams [No 1] at 549.

    43. Williams [No 1] at 546.

“The matter has more than a formal significance because responsibility for proceedings on behalf of the Crown in right of the Commonwealth must be taken by the officers to whom by law it belongs and no proceedings should be entertained which appear upon their face to be taken upon some other responsibility.”

  1. By parity of reasoning, the State Minister administering the Appeal and Review Act can have no interest in, or responsibility for, a conviction for a federal offence. Nor is there any obligation to provide the relevant documents to a Commonwealth Minister. These provisions in the Appeal and Review Act therefore are not engaged in relation to a federal offence. The inference may therefore be drawn that Div 3 of Pt 7 was not intended to apply in relation to federal convictions.

  2. That reasoning applies with even greater force to the provisions in Pt 7, Div 2 dealing with petitions to the Governor for the exercise of the Governor’s pardoning power. The State Governor has no pardoning power with respect to federal offenders; accordingly there would be no reason to read any part of Div 2 as applying to federal offenders. Division 2, however, provides an alternative mechanism to Div 3 for consideration of convictions where a doubt or question is said to arise. It is appropriate to read the scope of Div 2 and Div 3 consistently, as each may give rise to an inquiry under Div 4, or a referral to the Court of Criminal Appeal under Div 5. Accordingly, and regardless of the link (or absence of link) with the exercise of federal jurisdiction leading to the conviction, neither Div 2 or Div 3 should be read as extending to federal convictions. Div 3 has no operation in the present case, of its own force.

Application of Judiciary Act, s 68

  1. An exercise of federal judicial power

  1. The focus of the submissions of the applicant and the Attorneys as to the availability of review under Pt 7 of the Appeal and Review Act was s 68 of the Judiciary Act. Section 68 relevantly provides:

68   Jurisdiction of State and Territory courts in criminal cases

(1)   The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a)   their summary conviction; and

(b)   their examination and commitment for trial on indictment; and

(c)   their trial and conviction on indictment; and

(d)   the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

Orders

  1. For those reasons the summons must be dismissed.

  2. In this Court, Mr Huynh had caused subpoenas to issue, and sought to tender six volumes of material none of which had been before Garling J. The material was admitted provisionally in the interests of dealing with the questions of law which squarely arose on Mr Huynh’s summons, after Mr Bruckner acknowledged that this material was “not relevant to the question of whether there was an error” (rather, it was tendered on the basis that it was relevant to discretion). It follows from the above that the tender should be rejected.

  3. The New South Wales Attorney General did not seek costs. Although the Commonwealth Attorney-General did seek costs, the large majority of the submissions were directed to questions of jurisdiction which are of wider importance than Mr Huynh’s particular claim. Further, in large measure I have not accepted the Commonwealth’s submissions. It is appropriate not to make any order as to costs.

  4. Finally, after judgment was reserved, and without leave, the Court received a further submission dated 14 October 2021 from Mr Huynh personally, complaining about an aspect of his representation. I record that fact in the interests of transparency. The submission should not have been sent. Providing supplementary written material after the conclusion of oral argument, without leave, has been deprecated repeatedly. McHugh ACJ, Gummow, Callinan and Heydon JJ described doing so as “unsatisfactory” and “impermissible” in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192]; see also Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [28]–[31] and [143] and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [111]; more recent authorities in this Court may be found in Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49]. I would accept that Mr Huynh is unaware of that rule. However, the appropriate course is to decline to engage with the further submission.

  5. I propose that Mr Huynh’s further amended summons provided at the hearing on 19 August 2021 be dismissed.

  6. PAYNE JA: I have read the judgment of Basten JA in draft. I agree with the orders proposed and essentially with his Honour’s reasons.

  7. Mr Huynh’s conviction for a federal offence, and his current challenge to that conviction, is, by analogy with the principles identified in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581; [1983] HCA 31, a matter arising under a federal law, namely the Criminal Code of the Commonwealth, a Schedule to the Criminal Code Act1995 (Cth).

