O'Donoghue v Ireland - [2008] HCA 14

HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
Matter No P40/2007
VINCENT THOMAS O'DONOGHUE   APPELLANT
AND
IRELAND & ANOR  RESPONDENTS
Matter No P41/2007
CHARLES ZENTAI   APPELLANT
AND
REPUBLIC OF HUNGARY & ORS  RESPONDENTS
Matter No S410/2007
LARRY RICHARD WILLIAMS  APPLICANT
AND
UNITED STATES OF AMERICA & ANOR             RESPONDENTS
O'Donoghue v Ireland
Zentai v Republic of Hungary
Williams v United States of America
[2008] HCA 14
23 April 2008
P40/2007, P41/2007 & S410/2007
ORDER
Matter No P40/2007 and Matter No P41/2007
Appeals dismissed with costs.
Matter No S410/2007
1.        Special leave to appeal granted.
2.Appeal treated as instituted, heard instanter and dismissed with costs.

On appeal from the Federal Court of Australia
Representation
Matter No P40/2007
S J Gageler SC for the appellant (instructed by Freehills)
H C Burmester QC for the first respondent (instructed by Commonwealth Director of Public Prosecutions)
Submitting appearance for the second respondent
Matter No P41/2007
S J Gageler SC with P W Johnston and V M Priskich for the appellant (instructed by Fiocco's Lawyers)
H C Burmester QC for the first respondent (instructed by Commonwealth Director of Public Prosecutions)
Submitting appearance for the second and third respondents
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and G A Hill for the fourth respondent (instructed by Australian Government Solicitor)
Matter No S410/2007
S J Gageler SC with R P L Lancaster for the applicant (instructed by Watson Solicitors)
H C Burmester QC for the first respondent (instructed by Commonwealth Director of Public Prosecutions)
Submitting appearance for the second respondent
Interveners
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and G A Hill intervening on behalf of the Attorney-General of the Commonwealth in P40/2007 and S410/2007 (instructed by Australian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with N L Sharp intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait and J P McIntyre intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)
P M Tate SC, Solicitor-General for the State of Victoria with R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
O'Donoghue v Ireland
Zentai v Republic of Hungary
Williams v United States of America
Extradition – Function of State magistrates under s 19 of Extradition Act 1988 (Cth) ("Extradition Act") and application of s 4AAA of Crimes Act 1914 (Cth) ("Crimes Act") – Arrangements between Governor-General and State Governors under s 46 of Extradition Act – Whether power exercised by State magistrates under s 19(1) of Extradition Act conferred under Commonwealth law relating to criminal matters – Whether intention appears in Extradition Act not to apply rule set out in s 4AAA of Crimes Act that State magistrates need not accept power conferred by Commonwealth law – Whether State magistrates obliged to accept performance of functions under Extradition Act – Whether acceptance of power conferred by s 19(1) of Extradition Act may be inferred by course of conduct of State magistrates – Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act.
Constitutional law (Cth) – Relationship between Commonwealth and States – Whether Commonwealth may unilaterally impose functions on State magistrates – Whether on true construction Extradition Act imposes functions on State magistrates – Whether such functions involve imposition of legal duties on State magistrates – Application of s 4AAA of Crimes Act – Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act – Whether consent of State executive government sufficient to authorise imposition of functions on State magistrates.
Words and phrases – "duty or power", "extradition", "magistrates".
Crimes Act 1914 (Cth), s 4AAA.
Extradition Act 1988 (Cth), ss 19, 46.
Magistrates Courts Act 2004 (WA), s 6.
Local Courts Act 1982 (NSW), s 23.

GLEESON CJ. Part II of the Extradition Act 1988 (Cth) ("the Extradition Act"), which provides legislative authority for the extradition of persons from Australia to extradition countries (a defined term that includes the first respondent in each of these matters), was enacted pursuant to the power conferred by s 51(xxix) of the Constitution (the external affairs power). Extradition of alleged or convicted offenders to and from Australia is a matter which closely affects Australia's foreign relations. It commonly involves considerations of reciprocity. Australia's foreign relations are conducted by the Commonwealth, but State judicial officers are involved in the administration of extradition law. Part II of the Extradition Act establishes the procedures to be followed where a request for extradition of a person is made to Australia by an extradition country. The ultimate decision to surrender, where made, is a discretionary decision by the Attorney-General of the Commonwealth (s 22). Prior to that, however, questions of eligibility for surrender arise. These are dealt with administratively by a judicial officer acting as persona designata, subject to the possibility of judicial review[1]. Section 19 relates to determinations of eligibility for surrender. The question raised by each of these matters concerns the constitutional validity of s 19.
[1]Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 622-627 [16]-[28]; [2006] HCA 40.
Section 19 provides, in sub-s (1), that, where an application is made to a magistrate for proceedings to be conducted in relation to a person, "the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country." It is unnecessary for present purposes to go into the detail of what is involved in the concept of eligibility for surrender, or the nature of the matters to be decided in determining such eligibility. The term "magistrate" is defined, in s 5 of the Extradition Act, to include "a magistrate of a State … being a magistrate in respect of whom an arrangement is in force under section 46." Section 46 of the Extradition Act provides that the Governor-General may arrange with the Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under the Extradition Act.
It may be noted in passing that the reference in s 5 to an "arrangement ... in force" under s 46 is a reference to a lawful arrangement. If, for some reason, a purported arrangement in relation to a certain magistrate, or group of magistrates, were invalid, then the judicial officer or officers concerned would not satisfy the definition of "magistrate" for the purposes of s 5. One such reason might be that a Governor of a State lacked the power to enter into the relevant arrangement because the arrangement was inconsistent with State legislation. In none of the present matters is there a challenge to the validity of an arrangement, or purported arrangement, under s 46. In each case it is assumed that the judicial officer making the relevant determination of eligibility satisfied the definition of "magistrate" in s 5, there being in force an arrangement between the Governor-General and the Governors of Western Australia and New South Wales respectively covering that judicial officer. That, in turn, appears to accept that, under State law, the Governors had power to enter into such arrangements. If it were otherwise, there would have been an issue as to whether, even if s 19 were valid, it was effective in its application to these cases. No such issue was raised.
The first two matters, which come before this Court as appeals from the Full Court of the Federal Court (Moore, Tamberlin and Gyles JJ)[2], arise out of unsuccessful attempts to obtain an order in the nature of prohibition directed to two Western Australian magistrates dealing, under s 19 of the Extradition Act, with the determination of the respective appellants' eligibility for surrender. The third matter is an application for special leave to appeal from the Full Court of the Federal Court (Branson, Tamberlin and Allsop JJ), which dismissed proceedings seeking to prohibit New South Wales magistrates from conducting s 19 proceedings in relation to the applicant[3]. The matters were argued together. There is a difference between the Western Australian legislation and the New South Wales legislation concerning the functions of magistrates. That difference affects only the third of three propositions which the appellants and the applicant must establish in order to succeed.
[2]Zentai v Republic of Hungary (2007) 157 FCR 585.
[3]Williams v United States of America (2007) 161 FCR 220.
The legislation
Reference has been made already to ss 5, 19 and 46 of the Extradition Act, enacted in 1988.
