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

[2007] HCATrans 491

[2007] HCATrans 491

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P19 of 2007

B e t w e e n -

CHARLES ZENTAI

Applicant

and

REPUBLIC OF HUNGARY

First Respondent

STEVEN HEATH

Second Respondent

THE MAGISTRATES COURT OF WA

Third Respondent

THE COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Office of the Registry
  Perth  No P20 of 2007

B e t w e e n -

VINCENT THOMAS O’DONOGHUE

Applicant

and

IRELAND

First Respondent

GRAEME NEIL CALDER

Second Respondent

Applications for special leave

GUMMOW J
KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON MONDAY, 3 SEPTEMBER 2007, AT 11.05 AM

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC:   If the Court pleases, I appear for Mr O’Donoghue.  (instructed by Freehills)

MS V.M. PRISKICH:   If the Court pleases, I appear for the applicant, Zentai, together with co-counsel, MR S.C. CHURCHES, who is appearing via a videolink.  (instructed by Fiocco’s Lawyers)

MR H.C. BURMESTER, QC:   If it please the Court, I appear with my learned friend, MR G.A. HILL, for the first respondent in the first matter and the first and fourth respondent in the second matter.  (instructed by Director of Public Prosecutions (Cth) and Australian Government Solicitor)

GUMMOW J:   Yes.  You are submitting appearances for the second respondent in the O’Donoghue matter and for the second and third respondents in the Zentai matter.  We will hear first from you, Mr Gageler, and then we will hear Mr Churches and then we will come to Mr Burmester and we will dispose of the two matters together.

MR GAGELER:   Yes.  Your Honours, to get to the constitutional point I obviously need to show a pretty good case that the Full Court was wrong on the construction and the argument on the construction point, for better or for worse, is not going to take very long.

GUMMOW J:   Where do we see the State text?

MR GAGELER:   The State text your Honour will see sufficiently at page 10.  Before I get to the State text, can I remind your Honours of the Commonwealth text which begins at page 7.  Section 19 of the Commonwealth Act, your Honours will recall, provides in subsection (1):

Where . . . 

(c)an application is made to a magistrate . . . 

the magistrate shall conduct proceedings –

So there you have it, a duty imposed on a magistrate upon an application being made.

KIRBY J:   Where is “magistrate” defined?

MR GAGELER:   “Magistrate”, your Honour, if you turn to page 10.

KIRBY J:   Yes, I see. 

MR GAGELER:   You see:

The term “magistrates” is defined in s 5 of the Act to mean . . . 

(b)a magistrate of a State..., being a magistrate in respect of whom an arrangement is in force under section 46.

Then section 46 is set out below that and it refers to an arrangement between the Governor‑General and the Governor of a State for performance of functions.

KIRBY J:   So there is no real problem with the federal statute?

MR GAGELER:   No, not at all.

KIRBY J:   The question is whether the State statute has mirrored it in a constitutionally appropriate way.

GUMMOW J:   There is, is there not, because 46(1) says:

The Governor-General may:

(a)arrange with the Governor of a State –

That is an inter-executive arrangement on its face.  It does not call for legislation by the State.

MR GAGELER:   It may be a problem with section 46 of the Commonwealth Act or it may simply be the absence of State legislative approval.  We would read section 46 down in accordance with section 15A of the Acts Interpretation Act so as to give it a valid operation where there is State legislative approval.  That is the way in which we would ‑ ‑ ‑

GUMMOW J:   Assume there was not State legislative approval, you say it would be invalid?

MR GAGELER:   Yes.

GUMMOW J:   Why?

MR GAGELER:   We say that the imposition of a duty, an administrative duty, upon a State magistrate in those circumstances would be invalid, the imposition of the duty.  So section 19 could not validly apply to a State magistrate absent State legislative approval.  That is the constitutional proposition.

GUMMOW J:   Why?

MR GAGELER:   Why?  Your Honour is asking the big question.  I did not know that I would need ‑ ‑ ‑

GUMMOW J:   Yes, that is what we are here for.

MR GAGELER:   I thought my burden was to show your Honours we got to the big question.

GUMMOW J:   No.  We have studied your written submissions and they make this point that State legislative approval is needed.  You make that point at page 55.

MR GAGELER:   Yes.

GUMMOW J:   Why is not Executive arrangements enough?

MR GAGELER:   I see.  It comes down to this, your Honour.  It goes back to the case of the Seven Bishops.

KIRBY J:   Forget about the cases.  What about the principle?

MR GAGELER:   I am about to state the principle, but it is an ancient principle. Where you have the jurisdiction of a State officer being defined by State legislation, it is simply not open to the State Executive to modify the incidence of that State jurisdiction. It is as simple as that. It is a relationship between the State Parliament and the State Executive, which for meta‑constitutional purposes is preserved by section 106 of the Constitution, but it is an ancient principle.

GUMMOW J:   There is nothing in the general State legislative structure in Western Australia which lays out public service and its duties and the position of magistrates which would in general terms encompass this?

MR GAGELER:   Correct.

GUMMOW J:   The only State candidate legislatively is this section which you say is in adequate.

