High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh, Gibbs, Stephen and Mason JJ. Ammann v Wegener [1972] HCA 58 ORDER The question referred to the Court under s. 18 of the Judiciary Act 1903-1969 Cth answered in the negative. The applicants to pay the firstnamed respondent's costs of the hearing before the Full Court. Cur. adv. vult. The following written judgments were delivered:— Nov. 15 Barwick C.J. A Justice of this Court having before him a cause removed into this Court from the Supreme Court of New South Wales has directed the following question to be argued before a Full Court: Whether the provisions of s. 16 (2) of the Service and Execution of Process Act, 1901-1968, insofar as those provisions confer or purport to confer authority upon a police, stipendiary, or special magistrate, having jurisdiction in the State of South Australia to issue in the circumstances provided by s. 16 (2) a warrant for the apprehension of a person in any other State or part of the Commonwealth for the purpose of requiring that person to appear and give evidence at the preliminary examination under Pt V of the Justices Act, 1921-1969, SA, of an information for an indictable offence are invalid on the ground that the said provisions are not a law with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States within the meaning of s. 51 (xxiv.) of the Commonwealth of Australia Constitution Act. The cause is an application made to the Supreme Court of New South Wales for a review of an order, made by a stipendiary magistrate in Sydney, that the applicant be admitted to bail on condition that she appear at the Adelaide Magistrate's Court on a certain day there to testify before a special magistrate conducting a preliminary examination in connexion with a complaint that a defendant therein named had at Prospect in the State of South Australia committed an indictable offence, namely, that he did unlawfully use an instrument with intent to procure the miscarriage of the applicant, contrary to s. 81 of the Criminal Law Consolidation Act, 1935-1971 SA. The cause was removed into this Court pursuant to s. 40A of the Judiciary Act 1903-1969 Cth because the applicant, amongst other submissions, raised before the Supreme Court the validity of s. 16 (2) of the Service and Execution of Process Act 1901-1968 Cth. The antecedent steps which had occurred in connexion with that preliminary examination were (1) an information laid pursuant to s. 101 of the Justices Act, 1921-1969 SA; (2) the issue to the defendant named in the information of a summons to answer a charge; (3) the issue by a special magistrate of a subpoena ad testificandum to the applicant; (4) the making of an order pursuant to s. 16 (1) of the Service and Execution of Process Act giving leave to serve the subpoena on the applicant in the State of New South Wales; (5) the due service of the subpoena on the applicant in New South Wales; (6) the failure of the applicant to obey the subpoena and to attend before the special magistrate in Adelaide to testify in the preliminary examination; (7) the issue of a warrant by a special magistrate in Adelaide pursuant to s. 24 of the Justices Act (this warrant was entitled both under the Justices Act and under the Service and Execution of Process Act); (8) the indorsement of the warrant by a stipendiary magistrate in Sydney pursuant to s. 18 (1) of the Service and Execution of Process Act; (9) the apprehension of the applicant pursuant to the indorsed warrant and her appearance before a stipendiary magistrate in Sydney and, lastly, (10) the making of the order which the Supreme Court was asked to review. The submission of the applicant is that s. 16 (2) of the Service and Execution of Process Act is invalid as not being authorized by s. 51 (xxiv.) of the Constitution of the Commonwealth of Australia. It is conceded by the respondent that the only head of power to which that section could be referred is s. 51 (xxiv.). The arguments proffered by the applicant's counsel in support of this submission are twofold. The first is that upon its true construction, so far as presently relevant, s. 51 (xxiv.) only authorizes laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process of the courts of the States: that is to say, on this argument, the qualification of the civil and criminal process is not that it should be the process of a State but that it must be the process of a court of a State. The following step in the argument is that neither the subpoena nor the warrant issued by the special magistrate in Adelaide constituted either a civil or criminal process of a court of South Australia. Upon this construction of par. (xxiv.) the words found in ss. 16 and 18 of the Service and Execution of Process Act, namely, "by a Judge, a Police, Stipendiary or Special Magistrate or a Coroner" are not validly part of those sections. In other words, it is said, par. (xxiv.) would only authorize so much of ss. 16 and 18 as provided for the service or execution of a subpoena or warrant issued by a court. As the special magistrate, it is said, is not a court within the ambit of par. (xxiv.) the issue of the subpoena for service outside the State and the warrant issued for disobedience of that subpoena were unauthorized and invalid. The second argument offered in the alternative was that in order that the words which I have quoted from ss. 16 and 18 should validly appear in those sections it would be necessary to imply in those sections some qualifying words such as "when exercising judicial power". It was then said, and rightly, that a justice conducting a preliminary examination under s. 106 of the Justices Act on an information as to the commission of an indictable offence is not exercising judicial power. His inquiry is ministerial and not definitive of the rights of parties. It is proper at the outset to observe the interaction of the Service and Execution of Process Act and the Justices Act. The subpoena is issued under s. 23 of the Justices Act. Its validity does not depend upon the presence in South Australia of the person to whom it is addressed. But its command, so far as it is derived from State law alone, will not run beyond the confines of South Australia. Thus, if not personally served in South Australia, the person to whom it is addressed cannot be compelled by State law to obey it. But s. 16 (1) of the Service and Execution of Process Act in terms empowers the special magistrate to authorize the service of the subpoena in another, the second, State. Thus, if s. 16 (1) be valid the person to whom the subpoena is addressed, upon its service, becomes bound to obey it: this by dint of the combined operation of the Justices Act and of the Service and Execution of Process Act. Upon the failure of the person to whom it is addressed to obey the subpoena according to its terms, s. 24 of the Justices Act authorizes the issue by the South Australian special magistrate of a warrant to bring that person before the magistrate to testify. The presence of that person in South Australia is not, in my opinion, necessary to the validity, under the Justices Act, of that warrant. The authority to issue the warrant includes, in my opinion, the case of disobedience to a subpoena duly served out of a State pursuant to the Service and Execution of Process Act. Section 18 (2) of the Service and Execution of Process Act authorizes the execution of that warrant in the second State once it has been indorsed in that State as required by s. 18 (1). It is to be observed that a warrant issued by a special magistrate of a State in accordance with the law of the State is included in the warrants to which s. 18 (1) refers. In this account of the interaction of the statutes, I have made no reference so far to s. 16 (2). That sub-section purports to empower the State magistrate to issue a warrant if satisfied that the subpoena, duly served personally in the second State in pursuance of the leave given under s. 16 (1), has not been obeyed. A warrant issued under s. 16 (2) is included in the warrants to which s. 18 (1) refers. I shall return later to consider whether a warrant issued under s. 16 (2) is a process of the State or of a court of the State and the further question whether the authority to issue such a warrant which s. 16 (2) gives can be regarded as a means of executing the subpoena to which that sub-section refers. For the moment I call attention to the circumstance that by the use of ss. 16 (1) and 18 the service of the subpoena and the execution of the warrant could be effected in this case without resort to the power that s. 16 (2) purports to give. I turn now to the construction of the constitutional power, a matter upon which the validity of