Also relevant is s 4AAA of the Crimes Act 1914 (Cth), enacted in 2001. That 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 a class of persons including, relevantly, a State magistrate (s 4AAA(1)(b)). Section 4AAA(2) provides that the function or power is conferred on the person only in a personal capacity. Section 4AAA(3) provides that the person need not accept the function or power conferred. Section 4AAA applies to Commonwealth laws enacted before 2001, such as the Extradition Act (s 4AAA(6)).
The Magistrates Court Act 2004 (WA) includes s 6, which provides:
"6 Magistrates, functions of
(1)A magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including this Act and other written laws.
(2)A magistrate has and may perform any function of a registrar.
(3) With the Governor's approval, a magistrate –
(a)may hold concurrently another public or judicial office or appointment, including an office or appointment made under the law of another place; and
(b)may perform other public functions concurrently with those of a magistrate.
(4)A magistrate must not be appointed to an office that does not include any judicial functions without his or her consent.
(5)The Governor may extend the operation of section 37 to the performance by a magistrate of other functions, or the functions of another office or appointment, approved under subsection (3)."
The Local Courts Act 1982 (NSW) includes s 23, which provides:
"23 Employment of Magistrates in other offices etc
(1)Except as provided by this section, a Magistrate shall devote the whole of the Magistrate's time to the duties of the Magistrate's office.
(2)A person may, with the approval of the Governor (which approval the Governor is hereby authorised to grant), hold and exercise the functions of the office of Magistrate and another office or appointment.
(3)A Magistrate may not, however, practise as an Australian legal practitioner for fee, gain or reward, and no approval under subsection (2) may be granted to permit it.
(4)Subsection (1) does not prevent a person from holding office as and exercising the functions of a Magistrate on a part-time basis, but such a person must not, while so holding office:
(a)accept or continue to hold or discharge the duties of or be employed in any paid office in connection with any commercial business, or
(b)engage in or undertake any such business, whether as principal or agent, or
(c)engage in or continue in the private practice of any profession, occupation or trade, or enter into any employment, whether remunerated or not, with any person so engaged.
(5)To the extent specified in the commission by which the Magistrate was appointed, subsections (1) and (3) do not apply to a Magistrate who has limited tenure."
Historical context
The above legislation was enacted in an historical context that is of importance in resolving certain questions that were raised in argument[4]. It will be necessary to return to those questions, but first the history should be noted. It was referred to by Tamberlin J in his reasons in the third matter[5].
[4]Singh v The Commonwealth (2004) 222 CLR 322 at 331-337 [8]-[20]; [2004] HCA 43.
[5](2007) 161 FCR 220 at 228-229 [39]-[42].
Before 1966, Australia's extradition procedures were governed by the domestic law and international treaties of the United Kingdom. The United Kingdom legislation included the Fugitive Offenders Act 1881 (Imp), in relation to extradition to one of Her Majesty's dominions, and the Extradition Act 1870 (Imp), in relation to extradition to foreign States. Western Australian and New South Wales magistrates exercised functions under that legislation. In 1966, countries of the British Commonwealth adopted the "London scheme", under which each Commonwealth country was to enact domestic legislation to govern extradition within the Commonwealth. The Extradition (Commonwealth Countries) Act 1966 (Cth) gave effect to the scheme in Australia. Parliament also enacted the Extradition (Foreign States) Act 1966 (Cth) to establish a similar scheme in relation to non-Commonwealth countries. As Tamberlin J observed, an aspect of both schemes was the provision for arrangements to be concluded between the Governor-General of the Commonwealth and Governors of the States for the appointment of State magistrates to exercise certain functions.
When the Extradition Act was enacted in 1988, s 46 reflected a system that had been operating under the previous Commonwealth legislation. As to the Western Australian legislation of 2004, magistrates in Western Australia have exercised functions conferred by the laws of other polities, being functions the same as or similar to those presently in question, under the following legislation:
(a)Fugitive Offenders Act 1881 (Imp);
(b)Extradition Act 1870 (Imp) and Extradition Act 1903 (Cth);
(c)Service and Execution of Process Act 1901 (Cth) and Service and Execution of Process Act 1992 (Cth) (in relation to the execution of warrants for apprehension in Australia);
(d)Extradition (Foreign States) Act 1966 (Cth) and Extradition (Commonwealth Countries) Act 1966 (Cth);
(e)Extradition Act 1988 (Cth);
(f)International War Crimes Tribunals Act 1995 (Cth).
A similar position applies in relation to New South Wales magistrates.
Three propositions
The asserted ground of invalidity of s 19 of the Extradition Act is that it involves a constitutionally impermissible attempt by the Parliament of the Commonwealth unilaterally to impose a duty upon a holder of a State statutory office. This attempt is said to contravene an implication from the federal structure of the Constitution, and to involve a "per se breach" of the principle of federalism enunciated in Melbourne Corporation v The Commonwealth[6], and most recently applied by this Court in Austin v The Commonwealth[7]. In the United States, the 1997 decision of the Supreme Court in Printz v United States[8] provides an example of what was held to be an invalid federal attempt to impose duties on State officials.
[6](1947) 74 CLR 31; [1947] HCA 26.
[7](2003) 215 CLR 185; [2003] HCA 3.
[8]521 US 898 (1997).
Senior counsel for the appellants (in the third matter, the applicant) said that the success of his argument depended upon acceptance of each of the following propositions:
1.It is an implication from the federal structure of the Constitution that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval.
2.Section 19 of the Extradition Act imposes an administrative duty on a magistrate as the holder of a State statutory office.
3.The imposition of that duty is not approved by any legislation of the Parliament of Western Australia or, in the third case, the Parliament of New South Wales.
The first proposition is one of constitutional law. The second and third propositions depend upon the correct interpretation of Commonwealth and State legislation. For the reasons that follow, each of the second and third propositions should be rejected. That being so, it is unnecessary, and therefore inappropriate[9], to decide whether the first proposition is correct. It is, however, convenient to refer to aspects of the argument about the first proposition in order to explain the context in which the other questions arise.
[9]Cheng v The Queen (2000) 203 CLR 248 at 270 [58]; [2000] HCA 53.
The first proposition
In oral argument, counsel refined the first proposition as follows: unless there is something in the subject matter, content or context of a particular head of Commonwealth legislative power to indicate to the contrary, the Commonwealth Parliament has no power without State legislative approval to impose an administrative duty on the holder of a State statutory office, the functions and incidents of whose office are exhaustively defined by State legislation.
The opening words of that formulation contain a qualification which is necessary in order to accommodate the "autochthonous expedient of conferring federal jurisdiction on State courts"[10], which is sustained by a specific grant of legislative power. The qualification was expressed by Dixon J in the Melbourne Corporation Case[11]. The qualification is also necessary in order to accommodate the decision (concerning the defence power) in South Australia v The Commonwealth (The First Uniform Tax Case)[12]. Subject to that qualification, the capacity of the Commonwealth Parliament to enact laws which impose duties on officers of a State is a matter that has far-reaching consequences for Federal-State relations. Some of the arguments from both the Commonwealth and the States appeared to have a prophylactic purpose not directly related to the issues that have to be decided in the present cases.
[10]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 268; [1956] HCA 10.
[11](1947) 74 CLR 31 at 83.
[12](1942) 65 CLR 373; [1942] HCA 14.