  8. I have concluded that, absent authority conferred by a law of the Commonwealth, neither a court nor an officer of the State of NSW has jurisdiction to review the conviction or sentence of a person convicted under a law of the Commonwealth.

  9. The text and context of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act) generally, and ss 78 and 79 in particular, make clear that they do not apply of their own force to convictions for federal offences. Section 74 of the Appeal and Review Act relevantly provides the following definitions:

conviction includes—

(a) a verdict of the kind referred to in section 59(1)(c) or (d) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, being a verdict that the accused person committed the offence charged or an offence available as an alternative to the offence charged, or

(b)   a special verdict of act proven but not criminally responsible entered at a trial, or following a special hearing under that Act, if the defence of mental health impairment or cognitive impairment was not set up as a defence by the person for whom the verdict was entered.

judicial officer means a judicial officer (or former judicial officer) within the meaning of the Judicial Officers Act 1986.

previous review provisions means the provisions of—

(a) Part 13A of the Crimes Act 1900 as in force before the repeal and transfer of those provisions to this Part by the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006, or

(b) section 475 of the Crimes Act 1900, or section 26 of the Criminal Appeal Act 1912, as in force before the repeal of those sections by the Crimes Legislation (Review of Convictions) Amendment Act 1993.

sentence includes a sentence or order imposed or made by any court following a conviction.

  1. The definition of “conviction”, whilst inclusive, does not in context refer to a conviction for a federal offence. The specific inclusion of special verdicts entered under NSW legislation, namely the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, is an initial indication that the definition does not extend to verdicts of a like kind entered under federal law, namely Pt IB Divs 7-9 of the Crimes Act 1914 (Cth). Convictions for federal offences, which are the sole subject of those latter verdicts, form no part of the scheme of review of convictions. Likewise, the definition of “sentence”, whilst inclusive, is another indication that sentences or orders imposed by a court under federal law are not, of their own force, part of the statutory scheme of review.

  2. As Basten JA explains, the Appeal and Review Act is a product of a long history and now provides for two distinct means of challenging a “conviction” or “sentence”. The Appeal and Review Act must be understood in light of that history.

  3. The first means of challenging a “conviction” or “sentence” is identified in Div 2 of Pt 7 in which s 76 provides:

76   Petitions to Governor

A petition for a review of a conviction or sentence or the exercise of the Governor’s pardoning power may be made to the Governor by the convicted person or by another person on behalf of the convicted person.

  1. In Div 2, the Governor is the Governor of NSW. According to the text and context, a “conviction” or “sentence” to which s 76 applies can only be, respectively, a conviction for an offence under NSW law or a sentence imposed for breach of a NSW law.

  2. The second means of challenging a “conviction” or “sentence” is identified in Div 3 of Pt 7. I agree with Basten JA that Div 2 must be read and understood consistently with Div 3, as each pathway may give rise to an inquiry under Div 4, or a referral to the Court of Criminal Appeal under Div 5. I am unable to agree with the applicant’s contention that the “conviction or sentence” which the Governor has the power to review under s 76 should be understood as relating to a different “conviction or sentence” which may be the subject of an application to the Supreme Court under ss 78 and 79. Those two provisions, which constitute Div 3 of Pt 7, provide:

78   Applications to Supreme Court

(1)   An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2)   The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

79   Consideration of applications

(1)   After considering an application under section 78 or on its own motion—

(a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2)   Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3)   The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if—

(a)   it appears that the matter—

(i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii)   has previously been dealt with under this Part or under the previous review provisions, or

(iii)   has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv)   has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A)   The Supreme Court may defer consideration of an application under section 78 if—

(a)   the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b)   the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c)   the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(3B)   This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from—

(a)   the fact that the convicted person was—

(i) questioned under section 24 of the Crime Commission Act 2012, or

(ii) required under section 24 or 29 of that Act to produce a document or thing, or

(b)   either or both of the following—

(i)   evidence obtained directly from that questioning or requirement,

(ii)   any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing.

