Woss v Jacobsen

[1985] FCA 222

Re: RONALD WARREN WOSS
And: JOHANNES JACOBSEN and CON ZEMPILAS
No. WA G104 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.
Davies J.
Spender J.

CATCHWORDS

Administrative Law - judicial review - appellant brought before a justice of the peace in Western Australia under warrants for his apprehension issued in Queensland under the Service and Execution of Process Act (SEP Act) and endorsed thereunder for execution in Western Australia - refusal of application for judicial review of decision ordering return of appellant to Queensland - appeal - whether court has jurisdiction under Administrative Decisions (Judicial Review) Act to review a decision under s.18 of the SEP Act - whether reference in s.18 of SEP Act to a "law of a State" includes a reference to s.57 of the Justices Act (Qld) as applied by the Judiciary Act - consideration of purpose for enactment of SEP Act - examination of legislative scheme whereby Judiciary Act applies to Justices Act (Qld) in respect of offences against Commonwealth laws - observations concerning elements of a crime of conspiracy - application of sub-para 10(2)(b)(ii) of Judicial Review Act to s.19 of SEP Act - whether in the circumstances s.9 of Judicial Review Act deprives State Supreme Court of jurisdiction under s.19 of SEP Act - consideration of s.10 of the Judicial Review Act and the exercise of discretion thereunder - when discretion should be exercised

Practice and Procedure - circumstances in which a ground not raised on pleadings or argued at first instance may be argued on appeal

Words and Phrases - "law of a State", "review"

Administrative Decisions (Judicial Review) Act 1977 sub-s.3(1); paras 5(1)(c) and (e); 5(2)(b); s.9; para 10(2)(b)

Service and Execution of Process Act 1901 ss.18, 19

Crimes Act 1914 para. 86(1)(e)

Judiciary Act 1903 sub-ss. 68(1) and (2)

Constitution s.51(xxiv)

Justices Act, 1886 (Qld) s.57

HEARING

PERTH
#DATE 5:6:1985

ORDER

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

The appellant appeals from a judgment of a single Judge of this Court delivered on 30 October 1984, dismissing an application to review a decision of the second respondent, a stipendiary magistrate, made on 27 July 1984 in the Court of Petty Sessions at Perth.

The application to this Court was made under the provisions of the Administrative Decisions (Judicial Review) Act 1977. The decision sought to be reviewed was one whereby the second respondent ordered the return of the appellant to Queensland pursuant to s.18 of the Service and Execution of Process Act 1901. The questions before the primary Judge were whether the second respondent had jurisdiction to make the order he did (Judicial Review Act para. 5(1)(c)) and whether the making of the decision was an improper exercise of power, in particular whether the magistrate failed to take into account a number of relevant considerations (Judicial Review Act paras 5(1)(e) and 5(2)(b)).

The background to the proceedings in the Court of Petty Sessions may be stated quite shortly. On 28 February 1984 Clive Evans, a stipendiary magistrate and justice of the peace in Queensland, issued seven warrants for the apprehension of the appellant, in each case in relation to the charge of an offence against para. 86(1)(e) of the Crimes Act 1914. That paragraph makes it an indictable offence to conspire with another to defraud the Commonwealth or a public authority under the Commonwealth. Each warrant was issued under the provisions of s.57 of the Justices Act 1886-1979 (Qld.) and each was thereafter endorsed under the provisions of the Service and Execution of Process Act for execution in Western Australia and to bring the appellant before a justice of the peace in that State. The appellant was brought before the second respondent who discharged the appellant from custody in respect of five of the warrants. He did so on the ground that it would be unjust or oppresive to return the appellant to Queensland - sub-paras 18(6)(c) and (d) of the Service and Execution of Process Act. In respect of the remaining two warrants, he ordered the return of the appellant to Queensland. The appellant lives in Western Australia; he did not suggest that the use of the word "returned" in sub-s.18(b) required his presence in Queensland at the time the offence was committed.

The attack on the jurisdiction of the second respondent to execute the two warrants against the appellant was made because of the language of sub-s.18(1) of the Service and Execution of Process Act. Before a warrant may be endorsed for execution outside the State in which it was issued, the warrant must have been issued "in accordance with section 16 or the law of a State or part of the Commonwealth". Section 16 is concerned with subpoenas and witness summonses and is of no relevance in the present case. The submission of the first respondent, the arresting police officer, was that the warrants had been issued in accordance with the law of a State viz. the Justices Act 1886 of Queensland. The appellant challenged this submission.

His Honour dismissed the application. He did so in reliance upon para. 10(2)(b) of the Judicial Review Act which empowers the Court, in its discretion, to refuse to grant an application for the reason:

" . . .

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure".

In his Honour's view, s.19 of the Service and Execution of Process Act made adequate provision by which the appellant was entitled to seek a review by the Supreme Court of Western Australia of the decision of which he complained. In arriving at that conclusion it was necessary for his Honour to determine that the jurisdiction of the Supreme Court to review the magistrate's decision was not ousted by s.9 of the Judicial Review Act. He so held, for reasons which it will be necessary to examine. Before considering the exercise of his discretion, the primary Judge dealt with the question of the jurisdiction of the second respondent to act pursuant to s.18 of the Service and Execution of Process Act. His Honour upheld that jurisdiction. Because he thereafter declined to deal with the application, in reliance upon sub-s.10(2) of the Judicial Review Act, his Honour found it unnecessary to determine whether there had been an improper exercise of power by the second respondent.

The appellants' grounds of appeal were amended when the hearing of the appeal began and again before it had concluded. The first respondent did not formally oppose the granting of leave to amend the grounds of appeal but reserved the right to argue that it was not open to the appellant to raise the matters added by the amendments. For this reason it is useful to set out the grounds of appeal in full. The amendments are underlined.

"(a) that His Honour erred in law in finding that the provisions of Section 18 of the Service and Execution of Process Act 1901 have application in relation to a warrant of apprehension alleging the commission of an offence against Section 86(1)(e) of the Crimes Act 1914 said to have been committed in more than one State:

(b) that the Second Respondent had no jurisdiction to proceed under Section 18 of the Service and Execution of Process Act because the relevant warrants were not issued in accordance with the law of Queensland, in particular Section 57 of the Justices Act of that State;

(c) that His Honour erred in law in declining to exercise the jurisdiction of this Honourable Court under Section 5 of the Administrative Decisions (Judicial Review) Act 1977 having done so upon the erroneous basis that the Supreme Court of Western Australia has jurisdiction to review the decision of the Second Respondent.

(d) His Honour having correctly entertained the question whether the Magistrate's order was beyond jurisdiction, erred in declining to deal with the other ground of review, namely whether the Magistrate's decision was an improper exercise of his powers".

Although the basis of the primary Judge's decision to dismiss the application was the exercise of his discretion under sub-s.10(2) of the Judicial Review Act, the question of jurisdiction was argued and decided by him and it was argued before this Court. In the circumstances it seems appropriate to deal with that question first and then to consider his Honour's exercise of discretion. Although it would have been possible for his Honour to proceed immediately to a consideration of ss.9 and 10 of the Judicial Review Act, he did not do so. In consequence there is a determination of jurisdiction adverse to the appellant which, in my view, he is entitled to air before this Court.

The Service and Execution of Process Act was passed in exercise of the power conferred on the federal parliament by s.51(xxiv) of the Constitution - "The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States". Quick and Garran: Commentaries on the Constitution 614 comment:

"The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process, and for the execution of the judgments of the courts of the States, throughout the Commonwealth".

Again at p.617 the authors say:

"Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding. A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parliament to deal with a class of cases which, it has been held, is not within the competence of the Colonial legislatures to regulate; viz, the transfer of persons charged with crime from one colony to another. This disability is founded on the territorial limitations to which the Colonial legislatures are restricted."

