FEDERAL COURT OF AUSTRALIA Zentai v Republic of Hungary [2007] FCAFC 48 CONSTITUTIONAL LAW – appeal from decision of primary judge dismissing application for prohibition on State magistrates conducting proceedings to determine whether appellants are eligible for surrender for extradition – whether the Commonwealth Parliament can impose an administrative duty on a State officer without State legislative approval – whether duty imposed on State magistrates under s 19 of the Extradition Act 1988 (Cth) is approved by State legislation – whether s 6(3)(b) of the Magistrates Court Act 2004 (WA) constitutes State legislative approval for the purposes of s 19. Extradition Act 1988 (Cth), ss 5, 12, 15, 16(1), 22, 19, 46 Magistrates Court Act 2004 (WA), s 6 Interpretation Act 1984 (WA), s 36 Justices Act 1902 (WA), s 34 Zentai v Republic of Hungary [2006] FCA 1226, upheld Harris v Attorney‑General (Cth) (1994) 52 FCR 386, cited R v Hughes (2000) 202 CLR 535, referred to Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, referred to Austin v Commonwealth (2003) 215 CLR 185, referred to CHARLES ZENTAI v REPUBLIC OF HUNGARY, STEPHEN HEATH, THE MAGISTRATES COURT OF WESTERN AUSTRALIA AND THE COMMONWEALTH OF AUSTRALIA WAD 273 OF 2006 VINCENT THOMAS O'DONOGHUE v IRELAND AND GRAEME NEIL CALDER WAD 267 OF 2006 MOORE, TAMBERLIN AND GYLES JJ 16 APRIL 2007 SYDNEY (HEARD IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 273 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHARLES ZENTAI Appellant AND: REPUBLIC OF HUNGARY First Respondent STEPHEN HEATH second Respondent THE MAGISTRATES COURT OF WESTERN AUSTRALIA Third Respondent THE COMMONWEALTH OF AUSTRALIA Fourth Respondent JUDGES: MOORE, TAMBERLIN AND GYLES JJ DATE OF ORDER: 16 APRIL 2007 WHERE MADE: SYDNEY (HEARD IN PERTH) THE COURT ORDERS THAT: The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIADISTRICT REGISTRY WAD 267 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VINCENT THOMAS O'DONOGHUE Appellant AND: IRELAND First Respondent GRAEME NEIL CALDER Second Respondent JUDGES: MOORE, TAMBERLIN AND GYLES JJ DATE OF ORDER: 16 APRIL 2007 WHERE MADE: SYDNEY (HEARD IN PERTH) THE COURT ORDERS THAT: The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 273 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHARLES ZENTAI Appellant AND: REPUBLIC OF HUNGARY First Respondent STEPHEN HEATH second Respondent THE MAGISTRATES COURT OF WESTERN AUSTRALIA Third Respondent THE COMMONWEALTH OF AUSTRALIA Fourth Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 267 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VINCENT THOMAS O'DONOGHUE Appellant AND: IRELAND First Respondent GRAEME NEIL CALDER second Respondent JUDGES: MOORE, TAMBERLIN AND GYLES JJ DATE: 16 APRIL 2007 PLACE: SYDNEY (HEARD IN PERTH) REASONS FOR JUDGMENT MOORE J: 1 I have had the benefit of reading the reasons for judgment of Tamberlin J in a draft form. As his Honour notes, repeating the comments of Gaudron, Gummow and Hayne JJ in Austin v Commonwealth (2003) 215 CLR 185, the central Constitutional premise advanced by the appellants entails a large proposition. I agree with Tamberlin J it is an issue which need not be decided in these matters because, as his Honour has demonstrated, the Parliament of Western Australia has authorised by s 6(3)(b) of the Magistrates Court Act 2004 (WA), the second respondent in each appeal to undertake the task required by s 19 of the Extradition Act 1988 (Cth) if the Governor has approved. That approval has been given. I agree that each appeal should be dismissed with costs. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 16 April 2007 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 273 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHARLES ZENTAI Appellant AND: REPUBLIC OF HUNGARY First Respondent STEPHEN HEATH second Respondent THE MAGISTRATES COURT OF WESTERN AUSTRALIA Third Respondent THE COMMONWEALTH OF AUSTRALIA Fourth Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 267 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VINCENT THOMAS O'DONOGHUE Appellant AND: IRELAND First Respondent GRAEME NEIL CALDER second Respondent JUDGES: MOORE, TAMBERLIN AND GYLES JJ DATE: 16 APRIL 2007 PLACE: SYDNEY (HEARD IN PERTH) REASONS FOR JUDGMENT TAMBERLIN J: 2 This is an appeal from reasons for judgment given by Siopsis J concerning two extradition applications raising the same issue: Zentai v Republic of Hungary [2006] FCA 1226. The Republic of Hungary is seeking the extradition of Mr Zentai in respect of an alleged war crime and the Republic of Ireland is seeking the extradition of Mr O'Donoghue in respect of charges of obtaining property by false pretences or, alternatively, fraudulent conversion. Each of the appellants has sought an order in the nature of prohibition restraining each of the second respondents from conducting proceedings to determine whether each appellant is eligible for surrender for extradition under s 19 of the Extradition Act 1988 (Cth) ("the Act"). THE LEGISLATION 3 Section 19 of the Act provides for a magistrate to conduct proceedings to determine whether the person sought to be extradited is eligible for surrender in relation to the extradition offence for which surrender of the person is sought by the extradition country. 