MR GAGELER:   Is section 6. That is exactly right.

GUMMOW J:   Yes, I see.

CRENNAN J:   Why is it inadequate, what purports to be the State legislative consent?

MR GAGELER:   In section 6, your Honour?

CRENNAN J:   Yes.

GUMMOW J:   Where do we find the text of 6?

MR GAGELER: Section 6 is at the bottom of page 10. The State legislative approval was found by the Full Court to lie in section 6(3)(b). If you look at the structure of section 6, it has to be (3)(b) or nothing, because if you look at subsection (1), it says that:

A magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including this Act and other written laws.

Obviously laws that apply in Western Australia include Commonwealth laws, but ‑ ‑ ‑

KIRBY J:   Yes, but would you read the subsection that way?  I would not think so.

MR GAGELER:   Even if you do read it as referring to Commonwealth laws, the section is declaratory in the sense that it is obviously referring to functions validly imposed or conferred on a magistrate by laws.  It is declaratory.  It is not consensual, it is not permissive.  Subsection (3) is permissive.  If you look at the structure of subsection (3), it provides:

(3)With the Governor’s approval, a magistrate –

(a)may hold concurrently another public or judicial office or appointment –

nobody suggests that this is another public or judicial office or appointment.  It is the conferral of a function.  When you go to paragraph (b), when it is concerned with the performance of “other public functions,” what it says is:

(3)With the Governor’s approval, a magistrate . . . 

(b)may perform other public functions concurrently with those of a magistrate.

Two points about it.  One is one would certainly in paragraph (b) read “other public functions” as referrable to other public functions in and of the State of Western Australia.  That is really your Honour Justice Kirby’s approach to construction in Hughes, but leave that aside entirely, what paragraph (b) is concerned about is performing functions other than functions of a magistrate, other than functions of a State magistrate or functions conferred on a State magistrate by laws that apply in Western Australia, the subject matter of subsection (1).

CRENNAN J:   The Full Court, I think, found, did they not, that phrase “other public functions” was sufficiently broad to encompass section 19 functions?

MR GAGELER:   They did.  We dispute that.  I will come back to that in a moment, but there is another point that really was not adequately addressed in the Full Court, that is, even if you accept public functions could go beyond functions in and of the State of Western Australia, what you are concerned with in paragraph (b) is functions other than those of a magistrate, not an additional function of a State magistrate.  Here one has, by the structure of the Federal Act, the imposition of a duty on a State magistrate as a State magistrate ‑ ‑ ‑

GUMMOW J:   What would be an example in a purely State setting?  What would be an example of (3)(b)?

MR GAGELER:   Your Honour, I can give your Honour a very precise answer to that because, if you go to our bundle of cases and materials and go to page 2, what we have given you is an extract from the explanatory memorandum for the Magistrates Court Act (WA). You see clause 6 referred to towards the bottom of the page. Does your Honour have that?

GUMMOW J:   No.

KIRBY J:   What page?  This is in O’Donoghue?

MR GAGELER:   Does your Honour Justice Gummow have it?

GUMMOW J:   Yes, we have got a bundle in O’Donoghue, book of authorities and statutory material.

MR GAGELER:   Yes, that is right.  If you go to page 2, bottom right‑hand corner of the page.

GUMMOW J:   That is a chunk of the Extradition Act.

MR GAGELER:   Is it?  I have got no idea how that happened.

KIRBY J:   Page 2 of our compilation ‑ ‑ ‑

GUMMOW J:   Just tell us.

MR GAGELER:   I will tell you what it is. It is an extract from the explanatory memorandum for what became section 6 of the Magistrates Court Act. It refers to what was then subclause (3) and says that it is similar to section 34 of the Justices Act. If you go to section 34 of the Justices Act, which I will assume your Honours do not have, it said that “a magistrate may discharge the duties of clerk of petty sessions”. So, in our submission, that was not only an example but the basic intention.

GUMMOW J:   There might be a small centres in Western Australia where that was how things were done.

MR GAGELER:   Yes, and if you think about the position historically of magistrates, certainly in country centres they regularly discharged other functions.

KIRBY J:   I noticed that in what is our page 2, there is reference to a New Zealand warrant.  Do State magistrates have powers to issue New Zealand warrants under federal legislation, do you know?  Is that the sort of public function that ‑ ‑ ‑

MR GAGELER:   I just do not know the answer to that, your Honour.  I wish I had your Honour’s page 2, but I do not.

GUMMOW J:   All right.  It is common ground, is it, that there is no executive arrangement governing this?

MR GAGELER:   There is an executive arrangement. It is referred to at page 11. The point is that it is purely executive so far as the State is concerned and unless State legislative approval is found in section 6(3)(b), then it does not exist. You will see about line 15 or so on page 11 that there is an executive arrangement in force.

GUMMOW J:   Yes, I see.

MR GAGELER:   Your Honours, that is really the point.

GUMMOW J:   Thank you.

KIRBY J:   Just tell me what you say “the law of another place” means in paragraph 6(3)(a).