at least part of ss. 16 and 18 depends. The first question in this connexion is whether the legislative power is limited to the making of laws with respect to the service and execution of the civil and criminal process of the courts of the State or extends to the making of laws with respect to the service and execution of the civil and criminal process of the States. It was properly pointed out by the Solicitor-General for South Australia that as at the date of the enactment of the Constitution each of the colonies, following the legislative pattern of the United Kingdom, had provision for the creation of justices of the peace, some of whom were stipendiary or special magistrates, with jurisdiction to receive complaints of or informations as to the commission of offences including offences triable on indictment and upon receipt of such a complaint or information to conduct a preliminary examination to ascertain whether there was sufficient evidentiary material on which the person, against whom the complaint was made or the information laid, should be committed to stand his trial for the alleged offence. For the purpose of such an inquiry witnesses were to be examined, for whose attendance to testify such magistrates had power to issue subpoenas. It had long been established before 1900 that such preliminary examination was not a judicial proceeding. But, except in the case of an ex officio indictment laid by the Attorney-General, such a preliminary inquiry with a resultant committal for trial was an indispensable step in the enforcement of the criminal law by the trial of offenders in the courts of law. The Solicitor-General indicated that there were very few instances of criminal process issued by a court of a colony. Section 51 (xxiv.) must be construed against that background. Its meaning as the expression in condensed form of a head of constitutional power must be sought in no pedantic manner but with that amplitude of application which befits the interpretation of an organic instrument. Bearing in mind this background and these principles, I am of opinion that upon its proper construction s. 51 (xxiv.) relevantly gives legislative power with respect to the service and execution throughout the Commonwealth of the civil and criminal process of the States. In other words, in my opinion, the words "of the courts" do not form part of the description of the subject-matter so far as it concerns the civil and criminal process. Those words, in my opinion, form part of the description of the other section of the subject-matter of the paragraph, namely, the judgments of the courts of the States. There is no doubt in my mind that a subpoena ad testificandum issued by a stipendiary magistrate or a special magistrate of a State is a process, a process which can be served, and a process of the State. Whether it is a civil or criminal process will, I think, be determined by the nature of the proceeding in or at which the person upon whom it is to be served is required to attend and testify. A preliminary examination by a stipendiary or special magistrate in connexion with a complaint of or information as to the commission of an indictable offence is, in my opinion, for this purpose a criminal proceeding. Thus, a subpoena such as that issued in this case is, in my opinion, a criminal process of a State. Also, the warrant to compel the physical attendance of the person to testify in that examination is, in my opinion, a criminal process of the State. Having regard to the opinion I have expressed as to the construction of par. (xxiv.), both s. 16 (1) and s. 18 of the Service and Execution of Process Act are valid exercises of the legislative power given by that paragraph. Section 16 (1), in my opinion, is clearly a provision for the service of such a subpoena and s. 18 a provision for the execution of the warrant. Such conclusions are consistent with, if not required by, the reasoning of this Court in Aston v Irvine [1] . 1. (1955) 92 C.L.R. 353. It may be, though I do not find it necessary to so decide, that, even if the construction of par. (xxiv.) submitted by the applicant is accepted, in its application against the background to which I have referred, the subpoena and warrant might possibly be regarded as criminal process of the courts of the State. The preliminary examination made by a magistrate with a view to determining whether there is a case warranting the trial of a defendant is part of the procedure of the courts of law for the enforcement of the criminal law of a State. The summons issued on a complaint to a defendant to answer a charge, as an initiating process of that criminal procedure, might possibly be considered a criminal process of the courts of the State. If it were so considered, I would see little difficulty in the proposition that the subpoena to a person to attend such a preliminary examination to testify as to his knowledge of the subject matter may be a criminal process of the courts of a State. It is true that the word "court" in s. 77 of the Constitution has a specific meaning which if applied literally in the application of par. (xxiv.) would deny the possibilities I have mentioned. But I would not regard the assignment of the meaning which has been given to the word "court" in s. 77 as militating against the acceptance of the possible views I have expressed as to the application of the expression "criminal process of the courts of a State". However, for my part, it is sufficient to decide as I do that on its proper construction par. (xxiv.) ought to be read as providing two legislative subject matters, namely, the service and execution throughout the Commonwealth of the civil and criminal process of the States and the service and execution throughout the Commonwealth of the judgments of the courts of the States. Before passing to observe upon the alternative argument put forward on behalf of the applicant I ought to say that, in my opinion, the word "process" in the paragraph is not in its nature limited to process which is issued by a court or to process which initiates a legal proceeding. No more is involved, in my opinion, in the notion of the civil and criminal process to which par. (xxiv.) refers than a document which may be served or an order which may be executed in relation to proceedings for the establishment of legal rights or the enforcement of the criminal law. The alternative submission of the applicant fastens upon the nature of the proceeding in which the applicant is required to testify as decisive of the question whether in issuing the subpoena the magistrate is a court or is exercising judicial power. To conclude as I have done that the constitutional legislative power is with respect to the service and execution of the civil and criminal process of the States answers this argument. As I have said, in my opinion, the subpoena and the warrant in this case were criminal processes. I can find no warrant whatever for concluding that the legislative power is relevantly limited to the making of laws with respect to the service of subpoenas to testify before a judicial proceeding as distinct from a magisterial proceeding of the kind with which the special magistrate was concerned in this case. It is plain that s. 16 (1) intended magisterial proceedings to be included in the operation of the sub-section. I see no ground whatever for interpolating the words of limitation or qualification which have been suggested by counsel for the applicant. What is definitive in this connexion is the nature of the process itself. There is, in my opinion, no intrinsic difference between a subpoena to testify in an action in court and a subpoena to testify in a magisterial inquiry. So far as concerns the matters discussed in this hearing, the order of the magistrate which it is sought to review was, in my opinion, properly made. I reach this conclusion without any need to consider the validity of s. 16 (2). However, not only has the question as to the validity of s. 16 (2) been asked, but the warrant issued by the special magistrate in Adelaide bore a reference both to the Justices Act and to the Service and Execution of Process Act. On this latter circumstance it is claimed by the applicant that the special magistrate in Adelaide purported to exercise the power to issue a warrant which s. 16 (2) in terms gave him. But, in my opinion, if the special magistrate had purported to exercise that power and s. 16 (2) is invalid, as, for reasons I shall give, I think it is, the validity or propriety of the order sought to be reviewed would not, in my view, be affected. The power given by s. 24 of the Justices Act would be adequate to support the issue of the warrant. Thus, in my opinion, the