The concluding words of the formulation raise a question noted earlier in these reasons. To say that the functions of the holder of a State office are exhaustively defined by State legislation appears to mean that State law, expressly or by implication, prohibits the extension of those functions by administrative decision. In such a case, it is not clear how a State Governor could lawfully enter into an arrangement, with the Governor-General or anyone else, to extend such functions. Yet the potential application of s 19 of the Extradition Act in the present cases depends upon the assumption that the magistrates in question are magistrates as defined by s 5, and therefore the subject of a valid arrangement under s 46. If there were no such valid arrangement, the issues with which we are concerned would not arise. If State legislation exhaustively defined the functions of State magistrates in a manner that excluded the possibility of their exercising administrative functions under the Extradition Act (which, as will appear, it does not), then it might be thought that there would be a challenge to the power of the State Governor to make an arrangement under s 46 of the Extradition Act. If, on the other hand, State legislation does not define the functions of State magistrates in a manner that excludes the possibility of their exercising administrative functions under the Extradition Act, then the definition of functions is not exhaustive, and the proposition as formulated would not apply.

The deployment of State officials, and the making of administrative arrangements concerning their accommodation, remuneration and like matters, is a typical responsibility of the executive government; a responsibility that, of course, is exercised subject to any relevant statutory constraints. Whether a function is a duty or a power, and whether it is exercised by virtue of an office or as persona designata, administrative arrangements of the kind mentioned have to be made if the exercise is to be practically effective. In fact, State magistrates exercise a variety of functions, and may hold a variety of offices, other than those of a magistrate. We were informed, for example, that administrative functions undertaken by Western Australian magistrates include acting as a mining warden under the Mining Act 1978 (WA), acting as a member of the Police Appeal Board under the Police Act 1892 (WA), acting as a coroner under the Coroners Act 1996 (WA), acting as an industrial magistrate under the Industrial Relations Act 1979 (WA), issuing licences under the Auction Sales Act 1973 (WA), and acting as a visiting justice for prisons under the Prisons Act 1981 (WA). The variety of administrative functions undertaken by State magistrates is one of the best-known features of Australian legal history[13].
[13]North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 153 [4]; [2004] HCA 31.
To return to the first proposition as originally expressed, the argument that (subject to the qualification noted) the Commonwealth Parliament cannot impose an administrative duty on a holder of a State statutory office without State legislative approval raises at least two questions. Would the argument be different if, for the words "the holder of a State statutory office", there were substituted the words "a State officer"? What is the reason for referring to "State legislative approval" rather than "State agreement"? The re-formulation suggests that the two questions may be related; that the hypothesis is that there is State legislation which operates as an impediment to lawful and effective State agreement by executive rather than legislative action. In the absence of such legislation, if it be accepted that the federal structure of the Constitution requires an implication (subject to the qualification noted) that, without State agreement, the Commonwealth Parliament cannot impose an administrative duty on a State officer, or on State officers above a certain level, then there arises the question of the kind of action, legislative or executive, by which a State might lawfully and effectively agree. If there is a State legislative impediment to effective executive agreement, that is one thing. If there is no such legislative impediment, then it is not easy to see why the making of such an agreement would not fall within the ordinary executive power of deployment of State officials; a power which lies at the very centre of executive authority.
It is unnecessary to pursue these questions because here, far from there being a State legislative impediment to the arrangements that have been made, there is State legislative authority and, furthermore, the Commonwealth law does not impose administrative duties.
The second proposition
The foundation for the argument that s 19 of the Extradition Act imposes an administrative duty on a magistrate as the holder of a State statutory office is the provision in s 19 that, in stated circumstances, "the magistrate shall conduct proceedings to determine whether [a] person is eligible for surrender" (emphasis added). A problem for the argument is s 4AAA of the Crimes Act 1914 (Cth) which sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a non-judicial function or power is conferred on a State magistrate. One of those rules is that the function or power is conferred on the person only in a personal capacity (s 4AAA(2)). Another is that the person need not accept the power or function conferred (s 4AAA(3)).
The importance of the contention that what is involved is the imposition of a duty rather than the conferral of a power follows from the decision of this Court in Aston v Irvine[14]. In this constitutional context, it is the creation by federal statute of an obligation to execute federal law that is the essence of the supposed duty.
[14](1955) 92 CLR 353; [1955] HCA 53. See also R v Humby; Ex parte Rooney (1973) 129 CLR 231; [1973] HCA 63.
As noted earlier, s 4AAA was enacted against an historical background that included the involvement of State magistrates in extradition proceedings since the time of Federation, and colonial magistrates before that time. In its application to State magistrates, extradition proceedings would appear to be a paradigm case within the contemplation of s 4AAA. The expression "a law of the Commonwealth relating to criminal matters" is wide enough to embrace the Extradition Act. Part II of that Act is not concerned with offences against the Australian criminal law, or with the trial and punishment in Australia of criminal offences. By hypothesis, an offender is alleged to have violated a law of another country, and the intention is to try that person, not in Australia, but elsewhere. Nevertheless, the subject matter of extradition, to and from Australia, in which reciprocity plays an important part, concerns "criminal matters", and the Extradition Act is a law "relating" to such matters. Extradition is such an obvious and important topic, the role of State magistrates in extradition proceedings is of such long standing, and the matters dealt with by s 4AAA are of such clear potential relevance to extradition proceedings, as to support strongly a conclusion that s 4AAA was intended to cover the role of State magistrates under s 19 of the Extradition Act[15].
[15]cf Acts Interpretation Act 1901 (Cth), s 21(1)(b).
It may be accepted that an individual State magistrate who accepted the function and embarked upon s 19 proceedings in a particular case could be compelled to complete the task. However, as Branson J said in the matter of Williams[16]:
"Understood in the context provided by Pt II of the [Extradition Act], s 19 is concerned to identify the role which is to be performed by a magistrate under the [Extradition Act]. It is not concerned to identify who is to exercise that role in a particular case. The identification of an appropriately qualified person to perform the role required of a magistrate under s 19 will be undertaken by those responsible for allocating duties to the magistrates of the State concerned. No person whose extradition is sought, nor any extradition country, could, whether by seeking a writ of mandamus or otherwise, compel a particular magistrate to whom the task had not been allocated to entertain an application under s 19."
[16](2007) 161 FCR 220 at 222-223 [7].
The second proposition should be rejected.
The third proposition
The failure of the third proposition was the ground, or the principal ground, of the decisions of each Full Court of the Federal Court in these matters. Those decisions should be upheld.
As to the first two matters, the question turns on the meaning of s 6 of the Magistrates Court Act 2004 (WA) and, in particular, s 6(3)(b), which provides that, with the Governor's approval, a magistrate may perform other public functions concurrently with those of a magistrate. This is to be read in its immediate statutory context, s 6(3)(a) providing that, with the Governor's approval, a magistrate may hold concurrently another public or judicial office or appointment including an office or appointment made under the law of another place. This indicates that the reference to "other public functions" in s 6(3)(b) is not confined to public functions conferred by Western Australian legislation. The Commonwealth is not "another place", but par (a) throws light on the meaning of par (b).
Apart from the immediate statutory context, and of paramount importance, is the historical context earlier described. Here again, the long-standing involvement of Western Australian magistrates in extradition proceedings, and the national and international importance of the topic of extradition, make it very difficult to accept that the topic was not in contemplation when the legislature, in s 6, dealt with the functions of Western Australian magistrates. This is such a well-known and significant function of State magistrates that it is impossible to imagine that it was overlooked, or that it was not included in the general terms used in the provision. To treat it as not included among the "other public functions" referred to would be to give that expression a narrow and unreasonable interpretation.