The Service and Execution of Process Act was No. 11 of 1901 and was assented to on 16 October 1901. Conformably with s.51(xxiv) of the Constitution it was expressed to be:

"An Act to provide for the Service and Execution throughout the Commonwealth of the Civil and Criminal Process and the Judgments of the Courts of the States and of other parts of the Commonwealth, and for other purposes connected therewith".

The Act was one of the first passed by the new federal parliament and preceded the Judiciary Act by some two years. The latter was Act No. 6 of 1903 and was assented to on 25 August 1903. On 17 December 1901 the Punishment of Offences Act 1901 (which was No. 14 of 1901) was assented to. It was expressed to cease to have effect on the establishment of the High Court but meanwhile it provided that the laws of each State respecting the arrest and custody of offenders and the procedure for their summary conviction or commitment for trial applied to persons charged with offences against the laws of the Commonwealth committed within that State or whose trial for offences committed elsewhere "may lawfully be held therein". The same Act conferred upon the courts and magistrates of each State, exercising jurisdiction with respect to summary conviction or commitment for trial or trial upon indictment, the like jurisdiction with respect to persons charged with offences against the laws of the Commonwealth committed within that State or "who may lawfully be tried within that State for offences committed elsewhere".

When the Service and Execution of Process Act and the Punishment of Offences Act were passed there was already in existence legislation creating Commonwealth offences. To take two examples, the Customs Act 1901 which was No. 6 of that year and the Excise Act 1901 which was No. 9 of that year each created offences which were capable of prosecution in a court of summary jurisdiction as well as in the other courts mentioned.

The Fugitive Offenders Act 1881 (44 and 45 Vic. c.69), an Imperial statute, provided that a person accused of having committed an offence in one part of the empire might, if found in another part, be apprehended and returned to the part from which he was a fugitive. The procedure envisaged the issue of a warrant in one part of Her Majesty's dominions for the apprehension of a fugitive from that part, in which event any of the authorities mentioned in s.3 "if satisfied that the warrant was issued by some person having lawful authority to issue the same" might endorse the warrant in the manner provided by the Act and "the warrant so endorsed shall be a sufficient authority to apprehend the fugitive in the part of Her Majesty's dominions in which it is endorsed, and bring him before a magistrate". Discussing s.51(xxiv), Quick and Garran say at p.619:

"The sub-section now under review will facilitate Federal legislation to enforce the service and execution throughout the Commonwealth of the criminal process issued by the courts of a State for the arrest of offenders within any State. It will enable the Parliament to formulate a simple procedure for effecting what can now only be done under the authority of the Imperial Fugitive Offenders Act, and to authorize the execution of magistrates' warrants for the apprehension of offenders in every part of the Commonwealth. This power is clearly restricted to inter-state extradition, or its equivalent. Inter-British and inter-national extradition will still be governed by imperial legislation although auxiliary laws may be passed by the Federal Parliament under s.51 - xix., 'External Affairs', facilitating the enforcement of the Imperial legislation".

It is apparent from this brief recital of legislative and constitutional history that the Service and Execution of Process Act was enacted to facilitate the service of process between the States and that it was not concerned with the enforcement of Commonwealth laws. With the passing of the Punishment of Offences Act and later the Judiciary Act, provision was made for the service and execution of process in relation to offences against Commonwealth laws.

As originally enacted, s.18 of the Service and Execution of Process Act was formulated by references to the issus of a warrant by a court, judge or justice "having jurisdiction in any State or part of a State or part of the Commonwealth". The language chosen was comparable to that of "lawful authority to issue" used in the Fugitive Offenders Act. The Service and Execution of Process Act, including s.18, underwent a number of changes over the years but it was Act No. 48 of 1953 that repealed Part III - Execution of Warrants and Writs of Attachment - and substituted a new part in its stead. Section 18 thereby assumed its present form which refers to the issue of a warrant "in accordance with section 16 or the law of a State or part of the Commonwealth".

In the appellant's submission, s.18 requires that a warrant derive its binding force solely from a State law. And, it was said, the warrants in question did not satisfy that criterion. They owed any force they had to sub-s.68(1) of the Judiciary Act because that sub-section picks up the provisions of a State law applicable in its terms only to offences against State law and applies those provisions as Commonwealth law to offences against Commonwealth law. The submission was that sub-s.68(1) incorporates as part of the body of Commonwealth statute law the provisions of State laws on the designated subject matters. Therefore, the argument ran, the warrants were issued in accordance with a law of the Commonwealth, not in accordance with the law of a State. That submission was said to be supported by a line of authority, in particular the dicta of Mason J. in R. v. Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 346. There the High Court was concerned with the operation of the Crimes Act 1914 in relation to Commonwealth places in Queensland by reason of the Commonwealth Places (Application of Laws) Act 1970. His Honour said:

"If, as we are informed, the offence was committed in a Commonwealth place, s.4(1) (of the Commonwealth Places Act) would operate to pick up the provisions of s.469 (of the Criminal Code of Queensland) and give them an application as Commonwealth law in that place, subject to the operation of s.4(2)(a)".

The appellant argued that an analogy may be found in sub-s.68(2) of the Judiciary Act which gives to the several courts of a State exercising jurisdiction with respect to the summary conviction, or the examination and commitment for trial on indictment, or the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State - "the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth". In its original form sub-s.68(2) continued with the words "committed within the State, or who may lawfully be tried within the State for offences committed elsewhere". The operation of sub-s.68(2) was considered by the Full Court of the Federal Court in Lamb v. Moss (1983) 49 ALR 533 at p.560 where the relevant authorities are noted. The Court there spoke of the sub-section extending the operation of the state enactment and applying it in relation to the offences mentioned.

The primary Judge found unhelpful the various authorities referred to by counsel for the appellant. In his view, the question was not what occurs when a provision such as s.68 of the Judiciary Act operates on or picks up state law or whether the provisions of the Justices Act may operate as a federal law. He said:

"The Justices Act is a State law and, as a matter of language, is properly referred to as such notwithstanding its application to the circumstances of this case by virtue of the operation of the Judiciary Act. In my opinion there is no reason not to give the words used in sub-sec.18(1) their ordinary meaning".

In the appellant's submission, to put the matter this way was to beg the question posed by the relevant words of sub-s.18(1) of the Service and Execution of Process Act viz. to what law, federal or state, did the warrants owe their force? In my view, the appellant's argument on this point cannot succeed. The words "the law of a State" in sub-s.18(1) are directed to the source of power of the justice of the peace or other officer to issue a warrant. It may well be that the effect of s.68 of the Judiciary Act is to pick up a Starte law and make it a law of the Commonwealth for certain purposes. But it does not follow that the law ceases to be a law of the State for all purposes. The relevant question is whether the warrants, the subject of this appeal, were issued in accordance with a law which was a law of the State of Queensland. In my view they were, the relevant law being the Justices Act of that State. The Justices Act is given a certain extra territorial operation by reason of s.18 of the Service and Execution of Process Act but it remains a law of the State for the purposes of s.18.

This is enough to dispose of ground (b) of the notice of appeal. The words "said to have been committed in more than one State" in ground (a) were added by leave, with the first respondent reserving his right to argue that it was not open to the appellant to raise this ground. In my opinion the respondent's submission should be upheld. Each warrant referred to a complaint made that the appellant, between certain dates "at Southport and other places within and outside the State of Queensland", conspired with others. In the appellant's submission, the provisions of s.18 of the Service and Execution of Process Act have no operation in relation to a warrant of apprehension that alleges the commission of an offence said to have been committed in more than one State. This matter was not raised before the primary Judge and the application to review the decision of the second respondent made no reference to the matter. In Legione v. Hateley (1983) 57 ALJR 292 Mason and Deane JJ. said at 309:

"The normal rule is that a party will not be permitted to argue a point, neither raised on the pleadings, nor fought at the trial, when further evidence might possibly affect the result".

