O'Donoghue v Ireland

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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.

  1. 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),…

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Details
Case
[2008] HCA 14
Decision Date

CaseChat Overview and Summary

These matters concerned appeals from decisions of the Federal Court of Australia regarding extradition proceedings. The applicants, Mr Zentai, Mr O'Donoghue, and Mr Williams, sought to restrain the extradition processes initiated against them by Hungary, Ireland, and the United States of America, respectively. The central issue in each case involved the validity of certain provisions of the *Extradition Act 1988* (Cth), specifically sections 19(1) and 46(1)(a), and their purported imposition of functions on State magistrates. The respondents were either the foreign states seeking extradition or the State magistrates involved in the proceedings.

The High Court was required to determine whether the *Extradition Act* validly conferred powers and imposed duties on State magistrates, and whether such conferral was permissible under the Australian constitutional framework. Specifically, the Court considered whether the Commonwealth could unilaterally impose functions on State officials, and whether the *Extradition Act* intended to apply the rule in section 4AAA of the *Crimes Act 1914* (Cth), which generally allows State magistrates to refuse powers conferred by Commonwealth law. The Court also examined whether State legislation had approved the exercise of these functions by State magistrates, and whether the consent of the State executive government was sufficient to authorise such an imposition.

The Court's reasoning drew upon established principles regarding the relationship between the Commonwealth and the States. It affirmed the proposition that while the Commonwealth may grant authority to State officials to execute federal functions, it cannot unilaterally impose imperative obligations or burdens on them. This principle is rooted in the need for each level of government to retain its capacity to function independently. The Court considered the implications of the *Melbourne Corporation* doctrine and subsequent authorities, which protect the constitutional integrity of the States by preserving their ability to determine the terms and conditions of engagement for their officers. Ultimately, the Court rejected the proposition that the *Extradition Act* invalidly imposed functions on State magistrates, finding that the Act did not unilaterally impose duties without the necessary consent or legislative approval from the States.

In the first two matters, the appeals were dismissed with costs. In the third matter, special leave to appeal was granted, and the appeal was treated as instituted, heard instanter, and dismissed with costs.

Orders

Orders of the court

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. (Majority decision, Gleeson CJ deleivering separate judgment; with Kirby J dissenting)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ KIRBY J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ, KIRBY J

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.