validity of s. 16 (2) is not really involved in the question whether the stipendiary magistrate's order ought to be reviewed or set aside. However, in order to answer the question referred to the Court I turn to the question of the validity of s. 16 (2) of the Service and Execution of Process Act. I find the purpose of the section somewhat obscure bearing in mind what I have already said as to the power of the special magistrate to issue a warrant pursuant to s. 24 of the Justices Act. The legislative power in this connexion is to provide for the service and execution of the process of the State. Section 16 (2) purports to authorize the State officer, in the circumstances, to issue a warrant. In my opinion, the warrant which he would issue under that sub-section is not a process of the State. Oddly enough, s. 16 (2) presupposes that the magistrate already had State authority to issue warrants of the kind which the section purports to authorize him to issue. But the warrant issued by virtue of s. 16 (2) is a warrant the issue of which is authorized by the Commonwealth Act. In so far as s. 16 (2) is sought to be supported as a law for the service of the process of a State, it would, in my opinion, be invalid; for it does no such thing. However, it is necessary to consider whether or not s. 16 (2) might properly be regarded as providing a means of execution of the subpoena itself, that is to say, by providing a means by which the attendance of the intended witness might be secured. Whilst this suggestion has some attraction I have come to the conclusion that it ought to be rejected. It does not seem to me to be a proper use of language to speak of the execution of a subpoena. When it is served its operation as a summons is spent. It has, when served, conveyed to the person on whom it is served the command of the magistrate who issued it. It can be complied with but not executed in a relevant sense. The issue of a warrant upon the disobedience of the subpoena is, in my opinion, a substantive process. It may be regarded as a means of enforcing the subpoena but, in my opinion, it is not properly said to be a manner of executing the subpoena. Further, s. 16 (2) does not provide a means of executing the warrant issued under the State Act. One remaining basis as supporting the validity of s. 16 (2) needs consideration. It may be said that s. 16 (2), by giving the State magistrate authority to issue a warrant when a duly served subpoena has been disobeyed, is in a sense furthering the "service and execution" of that subpoena. Section 18 does provide for that service of the State warrant issued on disobedience of the duly served process of the State. But the nature of the two provisions, ss. 16 (2) and 18, is, to my mind, radically different. Section 16 (2) gives a new authority, not to serve or to execute a process of the State but to create a new federal process which may be executed by virtue of other provisions of the Service and Execution of Process Act. In my opinion, and with due respect to those who may take a contrary view, the grant of such an authority ought not to be regarded as a means either of service of the State subpoena or of the execution of a State warrant. Nor, in my opinion, can it be regarded as a means of "service and execution" of the subpoena. It provides a means of securing the attendance of the intended witness which, as I have said, could be regarded as a means of enforcing the subpoena. But the relevant power is limited to laws for the service and execution of process. Consequently, I have reached the conclusion that s. 16 (2) of the Service and Execution of Process Act is not authorized by par. (xxiv.) and is invalid. I would answer the question specifically referred to the Court accordingly. Such an answer, however, in my opinion, has no bearing whatever upon the fate of the proceedings which have been removed into this Court. As I have already indicated, in my opinion, subject to arguments that are not presently before the Court, the warrant issued by the special magistrate in Adelaide was issued pursuant to s. 24 of the Justices Act and was capable of being indorsed and executed pursuant to s. 18 of the Service and Execution of Process Act. The order sought to be reviewed, subject to these arguments, was, in my opinion, otherwise authorized by s. 18 (3) (b) of the Service and Execution of Process Act. McTiernan J. The question which is referred to us is: Whether the provisions of s. 16 (2) of the Service and Execution of Process Act, 1901-1968, in so far as those provisions confer or purport to confer authority upon a police, stipendiary, or special magistrate, having jurisdiction in the State of South Australia to issue in the circumstances provided by s. 16 (2) a warrant for the apprehension of a person in any other State or part of the Commonwealth for the purpose of requiring that person to appear and give evidence at the preliminary examination under Pt V of the Justices Act, 1921-1969, SA, of an information for an indictable offence are invalid on the ground that the said provisions are not a law with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States within the meaning of s. 51 (xxiv.) of the Commonwealth of Australia Constitution Act. The question cannot be determined apart from s. 16 (1). I think that the ground mentioned in the question is not tenable. The "proceeding", described as "the preliminary examination", in my opinion, is a criminal proceeding within the words "civil or criminal trial or proceeding". A submission for the applicant was that a "subpoena", including a "summons", described in s. 16 (1), is not "process" within the subject matter of s. 51 (xxiv.) of the Constitution. If this submission is right s. 16 is wholly invalid because it deals only with the service of subpoenas and summonses of the kind described in s. 16 (1). For the determination of the question of validity it is necessary to apply s. 51 (xxiv.) according to its proper construction. The subject matter consists of the service and execution of the civil and criminal process "of the States" and the service and execution of the judgments of the courts "of the States". The words "throughout the Commonwealth" apply, of course, to the service and execution of the said process and the said judgments. Section 16 deals with such subpoenas and summonses as are described by sub-s. (1). If they are "process", the section deals with a kind of civil and criminal process "of the States". In my view of the meaning of "process" in s. 51 (xxiv.), it is used there in its legal sense and in a collective manner. I think, therefore, that the word "process", in this context, extends to any subpoena or summons within the scope of s. 16 (1). In Aston v Irvine [1] , it is said: "s. 51 (xxiv.) provides that the Parliament may make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the Courts of the States". The Court further said [1] : "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." 1. (1955) 92 C.L.R., at p. 364. 2. (1955) 92 C.L.R., at p. 364. The leave to serve the summons, with which this matter is concerned, was granted by a special magistrate of South Australia. He did not derive the power to do so from any law of South Australia. Section 16 (1) is expressed to empower, among others, a special magistrate of the State in which a "subpoena" or "summons" is issued, to grant leave to serve the "subpoena" or "summons" in another State. The warrant for the apprehension of the applicant, with which this matter is concerned, was issued by a special magistrate of South Australia. He was empowered by the law of South Australia to do so. It was effective for execution in that State, but not in another State. The grant of power by s. 16 (2), the sub-section being a federal law, made the warrant effective for execution under the Act and, therefore, in New South Wales, where the applicant was. In my opinion, the rationale on which the Court decided in Aston v Irvine [1] that s. 18 and s. 19 of this Act were valid, is available to support the provision of s. 16 (1) granting power to a magistrate of a State to give leave to serve a "subpoena" or "summons" to which the sub-section applies and to support the validity of s. 16 (2) so far as it operates by force of this sub-section. 