The considerations mentioned in the preceding paragraph apply with equal force to s 23 of the New South Wales legislation, which provides that a person may, with the approval of the Governor, hold and exercise the functions of the office of magistrate and another office or appointment. It is true that the Interpretation Act 1987 (NSW), in s 12, requires that, in the absence of a contrary intention, a reference to a jurisdiction or other matter or thing implies a reference to a jurisdiction or matter or thing in New South Wales, but the subject matter with which s 23 is concerned, understood in the context of the functions historically performed by State magistrates, requires the conclusion that the general words used manifest a contrary intention. Extradition is a topic of direct relevance to the State of New South Wales. The arrangements made by the Commonwealth with other countries, and legislation in the exercise of the external affairs power concerning the matter of extradition to and from Australia, bear upon the efficacy of the State's system of criminal justice. That, no doubt, is why the Australian States permit their magistrates to participate in the administration of extradition law. It is the Commonwealth that conducts Australia's foreign relations, but in the matter of extradition of fugitive offenders, those foreign relations have an important bearing on the practical enforcement of State laws. The language of s 23(2) of the Local Courts Act 1982 (NSW) is wide enough to cover the function in question, and it was such an obvious matter for legislative consideration that it would be unreasonable to treat the language as not covering the function.
The third proposition should be rejected.
Conclusion
In the first two matters, the appeals should be dismissed with costs. In the third matter special leave to appeal should be granted, and the appeal should be treated as heard instanter and dismissed with costs.
GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ. These proceedings concern the operation of the federal system in a situation which is the converse to that considered in R v Hughes[17]. There the Court held that the Commonwealth Director of Public Prosecutions had power to institute and carry on prosecutions for certain indictable offences against State law. This was because federal law (supported by an adequate head of federal legislative power) provided for the exercise of functions and powers expressed by State law to be conferred upon the Director. It was accepted in Hughes that by force only of its own legislation a State could not unilaterally invest functions thereunder in an officer of the Commonwealth. An important difference between Hughes and the present proceedings is that here the officers in question are those of a State, not the Commonwealth, and the conferral of authority is by a law of the Commonwealth, the Extradition Act 1988 (Cth) ("the Act").
[17](2000) 202 CLR 535; [2000] HCA 22.
The Act deals with extradition from Australia (Pt II) and extradition to Australia (Pt IV) and makes special provision for extradition to New Zealand (Pt III). These proceedings arise from three extradition applications under Pt II.
The proceedings
These three matters were heard together. The first two are appeals from decisions of the Full Court of the Federal Court of Australia (Moore, Tamberlin and Gyles JJ)[18] dismissing appeals from a judge of that Court (Siopis J)[19]. His Honour had heard together applications by Mr Zentai and Mr O'Donoghue to restrain the further pursuit of extradition proceedings instituted against them respectively by the Republic of Hungary and Ireland. In each case before Siopis J the second respondent was a magistrate holding that office under the law of the State of Western Australia.
[18]Zentai v Republic of Hungary (2007) 157 FCR 585.
[19]Zentai v Republic of Hungary (2006) 153 FCR 104.
The third matter in this Court is an application by Mr Williams for special leave to appeal against a decision of the Full Court of the Federal Court (Branson, Tamberlin and Allsop JJ)[20]. Their Honours were exercising the original jurisdiction of the Federal Court upon an application to restrain the taking of further steps under the Act for the surrender of Mr Williams to the United States of America. The second respondent in these proceedings is identified as "Magistrates Appointed by Commission under the Public Seal of NSW".
[20]Williams v United States of America (2007) 161 FCR 220.
In all three proceedings the jurisdiction of the Federal Court was conferred by s 39B(1A) of the Judiciary Act 1903 (Cth) in respect of a matter arising under the Constitution or involving its interpretation. The contention by the applicant in each case was that the conduct of the extradition proceedings against him should not proceed because of the invalidity of ss 19(1) and 46(1)(a) of the Act.
In this Court the respondent magistrates filed submitting appearances. Counsel for Ireland, the Republic of Hungary and the United States of America adopted the submissions made by the Commonwealth Solicitor-General. Submissions also were made, as interveners, by the Attorneys-General of Western Australia, New South Wales, South Australia and Victoria. The State Attorneys‑General presented submissions adverse to the interests of the appellants and the applicant for special leave.
Part II of the Act
Part II (ss 12‑27) of the Act is headed "Extradition From Australia to Extradition Countries". The structure of Pt II was analysed most recently by Gleeson CJ in Vasiljkovic v The Commonwealth[21] and need not be repeated here. The Chief Justice, with reference to what had been said in Harris v Attorney‑General (Cth)[22], said that Pt II provided for four stages in extradition proceedings, namely[23]:
"commencement, remand, determination by a magistrate of eligibility for surrender and executive determination (subject to legislative constraints) that a person is to be surrendered".
[21](2006) 227 CLR 614 at 622‑628 [16]‑[29]; [2006] HCA 40.
[22](1994) 52 FCR 386 at 389.
[23](2006) 227 CLR 614 at 628 [29].
Section 19(1), the validity of which is impeached, is engaged at the third stage, namely the determination by a magistrate of eligibility for surrender. The sub‑section states that where the preceding steps in the process have been taken and the magistrate considers there has been a reasonable time to prepare, then:
"the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country". (emphasis added)
Where the determination is of ineligibility for surrender, then the magistrate "shall ... order that the person be released" (s 19(10)); where there is a determination of eligibility, "the magistrate shall ... order that the person be committed to prison to await surrender ..." (s 19(9)).
It is settled by authority including Pasini v United Mexican States[24] and Vasiljkovic[25] that the determination under s 19(1) of eligibility to surrender and the making of consequential orders under ss 19(9) and 19(10) involves the exercise of administrative functions and not the exercise of the judicial power of the Commonwealth. Accordingly, s 19 is not the product of an exercise by the Parliament of its power conferred by s 77(iii) of the Constitution to make laws investing State courts with federal jurisdiction.
[24](2002) 209 CLR 246; [2002] HCA 3.
[25](2006) 227 CLR 614.
The term "magistrate" is defined in par (b) of the definition in s 5 of the Act so as to include "a magistrate of a State ... being a magistrate in respect of whom an arrangement is in force under section 46". Paragraph (a) of s 46(1) of the Act states that the Governor‑General may:
"arrange with the Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under this Act".
Section 15(1) requires that a person arrested under a provisional warrant issued after application on behalf of an extradition country "shall be brought as soon as practicable before a magistrate in the State ... in which the person is arrested". It is not disputed that on their face the subsequent proceedings under s 19(1) to determine eligibility for surrender have been conducted by magistrates under arrangements made in respect of Western Australia and New South Wales and complying with s 46(1)(a). However, counsel for the two appellants and the applicant (whom we will describe collectively as "the appellants") point to the presence in s 19(1) of the phrase "the magistrate shall conduct proceedings ..." and from that basis found submissions respecting invalidity.
The appellants' principal submissions
The submissions begin with the propositions that when the magistrate embarks upon the exercise of the power conferred by s 19(1) the magistrate is obliged to proceed to determine eligibility to surrender and to make appropriate consequential orders and that the making of the determination may be compelled by a remedy of mandamus from a court of competent jurisdiction.
