O'Donoghue v Ireland & Anor; Zentai v Republic of Hungary & Ors; Williams v Us & Anor

[2007] HCATrans 744

[2007] HCATrans 744

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P40 of 2007

B e t w e e n -

VINCENT THOMAS O’DONOGHUE

Appellant

and

IRELAND

First Respondent

GRAEME NEIL CALDER

Second Respondent

Office of the Registry
  Perth  No P41 of 2007

B e t w e e n -

CHARLES ZENTAI

Appellant

and

REPUBLIC OF HUNGARY

First Respondent

STEPHEN HEATH

Second Respondent

MAGISTRATES COURT OF WA

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Office of the Registry
  Sydney  No S410 of 2007

B e t w e e n -

LARRY RICHARD WILLIAMS

Applicant

and

UNITED STATES OF AMERICA

First Respondent

MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NSW

Second Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 DECEMBER 2007, AT 10.04 AM

(Continued from 5/12/07)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Gageler.

MR GAGELER:   Your Honours, I need to deal with Austin and with Printz, with Professor Tribe’s criticism of Printz, and with the aftermath of Printz in the United States.  All of that is in support of our contention that there is a per se breach of the Melbourne Corporation principle where a State officer is singled out for the imposition of a Commonwealth administrative duty without State approval, that is, the vertical separation of powers to which I referred yesterday.

Could I deal first though with Justice Gummow’s question to me, and that is why do we say that there needs to be State legislative approval where the duty is imposed on a State statutory officer and, in particular, how do we deal with the points made in paragraph 6(2) and paragraph 7 of the Victorian submissions. 

Your Honours, our attempt in our written submissions to state the constitutional proposition in a pithy and provocative way led to it being too cryptically expressed and has led to a misunderstanding of what we were saying.  We did not mean by the reference to the Case of the Seven Bishops to set a hare running back to Tudor England ‑ ‑ ‑

HEYDON J:   Stuart England.

MR GAGELER:   Stuart England, I am sorry.  We meant only to emphasise the ancient origins of the fundamental nature of one aspect of our argument as to the constitutional relationship under section 106 between State Executives and State legislatures.  The constitutional proposition, stated more fully and for the avoidance of ambiguity, is that which I sought to put fairly precisely yesterday in the transcript, beginning at page 4, line 66, and continuing through to page 5, line 114.  May I repeat just the first paragraph of that explanation?  I said:

Starting with the constitutional premise, stated with its otherwise implicit qualifications spelt out it amounts to this[:]  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.

I did then go on expressly to accept and adopt what was said in the Western Australian submissions from paragraphs 30 through to 32.  Can I take your Honours to paragraph 32 of the Western Australian submissions.  Perhaps I should start at paragraph 30.  It is said in paragraph 30 that:

The Appellants’ submission that the State approval must be legislative is said to flow from the proposition that the State executive has no power to alter or detract from State legislation.  The correctness of that proposition cannot be doubted –

Then paragraph 32:

This Court has often construed Commonwealth legislation conferring functions on Commonwealth officers and statutory authorities as requiring the officers and authorities in question to have and exercise only such powers as the Commonwealth Parliament has chosen to vest in them.  If a provision in State law were to be construed in the same manner, and defined those functions in a way that did not allow for the Governor to approve the conferral of additional functions, then the Governor could not lawfully give such an approval.  However, the question is always one of construction of the relevant State law.

We accept that entirely.  If one goes to the Victorian submissions at the paragraphs your Honour Justice Gummow referred me to, paragraph 6(2) makes in language that we would not entirely adopt essentially the same point as paragraph 32 of the Western Australian submissions, that is, that:

For that principle to apply here, it would be necessary to find in the relevant constitutive State legislation either a provision prohibiting State magistrates from performing any duties other than those expressly provided for under that legislation, or a provision expressly or implicitly declaring that the stipulated duties are to be exhaustive and exclusive.

We accept that.

GLEESON CJ:   In your proposition, and I forget the precise words, but I think he used the expression “impose a duty” et cetera.

MR GAGELER:   Yes.

GLEESON CJ:   The Extradition Act of the Commonwealth in section 46 says that:

(1)The Governor‑General may:

(a)arrange with the Governor of a State for the performance . . . of the functions of a magistrate under this Act –

MR GAGELER:   Yes.

GLEESON CJ:   On the true construction of the Extradition Act, what happens if the Governor‑General does not arrange with the Governor of the State for the performance of the functions of a magistrate?

MR GAGELER:   Then you do not have a magistrate within the definition in section 5 of that Act.  I will turn to that in due course, your Honour.

GLEESON CJ:   And you do not have section 109 operating?

MR GAGELER:   You just do not have the Act engaged because the Act confers the functions on a magistrate and “magistrate” is defined in a way that you need to find a magistrate of a State in respect of whom an arrangement is in force under section 46.  So absent an arrangement, you do not have the defined individual.

GLEESON CJ:   The Commonwealth statute imposes a duty provided the Governor of the State agrees.

MR GAGELER:   That is correct, yes.  That is the way it works.  It is State Executive approval.  Our point is that it needs to be State legislative approval where the functions of a magistrate are otherwise exhaustively defined by State legislation.  Which brings me, your Honour, to a question your Honour the Chief Justice asked of me yesterday, and I think your Honour asked it in a couple of different forms.  You referred to the history of State magistrates.  Typically for much of the 20th century and probably before being State public servants ‑ ‑ ‑

GLEESON CJ:   And performing many administrative functions.

MR GAGELER:   And performing many administrative functions, can we say this.  It may be that for much of Federation, and it may be that in 1953 when Thornton was decided, and in 1966 when the first Extradition Act (Cth) was enacted, or in 1988, for the most part at least, when the current Extradition Act (Cth) was enacted, that the functions of magistrates were not exhaustively defined by State legislation.  We do not wish to make a sweeping proposition that would necessarily suggest that legislative practice throughout the 20th century was in some way deficient.

We focus upon the particular position as it now exists, and certainly as it exists in New South Wales and Western Australia, as I will show you when we get to the New South Wales Act.  We think there simply cannot be any doubt now but that the New South Wales Act purports to define exclusively the functions of a person who holds the position of a State magistrate.

GUMMOW J:   It depends on what you mean by exclusively, does it not, and exhaustively?

MR GAGELER:   Exhaustively, your Honour.

GUMMOW J:   Against what has been a practice over a century of this particular form of Commonwealth/State activity?