1. (1955) 92 C.L.R. 353. In my opinion, both these sub-sections are laws which are directed to the purpose of securing the enforcement of the civil and criminal process of the States with which s. 16 deals. In this matter, I would answer the question: "No". In the other matter, I would also answer the question: "No". Menzies J. Ammann v Wegener . The question for decision is the validity of s. 16 (2) of the Service and Execution of Process Act 1901-1968—which I shall call the Commonwealth Act. A subpoena issued by a magistrate under s. 23 of the Justices Act 1921-1969 SA—which I shall call the State Act, was served in New South Wales, pursuant to leave granted under s. 16 (1) of the Commonwealth Act, requiring the applicant, Doris Helen Ammann, to appear at the Adelaide Magistrates' Court on 17th April 1972, and give evidence at a preliminary examination under Pt (V) of the State Act of a charge against Dr. A. R. Anderson for an offence indictable under the laws of South Australia. The applicant did not answer the subpoena. A warrant for her apprehension was, on 18th April 1972, issued by another South Australian magistrate. This warrant was indorsed under s. 18 (1) of the Commonwealth Act. This was done, seemingly upon the footing that the warrant was issued under the authority of both s. 24 of the State Act and of s. 16 (2) of the Commonwealth Act. Upon this warrant the applicant was apprehended. Thereupon an order was made pursuant to s. 18 (3) (b) of the Commonwealth Act admitting her to bail on a recognizance to appear in the Magistrates' Court at Adelaide. An application was then made to a judge pursuant to s. 19 of the Commonwealth Act to review the last-mentioned order. Upon the hearing of that application, the validity of s. 16 (2) of the Commonwealth Act was called into question and the matter was accordingly removed to this Court. It is in this matter that the question of the validity of s. 16 (2) was directed to be argued before the Full Court. The validity of s. 16 (2) depends upon s. 51 (xxiv.) of the Constitution which authorizes the making of laws with respect to: "The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States". I read this provision as authorizing laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process of the States. This seems to me its natural construction and is in keeping with what was said by this Court in Aston v Irvine [1] viz.: 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. 1. (1955) 92 C.L.R., at p. 364. Accordingly, it is unnecessary to pursue one question which was argued; i.e. that because, as a matter of construction the words "the civil and criminal process" attached to the words "the courts of the States" a law to compel the attendance of a witness at a preliminary examination under Pt (V) of the State Act was outside power. To determine that matter would require some consideration of the nature of a preliminary examination under Pt (V) of the State Act. However, on the construction of the constitutional provision which I have adopted, this is unnecessary and the problem here is simply whether s. 16 (2) is a law with respect to the service and execution throughout Australia of the civil and criminal process of the States. The preliminary examination under Pt (V) of the State Act of a person charged with an indictable offence is, of course, part of the criminal process of the State; so is the process to compel the attendance of witnesses at such an examination. What s. 16 (2) of the Commonwealth Act authorizes is the issue of a warrant for the apprehension of a person who has failed to answer to a subpoena served under the authority of s. 16 (1) such as might have been issued had the unanswered subpoena been served in the State of its issue. The warrant so issued is for execution outside the State in which it is issued but is its issue part of the service or execution of the civil or criminal process of the State of issue? In my opinion, it is. Its issue and execution is to make effective the civil or criminal process of a State to compel the attendance of witnesses required to give evidence at civil or criminal proceedings instituted in the State. It is, I think, important that the issue of this warrant is but a step in enforcing obedience to the subpoena issued by State authority and served under the authority of s. 16 (1) of the Commonwealth Act requiring attendance at civil or criminal proceedings. In this way its issue is but part of the execution of State process. The warrant, although issued under Commonwealth authority is still in aid of State process for obtaining the attendance of persons required as witnesses in State proceedings. It is not necessary that each act authorized by Commonwealth law should, in isolation, be itself the service of a document or the execution of a writ or warrant. The compound expression "service and execution" of process comprehends more. Thus an authority to issue a warrant may, in appropriate circumstances, be given. It may be observed that it is common practice in legislation, such as that authorized by s. 51 (xxiv.), to give authority for the issue in one place of a warrant for apprehension to make effective the process of another place where the person to be apprehended is wanted. See for instance the Commonwealth Act ss. 18 (3) (a), (4) and 19 (A) and the Fugitive Offenders Act 1881 UK ss. 14, 16 and 24. The issue of the warrant authorized by s. 16 (2) is an act which takes its character from the whole process of which it is but a part. Section 16 is, as a whole, a law with respect to the service and execution of State process. I find no reason for a narrow construction of s. 51 (xxiv.) and consider the constitutional power which it confers ample to authorize the issue of a warrant to enforce attendance under a subpoena served outside the State of its issue by virtue of s. 16 (1) of the Commonwealth Act but which has been disobeyed. Accordingly, I would answer the question "No". Robinson v Wegener . The question to be argued in the Full Court is the same as the question which I have answered in the matter of Ammann v Wegener . For the reasons given in that case, I answer the question asked in this case "No". Walsh J. I agree with the reasons for judgment of Gibbs J. and with his conclusion as to the answer which should be given to the question which in each of these cases was directed to be argued before a Full Court. In my opinion the question should be answered "No" in each case. Gibbs J. These two cases, which have been stated by Mason J. and heard together before the Full Court, raise for decision the question whether the provisions of s. 16 (2) of the Service and Execution of Process Act 1901-1968 Cth ("the Act"), in so far as those provisions confer or purport to confer authority upon a police, stipendiary, or special magistrate having jurisdiction in the State of South Australia to issue in the circumstances provided by s. 16 (2) a warrant for the apprehension of a person in any other State or part of the Commonwealth for the purpose of requiring that person to appear and give evidence at the preliminary examination under Pt V of the Justices Act 1921-1969 SA ("the Justices Act ") of an information for an indictable offence, are invalid on the ground that the said provisions are not a law with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States within the meaning of s. 51 (xxiv.) of the Constitution. Section 16 appears in Pt II of the Act which, according to its heading, deals with the service of process. It is convenient to set out in full the provisions of s. 16 (1) and (2). They are as follows: 15. (1) When a subpoena or summons has been issued by or out of a Court, or by a Judge, a Police, Stipendiary or Special Magistrate or a Coroner, in any State or part of the Commonwealth, requiring any person to appear and give evidence or to produce books or documents, in any civil or criminal trial or proceeding (including any proceeding before a Coroner), such subpoena or summons may upon proof that the testimony of such person or the production of such books or documents is necessary in the interests of justice by leave of such Court Judge Magistrate or Coroner on such terms as the Court Judge Magistrate or Coroner may impose be served on such person in any other State or part of the Commonwealth. (2) If such person fails to attend at the time and place mentioned in such subpoena or summons, such Court Judge Magistrate or Coroner or any other Police, Stipendiary, or Special Magistrate having jurisdiction in the State or part of the State or part of the Commonwealth in which the subpoena or summons was issued may on proof that the subpoena or summons was duly served on such person, and that a reasonable sum was tendered to him for his expenses issue such warrant for the apprehension of such persons as such Court Judge Magistrate or Coroner might have issued if the subpoena or summons had been served in the State or part of the Commonwealth in which it was issued. The effect of s. 16 (1), stated very shortly, is that a subpoena or summons to a witness issued in one State or part of the Commonwealth may, by leave