O'donoghue v Ireland; Zentai v Republic of Hungary; Williams v United States of America

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ.,Gummow,Hayne,Heydon,Crennan,Kiefel JJ.,Kirby J.
• Judgment Date: 23 April 2008
• Neutral Citation: [2008] HCA 14,2008-0423 HCA B
• Court: High Court
• Docket Number: P40/2007, P41/2007 & S410/2007
• Date: 23 April 2008

Vincent Thomas O'Donoghue

Appellant

and

Ireland & Anor

Respondents

Charles Zentai

Appellant

and

Republic of Hungary & Ors

Respondents

Larry Richard Williams

Applicant

and

United States of America & Anor

Respondents

[2008] HCA 14

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ

P40/2007, P41/2007 & S410/2007

HIGH COURT OF AUSTRALIA

O'Donoghue v Ireland

Zentai v Republic of Hungary

Williams v United States of America

Extradition — Function of State magistrates under s 19 of Extradition Act 1988 (Cth) (‘Extradition Act’) and application of s 4AAA of Crimes Act 1914 (Cth) (‘Crimes Act’) — Arrangements between Governor-General and State Governors under s 46 of Extradition Act — Whether power exercised by State magistrates under s 19(1) of Extradition Act conferred under Commonwealth law relating to criminal matters — Whether intention appears in Extradition Act not to apply rule set out in s 4AAA of Crimes Act that State magistrates need not accept power conferred by Commonwealth law — Whether State magistrates obliged to accept performance of functions under Extradition Act — Whether acceptance of power conferred by s 19(1) of Extradition Act may be inferred by course of conduct of State magistrates — Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act.

Constitutional law (Cth) — Relationship between Commonwealth and States — Whether Commonwealth may unilaterally impose functions on State magistrates — Whether on true construction Extradition Act imposes functions on State magistrates — Whether such functions involve imposition of legal duties on State magistrates — Application of s 4AAA of Crimes Act — Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act — Whether consent of State executive government sufficient to authorise imposition of functions on State magistrates.

Words and phrases — ‘duty or power’, ‘extradition’, ‘magistrates’.

Crimes Act 1914 (Cth), s 4AAA.

Extradition Act 1988 (Cth), ss 19, 46.

Magistrates Courts Act 2004 (WA), s 6.

Local Courts Act 1982 (NSW), s 23.

Representation

S J Gageler SC for the appellant (instructed by Freehills)

H C Burmester QC for the first respondent (instructed by Commonwealth Director of Public Prosecutions)

Submitting appearance for the second respondent

S J Gageler SC with P W Johnston and V M Priskich for the appellant (instructed by Fiocco's Lawyers)

H C Burmester QC for the first respondent (instructed by Commonwealth Director of Public Prosecutions)

Submitting appearance for the second and third respondents

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and G A Hill for the fourth respondent (instructed by Australian Government Solicitor)

S J Gageler SC with R P L Lancaster for the applicant (instructed by Watson Solicitors)

H C Burmester QC for the first respondent (instructed by Commonwealth Director of Public Prosecutions)

Submitting appearance for the second respondent

Interveners

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and G A Hill intervening on behalf of the Attorney-General of the Commonwealth in P40/2007 and S410/2007 (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with N L Sharp intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

C J Kourakis QC, Solicitor-General for the State of South Australia with M J Wait and J P McIntyre intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

P M Tate SC, Solicitor-General for the State of Victoria with R J Orr intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

ORDER

• 1. Special leave to appeal granted.

• 2. Appeal treated as instituted, heard instanter and dismissed with costs.

1 Gleeson CJ. Part II of the Extradition Act 1988 (Cth) (‘the Extradition Act’), which provides legislative authority for the extradition of persons from Australia to extradition countries (a defined term that includes the first respondent in each of these matters), was enacted pursuant to the power conferred by s 51(xxix) of the Constitution (the external affairs power). Extradition of alleged or convicted offenders to and from Australia is a matter which closely affects Australia's foreign relations. It commonly involves considerations of reciprocity. Australia's foreign relations are conducted by the Commonwealth, but State judicial officers are involved in the administration of extradition law. Part II of the Extradition Act establishes the procedures to be followed where a request for extradition of a person is made to Australia by an extradition country. The ultimate decision to surrender, where made, is a discretionary decision by the Attorney-General of the Commonwealth (s 22). Prior to that, however, questions of eligibility for surrender arise. These are dealt with administratively by a judicial officer acting as persona designata, subject to the possibility of judicial review 1. Section 19 relates to determinations of eligibility for surrender. The question raised by each of these matters concerns the constitutional validity of s 19.

2 Section 19 provides, in sub-s (1), that, where an application is made to a magistrate for proceedings to be conducted in relation to a person, ‘the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.’ It is unnecessary for present purposes to go into the detail of what is involved in the concept of eligibility for surrender, or the nature of the matters to be decided in determining such eligibility. The term ‘magistrate’ is defined, in s 5 of the Extradition Act, to include ‘a magistrate of a State … being a magistrate in respect of whom an arrangement is in force under section 46.’ Section 46 of the Extradition Act provides that the Governor-General may arrange with the Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of that State, of the functions of a magistrate under the Extradition Act.

3 It may be noted in passing that the reference in s 5 to an ‘arrangement … in force’ under s 46 is a reference to a lawful arrangement. If, for some reason, a purported arrangement in relation to a certain magistrate, or group of magistrates, were invalid, then the judicial officer or officers concerned would not satisfy the definition of ‘magistrate’ for the purposes of s 5. One such reason might be that a Governor of a State lacked the power to enter into the relevant arrangement because the arrangement was inconsistent with State legislation. In none of the

present matters is there a challenge to the validity of an arrangement, or purported arrangement, under s 46. In each case it is assumed that the judicial officer making the relevant determination of eligibility satisfied the definition of ‘magistrate’ in s 5, there being in force an arrangement between the Governor-General and the Governors of Western Australia and New South Wales respectively covering that judicial officer. That, in turn, appears to accept that, under State law, the Governors had power to enter into such arrangements. If it were otherwise, there would have been an issue as to whether, even if s 19 were valid, it was effective in its application to these cases. No such issue was raised.

4 The first two matters, which come before this Court as appeals from the Full Court of the Federal Court ( Moore, Tamberlin and Gyles JJ) 2, arise out of unsuccessful attempts to obtain an order in the nature of prohibition directed to two Western Australian magistrates dealing, under s 19 of the Extradition Act, with the determination of the respective appellants' eligibility for surrender. The third matter is an application for special leave to appeal from the Full Court of the Federal Court (Branson, Tamberlin and Allsop JJ), which dismissed proceedings seeking to prohibit New South Wales magistrates from conducting s 19 proceedings in relation to the applicant 3. The matters were argued together. There is a difference between the Western Australian legislation and the New South Wales legislation concerning the functions of magistrates. That difference affects only the third of three propositions which the appellants and the applicant must establish in order to succeed.

The legislation

5 Reference has been made already to ss 5, 19 and 46 of the Extradition Act, enacted in 1988.

6 Also relevant is s 4AAA of the Crimes Act 1914 (Cth), enacted in 2001. That section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of a class of persons including, relevantly, a State magistrate (s 4AAA(1)(b)). Section 4AAA(2) provides that the function or power is conferred on the person only in a personal capacity. Section 4AAA(3) provides that the person need not accept the function or power conferred. Section 4AAA applies to Commonwealth laws enacted before 2001, such as the Extradition Act (s 4AAA(6)).

7 The Magistrates Court Act 2004 (WA) includes s 6, which provides:

‘6 Magistrates, functions of

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