(4)   Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5)   The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

  1. The text indicates that Div 3 does not apply to federal offenders of its own force. The Minister responsible for administering the Appeal and Review Act, and to whom a report of any action taken under Div 3 must be made pursuant to sub-s 79(5), is the NSW Attorney General and Minister for Prevention of Domestic and Sexual Violence. [94] The NSW Attorney General has no responsibility for a person convicted of a federal offence. Nor is there any obligation in s 79 to report to a Commonwealth Minister.

    94. Allocation of the Administration of Acts.

  2. If the express limitation of s 79 to offences against NSW law were not otherwise clear, the context makes it so. Pt IB of the Crimes Act 1914 (Cth) and the prescriptive powers given to the Commonwealth Attorney General in relation to parole and administrative release of federal prisoners would provide a formidable barrier, through the operation of s 109 of the Constitution, to the NSW Attorney General taking any steps affecting the parole or administrative release from prison of a federal offender. In addition, the Governor-General’s power to exercise the Royal prerogative of mercy in respect of federal offenders is expressly recognised and preserved: Crimes Act 1914 (Cth), s 21D.

  3. Sections 78 and 79 of the Appeal and Review Act are not engaged of their own force in relation to a federal offender. Div 3 of Pt 7 of the Appeal and Review Act was not intended and should not be construed, of its own force, to apply to federal offenders. As Basten JA explains, this conclusion is underlined by s 12(1) of the Interpretation Act 1987 (NSW).

  4. For Pt 7 of the Appeal and Review Act, a law of the State of NSW, to operate in relation to a federal conviction or sentence, it must be applied as a surrogate federal law by s 68 and/or s 79 of the Judiciary Act 1903 (Cth). Those sections, relevantly, provide:

68   Jurisdiction of State and Territory courts in criminal cases

(1)   The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a)   their summary conviction; and

(b)   their examination and commitment for trial on indictment; and

(c)   their trial and conviction on indictment; and

(d)   the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

(2)   The several Courts of a State or Territory exercising jurisdiction with respect to:

(a)   the summary conviction; or

(b)   the examination and commitment for trial on indictment; or

(c)   the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

…

79   State or Territory laws to govern where applicable

(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

(2)   …

  1. I agree with Basten JA that neither s 68 nor s 79 of the Judiciary Act has the effect of adopting and applying Pt 7 of the Appeal and Review Act to federal offences as a surrogate federal law. Given the long and separate history of the exercise of the prerogative of mercy, the function being performed by Garling J here was not relevantly a proceeding connected with the conviction of a federal offender within the meaning of s 68 of the Judiciary Act. No real attempt was made by the applicant to call in aid s 79 of the Judiciary Act as a separate mechanism for applying the Appeal and Review Act to federal offences here.

  2. As Basten JA and Leeming JA each explain, a Judge of the NSW Supreme Court nominated by the Chief Justice under s 75 for the purposes of ss 78 and 79 is performing an administrative, and not a judicial, function. I agree with Basten JA that the Commonwealth cannot, at least without the consent of that judicial officer, impose an administrative function on a judge of the Supreme Court of NSW.

  3. The submission of the Commonwealth Attorney General was that the power in s 79 of the Appeal and Review Act here engaged was incidental to the exercise of judicial power in the sense envisaged in R v Murphy (1985) 158 CLR 596; [1985] HCA 50. I do not agree.

  4. The process of post-conviction review provided under s 79 of the Appeal and Review Act is not conferred on individual judges but on the Supreme Court. The process is not a traditional part of any curial process, but rather is an attempt to formalise an exercise of executive power. It is true that the judge authorised by the Chief Justice under s 75 to exercise the jurisdiction of the Supreme Court to consider an application made under s 78 for an inquiry into a conviction or sentence may refer the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): s 79(1)(b). I agree with Basten JA that in that respect the judge performs a gateway function, permitting a further appeal where all other statutory rights of appeal have been exhausted. Nevertheless, the judge is under no obligation to consider such an application: s 79(3). Even if the judicial officer does consider the application, the judicial officer may, instead of referring the matter to the Court of Criminal Appeal, direct that an inquiry (itself not a judicial proceeding) be conducted by a judicial officer, who may be a former judicial officer: s 79(1)(a). The judicial officer may only act if satisfied there is a “doubt or question as to the convicted person’s guilt” (s 79(2)), that being a necessary but not sufficient precondition to the exercise of a power of referral to the Court of Criminal Appeal under sub-s 79(1)(b), or to direct an inquiry under sub-s 79(1)(a).