The next step in the submissions is that the Parliament of the Commonwealth lacks the power, without State legislative approval, to impose upon the holder of a State statutory office an administrative duty enforceable by legal remedy where the functions and incidents of that office are "exhaustively" defined by State legislation.
This absence of legislative power in the Parliament is said not to apply to all heads of power conferred by s 51 of the Constitution. The appellants concede that with respect to a particular head of power there may be something in the subject matter or context which indicates that the power may be exercised to compel the performance of duties under federal law even without State legislative approval. This qualification is made in apparent response to the decision in 1942 in the First Uniform Tax Case[26]. The provisions of federal legislation, the validity of which was upheld in that case, included those made in the Income Tax (War-time Arrangements) Act 1942 (Cth) which enabled the Commonwealth to take over from the States their officers, premises and equipment concerned with the assessment and collection of income tax; that statute was to continue in operation until the last day of the first financial year after what was then the war being waged by Australia. However, as noted below, the statute with which the present case is concerned is supported by the external affairs power. The appellants contend that no qualification applies in respect of that power such as may be found with the defence power.
[26]South Australia v The Commonwealth (1942) 65 CLR 373.
The requirement (which is disputed by the active respondents and the interveners) for the giving of consent by State legislation, rather than by the State executive government, appears to be placed by the appellants upon two related bases. The first is that a State executive has no power to add to the functions of an office created by a statute of that polity any more than it can alter the content of any other law made by the State legislature. The second is that the executive cannot dispense with or suspend the operation of those laws. In the latter regard reference was made to the decision of Wild CJ in the New Zealand Supreme Court in Fitzgerald v Muldoon[27]. The Chief Justice made a declaration that a public announcement by the Prime Minister of New Zealand that the operation of a statutory superannuation scheme was to cease forthwith, was "illegal as being in breach of s 1 of the Bill of Rights [of 1688]"[28].
[27][1976] 2 NZLR 615.
[28][1976] 2 NZLR 615 at 623.

As will appear, these proceedings may be resolved without a determination of whether that requirement for State legislative, rather than executive, approval is sound doctrine. This is because of what follows from the distinction drawn by the appellants between the conferral by federal law of a power and the imposition of a duty. The appellants concede that their case must fail in any event if s 19(1) of the Act confers a power but does not impose a duty.
Power and duty
The limitation contained in the submissions by the appellants with respect to the imposition by the federal law of a duty rather than merely the conferral of a power reflects the reasoning evident in the joint judgment of the Court in Aston v Irvine[29]. The provisions of the Service and Execution of Process Act 1901 (Cth) which were held valid in that case conferred powers upon State magistrates or other officers in respect of interstate service of process, and did not impose duties upon them. The Court said that to give the magistrates and other State officers mentioned in the federal law the powers in question involved no interference with the executive governments of the States[30].
[29](1955) 92 CLR 353.
[30](1955) 92 CLR 353 at 364.
The legislation upheld in Aston v Irvine relied upon the power of the Parliament with respect to service and execution of process conferred by s 51(xxiv). The provisions of the Act dealing with extradition from this country rely upon the external affairs power conferred by s 51(xxix)[31]. The appellants correctly take no point seeking to distinguish Aston v Irvine by reason of the differences in these heads of legislative power conferred by s 51 of the Constitution. Nor, subject to what appears below under the heading "The Melbourne Corporation Case", do the appellants seek to revisit the Engineers' Case[32] and revive any theory of State reserved legislative powers allegedly supported by ss 106, 107 and 108 of the Constitution[33].
[31]Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 618 [6], 643 [87], 676‑677 [222].
[32](1920) 28 CLR 1.
[33]See New South Wales v The Commonwealth (Work Choices Case) (2006) 229 CLR 1 at 73‑74 [54], 119‑120 [192]‑[194]; [2006] HCA 52.
In Aston v Irvine the Court did refer[34] to the then current authority in the United States Supreme Court. This included Robertson v Baldwin[35] and Holmgren v United States[36], cases which indicated that federal law might authorise State magistrates to exercise powers conferred by that law, at least if those State magistrates chose to do so. In the more recent decision in Printz v United States[37], favourable reference was made by the majority to Holmgren as a case of State consent to the exercise of federal authority.
[34](1955) 92 CLR 353 at 364.
[35]165 US 275 at 280 (1897).
[36]217 US 509 at 517‑518 (1910).
[37]521 US 898 at 906 (1997).
This Court in Aston v Irvine also referred[38] with apparent approval to the following passage in the treatise by Willoughby[39]:
"In general, however, the Federal and State Governments act independently of each other, as regards their executive or administrative services, and the principle is well established that the Federal Government may not impose upon State officials the imperative obligation and burden of executing Federal laws, nor, a fortiori, may the States obligate Federal officials to execute State laws[40]. However, it is equally well established that there is no constitutional objection to the granting by the Federal Government to State officials of authority to execute Federal functions, if they, or rather their respective State governments, are willing that they should do so[41]."
[38](1955) 92 CLR 353 at 364.
[39]Willoughby, The Constitutional Law of the United States, 2nd ed (1929), vol 1 at 120.
[40]Kentucky v Dennison 65 US 66 (1860).
[41]Some of the States, by express constitutional provisions, forbid their officials from accepting, while in office, Federal appointments. These prohibitions, however, in general, if not in all cases, are declared to apply only to certain of the higher grades of officers. A violation of these prohibitions operates, ipso facto, as a resignation of the State offices. It would seem to be clear that the States cannot prevent anyone, not even their own officers, from accepting a Federal appointment: the most that they can do is to declare that such an acceptance will operate to vacate a State office held by the one accepting the Federal office.
The Melbourne Corporation Case
Counsel for the appellants submitted that the constitutional requirement for State legislative approval for the imposition upon a State officer of an administrative duty is "a particular per se application" of the implication drawn from the federal structure in Melbourne Corporation v The Commonwealth[42] and subsequent authorities including Re Australian Education Union; Ex parte Victoria[43] and Austin v The Commonwealth[44]. In Austin[45] the majority applied the proposition drawn from Australian Education Union[46] that it is critical to the capacity of a State to function as a government that it retain the ability to determine the terms and conditions of engagement of employees and officers at the higher levels of government.
[42](1947) 74 CLR 31.
[43](1995) 184 CLR 188.
[44](2003) 215 CLR 185; [2003] HCA 3.
[45](2003) 215 CLR 185 at 218 [25], 260‑261 [152], 282‑283 [227].
[46](1995) 184 CLR 188 at 233.
However, in Austin the Court left for another day consideration of a larger proposition than that previously accepted as required by the Melbourne Corporation doctrine. The proposition put to one side was that it is critical to the constitutional integrity of the States that they alone have the capacity to give directions to their officials and determine what duties they perform[47]. Acceptance of such a proposition could lead to the invalidity of federal laws which merely affected the ease with which the States exercised their constitutional functions, rather than impaired the exercise of those functions[48].
[47](2003) 215 CLR 185 at 269 [181].
[48]cf Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 481.
In making that reservation in Austin reference was made[49] by Gaudron, Gummow and Hayne JJ to recent decisions, including Printz[50], supporting an implication in the Constitution of the United States which restrains the unilateral imposition by federal law upon State officials of functions under that federal law.
[49](2003) 215 CLR 185 at 268 [178].
[50]521 US 898 (1997).