4 The four stages in the extradition process are described in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389 as: (1) commencement; (2) remand; (3) determination by a magistrate of eligibility for surrender; and (4) executive determination that the person is to be surrendered. Section 19 is concerned with the third stage of the process relating to eligibility for surrender. 5 In general terms, the process is as follows. At the first stage, an extradition country may apply to a magistrate for the arrest of the person sought to be extradited and, if the magistrate is satisfied that the person is an extraditable person in relation to the extradition country, the magistrate must issue a warrant for the arrest of that person: s 12 of the Act. 6 At the second stage, the arrested person comes before a magistrate to be remanded in custody or released on bail for such a period as may be necessary for the conduct of the proceedings under s 19 of the Act: s 15 of the Act. 7 At the third stage, with which we are presently concerned, a magistrate conducts proceedings under s 19 of the Act to determine whether the person is eligible for surrender in relation to the extradition offence. It is a precondition to the conduct of those proceedings that the Attorney-General has issued a notice under s 16(1) of the Act notifying a magistrate that he or she has received an extradition request from an extradition country in relation to the person. 8 If the magistrate decides that the person is eligible for surrender, the matter proceeds to the fourth stage. This involves the Attorney-General making a determination under s 22 of the Act as to whether the person should be surrendered to the country seeking extradition. 9 The term 'magistrate' is defined in s 5 of the Act to mean: '(a) a magistrate of a Territory other than the Northern Territory or Norfolk Island; or (b) a magistrate of a State, the Northern Territory or Norfolk Island, being a magistrate in respect of whom an arrangement is in force under section 46.' 10 In substance, s 46 provides that the Governor-General may arrange with a Governor of a State for the performance, by all or any of the persons who from time to time hold office as magistrates of the State, of the functions of a magistrate under the Act. 11 Another relevant provision is s 6(3) of the Magistrates Court Act 2004 (WA) ("the Magistrates Court Act") which relates to the functions of State magistrates in Western Australia. This section provides that, with the Governor's approval, a magistrate may hold concurrently another public or judicial office or appointment, including an office or appointment made under the law of another place, and may perform other public functions concurrently with those of a magistrate. 12 The relevant arrangement between the Governor-General of the Commonwealth and the Government of the State of Western Australia in relation to the Act is set out in the Commonwealth of Australia Gazette (No. S 366, 30 November 1988) at p 4: 'NOW, IT IS HEREBY ARRANGED in pursuance of section 46 of the Act that all or any of the persons who from time to time hold office as Magistrates of the State of Western Australia may perform the functions of a Magistrate under the Act.' 13 It is common ground that the arrangement remains effective under the transitional provisions of the Magistrates Court Act and s 36 of the Interpretation Act 1984 (WA). 14 In each appeal, the appellant contends that the Commonwealth Parliament cannot impose an administrative duty on a State officer without State legislative approval; that the duty imposed by s 19 of the Act is an administrative duty imposed on the magistrates as State officers; and, that the imposition of the duty is not approved by State legislation, which in this case is s 6 of the Magistrates Court Act. THE DECISION OF THE PRIMARY JUDGE 15 The primary judge agreed that the duty imposed by s 19 of the Act was an administrative duty. However, his Honour did not accept that the Commonwealth Parliament cannot impose an administrative duty on a State officer without State legislative approval. Nor did his Honour accept that the duty was imposed by s 19 on the magistrates in their capacity as State officers. Further, his Honour considered that the imposition of the duty had been approved by s 6 of the Magistrates Court Act. THE QUESTIONS RAISED ON APPEAL 16 This appeal raises several questions. The first issue concerns whether the Commonwealth Parliament can impose an administrative duty on a State officer without legislative approval of that State. The second issue relates to whether the duty, as outlined under s 19, is imposed on magistrates as State officers. The third issue concerns whether the duty imposed is covered by s 6(3)(b) of the Magistrates Court Act, which provides for approval by a State Governor to the imposition of functions on State magistrates. 17 The first issue is addressed by the appellants, as outlined in the submissions of counsel for Mr O'Donoghue, in these terms: '[I]n the absence of something appearing in the particular grant of Commonwealth power pursuant to which it is made to indicate otherwise the Commonwealth Parliament cannot impose an administrative duty on a State officer without State legislative approval.' (Emphasis added.) 