Attorney-General (Cth) v Huynh & Ors [2022] HCATrans 190 (8 November 2022)

Last Updated: 6 February 2023

[2022] HCATrans 190

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S78 of 2022

B e t w e e n -

ATTORNEY-GENERAL (CTH)

Appellant

and

HUY HUYNH

First Respondent

ATTORNEY GENERAL (NSW)

Second Respondent

SUPREME COURT OF NSW

Third Respondent

GAGELER J
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 NOVEMBER 2022, AT 10.00 AM

Copyright in the High Court of Australia
MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR T.M. GLOVER and MS C. ERNST for the appellant. (instructed by Australian Government Solicitor)

MR R.J. WILSON, SC: May it please the Court, I appear with MR D.J. REYNOLDS for the first respondent. (instructed by Legal Aid (NSW))

MS R.J. ORR, KC, Solicitor‑General for the State of Victoria: If the Court pleases, I appear with MR T.M. WOOD for the Attorney‑General for the State of Victoria, intervening. (instructed by Victorian Government Solicitor)

MR G.A. HILL, SC: Your Honours, I appear with MR J.S. STELLIOS by leave as amici curiae. (instructed by Australian Government Solicitor)

GAGELER J: I note that there is a submitting appearance for the second and third respondents. I also note that the Senior Registrar had advised the parties, the amici curiae, and intervener, that the Chief Justice is unwell and will not participate in the hearing this morning. I note that there is no objection to the Chief Justice participating in the consideration of the appeal on the basis of the written submissions and oral submissions captured in the transcript and the audio‑visual recording of the hearing. What that means is that the hearing will proceed before six Justices but the appeal will be determined by all seven Justices.

Mr Donaghue.

MR DONAGHUE: Your Honours, the central question raised by this appeal is whether the procedures in State legislation that provide for the referral of convictions of State offences to either the Governor for consideration of the possible exercise of the prerogative of mercy or to the Court of Appeal to be reviewed as if on an appeal, are available when the State court convicts and sentences a person of Commonwealth offences.

There are many cases that hold or assume that those procedures are at least partly available in that situation but, in the decision under appeal, the New South Wales Court of Appeal has held that they are not. If that is correct, then procedures in the criminal justice system that are designed in part to provide a remedy for miscarriages of justice have no application to Commonwealth offences. In our submission, that is a plainly undesirable result and not one that the law requires.

Indeed, to arrive at that result, it is necessary to depart from the general policy that has been recognised as underpinning section 68 of the Judiciary Act for at least 90 years – and to which I will come shortly – which is a policy that seeks to place the administration of the criminal law of the Commonwealth in each State upon the same footing as the criminal law of that State.

Can I deal with the facts very briefly – and I will do this by reference to what one sees summarised by Justice Basten at the beginning of his judgment on page 40 of the core appeal book. In essence, the first respondent, having been convicted of a criminal offence – a drug‑related offence against laws of the Commonwealth – made an application to invoke the review procedure provided by Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) – which I will call the Appeal and Review Act. A judge of the New South Wales Supreme Court, Justice Garling made – making the usual assumption as to the applicability of that procedure with respect to Commonwealth offences – considered but dismissed that application on the basis that he had:

no sense of unease or doubt as to the applicant’s guilt –

that being a precondition to the availability of the two avenues of review that I will come to in a moment.

The first respondent filed a summons in the Court of Appeal seeking an order in the supervisory jurisdiction to quash Justice Garling’s decision and in that proceeding the New South Wales Court of Appeal itself raised a question about the applicability of Division 3 of Part 7 – which is at the core of this appeal with respect to Commonwealth offences – and having heard submissions on that point went on to hold that section 79 of the Appeal and Review Act is not available with respect to a conviction or sentence for an offence against the law of the Commonwealth.

Your Honours will see that that conclusion is recorded in the order that was made by the Court of Appeal on page 151 of the core appeal book, where there is a declaration that the power conferred by section 79 is not:

(a) is to be exercised . . . persona designata –

and, as I will come to in a moment, there is no appeal against that conclusion, and no one puts it in issue – and:

(b) is not available with respect to a conviction or sentence for an offence against the law of the Commonwealth heard and determined in a New South Wales court.

That being the central conclusion that we challenge on appeal.

GAGELER J: You should not assume that the conclusion that the provision applies persona designata will necessarily be accepted.

MR DONAGHUE: Your Honour, that creates a considerable difficulty because – as Justice Leeming said in his judgment – the complexity of this matter is palpable and that gateway changes the analysis and the issues involved in the appeal very, very considerably. It changes the issues about how section 68(1) works – makes changes for the question of whether one needs to make submissions about whether it is incidental to judicial power or not – it changes the way 4AAA of the Crimes Act might be involved. So, there are lots of matters, upon which your Honours have heard no submission, which would have been addressed if that had been put in issue by the amicus. I am going to struggle to assist your Honours fully with the issues that arise on the appeal if we cannot take that agreed starting point as the basis upon which the case should be decided.

I should say, your Honour, we say it is right – what the Court of Appeal said about that is right – and the amicus says it is right and we would urge your Honour to accept what Justice Basten says about that. But, if your Honours wish us to address the appeal on the basis that it is wrong, I am going to need to seek, at a minimum, leave to file further written submissions and it might be that your Honours will need to hear further oral argument on the case.

GAGELER J: Proceed as you planned, Mr Solicitor, and we will see where we end up.

MR DONAGHUE: Okay, if the Court pleases. Your Honours, my structure will be as follows. I am going to start by taking your Honours to Part 7 of the Appeal and Review Act. I am then going to turn to section 68 of the Judiciary Act and the argument that it picks up at least the relevant parts of Division 3 of Part 7, and then I am going to turn to a further, or alternative, submission that was accepted by Justice Leeming below that, in any event, Division 3 of Part 7 applies of its own force.

Those two arguments, the section 68 argument and the own force argument, are not inconsistent with each other. Your Honours could accept them both. It is sufficient, for the appeal to be successful, that your Honours accept either one, and I could address them in either order. In writing, we addressed the application of its own force first rather than section 68.

On reflection, I have reversed those, principally for this reason, being frank with your Honours, that the operation of section 68 is a question of wider public importance than the direct application question. In our submission, the Court of Appeal was wrong in what it said about how section 68 works and it would, therefore, be desirable if your Honours accept all we say about that to correct ‑ ‑ ‑

GORDON J: Will you address that when you get to section 68?

MR DONAGHUE: I will, and that is why I am starting there. But it does not really matter. We could succeed on ‑ ‑ ‑

EDELMAN J: Without taking your matter out of order, as a matter of logic, the application of its own force would be anterior to section 68?

MR DONAGHUE: I accept that, your Honour. And that is why, again, being frank, why we did it that way in writing – but if your Honours were to find for us on that point, and then not to address section 68, one is left with the Court of Appeal’s analysis of section 68.

GAGELER J: So, your section 68 argument assumes that the State provision does not apply of its own force?

MR DONAGHUE: It does assume that, but it would be possible for it – for section 68 to overlap and to pick up it unnecessarily, but still to give it force as a federal law. So, they are not mutually exclusive, your Honour.

GORDON J: So, could I ask this question? When you say it assumes it does not apply of its own force, do you propose to address the amici submissions about lack of State legislative power in that context?

MR DONAGHUE: I do. Yes.

GORDON J: So, that is not an assumption, then? That is something where you will have to establish that they do not – that that is not an issue for you, or have I got it wrong?

MR DONAGHUE: No, your Honour. My answer might not have been sufficiently precise. In the part of the case that concerns whether the Division applies of its own force, I propose to address both why that is right as a matter of construction, and why it is right as a matter of power.

So, why it is a valid law, if construed as we submit that it should be, why it validly applies in that way. If I am right about that, then the Commonwealth appeal should be allowed on that basis alone. If I am right about that, that does not necessarily mean that section 68(1) does not pick up the law. It means it does not need to, but it does not necessarily mean that it does not pick up the law, because the law would still be a law within the category of laws, we submit, that section 68 can capture.

But what I was intending to convey in my answer to Justice Gageler is that, even if we are wrong, so that the State law does not apply of its own force, in that situation section 68 can certainly operate to fix the problem and in that sense, if your Honours were to look at section 68 and find for us on section 68, it would not be necessary for you to go on and consider the other part of the case. It would be sufficient to resolve it on that basis, save that, as Justice Edelman says logically, one might think you should construe the State law first before you get to a section 68 point.

Your Honours, can I ask you to turn to the Act, which you will find in volume 1, tab 5 of the joint book of authorities, and to go to Part 7, which, in the joint book – if that is what you are using – is on page 263 in the print, and on the Act it is page 37. Part 7 is headed: “Review of convictions and sentences”.

It starts, if your Honours are at the commencement of it, with a definition section, which includes a definition of both “conviction” and “sentence”. In both cases, it is an inclusive definition, and it makes no reference to the source of the offence that has resulted in the conviction or sentence, although it does, in the case of the definition of sentence, refer to an order made by a court. Textually, you have a focus on the court that is recording the conviction or sentence, but no reference to the origin of the relevant offence.

I will take your Honours to the detail in a moment, but in terms of the scheme of this section, it contains what the New South Wales Court of Appeal described in Lodhi – a case I will come to later – as two separate procedures, or what Justice Leeming described as discrete and mutually exclusive pathways.