MR GAGELER:   Again the explanatory memorandum, that your Honours do not have, explains that subclause (3) was meant to go beyond section 34 of the Justices Act and I will quote:

also makes provision for the holding of an office or appointment made under the law of another State which accommodates magistrates also holding appointments as magistrates of another State or territory and vice versa.  This is necessary to accommodate –

It goes on to refer to some Aboriginal land rights legislation.  So another place is another State or Territory.

KIRBY J:   Or maybe New Zealand?

MR GAGELER:   Or perhaps New Zealand, yes.

KIRBY J:   Or some other foreign country doing certain things by agreement with Australia which is provided for under federal law with mirror legislation under State law.

MR GAGELER:   Yes.  It is a reference to a geographically distinct jurisdiction.

GUMMOW J:   Why is this not an appointment?  I see your point that it is not an office, but ‑ ‑ ‑

MR GAGELER:   It has not been suggested that this is an appointment, but it would be difficult to read appointment there as covering the same ground as the conferral of functions in paragraph (b).  Standing alone I accept that it is possible for the conferral of a function to be encompassed within a description of holding an appointment, but it is a bit of a strain on the language.  The conferral of functions, in our submission, is paragraph (b).  The holding of some other position, is paragraph (a).

KIRBY J:   Your attack is mainly on the adequacy of the Western Australian legislation.  You have given notices under section 78B I assume?

MR GAGELER:   Yes.

KIRBY J:   And they have not elected to be here today?

MR GAGELER:   Correct.

GUMMOW J:   Two further questions.  What was the nature of the proceeding before Justice Siopis?  It was an application for prohibition?

MR GAGELER:   It was an application for prohibition, yes. 

GUMMOW J:   On what footing?

MR GAGELER:   What jurisdictional basis?

GUMMOW J:   Yes.  Section 39B, is it not?

MR GAGELER:   No,(1A)(c).

GUMMOW J:   Law of the Commonwealth question?

MR GAGELER:   It is a matter arising under the law of the Commonwealth and also a matter arising under the Constitution, both of which are within the original jurisdiction ‑ ‑ ‑

GUMMOW J:   Not 75(5), because these are State officers?

MR GAGELER:   No, because it is a State officer, yes.

GUMMOW J:   The draft notice of appeal at 51, does that fully encompass all the matters you now put to us?

MR GAGELER:   Yes, your Honour.

GUMMOW J:   All right.  We will call on Mr Churches.  Is there anything that you wish to add to that in the Zentai matter?

MR CHURCHES:   Your Honours, I feel like a relay runner who expected the other runner to run the whole race for him.  I feel the baton has been passed to me with 400 metres to go.

KIRBY J:   Do not drop the baton, not at this stage.

MR CHURCHES:   No, though at my age it might take me 20 minutes to cover the 400 metres, but I think that really does leave me with what we thought was the meat of the argument, which is why is the Extradition Act in itself invalid as contravening principles of federalism.  Unless your Honours wish me to go further into the matters dealt with by Mr Gageler, I would just like to briefly deal with those matters of what we submit are constitutional invalidity.  We say that the test is twofold as to whether a Commonwealth Act transgresses and, first, we submit, there has to be a real impact on State functions and, secondly ‑ ‑ ‑

GUMMOW J:   When you say “Commonwealth Act” you mean section 19 of the Extradition Act?

MR CHURCHES:   Yes, section 19 in particular in this case, your Honour, yes.  Secondly, that impact must compromise the federal structure.  To support those general assertions, we turn to Austin’s ‑ ‑ ‑

KIRBY J:   Why do you need the second?

GUMMOW J:   Why do you need a Melbourne Corporation argument?  That is the question.  You have picked up two batons instead of one, I think.

KIRBY J:   Why is it not sufficient that a federal law is purporting to impose obligations on officers of another government in the polity?

MR CHURCHES:   It may well be, your Honour.  I am sorry, was your question as to why the first one or the second one?  The real impact or the impact ‑ ‑ ‑

KIRBY J:   Second.  Why does it have to have a real impact?  Why is it not simply offensive on its face that the law of one polity is imposing a duty on another?  It cannot do that without the express and clear authority of that other polity within the federation.  I would have thought that is the federal question.

MR CHURCHES:   Yes, your Honours.  I think we have gone for a belt and braces approach which may in fact be unnecessary because we would submit that the modern jurisprudence illustrated in Austin and resting on United States Supreme Court decisions less than 15 years old would indicate that it is the impact on federal polity which really is now fundamental and, indeed, if we adopt that analysis, we are spared the question of what might be called quantification of the issue of impact.  That, of course, was a thread through Austin as to whether or not that there had to be a real and quantified impact on the States.  I note that the Chief Justice, for example, pointed out at the end of his judgment in Austin that it was not a question of quantification there.  The actual dollars at stake were not of great value but, nonetheless, the thread through the Chief Justice’s judgment in Austin and, indeed, picked up then in the joint judgment of Justices Gaudron, Gummow and Hayne is that the real impact and the relationship goes back to Prinz in the United States ‑ ‑ ‑

GUMMOW J:   The Melbourne Corporation case is usually about non‑consensual arrangements.  That is what gets the States angry.  Mr Burmester is about to tell us that there is consent here, manifested indeed by legislation of both polities.