Printz v United States
Printz concerned the validity of a federal gun control law which commanded the "chief law enforcement officer" of each local State jurisdiction to check the background of prospective purchasers of handguns and to perform related tasks. One ground of the majority decision was that the federal law effectively, but invalidly, transferred to State officers the responsibility of the President to administer the laws enacted by Congress[51]. Another ground, an aspect of "dual sovereignty", was that the scheme of the Constitution was that the government of each State be accountable to its own citizens for the conduct of its officers[52]. In the present cases the appellants disclaimed any translation of the reasoning in Printz in so far as it relied upon "dual sovereignty" as that doctrine has been understood from time to time in the United States.
[51]521 US 898 at 922‑923 (1997).
[52]521 US 898 at 918‑922 (1997).
The majority in Printz put aside, as not controlling the outcome their Honours reached, those Supreme Court authorities dealing with the applications to the States of federal laws which, whilst of general application, "excessively interfered with the functioning of state governments"[53]. It is those authorities which march with the Melbourne Corporation doctrine. Counsel for the appellants did refer to the reliance in Melbourne Corporation and the later cases, particularly Austin, upon that line of United States authority. This, however, was said to support the use of the decision in Printz to lay the ground for a further development of the Melbourne Corporation doctrine.
[53]521 US 898 at 932 (1997).
It is unnecessary on this occasion to determine whether the Melbourne Corporation doctrine should be developed in such a fashion as the appellants suggest and to produce the result that the Parliament lacks power, without State legislative approval, to impose upon the holder of a State statutory office a duty, rather than merely a power of an administrative nature. This is because, as Counsel opposed to the appellants submitted, the Act does not impose a duty of the postulated character.
It is to that aspect of the argument that we return.
Section 4AAA of the Crimes Act
Section 19, and the other provisions of the Act which involve the exercise of functions by magistrates, must be read with s 4AAA of the Crimes Act 1914 (Cth) ("the Crimes Act"). Section 4AAA was added to the Crimes Act by the Crimes Amendment (Forensic Procedures) Act 2001 (Cth) and amended by the Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005 (Cth).
The Commonwealth in its written submissions to this Court relied upon s 4AAA and in oral submissions the appellants accepted that if that provision operated as the Commonwealth contended then their case must fail. We turn to consider s 4AAA.
Section 4AAA operates in the circumstances detailed in sub‑s (1). First, there must be "a law of the Commonwealth relating to criminal matters"; that expression includes a reference to the Crimes Act itself (s 4AAA(7)). Secondly, that law must confer "a function or power" which is not judicial, nor must the function or power be "incidental to a judicial function or power"[54]; that requirement is satisfied by s 19(1) of the Act. Thirdly, the law in question may have been made before or after the commencement of s 4AAA (s 4AAA(6)); accordingly, while the legislation in question here was enacted in 1988, s 4AAA nevertheless may apply to it.
[54]cf R v Murphy (1985) 158 CLR 596 at 616.
Next, to attract s 4AAA, a function or power having the requisite character must be conferred on one or more persons including "a magistrate"; that term is defined in s 16C of the Acts Interpretation Act 1901 (Cth) as including any magistrate in respect of whose office an annual salary is payable, but as not including a Federal Magistrate. The respondent magistrates in these appeals answer the definition. However, an issue arises as to whether the function or power they exercise under s 19 is conferred "under a law of the Commonwealth relating to criminal matters" within the meaning of s 4AAA. That question may be put aside for the present.
Where s 4AAA is engaged, then by force of sub‑s (2) the function or power is conferred upon a magistrate "only in a personal capacity"; it is not conferred upon the magistrate as a member of a court.
Section 4AAA(3) is important for these cases and is relied upon by those parties opposed to the appellants. The sub‑section states that "[t]he person need not accept the function or power conferred". That proposition is one of "the rules" which s 4AAA establishes.
It should be held that acceptance, rather than "non‑acceptance", may be inferred from a course of conduct, in particular by exercise of the power or function in question. That is what has occurred in the extradition proceedings with which the present litigation is concerned.
However, no "rule" which otherwise operates by reason of the impact of s 4AAA upon a law of the Commonwealth relating to criminal matters will apply if in that law there appears the "contrary intention". This qualification to the operation of s 4AAA is imposed by s 4AAA(6A). The appellants submit that such a contrary intention does appear from the Act, in particular from the use of the term "shall" in s 19(1).
The appellants' submissions respecting s 4AAA
The appellants put their submissions against the adverse consequence which would flow for their case if s 4AAA(3) of the Crimes Act applied and a power rather than a duty was imposed, by relying upon two grounds. First, as noted above, is that the Act is not a law of the Commonwealth "relating to criminal matters". The second ground is that there appears in the Act a contrary intention to the proposition in s 4AAA(3) that the magistrate "need not accept the function or power conferred".
For the reasons which follow neither submission by the appellants should be accepted. The consequence is that the constitutional inhibition for which the appellants contend, even if otherwise accepted, would not apply. This is the consequence of the presence of a power and the absence of a duty imposed by the arrangement made under s 46(1)(a) of the Act with respect to the performance by State magistrates of the functions of a magistrate under that law.
"Under a law of the Commonwealth relating to criminal matters"
Part IV of the Act (ss 40‑44) is concerned with requests by Australia for surrender of persons convicted of an offence against a law of Australia or accused of such an offence and with the consequences of this surrender to Australia. Here there readily may be found a relationship with "criminal matters", namely conviction or accusation of guilt under domestic criminal law. However, the present appellants resist extradition from Australia which is sought under Pt II. The "criminal matters" directly concerned here are offences against the laws of the extradition countries.
Two points should be made here. The first is that consideration of Australian criminal law is engaged by Pt II through the "double criminality" ground of extradition objection provided by par (d) of s 7 (which is to be read with the interpretative provision in s 10(3)). The present appellants will only be eligible for surrender by Australia if the magistrate has the satisfaction required by par (c) of s 19(2), namely:
"that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia".
In answering that question, any difference between the denomination or categorisation of offences under the domestic and foreign law are to be disregarded (s 10(3)(b)). This issue of "double criminality" stamps the Act with the character of a federal law relating to subject matter which necessarily involves consideration of the operation of domestic criminal law as a step in the magistrate's eligibility determination under s 19. That is sufficient to attract s 4AAA of the Crimes Act.
The second point was urged particularly by the Commonwealth Solicitor‑General. It is that given the anterior enactment of the Act in 1988, the long‑standing involvement of State magistrates in extradition matters, and the need for reciprocity as a means of assisting enforcement of Australian criminal law in proceedings by Australia under Pt IV, it would be an unduly narrow construction of s 4AAA to exclude its operation where what was involved was extradition in aid of the laws of the extradition country. The second point also should be accepted.
Contrary intention
The arrangement between the Governor‑General and the Governor of a State for which par (a) of s 46(1) provides is "for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under this Act" (emphasis added). Those functions are variously identified throughout Pts II, III and IV of the Act. Reference may now be made to some of them.
Reference may first be made to some of the provisions in Pt II. The requirement under s 19(1) to conduct proceedings to determine eligibility for surrender should not be considered in isolation from what goes before s 19 in the administration of Pt II. The magistrate shall issue a provisional arrest warrant, upon application on behalf of an extradition country, if the magistrate "is satisfied" on the basis of information on affidavit, that the person in question "is an extraditable person in relation to the extradition country" (s 12(1)(b)). After arrest the person must be brought before a magistrate and ordinarily "shall be remanded by a magistrate in custody" (s 15(2)) and "shall not" be remanded on bail in the absence of "special circumstances" (s 15(6)). If the Attorney‑General exercises power conferred by s 16(1) the magistrate may be directed by the Attorney‑General to order release from custody (s 17(1)(c)).