GLEESON J: Is that because it has its origin partly in the Criminal Appeal Act 1912 and partly in the Crimes Act?

MR DONAGHUE: Its origin is complicated, your Honour. It goes back, in part, even prior to the Criminal Appeal Act in UK Acts in the late 19th century. But the two pathways are quite distinct, and you can see them reflected in Division 4 and Division 5. Division 4 – and I will come to the detail of these, but just sketching the scheme for your Honour. Division 4 is a scheme that involves administrative power, resulting in a possible exercise of the prerogative of mercy. Obviously, that path was not invoked here on the facts.

Division 4 is not itself the source of the power to pardon; that power is the prerogative power which is preserved in the Act, and you see express reference to that in section 114. I do not need to take your Honours there. When we get there – but for the sake of completeness, the Governor‑General has a similar power which is similarly preserved by section 21D of Commonwealth Crimes Act.

So, the power that ultimately can result in a person being relieved from the effect of a conviction or sentence is not sourced in this State Act, but the Act creates a procedure – a path – in Division 4, that can lead to an exercise of that power ‑ ‑ ‑

GAGELER J: By the Governor of the State.

MR DONAGHUE: By the Governor of the State as a matter of State law. Yes. I accept that that is so. So, this is a pathway that, if you can down it, will not result in a pardon by the Governor‑General, save through the operation of section 68(1) picking it up.

GORDON J: We are talking now about the inquiry route, are we?

MR DONAGHUE: Yes, yes.

GORDON J: Do you accept, though, that the inquiry route has a potential outcome which is the exercise of judicial power by the State court? I accept that it is more remote than the 79(1)(b) route, but it is a route which, through a complicated set of arrangements – 82, 88, 86, et cetera, you could end up with the exercise of judicial power?

MR DONAGHUE: I understand what your Honour is putting to me. And the answer is, yes, but I need to try to distinguish, if I can – because this is quite a complicated regime. One has two pathways – an administrative pathway in Division 4 and a judicial pathway in Division 5 – and then one has two entry points into those pathways ‑ ‑ ‑

GORDON J: Correct.

MR DONAGHUE: ‑ ‑ ‑ one in Division 2 and one in Division 3. The Division 2 entry point can, as your Honour puts to me, result not just in the Division 4 but also in a Division 5. So, both entry points can go to both pathways, hence the complexity of the regime.

GORDON J: The reason why I ask is because I had understood, at least from some of your submissions, that there was an attempt to divide it into two separate, in effect, routes or powers when, on the face of it, they are, as you just said, complicated and inextricably linked at one level.

MR DONAGHUE: Well, I accept that they are complicated, but I do submit that ultimately one has the Division 4 pathway leading to a possible exercise of the prerogative of mercy or a Division 5 pathway leading to a hearing in the Court of Appeal as if on an appeal, and that you get there either by a petition to the Governor under Division 2 or by an application to the court under Division 3 and, whichever of those options you choose, you can end up either in the Division 4 administrative pathway or the Division 5 pathway. But, nevertheless, in my submission, they are quite distinct from one another. You do not end up going down both. Wherever you start – and here, of course, the first respondent made an application to the court, so we were in the territory of Division 3. And Division 3, your Honours will see, starts – it only contains two sections, sections 78 and 79. The application is made under 78.

GLEESON J: The application is for an inquiry, so, on its face, it is seeking to invoke Division 4.

MR DONAGHUE: I accept that that was the language used, but because it was an application made – your Honour, if you look at the opening words of section 78, it refers to:

An application for an inquiry into a conviction or sentence –

So, in my submission, that phrase “application for inquiry” does not mean just Division 4, because when one goes to section 79 you see both options. Option 79(1)(a) is the Division 4 path and 79(1)(b) is the Division 5 path. So, an application for an inquiry can go down either of those two routes.

GAGELER J: Do you say that the Division 4 path is one that is available in respect of a conviction for a Commonwealth offence?

MR DONAGHUE: Not without section 68(1). Whether your Honours need to decide whether I am right giving you that answer is a live question because, as I am going to come to – I do say, it can apply with the benefit of section 68(1), changing every reference to the Governor to the Governor‑General, and I submit that section 68(1) is capable of doing that work. But my primary submission on section 68, to foreshadow where I am going, is that it is enough for your Honours to decide that section 68(1) can pick up 79(1)(b) and Division 5.

GORDON J: Just so I can test that, when you have the referral under Division 2 petitions to Governor to refer the whole case to the Court of Criminal Appeal which is the exercise, I understand, you accept of judicial power. Is your answer to Justice Gageler the same in respect of that arrangement?

MR DONAGHUE: Yes. So, your Honour is asking me now about section 77?

GORDON J: I am.

MR DONAGHUE: Yes, yes.

GORDON J: Just so I can understand the scheme. Is your answer that you just gave Justice Gageler the same in respect of that route?

MR DONAGHUE: I say, yes, that 77(1)(b), together with Division 5, at least can be picked up by section 68 of the Judiciary Act.

GORDON J: But needs section 68(1) to pick it up, otherwise it is not possible, in relation to Commonwealth offences.

MR DONAGHUE: Sorry, your Honour. Justice Gageler asked me about Division 4.

GORDON J: I know.

MR DONAGHUE: If your Honour is asking me about 77(1) and as it leads to Division 4, my answer is the same.

GORDON J: As it leads to Division 5?

MR DONAGHUE: As it leads to Division 5, that raises the question, can it apply of its own force, and the same answer that I would give about 79(1)(b) I also give about 77(1)(b).

GORDON J: Thank you.

MR DONAGHUE: So, as I will come to before too long, in my submission, my primary submission is that if your Honours accept that 79(1)(b) and Division 5 can be picked up by section 68 of the Judiciary Act, then the Court of Appeal’s declaration about the operation of this provision is wrong because their Honours held that just the whole thing does not apply to Commonwealth offences and, in fact, there is a pathway that does apply to Commonwealth offences. If the possible option to refer to the Court of Appeal applies, it must follow that the converse of that, the I am not going to do that option, the do nothing option, also applies and that is what Justice Garling did in this case, he said I am not going to do anything. He would have had power to decide, I am not going to do anything, and the appeal should be allowed.

Our friends’ primary answer to that is not to say that there is any problem with picking up 79(1)(b) or Division 5. They do not really attack that at all, for reasons that I will come to. What they say is that you cannot pick up Division 4, and if you cannot pick up Division 4, you cannot pick up any of it. So, I am going to invite your Honours to look at that question effectively as a threshold question, to reject it on the basis that there is a possible partial pick‑up at least of 79(1)(b) and, on that basis, to say that is enough to decide the appeal, which is how Justice Leeming analysed it. He said, I do not need to get to Division 4. It is enough that I conclude that (b) and 5 can be picked up, and I have got quite a bit of authority on my side. In saying that, that part of that partial pick‑up at least is available, as I will come to.

Your Honours, I think, probably, that is enough by way of overview of the statutory scheme, save, I suppose, to note that if you get a decision to refer the case to the Court of Appeal under 79(1)(b) – which is our central focus – where that takes you is to section 86 in Division 5. And section 86 in Division 5 – which is also where the provision Justice Gordon asked me about, where the Attorney refers the matter to the court under Division 5 – it is the same section that applies to them both:

the Court is to deal with the case . . . as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly.

So, you have, in effect, an appeal, which of course in respect to a Commonwealth offence can only apply if picked up by the Judiciary Act, because that would necessarily involve federal jurisdiction. So, it is no part of my argument to suggest that you can have a process – an entirely State‑based process – that results in this quashing or setting aside of the Commonwealth conviction. I do not say that.

GAGELER J: On either part of your case?

MR DONAGHUE: On either part of my case. Even on the direct application part, all I say is that the gateway administrative function under 77 or 79 can apply of its own force to confer, persona designata, an administrative power on a judge to open the gate.

GAGELER J: To nothing.

GORDON J: To nothing.

MR DONAGHUE: Well, no. To procedures that are being picked up by the Commonwealth Act.

EDELMAN J: But you do not really need to deal with section 86, because section 86 is not really part of this case. Whether or not section 86 could apply of its own force, or whether it needs to be picked up, is a different question, is it not?

MR DONAGHUE: Only insofar as – if the gateway really was to nothing; if there was nothing that could follow afterwards, then it could be said against me with some force, what would be the point of that. But, as Justice Leeming analysed it, it is not a gateway to nothing; it is a gateway to, at least, an appeal by reason of Division 5. So, it is not a pointless exercise.

GORDON J: It may not be pointless, but it has long been the position, has it not, that it is not open to a State legislative power or provision to alter the charter that has been created in relation to federal conviction and sentence or even the circumstances in which you would consider altering that charter, and is that not what is happening here?

MR DONAGHUE: Only when you are in Division 4 or Division 5.

GORDON J: I am so sorry?

MR DONAGHUE: Only when you are in Division 4 or Division 5, and that is why I am accepting that you need section 68.

GORDON J: But this is the question. If you accept that Division 4 and Division 5 had that effect, then the question is: is the power for the gateway?

MR DONAGHUE: I accept that, and that is what the second part of the case – the direction application part – is about. It really, particularly, bites if the Court of Appeal were to be right – and I say they are not right – but if they were to be right in saying section 68 is only about judicial power, because if they were to be right about that, then what is the position with an administrative power at the gateway to a judicial power that is capable of being picked up?