MR CHURCHES:   The short answer to that, your Honour, is that there is apparent consent between two Executives, but we submit that the Western Australian magistracy are the creatures ‑ ‑ ‑

GUMMOW J:   Why would that not be sufficient?  There is not usually even that with a Melbourne Corporation case either.  Why would that not be sufficient?

MR CHURCHES:   Because once we have got a body of officials who are creatures of a State Parliament and the magistracy are set up peculiarly by the State Parliament, there is no sense in which they are an old Crown prerogative court creation, they are not at all like the courts at Westminster, once they are the creatures of the State Parliament, their functions must be jealously guarded against intrusion by the Executive acting without the specific consent of the State Parliament.  In our submission, it is not enough that two Executives agree.  Mr Gageler, of course, got to the Seven Bishops  as the start of the historical threat, the point being, of course, that the Seven Bishops came to a sticky end at the hands of the courts in about 1687, the point being that then the modern world intruded at that point with the arrival of the Bill of Rights in 1689.

KIRBY J:   There is a little bit of a recognition of this argument in section 6(4) of the Magistrates Court Act which says:

A magistrate must not be appointed to an office that does not include any judicial functions without his or her consent –

There is a reflection in the State Act of that principle of the special nature of the magistrate and of the magistrates court.

MR CHURCHES: Indeed, your Honours, but we submit that, even if the magistracy have individually accepted, nonetheless, they cannot accept to go beyond that which their Parliament, the Western Australian Parliament, has allowed to them. In other words, the water may not rise above its source on the basis of individual consent either. It is for the Western Australia Parliament to be clear. Of course, Mr Gageler has explained to you why section 6(3) is anything but clear as an enunciation of Western Australia determination to allow the federal polity to commandeer the magistracy and, indeed, to take over a magistrate’s work for some considerable time as is involved in each extradition proceeding. That is the intrusion, of course, which, we submit, would go to a disturbance of the federal polity.

GUMMOW J:   How does your argument fit in with the reasoning in cases such as Hughes and Bond?

MR CHURCHES:   Your Honours, we submit that arguably it is a two‑way street.  Neither polity can impose on the other willy-nilly.  There must be consensus or consensual and reciprocal application so that it is possible for the States to attempt to impose on the Commonwealth, but with the Commonwealth’s appropriate permission.  The nature of that permission may depend on the circumstances but we submit here the particular circumstances involve the State Parliament.  That may not always be the case, but in this case where we are dealing with creatures particularly of the State Parliament set up under an Act of Parliament, then it is that State Parliament which must be involved in the permissive and consensual agreement with the Commonwealth.

KIRBY J:   One could add to that formula “and who are magistrates”.  I mean, one would not need to fashion in a case like this some general principle that would carry over to perhaps each and every officer of the State, but a magistrate is a special office and it is recognised as such in the Western Australian Act.

MR CHURCHES:   Yes.  The flaw which our argument addresses, your Honours, could of course be most easily illustrated and then addressed by the fact that the Commonwealth Extradition Act is a 1988 Act.  It therefore precedes the invention of federal magistrates by approximately a decade.  So, in other words, the fundamental problem that we are addressing today could be rectified by the Commonwealth Parliament.

KIRBY J:   Now, remind me, is there legislation in another State which is a clearer acceptance by another State of the conferral of this administrative function on State magistrates?

MR CHURCHES:   Mr Gageler addressed that briefly in his outline, your Honours.

KIRBY J:   I read it somewhere, but I cannot remember.

MR CHURCHES:   Yes.  He has a reference to New South Wales.

KIRBY J:   I have a note here in O’Donoghue at 65.

CRENNAN J:   Paragraph 18.

MR CHURCHES:   Yes, thank you, your Honour.

GUMMOW J: Sections 17 and 23 of the Local Courts Act.

MR CHURCHES:   Yes, indeed, where Mr Gageler’s submissions refer to the Local Courts Act 1982 (NSW).

KIRBY J:   What does that say?  Does that say the Commonwealth is another place too?

MR CHURCHES:   No, it appears to leave no room for the New South Wales magistracy to exercise administrative functions at all under Commonwealth law.  So there has been a pushing away on those terms.  I am sorry, I do not have Mr Gageler’s book of authorities, but there would appear to be a pushing away of any possibility there where of course it ‑ ‑ ‑

GUMMOW J:   He just refers to the bad news.  He does not refer to any States where it is clear that it does work.

MR CHURCHES:   Yes, I think that is right, your Honour.

KIRBY J:   The usual way counsel hide from us the good news, but if this matter were granted special leave, we would obviously need all the legislation of all the States and Territory legislation too.

MR CHURCHES:   Yes.  The South Australian legislation on magistrates did not speak to this at all, no apparent reference.

GUMMOW J:   Is there anything else?

MR CHURCHES:   No, your Honour.  That concludes our submissions.