MR GAGELER:   Your Honour, there are two things to say about that.  One is, obviously the State Act can say nothing, or if it did say anything it would be superfluous, about the conferral of Commonwealth judicial power on a State judicial officer.

GUMMOW J:   That is right.

MR GAGELER: Section 77(iii) simply does that. It would also have been superfluous for State legislation establishing State courts throughout the 20th century and before to have attempted to say anything about the application of Imperial law, at least up until 1986. It simply applied. So, the Imperial extradition legislation simply applied. But, insofar as administrative functions, or duties in particular, might be sought to be imposed on those State officers, and it may well have been at earlier times that the functions of those State officers were not cast in exclusive terms, and it may well be that what has happened more recently is simply a legislative oversight but it is a legislative oversight on the part of the States which has lying behind it the important constitutional principle, in our submission.

GLEESON CJ:   When you say the functions of those officers are cast in exclusive terms, let me take a specific example.  I do not know if it still goes on but certainly for many years one of the functions of magistrates in New South Wales was performed by a person who used to be called the chamber magistrate.  Do you remember that?

MR GAGELER:   No, I am sorry.

GLEESON CJ:   When you used to go to a Court of Petty Sessions ‑ ‑ ‑

HAYNE J:   That was not the politic answer, Mr Gageler.

MR GAGELER:   Just honest, your Honour, I am sorry.

GLEESON CJ:   Let me tell you about the olden days.  When you would go to a Court of Petty Sessions there would be a room very near the front door and there would be a lot of people sitting in chairs waiting to get into the room.  The room was occupied by the chamber magistrate who used to, in effect, give legal advice to indigent people, people who could not afford the services of lawyers.  Now, that was a very important social service that was performed by magistrates but where it fitted into legislative and administrative functions is not quite so clear and what statutory provision there ever was defining the role of the chamber magistrate I am not sure.  I have certainly never come across it.

MR GAGELER:   No. Your Honour, I do have some familiarity with a similar circumstance in country registries of Courts of Petty Sessions where the magistrate used to perform virtually all of the functions of an administrative kind as well as a judicial kind and that, as your Honours will see when you get to the particular Western Australian legislation, is specifically covered in the legislation. Indeed, it is the explanation for one of the particular provisions that one finds in section 6 of the Western Australia Act but I will come to the precise legislation in due course.

KIRBY J:   It is probably fair to say that the enhanced judicial independence of the magistrates is one of the greatest changes that has occurred in the judicature of Australia in my lifetime.  Indeed, there are books written and there are some articles written and it has happened throughout the nation.

MR GAGELER:   Yes.  I think that New South Wales led the way in 1982 before the Extradition Act 1988 (Cth). Most States have followed since.

Your Honour Justice Gummow drew our attention usefully to some pre-World War II legislative practice in the income tax field.  We did some work overnight.  To do a survey of legislative practice in that period properly we would need a little more time, but your Honours probably have, I hope, a little bundle of legislative material that we have drawn together.  I provide it simply for the purposes of illustration and in answer to a question.  I do not think I am attempting to get very much out of it.

Your Honour referred to the Income Tax Assessment Act 1940 (Cth). Your Honour referred to section 221P which in the print that you have I think should be at page 154. Section 221P in the specific terms contemplated that the arrangement to which it referred would be an arrangement that received State legislative sanction.

We have given you also the Western Australian Act of 1940, the Income Tax Assessment Act (No. 12) 1940, which at page 43, section 22 was the source of State legislative approval for the entering into of that arrangement.  We have also given your Honours the Income Tax (Collection) Act 1938, or an extract from it, just a one page extract.  Section 16A, which was inserted by that Act, allowed for the entering into of an arrangement between the Commonwealth and the State.  It does not expressly contemplate State legislative approval for that arrangement, but we have also given your Honours the Income Tax Assessment Act 1939 (WA) which at page 105 within section ‑ ‑ ‑

KIRBY J:   Would it be permissible for a State Parliament to enact a law in general terms which said that the Parliament gives approval to the entering into arrangements with the Governor‑General for the performance by all persons and officers created by State legislation of matters incidental to or compatible with the performance of those functions?

MR GAGELER:   Yes.

KIRBY J:   That would be the approval by the Parliament that you say is the missing integer in this case?

MR GAGELER:   Yes, that is right. Yes, your Honour. You see, anyway, at page 105 the equivalent State legislation or the mirror State legislation. I think your Honour Justice Gummow may have also referred to section 15 of the Income Tax Assessment Act 1936, which I hope your Honours have, again contemplating arrangements between the Governor‑General and the Governor of a State for the collection by the Commonwealth on behalf of the State of income tax at rates fixed by the Parliament of the State. Within Western Australia, in any event, if you look to the Land and Income Tax Assessment Act 1922 which we have given your Honours, section 2 of that introduced an amendment to an earlier Act of 1921 which provided that:

Officers of the Commonwealth Taxation Department shall be deemed public officers within the meaning of –

an earlier collection Act.

Usefully, but not critically for our argument, what is illustrated by those provisions is a legislative practice by which State officers were authorised by State legislation to perform functions under Commonwealth law. 

Your Honours, there is of course also a very significant post‑Hughes legislative practice within the Commonwealth of providing specifically for Commonwealth officers to be able to perform State functions consistently with the performance of their duties of office.  We will just give your Honours two examples, but there are many.  One is in the Australian Crime Commission Act 2002 at section 55A. There are others in the Trade Practices Act 1974 section 44ZZM and section 150F.

GUMMOW J:   We looked at that briefly in the Pipeline Case, I think.

MR GAGELER:   Yes, your Honours would have, but there are many.  Can I then return to the excurses through the cases.  There is very little more that I want to say.  What I want to say does not go directly to the point of the need for State legislative approval but, rather, the need for State approval.  I ought to have mentioned the Australian Education Union Case 184 CLR 188 in chronological order yesterday. I did not. The question here was as to the extent to which a Commonwealth law of general application under section 51(xxxv) could be made applicable to regulate the employment relationships between the States and their officers.

There are just two passages that I wanted to draw your Honours’ attention to specifically.  After surveying usefully and at some length the earlier case law relating to implied immunity of the States from Commonwealth impositions, at the top of page 232 the Court said, in the third line:

The exercise of Commonwealth power “to control the States” would be an exercise of power inconsistent with the continued existence of the States as independent entities and their capacity to function as such.