I do not accept the appellant's argument that ground (a) as amended involves no question of fact. Had the matter been raised before the second respondent, it would have been open to the first respondent (if thought necessary) to offer oral or documentary evidence in support of the averment or it may have been sufficient for counsel for the first respondent to have made a statement from the bar table concerning the circumstances of the offences with which the appellant had been charged. It may have been enough, for example, for the first respondent's counsel to have explained the Crown case as involving overt acts done within as well as without the State of Queensland. Although a conspiracy is complete as a crime when an agreement is made, it continues in existence so long as there are two or more parties intending to carry out its design. The court of a State has jurisdiction to try such an offence if the evidence shows that the conspiracy, whenever or wherever formed, was still in existence when the accused were in the State in which the court has jurisdiction. Director of Public Prosecutions v. Doot (1973) AC 807. Although the essence of conspiracy is the unlawful agreement made by the conspirators, conspiracy as a crime is committed wherever and whenever it is shown that the agreement exists between the conspirators. It is a crime of duration, a continuing offence. R. v G, F, S and W (1974) 1 NSWLR 31.

I do not accept that the functions of the second respondent extended to a determination of the validity of the warrants before him though he might have (and did in the case of five of the warrants) discharged the appellant in exercise of his powers under sub-s.18(5). In this regard I refer to the judgment of Cussen J. in O'Donnell v. Heslop (1910) VLR 162 at 175-176. But even if they did so extend, the validity of the warrants was not challenged before him. Had it been challenged, questions of fact may well have arisen even if they went no further than assertions by counsel for the first respondent as to the matters alleged against the appellant.

Although the appellant was permitted to amend ground (a), this was only a convenient course to permit his counsel to present the case for entertaining the reformulation as a ground of appeal. For the reasons given, I am of the opinion that the court should not entertain this ground.

Ground 3 attacks the primary Judge's decision to decline to exercise jurisdiction under the Judicial Review Act. In his Honour's view the case "falls squarely within the provisions of sub-para. 10(2)(b)(ii) of the Judicial Review Act . . . ". He considered that s.19 of the Service and Execution of Process Act made adequate provision by which the appellant might seek a review by the Supreme Court of Western Australia of the decision of the second respondent. His Honour commented "The review is a complete one. It is not restricted in the way that review by this court under the Judicial Review Act is restricted". He had regard to the fact that there were applications in the Supreme Court by the Crown regarding the five warrants in respect of which the appellant had been discharged from custody. His Honour thought that the "sensible course (was) for each of the matters to be reviewed by the one court, in this case the Supreme Court of Western Australia".

It can be seen that there were two steps by which the primary Judge reached the conclusion that it was inappropriate for him to deal with the application. The first was to hold that s.9 of the Judicial Review Act did not operate to deprive the Supreme Court of jurisdiction under s.19 of the Service and Execution of Process Act. The second was to say that as a matter of discretion it was better to leave review to the Supreme Court.

The appellant's challenge to the first of these two steps involved a consideration of s.9 of the Judicial Review Act. That section excludes from a court of a State jurisdiction to review a decision to which the section applies. Sub-section 9(2) defines "decision to which this section applies" to mean a decision to which the Act applies or a decision of an administrative character included in any of the classes of decisions set out in schedule 1, other than two particular paragraphs. "Review" is defined to mean "review by way of -

(a) the grant of an injunction;

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

(c) or the making of a declaratory order".

The second respondent's decision did not fall within Schedule 1. But it was not in issue that the decision was one to which the Act applied. It was a decision of an administrative character made under an enactment; hence it fell within the expression "decision to which this Act applies" as defined in sub-s.3(1) of the Judicial Review Act.

His Honour took the view that the review which sub-s.9(2) was intended to encompass was the review which the Federal Court was empowered to take under ss. 5, 6 and 7 of the Judicial Review Act. But, he said, the review which the Supreme Court was empowered to undertake under s.19 of the Service and Execution of Process Act was a review by way of rehearing, with power to take evidence in addition to, or in substitution for, the evidence given on the making of the order. This, he said, was not a review of the restricted kind contemplated by s.9 but a review of the more comprehensive kind contemplated by sub-s.10(3).

In the appellant's submission, the review provided by s.19 of the Service and Execution of Process Act was a review that could lead to a confirmation, variation or quashing of the order made. Sub-section 19(5) is in these terms:

"(5) Upon the review of an order, the Judge may confirm or vary the order, or quash the order and substitute a new order in its stead".

An order under sub-s.19(5) quashing an extradition order, it was said, would have the same effect as certiorari to quash, for the effect of certiorari is to render the relevant decision or order of no effect. The appellant contended that it was not to the point that the grounds upon which certiorari may be granted may be less extensive than those upon which relief by way of quashing an extradition order may be sought under s.19. In the appellant's submission: "The relevant test for the application of Section 9 so as to deprive a State Court of jurisdiction is the identity or similarity in terms of effect of a quashing order under Section 19 and any writ embraced within the description 'prerogative or statutory writ'".

In the respondent's submission, the review contemplated by s.9 is the process of examining the correctness or otherwise of the decision below; it does not include the Court deciding the matter in issue for itself. In this respect the respondent relied upon the decision of Waddell J. in Appliance Holdings Pty. Ltd. v. Lawson (1983) 1 NSWLR 246. By contrast the jurisdiction vested in the Supreme Court by s.19 is to hear the matter de novo and to decide the matter in issue for itself. Basser v. Medical Board of Victoria (1981) VR 953. Hence, it was said, the jurisdiction conferred upon the Supreme Court was not ousted by s.9.

As to the meaning of "review", I repeat some comments I made in Bannister v See (1982) 42 ALR 78 at 81 in regard to s.31 of the Repatriation Act 1920.

"The term 'review' is not one of precision. It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grounds including error of law, excess of power and breach of the rules of natural justice. That is the sense in which it is used in the Administrative Decisions (Judicial Review) Act itself. It may have the more limited meaning of reconsideration in the light of changed circumstances, as with workers' compensation payments. In such a case, if there has been no change of circumstances there cannot be a review (Crossfield & Sons Ltd v. Tanian (1900) 2 QB 629), though the changed circumstances may be used to demonstrate that the original decision was wrong (Sharman v. Holliday & Greenwood Ltd (1904) 1 KB 235; Radcliffe v. Pacific Steam Navigation Co (1910) 1 KB 685)."

Nevertheless the Judicial Review Act has chosen in certain sections a particular definition of "review" for the purpose of those sections. In sub-s.9(2) the definition selects, for relevant purposes, proceedings by way of the grant of a prerogative or statutory writ or proceedings that may lead to the making of an order of the same or similar nature or having the same or similar effect. The comparision is with the nature or the effect of a review by way of the grant of a prerogative writ. It is not enough to say, as the appellant said, that because an order made by a judge under s.19 of the Service and Execution of Process Act may quash an order made by a magistrate and because an order of certiorari may quash an order of an inferior court or tribunal that each is of a similar nature or has a similar effect.

Section 19 of the Service and Execution of Process Act confers jurisdiction where a person apprehened is dissatisfied with an order made by a magistrate or justice of the peace for his return. By reasons of sub-s.19(3) the judge's review of that order is by way of rehearing and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on the review. It is in the fullest sense a rehearing and the judge's power to confirm or vary the order or to quash the order and substitute a new order in its stead is couched in the widest terms though of course it must be exercised judicially. The order as confirmed, varied or substituted shall be executed according to its tenor as if it had been made by the magistrate or justice of the peace (sub-s.19(6)).

In those circumstances I am unable to accept that the review contemplated by s.19 of the Service and Execution of Process Act is a review by way of the making of an order of the same or similar nature as or of the same or similar effect to a prerogative or statutory writ.

This conclusion gains support from s.10 of the Judicial Review Act which, for the purposes of the discretion conferred on the Federal Court to refuse to grant an application under the Act where adequate provision is otherwise made for a review of a decision complained of, defines "review" in quite different terms. Sub-section 10(3) reads:

"(3) In this section, 'review' includes a review by way of reconsideration, rehearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order".