GUMMOW J:   Is your draft notice of appeal fully adequate?  It may have been drafted before you came into the matter, that is why I am asking.

MR CHURCHES:   Just looking that up, your Honour.  It may be, your Honours, that if leave were to be granted, that I would need to confer with Mr Gageler as to, should we say, any finetuning of the notice of appeal.

GUMMOW J:   Yes.  It would be useful if you were to march in same step, really.

MR CHURCHES:   Yes, absolutely.  I understand that.  Thank you, your Honours.

GUMMOW J:   Thank you.  Yes, Mr Burmester.

MR BURMESTER: Your Honours, we say that there are insufficient grounds to grant special leave in this matter. As to the statutory interpretation, we say that the interpretation given to section 6 by the Full Federal Court is correct and that there is clearly legislative authority for the West Australian magistrates to carry out this function. As to the position in other States, in our bundle of materials at pages 49 to 51 we set out a small table of the position in other States. I think that shows that in Victoria there is probably no provision, but there are provisions in the other States that we arguably say would cover the similar sort of function.

GUMMOW J:   I am sorry.  Which pages?  Yes, I see it.

MR BURMESTER:   Pages 49 and 50 in our bundle.  The New South Wales provision, the Local Courts Act, section 23, was recently looked at by the Full Federal Court in the Williams matter, which we have also put in our bundle of materials.  That is at page 22 in the bundle of materials.  That is a recent Full Federal Court decision in Williams which heard the same arguments in relation to the New South Wales provision, section 23, and reached a similar conclusion as in the Zentai and O’Donoghue matters.  They considered the statute provided sufficient authority for New South Wales magistrates to carry out this particular function.

KIRBY J:   There is no specific reference to being permitted to perform federal functions?

MR BURMESTER: Your Honours, we say the general references to holding another office or appointment, and in New South Wales it was section 23(2) which talks about an appointment, and they construed appointment broadly ‑ ‑ ‑

GUMMOW J:   Why not an appointment by New Zealand or Malaysia or ‑ ‑ ‑

KIRBY J:   Uzbekistan. 

MR BURMESTER:   To the extent they are doing judicial functions, there obviously is no need for any express provision.  For the non-judicial ‑ ‑ ‑

KIRBY J:   No, but this is the problem.  Somebody here has sort of worked on a theory that it is a Chapter III officer and therefore they can confer this jurisdiction, but this is not judicial and therefore you are in a different realm.

MR BURMESTER:   Your Honour, we say the States – at least New South Wales and Western Australia in their provisions – have adequately dealt with these non-judicial functions, either in New South Wales where there is reference to discharging other appointments which was read broadly, or in Western Australia where they have singled out office and appointment and other public functions, and we say there is no reason why those provisions cannot be read to embrace the carrying out of these non‑judicial functions in a personal capacity ‑ ‑ ‑

KIRBY J:   You are making this sound a more and more important case because of the fact that as more ‑ ‑ ‑

GUMMOW J:   My colleague is trying to stir you up, Mr Burmester.

KIRBY J:    As more and more functions are taken over by federal agencies and statues are conferred on State officers, they had better do it clearly.

MR BURMESTER:   These are longstanding arrangements that were clearly in contemplation at the time these statutes were passed.

KIRBY J:   Executives can have their cosy little arrangements, but under our constitutional theory, parliaments are what matter.  Where has Parliament expressly approved that State officers will perform federal functions, administrative functions?

MR BURMESTER:   We say, your Honour, in those statutory provisions they have, but even if those statutory provisions do not cover it expressly, the arguments made by both my learned friends depend on what is called a takeover of a State officer and their use for a Commonwealth purpose or a conscription of a State officer and their use for a Commonwealth purpose.  Now, the particular function is done in their personal capacity persona designata.  That has been recognised in the authorities, that when magistrates do this, there is therefore no duty or obligation ‑ ‑ ‑

KIRBY J:  You cannot have people consenting to breaches of the Constitution. It is not a question of their consent.

MR BURMESTER: We say there is no breach of the Constitution. We are not seeking to redefine the office of magistrate under State law. That is not what the arrangements under the Extradition Act purport to be.  The reason there are executive arrangements is that ensures that the State resources, such as the use of the courtroom, the judicial time, are considered and approval is given for the use of that ‑ ‑ ‑

KIRBY J:   What if you have a change of government and a new government does not want the federal authority doing this?

MR BURMESTER:   If there is no arrangement they can terminate the arrangements between the Governor and the Governor‑General.  So if there is no arrangement under the Extradition Act, there is no ability for a State magistrate to carry out this function.

KIRBY J:   Never have to worry the Parliament of the State, never trouble them about this. That is your theory of the Constitution.

MR BURMESTER:   No, your Honour.  If there was a clear prohibition in the State law ‑ ‑ ‑

KIRBY J:   It is not a prohibition.  It is a question of whether you can do it.  It is a question of whether you have authority as a separate polity of the Commonwealth to impose such a duty on the officers of the State.

MR BURMESTER:   Your Honour, we say it is not a duty.