It must be remembered that their Honours were not talking about a law that singled out the States here, their Honours were talking about a law that was expressed in general terms.  At page 233 it is said:

In our view, also critical to a State’s capacity to function as a government is its ability, not only to determine the number and identity of those whom it wishes to engage at the higher levels of government, but also to determine the terms and conditions on which those persons shall be engaged.  Hence, Ministers, ministerial assistants and advisers, heads of departments and high level statutory office holders, parliamentary officers and judges would clearly fall within this group.  The implied limitation would protect the States from the exercise by the [Commonwealth] Commission of power to fix minimum wages and working conditions in respect of such persons and possibly others as well.

I mention that because it is really background to what some of your Honours had to say in Austin.  So can I return to Austin 215 CLR 185.

I had yesterday, looking at the joint judgment, drawn your Honours’ attention to the very general and high level statement of principle at paragraph 115.  I had then drawn attention to the more specific applications of that high level principle at paragraph 130 and, in particular, one of the applications was isolated, that is, paragraph (b), “a law which discriminates”, meaning singles out, the States “in order to curtail their freedom in the execution of their constitutional powers”.  Melbourne Corporation is said to fall within that category.

I was about to go to paragraph 177 and following where an argument broader and more general than the argument that we seek to put in these proceedings was dealt with or at least noted.  Again, it is important to recognise that the joint judgment here was dealing with a law of general application which imposed a requirement on all employers to perform particular functions, actuarial functions, in this case and that is the context in which this discussion occurs.  I will not read 177, but picking up 178:

Further, South Australia emphasised that the actuarial calculations served only the purposes of federal law.  Reference was made to narrowly divided decisions of the United States Supreme Court –

and there is mention there of Printz, amongst others –

supporting an implication in the United States Constitution which would restrain the unilateral imposition by a federal law upon State officials of functions under that federal law.

In the next paragraph:

In Australia, there are a number of express provisions imposing various federal duties and functions upon State officers and institutions –

and they are then mentioned.  It is then said:

The exercise of Commonwealth legislative power validly may burden the States in similar fashion.  The upholding in the First Uniform Tax Case of the validity of the conscription of State public servants by the Income Tax (War-Time Arrangements) Act 1942 (Cth) provides a striking illustration of the use of the defence power.

Yes, it does, and as we pointed out, or at least as part of our argument, it is the exception that emphasises the rule.  It is then said:

On the other hand, it was decided in The Commonwealth v New South Wales –

that is Royal Metals Case –

that the power in s 51(xxxi) did not support a law requiring registration under State law of land compulsorily acquired by the Commonwealth without compliance by it with the conditions imposed by State law.  That reasoning is consistent with that of Dixon J in the Banking Case, to which reference is made at 251 [130].

We see your Honours there as saying that that is an example of a category (b) law mentioned at paragraph 130.  Then at paragraph 181 it is said:

In the end, the complaint here is that consistently with, and perhaps in development of, the reasoning in Australian Education Union, 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.  That is a large proposition and best left for another day.

Our proposition is not quite as large as that.  We are concerned with the singling out of States for the imposition of a particular Commonwealth administrative duty.  We are not concerned, as the Court was in that case and in the Australian Education Union Case, with a law of general application which imposed duties on all employers, including the States.

KIRBY J:   Are there not two federal constitutional propositions at work here?  One is that federal legislation cannot, at an extreme end, impose on State functionaries duties which would undermine the existence and operation of the State as a State.

MR GAGELER:   Yes.

KIRBY J:   But there is a lesser principle which says that they may not intrude out of the federal sphere into imposing obligations on State functionaries as State functionaries simply because they are State functionaries.

MR GAGELER:   Yes, your Honour, entirely.  They have the same ‑ ‑ ‑

KIRBY J:   You do not have to invoke the extreme principle.

MR GAGELER:   Exactly.  They have the same root, but they have particular manifestations.  Your Honour the Chief Justice at paragraph 27 in the same judgment made, for our purposes, a useful reference to Printz.  Your Honour said in paragraph 27 about a third of the way through the paragraph:

As was pointed in the opinion of the Supreme Court of the United States in Printz v the United States, in a case where it is claimed that the incidental application to the States of a federal law of general application excessively interferes with the function of State governments, it may be material to measure the burden imposed.  But where the argument is that a federal law compromises the structural framework of the federal system, in such a way that the principle of federalism is offended, then the outcome of that argument cannot depend upon a comparative assessment of the governmental interests that are advanced or affected.

Your Honours, can I then turn to ‑ ‑ ‑

HAYNE J:   I notice in relation to Printz that Mr Selway, whose argument this principally was, is recorded at 196 of 215 as saying:

However, much of the reasoning in Printz cannot be directly applied – 

at about point 4 of the page.  Mr Gageler, you see that?

MR GAGELER:   Yes.  I do not want to say anything about that, your Honour.  I will say what I have to say about Printz itself. If your Honours turn to 521 US 898, perhaps I can attempt to respond a little more to your Honour’s question. Obviously any comparative constitutional law needs to be approached with some caution, but the structure of the Australian Constitution in relation to the relationship of the States to the central government is basically the same model as in the United States. Therefore, the Melbourne Corporation analysis drew heavily upon the United States authorities and the United States authorities have been referred to frequently in this field ever since.

So we use Printz, your Honours - obviously not as direct authority, it is not in any way binding – but as an illustration of the United States Supreme Court seeing within the structure of the United States Constitution exactly the same principle that we say your Honours should see within the structure of the Australian Constitution. 

The Court there was concerned with the Gun Control Act, also known as the Brady Act, the provisions of which are summarised at pages 902 through to 904, the material effect of which is then summarised at 904 just after the heading “II” where it is said:

From the description set forth above, it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme.

In so doing, the Brady Act was held to be invalid by majority.

At page 907 the court looks at legislative history in the US and legislative history formed a large part of the analysis both of the majority and of the dissentients.  Interestingly, within that legislative history there is a reference to extradition at page 908 where it is said in the third line that:

The only early federal law the Government has brought to our attention that imposed duties on state executive officers is the Extradition Act of 1793, which required the “executive authority” of a State to cause the arrest and delivery of a fugitive from justice upon thee request of the executive authority of the State from which the fugitive had fled . . . That was in direct implementation, however, of the Extradition Clause of the Constitution itself –

Of course, extradition within the Australian context is not the subject of a particular head of Commonwealth legislative power.  As your Honours have held only recently, the Extradition Act is an exercise of the more general external affairs power.  At page 918, at the bottom of the page in the fourth last line, it is said:

It is incontestable that the Constitution established a system of “dual sovereignty.”

Building upon that notion, at page 932, and this is ‑ ‑ ‑

KIRBY J:   That seems to smack a little bit of the early doctrine in this Court where they say the States retained a residuary and inviolable sovereignty of their own?