It is apparent that the sort of review removed from a court of a State by s.9 is more limited than the sort of review that may lead to the Federal Court declining to exercise its jurisdiction under the Judicial Review Act.

Although there was an amendment to s.9 by Act No. 111 of 1980, it did not affect the point at issue. In the course of his second reading speech on the Administrative Decisions (Judicial Review) Bill 1977, the Attorney General commented:

"The Bill is intended to provide a comprehensive procedure for judicial review of Commonwealth administrative action taken under statutory powers. Clause 9 of the Bill is intended to ensure that this jurisdiction is exclusive of the jurisdiction of State courts. The Judiciary Act has long embodied the policy that actions of Commonwealth officers should not be subject to review by way of mandamus or writ of prohibition in State courts - section 38 of the Judiciary Act. The clause further makes it clear that actions of the Federal judiciary are not to be subject to review in State courts. The jurisdiction of State courts to grant habeas corpus is not to be affected. Parliament cannot legislate, of course, to remove the powers of judicial review given to the High Court by the Constitution - section 75(iii). It is expected, however, that the procedures provided for by this Bill make resort to the existing procedures for judicial review unnecessary except where a review is sought of decisions excluded from review under the present Bill or otherwise in special circumstances. Most of the prerogative writs are granted on the discretion of the court and one would imagine that the High Court, faced with an application for a prerogative writ under section 75(iii), would give careful consideration to the situation in which an application could have been made to the Federal Court under these provisions".

These comments do not, in my view, assist in reaching a decision on this particular ground of the appeal for they necessarily leave open what is meant by "judicial review of Commonwealth administrative action". I am of the opinion that ground (c) should not be upheld. In that event the jurisdiction of the Supreme Court under s.19 of the Service and Execution of Process Act was not ousted by s.9 of the Judicial Review Act.

In those circumstances the question raised by ground (d) of the notice of appeal arises. It is this. Having embarked on a consideration of the jurisdiction of the second respondent to make the orders for extradition of the appellant and having answered that question against the appellant, was it proper for his Honour then to decline to exercise his jurisdiction to review the second respondent's decision? In the appellant's submission, his Honour had dealt with the application for review in part and, having done so, ought to have dealt with it in its entirety. The second respondent's answer was that the appellant had invited the Court to deal with the question of jurisdiction and could not complain if the Court, having done so and determined that matter against the appellant, declined to proceed further with the application. But that answer overlooks the fact that, while the appellant did indeed ask the Court to deal with the question of jurisdiction, he did not ask the Court to do so in isolation. The question of jurisdiction was the first ground of application. The second ground was that the second respondent's decision was an improper exercise of power and that he failed to take into account a number of relevant considerations. The appellant asked the Court to deal with both grounds, not with one.

In my respectful opinion, if his Honour was considering the exercise of his discretion under s.10 of the Judicial Review Act, it would have been better to deal with that matter at the outset and, if the discretion were held to exist, to have exercised it as he thought appropriate. By dealing with the question of jurisdiction, his Honour determined a matter of substance in the application. Indeed if he had determined the point in favour of the appellant, the application under the Judicial Review Act should have been allowed. In other words it seems to me preferable to proceed immediately to the application of s.10 when the operation of that section is raised, rather than to determine a substantive issue and then consider the question of discretion. The question is whether, his Honour having taken the course that he did, this Court should interfere, at least to the point of remitting the application to a judge of the Federal Court to deal with the matters raised in ground 2 thereof. Paragraph 10(2)(b) of the Judicial Review Act empowers the Court, in its discretion, to "refuse to grant an application" for the reasons there stated. Nothing in the Act precludes the Court from hearing the application nor, I think, from determining some relevant issue before exercising the discretion conferred by the Act. The discretion being available to the primary judge, it was not shown that his exercise of it miscarried in any way.

The appellant has failed to make good any of the grounds of his appeal and the appeal should be dismissed with costs.

JUDGE2

DAVIES, J : This is an appeal from a judgment of a single Judge of this Court dismissing an application to review a decision of the second respondent, a Stipendiary Magistrate, made on 27 July 1984, in the Court of Petty Sessions in Perth, under s.18 of the Service and Execution of Process Act 1901 (Cth) ("the SEP Act").

On 28 February 1984, a Stipendiary Magistrate in Queensland issued seven (7) warrants for the arrest of the appellant on charges against paragraph 86(1)(e) of the Crimes Act 1914 (Cth) ("the Crimes Act"). That paragraph makes it an indictable offence to conspire with another to defraud the Commonwealth. Each warrant was issued under s.57 of the Justices Act 1886-1979 (Qld) and was endorsed under the SEP Act for execution in Western Australia.

Section 18(1) of the SEP Act provides :

"18. (1) Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Coroner, a Justice of the Peace or an officer of a court has, in accordance with section sixteen or the law of a State or part of the Commonwealth, issued a warrant for the apprehension of a person, a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Coroner, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Coroner, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an endorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act, authorizing its execution in that other State or part of the Commonwealth."

The warrants issued in Queensland were duly endorsed under this sub-section and, pursuant to the authority conferred by s.18(2) of the SEP Act, the appellant was arrested and brought before the second-named respondent, a Stipendiary Magistrate in the Court of Petty Sessions at Perth. Section 18 of the SEP Act further provides :

"18. (3) Subject to this section, the Magistrate or Justice of the Peace before whom the person is brought may -

(a) by warrant under his hand, order the person to be returned to the State or part of the Commonwealth in which the original warrant was issued and, for that purpose, to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed; or

. . . . .

(6) If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that -

(a) the charge is of a trivial nature;

(b) the application for the return of the person has not been made in good faith in the interests of justice; or

(c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period,

the Magistrate or Justice of the Peace may -

(d) order the discharge of the person;

(e) order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or

(f) make such other order as he thinks just."

On 27 July 1984, the learned Magistrate discharged the appellant in respect of five (5) of the warrants on the basis that it would be unjust and oppressive to return the appellant to Queensland, but in respect of the remaining two (2) warrants, he ordered the return of the appellant to Queensland.

The decision of the learned Magistrate was one to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") applied, being a decision of an administrative character made under an enactment as defined in that Act. The appellant, being a person aggrieved by the decision, applied to the Federal Court of Australia under s.5(1) of the ADJR Act for an order of review in respect of the decision to return him to Queensland. A number of grounds were put forward to support the application, but the learned trial Judge dealt with only one of them. His Honour held that the warrants issued by the Queensland Magistrate had been issued "in accordance with . . . the law of a State" for the purposes of s.18(1) of the SEP Act, notwithstanding that jurisdiction to deal with the offences charged, offences under para.86(1)(e) of the Crimes Act, was conferred upon the Queensland Courts by s.68 of the Judiciary Act 1903 (Cth).

The submission that the warrants were not warrants issued in accordance with or under the law of a State but rather were issued under Commonwealth law was one of the arguments which was put to this Court in this appeal.

The SEP Act was enacted pursuant to s.51(xxiv) of the Constitution, the operation of which was described by Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ, in Aston v Irvine (1955) 92 CLR 353, at p.364, as follows :

" . . . The nature of this power, as well as the prior history of the subject to which it relates, 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. It is a legislative power given to the central legislature for the very purpose of securing the enforcement of the civil and criminal process of each State in every other State. It is given to the central legislature because before federation it had been found that territorial limitations upon colonial power made the effective reciprocal action of the colonies in this field difficult, to the point of impossibility : see, for example, Ray v. M'Mackin (1875) 1 VLR(L) 274, and other cases cited in Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), pp.614-619. It is a power to be exercised in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth. . . . ".

It is to be noted that a court of a State does not cease to be such when it exercises Federal jurisdiction invested under s.77(iii) of the Constitution. In Le Mesurier v Connor (1929) 42 CLR 481, Knox CJ, Rich and Dixon JJ said, at p.495-6 :

" . . . 'The Constitution, by chapter III., draws the clearest distinction between Federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilize the judicial services of State Courts recognizes in the most pronounced and unequivocal way that they remain "State Courts"' (per Isaacs J. in R. v. Murray and Cormie (1916) 22 C.L.R., at p.452, and see per Higgins J. (1916) 22 C.L.R., at p.464, and Gavan Duffy J. and Rich J. (1916) 22 C.L.R., at p.471). The Parliament may create Federal Courts, and over them and their organization it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised. . . . ".