With respect to proceedings under Pt II and extradition to New Zealand under Pt III provision is made for the issue of search and seizure warrants (ss 14, 31). The magistrate "may issue" such a warrant upon provision of adequate material on affidavit. Part IV provides for the taking of evidence in Australia where "the Attorney‑General suspects that a person is an extraditable person in relation to Australia" (s 43(1)). A magistrate then "may take" the evidence from witnesses and then "shall" cause it to be reduced to writing and, with a certificate, to be sent to the Attorney‑General (s 43(2)).
Paragraph (a) of s 46(1) does not isolate or differentiate between performance of the range of functions of a magistrate under the Act. The arrangement applies to all of them. The significance of s 4AAA is that it supplements the operation of par (a) of s 46(1) and focuses upon each magistrate who from time to time holds office and is a subject of the inter‑governmental arrangement. Each magistrate, as a matter of federal law, is not obliged to accept the performance of the functions of a magistrate under the Act.
The circumstance that those functions under the Act may be so formulated, as to any one or more of them, in terms which require the taking of steps by the magistrate if conditions precedent or jurisdictional facts be satisfied does not supply a "contrary intention" for the purposes of s 4AAA(6A). Section 46(1) speaks in terms of inter‑governmental arrangement, and not, for example, in the peremptory terms of the law upheld in the First Uniform Tax Case[55], to which reference has been made. Any operative "contrary intention" here would need to spell out that a State magistrate is obliged to accept the obligation to perform the functions of a magistrate under the Act.
[55](1942) 65 CLR 373.
The submissions by the appellants respecting the imposition of a duty rather than a power should not be accepted.
Conclusions and orders
Much attention in submissions was devoted to examination of the legislation of Western Australia and New South Wales under which magistrates are appointed[56]. It was said by the appellants that this showed an absence of the necessary legislative consent to the imposition of duties upon the State magistrates by federal law, and that the statement in the State legislation of the duties of these office holders was exhaustive and thus not to be supplemented by federal‑State executive arrangements.
[56]Local Courts Act 1982 (NSW); Magistrates Court Act 2004 (WA).
It is unnecessary to resolve these issues here. This is because the appellants' case fails at the earlier stage indicated in these reasons, the federal law operating to confer powers rather than impose duties.
The appeals should be dismissed with costs. The application for special leave should be granted, and the appeal treated as heard instanter and dismissed with costs.
KIRBY J.In the opening words of the reasons of Gummow, Hayne, Heydon, Crennan and Kiefel JJ ("the joint reasons")[57], it is recognised that these proceedings concern the operation of the Australian federal system of government.
[57]Joint reasons at [32].

By s 52 of the Constitution Act 1902 (NSW), the office of magistrate of the Local Court is amongst those defined as a "judicial office" for the purposes of Pt 9 of that Act. By s 53, within Pt 9, no holder of a judicial office may be removed from the office except by the constitutional procedure of an address from both Houses of Parliament seeking removal on the ground of proved misbehaviour or incapacity. Holders of judicial office in New South Wales have protection against the abolition by legislation of their office[161]. Whether or not such provisions are "entrenched" and require approval at referendum for their alteration or repeal[162] does not need to be determined here. Clearly, in New South Wales the office of "magistrate" is one of very high constitutional importance in terms of the government of the State. For the deployment of such "magistrates" upon duties of office, including administrative, a requirement for the consent of the State Parliament would not be surprising. Indifference or lack of involvement would be astonishing.
[161]Constitution Act 1902 (NSW), s 56.
[162]Bruce v Cole (1998) 45 NSWLR 163 at 166, 203; cf Twomey, The Constitution of New South Wales, (2004) at 736-737.
Supposed NSW State approval: The only legislation identified in the Full Court as constituting approval by the New South Wales Parliament of the inter-governmental "arrangement" for the deployment of State magistrates on "functions" provided for in s 19 of the Act was s 23(2) of the NSW Act. Tamberlin J held that the expression there appearing, "another office or appointment", was "broad enough to cover the functions provided for in s 19(1) [of the Act]"[163]. In my view, with respect, this conclusion was wrong:
(1)First, the reference to "another office or appointment" is, in accordance with established canons of construction, to another office or appointment in and of New South Wales. This conclusion finds support in s 12(1) of the Interpretation Act 1987 (NSW) (a reinforcing provision not present in the statute law of Western Australia). The effect of that provision is that a reference, in a State law, to an "office" or "officer", is presumed to mean an office or officer "in and for" the State[164]. Whilst the presumption may be displaced by a "contrary intention"[165], there must be some "positive reason which supports"[166] such a result. There is no such reason here. Given that the office of magistrate is specially a constitutionally protected "judicial office" in New South Wales, it is entirely unsurprising that the State Parliament would exhibit an intention to confine the exercise of the functions and powers of a magistrate only to those expressly provided for by State law. The reservation of such matters to State law involves nothing more than affording appropriate constitutional respect to the State Parliament concerned;
(2)The reference in s 23(2) of the NSW Act to the ability to "hold" another "office or appointment" confirms what is otherwise evident. Thus, a magistrate might be "appointed" to another State tribunal[167]. On the face of things, this is the kind of separate "office or appointment" contemplated by s 23(2). It is distinguishable from the performance of federal "functions" under s 19 of the Act;
(3)The reference to a person holding the functions of the office of magistrate and another office suggests the contemplation of a different office from that of "magistrate". Yet the whole point of s 19 of the Act is to enlist State office-holders who are "magistrates", inferentially because of the very integrity, experience and skills inherent in their office; and
(4)The inaptness of s 23(2) of the NSW Act to perform the functions propounded for it should cause no surprise. Clearly enough, those who drafted s 46 of the Act thought that State legislation was unnecessary. For the reasons already given, that assumption was constitutionally erroneous.
[163](2007) 161 FCR 220 at 234 [62].
[164]See Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36 at 52-53; [1955] HCA 5; Tobacco Leaf Marketing Board of NSW v Corte [1983] 3 NSWLR 10 at 13.
[165]Interpretation Act 1987 (NSW), s 5(2).
[166]Birmingham University and Epsom College v Federal Commissioner of Taxation (1938) 60 CLR 572 at 576; [1938] HCA 57.
[167]As for example under s 13 of the Administrative Decisions Tribunal Act 1997 (NSW), or s 7 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW).
Conclusions: no NSW approval: It follows that, as in Western Australia, no approval on the part of the New South Wales Parliament for the variation, modification or supplementation of the duties of magistrates under the NSW Act has been shown. There is therefore no consent by State law for the performance of those duties. It was not competent to the executive government to vary the duties stated in the NSW Act. Nor was it competent to the Federal Parliament unilaterally to impose those duties without "mirror" or "counterpart" legislation of the State Parliament giving approval to that course.
It follows that the applicant, Mr Williams, has made good his attack on the validity of the purported performance by a New South Wales magistrate of the functions provided under s 19 of the Act. He too is entitled to the relief sought.