  5. I agree with Basten JA that, although in appropriate circumstances the matter may be referred directly to the Court of Criminal Appeal, the non-judicial power conferred by s 79(1) cannot be a power incidental to the exercise of judicial power in the sense envisaged in R v Murphy. At best, one element of the various powers conferred on a judge by s 79 may so qualify. In most cases an application under s 79 will lead to no outcome or to an administrative process. I do not accept that, simply because one possible outcome of the gateway function – referral to the Court of Criminal Appeal – will involve the ultimate exercise of judicial power by that Court, therefore the result is that the entire gateway decision in all of its aspects – including of course no outcome, the decision reached by Garling J here – is therefore incidental to the exercise of judicial power. I do not agree that the other outcomes the subject of Div 3, not involving the ultimate exercise of judicial power by the Court, are swept up as “incidental” to the exercise of judicial power.

  6. That is, I agree with Basten JA that the power conferred by s 79(1)(b) to refer an application to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act could be a function incidental to the exercise of judicial power in respect of a federal offender, but that power is not picked up by s 68 to the exclusion of all other functions arising under s 79. To do so would give the State law an altered meaning, which is inconsistent with the decision of the High Court in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [24].

  7. Finally, I should record that I do not regard Lodhi v Attorney-General (NSW) [2013] NSWCA 433; (2013) 241 A Crim R 427 as mandating a different conclusion about any of the issues here. As Basten JA concluded in that case at [63]:

“Because no party argued to the contrary, it should be accepted that the State law applied of its own force with respect to the powers of the Sheriff and the executive power conferred on the Supreme Court.”

  1. The executive powers of the Sheriff and the context of an investigation under the Jury Act 1977 (NSW) are more remote from the possible exercise of judicial power than the powers here sought to be engaged and make Lodhi a quite different case to the present.

  2. For these additional reasons, I agree with the reasons of Basten JA and the orders he proposes.

  3. If it were necessary to do so, I would agree with Leeming JA that the substantive claim by Mr Huynh is without merit and, assuming the existence of jurisdiction to consider it, the application must be dismissed for the reasons Leeming JA gives.

**********

ANNEXURE

Crimes (Appeal and Review) Act 2001 (NSW)

  1. Definitions

  2. In this Part—

biological material means human blood, semen, hair, saliva, skin tissue or other biological material from which DNA information may be obtained, whether the material separately identified or present in other material.

conviction includes—

(a) a verdict of the kind referred to in section 59(1)(c) or (d) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, being a verdict that the accused person committed the offence charged or an offence available as an alternative to the offence charged, or

(b)   a special verdict of act proven but not criminally responsible entered at a trial, or following a special hearing under that Act, if the defence of mental health impairment or cognitive impairment was not set up as a defence by the person for whom the verdict was entered.

judicial officer means a judicial officer (or former judicial officer) within the meaning of the Judicial Officers Act 1986.

previous review provisions means the provisions of—

(a) Part 13A of the Crimes Act 1900 as in force before the repeal and transfer of those provisions to this Part by the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006, or

(b) section 475 of the Crimes Act 1900, or section 26 of the Criminal Appeal Act 1912, as in force before the repeal of those sections by the Crimes Legislation (Review of Convictions) Amendment Act 1993.

sentence includes a sentence or order imposed or made by any court following a conviction.

  1. In this Part, a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or an inquiry into, any aspect of the proceedings giving rise to the conviction or sentence.