The SEP Act is to be read in this light and operates with respect to the process of a court issued in accordance with State law whether the court be exercising State jurisdiction or invested Federal jurisdiction. Similarly, the warrants with which this appeal is concerned were issued "in accordance with" the Justices Act 1886-1979 (Qld) for s.68(1) of the Judiciary Act and the investment of the Federal jurisdiction upon State courts "extends the operation of the State enactment and applies it to . . . offenders against the Federal law". See Seaegg v R (1932) 48 CLR 251 at p.255 in the judgment of Rich, Dixon, Evatt and McTiernan JJ and Lamb v Moss (1983) 49 ALR 533 in the judgment of Bowen CJ, Sheppard and Fitzgerald JJ at p.560. I agree with the learned trial Judge on this point.

Having formed the view that the SEP Act applied to the warrants, the learned trial Judge next concluded that the Supreme Court of Western Australia had jurisdiction to hear an appeal against the learned Magistrate's decision, pursuant to s.19 of the SEP Act and that such a proceeding was a more appropriate proceeding to review the decision of the Magistrate than was an application under the ADJR Act. Accordingly, in exercise of the dscretion conferred by s.10 of the ADJR Act, he dismissed the application. His Honour's findings on both matters were challenged in the appeal.

I therefore turn to the provisions of ss.9 and 10 of the ADJR Act which read, inter alia,

"9.(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review -

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

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

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

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

(2) In this section -

'decision to which this section applies' means -

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

(b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1, other than paragraphs (m) and (n);

. . . . . ;

'review' means review by way of -

(a) the grant of an injunction;

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

(c) the making of a declaratory order.

. . . . .

10.(1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision -

(a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

. . . . .

(2) Notwithstanding sub-section (1) -

. . . . .

(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason -

(i) that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

(3) In this section, 'review' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order."

The alternative means of review which his Honour preferred was that provided by s.19 of the SEP Act. The section reads, inter alia,

"19.(1) Where -

(a) a person apprehended is dissatisfied with an order made under sub-section (3) or (6) of the last preceding section; or

(b) a Magistrate or Justice of the Peace has made, under sub-section (3) or (6) of the last preceding section, an order for the discharge of an apprehended person, or an order for the return or admittance to bail of such a person under the terms of which the person is not, or may not be, required to return or be returned within three months after the date of the order to the State or part of the Commonwealth in which the original warrant was issued,

the apprehended person or the person bringing the warrant, as the case requires, may apply to a Judge of the Supreme Court of the State or part of the Commonwealth in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may review the order.

(2) A Judge to whom an application is made for the review of an order may -

(a) order the release on bail of the apprehended person on such terms and conditions as the Judge thinks fit; or

(b) direct that the apprehended person be kept in such custody as the Judge directs in the State or part of the Commonwealth in which the person is apprehended until the order has been reviewed.

(3) The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review.

. . . . .

(5) Upon the review of an order, the Judge may confirm or vary the order, or quash the order and substitute a new order in its stead.

(6) The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate or Justice of the Peace."

The first issue is whether that means of review is precluded by the provisions of s.9 of the ADJR Act. In that section, the term "review" is not used in the wide sense in which it is used in s.10, which refers to " 'review' . . . by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order." Rather it is defined as review by way of the grant of an order, an injunction, a prerogative or statutory writ or a declaratory order. In this respect, s.9 follows the general pattern of the ADJR Act in which an applicant to the Court applies for an order of review. If the Court grants the application, it may make orders as described in s.16, orders of the type which formerly may have been granted by a prerogative writ or by way of injunction or declaratory order.

The ADJR Act does not expressly state what is to be the nature of the review under that Act in the sense of the consideration which is to be undertaken by the Court when dealing with an application for an order of review. However, it is clearly implied from the grounds of review specified and from the nature of the orders that may be granted, that the ADJR Act has in mind that the Court will undertake a review process of a nature similar to that evolved by the common law and which may be concisely described as judicial review of administrative action. As Mr Justice Toohey said in Bannister v See (1982) 42 ALR 78 at p.81,

"The term 'review' is not one of precision. It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grounds including error of law, excess of power and breach of the rules of natural justice. That is the sense in which it is used in the Administrative Decisions (Judicial Review) Act itself."

The nature of such review emerges from the philosophy underlying it. The common law developed principles for the control of the acts and decisions of officers of the government and of statutory authorities exercising administrative power. Fundamental to the development was the concept of the rule of law. As the Fifth Edition of Wade's "Administrative Law" states, at pp.4-5 -

" . . . This, at any rate, is the heart of the subject. The governmental power in question is not that of Parliament : Parliament as the legislature is sovereign and beyond legal control. But the powers of all other public authorities are subordinated to the law, just as much in the case of the Crown and ministers as in the case of local authorities and other public bodies. All such subordinate powers have two inherent characteristics. First, they are all subject to legal limitations; there is no such thing as absolute or unfettered administrative power. Secondly, and consequentially, it is always possible for any power to be abused. . . .

The primary purpose of administrative law, therefore, is to keep the powers of government. within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok. . . .

As well as power there is duty. It is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default. . . . ".

At p.6, Professor Wade states :

"The whole of administrative law, indeed, may be treated as a branch of constitutional law, since it flows directly from the constitutional principles of the rule of law and the sovereignty of Parliament, and it does much to determine the balance of power between the state and the citizen. . . . ".

Thus, the function of review which is conferred upon the Federal Court of Australia under the ADJR ACT is the function of ensuring that persons and authorities conferred power by enactments of the Parliament shall, when acting in exercise of those powers, act within power and in accordance with power. That function is performed by the Court not merely in the final order by way of review which the Court may choose to make but also and primarily in the consideration anterior thereto which the Court gives in reaching its decision to grant or refuse such an order.

Conformably therewith, when s.9 withdraws from the courts of the States jurisdiction to review decisions, conduct and the like to which the ADJR Act applies, the section withdraws from those courts not merely the power to grant in a relevant case a final order of review by way of injunction, prerogative or statutory writ or declaratory order, but also the authority to exercise judicial review over the decisions, conduct and the like, specified in the section. The definition of review contained in s.9(2) serves as a concise means of defining the function of review with which the section deals and s.9(1) withdraws from the courts of a State jurisdiction to exercise the function of review so defined. Thus, the sub-section excludes a court of a State from exercising the function of judicial review of the administrative decisions and conduct therein referred to. This was the view adopted in Clyne v Deputy Commissioner of Taxation (1983) 1 NSWLR 110, Appliance Holdings Pty Limited v Lawson (1983) 1 NSWLR 246 and Nomad Industries of Australia Pty Limited v Commissioner of Taxation (1983) 2 NSW LR 56 with which in this respect I agree.

The ADJR Act does not withdraw from the courts of the States any other and different powers of review. Section 10 refers to review by way of reconsideration, re-hearing and appeal. In any case where the court of a State in such a proceeding is concerned not with the legality of a decision or conduct, having regard to the facts which were known to the decision-maker at the time of the decision or conduct under review, but rather with the correct decision to be made on the facts as presented to the court, the function the court performs will be distinctly different from the function of review under the ADJR Act for it will involve, expressly or by inference, the exercise of the decision-making power.

Section 19 of the SEP Act confers upon a Judge of the Supreme Court of a State not the function of judicial review of the Magistrate's decision but authority to exercise the primary power. Section 19(3) provides that the review shall be by way of rehearing and evidence in addition to and in substitution for the evidence given on the making of the Magistrate's order may be given in the review. Section 19(5) provides that the Judge may confirm or vary the Magistrate's order or may quash the order and substitute a new order in its stead. And s.19(6) provides that the order as confirmed or varied or the substituted order shall be executed as if it had been made by the Magistrate.