MR GAGELER:   Yes.

KIRBY J:   I do not know that that translates so easily into our environment, certainly in recent years.

MR GAGELER:   No.  We do not like the word “sovereignty” and it is quite misleading in the Australian context to refer to “sovereignty” but the word “dual” I will show you, your Honour, has been picked up.  But, yes, we are not seeking, obviously, a return to the old immunity of instrumentalities doctrine, far from it, but a rather more ‑ ‑ ‑

KIRBY J:   It is a much overused and misused word in Australia, “sovereignty”. 

MR GAGELER:   Yes, we agree with that.

KIRBY J:   Talking about the sovereignty of Parliament is completely wrong in an Australian constitutional context, in my opinion.

MR GAGELER:   We are not trying to use that language here.  We are just drawing attention in a comparative way to its use in the United States.  At page 932 there is probably the passage that your Honour the Chief Justice was referring to in Austin.  It is said in the third line at page 932:

There is considerable disagreement over the extent of the burden –

here the judgment was dealing with an argument that the practical burden on the States was only temporary and it was not very great –

but we need not pause over that detail.  Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments . . . But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a “balancing” analysis is inappropriate.  It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect.

KIRBY J:   That is an appeal to what I have described as the second limb.  I mean, the balancing is involved if you are looking at whether it does damage to the capacity of the State to function as a State.  Arguably that is relevant then, but if you are looking at the fundamental question of by what right do you impose this duty on State officers without the authority of the State Parliament, that is an anterior question of principle.

MR GAGELER:   That is right.

KIRBY J:   That does not apply to all officers of the State.  I am not sure about this, but maybe it does apply to members of the judiciary of the State.

MR GAGELER:   It probably applies to all officers of the State who are State functionaries.  Remember the Melbourne Corporation Case itself was concerned with municipalities which were treated as relevantly the State for that purpose.  The Queensland Electricity Case was concerned with electricity boards and electricity authorities, so it is a principle which extends beyond those high level functionaries of central government.  At page 935, then in a very succinct way, the majority sums up the holding in the case.  They say:

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program.  Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly.  The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.  It matters not whether policymaking is involved, and no case‑by‑case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

GUMMOW J:   That is what Mr Selway had in mind when he said you cannot swallow Printz whole, or he was not seeking to have us swallow Printz whole –namely, the reference to dual sovereignty.

MR GAGELER:   That is fine.  I am not asking your Honours to swallow that bit of it either, but can I compare it with something that your Honours ‑ ‑ ‑

HAYNE J:   Just before you do that, what bit are you trying to have us swallow?  What is it you are getting from Printz?  If you disclaim as you, I think must, the dual sovereignty analysis – what is it we get from it?

MR GAGELER:   Your Honour, I am disclaiming the language of sovereignty.  I am not doing anything more.  The passage I am about to take your Honours to is a way I tie it together.  It is in ASIC v Edensor Nominees 204 CLR 559. Here your Honours are dealing with a question arising under Chapter III of the Constitution but your Honours – the Chief Justice, Justice Gummow, together with Justice Gaudron, at paragraph 12 were quoting from an article by Professor Saunders about Commonwealth/State co‑operative administrative schemes. Your Honours said:

The significance of the decision in Re Wakim appears from the following statement:

“Australia is a federation of a dualist kind, consistently with the common law tradition. While some provisions in the Constitution provide for co‑operation, they do not fundamentally alter its dualist character; indeed, if anything, they reinforce it. The nature of the Australian constitutional system needs to be borne in mind in designing co‑operative procedures. The issues at stake essentially are questions of principle.”

Your Honours do not use “dual sovereignty” correctly, but your Honours are picking up the conclusion of an article which is a conclusion expressed in terms which are very, very similar, appropriately similar, in our submission, to the statement of principle expressed in Printz.

KIRBY J:   You did not include Wakim in your list of the chronology of the cases, but it is some time since I have had the unpleasant obligation to read the case, but was not the theory behind that case of the majority view that the States could not impose upon federal office holders State functions?

MR GAGELER:   Yes, it is thematically, your Honour, similar to the argument.

GUMMOW J:   Chapter III case.

MR GAGELER:   It is a Chapter III case and I am not making ‑ ‑ ‑

GUMMOW J:   The proposition you have accepted is far too wide, it is a Chapter III case.  This is not a Chapter III case.

MR GAGELER:   Wakim was a Chapter III case.  Professor Saunders’ article was not a Chapter III article. 

KIRBY J:   Yes, but Chapter III is just one part of the constitutional structure and what we have to consider is whether the implication that was derived and given effect in Wakim has some work to do elsewhere in the Constitution. Because Wakim dealt with Chapter III does not mean it is the last word on the question that is now before the Court.

MR GAGELER:   Your Honour, I am not attempting to get anything one way or the other from the Chapter III cases. I can sufficiently make my point without going there. Your Honours did ask me about section 77(iii) of the Constitution. That is usefully an illustration of a specific legislative power on the part of the Commonwealth to impose duties on State officers. To that extent I can usefully refer to Chapter III, but beyond that I do not want to draw anything from it.

Now, Printz in the United States, we have found no adverse judicial comment following Printz.  It has been referred to frequently but not in a way that in any way suggests that the majority decision has not received acceptance since it was decided in ‑ ‑ ‑

CRENNAN J:   Is there anything in Printz that suggests that a State can only consent to an exercise of federal power by legislation?

MR GAGELER:   No, your Honour.  I certainly do not get that out of Printz.

KIRBY J:   The verb used was “conscript”, “cannot conscript”, which rather suggests that their Honours were talking about involuntary imposition of obligations.

MR GAGELER:   They were, and that was in part the way they answered the dissent.  There was a dissent on the part of Justice Stevens, a very lengthy dissent, and it is really – Professor Tribe says that the majority did not adequately answer the dissent.  As we looked at Professor Tribe again in the extract from his textbook in 2000, he has a fairly light‑touch criticism, not of the basic premise in Printz, but what he describes as the bright‑line rule that majority adopted.  He thought that the more flexible approach suggested by Justice Stevens may be appropriate, and one of his criticisms is that the majority does not adequately deal with Justice Stevens’ point that there will be cases in which it will be more federalism friendly, to use Professor Tribe’s language, to let Congress use State officials to do some work rather than having another system of federal bureaucracy. 