CRENNAN J:   Mr Burmester, may I ask a narrow question which really picks up on what Justice Kirby is saying.  Just honing in for a moment on that phrase “other public functions”, Mr Gageler, as I understood him, said that refers to things like non-judicial functions in and of the State of Western Australia.  There was a reference to an explanatory memorandum, which we did not have unfortunately, but do you have a specific answer to make to that point?

MR BURMESTER: Your Honour, we say when you read the whole of section 6 in context, there is no reason to construe (3)(b) as only applying to public functions of the State of Western Australia. Public functions can have a broad meaning and we say there is no reason why it could not ‑ ‑ ‑

GUMMOW J:   Yes, but how broad, Mr Burmester?  Functions of what polity?

MR BURMESTER:   It could be public functions.  It could be an international appointment.  There is no reason, in our view, why it could not be read broadly.  The safeguard is that it can only be done with the Governor’s approval, so that ensures that the use of the State resources is a matter that is adverted to.  So a magistrate cannot go off on their own and accept an appointment and then they are absent from court and not available to do judicial duties for months of a time.  That is not the case ‑ ‑ ‑

KIRBY J:   I think I remarked in Thomas that it has become very, very common in this Court for the representatives of the government, of whom you are one, to treat the Parliaments as if they do not exist. I mean, it is not the government that matters under our Constitution, it is the Parliament of the State.

MR BURMESTER:   Your Honour, we say in this case that the Western Australian Parliament in the Magistrate’s Court Act, section 6, has addressed the safeguards necessary to ensure that its magistrates do not go off and do other functions or other employment.

KIRBY J:   What, calling the Commonwealth another place?

MR BURMESTER:   By ensuring that the Governor approves of these other appointments.

KIRBY J:   I never thought I would hear a Commonwealth officer turn up here and agree that the Commonwealth is some other place.

MR BURMESTER:   Your Honour, I am not necessarily conceding that the Commonwealth is another place.

KIRBY J:   The Commonwealth is everywhere in Australia, including Western Australia.

MR BURMESTER:   On one view, another place simply means the place where the legislation was made and the Commonwealth is another polity for that purpose.

KIRBY J:   But it does not say “another polity”, it says “another place”.  Does this mean the Commonwealth has withdrawn from Western Australia?

MR BURMESTER:   That is why the focus in this case and ‑ ‑ ‑

KIRBY J:   Have we cut them off?

MR BURMESTER:   ‑ ‑ ‑ in these two cases have been on section 6(3)(b) public function and we say, given a broad interpretation, it is not confined to a State function, it could be an international function as well as a Commonwealth function. The safeguard there is the consent of the Governor.

GUMMOW J:   Justice Crennan wants to interrogate you shortly.

CRENNAN J:   Mr Burmester, we were given the example of the Justices Act (WA) as an example of other public functions in the context of Western Australian legislation. Do you have any examples at hand of Commonwealth legislation which has been relevant to that phrase “other public functions” in section 6(3)(b)?

MR BURMESTER:   Your Honour, there are a whole range of functions under Commonwealth law given to State magistrates.  In footnote 14 of our written submissions on page 71 in the Zentai book we have referred to the Customs Act and then under the Crimes Act itself the issue of search warrants and various things.

CRENNAN J:   Yes, that is what I had in mind.

MR BURMESTER:   There are a whole range of functions given to State magistrates.  The Crimes Act in section 4AAA and section 4AAB – and if I could hand copies up to your Honours – this was a section not referred to specifically in either the Zentai or O’Donoghue matters but it was a matter drawn to the Court’s attention in the Williams matter, the Full Federal Court matter.  There are express provisions emphasising that, when functions are conferred on State magistrates, they are conferred in a personal capacity and there is no duty to exercise them.  Then section 4AAB contemplates that there may be arrangements – it does not require arrangements but contemplates arrangements.  Under the Extradition Act there is no choice.  There must be an arrangement with a State Governor before a State magistrate can be required to or is eligible to exercise a function under the Extradition Act.

GUMMOW J:   What I wanted to try and get clear is, what do you say would be the significance of the Seven Bishops principle, to call it that for a minute, where the State Executive purports to fix upon the State officer simply as a persona designata?

MR BURMESTER:   Your Honour, if it is done as a persona designata, we say there is no problem or there is no requirement for legislation.  The State Executive fixing it ensures that, to the extent that State resources are used, there is a protection of the State there.  The personal capacity ensures that the individual magistrate can either choose or not choose to carry out the particular function.

KIRBY J:   It sounds like a theory of trust the government.

MR BURMESTER:   So it is quite different from the Commonwealth taking some State officeholder and, as it were, conferring additional functions on that officeholder without any State consent.

GUMMOW J:   When you say “persona designata”, consent of the officeholder or of the officeholder’s superior as well?  Do you see what I mean?

MR BURMESTER:   That may be relevant as to whether the officeholder can give their consent.

GUMMOW J:   Yes, that is what I am wondering.