Towards sensible constitutional outcomes
A critique of criticisms: It might be said that the points raised by the appellants are technical, having nothing to do with the factual merits of the several claims of the extradition countries for their extradition. However, where "technical" objections raise important constitutional principles, they must be resolved conformably with the Constitution. At stake is observance of the rule of law and obedience of all affected office-holders to the requirements of the Constitution. If this Court does not uphold the basic principles of the Constitution, to whom can the people of the Commonwealth look for the discharge of that function?
It might further be said that the Act and the impugned inter-governmental arrangements are an example of sensible cooperation within the Australian federation, and should be upheld for that reason. However, no amount of cooperation between governments can cure a demonstrated defect in obedience to constitutional requirements[168]. The true "cooperation" required in this case was a form of intergovernmental cooperation involving the respective parliaments of the States concerned.
[168]Re Wakim (1999) 198 CLR 511 at 576-577 [113].
To the argument that, for more than a century, State magistrates have been involved in extradition hearings, and that this sensible arrangement should not be disturbed, there are several answers. For most of the 20^th century, such magistrates performed their functions under an Imperial statute[169] or a federal Act giving it effect in Australia[170]. In recent years, the federal law has changed, as has the role of magistrates under that law[171]. When a specific challenge to the operation of present law is brought, this Court cannot disclaim its functions because the challenge was not raised earlier. Nor do federal constitutional requirements meekly observe earlier Imperial assumptions, which characteristically were untroubled by the features of federal governance here in question.
[169]Extradition Act 1870 (UK); Extradition Act 1895 (UK).
[170]Extradition Act 1903 (Cth). See also Extradition Act 1933 (Cth).
[171]See Extradition (Foreign States) Act 1966 (Cth); Extradition (Commonwealth Countries) Act 1966 (Cth); Extradition (Repeal and Consequential Provisions) Act 1988 (Cth).
Any suggestion that the need to enact "mirror" or "counterpart" legislation is an unnecessary burden on inter-federal cooperation must be firmly rejected. There are countless examples of such legislation[172]. When needed, such legislation can be quickly proposed to the State Parliament concerned and generally enacted without delay. That process observes the dignity and respect due to the State Parliaments under the Constitution. Even more importantly, it respects the federal character of Australia's constitutional arrangements and the accountability of the Parliaments concerned to the electors both in the Commonwealth and the States. This Court should uphold the status and role of State Parliaments in our constitutional arrangements. It should not sanction laws that ignore them.
[172]Twomey, The Constitution of New South Wales, (2004) at 840-843, referring to, for example, Air Navigation Act 1938 (NSW), Competition Policy Reform (New South Wales) Act 1995 (NSW), Australian Crime Commission (New South Wales) Act 2003 (NSW) and so forth.
A sensible outcome: Had the Western Australian and New South Wales Governments proposed amendments to the WA Act and the NSW Act to permit State magistrates to perform federal functions, it is extremely doubtful that such amendments would have been rejected. However that may be, approval or disapproval was a matter for the Parliaments concerned.
Those Parliaments should not have been bypassed leading to the unedifying attempt to squeeze the requisite State permission out of statutory language intended for other purposes, or, when this proved unsustainable, to resort to the unconvincing statutory fiction that the magistrates were no more than personal volunteers, although deploying powers that impinged directly on the liberties of people such as the appellants. As the majority reasons of four Justices said in Ha v New South Wales[173]:
"When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates – its practical operation – must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices."
[173](1997) 189 CLR 465 at 498 per Brennan CJ, McHugh, Gummow and Kirby JJ; [1997] HCA 34.
Inter-governmental and inter-jurisdictional cooperation is often desirable. However, such cooperation must be attained within the framework of the Constitution, under which the Parliaments of the States (representing all of the State electors) enjoy functions and powers that cannot be exercised solely by executive agreements without specific legislative authority[174]. An insistence on this attribute of federal "dualism" is not only necessary because of the terms of the constitutional text. It is also more likely to achieve the dual objectives of federation: cooperation upon agreed matters under appropriate terms and conditions and diversity, disagreement and experimentation where that is lawful and appropriate[175].
[174]Saunders, "A New Direction for Intergovernmental Arrangements", (2001) 12 Public Law Review 274 at 279-281; Saunders, "Intergovernmental agreements and the executive power", (2005) 16 Public Law Review 294 at 310. See also Saunders, "The Impact of Intergovernmental Arrangements on Parliaments", (1984) 9 Legislative Studies Newsletter 22; Saunders, "Administrative Law and Relations Between Governments: Australia and Europe Compared", (2000) 28 Federal Law Review 263 at 290; Hill, "R v Hughes and the Future of Co-Operative Legislative Schemes", (2000) 24 Melbourne University Law Review 478 at 493.
[175]See eg Twomey, The Constitution of New South Wales, (2004) at 842, referring to Federal and State legislation concerning the practice of human cloning and the use of human embryos for research. Differing legislation was enacted in the States, following which, after further debate, the federal legislation was amended. See Prohibition of Human Cloning Act 2002 (Cth) (as enacted); Research Involving Human Embryos Act 2002 (Cth); Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 (Cth).
In the present cases, it can hardly be said that making the required amendments to the WA Act and the NSW Act would have been a great burden. However, had it been done, it would have meant that the State Parliament, which created the office of magistrate, would have had the opportunity and duty to address its attention to, and give its assent for, the imposition of federal functions. Perhaps doing so would have called specific notice to the need for appropriate financial or other contributions to be made by the Commonwealth in respect of the federal component of the work of the State magistrates concerned. Moreover, one could theoretically envisage the attempted imposition of some federal administrative functions upon State magistrates which, either because of their character or their burdens, the State Parliament might prefer not to accept.
Upholding the Constitution consistently: This is the way, in such important matters, that the federal system of government operates in Australia. The appellants were correct to assert that clear State legislation was required for the imposition of the functions set out in s 19 of the Act. None was enacted. I can only repeat what Gummow and Hayne JJ said in this respect in Re Wakim[176]:

"A federal structure of government involves the demarcation of powers and … this has been understood as placing upon a court such as this Court responsibility to construe the Constitution and to determine where the line falls in particular instances. The Court is entrusted with the preservation and application of constitutional distinctions. Were the Court to discard those distinctions, on the ground that at a particular time and to some minds they appear inconvenient or otherwise unsatisfactory, the Court not only would fail in its task but would exceed its authority."
[176](1999) 198 CLR 511 at 569 [94].
Orders
The following orders should be made:
In the appeal by Mr O'Donoghue and the appeal by Mr Zentai, order that each appeal be allowed; that, in each case, the order of the Full Court of the Federal Court of Australia be set aside; that in place of such order the appeal to the Federal Court be allowed; the order of the primary judge (Siopis J) be set aside; and in place of that order this Court should order that the second respondent in each proceeding be prohibited from conducting proceedings to determine whether the applicant is eligible for surrender for extradition pursuant to s 19 of the Extradition Act 1988 (Cth). The first respondent should pay the appellants' costs of the appeal to this Court and of the proceedings in the Federal Court.
In the application by Mr Williams, special leave should be granted; the appeal should be treated as instituted, heard instanter and allowed and the orders of the Full Court of the Federal Court of Australia should be set aside. In place of those orders, this Court should order that the second respondents be restrained from hearing and determining any proceedings under s 19 of the Extradition Act 1988 (Cth) to decide whether Mr Williams is eligible for surrender to the United States of America. The first respondent should pay the costs of Mr Williams in this Court and in the Federal Court.