The majority, however, did answer that in Printz and they really answered in what they said at the bottom of page 910 referring to some of the same materials as Justice Stevens drew upon.  They said in the last three lines that:

But none of these statements necessarily implies – what is the critical point here – that Congress could impose these responsibilities without the consent of the States. 

There is nothing in Printz that suggests that what they describe as the Constitution involving “dual sovereignty”, what we have described as a constitution of a dual-less kind, prevents federal/State cooperation. It simply prevents, relevantly, the imposition of central government responsibilities on State officials without the consent of the States.

KIRBY J:   At the beginning of his reasons Justice Stephens reserves and puts to one side what he calls the more difficult questions associated with congressional coercion of State legislatures.

MR GAGELER:   Yes, well, they are more difficult, and in Australia there is simply no doubt that the Commonwealth Parliament cannot coerce a State Parliament to enact legislation.  Gerhardy v Brown contains a discussion of that principle by Justice Brennan.

KIRBY J:   But is that not a form of what is happening here, that coercion of a State Parliament with the cosy agreements between the Executive Governments?

MR GAGELER:   Well, I would not put it in terms of coercion of a State Parliament.  I would put it in terms of an attempt.  If we are right, it is to our construction of the State Acts as the State Parliament exhaustively defying the functions of a State office.  What one has in this case is an attempt by State Executives to extend those functions by agreement with the Commonwealth Parliament, yes.

Your Honours, can we just deal very briefly with the one Australian case, and there really is only one Australian case that might be thought to point against the principle for which we contend, and that is Aston v Irvine 92 CLR 353. This was a case where powers were held to be validly conferred on State magistrates under the Service and Execution of Process Act (Cth) without there being any mechanism for State approval of any kind.

It is interesting only in passing, your Honours, to note the circumstances that led to that case being before the High Court and then mentioned at page 362 in the second paragraph of the judgment.  Those facts might be interesting to Mr Meadows.  The case, in our submission, is explicable on either of two bases.  One basis we have set out in our written submissions at paragraph 16, that is, that the case involved Commonwealth legislation which simply conferred a power but did not impose a duty.

The other possible explanation for this case is that given in the Western Australian written submissions at paragraph 28, and that lies in the special nature of the power conferred by section 51(xxiv) of the Constitution. Both of those explanations are entirely consistent with the reasoning of the Court at pages 363 through to 365. Can I just draw your Honours attention to a couple of sentences within that reasoning?

HAYNE J:   Just before you do that, either immediately or at the end of doing that would you explain what you mean – you say your side means when it is said that it is explainable on the basis of the nature of the power in 51(xxiv)?  What is it about 51(xxiv) that sets it apart, but either pre or post coming to the passages?

MR GAGELER:   That is what we believe is answered in the passage that I am about to read, page 364, your Honour, in the fourth line.  It is said:

The nature of this power, as well as the prior history of the subject to which it relates –

that is the prior colonial history –

provides strong ground for interpreting it as enabling the federal legislature to regulate the manner in which officers of the law in one State should act with reference to the execution of the process of another State.

Of course, any statement of the Melbourne Corporation principle is always qualified by the introductory words “unless there is something in the subject matter, content or nature of the power to indicate to the contrary”.  In our submission, one explanation, and it is an adequate explanation, that this case is that that particular head of Commonwealth constitutional power contemplates the conferral of functions on the State officers.  It is of the nature of that power.

GLEESON CJ:   Could the same be said about the nature of the external affairs power in its application to extradition?

MR GAGELER:   In our submission, the qualification needs to be found in the nature of the power itself and not in its application otherwise the principle would pretty much be neutralised as a principle.

GLEESON CJ:   The reference in Printz to the extradition clause in the United States Constitution is perhaps part of the historical context, is it not?

MR GAGELER:   It is and we rely upon that.  We invoke that by pointing to the absence of such a provision in the Australian Constitution for good historical reasons and that is because at Federation extradition was dealt with in accordance with Imperial statutes and, indeed, was right up until the 1960s.  So, it is really the absence of a similar provision in the Australian Constitution that we point to.  The Commonwealth is forced to rely on the general head of power in the external affairs power and that general head of power contains nothing in its subject matter, nature or content which is inconsistent with the general Melbourne Corporation principle.  That is one explanation. 

Then your Honours also see references to what is being involved in this Act as being a simple conferral of power.  I will not read them but you see that really from the bottom of page 364 over to and including page 365, particularly where one of the subsections, section 18(3), was described as nothing more than a bare power, but it is also important to recognise the argument that was being put in that case was really just not the argument that is being put in this case.  The argument at the bottom of page 364 is there described as “a novel argument”.  It is said to be that section 18:

amounts to an attempt to entrust to State officers, officers not appointed pursuant to s. 67 of the Constitution, a function forming part of the executive power of the Commonwealth –

So it was not an argument about coercion of State officers.  It was an argument that was really to the effect that any Commonwealth function needs to be performed by Commonwealth Executive officers, an extremely broad proposition and nothing like what we are concerned with in the present case. 

So, your Honours, constitutionally what we seek to invoke is a particular State immunity from the exercise of Commonwealth legislative power.  We say it arises from the general principle in the Melbourne Corporation Case.  It is a particular per se application of that.  We say it is the mirror image of the Commonwealth immunity from the exercise of State legislative power that was recognised in Cram and in Hughes and we say it is specifically supported by the statement that we have read from Cram and supported by the analogous doctrine in the United States.

KIRBY J:   Do you remember whether in the Imperial Council of Australasia Act before the Federation, which was a precursor to it, did it have any specific facilities for extradition or transfer of persons between the colonies?

MR GAGELER:   I think the answer is no, but we will check.  It was then covered by Imperial legislation, but we will check that, your Honour.

CRENNAN J:   I think in Cram the suggestion was that the States might expressly authorise or impliedly authorise.

MR GAGELER:   Yes, we accept that, your Honour.  The second proposition that we need to make turns on the construction of the Extradition Act and can I turn to that now?

KIRBY J:   Just before you leave the first proposition, could you help me?  I mean, on one level, the notion that between them, in a “co‑operative federalism” - if I can dare use that as I did in Wakim - the idea of Executive Governments making agreements between each other to deploy the relatively small number of civil servants around Australia and government officers to do various things in an efficient way, that seems a sensible thing for our national and federal arrangements.  It has survived in various forms for a long while.  So you are invoking a principle to disturb that.  What is your ‑ ‑ ‑

MR GAGELER:   No, not to disturb it at all.

KIRBY J:   You are requiring a specificity of legislation which has not previously been enacted by State legislatures.