GORDON J: It may be a simple answer; there is no legislative power at all by the States to concern federal offences, and that 68 is limited to judicial power and incidental judicial power, but in the manner in which it is confined its sphere of operation is as is stated, and this is not in that sphere, and therefore the two sit together quite well.

MR DONAGHUE: They only sit together, your Honour, if one has a State regime that allows the Division 5 procedure, in effect, a second appeal to pure miscarriages of justice that operates perfectly well in the State sphere. And it could be picked up in respect of Commonwealth offences, but you never get there because you cannot open the door. So, that is effectively what the Court of Appeal said and, in my submission, why would you hold – unless you are compelled to hold – that you cannot open the door to that procedure given that to do so is not only beneficial but also serves the purpose of section 78, which is treating the administration of justice consistently ‑ ‑ ‑

GORDON J: You mean 68.

MR DONAGHUE: What did I say, your Honour?

GORDON J: Section 78 – you mean 68.

MR DONAGHUE: Sorry, I meant 68.

GORDON J: I understand. Well, if one accepts that 68’s purpose is that and that it is there to provide consistency, then we are talking about the method of adoption and whether or not this procedure is the appropriate procedure for the Commonwealth to have adopted.

MR DONAGHUE: Your Honour, I am starting with section 68 because, in my submission, what we say about section 68 is right, and if it is right and it avoids all of these complexities, one just looks at section 68 and picks up the whole of the operative part of Part 7, and that is it, so there is no difficulty there. I do not need to get to direct application unless I am wrong in what I say about section 68. If the reason that I am wrong about what we say about section 68 is because it is confined to judicial power, then, in our submission, Justice Leeming’s analysis is right and it solves the problem that would otherwise thereby be created. But can I come to that in due course and ask your Honours to first look at the section 68 pathway.

What I want to do in the section 68 part of the case is to start with the purpose of the section, which I have already touched on; then to make some more detailed submissions about the construction of both subsections (1) and (2) of section 68; then to come to why I submit that as a threshold matter your Honours should look at whether it is possible to separate the pick‑up of 79(1)(a) from 79(1)(b) because, if it is, most of the amicus – the arguments made by the amici fall away; then, if necessary, in the alternative to look at the pick‑up of Division 4; then, finally, depending on how I am going for time, either address what Victoria have said about 4AAA then or perhaps in reply to Victoria. So, that is the sketch of section 68.

Starting with the purpose of the provision, as I have intimated, Justice Dixon explained that purpose 90 years ago in Williams v King (No 2) in terms that the amici accept at paragraph 47.1 of their written submissions. But rather than go to Williams, I will take your Honours to something more recent where the court has looked at this in R v Gee, which your Honours will find in volume 4 at tab 26; it is (2003) 212 CLR 230. If I could ask your Honours to start with the judgment of Chief Justice Gleeson at paragraph 6 at the bottom of page 240. His Honour, having set out 68(2) and set out the definition of appeal – which I will come to later in my submissions – says, from the second line:

the language of s 68(2) is both general and ambulatory. This is consistent with its purpose, which is to “assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences”. In Williams v King [No 2] Dixon J . . . said –

His Honour sets out the quote, the second half of which is:

the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.

Pausing there, if the Court of Appeal are right, then if there is to be a capacity to solve or address miscarriages of justice with respect to Commonwealth offences, even where the miscarriage results from something that happened in a State court, perhaps where it results from something that happened in a State court that will simultaneously try Commonwealth offences and State offences, there would have to be a parallel system for the Commonwealth, and the administration of justice in the State would not, therefore, be in common as between State and Commonwealth offences.

His Honour then goes on, in paragraph 7, to explain the policy choice that is reflected in section 68, the Commonwealth having needed to choose between, in effect, option one: uniformity throughout the Commonwealth, or option two: uniformity within each State, as between State and Commonwealth offences, meaning that there is not necessarily uniformity throughout the Commonwealth, and his Honour notes that it was option two that was chosen.

The benefits of uniformity throughout the Commonwealth have been sacrificed to the desirability of trying to treat State and Commonwealth offences in the same way. In order to try to keep them lined up – as his Honour explains in the second half of paragraph 7 – the broad language has been used:

That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time.

These are not words that should be narrowly construed. They should be construed, if possible, to allow the general purpose of keeping the two systems in sync is able to be achieved.

Sticking with Justice Gleeson, if your Honours could turn over the page to paragraph 13, you will see that his Honour there emphasises that there is no reason why the generality of the word “appeals” should – or why the word should not be given its full generality, having regard to the purpose. That is said after a discussion of Seaegg. Seaegg very much did not take a general approach to the meaning of this language. It resulted, as your Honours know, in an amendment to section 68 in order to reverse the effect of the decision in that case.

As the Chief Justice emphasises, and as you also see in the reasons of Justices Gummow and McHugh at paragraph 63 and Justice Kirby at 115 – I will not ask your Honours to go there now, but their Honours all emphasise that the policy underlying section 68 has led to a broad construction and operation of that provision. Justices McHugh and Gummow in particular talking about:

since Seaegg, the decision of the Court have manifested –

a change in the approach to the interpretation of ambulatory provisions such as 68(2). I say all that only because our friends rely on Seaegg, I think in an attempt at one point in their submissions to say that your Honours should construe the word “appeal” consistently with the meaning that it had when amendments were made following that decision in 1932. That, in our submission, is completely contrary to the way that this Court in R v Gee approached the construction of the word. It should not be tied to – indeed, that was the error in effect that the South Australian Full Court had made, was by taking a too technical approach to the meaning of the word and not including case stated procedures within an appeal because of the state of the law as it had stood at the time of the amendments post Seaegg.

So, we submit, having regard to Gee, your Honours could readily dismiss that kind of argument. So, the policy is to align Commonwealth and State offences so far as possible and a broad and ambulatory interpretation is appropriate. Bearing that in mind, if your Honours then turn to the terms of section 68 of the Judiciary Act – which you will find in volume, tab 4, on page 53 of the reprint or page 140 of the joint book, and if I could ask your Honours to start with subsection (2). So, subsection (2) is a conferral of jurisdiction on courts. It starts with an identification of:

Courts of a State or Territory exercising jurisdiction with respect to –

the various identified things:

(a) the summary conviction; or

(b) the examination and commitment for trial . . .

(c) the trial and conviction . . .

appeal. Having regard to the State or Territory courts that exercise jurisdiction with respect to those matters, that then says, in the last few lines, that those courts:

shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

So, it focusses on a conferral of jurisdiction with respect to persons charged with Commonwealth offences. Obviously, that conferral of jurisdiction is federal jurisdiction and is conferred pursuant to section 77(3) of the Constitution.

Section 68(1) is not a conferral of jurisdiction on courts. It is doing something quite different. What section 68(1) does is it identifies a category of State laws that are applicable to persons who are either offenders or persons charged with offences. So, the laws of the State respecting offenders or persons charged with offences and the procedures there identified are made applicable – so far as they are applicable – apply to persons – “persons” again – who are charged with offences against the law of the Commonwealth in respect of whom the jurisdiction has been conferred.

So, we first identify in section 68(2), a category of persons in respect of whom jurisdiction is conferred on the courts – persons charged with Commonwealth offences. We then go to section 68(1) and say, with respect to those persons, the laws of the State that apply to them – broadly they are criminal laws of the State that apply to them – criminal laws, laws with respect to criminal procedure that apply to them – apply to them also with respect – that would apply to them with respect to offences against the criminal law of a State, apply similarly with respect to offences against the law of the Commonwealth.

So, the laws that are made applicable are not limited to laws that apply in the exercise of the jurisdiction conferred under subsection (2). They include, obviously include, laws that apply in the exercise of jurisdiction under subsection (2), but they are wider – and one sees that immediately ‑ ‑ ‑

GORDON J: But they are wider because they are incidental to the exercise of that judicial power, are they not.

MR DONAGHUE: No, they are wider because the attempt is to assimilate the whole of the criminal process in the State so that it is the same for Commonwealth and State offences. So, the express reference to “arrest” in the opening word of section 68(1), shows that we are not just concerned with what is going on in a court. It might well lead to something eventually that happens in a court, but we are not concerned with regulating the exercise of judicial power or laws that govern the exercise of judicial power. In other words, the laws that are picked up under subsection (1) are not co‑extensive with the jurisdiction that is conferred under subsection (2).

In fact, the amici concede that that is so in paragraphs 31 and 48 of their submissions. The first respondent submits that that is so in paragraph 13 of their submissions and Victoria submits that that is so in paragraph 8 of their submissions. Everybody who is appearing before the Court on this appeal is agreed that section 68(1) is not co‑extensive with section 68(2) – that the laws that are picked up are wider.

That point was not appreciated by the New South Wales Court of Appeal below and it is a significant reason why we lost – why the Commonwealth failed in that court. Because, instead of appreciating that section 68(1) is not concerned with regulating federal jurisdiction – it is concerned with picking up the whole body of State criminal law so that it aligns between State and Commonwealth criminal procedure – their Honours in effect treated section 68(1) as a more specific version of section 79(1) ‑ ‑ ‑

GORDON J: Can I take issue with that just for a moment. Is that right? If you accept that they treated it as covering the field in the way you have just described for the criminal process, was there not distinction to say that there was an end point for that criminal process and that when we are dealing with the prerogative, 68 was never directed at that question – in effect that the criminal justice system had ended?