given in accordance with the sub-section, be served in another State or part of the Commonwealth. The effect of s. 16 (2), also stated shortly, is that if the person to whom the subpoena or summons is addressed fails to comply with its requirements a magistrate (inter alios) having jurisdiction in the State or part of the Commonwealth in which the subpoena or summons was issued (which I shall for brevity's sake call the State of issue) may, on proof of certain matters, issue such warrant for the apprehension of that person as that magistrate might have issued if the subpoena or summons had been served in the State of issue. Provision for the execution of such a warrant is made by s. 18 of the Act. Where a magistrate (inter alios) has "in accordance with section sixteen of this Act or the law of a State or part of the Commonwealth" issued a warrant for the apprehension of a person, a magistrate (inter alios) who has power to issue warrants for the apprehension of persons under the law of another 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 of certain specified matters, make an indorsement on the warrant authorizing its execution in that other State or part of the Commonwealth (s. 18 (1)); a warrant so indorsed is authority to apprehend the person against whom it is issued and to bring him before a magistrate or justice of the peace who has power to issue warrants for the apprehension of persons under the law of that other State or part of the Commonwealth (s. 18 (2)); and the magistrate or justice before whom the person arrested is brought may by warrant order him to be returned in custody to the State of issue or may admit him to bail on condition that he appears at a specified time and place in the State of issue "to answer the charge or complaint or to be dealt with according to law" (s. 18 (3)). The magistrate or justice has a discretion (inter alia) to order the discharge of the person apprehended if the charge is trivial, the application for his return has not been made in good faith or it would be unjust or oppressive to return him to the State of issue (s. 18 (6)). Some of the language of s. 18 is more appropriate to the case where the person apprehended is charged with an offence than to the case of a witness, but the express reference to s. 16 shows that s. 18 applies also to the latter situation. Section 19 gives power to a judge of the Supreme Court of the State or part of the Commonwealth in which the person was apprehended, sitting in chambers, to review an order made by a magistrate or justice of the peace under sub-s. (3) or sub-s. (6) of s. 18. Section 19A gives a power to issue provisional warrants for arrest in certain cases. Although the facts stated in the cases have, of course, no bearing on the constitutional validity of s. 16, it is convenient to refer briefly to them to show how the question arises. For present purposes the facts of the two cases are substantially identical. In each case the applicant is a woman living in Sydney. An information has been laid in South Australia against a medical practitioner in that State, charging him that he unlawfully used an instrument to procure the miscarriage of the applicant, contrary to the law of South Australia. A special magistrate of South Australia, acting under s. 23 of the Justices Act, issued a witness summons to the applicant to appear at the Adelaide Magistrates' Court at a specified time to give evidence on behalf of the informant. The magistrate, acting under s. 16 (1) of the Act, granted leave for the service of the summons upon the applicant in New South Wales. The summons was duly served but the applicant failed to appear at the time and place specified. A magistrate in South Australia, Mr. Carter, thereupon issued a warrant to bring the applicant before him. In so doing, according to the case stated, he acted "under" s. 16 (2) of the Act, and "in view of the powers conferred by" s. 24 of the Justices Act. Section 16 (2) of the Act gave him power to issue such warrant for the apprehension of the applicant as he might have issued if the summons had been served in South Australia. The power which he would have had to issue a warrant if the summons had been served in South Australia is that given by s. 24 of the Justices Act, which, so far as material, reads as follows: If any person summoned as aforesaid neglects or refuses to appear, and no just excuse is offered for such neglect or refusal, then any justice before whom the person should have appeared may issue a warrant to bring and have such person, at a time and place therein mentioned, before such justices as shall then be there Mr. Carter found inter alia that the applicant had offered no just excuse for her neglect to comply with the summons. The warrant issued by Mr. Carter was subsequently indorsed under s. 18 (1) of the Act so as to authorize its execution in New South Wales, and the applicant was apprehended in Sydney under this warrant and brought before Mr. Lewer, a stipendiary magistrate in New South Wales. (In one case the applicant was first apprehended under a provisional warrant issued under s. 19A, but nothing turns on this fact as she was subsequently apprehended on the warrant issued by Mr. Carter.) Mr. Lewer ordered that the applicant be admitted to bail on a recognizance conditioned that she appear at the Magistrates' Court, Adelaide at a specified time. The applicant subsequently applied to a judge of the Supreme Court of New South Wales in chambers to review this order. In the course of this review it was submitted that s. 16 (2) is ultra vires and invalid in so far as it purports to authorize the issue of a warrant for the apprehension of a person for the purpose of requiring that person to appear and give evidence at the preliminary examination under Pt V of the Justices Act of an information for an indictable offence. The learned judge held that there had arisen a question as to the limits of the constitutional powers of the Commonwealth and those of the States so that the proceedings were removed to this Court by virtue of s. 40A of the Judiciary Act. Not all questions whether the Commonwealth has exceeded a power conferred by s. 51 are questions inter se, for some of those powers deal with matters with which the States have no concern and their exercise cannot affect State laws under s. 109 of the Constitution (see Nelungaloo Pty Ltd v The Commonwealth [1] ), but it was not suggested that the view taken by the learned judge was incorrect, and there seems no reason to doubt that the interpretation of s. 51 (xxiv.) gives rise to an inter se question. 1. (1952) 85 C.L.R. 545, at p. 564. Although the order in force against the applicant and sought to be reviewed was made under s. 18 (3) of the Act, the present challenge is to the validity of s. 16 (2). More accurately, perhaps, the submission of the applicant was that s. 16 (2) should be given a restricted interpretation so as to save it from invalidity. The position taken by the applicant appears to be that if s. 16 (2) upon its proper construction did not authorize Mr. Carter to issue the warrant to bring the applicant before him, the condition precedent to the exercise of the power given by s. 18 (1) was not fulfilled, the indorsement of the warrant in intended exercise of the power given by that sub-section was unauthorized and there was then no power under s. 18 (3) to order the return of the applicant to South Australia. The condition precedent laid down by s. 18 (1) is that the warrant sought to be indorsed was issued "in accordance with section sixteen of this Act or the law of a State or part of the Commonwealth". The condition would therefore be satisfied if the warrant had been issued in accordance with the law, of South Australia, even though s. 16 (2) had no application. If the warrant for the apprehension of the applicant was issued in accordance with s. 24 of the Justices Act, it would not be necessary to consider whether it was also issued in accordance with s. 16 (2) of the Act. However, the warrant purported to have been issued under s. 16 (2). The question whether s. 24 is intended to apply, or can validly apply, where the person summoned is not in South Australia and was not served within South Australia was not argued before us. In these circumstances it seems right to assume that the warrant in the present case could only be indorsed under s. 18 (1) if it was issued in accordance with s. 16 (2), and convenient to decide the question raised by the stated case. On behalf of the applicant it was submitted that a magistrate who conducts a preliminary examination for the purpose of deciding whether a person charged with an indictable offence should be committed for trial