18 It is said that this proposition is open on existing High Court authority and consistent with the position taken by the High Court in R v Hughes (2000) 202 CLR 535 ('Hughes'), where the High Court held that a State Parliament cannot impose an administrative duty on a Commonwealth officer without Commonwealth legislative approval. In addition, it is submitted that on a proper analysis, a manifestation of the same underlying principle can be drawn from the federal structure of the Constitution. This submission is said to be based on the principles set out in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 ('Melbourne') at 82-83 and Austin v Commonwealth (2003) 215 CLR 185 ('Austin') at [24], [113], [130], [143]-[147] and [168]. 19 It is contended by the appellants that this line of authority establishes the principle that a Commonwealth law which singles out the States for the imposition of some particular duty, disability or burden for the purpose of curtailing their freedom in the exercise of their constitutional powers will be invalid in the absence of legislative approval of the States concerned. It is said this consequence arises from an aspect of the general implication from federalism recognised in Melbourne Corporation and explained in Austin, which limits the application of federal legislation to the States. 20 Therefore, the appellants argue, ss 19 and 46 of the Act are laws which are inherently discriminatory and necessarily curtail not only the freedom of State officers to act in the exercise of the officers' State functions, but also the freedom of the State itself to determine the scope of its officers' functions. Such laws are, it is said, necessarily aimed at the control of a State in the exercise of its executive duty or judicial authority. 21 This submission for the appellants raises difficult and complex questions of constitutional law. However, it is not necessary for the Court to determine these issues in order to resolve the present dispute, and we will not do so. As Gaudron, Gummow and Hayne JJ said in Austin at [181], the submission raises 'a large proposition' that, in their Honours' view, was not necessary to determine in that case and therefore 'best left for another day.' 22 Similarly, it is not necessary for us to determine the constitutional question in the present case. It can be seen from the way in which the submissions for the appellants have been formulated that if the State gives legislative approval to the exercise by its magistrates of the functions under s 19 of the Act, then the appellants fail. This is because the central proposition is based on the absence of legislative approval to the imposition of duties on State magistrates by a Commonwealth Act. 23 The second issue raised in the course of the hearing was whether the duty imposed by s 19 of the Act was imposed on magistrates as State officers. This issue concerns the operation of the persona designata principle, and was canvassed in some detail by counsel for Mr O'Donoghue. However, we do not express any view on the application of the persona designata principle on the facts of this case as it is unnecessary to decide this issue in view of our decision on the third issue raised on appeal. 24 In this case, the third and final issue raised by the appeal is decisive, namely whether s 6(3)(b) of the Magistrates Court Act can be described as giving legislative approval by the State of Western Australia to the imposition on State magistrates of functions under s 19 of the Act. There is no dispute in this case that the Governor's approval has been given. Therefore, the question is whether the conferral of the power to perform 'other public functions concurrently with those of a magistrate' does, on its proper construction, constitute a source of legislative approval of the performance of duties by State magistrates imposed under the Act. 25 We are of the opinion that, by the enactment of s 6(3)(b) and the arrangement between the Governor-General of the Commonwealth and the Governor of Western Australia as set out in the Gazette extracted above, the State has approved the performance of duties under s 19 of the Act by persons holding office under the Magistrates Court Act. 26 It is evident from s 6 of the Magistrates Court Act, read as a whole, that the section was intended to extend the range of functions which could be performed by a State magistrate to include those provided for under laws other than laws of Western Australia. The section is expansive, as demonstrated by the fact it permits a magistrate to perform the functions of a registrar. Furthermore, under s 6(3)(a), the Governor has the power to approve a magistrate holding a public office or appointment made under the law of another place, such as another State or place outside the Commonwealth. This is also expansive, as is evident by the fact that the appointments which can be approved by the Governor are not limited to those made under State law. 27 On its face, s 6(3)(b) is a similarly expansive provision directed to expand the functions which can be carried out by a State magistrate. The language used in s 6(3)(b) empowers the Governor to approve the performance by a magistrate of public functions other than those of a magistrate at the same time as the magistrate performs the functions of a State magistrate under the Magistrates Court Act. Given its ordinary and natural meaning, the phrase 'other public functions' is sufficiently broad to encompass the exercise of duties imposed under s 19 of the Act. 28 Counsel for the appellants submits that s 6(3)(b) must be read down so that it does not reach to the performance of functions under the Act, having regard to the Explanatory Memorandum to the Bill for the Magistrates Court Act which referred to s 6(3)(b) and the terms of s 34 of the Justices Act 1902 (WA) ("Justices Act"). 