  2. Exercise of Supreme Court’s jurisdiction

  3. The jurisdiction of the Supreme Court under this Part is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction.

  4. References in this Part to the Supreme Court are to be construed accordingly.

  5. Applications to Supreme Court

  6. An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

  7. The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

  8. Consideration of applications

  9. After considering an application under section 78 or on its own motion—

    (a)   the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

    (b)   the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

  10. Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

  11. The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if—

    (a)   it appears that the matter—

    (i)   has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

    (ii)   has previously been dealt with under this Part or under the previous review provisions, or

    (iii)   has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

    (iv)   has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

    (b)   the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A)   The Supreme Court may defer consideration of an application under section 78 if—

(a)   the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b)   the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c)   the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(3B)   This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from—

(a)   the fact that the convicted person was—

(i) questioned under section 24 of the Crime Commission Act 2012, or

(ii) required under section 24 or 29 of that Act to produce a document or thing, or

(b)   either or both of the following—

(i)   evidence obtained directly from that questioning or requirement,

(ii)   any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing.

  1. Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

  2. The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

  3. Reference to Court under section 77 (1) (b) or 79 (1) (b) following petition to Governor or application to Supreme Court

On receiving a reference under section 77 (1) (b) or 79 (1) (b), the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly.

Supreme Court Act 1970 (NSW)

  1. Appeal in proceedings before the Court

  2. Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from—

    (a)   any judgment or order of the Court in a Division, and

    (b)   without limiting the generality of paragraph (a)—

    (i)   any opinion, decision, direction or determination of the Court in a Division on a stated case,

    (ii) any exercise of a power to which section 24 applies, and

    (iii) any determination of the Court in a Division in proceedings remitted under subsection (4) of section 51.

  3. Criminal proceedings

  4. Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

...

  1. Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130.

  2. (Repealed)

Third Schedule Criminal proceedings

(Section 17(1))

(a)   Proceedings in the Court for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted,

(a1)   proceedings (including committal proceedings) for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) in the Court or in the District Court,

...

Judiciary Act 1903 (Cth)

  1. Jurisdiction of State and Territory courts in criminal cases

  2. The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

    (a)   their summary conviction; and

    (b)   their examination and commitment for trial on indictment; and

    (c)   their trial and conviction on indictment; and

    (d)   the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

  1. The several Courts of a State or Territory exercising jurisdiction with respect to:

    (a)   the summary conviction; or

    (b)   the examination and commitment for trial on indictment; or

    (c)   the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

...

Administrative Decisions (Judicial Review) Act 1977 (Cth)

  1. Limitation of jurisdiction of State courts

  2. Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:

    (a)   a decision to which this section applies that is made after the commencement of this Act;

    (b)   conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;

    (c)   a failure to make a decision to which this section applies; or

    (d)   any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.

    Note:   This subsection has effect subject to the Jurisdiction of Courts (Cross‑vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.

  3. In this section:

decision to which this section applies means:

(a)   a decision that is a decision to which this Act applies; or

(b)   a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1.

review means review by way of:

(a)   the grant of an injunction;

(b)   the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(c)   the making of a declaratory order.

  1. This section does not affect:

    (b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or

    (c)   the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

  1. Additional jurisdiction in certain courts

(1)  Where:

  1. the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and

  2. the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

then:

  1. in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory)—that court is invested with federal jurisdiction with respect to that matter; or

  2. in the case of the Supreme Court of a Territory (including the Australian Capital Territory and the Northern Territory)—jurisdiction is conferred on that court with respect to that matter.

  1. Special federal matters: general rules

  2. If:

    (a)   a matter for determination in a proceeding that is pending in the Supreme Court of a State or Territory is a special federal matter; and

    (b)   the court does not make an order under subsection (3) in respect of the matter;

the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in paragraph (2)(b).

Note: This section has effect subject to section 6A (Special federal matters: Commonwealth authorities or officers acting under the laws of States).

(1A)   However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be.