In my opinion, that function is not withdrawn from the courts of the States by s.9 of the ADJR Act. Section 19 of the SEP Act confers a jurisdiction upon courts of the States similar to the function which ss.187 and 196 of the Income Tax Assessment Act 1936 (Cth) confer upon such courts to review decisions of the Commissioner of Taxation and of Taxation Boards of Review and to the function which ss.32, 146 and 150 of the Patents Act 1952 (Cth) confer upon them to hear appeals from directions and decisions of the Commissioner of Patents. The ADJR Act is not concerned with functions of review of that nature, in which the court is concerned not with the legality of the decision under review but with what should be the correct decision having regard to the facts as proved to the Court in the proceedings before it.

If I were wrong in the above views, I would nevertheless hold that an order of a Supreme Court of a State under s.19 of the SEP Act is not an order as defined in s.9(2) of the ADJR Act. Under s.19(5) and (6) of the SEP Act, the Judge of the Supreme Court shall confirm or vary the Magistrate's order or quash the order and substitute a new order in its stead. The order as confirmed or varied or the substituted order is to be executed as if it had been made by the Magistrate. An order of this nature takes effect as if it were an exercise of the primary decision-making power. The orders defined in s.9(2) of the ADJR Act have a distinctly different operation. They may quash the decision under review, or they may declare it to be valid or invalid or they may restrain or order its implementation. But they do not take effect as if they were an exercise of that power.

I am therefore of the view that the alternative mode of review conferred by s.19 of the SEP Act is not excluded by s.9 of the ADJR Act.

It was next argued in the appeal that the learned trial Judge wrongly exercised his discretion under s.10 of the ADJR Act in that he had already determined one of the issues which could otherwise be argued in an appeal to the Supreme Court of Western Australia, namely, whether the subject warrants had been issued "in accordance with . . . the law of a State". Another way of putting the argument was that, having determined the one issue, the learned trial Judge ought to have gone on to consider all other issues raised in the application before him.

I agree that it would have been desirable for the learned trial Judge to have left all issues to be determined by the Supreme Court of Western Australia, it having jurisdiction to deal with all issues and being, in the view of the learned Judge, the appropriate body to deal with the matter.

Nevertheless, the learned Judge was not precluded from exercising his discretion at the time when he did. He entered upon a consideration of the effect of s.18 of the SEP Act as part of a course of reasoning to determine whether or not the Supreme Court of Western Australia was the more appropriate court to deal with the matter. His Honour decided that, as s.18 of the SEP Act applied to the warrants and as s.19 of that Act gave to the Supreme Court of Western Australia full power to deal with both the law and the facts of the matter, it was more appropriate that the matter should be dealt with by the Supreme Court of Western Australia than by the Federal Court of Australia.

In coming to this view, the learned trial Judge exercised a discretion. The established principles which an appeal court will apply with respect to the exercise of a discretionary judgment are well known. See Gronow v Gronow (1979) 144 CLR 549 and In the Marriage of Mallet (1984) 52 ALR 193. In the present appeal, no sufficient ground has been put forward to justify interference with the exercise of his Honour's discretion.

Other grounds of appeal and other issues were argued in this appeal. I do not propose to consider them. They are matters which may be debated before the Supreme Court of Western Australia. It would be inappropriate for this Court to discuss them.

For the reasons I have stated, therefore, I would dismiss the appeal with costs.

JUDGE3

SPENDER J.: This is an appeal from a judgment of a single judge of this court given on 30 October, 1984 dismissing the appellant's application to review a decision made by Mr. Con Zempilas, the second respondent, on 27 July 1984 in the Court of Petty Sessions at Perth in the State of Western Australia, ordering the return of the appellant to the State of Queensland pursuant to s.18 of the Service and Execution of Process Act 1901, hereinafter called "the Act".

Warrants for the apprehension of the appellant on a total of seven charges of conspiracy to defraud the Commonwealth contrary to s.86(1)(e) of the Crimes Act 1914 were issued by Clive Evans, a Stipendiary Magistrate and Justice of the Peace in the State of Queensland, at Brisbane in the State of Queensland. In respect of two of those warrants, which had been endorsed under s.18 of the Act for execution in Western Australia, the second respondent ordered the return of the appellant to Queensland. One of the two warrants with which this appeal is concerned (the other was to similar effect) was in these terms:-

QUEENSLAND

JUSTICES ACT 1886-1978

(Form No. 8)

Warrant in the first Instance to Apprehend a Person Charged with an Indictable Offence or a Simple Offence

-

To the Principal Police Officer at BRISBANE in the State of Queensland, and to all other Police Officers in the said State, AND to all members of the Australian Federal Police.

WHEREAS a Complaint has this day been made upon oath before the undersigned Justice of the Peace for the State of Queensland for that Ronald Warren WOSS did between about July 1977 and about July 1978, at Southport and other places within and outside the State of Queensland did conspire with Brian James MAHER, Lloyd Errol FAINT, John Patrick DONNELLY, Alexander SILBERSHER and divers other persons to defraud the Commonwealth; contrary to Section 86(1)(e) of the Crimes Act 1914.

These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said Ronald Warren WOSS and to bring him before some one or more Justices for the said State to answer to the said complaint and be further dealt with according to law.

GIVEN under my hand, at BRISBANE, in the said State this 28th day of February, 1984.

(C.Evans S.M.) J.P."

Section 18(1) of the Act provides:

"Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Coroner, a Justice of the Peace or an officer of a court has, in accordance with section 16 or the law of a State or part of the Commonwealth, issued a warrant for the apprehension of a person, a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Coroner, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Coroner, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an endorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act authorizing its execution in that other State or part of the Commonwealth."

Before the learned primary judge, the applicant had relied on two grounds. The first was that there was no jurisdiction in the Western Australian magistrate to act pursuant to s.18 of the Act. The second was that he had improperly exercised the power conferred upon him by that section. The essence of the second submission was that it was wholly unreasonable for him to have decided to order the return of the applicant to Queensland, relying on para.5(1)(e) and 5(2)(g) of the Administrative Decisions (Judicial Review) Act,("the ADJR Act").

Counsel for the respondent before the primary judge denied that there was no jurisdiction and submitted that there was no basis for saying the magistrate's exercise of the power was so unreasonable that no reasonable person could have exercised it. In addition, he relied upon the provisions of s.10 of the ADJR Act, submitting that the primary judge in the exercise of his discretion ought to refuse to entertain the application on the basis that adequate provision was made pursuant to ss.19(3) of the Act for the Supreme Court of Western Australia to review the decision of the second respondent.

Sub-paragraph 10(2)(b)(ii) of the A.D.J.R. Act provides:-

"Notwithstanding sub-section (1) -

. . . (b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason - . . .

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure."

The learned primary judge concluded that there was jurisdiction in the Western Australian magistrate to act pursuant to s.18 of the Act. He held that the jurisdiction conferred on the Supreme Court of Western Australia by s.19(3) of the Act was not ousted by s.9 of the ADJR Act, and further that, as a matter of discretion, it would be inappropriate for the Federal Court to deal with the matter, even though it had jurisdiction to do so. In his judgment, the case "fell squarely within the provisions of sub para.10(2)(b)(ii) of the ADJR Act." He ordered that the application be dismissed.

The decision of the learned primary judge depended on his findings:-

(i) that the jurisdiction to review the decision of the second respondent given to the Supreme Court of Western Australia by s.19(3) of the Act was not ousted by s.9 of the ADJR Act; and

(ii) in the exercise of his discretion he would, pursuant to s.10 (2)(b)(ii) of the ADJR Act decline to entertain the application.

If no error is shown by his Honour in reaching those findings, the appeal should be dismissed.