MR BURMESTER:   If there was something in the State Public Service Act or something in the Magistrates Court Act which required approval of the Chief Magistrate, then clearly a magistrate could not consent without that additional consent, but that would be a matter of State law.  But if the State officer is doing something in their personal capacity and there is no prohibition or prerequisite requirement imposed by State law on whether they can do it, we say there is no difficulty.

KIRBY J:   But this is not really being done in a personal capacity.  This is not going down to the Lions Club or the Rotary club or something like that.  This is an official capacity imposed or authorised by federal law.  So it is a horse of a different colour, I would think.

MR BURMESTER:   Yes, your Honour, and it represents ‑ ‑ ‑

KIRBY J:   The question is, does it have equine flu?

MR BURMESTER:   It represents one of many conferrals of functions on State magistrates in their personal capacity such as the issue of search warrants, this one under the Extradition Act, where there is a whole range of provisions providing for this to be done in a personal capacity and pursuant to arrangements with the Federal Government.

KIRBY J:   What happens in the United States or Canada, for that matter, or India, if they authorise by federal law an officer of a State to do something?

MR BURMESTER:   Your Honour, I think your attention has been drawn to some United States cases which talk about commandeering State officers.

KIRBY J:   This is Prinz, is it?

MR BURMESTER:   Yes.  If this was commandeering, then we would say those cases may well be relevant, but we say this is so far removed from commandeering of a State officer for Commonwealth purposes that that whole notion of conscription, the whole constitutional issue that was left undecided in Austin really does not suitably arise in these applications.

KIRBY J:   If special leave is granted, the word “commandeer” is not at all appropriate to the situation here, but there may be in the American jurisprudence or the Canadian jurisprudence some consideration.  There is, after all, in Uther the general statement of Justice Dixon that you do not expect the Parliament of one body to be imposing duties on officers of another body.  I think that is, as it were, a starting point from which I at least begin, therefore you have to see whether or not this is some exception, different application or breach of that principle.

CRENNAN J:   I could be wrong, Mr Burmester, but I think it is the 10th amendment that ‑ ‑ ‑

MR BURMESTER:   That certainly preserves the States and so on, but I think the two United States cases have involved examples of what you might call conscription or commandeering in a true sense.

CRENNAN J:   Yes, in a true sense, commandeering the local police to check people’s weapons and so forth.

MR BURMESTER:   That is right.  This is far removed from that.  I understand in Canada, provincial authorities do perform functions under Federal law – that is my learned junior’s advice.  Beyond that, your Honour, I cannot assist the Court in terms of the position in Canada.

KIRBY J:   It would be interesting to know if that is under legislation or just under agreements between executive governments.  The Executive Government is not the government of the State.  I mean, the government of

the State is in the hands of the Parliament of the State and the Parliament of the State has a constitutional authority under the Federal Constitution.

MR BURMESTER:   Yes, your Honour.  We say these cases do not really raise that fundamental constitutional issue which I know my learned friends would like to agitate, but we say these are not suitable cases.

KIRBY J:   If you look through those statutes which you have helpfully called to our notice, some of them just do not mention this issue at all.  I mean, at least in Western Australia you have some attempt to say “another place” if the Commonwealth is another place, which I do not presently think it is.

MR BURMESTER:   We do not depend on that, your Honour.  We do not need that.  We can simply say it is a public function.

KIRBY J:   If it is a public function, so far as I am concerned, if that appears in a State statute, that means Western Australian public functions; it does not mean Federal public functions.  They have no business interfering in Federal public functions.  Their Parliament should not be making laws with respect to Federal public functions unless they do it expressly and with the authority of the Federal Parliament.

MR BURMESTER:   I am not sure I can take the matter any further, unless there are further questions.

GUMMOW J:   Yes.  Thank you, Mr Burmester.  Mr Gageler, do you want to say anything on this persona designata matter that emerges?

MR GAGELER:   Yes.  It is a red herring.

GUMMOW J:   It may or may not be a red herring.  Yes, go on.

MR GAGELER:   It is obvious that the function imposed by section 19 of the Commonwealth Act is imposed on a magistrate as distinct from the court, because if it was an administrative duty or power imposed on the court, it would be contrary to Chapter III and we would not need to bother about the argument that we are now having.  In that sense, the persona designata doctrine is properly invoked in the sense that the duty is being imposed on the magistrate as distinct from the court.

CRENNAN J:   I think that was dealt with in Cabal’s Case, was it not?

GUMMOW J:   Pardon, your Honour?

CRENNAN J:   That point was dealt with in Cabal, was it not, I understand?

MR GAGELER:   Yes.

CRENNAN J:   You are not arguing about that?

MR GAGELER:   We do not dispute that, but it is not an answer because the point is that the duty is being imposed on the State officer as a State officer as a Western Australian magistrate – not constituting the court but as a Western Australian magistrate, not just a chap who happens to be a State officer.  Your Honours, that is the very short reason why persona designata is not an answer.

GUMMOW J:   Would acceptance of your arguments have a flow‑on effect, if I can use that bad metaphor, in section 4AAA, for example, of the Crimes Act, which Mr Burmester drew to our attention?