MR DONAGHUE: With respect, your Honour, in my submission, that is not how their Honours reasoned. Their Honours did not accept the premise that I have put to your Honours that section 68(1) is about assimilating fully the laws applicable to State offences and Commonwealth offences. I will ask your Honours to go to the core appeal book and take you to the relevant part of the reasoning – because your Honours will see, in effect what happened is the Court applied Rizeq – what the Court said in Rizeq about the reach of section 79(1) – they treated as applicable to section 68(1).

EDELMAN J: Mr Solicitor, do you read section 68(1) effectively as though it provided that the laws of the State or Territory respecting the arrest and custody of offenders and all other anterior matters concerning persons charged with offences shall apply and so on? In other words, the arrest and custody of offenders are really just examples of all of the matters anterior to the charging of a person with an offence.

MR DONAGHUE: Yes, your Honour.

EDELMAN J: So, 68 really by application is picking up all anterior processes – even though only arrest and custody are provided for.

MR DONAGHUE: Your Honour, that is how I am reading it, but I do not think it is determinative of the result in the appeal, but that is my submission as to how it should be understood.

GLEESON J: Do you say that the prerogative of mercy is an aspect of criminal jurisdiction?

MR DONAGHUE: No, your Honour. I am not suggesting that section 68 picks up the prerogative of mercy.

GLEESON J: No.

MR DONAGHUE: That the prerogative mercy was just – and that is why I emphasised that Division 4 does not purport to confer the power exercised at the end. Indeed, the Act in 114 expressly preserves the Government’s prerogative at a State level, the Governor-General would be the same, so that we do not need section 68 to pick up anything where the Governor or Governor-General just exercises their power. But the procedure might need to be picked up.

GLEESON J: Are you suggesting that the procedure that might be anterior to the exercise of the prerogative of mercy might be an aspect of criminal jurisdiction?

MR DONAGHUE: Because, in my submission, it is a procedure respecting appeals, as that concept should be broadly understood. That is how I ‑ ‑ ‑

EDELMAN J: Because there is a pathway to an appeal.

MR DONAGHUE: Because there is a path – well, for two reasons, your Honour. On my narrower argument, because there is a pathway to an appeal, that gets you at least Division 5, and that is enough. If I need to get Division 4 as well, then it is not a pathway to a judicial appeal but it is a pathway to a procedure that can lead to a person being relieved from the consequences of a conviction or sentence. And in my submission, the word “appeal” is broad enough to pick up that. But that is the submission I only get to in the alternative.

GORDON J: Is that not, in effect, the fighting ground? That is, how far does section 68 reach? In this sense, it is that what you have just put in answer to those two questions is the critical question. One can say that this is to provide uniformity of a criminal justice system between Commonwealth and State offences, picking up – let us take a narrow view – arrest and custody of offenders, and in the procedures giving rise to trials and convictions, and appeals against sentences. And the question: does it go further?

MR DONAGHUE: In my submission, it is not the fighting ground in the sense that, as I understand it, no one is suggesting that a Division 5 procedure is not an appeal of a kind to which section 68 could extend. And if that is right, then the Division 3, the 79(1)(b) part – the gateway that leads you to that appeal – is at the very least of all respecting, the ‑ ‑ ‑

GORDON J: So, what is the question? Is it a law respecting it?

MR DONAGHUE: Well, if it is a gateway – if we focus just on 1(b), it does nothing other than take you to an appeal. So, in my submission, it has the requisite relationship. And what our friends say is that not that I am wrong about that. They say that I am wrong about Division 4, because the executive inquiry is not an appeal, and they say if I am wrong about Division 4, the whole lot cannot be picked up. That is really the way that they have ‑ ‑ ‑

STEWARD J: Can I ask, what do you say about section 79(1) of the Appeal and Review Act that makes it procedural in nature?

MR DONAGHUE: Your Honour, I am not sure that it is part of my case to say that it has to be characterised as procedural in nature. It is sufficient for the Judiciary Act to apply to that if it meets the description of a law respecting the procedure for the hearing and determination of appeal. That is the rubric I need to put it within.

STEWARD J: But does that not mean it has to be about procedure in some way?

MR DONAGHUE: Well, it has to be. In my submission, again, one would not take a narrow view of the operation of these words. If it is the means by which one initiates an appeal under Division 5, that, in my submission, is sufficient to make it a law respecting the procedure for ‑ ‑ ‑

STEWARD J: I may be speaking only for myself, but for my part, 79(1) may not be procedural in nature, even in the wider sense of that word, because it is about conducting an inquiry that then leads to two possibilities.

MR DONAGHUE: Your Honour, it may be that in the course of debate with your Honours I skipped over the detail I should have addressed in the construction of 79(1) because, in my submission, 79(1) is properly construed as conferring a power upon the judge as a person, an administrative power on the judge as a person to do one of three things.

So, it is really actually three powers rather than one. I know our friends say that it has got to be viewed inseverably, but that is really, in my submission, the central battleground in this aspect of the case. Option one is refuse even to consider or deal with the application, and you can see that that is an option from 79(3), it says:

The Supreme Court may refuse to consider or otherwise deal with an application.

So, you can do nothing, and that is actually what Justice Garling did here, and Justice Leeming’s judgment suggests that that is usually what happens. I think he surveys 25 cases since 1999 and says in 18 of them the option was do nothing. So that is a significant and important component of your choices under section 79(1).

Option two is direct an inquiry, and that then leads to a judicial officer, which includes a retired judge, having the powers of a royal commission to conduct an inquiry and ultimately produce a report that the Governor consider in the exercise of the prerogative of mercy. That is option two. Option three is refer the whole case to the Court of Appeal. That takes you to section 86 and a proceeding that is exactly the same as an appeal.

STEWARD J: But is there not a form of preliminary inquiry because of, for example, subsection (2), that you need to be satisfied:

there is a doubt or question as to the convicted person’s guilt –

MR DONAGHUE: In my submission, your Honour, that is not a preliminary inquiry. That is a threshold condition that needs to be met by the judge. So the judge can look at the petition which has been made under section 78 and say – as I think is what happened here – what you have done is you have just repeated the arguments that you advanced to the Court of Criminal Appeal and that you advanced on special leave, I am not persuaded – the repetition of those arguments does not create, in my mind, any doubt or question as to your guilt and therefore I do nothing. That is all that was required, reading the application ‑ ‑ ‑

STEWARD J: But you say that is procedural in nature?

MR DONAGHUE: Well, if I need to put it into that box, your Honour, then yes.

STEWARD J: All right. Okay.

EDELMAN J: But you do not need to characterise 79(1) necessarily as procedural in order to fall within section 68. In one sense, you are making more work than perhaps you need to by focussing very heavily on the procedure for the proceedings and so on in section 68. But if 68(1) is read as a whole and arrest and custody are seen as examples of all of the anterior mechanisms, arrest obviously being something that is more than procedural, then the words “procedure for” in light of the purpose of the section are evidently designed to pick up, I think in your earlier submission, the whole gambit of everything that is anterior to the criminal process.

MR DONAGHUE: I entirely agree with that, your Honour. I would say anterior during the criminal process and after all of those, which is why I submitted to Justice Steward, if I need to put it into that box – I submit that I do, but I accept what your Honour puts to me.

GLEESON J: But 68 has to be considered in the context of the Judiciary Act. What this is about is the exercise of judicial power, and would it not be more appropriate to interpret 68(1) as facilitating everything that needs to be done by a court in relation to the criminal justice process?

MR DONAGHUE: In my submission, no, your Honour. One does have in 68(2), obviously, something being done by a court, and a conferral of jurisdiction on court. It would have been possible – and then one might question whether you would have needed 68(1) at all – if all you wanted to regulate was what was happening within the court. Section 79(1) of the Judiciary Act would have done a lot of that work. Section 68(1) is not so limited. It has got the wide purpose that Chief Justice Gleeson identified, in R v Gee, of trying to make sure, pursuing the policy option, that when you are tried for a Commonwealth offence, it looks exactly the same as it would if you were tried for a State offence. All the same laws are engaged. I do want to take your Honours to ‑ ‑ ‑

GORDON J: That is right, though I will have one last go at 68(1). Section 68(1) is subject to this section. It means that 68(1) and (2) have to be read together. We know that we needed 68(1) and (2) – as Justice Gleeson put to you – because we are dealing with the exercise of federal judicial power, and it is explaining what aspects of the State regime are to be used – let us use neutral language – in the trying of Commonwealth offences to achieve your objective. But it is talking about the exercise of judicial power, and, as you would say, the things anterior during and after. The question is, I think – one of the questions – what is now proposed in what you call the Appeal and Review Act, one of those things.

MR DONAGHUE: I accept that the question is, is it one of those things; that that is the debate we are having about the applicability of section 68(1). But the point that I am seeking to develop is that it is not, with respect, correct to say, as the Court of Appeal said, that 68 as a whole – 68(1) is just about judicial power, because from there it followed that their Honours, having concluded that 79 is a persona designata function, an administrative power conferred persona designata, they said that is not judicial. So, unless it is incidental to the exercise of judicial power, it is just not applicable to Commonwealth offences.