In addition, however, his Honour ruled on a submission that the Western Australian magistrate had no jurisdiction pursuant to s.18 of the Act. He rejected this submission. Had he accepted it, it would have disposed of the application. It will be necessary to return to this aspect of his judgment later.

The grounds of appeal as originally formulated were:

(a) that his Honour erred in law in finding that the provisions of Section 18 of the Service and Execution of Process Act 1901 have application in relation to a warrant of apprehension alleging the commission of an offence against Section 86(1)(e) of the Crimes Act 1914;

(b) that His Honour erred in law in declining to exercise the jurisdiction of this Honourable Court under Section 5 of the Administrative Decisions (Judicial Review) Act 1977 having done so upon the erroneous basis that the Supreme Court of Western Australia has jurisdiction to review the decision of the Second Respondent.

The first ground as formulated was the same as had been argued unsuccessfully before the primary judge, it being suggested that there was no jurisdiction because the respective warrants had not been issued "in accordance with a Law of the State". The second ground as formulated called into question the decision by the learned primary judge that the Supreme Court of Western Australia had jurisdiction to review the decision of the second respondent.

In the course of the appeal, it was sought to argue two further grounds. The way in which these amendments were expressed had the effect of transposing the first ground as formulated into a ground which called into question the application of s.18 of the Act to offences "said to have been committed in more than one state", leaving the second of the grounds as amended to deal with the jurisdictional argument based on the provision in s.18 of the Act "in accordance with the law of a State." A further ground was sought to be taken, viz. that the learned primary judge, having entered on the question of whether the magistrate's order was beyond jurisdiction, erred in declining to deal with the other ground of review.

The additional ground sought to be argued, based on the aspect of the offence being "said to have been committed in more than one state", was not taken before either the second respondent or the learned trial judge. Consistent with the principles on which a ground not previously raised below may be argued on appeal, this ground should not be allowed; Adams v. Chas.S.Watson Pty.Ltd.(1938) 60 C.L.R.545 AT 548; Legione v. Hateley (1983) 57 A.L.J.R. 292 AT 309.

In my respectful opinion, the learned primary judge was correct in concluding that the jurisdiction of the Supreme Court of Western Australia to entertain an appeal from the decision of the second respondent was not excluded by s.9 of the ADJR Act. I have had the advantage of reading the reasons of my brother, Mr. Justice Davies, and I am in complete agreement with them in this respect.

Next, it was said that his Honour, having embarked on one of the bases on which a review was sought, ought properly to have considered the other basis relied upon. In my opinion the Court's powers in the exercise of the discretion conferred by sub-paragraph 10(2)(b)(ii) of the ADJR Act are not limited by the discretion having to be exercised at any particular point in the course of the application for an order of review. If the exercise of such a discretion is a live question, it would in many cases be appropriate to consider it first; and if, in the exercise of the discretion, the decision is made that it is more appropriate for the decision to be reviewed other than under the ADJR Act, to leave to that review all questions involved in it. Apart from other considerations, to do otherwise may raise, for example, very real questions of estoppel.

The learned primary judge did not adopt that course but, at the invitation of the present appellant, was asked to determine whether the second respondent had jurisdiction under the Act to make the order that he did. Had the learned primary judge concluded as the applicant submitted, that would have disposed of the matter. The appellant cannot in my view now be heard to complain that the judge, having consented to determine that question on his invitation, but determining it adversely to him, declined to enquire into the validity of the broader ground on which it was sought to have the decision reviewed. The discretion under sub-paragraph 10(2)(b) remains able to be exercised throughout the hearing of the application for an order of review.

That basis of attacking the discretion being without substance, no other material exists on which that exercise can validly be impugned.

In the light of the decision under appeal and on analysis of the findings necessary to support it, the conclusions I have expressed above are sufficient to dispose of the appeal.

The submission for the appellant, that the warrants in this case were not issued, within the meaning of s.18(1) of the Act, "in accordance with the law of a State", was the subject of argument and decision by the learned primary judge and the subject of extensive argument on the appeal.

In view of the way in which these proceedings have been conducted and the wider ramifications the point involves, I should express my view of it.

I accept the correctness of this submission. In my opinion the Service and Execution of Process Act was not and is not concerned with the enforcement of Commonwealth laws. To force it to serve in that capacity is to ignore its history and distort the meaning of its provisions.

Section 51(xxiv) of the Constitution of the Commonwealth of Australia provides that the Parliament shall have power to make laws . . . with respect to -

"(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States."

Quick & Garran "Commentaries on the Constitution" at p.613 et seq. deal with this grant of power against the background of the restrictions imposed on colonial legislatures because of territorial limitations.

At paragraph 206, dealing with "service", they commented

"The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process, and for the execution of the judgments of the courts of the States, throughout the Commonwealth. With reference to the service, beyond the limits of a colony, of civil process issued within a colony, the constitutionality of laws passed by Colonial legislatures authorising this to be done has often been questioned."

And at 616,

"Under this sub-section of the Constitution a most important power is conferred on the Federal Parliament. It will enable that Parliament to provide procedure for the service, throughout the Commonwealth, of the civil process of the courts of the States, such as writs, summonses, notices of legal applications issued in and by the courts of the States. This includes the service of the civil process of the inferior as well as the superior courts of the States; so that it will be as competent to provide for the service in one State of a summons issued by a local court or a court of petty sessions in another State, as for the service of Supreme Court writs."

In paragraph 208, dealing with "criminal process", they said -

"Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding. A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parliament to deal with a class of cases which, it has been held, is not within the competence of the Colonial legislatures to regulate; viz., the transfer of persons charged with crime from one colony to another. This disability is found on the territorial limitations to which the Colonial legislatures are restricted. . . .

. . . In Ray v. MacMacken (1875) 1 V.L.R.(L) 274, it was decided that the power of extradition, from one part of the British dominions to another, was not inherent in the legislature of any colony, but required the sanction of the Imperial Parliament; that a Colonial legislature may authorise the exclusion from its territory of a person charged with having committed an offence in another colony, and it may order his punishment unless he leaves, but it cannot authorise the sending him in custody out of its territory into another colony."

And at 619 they said -

"The sub-section now under review will facilitate Federal legislation to enforce the service and execution throughout the Commonwealth of the criminal process issued by the courts of a State for the arrest of offenders within any State. It will enable the Parliament to formulate a simple procedure for effecting what now can only be done under the authority of the Imperial Fugitives Offenders Act, and to authorise the execution of magistrates' warrants for the apprehension of offenders in every part of the Commonwealth. This power is clearly restricted to inter-state extradition, or its equivalent. . . "

It is not inappropriate to note the provisions of s.15 of the Federal Council of Australasia Act 1885, which provided -

"Saving Her Majesty's prerogative, and subject to the provisions herein contained with respect to the operation of this Act, the Council shall have legislative authority in respect to the several matters following:-

(d) The service of civil process of the courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it is issued:

(e) The enforcement of judgments of courts of law of any colony beyond the limits of the colony:

(f) The enforcement of criminal process beyond the limits of the colony in which it is issued, and the extradition of offenders (including deserters of wives and children, and deserters from the Imperial or Colonial naval or military forces)."

The purpose of extradition is to enable the transfer of a person who is in a locality, the courts of which do not have jurisdiction to try him with respect to a particular offence, from that locality to a locality the courts of which do have jurisdiction to try him for that offence. The jurisdiction of State Courts, of course, is limited to the territory over which the States have sovereignty, marginally enlarged by defined extra-territorial operation. A Western Australian Court, for example, does not, in respect of an offence against Queensland law, have jurisdiction to try a person alleged to have committed such an offence. For this reason, a procedure akin to extradition was necessary so as to enable the criminal process of a State to be enforced.

Those considerations it seems to me, are not applicable when considering the enforcement of Commonwealth laws, the application of which does not stop at State boundaries.