29 In summary, the appellants submit that s 6 does not evince an intention on the part of the Parliament of Western Australia to approve the imposition of any duty under Commonwealth law. In support of this proposition, reference is made to Hughes at [75], where Kirby J referred to the principle of statutory construction that the functions of a donee of legislative power will ordinarily be taken as confined to those relevant to the polity within which the officer or authority concerned operates. 30 However, this principle, being one of statutory construction, is subject to the legislative context in which the grant is made. The context in this case involves a provision which expressly enables State magistrates to perform additional functions. In particular, s 6(3)(a) specifically contemplates the holding of additional public offices by State magistrates, including those appointments made under the law of another place. The expression 'another place' would naturally include other States, Territories and perhaps overseas locations. Therefore, s 6(3) itself contains a clear indication that the expression 'other public functions' in s 6(3)(b) is not to be restricted to public functions conferred by Western Australian legislation. 31 The power of a magistrate is also enlarged by s 6(2) to include the capacity to perform any function of a registrar. This provision enables the functions which can be conferred on a magistrate to extend beyond those approved by laws that apply in Western Australia under s 6(1). Accordingly, we do not consider that s 6(3)(b) is limited to the functions conferred by the Western Australia Parliament. Therefore, the first basis for the submission that there is no legislative approval must fail. 32 The second submission made by the appellants concerns the reference to s 6(3)(b) in the Explanatory Memorandum to the Bill for the Magistrates Court Act, which states that the subsection is 'similar' to s 34 of the Justices Act. Section 34 of the Justices Act provides that a magistrate may discharge the duties of a clerk of petty sessions. This is a conferral of an enabling power. It is not open from the reference in the Explanatory Memorandum to the terms of s 34 as being analogous to spell out a legislative prohibition on the Commonwealth Parliament preventing the conferral of power on a State magistrate. In the absence of any restrictive language to that effect, and given the context in which subsection (b) appears, we consider that s 6(3)(b) is a valid State legislative provision authorising the imposition of functions and duties on State magistrates under s 19 of the Act. 33 Because the submissions advanced for the appellants rely, as an essential element, on the absence of this legislative approval which we have found to exist, the appellants have failed to make out their case. 34 For the above reasons, the appeal in each matter is dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 16 April 2007 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 273 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CHARLES ZENTAI Appellant AND: REPUBLIC OF HUNGARY First Respondent STEPHEN HEATH second Respondent THE MAGISTRATES COURT OF WESTERN AUSTRALIA Third Respondent THE COMMONWEALTH OF AUSTRALIA Fourth Respondent IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 267 OF 2006 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VINCENT THOMAS O'DONOGHUE Appellant AND: IRELAND First Respondent GRAEME NEIL CALDER second Respondent JUDGES: MOORE, TAMBERLIN AND GYLES JJ DATE: 16 APRIL 2007 PLACE: SYDNEY (HEARD IN PERTH) REASONS FOR JUDGMENT GYLES J: 35 I agree with the orders proposed by Tamberlin J in each matter and with his reasons for those orders. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 16 April 2007 Counsel for the Appellant in WAD 273 of 2007: Mr S. Gaegler SC and Ms C. Wallace Counsel for the Appellant in WAD 267 of 2007: Mr S.C. Churches, Mr P.W. Johnston and Ms V. Priskich Solicitor for the Appellant in WAD 273 of 2007: Cannon Bowden & Co Solicitor for the Appellant in WAD 267 of 2007: Freehills Counsel for the Respondents in WAD 273 of 2007: Ms M. Gordon SC Counsel for the Respondents in WAD 267 of 2007: Ms M. Gordon SC Solicitor for the Respondents in WAD 273 of 2007: Commonwealth Director of Public Prosecutions Solicitor for the Respondents in WAD 267 of 2007: Commonwealth Director of Public Prosecutions Counsel for the Attorney-General, intervening Ms M. Gordon SC and Mr G. Hill Date of Hearing: 13 February 2007 Date of Judgment: 16 April 2007