That, with respect, was not the right question, because it did not need to be judicial or incidental to judicial in order to fall within the realm of section 68(1) in the same way that when an AFP officer arrests someone with a warrant, they do not have a Commonwealth power to do that. They do that by reason of State laws picked up by section 68(1). That is how they do it. It is not judicial or regulating judicial. They can do it because the criminal procedure of the State applies equally to Commonwealth offences.

GAGELER J: Mr Solicitor, just so I fully understand this branch of your argument, you start with section 68(2) and the like jurisdiction, you say, is picked up – as I understand it – is the jurisdiction conferred by the Criminal Appeal Act 1912. Is that where you start?

MR DONAGHUE: No, your Honour. I could go by that route if we were just talking about Division 5. I can probably put it in two ways. If we were just talking about Division 5, then, in my submission, yes, the like jurisdiction would be the parallel capacity to conduct a Division 5 second appeal with respect to a Commonwealth offence that one has, with respect to a State offence.

GAGELER J: If you go that route – just holding that thought for a moment – then you would say that section 79(1)(b) and 86 of the Crimes (Appeal and Review) Act are picked up as surrogate Commonwealth laws by section 68(1) of the Judiciary Act? Is that right?

MR DONAGHUE: Yes. By that route, yes.

GAGELER J: I am sorry, I cut you off. You were going to tell me ‑ ‑ ‑

MR DONAGHUE: No, no, your Honour. That is exactly right. And that is the route that I say would be sufficient to decide the appeal as long as your Honours accept that you can separate; that it is possible to pick up (b) without needing to pick up (a), then that is the answer. The other answer would be that the like jurisdiction was the jurisdiction exercised to convict the first respondent of the criminal offence of which he was convicted. The conviction and sentence – that was the exercise of jurisdiction, and that we then have, under section 68, made applicable procedures with respect to the hearing and determination of appeals arising out of or connected with that previous exercise of the like jurisdiction under section 68(2). By that route, I submit in the alternative, I can pick up Division 4.

GAGELER J: Thank you.

MR DONAGHUE: So, just to take your Honours back to the Court of Appeal and to make good my submission as to the way that the Court of Appeal approached this – and this is reasoning that the amici really make no attempt to defend, for good reason, in my submission. You see it on page 75 of the core appeal book. This is in Justice Basten’s reasons, with whom the Chief Justice and Justice Gleeson and Justice Hayne all agreed. Second sentence:

Much of the discussion concerning the application of State law . . . addresses s 79 of the Judiciary Act, rather than s 68(1). The terms of s 79 being at a higher level of generality than those of s 68(1), the relevant analysis should be the same.

For the reasons I have just been addressing there, it is not a question of levels of generality at all; they are just about different topics.

GAGELER J: What paragraph is this, please?

MR DONAGHUE: Sorry, paragraph 91 on page 75. So, there is then – the court having said the analysis of 79 and section 68(1) are “the same”, the court, unsurprisingly perhaps, goes to Rizeq and quotes from Rizeq in paragraph 92, including in [103] the focus on what:

State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction.

So, your Honours will recall that what your Honours held in Rizeq was that there is a gap in State legislative power – States cannot regulate the exercise of federal jurisdiction by a court – and section 79(1) fills that gap. If that analysis were applicable to section 68(1), it could only pick up laws that are properly characterised as laws that regulate the exercise or manner of federal jurisdiction in a court. That obviously could not include a rest.

So, that translation of the Rizeq analysis to section 68(1) cannot hold, and the equation of the two, and the proposition that Rizeq informs the analysis, is erroneous for that reason. That is repeated again, if your Honours go on a few pages to page 86 of the core appeal book, you see in paragraph 117, from near the top of page 86:

But if ss 78 and 79 . . . did not engage the jurisdiction of a court, it was not explained how, consistently with Rizeq, the Judiciary Act purported to pick up such laws.

We see the same sort of thing again at 123. So, the Commonwealth lost below, on this point, because we could not show how, consistently with Rizeq, section 68 could pick up a non‑judicial power. But, again, all of the parties – the amici, at paragraph 31; the first respondent, at paragraph 13; Victoria, at paragraph 9 – agree that Rizeq has nothing to say about the construction of section 68(1). So, the Court of Appeal’s reasons for holding against the Commonwealth on that point are not only wrong, for the reasons that I have just identified, but undefended.

The way that the amici seek to defend the result that the Court arrived at is by, really, a quite different path. Can I invite your Honours to turn up the amici’s submissions and to turn to paragraph 26 of those submissions, which are on page 9, where our friends say:

The third and decisive issue is whether s 79(1) of the NSW Act can be picked up by s 68(1) . . . For the following reasons, s 79 cannot be picked up.

Then there is a summary, and the summary is instructive. Step one:

Section 79(1)(a) –

That is the gate to Division 4:

cannot be picked up . . . because an inquiry held under Div 4 . . . is not a “proceeding” –

and also because:

s 79(1)(a) is not “applicable” –

because it said too much change is required. More change is required to its terms, but then section 68(1) will support. Both of those are attacks on sub‑pay. Then, in 26.2, (1)(b), cannot be picked up because it cannot be divorced from (1)(a). Then, having set out the Act – as the argument then starts to be developed – one goes to paragraph 30, for example, and one sees, consistently with that summary, a submission about the meaning of the word “proceeding” which are directed to – as the first sentence makes plain:

those points do not answer whether an inquiry undertaken under Pt 7, Div 4 . . . pursuant to a direction given under s 79(1)(a), is a “proceeding –

So, the attack again cannot pick up Division 4. When one looks at what our friends say about (1)(b) and Division 5. if you go back a paragraph to paragraph 29 you will see it said:

It can be accepted that the process to be undertaken under ss 78 and 79 . . . as designated persons, is a “procedure”.

So, that is one of the questions your Honour raised with me – Justice Steward:

It also can be accepted that the Court of Criminal Appeal, when dealing with a referral made under s 79(1)(b), is doing so in a “proceeding to review or call into question” –

Those words, in the quotation marks, are words drawn from the inclusive definition of “appeal”. So, what our friends are then accepting, is that the 79(1)(b) procedure meets the description of an appeal as defined in the Judiciary Act. Then, in paragraph 50 – jumping along a little ‑ ‑ ‑

JAGOT J: Sorry, 50?

MR DONAGHUE: Yes, 50, your Honour. Turning to the question with the heading, “Not possible to pick up s 79(1)(b) alone”. This is addressing the severance or partial pick‑up point:

It may be accepted that, if s 79(1)(b) were enacted on its own, it might be capable of being picked up as a federal law by 68(1) –

for some reason. Now, there are some qualifications or concessions in that – some qualifications upon that concession but, in our submission, for reasons I will come in a little bit, the qualified concession is clearly correct.

One sees in the structure of the submissions, particularly in the paragraphs I have just tried to sketch, that if your Honours were just to focus on 79(1)(b) and if you were to find that, whatever the position with paragraph (a), (1)(b) can be picked up and applied, then our friends do not really say anything against that. They attack the severance point, but that is really it, so that if your Honours are with us on the submission that I am about to make that you can separate the two, then that would be sufficient for your Honours to conclude that, whatever may be the position with Division 4 inquiries, for Commonwealth offences people can at least apply under section 79 for an inquiry and the judge persona designata has the options of choosing at least do nothing or send it to the court, and you can leave for another day the question of whether or not there is also the Division 4 option.

The idea that the provision can be partially picked up – that (1)(b) can be picked up by subsection (1), depends, in our submission, on whether or not to pick up (1)(b) would be to give that subsection and then Division 5, to which it takes you, an altered meaning. I will just give your Honours one reference in the authorities to support the idea that that is the right question. It is in Solomons v District Court [2002] HCA 47; (2002) 211 CLR 119, which is volume 4, tab 32. I will need to come back to Solomons for a different issue later. The passage I have taken your Honours to is just a short passage at the top of page 135 in paragraph 24, which is the first paragraph in the joint reasons of five members of the court under the heading “Conclusions”. Their Honours say at the top of 135:

It was pointed out in The Commonwealth v Mewett that, where a particular provision of State law is an integral part of a State legislative scheme, s 79 –

and we submit by parity of reasoning here, section 68:

could not operate to pick up some but not all of it, if to do so would be to give an altered meaning to the severed part of the State legislation.

In our submission, to pick up 79(1)(b) – or 79(1)(b), if picked up, would have exactly the same operation whether or not 79(1)(a) is also picked up because, as Justice Leeming described, the pathways are discrete or mutually exclusive. The fact that there is not a different pathway available does not change in any way the operation of the 79(1)(b) pathway if it operates. And that, indeed, is the conclusion that was reached about 23 years ago by Chief Justice Wood at common law in a case of Application of Pearson; Re, which I will take your Honours to – it is volume 5, tab 35[1999] NSWSC 143; , (1999) 46 NSWLR 148. And this is a case that has been followed in NSW quite regularly. It was criticised by Justice Basten in the judgment below, but it had been followed quite commonly since it was decided 23 years ago.