  1. If the court orders that a proceeding or part of a proceeding be transferred, the proceeding or part of the proceeding must be transferred:

    (a)   if the matter for determination in the proceeding is a matter mentioned in paragraph (a), (b), (c) or (e) of the definition of special federal matter in subsection 3(1)--to the Federal Court; or

    (b)   if the matter for determination in the proceeding is a matter mentioned in paragraph (ab) of that definition--to whichever of the Federal Circuit and Family Court of Australia (Division 1), the Family Court of Western Australia or the Supreme Court of the Northern Territory, in the opinion of the court, is appropriate in the circumstances.

  2. The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.

  3. Before making an order under subsection (3), the court must be satisfied that:

    (a)   a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State or Territory where the proceeding is pending; and

    (b)   a reasonable time has elapsed since the giving of the notice for the Attorneys-General to consider whether submissions to the court should be made in relation to the proceeding.

  4. For the purposes of subsection (4), the court:

    (a)   may adjourn the proceeding for such time as the court thinks necessary and may make such order as to costs in relation to an adjournment as it thinks fit; and

    (b)   may direct a party to the proceeding to give a notice in accordance with that subsection.

  5. In considering whether there are special reasons for the purposes of subsection (3), the court must:

    (a)   have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in paragraph (2)(b), whichever is appropriate in the particular case; and

    (b)   take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4).

  6. The Attorney-General may authorise the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a proceeding under this section, under a corresponding provision of a law of a State or under this section and under such a provision.

[(8)-(10) omitted]

Crimes Act 1914 (Cth)

4AAA   Commonwealth laws conferring non‑judicial functions and powers on officers

Application

  1. This section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of the following persons:

    (aa)   a Judge of the Federal Court of Australia;

    (ab)   a Judge of the Federal Circuit and Family Court of Australia (Division 2);

    (a)   a State or Territory judge;

    (b)   a magistrate;

    (c)   a Justice of the Peace or other person:

    (i)   employed in a State or Territory court; and

    (ii)   authorised to issue search warrants, or warrants of arrest.

    Note 1:    Magistrate is defined in section 16C of the Acts Interpretation Act 1901.

    Note 2:   Justice of the Peace is defined in section 2B of the Acts Interpretation Act 1901.

Functions and powers conferred personally

  1. The function or power is conferred on the person only in a personal capacity and not, in the case of a Judge of the Federal Court of Australia, Judge of the Federal Circuit and Family Court of Australia (Division 2), State or Territory judge or magistrate, as a court or a member of a court.

Function or power need not be accepted

  1. The person need not accept the function or power conferred.

Protection and immunity provided

(3A)   A Judge of the Federal Court of Australia or a Judge of the Federal Circuit and Family Court of Australia (Division 2) performing a conferred function, or exercising a conferred power, has the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

  1. A State or Territory judge or magistrate performing a conferred function, or exercising a conferred power, has the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the judge or magistrate is a member).

  2. A person referred to in paragraph (1)(c) performing a conferred function, or exercising a conferred power, has the same protection and immunity as he or she would have in performing functions and powers as part of the person’s employment with a State or Territory court, as the case may be.

This section applies regardless of when Commonwealth law made

  1. This section applies whether the law conferring a function or power was made before, on or after, the commencement of this section.

Contrary intention

(6A)   Despite subsection (1), a rule set out in this section does not apply if the contrary intention appears.

A law of the Commonwealth relating to criminal matters

  1. In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.

Endnotes

Amendments

30 September 2022 - at [154] "the" added before "New South Wales"


at [192] "25" changed to "24" and at [193] "22" changed to "24"


at [207] "a" deleted before "clear cut"


at [225] "honour" replaced with "Honour"


In the annexure, "Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)" replaced with "Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)" and s 4 replaced with Cth section.

Decision last updated: 30 September 2022

Most Recent Citation
Cases Citing This Decision

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Attorney-General (Cth) v Huynh [2023] HCA 13
Huynh v Attorney General (NSW) [2023] NSWCA 190
Huynh v Attorney General (NSW) [2023] NSWCA 190
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