MR GAGELER:   Section 4AAA is very interesting because it is a legislative acknowledgement of the very problem that we are pointing to.  I am not sure whether our learned friend is suggesting it has any direct operation in the present case.  It only applies in the absence of a contrary legislative intention and it only applies in relation to criminal matters which, in relation to law as relating to criminal matters, we would read that in accordance with section 21(1)(b) of the Acts Interpretation Act as referring to Commonwealth criminal matters and not simply to extradition.  But we see section 4AAA as usefully illustrating that someone on the Commonwealth side has thought about this problem but has not addressed it in the particular case, that is, in relation to the Extradition Act.

GUMMOW J:   Does not this problem, if it is a problem, go back to the era of Aston v Irvine?

MR GAGELER:   Yes, it does.

GUMMOW J:   It is more than 50 years ago.

MR GAGELER:   It is quite interesting, because your Honours referred in Austin to Aston v Irvine and also to the Commonwealth v New South Wales, a case in 1923, the Royal Metals Case, which can be seen as pointing in the other direction.  The point about the Royal Metals Case was that it was a case that concerned a duty, a fairly minor duty, being imposed on a State officer and the point about Aston v Irvine was that the Court was very careful to characterise the function that was conferred on the State magistrate as a power.  Nowhere did they refer to it as a duty and there is a difference of kind.

GUMMOW J:   What would be the difference if this section 19 just talked about a power rather than a duty?

MR GAGELER:   The constitutional inhibition or prohibition upon which we rely would not be engaged.

GUMMOW J:   Why not?

MR GAGELER:   Because there is a difference in kind between saying that a State officer can do something in addition to performing State functions and a State officer must do something in addition to performing State functions.  It is the difference in kind that is the reciprocal of the point, really, that Hughes and Bond turned upon.

GUMMOW J:   If we grant special leave these various nuances will have to be treated fairly carefully, I think, in submissions.

MR GAGELER:   Yes, of course.

GUMMOW J:   It is a subject that may be more complicated the more you look into it, I suspect, and not readily solved by broad propositions.

MR GAGELER:   No.  We have been pretty precise, your Honour.  We navigated a course through the various authorities.

GUMMOW J:   All right.  Thank you.

KIRBY J:   Could I ask, whilst we are being precise, Mr Burmester, you do not rely on that part of section 6(3)(a) that talks of appointment made under the law of another place?

MR BURMESTER:   No, your Honour, the cases then below were decided on the basis of section 6(3)(b). It may be section 6(3)(a) ‑ ‑ ‑

KIRBY J:   Yes, but I want to pin you down, you see.

MR BURMESTER:   Yes. The first part of section 6(3)(a) may be relevant, but “the law of another place” is only an including phrase, so it is not determinative.

KIRBY J:   Yes, but you will remember Justice Gummow raised the question “hold concurrently another public or judicial office”.  Did you rely on that below or would you rely on that in this Court?

MR BURMESTER:   We would say section 6(3)(a) or section 6(3)(b), either.

GUMMOW J:   Yes.  You might have a notice of contention.

MR BURMESTER:   Yes, your Honour.  We may want to rely on (a) as well as (b) or alternatively.

KIRBY J:   Just because my initial reaction to “made under the law of another place” is unfavourable, it does not mean that there may not be legs in it, I do not know.

MR BURMESTER:   That is right, and in New South Wales, as I said, a provision like (3)(a), which was all they had, they did not have (3)(b), was relied on to support the conferral on the New South Wales magistrate on an appointment.

KIRBY J:   Yes.  I just wanted to be precise and see what you were relying on but, as usual with the Commonwealth, the answer is everything.

MR BURMESTER:   Yes, your Honour.

GUMMOW J:   Why not?  Yes, Mr Churches, is there anything you want to add to what Mr Gageler has said?

MR CHURCHES:   I have nothing to add, your Honours.  Thank you.

GUMMOW J:   There will be a grant of leave in these two matters.  The length of time the argument would take, it is hard to know without having an indication as to the likely number of interventions, if any, from States and Territories, I suppose.

MR BURMESTER:   Yes, your Honour.  I suspect there will be some interventions.

GUMMOW J:   I suspect there will be too.

MR BURMESTER:   Normally I would have said a day, but maybe it will be a day plus.

GUMMOW J:   A day plus, I think.

MR BURMESTER:   Or do you think maybe a day?

KIRBY J:   The States may be happy about this Act but they may see where it all leads.

GUMMOW J:   Very well.  To the extent necessary, there is leave to both appellants to revise their present draft notices of appeal.  Is there anything else?

MR GAGELER:   Your Honour, there was mention of Williams.  Williams was another Full Court decision given just, I think, in the last a couple of weeks.  There has been an application for special leave to appeal in Williams lodged this week.

KIRBY J:   That is the New South Wales case?

MR GAGELER:   Yes.

KIRBY J:   Are any of these litigants in custody pending extradition or not?

MR GAGELER:   No.

GUMMOW J:   Very well.  It is in the public interest that the matter be expedited.  I will see if that can be done.  We will now adjourn until 2.15 this afternoon in Court 1.

AT 11.57 AM THE MATTER WAS CONCLUDED