It was decided on the predecessor provision to section 79, the terms of which were materially identical. And you can see the statutory provision on page 152 of the report in paragraph 12. It was then section 474E, but if your Honours take a moment to look at that, you will see that it is the same, including the same conditions in subparagraph 2 and subparagraph 3. So, subparagraph (a) is the equivalent of 79(1)(a); subparagraph (b) is the equivalent of 79(1)(b). If your Honours then go on to page 164 of the report, paragraph 73, Chief Justice Wood said that:

By analogy with the principles established in relation to s 79 . . . it would be inappropriate to apply s 68 so as to pick up some, but not all of the otherwise applicable terms . . . if to do so would be to give an altered meaning –

Citing Mewett. So, it is the same idea picked up in Solomons. His Honour was asking exactly this question that I am inviting your Honours to ask. And he answered it at paragraph 75:

I am not persuaded that to pick up s 474(1)(b) but not s 474E(1)(a) . . . is to give the State legislation an “altered meaning”. Section 68(1) . . . permits the application of State laws “so far as they are applicable” –

Reference to the Interpretation Act requiring a divisible construction in effect. His Honour then, at 76 through to 79, refers to a number of decisions in this Court, where in various different contexts section 68 has picked up only part of a State regime, including in Cheatle concerning majority verdicts – jury verdicts – which were not picked up, obviously, having regard to section 80. And the Cheatle passage you see quoted in 79 draws by analogy on the State provisions requiring a divisible construction of the State law. I will come to the significance of that in just a moment. And then, the conclusion is reached at paragraph 81:

similar considerations apply in the present case, and that picking‑up s 474E(1)(b), without s 474E(1)(a), does not give any altered meaning or application to the State legislation. The only difference lies in the fact that, if the Court determines that at an application is suitable . . . then, in the case of a conviction or sentence arising under Federal law, the way in which it is to be determined is limited to that provided in s 474E(1)(b), parliament may be taken to have adopted . . . one of the modes for determination of the remedy or procedure, which State law provides –

Pearson has, as I intimated, been followed quite commonly. We have not burdened your Honours with all of the cases. There was a decision that I will give a reference to in application pursuant to section 78 in the case of Chidiac [2015] NSWSC 157, and at paragraphs 19 and 20, there is a collection of citations to a number of the cases up to 2015, where Pearson had been applied.

Justice Leeming, as I have mentioned, at paragraph 192 of his reasons, conducted a survey of 25 cases that had been referred – or where applications had been made since 2019. His Honour looked at 25, which included a combination of pure State cases and Commonwealth cases. But one of the cases that he mentioned in that part of his Honour’s reasons was the application of Olivares [2021] NSWSC 96, where Justice Johnson again applied Pearson. He then referred a Commonwealth offence to the Court of Criminal Appeal and the Court of Criminal Appeal upheld the appeal and resentenced in 2021. So, as recently as 2021, you have got the Court of Criminal Appeal applying the procedure under (1)(b) through into Division 5. The Court of Appeal’s judgment in this case is putting an end to a procedure that has applied at least since Pearson, where at least that part of the State regime has been held to be applicable to Commonwealth offences.

In my submission, there is really, with respect to the Court of Appeal below – when one asks why did their Honours hold that it would be to give an altered meaning to (1)(b) to pick up that provision without (1)(a), the answer is not obvious at all. It seems to be that the idea was that Parliament would have intended that the persona designata judge exercising an administrative power under section 79 would have had all of the choices that section 79 intended to give them.

I readily accept that when Parliament enacts a law, it obviously expects the whole law – its intention is that the whole law would operate. But one has to read that State law against the background of the State legislation, the equivalent of 15A – that the law should be given a divisible construction. If one asks the question, as a matter of State law, did the New South Wales Parliament intend (1)(b) to be available even if one (1)(a) was not, the answer is obvious: it clearly did because there is nothing that would display a contrary intention to exclude the operation of that provision. Your Honours having emphasised many times recently, including in Knight v Victoria, that the contrary intention requires an intention that the provision should be wholly invalid if it could not apply to all of the persons, subject matters or circumstances to which it would otherwise have been construed as applicable.

That amounts to saying that the New South Wales Parliament must have intended that even if there was a miscarriage of justice, unless you can remedy the miscarriage both through an inquiry under Division 4 and an appeal under Division 5, you should not be able to do either and a miscarriage of justice should be allowed to stand. That is, in our submission, a ‑ ‑ ‑

GAGELER J: On this branch of your argument, though, it is really not a question of what the New South Wales Parliament intended, is it? It is a question of what is picked up by section 68(1)’s reference to procedure.

MR DONAGHUE: Yes, but on this branch of my argument, the specific question is: was it intended that section 68(1) would be able to pick up only part of the State procedure that is provided, and both in Pearson but also in Cheatle – and Justice Leeming – that question has been treated as informed by the 15A equivalence. So, the question is not ‑ ‑ ‑

GORDON J: Well, it is informed by two things, I think. Probably that, but also, as I read those cases, informed by an acceptance that an inquiry is just not authorised in respect of a Commonwealth offence as a matter of legislative power.

MR DONAGHUE: So their Honours have ‑ ‑ ‑

GORDON J: Do you accept ‑ ‑ ‑

MR DONAGHUE: Contrary to my alternative argument, their Honours have started from the proposition that you cannot pick up the whole thing. You cannot pick up (a), I think that is what your Honour is putting ‑ ‑ ‑

GORDON J: I am saying that the way in which they have looked at it is that they have accepted that (a) cannot be picked up.

MR DONAGHUE: Yes, but they said even if that is right – so assume against me that (a) cannot be picked up, that puts us on the same footing as the authorities. Even if (a) cannot be picked up, (b) can be. That is what all those cases say.

GORDON J: But then we are back to the question Justice Gageler asked you: what is the effect and reach of 68(1)?

MR DONAGHUE: My answer to that question is that in cases – the Pearson line and Cheatle, for example, have referred to the distributive application of 15A equivalence as informing the answer to the partial pick‑up question, and that is not surprising because when Solomons says, well, would it change the meaning of the section, that question is the same question that you ask in a severance context as, well, you will not sever if to do so would change the meaning of the remaining parts of the legislation.

So, the same foundational question is asked in both contexts, and here the answer, in my submission, is that if your Honours accept, as in my submission must be the case, that the New South Wales Parliament would not have intended (a) and (b) to stand or fall together, there is no reason to say that a Commonwealth provision that is intended to keep Commonwealth and State procedures in sync reflects any different intention. If you can only have one, then have the one, and that is what Pearson holds and the other cases following it accept.

I note the time, your Honour. Is that convenient?

GAGELER J: We might take the morning adjournment at this stage. The Court will now adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR DONAGHUE: Your Honours, for the reasons I have developed already this morning, our primary submission is that the Court should find that Justice Garling did have the power to make the decision that he made under section 79 whether or not section 79(1)(a) and Division 4 can be picked up by section 68(1). If your Honours agree, it may not be appropriate to venture further into that question. That was certainly the conclusion that Justice Leeming reached in paragraph 223 of the judgment below when he arrived – albeit by a different route – at the conclusion that 79 applied at least to that extent, applying the general practice of not deciding constitutional questions unless it is necessary to do so.

As against the possibility that your Honours decide not to proceed in that way, I will briefly address the question of whether or not 79(1)(a) and Division 4 can be picked up in the event that your Honours find that you need to reach that question. The amici submit that even though they accept that 68(1) can pick up laws that are not regulating the exercise of jurisdiction, or not limited to judicial power, they nevertheless submit that 79(1)(a) cannot be picked up because it does not fall within the category of a – or Division 4 is not a procedure respecting appeals.

That argument builds upon the definition of appeal that your Honours will see in the Judiciary Act in section 2, where “appeal” is defined inclusively:

Appeal includes an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court or Judge.

I have already taken your Honours, and I will not go back to R v Gee, where Chief Justice Gleeson said that:

There is no reason why –

that definition:

should not be applied with full generality –

His Honour said that at paragraph 13. The breadth of the word “appeal” was noted in Gee by Justices Gummow and McHugh at paragraph 50, by Justice Kirby at paragraph 113, and by Justice Callinan at 203. The word should not, as the decision in Gee illustrates, be technically confined, for example, by reference to the meaning that the word happened to have in 1932. It is an ambulatory word capable of adapting to procedures under State law as they change and develop.

The particular argument that the amici develop seems to focus upon – at paragraph 30, in particular, and 34 – focusses on the use of the word “proceeding”, and they say that when appeal is defined to include a:

proceeding to review or call in question –

that word refers only to judicial proceedings. I do not propose to address your Honours on that topic because it is a topic I understand other parties are going to focus upon. The only point that I would seek to add here is that to debate about the meaning of the word “proceeding” might be to go down an unproductive path because the definition is inclusive. Even if the word “proceeding” there does only mean judicial proceeding, that does not tell you about the ambit of the word “appeal”. And, ultimately, the question that your Honours are being asked to answer is a question about the meaning of the word appeal.

GLEESON J: Well, not just the word appeal but the words “the hearing and determination of appeals” within the meaning of 68(1)(d).

MR DONAGHUE: Yes. And laws respecting the hearing of determination of appeals. But if your Honour were to accept that – and particularly and in so far – here the inclusive definition may help a little because the reference to “review or call into question” suggests that we are not confined in a strictly judicial context.

GLEESON J: Well, it may not take you far, but in the definition of “matter” refers to a “proceeding in a court” as opposed to ‑ ‑ ‑

MR DONAGHUE: Indeed. And the first respondent’s submissions pick up a number of references where there is express reference in the Judiciary Act to “in a court” or to “proceeding in a court” where that is what Parliament intended. So, you do not have anything equivalent here.