MR GAGELER:   Your Honour, only in this way.  Professor Saunders’ article does not specifically present an argument that is, in terms, the argument that we are presenting.  The theme of Professor Saunders’ article, which is referred to in the Edensor quotation is that it is important that co‑operative schemes between the Commonwealth and the States be achieved in a way that does not undermine the accountability of State Executives to State Parliaments.  Now, that again is the same thing as we are suggesting in the present case.  It is not precisely the same proposition.

HEYDON J:   But accountability.  I mean, the Ministry can be the victims of no‑confidence motion.  The Ministry who carried out this executive Act, they are accountable.

MR GAGELER:   Of course they are accountable, yes.  That is what she was talking about.  What we are talking about is the inability, through executive co‑operation, to alter the incidence of a State statutory office.  That is what we are talking about.

HEYDON J:   I have difficulty and, unless I am wrong, nothing you have said explains why it is that legislative assent is necessary as distinct from executive assent in a world where the Executive is ultimately controllable by the legislature.

MR GAGELER:   Your Honour, it is fundamental, indeed, almost taken for granted, rarely analysed, that ‑ ‑ ‑

HEYDON J:   It can be impossible to justify some things because they are fundamental, but surely this thing is not as fundamental as that, is it?  There must be a reason for it.

MR GAGELER:   Yes, it is.

HEYDON J:   Justice Gummow asked you at the special leave application why you advanced this proposition.

MR GAGELER:   Yes.

HEYDON J:   You said you had not come there to argue that.  You had just come there to advance an interesting point.  Yesterday he asked you why and you have not answered that question.

KIRBY J:   I think you are getting close to the answer now, as I understand it.

MR GAGELER:   With respect, I have answered it at least three times.  I do not want to go back into history but it is axiomatic.

GUMMOW J:   The history is at a time before the development of responsible government, Mr Gageler, well before that.

MR GAGELER:   Your Honour, I make no apology for relying on a proposition that the Executive ‑ ‑ ‑

KIRBY J:   But is it not important always to remember that the Parliament represents all the people.  The Executive Government is elected by a majority of the people but the Executive Government is always answerable to the Parliament and that is a very important element in our democracy.  What Justice Heydon said may be the Realpolitik, or the Executive Government controls the Parliament, but if it ever loses that control, then it is out.

MR GAGELER:   Where it has control of the Upper House it does.  Where it has political control of the Upper House it might.

GLEESON CJ:   That is part of the point.  It is an important part of our democracy but it is not a part of the United States democracy, responsible government.

MR GAGELER:   Yes, but part of the United States democracy, part of our democracy, is a pretty fundamental proposition.  Indeed, it is axiomatic, your Honours, rarely explored because it is so fundamental that the Executive has no power to add to or detract from what is stated in legislation.  If legislation exhaustively defines the incidence of an office, Executive power does not extend to adding to those incidences or subtracting from them.  That is the answer that I gave to Justice Gummow.

GUMMOW J:   The question is, how does that idea, which I can understand perfectly in the United Kingdom as it was 20 years ago – how do you accommodate those notions to the federal structure?  These are not free actors.

MR GAGELER:   No.  I have sought to do that as well, your Honour.

GUMMOW J:   These arms of the States are not free actors in the sense that you have just been speaking of them. In other words, what they can and cannot do has to be looked at first in reliance what the Constitution which establishes them as States after all is said and done and what the Constitution requires for the Constitution to operate.

MR GAGELER:   Yes.

GUMMOW J:   Now, you want to turn it upside down, do you not?

MR GAGELER:   No, your Honour, I do not think so.

GUMMOW J:   And in the course of turning it upside down, diminish the notion of the importance of responsible government within the State structure.

MR GAGELER:   No, not even slightly.  Responsible government is a political manifestation of the subordination of the Executive to the Parliament.  I rely upon the ‑ ‑ ‑

GUMMOW J:   It may be more than that.  It may be something mandated by section 106.  You could not have a State Constitution which did not have responsible government, I imagine.

MR GAGELER:   Your Honour might be right.

KIRBY J:   Nor one that did not have a Parliament.

MR GAGELER:   Co‑existing with the political manifestation of that relationship between the State legislature and the State Parliament is something much more fundamental and much more actioned and that is the legal relationship between those two manifestations of government and the legal relationship is that the Parliament makes the laws and the Executive cannot change them, cannot add to and cannot detract from.  If I need to invoke ‑ ‑ ‑

GUMMOW J:   When you say the State makes the laws ‑ ‑ ‑

MR GAGELER:   The State Parliament makes laws, yes.

GUMMOW J:   - - - its power to make the law is always conditioned upon what is hovering above it, the possibility of what has happened in this case.

MR GAGELER:   Yes, and the State Parliament can provide for the State Executive to modify the operation of a State law - we usually refer to a provision of that nature as a Henry VIII clause – that happens, not often, but it happens – and Henry VIII clauses have been referred to as fundamentally inconsistent with the structure of parliamentary democracy, but they exist, and they exist under State legislation from time to time.  There is no difficulty about them existing in principle.  But absent a provision in the State legislation, your Honours, in our submission, it is axiomatic that the State legislature cannot do anything to change the provisions of State law, and it is the same at the Commonwealth level.

KIRBY J:   The State Executive you mean?  You said the State legislature.

MR GAGELER:   I am sorry, that is what I meant, yes.

KIRBY J:   That was a Freudian slip.

MR GAGELER:   Yes.

KIRBY J:   What you meant to say was that the State Executive cannot change ‑ ‑ ‑

MR GAGELER:   I do not know if it was Freudian, it was a slip, your Honour.

KIRBY J:   Now, in answer to my earlier question, does Professor Saunders’ article, because she is a noted expert on federalism, deal with the issue of whether in a case such as the present – I am putting this poorly but it is the matter that is concerning me. If the Court has a choice between upholding within Executive Government, within Federation the role and functions of Executive Governments to act co‑operatively for the purpose of efficient management of affairs and upholding the role of the State Parliaments that the Court, mindful of the way the Constitution is established in Australia, should uphold the role of the State Parliaments, that is the matter that is concerning me, because we have here the representatives of the Executive Governments. The Solicitors‑General are the representatives of the Executive Governments of the States.

MR GAGELER:   Yes.

KIRBY J:   They may well want to enhance the role of the Executive Governments of the States, but we sit here as the constitutional court of the nation to uphold, as I see it, the role of the Parliaments of the States which represent the whole people.