is performing a ministerial and not a judicial function. Such a magistrate, it was said, does not constitute a court, and a summons or warrant issued by a magistrate to compel the attendance of a witness at such an examination is not the process of a court. Finally, it was submitted that s. 51 (xxiv.) of the Constitution does not authorize the Parliament to make laws with respect to the service and execution of the process of bodies other than courts. The first proposition submitted by the applicant is supported by a considerable body of authority. In Cox v Coleridge [1] , it was held that a preliminary inquiry before a magistrate as to whether there was sufficient ground to commit a prisoner for trial was not a judicial inquiry. Holroyd J. went further; he said [1] : "A magistrate, in cases like the present, does not act as a Court of Justice; he is only an officer deputed by the law to enter into a preliminary enquiry " Notwithstanding the reforms made since the time of that decision by Sir John Jervis' Act ((1848) 11 & 12 Vict., c. 42) and by the Colonial and State statutes that followed its provisions, it has been held that the nature of the inquiry has not been altered and that a magistrate in conducting such an inquiry is exercising an executive or ministerial and not a judicial function: Reg v Nicholl [2] ; In re Mercantile Bank; Ex parte Millidge [3] ; Huddart, Parker & Co Pty Ltd v Moorehead [4] ; Ex parte Cousens; Re Blacket [5] ; Ex parte Coffey; Re Evans [6] . A different view was suggested in Reg v Schwarten; Ex parte Wildschut [7] , but in that case the actual decision was that prohibition lay to a magistrate conducting preliminary proceedings whether or not he was performing a ministerial function a question which does not here concern us. It may therefore be accepted that a preliminary inquiry with a view to deciding whether an accused person should be committed for trial is not a judicial proceeding. 1. (1822) 1 B. & C. 37 [107 E.R. 15]. 2. (1822) 1 B. & C., at pp. 51-52 [107 E.R., at p. 20]. 3. (1862) 1 Q.S.C.R. 42. 4. (1893) 19 V.L.R. 527, at p. 539. 5. (1908) 8 C.L.R. 330, at p. 357. 6. (1946) 47 S.R. (N.S.W.) 145. 7. [1971] 1 N.S.W.L.R. 434. 8. [1965] Qd. R. 276. It does not necessarily follow that because a magistrate is not exercising judicial functions he cannot be said to sit as a court. In Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1] , Fry L.J. said: "There are many other courts which, though not courts of justice, are nevertheless courts according to our law. There are, for instance, courts of investigation, like the coroner's court." It might be thought that the words "courts of the States" in s. 51 (xxiv.) include all bodies which are courts according to the law of the States, whether or not those bodies exercise judicial power. However, it is not in my opinion necessary to decide whether a magistrate in South Australia when holding a preliminary examination for the purpose of deciding whether a person charged with an indictable offence should be committed for trial, or issuing a summons or warrant for the purpose of procuring the attendance of a witness at such a preliminary examination, can be described as one of "the courts of the States" within s. 51 (xxiv.) of the Constitution. It is therefore unnecessary to consider whether the words "the courts of the States" in that paragraph refer only to tribunals exercising judicial powers, or whether the provisions of Pt V of the Justices Act show that a magistrate holding such preliminary examination or issuing such a summons or warrant is not a court according to the law of South Australia. These questions do not in my opinion arise, because I consider that in s. 51 (xxiv.), which empowers the Parliament to make laws with respect to "the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States", the word "process" is not governed by the words "of the courts"; those words refer only to "judgments". In other words, s. 51 (xxiv.) enables laws to be made with respect to the service and execution of (1) the civil and criminal process of the States, and (2) the judgments of the courts of the States. This construction apparently commended itself to the Court in Aston v Irvine [1] , where the nature of the power given by s. 51 (xxiv.) was described in the following words: "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 a construction which is suggested by the use of the word "the" before "judgments" and by the absence of commas in the paragraph. Moreover, if it is thought that the words of the paragraph are ambiguous, strong reason exists for giving them the broader construction of which they are capable. The prior history of the efforts of the Australian colonies to provide for the enforcement in one colony of the process of another had revealed, as was said in Aston v Irvine [1] , that "territorial limitations upon colonial power made the effective reciprocal action of the colonies in this field difficult, to the point of impossibility". The apparent object of par. (xxiv.) was to enable the Parliament to remove the grave difficulties that had existed before Federation in enforcing the process of one colony in another, and the paragraph ought to be given a liberal construction so that its apparent object is fully secured. It would not achieve that object if it were held that its operation did not extend to process which formed an integral part of the established criminal procedure but which, it might be thought, could not properly be described as the process of a court. 1. [1892] 1 Q.B. 431, at pp. 446-447. 2. (1955) 92 C.L.R., at p. 364. 3. (1955) 92 C.L.R., at p. 364. At Federation, in all the colonies, the law gave power to a justice of the peace to conduct a preliminary examination for the purpose of determining whether there was a strong enough case to commit an accused person for trial, and to summon a witness to attend at such examination. (As will appear, it is enough to consider whether the summons is "process" within s. 51 (xxiv.), and to postpone consideration of the warrant.) Today, in all the States, a justice still has these powers. Such committal proceedings have a long history, and fulfil a useful function in enabling it to be determined whether there is evidence to justify putting an accused person upon his trial, and in giving the accused, before his trial, an opportunity to learn what case he has to meet and to test its strength. No doubt those functions might be performed in other ways, but at Federation the preliminary examination was (and still is) an essential part of the criminal procedure in its existing form. A summons requiring a witness to attend at such a preliminary examination is clearly "process". That word was defined in Wharton's Law Lexicon, 9th ed. (1892), as follows: "It is largely taken for all the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof, by which the rest is directed." It need hardly be said that there would be no possible justification for regarding "process" in par. (xxiv.) as used in its strict or narrow sense, and as referring only to an originating proceeding. A summons issued by a justice for the purpose of securing the attendance of a witness at a committal proceeding is not only "process" within the ordinary meaning of that expression, but is part of the criminal process of a State within par. (xxiv.), whether or not it can properly be described as the process of a court. The authority of Aston v Irvine [1] supports, and indeed appears to compel, the conclusion that process issued for the purpose of a preliminary examination before a magistrate is "process" within par. (xxiv.). In that case, three persons charged with offences against the law of South Australia had been arrested in Victoria pursuant to warrants issued in South Australia and indorsed under s. 18 (1) of the Act authorizing their execution in Victoria. In one case a magistrate made an order under s. 18 (3) requiring the accused to appear in Adelaide to answer the charge, but in the other cases the men were discharged, apparently under s. 18 (6). Applications for review, under s. 19, were removed to this Court, which, in the event, made orders under s. 18 (3) for the return of the three men to South Australia. If, as appears probable, the accused persons were returned for the purpose of a preliminary examination, the case would appear to govern the present in this respect, because if a warrant to compel the attendance of an accused person at such an examination is "process" within par. (xxiv.), there is no ground on which it can be suggested that a summons requiring the attendance of a witness at the same examination would not similarly be "process" within the paragraph. 