GLEESON J: But what about the words “hearing and determination”?

MR DONAGHUE: Well, if appeal is wide enough to embrace any process that can relieve a person of the consequences of their conviction or sentence – and that, in my submission, is an appropriate way to construe the word here.

GAGELER J: Prerogative of mercy, you mean? An exercise of the prerogative of mercy is an appeal within the meaning of the Act?

MR DONAGHUE: Well, an application seeking the exercise of the prerogative of mercy. That is what I am putting on this alternative submission; that a process that you embark in, the end result of which might be an exercise of the prerogative of mercy, can be ‑ ‑ ‑

GAGELER J: And so, you would say in terms of section 68(1)(d), that the Governor, in considering an application for the exercise of the prerogative, is hearing and determining an appeal?

MR DONAGHUE: Well, your Honour, as I have indicated, I do not rely upon section 68 to render the prerogative power applicable. I am not seeking to put the actual exercise of the prerogative within the rubric of –what I am seeking to do is to put the procedure that might inform the actual exercise of the prerogative within the section. So, the judicial inquiry, whereby the judge or retired judge exercises powers to find facts and produce a report, that is what I am seeking to get within the definition of appeal, and nothing more than that.

GORDON J: Just so I am clear – this is on the 79(1)(a) route – your argument is that when a judge here conducts an inquiry, that person is conducting the hearing and determination of an appeal?

MR DONAGHUE: Well, that the law pursuant to which that judge is acting is a law respecting the procedure for the hearing and determination of an appeal ‑ ‑ ‑

GORDON J: In conducting ‑ ‑ ‑

MR DONAGHUE: ‑ ‑ ‑ on the (a) and Division 4 route.

GORDON J: Which is the inquiry route?

MR DONAGHUE: Yes, yes. Again, this is my alternative submission, but while one might not ordinarily leap to that conclusion, in the context of a provision that the Court has held should be given its full generality and width, and where one is attempting to align criminal procedure at the State and Commonwealth level, in circumstances where enquiries of this kind are a familiar feature of the law at the State level that might be used to alleviate the consequences of a miscarriage of justice.

There is no reason to construe the Judiciary Act narrowly so as to introduce a disconformity between the way those procedures apply to State offences on the one hand and the way they apply to Commonwealth offences on the other, particularly bearing in mind, as I have already mentioned, that you might have a single proceeding that involves both ‑ you commonly have, for example, Commonwealth drug importation trials heard together with State drug offences. It would be a most undesirable outcome if a miscarriage of justice that affects that trial can be cured with respect to the State parts but not with respect to the Commonwealth parts, but that would be the consequence of holding that there is no available pick‑up in relation ‑ ‑ ‑

GORDON J: You really need the 79(1)(a) pick‑up, do you not, in order to support the 79(1)(b) argument on one view of the position because absent that, that is the scheme working together, do you fall into sort of the difficulties which are identified in Putland where you have the law, the whole of 79 operating indifferently in respect of State and federal offences otherwise?

MR DONAGHUE: In my submission, I do not, your Honour, because the question is whether – in a situation where one has two discrete mutually inconsistent pathways, mutually self‑contained pathways, the fact that one of those pathways is unavailable does not change the operation of the other, and that is all I need to support ‑ ‑ ‑

EDELMAN J: The only thing that is changed, and it may not be fatal, but the one thing that is changed is that the choice is changed because ‑ ‑ ‑

MR DONAGHUE: Yes, the choice is narrowed.

GORDON J: It is not narrow, one is not available.

MR DONAGHUE: Well, instead of having three choices, you have two. I accept that that is so, but in the case of almost any legislation which is partially invalid, some of the options that might have been available under that legislation cease to be available, but that does not change the meaning of the parts that – so that is a difference but not one that, in my submission, is relevant to my argument.

So, I otherwise do not seek to address your Honours on the construction part of this alternative argument about Division 4. There is also a submission put against us that even if the construction argument was resolved in our favour so that Division 4 is an appeal, as a matter of construction it said section 68 still cannot pick it up because it is not applicable because there would need to be too much redrafting in order to make Division 4 work with respect to Commonwealth offences.

In our respectful submission, that rather overstates the extent of redrafting that would be required in relation to Division 4. In our submission, Division 4 worked perfectly satisfactorily as a picked‑up law under section 68 if every reference to the Governor was read as a reference to the Governor‑General and you do not need to change anything else.

So, the Governor‑General, for example, would still potentially under 81(1)(a) appoint a judicial officer who would have to be a judicial officer of New South Wales because you would not change that part of the definitions or the scheme of the Act. The judicial officer would then conduct an inquiry and would report to the Governor‑General who could then exercise the prerogative of mercy which exists outside of Division 4 and is not conferred by Division 4.

Can you change Governor to Governor‑General? In our submission, with no difficulty at all. That conclusion is supported by various cases but the one I will take your Honours to is Rohde v Director of Public Prosecutions [1986] HCA 50; (1986) 161 CLR 119, which is in volume 4, tab 30.

EDELMAN J: Just before you go to that, does that not then mean, if one is going to change Governor to Governor‑General, that one would also then need to read hearing and determination of appeals as extending to the decision that is being made by the Governor‑General?

MR DONAGHUE: In my submission, no more than it would need to extend to the decision that is made by the Governor. It needs to pick up the process, which is a process that culminates in a report being given to the Governor, but 82(4) – which is at the end of Division 4:

The Governor may then dispose of the matter in such manner as to the Governor appears just.

Is not a conferral of power. It is just a recognition – a statutory recognition that then end point of this process is the Governor doing something – and the power to do it comes from the prerogative of mercy, as section 114 supports. In my submission, that is all I need to change. As Rhode makes clear – if your Honours go in the joint judgment Chief Justice Gibbs and Justices Mason and Wilson to page 124 – at the bottom of the page, their Honours say that section 68, when it adopts State law, “must proceed by analogy”, citing Williams v The King [No. 2].

There, the analogy was necessary because of the provision that you can see set out in the middle of 124 – section 567A of the Crimes Act – which conferred a power on the DPP to appeal. The way that it was then applied at the top of 125 is by analogy the reference to the Victorian DPP was read as a reference to the Commonwealth Attorney‑General. The Commonwealth Attorney General had a right of appeal by reason of the picked‑up version of 567. The reason – about four or five lines down:

has the effect of conferring a right of appeal on the Attorney-General of the Commonwealth because, in the absence of any express statutory provision, he is the proper officer to represent the Commonwealth –

One looks for a person at the Commonwealth level who is performing the functionally equivalent role to the identified State officer – which, in the case of the Governor, is obviously the Governor‑General. In our submission, by analogy, Rhode and – I will not take you to it, but Peel v The Queen supports the same kind of analysis ‑ ‑ ‑

GAGELER J: But, Mr Solicitor, that is addressing section 68(2), which in its terms is concerned with a conferral of analogous jurisdiction – it says “like jurisdiction”. Is the same reasoning applicable to section 68(1)?

MR DONAGHUE: In my submission, it must be, your Honour, because (1) is taking State laws governing State offences and treating them as governing Commonwealth charges, so that, in their terms, the State laws would often be – and I will come to this shortly in relation to the own force part of the case – but as a matter of construction, the State laws would often be properly construed as applying only to State offences. One needs to be able to adjust their meanings so that they make sense in the context of a Commonwealth offence.

GAGELER J: You mentioned some other cases – Peel was one of them and I forget the other one. Are they section 68(2) cases or section 68(1)?

MR DONAGHUE: I think they were section 68(2) but I will check that, your Honour, and come back to you in reply, if I might. But, in my submission, the logic of taking a State law on a particular topic and applying it to a Commonwealth offence requires the same approach.

GAGELER J: Maybe the logic would, but the language is really not the same in the two subsections.

GORDON J: Williams (No 2) was a section 68(2) case.

MR DONAGHUE: I think, your Honour, they were probably all section 68(2) cases, from memory. So, I may not have authority directly on my side but section 68(1) is, in my submission, very likely incapable of achieving its purpose if the command in 68(1) that the laws – the State laws – apply and be applied means literally only in the operation that they would have had as State laws because they would have that already. The work that section 68 is doing is apply them to persons charged with Commonwealth laws and that is necessary only because they do not apply to persons charged with Commonwealth laws already. It must be modifying their meaning.

GAGELER J: I think it is put against you that the operation of section 68(1) is almost the same as section 79 – that is, there is a pretty direct translation of the State text into Commonwealth text – the only difference being that State text is taken to be addressed to persons charged with Commonwealth offences.

MR DONAGHUE: But, even in the context of section 79, your Honour, one can change the Court ‑ ‑ ‑

GAGELER J: Of course.

MR DONAGHUE: ‑ ‑ ‑ for example. So, you do get to make some adjustment of ‑ ‑ ‑

GAGELER J: I think it is said against you, that that is the extent to which you tweak the law under section 79 here.

MR DONAGHUE: Governor to Governor‑General. In my submission, it is not dissimilar to tweaking the court to reverse – the court going from a State court to a federal Court. You have got exactly the same institutional position performing the same kind of function and you are just saying, because the State law was not drafted having regard to Commonwealth officials, you treat the Commonwealth officials as applied.

GAGELER J: Perhaps section 68(1) is saying no more than that you take the text of the State law and you apply it as if it were addressed to persons charged with Commonwealth offences. That leaves you with the Governor.