MR GAGELER:   Yes, that is a theme of Professor Saunders’ article, your Honour, that is that the role of the State Parliaments is diminished by the terms of legislation being the subject matter of agreement between State Executives and then simply foisted upon the State Parliaments.  But let me make it absolutely clear, and I will not say it again, our submission is based not upon broad political notions of accountability, or notions of responsible government, but the notion of the relationship between the Parliament and the Executive that predates even notions of responsible government, the legal relationship between those two arms of government.

GUMMOW J:   You say predates and is unqualified by?

MR GAGELER:   Absolutely, yes.

GUMMOW J:   This is one of the problems the United States got into, you see.  They stopped the clock when they copied British institutions.  The clock was running, hence the problem the Chief Justice mentioned to you.

MR GAGELER:   Yes.  Your Honour, the proposition ‑ ‑ ‑

GUMMOW J:   Hence the structure of Printz.

MR GAGELER:   The proposition that an Executive Government has no power to alter a law made by a legislature is unqualified by notions of responsible government.

KIRBY J:   Amongst the imperfections of our Constitution demonstrated in recent – well, in the history of its development, has been of the responsible government theory, and if you can find any other writing apart from that of Professor Saunders that deals with the matter that concerns me, I would like to have it.

MR GAGELER:   We will look at that, your Honour.  Can I deal then with the statutory questions and I will deal with them fairly quickly.  Your Honours have the Extradition Act to hand. We have provided it in its most recent form. I am afraid there is no very recent reprint. If your Honours go to page 19, you see section 19. It cuts in at the third stage of administrative process that your Honours have looked at, I think, relatively recently. You get a person who has been arrested pursuant to a warrant issued under section 12. The person is then remanded under section 15 and then the Attorney-General gives notice under section 16 that he or she has received an extradition request from a foreign country. In that context, section 19 says that:

(1)Where:

(a)a person is on remand under section 15;

(b)the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c)an application is made to a magistrate by or on behalf of the person or the extradition country concerned –

and a certain procedural matter is complied with – 

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender –

The consequence of that determination being either that the person is committed to prison under subsection (9) to await the decision of the Attorney-General under section 22 or the person is released by order of the magistrate under subsection (10). Now, your Honours, it appears to be disputed but, in our submission, it is clear as a bell that the requirement in section 19 expressed in mandatory terms on application to conduct the proceedings and make a determination of a fixed validity of the individual imposes on the magistrate concerned, that is, the magistrate to whom an application is made, a statutory duty enforceable if necessary by mandamus.

GUMMOW J:   Wait a minute.  Mandamus at whose instant?

MR GAGELER:   The person who makes the application, your Honour.  It may be the person who is on remand and wants to get out.

GLEESON CJ:   “Magistrate” is a defined term.

MR GAGELER:   That is what I am about to turn to. The point I am just making is it is clearly enough a duty. Then “magistrate” is defined in section 5 at page 3. I should say, mandamus obviously not under section 75(v) of the Constitution but mandamus by a State Supreme Court under section 39(2) of the Judiciary Act or by the Federal Court under section 39B(1A)(c) of the Judiciary Act.  Then “magistrate” is defined in section 5, page 3, relevantly to mean:

a magistrate of a State, the Northern Territory or Norfolk Island, being a magistrate in respect of whom an arrangement is in force under section 46.

So you have to find a magistrate of a State and then that there is an arrangement in force in respect of that magistrate under section 46. Then section 46 at page 51 relevantly provides in section 46(1)(a) that:

(1)The Governor‑General may:

(a)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 –

Clearly enough, again, in our submission, the functions of a magistrate under the Act are imposed on a magistrate, not as a court, not as a named individual but as and by virtue of being the current holder of a designated State statutory office.

KIEFEL J:   That rather assumes that all magistrates are obliged to participate, but that is not the case, of course.

MR GAGELER:   My proposition does not turn on any question of whether or not the State magistrates make a voluntary decision to become the subject of an arrangement under section 46(1)(a).

KIEFEL J:   But you cannot really separate the two completely, can you?

MR GAGELER:   I can, your Honour.

KIEFEL J:   I mean, the definition of “magistrate”, on one view, is a magistrate when it says “in respect of whom an arrangement is in force” might mean in respect of whom the arrangement made applies and you read that, section 46(1), “all or any of the persons” because in practical terms the magistrate will have said whether or not they will consent to the undertaking of the task in question.

MR GAGELER:   They may or may not.  We have not explored that factually.  All we know, as a matter of fact, is ‑ ‑ ‑

KIEFEL J:   It is difficult to talk about the imposition of a duty when you have a consensual element to the person to whom it is to be imposed.

MR GAGELER:   No, not at all. There are two levels, your Honour.  There are two levels.  There is the level at which the arrangement under section 46 might be entered into, so there may or may not be consent on the part of any individual magistrate at that time.

KIEFEL J:    You are separating the persona designata question?

MR GAGELER:   No, not really. Answering your Honour’s question, I am separating the point at which an arrangement is entered into which then gives you the defined person, “magistrate” being a magistrate of a State in respect of whom an arrangement is in force and then the duty that is imposed on the making of an application under section 19.

KIEFEL J:   Which you see as an enforceable duty?

MR GAGELER:   Yes, your Honour.

KIEFEL J:   That is your point?

MR GAGELER:   That is the point, yes. So far as persona designata is concerned, one can call the person, the defined person – the person defined as a magistrate by section 5, persona designata, if you like, but it is no answer to the point that we make, that is, that the duty under section 19 is imposed on that person as the holder of a State statutory office, not as a court, and it is always in a context of distinguishing between a court and the office holder who may constitute the court for some purposes under this ‑ ‑ ‑

GLEESON CJ:   That section, 46(1), proceeds upon a legislative assumption that it will be lawful for the Governor of the State to make such an arrangement?

MR GAGELER:   Yes, that is right and that may or may not be true in every case and that is our point.

GLEESON CJ:   Yes, but is that not only your point, is that the question, whether it is lawful for the Governor of the State to make the arrangement?

MR GAGELER:   Ultimately, yes.  Well, whether it is lawful for a magistrate of a state to perform functions under this Act, pursuant to such an arrangement, I think that probably states it more precisely.

GUMMOW J:   But you do not make any distinct point about the necessity for individual consent?

MR GAGELER:   No, we do not.  Your Honour, we might have.  It is an argument that has not been pursued factually and we do not make it before this Court.

GUMMOW J:   Yes, it would have to be pursued factually.