The Service and Execution of Process Act was passed as No.11 of 1901 and assented to on 16 October, 1901. Its title was "An Act to provide for the Service and Execution throughout the Commonwealth of the Civil and Criminal Process and the Judgments of the Courts of the States and of other parts of the Commonwealth, and for other purposes connected therewith". The title has been amended by No.48 of 1953 and No.216 of 1973, so that it now reads "An Act to provide for the Service and Execution throughout the Commonwealth and the Territories of the Civil and Criminal Process and the Judgments of the Courts of the States and of the Territories, and for other purposes connected therewith".

I note that the High Court of Australia and the Federal Court of Australia are not Courts such as are referred to therein.

Prior to the passing of the Service and Execution of Process Act, the Customs Act No.6 of 1901 had been passed. That Act created indictable offences (see for example ss.231 and 232). It also created many offences in respect of which pecuniary penalties were imposed. Part XIV of the Act, headed "Customs Prosecutions", provided a means by which Customs Prosecutions might be instituted and how those prosecutions might be conducted. Section 247 provided that every Customs prosecution in the High Court of Australia or the Supreme Court of any State may be commenced, prosecuted and proceeded with in accordance with any rules of practice established by the Court for Crown suits in revenue matters or in accordance with the usual practice or procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge. Section 248 provided that, subject to the provisions of the Act, the provisions of the law relating to summary proceedings before Justices in force in the State where the proceedings are instituted shall apply to all Customs Prosecutions before a Court of summary jurisdiction in such State. The Excise Act No.9 of 1901, similarly created offences, both indictable and involving pecuniary penalties, and in Part XI, "Excise Prosecutions", dealt with the institution and prosecution of Excise Prosecutions in a similar manner to that which had been adopted for Customs Prosecutions.

Then, by No.14 of 1901, the Punishment of Offences Act, assented to on 17 December, 1901, the Parliament made provision for "the Punishment of Offences against the Laws of the Commonwealth." It provided in s.1 that the Act would cease to have effect upon the establishment of the High Court. Section 2 dealt with the application of State Laws. It provided -

"The laws of each State respecting the arrest and custody of offenders, and the procedure for their summary conviction or for their examination and commitment for trial on indictment or information and for holding accused persons to bail, shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State or whose trial for offences committed elsewhere may lawfully be held therein."

And the jurisdiction of State Courts was provided for in section 3, which provided -

"The several courts and magistrates of each State exercising jurisdiction with respect to the summary conviction, or examination and commitment for trial, or trial upon indictment or information, of offenders against the laws of the State, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within that State, or who may lawfully be tried within that State for offences committed elsewhere."

By Act No.6 of 1903, the Parliament enacted the Judiciary Act, whose title was "An Act to make provision for the exercise of the Judicial Power of the Commonwealth". This Act was assented to on 25 August, 1903. It established the High Court and thereupon the Punishment of Offences Act 1901 ceased to have effect.

Sections 68 (1) and (2) substantially reproduced the provisions of ss.2 and 3 of the Punishment of Offences Act 1901.

Section 85E of the Crimes Act 1914 was inserted by Act No.84 of 1960 and was repealed by the Crimes Amendment Act 1982. Subsection 1 of s.85E, inter alia, invested the several courts of the States with federal jurisdiction with respect to offences against the Crimes Act; sub-section (2) provided that that jurisdiction was invested within the limits, (other than limits having effect by reference to the places at which offences are committed) of their several jurisdictions whether those limits were as to subject matter or otherwise; sub-section (4) provided that the trial on indictment of an offence against the Crimes Act not being an offence committed within a State may be held in any State or Territory, and sub-section (5) provided, inter alia, that, subject to the Crimes Act, the laws of a State with respect to the arrest and custody of offenders or persons charged with offences and for holding accused persons to bail applied, so far as they were applicable to a person who was charged in that State with an offence against the Act.

Section 68 of the Judiciary Act 1903 was substantially amended by the State Law (Miscellaneous Provisions) Act of 1983. In the second reading speech in respect of those amendments, the then Attorney-General, incorporated a supplementary statement explaining the changes to the various Acts which were to be made by the Bill and in relation to the Judiciary Act said, in part, -

"Sub-section 85E(2) of the Crimes Act 1914, which was repealed by the Crimes Amendment Act 1982, enabled State and Territory Courts to deal with offences against the Crimes Act where such offences were committed in another State or Territory. Sub-section 85E(2) was repealed in the mistaken belief that it duplicated sub-section 68(5) of the Judiciary Act; however, the latter provision applies only in relation to offences committed elsewhere than in a State or Territory."

Section 68 of the Judiciary Act now relevantly provides:-

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

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

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

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

(a) the summary conviction; or

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

(c) the trial and conviction on indictment;

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

. . . (5) "Subject to sub-section (5A) -

(a) the jurisdiction conferred on a court of a State or Territory by sub-section (2) in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth; and

(b) the jurisdiction conferred on a court of a State or Territory by virtue of sub-section (7) in relation to the conviction and sentencing of persons charged with offences against the laws of the Commonwealth in accordance with a provision of the law of that State or Territory of the kind referred to in sub-section (7), is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory.

(5A) A court of a State on which jurisdiction in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth is conferred by sub-section (2) may, where it is satisfied that it is appropriate to do so, having regard to all the circumstances, including the public interest, decline to exercise that jurisdiction in relation to an offence against a law of the Commonwealth committed in another State.

(5B) In sub-section (5A), 'State' includes Territory.

(5C) The jurisdiction conferred on a court of a State or Territory by sub-section (2) in relation to -

(a) the examination and commitment for trial on indictment; and

(b) the trial and conviction on indictment, of persons charged with offences against the laws of the Commonwealth, being offences committed elsewhere than in a State or Territory (including offences in, over or under any area of the seas that is not part of a State or Territory), is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory . . . "

Section 80 of the Constitution provides that -

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

Sections 70 and 70A of the Judiciary Act provide -

"70. When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein.

70A. The trial on indictment of an offence against a law of the Commonwealth not committed within any State and not being an offence to which section 70 applies may be held in any State or Territory."

The learned primary judge noted that none of s.80, s.70 or s.70A of the Judiciary Act had direct relevance in the matter because they relate to the trial of offences and not to the arrest of offenders or their committal for trial. The nature of the offence alleged in this case is such that the trial on indictment of that offence may be held in any State or Territory.

It can be seen that the jurisdiction of State courts in respect of many Commonwealth offences is by s.68 of the Judiciary Act unfettered by the shackles of locality restrictions which restrict them in relation to State offences.

In this particular case, the offence is alleged to have been committed elsewhere than in a State or Territory and so, pursuant to paragraph 68(5C) of the Judiciary Act, the jurisdiction conferred on a court of a State in respect of the examination and commitment for trial on indictment in respect of a person charged with such an offence is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State.

If, in such a case, the Court has jurisdiction throughout the Commonwealth, "extradition" of a person in Western Australia to Queensland seems to me to be wholly inappropriate.

The powers of arrest are to be found in the application of s.68(1) of the Judiciary Act.

In my opinion the warrants in this case were not issued within the meaning of s.18(1) of the Service and Execution of Process Act "in accordance with the law of a State". The warrants owe the force they have solely to s.68(1) of the Judiciary Act, because that sub-section "picks up" the provisions of s.57 of the Justices Act of Queensland, being a provision of a State law, applicable in its terms only to offences against State law and applies that provision as Commonwealth law to offences against Commonwealth law. I accept the submission that the warrants were issued in accordance with the law of the Commonwealth. Section 68 provides for the process by which Commonwealth law is created by reference to otherwise inapplicable provisions of State law.

This approach, in my view, is consistent with authority. Many of the relevant authorities are collected in the judgment of the Full Court of the Federal Court in Lamb v. Moss (1983) 49 A.L.R. 533 at 560-1. The Court was there concerned with s.68(2) of the Judiciary Act, and most of the authorities are concerned with the operation of that sub-section; in my view, they are of assistance in the present matter.

While on this question, I respectfully differ from the conclusion to which the learned primary judge arrived, for the reasons earlier advanced, the appeal should be dismissed.