1. (1955) 92 C.L.R. 353. For the reasons I have given I hold that the Parliament has power to legislate for the service and execution throughout the Commonwealth of a summons requiring a witness to appear and give evidence at a preliminary examination under Pt V of the Justices Act. The question remains whether s. 16 (2) of the Act is a law of that description. Although the warrant issued under that sub-section is such warrant as might have been issued if the summons had been served in the State in which it was issued, it seems right to say that its issue is authorized by Commonwealth law rather than by State law. Assuming, however, that the warrant issued under s. 16 (2) may not in itself be described as the process of a State, it is issued to enable the process of a State, viz. the summons, to be carried into effect. Although s. 16 (2) appears in a Part of the Act whose heading refers to "Service", it provides, in my opinion, for the execution of the summons served under s. 16 (1). The Constitution does not narrowly limit the mode of execution allowed, but permits the Parliament to select the means by which process of one State is to be given efficacy in another, and to provide if necessary that further process be issued for this purpose. The decision in Aston v Irvine [1] , upholding the validity of s. 18 of the Act, supports this view. A warrant issued in one State, and indorsed in another under s. 18 (1), may be carried into execution by the issue of a further warrant under the authority of s. 18 (3), and by the execution of that further warrant. Any objection to s. 16 (2) on the ground that the Commonwealth statute reposes power in magistrates and justices of the States is also answered by Aston v Irvine [1] . Section 16 (2) is in my opinion a valid law for the execution of the process of the States. 1. (1955) 92 C.L.R. 353. 2. (1955) 92 C.L.R., at pp. 364-365. I would answer the question in each stated case "No". Stephen J. I have had the opportunity of reading the reasons for judgment of Gibbs J. and, in the light of those reasons, need say no more than that I agree with them and with his conclusions that in each of these cases the question should be answered "No". Mason J. In the course of a hearing before Meares J. in the Supreme Court of New South Wales of applications by Doris Helen Ammann and Janelle Robinson under s. 19 of the Service and Execution of Process Act, 1901-1968 (which I shall call "the Federal Act"), it was submitted by counsel on behalf of the applicants that s. 16 (2) of that Act was invalid on the ground that it was ultra vires s. 51 (xxiv.) of the Commonwealth of Australia Constitution Act. The submission raised an inter se question and by force of s. 40A of the Judiciary Act, 1903-1969, the applications were removed to this Court. When the applications came before me, at the request of the applicants and the respondent Ian Jack Wegener, I directed that the question of the validity of s. 16 (2) should be argued before a Full Court pursuant to s. 18 of the Judiciary Act. That question now arises for decision. The proceedings have their origin in informations which were laid against Albert Raymond Anderson, a medical practitioner, for unlawfully using an instrument with intent to procure the miscarriage of each of the applicants, contrary to s. 81 of the Criminal Law Consolidation Act, 1935-1971 SA. A special magistrate for the State of South Australia, acting under s. 23 of the Justices Act, 1921-1969 SA, issued a witness summons to each applicant requiring her to appear at the Adelaide Magistrates' Court on 17th April 1972 to give evidence in the committal proceedings against Anderson. The magistrate, acting under s. 16 (1) of the Federal Act, granted leave for the service of the summonses upon the applicants in New South Wales. The summonses were served on the applicants in Sydney but neither applicant attended court at Adelaide on 17th April 1972. On 17th April 1972 at Adelaide a warrant was issued by a special magistrate for the State, acting under s. 16 (2) of the Federal Act and in view of the powers conferred by s. 24 of the Justices Act, to bring the applicant Robinson before him at the Adelaide Magistrates' Court forthwith to give evidence in the committal proceedings. On the following day a like warrant was issued by the same magistrate to bring the applicant Ammann before him. On 18th April 1972 the applicant Robinson was arrested by New South Wales police officers upon a provisional warrant issued under s. 19A of the Service and Execution of Process Act at Ryde in the State of New South Wales on 17th April 1972. On the following day the applicant appeared in the Sydney Central Court of Petty Sessions and was remanded on bail until the following day when the respondent Wegener, a South Australian police officer, travelled to Sydney with the warrant issued in that State. He then secured, under s. 18 (1) of the Federal Act, an indorsement of the warrant to the effect of the form in the 2nd Sch. to the Act authorizing its execution in the State of New South Wales. On the same day he apprehended the applicant upon the warrant. Again on the same day the respondent Wegener secured a like indorsement on the warrant which had been issued in respect of the applicant Ammann. On 21st April 1972 in Sydney he apprehended the applicant Ammann under that warrant. The two applicants were brought before the Sydney Central Court of Petty Sessions and were remanded on bail until 8th May 1972 when they appeared before the respondent Walter John Lewer, the stipendiary magistrate in Sydney Central Court of Petty Sessions. After hearing evidence and submissions by counsel on behalf of the two applicants Mr. Lewer made orders under s. 18 (3) (b) of the Federal Act requiring that each applicant be admitted to bail on a recognizance herself and surety of $100 or cash in lieu of surety, on condition that she appear at the Adelaide Magistrates' Court at 10 a.m. on 13th June 1972. The applicants each applied under s. 19 to a judge of the Supreme Court for a review of the order made against her. It was on the hearing of these applications by Meares J. that the submission was made by counsel for the applicants which had the effect of removing the proceedings into this Court. Other sub-missions were then made in support of the case for review but they do not presently arise for consideration. It has been said of the word "process" that "in its broader sense it includes all proceedings in the course of litigation, but in its narrower sense it is restricted to refer to the summons, writ or other mandate by which a person is brought into court and the litigation is formally commenced"—Boilermakers' Society of Australia, Queensland Branch, Union of Employees v Brisbane Welding Works Pty Ltd , per Gibbs J. [1] . Here it is not disputed that in s. 51 (xxiv.) the word includes a subpoena or summons requiring a witness to attend and give evidence. 1. [1965] Qd. R. 598, at p. 605. Counsel for the applicants submitted that s. 51 (xxiv.) should be read as if the words "of the courts of the States" governed the expression "the civil and criminal process" as well as the words "the judgments". He then argued that the issue of a summons to a witness requiring the witness to give information in committal proceedings before a magistrate under the Justices Act SA did not form part of the civil and criminal process of the courts of South Australia. The conclusion was, so it was argued, that s. 16 (2) of the Federal Act, to the extent that it authorized the service outside the State of a witness summons in connexion with such proceedings, was ultra vires the legislative power conferred by s. 51 (xxiv.). No direct attack was made on the validity of s. 16 (1) and s. 18, but it was conceded by counsel that, if his submission be correct, those provisions also were invalid. In Aston v Irvine [1] the Court in its judgment read s. 51 (xxiv.) as referring to the civil and criminal process of the States, rather than the civil and criminal process of the courts of the States. No persuasive reason has been advanced for departing from this view of the provision. There is a question whether or not the power extends to the process of Royal Commissions and tribunals which are not courts in the strict sense, but it does not arise for decision in this case. Nor is the existence of that question a reason for departing from what was said in Aston v Irvine [1] . 1. (1955) 92 C.L.R. 353. 