MR GAGELER:   It would and it was not, so we do not make it.  Put against us, your Honours, is a provision of the Crimes Act, section 4AAA and I should take your Honours to that.  It is said that section 4AAA of the Crimes Act prevents a duty arising under section 19 of the Extradition Act.  Section 4AAA was one of the many provisions introduced into Commonwealth legislation after Hughes. It was introduced in 2001. It was amended in 2005 by the addition of subsection (6A) and the argument put against us is that section 4AAA(3) means that a magistrate to whom an application is made under section 19 need not perform the task that section 19(1) in terms requires to be performed. That is, “The person” in terms of section 4AAA(3) “need not accept the function” concerned.

We have two answers to that argument.  One is that subsection (3) gives way to a contrary intention within any particular Act.  Subsection (6A) makes that clear.  It says:

a rule set out in this section does not apply if the contrary intention appears.

In our submission, the structure of section 19 of the Extradition Act and its subject matter involving individual liberty and its language being expressed in mandatory terms are a clear manifestation of a contrary contention.  Separately and, in any event, in our submission, section 4AAA by subsection (1) is expressed only to apply in respect of a law of the Commonwealth relating to criminal matters. 

One has to read the reference to criminal matters with section 21(b) of the Acts Interpretation Act which says that unless the contrary intention appears, references to matters are to be construed as references to matters in and of the Commonwealth and, in our submission, the reference to a law of the Commonwealth relating to criminal matters is a reference to a law of the Commonwealth relating to matters arising under a criminal law of the Commonwealth, a fairly natural construction, in our submission.

GLEESON CJ:   How many?

MR GAGELER:   Not less than three, each of whom is to be a magistrate.  That is the sort of appointment which, in our submission, is contemplated by section 23(2).

GLEESON CJ:   When you say, not less than three, the Governor?

MR GAGELER:  

(1)The Governor may:

(a)appoint as licensing magistrates not less than 3 persons each of whom is a Magistrate –

GLEESON CJ:   So the Governor decides how many there will be?

MR GAGELER:   Yes, that is right.

KIRBY J:   That is pursuant to the State Act?

MR GAGELER:   Yes, of course.

KIRBY J:   Employing State magistrates?

MR GAGELER:   Of course, yes. Your Honours, then to return to a question I was asked in‑chief about the significance, if any, of the definitions in section 4(2) and (3) of the Local Courts Act. Your Honours will recall section 4(2) says:

A reference in this Act to:

(a)a function includes a reference to a power, authority and duty –

Section 4(3)(a) says:

A reference in this Act to:

(a)an Act, other than a reference to this Act, includes a reference to an Act of the Commonwealth –

It is of some significance, in our submission, that section 7(2), in referring to “the jurisdiction conferred or imposed” on the courts, refers to jurisdiction imposed under any Act which includes a Commonwealth Act.  At section 10B(1), in referring to the functions of a registrar of a court, refers to “functions conferred on the registrar by or under this Act, the rules or any other Act”, again including by reference to the definition a Commonwealth Act.  A similar reference to an Act is simply missing in section 23, either from subsection (1) or subsection (2).

Something was sought to be made of what appears now as the reference to “Australian legal practitioner” in section 23(3). Nothing at all can be made of that. That was inserted in 2006 at the same time as section 12(2) was amended to make one of the qualifications from being appointed as a magistrate that the person be an Australian lawyer. There was simply a standardisation of terminology which followed from the Legal Profession Act 2004 (NSW).

So far as the Western Australian legislation is concerned, your Honour the Chief Justice asked me in‑chief what, if anything, makes a magistrate a Justice of the Peace for the purposes of exercising powers as a Justice of the Peace. That is section 12(1)(e) of the Justices of the Peace Act 2004 (WA), a magistrate is automatically a Justice of the Peace.

Your Honour Justice Kirby, in the course of argument, asked for the authority for the common law rule of construction that would confine the references to matters and things to matters and things in and of Western Australia.  The best and most recent authority for that rule of construction is in Solomons v District Court of New South Wales 211 CLR 119 at paragraph 9.

Your Honours, they are the micro things.  The macro thing is this.  Although there are many potential issues floating around in this case, it seems to us to really just come down to a couple of points.  One point is the question of whether the State statute is in each case exhaustive.  The second point, and I do not want to go back to that, the second point though, is if it is exhaustive, does the State Executive in some way have power to consent to the addition of functions beyond that which the legislature has chosen to confer upon the officers concerned ‑ ‑ ‑

HAYNE J:   You used the term “functions” then.  Do you depart from the formula you opened the appeal from?

MR GAGELER:   No, your Honour.  I am getting tired.  I do not.

HAYNE J:   So in what sense in that opening formula at line 72 of the transcript are you using the expression “impose an administrative duty on the holder of” et cetera?  In what sense are you using the term “duty”?

MR GAGELER:   Duty?  I am using it in the sense of a legally enforceable duty, in this case enforceable by mandamus.  That is the precise way.

HAYNE J:   I understood that to be so.

MR GAGELER:   That is the exact way I am putting it, a coercion.  I do not like to use the word “conscription”.  It goes further than I need to go,

but it is a coercive imposition, if the Court pleases.  I do not want to keep saying this, but I seem to be the only one that does say it.  The Executive simply has no executive power, whether you call it prerogative or otherwise, to add to the functions of a statutory office in the same way as the Executive has no power, statutory or otherwise, to alter the content of any other law made by the legislature. 

It was suggested by the Solicitor‑General for South Australia that somehow responsible government can now be treated within the Australian Federation as meaning that the consent of the State Executive can be treated as if it were the consent of the State Parliament.  Let me say, that is fundamentally wrong.  That is absolutely incorrect.  A bicameral legislature such as that which exists in New South Wales and Western Australia consists, obviously, of two houses and a governor.  The State Executive is answerable only to the lower house in any relevant responsible government sense, but even with a unicameral legislature such as that which exists in Queensland, when the Parliament speaks as Parliament, it speaks in legislation.  It does not speak simply through the Executive.

Your Honours, Duncan’s Case 158 CLR 535 was referred to. I do not ask you to turn to it, but at a passage beginning at page 560 and continuing through to page 563 there is a discussion of executive power – in that context Commonwealth executive power – to enter into co‑operative State/federal arrangements. It is quite a useful discussion, but at page 563 it is absolutely clear that his Honour had in mind that if there was to be any alteration to the functions of an office contemplated by an executive arrangement of that type it would be achieved through legislation. If the Court pleases.

GLEESON CJ:   Thank you, Mr Gageler.  We will reserve our decision in this matter and we will adjourn until 10 o’clock tomorrow morning.

AT 4.24 PM THE MATTER WAS ADJOURNED