2. (1955) 92 C.L.R. 353. This conclusion is in itself enough to dispose of the applicants' case but there is another reason why it should be rejected. It was crucial to the second step in the applicants' argument that the witness summons was not process of a court because the summons required the attendance of the applicant to give evidence in committal proceedings before a magistrate. It was said that under s. 106 of the Justices Act the function which the magistrate performs is ministerial and that he sits as an officer, not as a court. In my opinion the argument is misconceived. The assumption is misplaced, for in my view the summons is process of a court if it is issued by or out of a court and it commands the witness to appear and give evidence in proceedings in that court. In each case the witness summons was issued by a magistrate under s. 12 and s. 23 of the Justices Act and required the witness to give evidence in the matter of an information laid in a court of summary jurisdiction. It was, accordingly, a process of that court. Little need be said of the other aspect of the argument, the suggestion that it is relevant, indeed important, to ascertain whether the proceedings involve an exercise of judicial power. Apart from such special requirements as may be prescribed by Ch. III of the Constitution respecting the federal judicature, there is no principle of law that confines courts to the exercise of judicial power in the strict sense of that expression. It is well known that State courts may exercise functions that are administrative in character. There is therefore no warrant for reading the word "courts" in s. 51 (xxiv.) otherwise than as a reference to the institutions of the States ordinarily described by that word. The submissions advanced on behalf of the applicants must therefore be rejected. There is, however, another question which was discussed. It was suggested that s. 16 (2) of the Federal Act is invalid because the legislative power conferred by s. 51 (xxiv.) does not extend to authorizing the issue of process. Section 16 (2), it was suggested, is a grant of federal authority to the persons mentioned to issue a warrant. Section 16 (2) is to be read in conjunction with s. 18 (1) and (2). Section 18 (1) provides for the indorsement in the State in which execution is to be effected of a warrant issued in another State "in accordance with section sixteen of this Act or the law of a State". Section 18 (2) provides that a warrant so indorsed is sufficient authority to the person bringing the warrant and to others, including constables and peace officers in the State in which execution is to be effected, to apprehend the person named in the warrant there. Section 18 appears in Pt III of the Act, which has the heading "Execution of Warrants and Writs of attachment". Section 16 (2), on the other hand, appears in Pt II, which deals with "Service of Process". Moreover, it is found in Div. 2, which relates to "Service of other Process", after Div. 1, which deals with "Service of Writs of Summons". Section 16 (2) does not in terms authorize the issue of a warrant for the apprehension of a particular person; nor does it provide that the warrant shall be a sufficient authority for the apprehension of a particular person. It provides that in the circumstances mentioned in the sub-section the court or the persons designated may "issue such warrant for the apprehension of such persons" as might have been issued if the summons or subpoena had been served in the State or part of the Commonwealth in which it was issued. The language of s. 16 (2) and the context in which it appears make it plain that its function is to ensure that a like warrant may be issued for execution outside the State or Territory as that which might have issued if the subpoena or summons had been served within the jurisdiction. It was evidently thought that under the law of the jurisdiction in which the subpoena or summons issued authority to issue a warrant for failure to comply with a subpoena or summons served outside the jurisdiction may have been lacking or defective and that further provision should be made to overcome a difficulty of that kind. It will be noted that s. 18 (1) provides for the indorsement of a warrant issued either in accordance with s. 16 (2) or State law. The difficulties which had existed in the Australian colonies in the nineteenth century affecting the service or execution in a colony of process issued in another colony lent some force to the notion that the law of a State may not have made adequate provision for the issue of a warrant in circumstances where a subpoena or summons issued in that State was served in another State and was not complied with. It was an established rule of construction that the process of a court did not run beyond its territorial jurisdiction (City Finance Co Ltd v Matthew Harvey & Co Ltd [1] ). And the courts of one colony might declare that a statute of another colony providing for an extra-territorial operation of its process was ultra vires on the ground that it exceeded the power to legislate for the good government of the colony (see Ray v M'Mackin [1] and the judgments in Reg v Call; Ex parte Murphy [2] ). 1. (1915) 21 C.L.R. 55. 2. (1875) 1 V.L.R. (L.) 274. 3. (1881) 7 V.L.R. (L.) 113. In the light of the law as it has been established it is not now open to question that a State may validly legislate so as to authorize the service of originating process outside the State (see City Finance Co Ltd v Matthew Harvey & Co Ltd [1] ; Ashbury v Ellis [1] ). The same comment may be made with respect to the service of a subpoena or summons to a witness, although in the absence of inter-state or Federal legislation to provide backing for a warrant, the subpoena or summons, if served outside the jurisdiction, would have lacked any effective sanction. 1. (1915) 21 C.L.R. 55. 2. [1893] A.C. 339. The rule of construction to which I have already referred applied with equal force to the issue of a warrant for execution out of the jurisdiction. What is more, the existence of legislative authority in the State of issue for the execution of the warrant out of the jurisdiction would not constitute legal authority by the law of that other State for the apprehension in another State, unless the warrant was backed by the legislation of that other State or by Federal legislation. The Fugitive Offenders Act 1881, s. 15 made provision for the enforcement of the attendance in proceedings for an offence in one colony of a witness in another colony. There was therefore no point in a colony before Federation enacting legislation authorizing the issue of a warrant for the apprehension outside the jurisdiction of a witness who had failed to comply with a subpoena or summons served outside the jurisdiction. The Justices Act SA contains no provision which expressly empowers a court, magistrate or a justice to issue a warrant for execution outside the jurisdiction in these circumstances. It was to this situation that s. 16 (2) was apparently addressed; it represented an endeavour to remedy what was thought to be a possible defect under existing State laws, lack of authority or defective authority to issue a warrant for failure to comply with a subpoena or summons served outside the jurisdiction. Enough has been said to show that the purpose of s. 16 (2) is to enable the execution of a warrant outside the State or Territory of its issue where there has been a failure to comply with a subpoena or summons served outside the State. As such it makes provision for the enforcement of the command contained in the initial process issued by the State court and incidentally facilitates the execution of the new process outside the State of issue. In my opinion, so far as it relates to subpoenas and witness summons, the power conferred by s. 51 (xxiv.) is not confined to the making of laws which merely enable the service outside a State or Territory of the process issued in that State or Territory, but extends to the making of a law authorizing the issue of a warrant for the apprehension of a witness who has failed to comply with process so served on him, thereby ensuring the attendance of the witness, that being the object of the process initially served on him. Such a law, appearing as it does in a series of provisions dealing with the service of subpoenas and witness summons issued by and out of State courts, is a law with respect to the service and execution of process because it carries into effect process which has as its object securing the attendance of a witness to give evidence in proceedings. As I have said, s. 16 (2) is limited in its scope. It assumes that the State court has power to issue a warrant for non-compliance with initial process and authorizes the issue of a like warrant for non-compliance with initial process served outside the State pursuant to the Federal Act. In my opinion it is a valid law and I would answer the question in the negative.