MR DONAGHUE: If that leaves you with the Governor, though, that might well also leave you with the State police so that the AFP cannot get warrants under State laws. There are a whole – that the practical ramifications of that, in my submission, are likely to be that the Commonwealth needs to enact its own criminal laws – its own criminal procedural laws.

GAGELER J: Can you point to a section 68(1) case that supports this extensive reading?

MR DONAGHUE: At the moment, I cannot. I have proceeded on the basis that the same feature of section 68(2) applies to section 68(1), but I will look, your Honour – at the moment, I cannot. Finally, on this limit, the case, your Honours, I ‑ ‑ ‑

EDELMAN J: You would have problems with the custody as well because State laws would talk about custody, usually, of State offences.

MR DONAGHUE: Yes.

EDELMAN J: So, it would mean you would not even be able to hold persons on remand for Commonwealth offences under custody.

MR DONAGHUE: That is why, your Honour, I say we need to – I think the Commonwealth would need to enact its own laws, if that is how it works. Thus, the policy ‑ ‑ ‑

EDELMAN J: Section 68 will have failed – almost entirely.

MR DONAGHUE: I do not disagree with that, your Honour. That seems to me, at the moment, to be the consequence of the idea that you cannot engage in an equivalent adjustment.

It is put against us that one reason – final reason – in favour of non‑applicability is that, if this is picked up and the report goes to the Governor‑General, that, in some way, involves the Governor‑General acting on the advice of a State judicial officer. The amici say that at 43 of their submissions. In our submission, that is not right. One still has the Governor‑General acting on the advice of the Federal Executive Council in the usual way – simply informed by a report prepared by the State judicial officer.

That is no different from what happens when the Commonwealth and the State jointly appoint someone as a royal commissioner to prepare a report on a particular topic that is then formally given to the Governor‑General, but what happens as a result of it depends on the recommendation of the responsible government and, for a very long time, in this Country – including back to The Queen v Winneke; Ex parte Gallagher in the early 1980s, there have been joint royal commissions that produced reports of that kind. So, in our submission, your Honours should not give any weight to that. Can I turn to ‑ ‑ ‑

GORDON J: Can I ask a practical question, just because I am interested. What actually happens under the current regime?

MR DONAGHUE: Very often what happens, as I understand the position, is that applications are made under Division 2 to the Commonwealth, assuming the pick‑up of Division 2 under section 68(1) to refer the matters to a court under Division 5 and everyone assumes that is fine.

GORDON J: And that happens because there is recognition that you cannot have an inquiry route?

MR DONAGHUE: Yes, as I understand it, that is ‑ ‑ ‑

GORDON J: Even on the current arrangements?

MR DONAGHUE: Because of the Pearson‑type analysis.

GORDON J: That is why I am asking, yes.

MR DONAGHUE: Yes. So, there are quite a number of Full Court authorities at the State level where the Commonwealth Attorney refers matters to Courts of Criminal Appeal who then decide – or allow appeals or do not allow them.

Can I turn, your Honours, as briefly as I can, to the own force alternative pathway, which raises a question of construction and raises a question of power. The question of construction is informed – well, really depends upon the question of whether when the Appeal and Review Act refers, as it does in section 78(1), to inquiry into a conviction or sentence, those words should be read as if they said a conviction or sentence for a State offence, or whether they should instead be construed as meaning a conviction or sentence imposed by a State court. That is essentially the constructional question.

The definition, as I have already mentioned, in section 74 of those words does not refer to the conviction or sentence being a State offence. It is inclusive in both cases, and in the case of the definition of “sentence” it refers to an order made by a court. So, we are clearly here concerned, in the context of a New South Wales Appeal and Review Act, with convictions and sentences that were imposed by New South Wales courts. The question is whether there is an additional localising or geographical – a further restriction so that not only are we talking about New South Wales courts; we are also talking about New South Wales courts doing only a subset of their functions, that is, convicting and sentencing people for State offences.

The ordinary meaning of the word “conviction” or “sentence”, in our submission, does not require the limitation to New South Wales offences and, in our submission, for the reasons that his Honour gave, Justice Leeming was right in concluding that the appropriate conclusion, just as a matter of construction of the words used, is that they are referring to convictions or sentences imposed by a New South Wales Court. Could I ask your Honours to go to his Honour’s reasons at 118 of the core appeal book?

GAGELER J: Could you give the paragraph number as well, please?

MR DONAGHUE: Sorry, 208, your Honour. And that is really the start of this part of the construction analysis. I do not actually need your Honours to read 208. At 209, his Honour says:

Not uncommonly, the rule of construction that State laws are to be read as referring to State statutes will produce the result that a statute does not apply to federal offences.

I do not disagree with that:

But there is no reason I can see for the inquiries into a “conviction” or “sentence” of which ss 78 and 79 speak not to extend to convictions for offences against federal laws, or sentences imposed thereafter. The section does not mention the offence; it speaks merely of the conviction or the sentence, and both “conviction” and “sentence” are acts of a court. Contrast the legislation considered in Solomons –

to which I will come in a moment, paragraphs [8] and [9]:

Still less do ss 78 and 79 mention the character of the jurisdiction being exercised –

And at paragraph 211:

In short, ss 78 and 79 apply on their face to convictions and sentences imposed by New South Wales courts, as opposed to convictions and sentences imposed by New South Wales courts for offences created by New South Wales laws.

Now, if that be wrong, anomalies would immediately arise. And in my submission, they are so significant that they point powerfully in support of the conclusion that his Honour reaches. The reason I say that is because, as this Court explained in Lipohar, common law offences are offences against the common law of Australia; they are not offences against New South Wales law. So, if the words “conviction” and “sentence” mean conviction and sentence against New South Wales law, they do not include common law offences.

In New South Wales at the moment, conspiracy to defraud is a common law offence. Misconduct in public office is, as the Obeid Case demonstrated, a common law offence. Theft is a common law offence; kidnapping is a common law offence, and it seems that some forms of manslaughter are common law offences. It is not an implausible construction, and in support of that last proposition – it is a little bit complex – I refer, your Honours, to R v Lavender [2005] HCA 37; (2005) 222 CLR 67 at 2.

As a matter of State law, it is not the plausible construction of the provision that the State intended not to have its provisions in 78 and 79 extended to all of the offences that I just mentioned. And if that be right, the suggestion that the words should be read by reference to the character of the offence, rather than the character of the Court, just fails for that reason alone. Because that problem does not arise if you read the provision as Justice Leeming read it, as just referring to convictions or sentences, irrespective of the source of the offence that are imposed by a New South Wales Court.

The argument against – which seems to have been, really, the decisive argument on which the Court of Appeal relied ‑ was that the presumption in section 12(1)(b) of the New South Wales Interpretation Act; which is permitted to, your Honours, because it is the same in section 21(1)(b) that your Honours looked at quite recently in the BHP Case, requires the contrary conclusion. You can find the Interpretation Act in volume 2, tab 12, but you probably do not need to go to it. It creates the presumption that:

a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.

Obviously, that text does not identify where you have more than one “locality, jurisdiction or other matter or thing” referred to in a particular statutory provision, of which one has to be in or of New South Wales, but it most certainly does not require the construction that every “locality, jurisdiction or other matter or thing” be “in and of New South Wales”.

The question is an interpretative question as a matter of construction as to which connection should be selected. Your Honours – and I will be very quick on this because it is probably fresh in your Honours’ minds – but BHP v Impiombato [2022] HCA 33, which your Honours have in volume 5, tab 36, examined the operation of the equivalent Commonwealth provision which is in the same terms and if I could just highlight a couple of paragraph references for your Honours in that case.

There is a joint judgment of your Honours Justices Gordon, Edelman and Steward, and in your Honours’ reasons at paragraph 43, in my version which I think is the same as the JBA version, the paragraph numbers are partially cut off on the left but it is page 13, the second paragraph on page 13 of the report, or of the print. Your Honours refer to:

The starting point –

being the:

construction of –

the section:

depending on the particular statute . . . presumptions against extraterritorality may have little or no role to play.

At the end of the paragraph:

The territorial connection of Pt IVA is direct and specific; it concerns the jurisdiction of the Federal Court.

Here, one is dealing directly and specifically with convictions and sentences imposed by New South Wales courts and one might well think that where the subject matter is convictions and sentences imposed by New South Wales courts why do you need to do anything more, you do not really need any assistance from an interpretation Act or statutory presumptions to get a connection to the legislative power of New South Wales. At paragraph 59, which is on page 21 under the heading “Statutory construction and the “presumption” against extraterritoriality”, your Honours identify that the construction:

task is to identify the hinge (also referred to as the statutory springboard, general subject matter, object of legislative concern –

Your Honours note the various terms that have been used in the legislation to “identify” the:

territorial connection, if any. The applicable provisions . . . may have . . . a clear territorial connection –

as we submit it does here. Then at – I will not read 61 – 62 near the end on the top of page 24:

Where the central focus of the subject matter of the statute, on its proper construction, has a territorial connection, it will ordinarily be unnecessary to look for further territorial restrictions. The presumption has never been understood such that it needed to be applied to all elements –

of the word. Your Honour Justice Gageler in a joint judgment with Chief Justice Kiefel reasoned to similar effect. You identified the circumstances that Part IVA was concerned with the exercise of jurisdiction by the Federal Court at paragraph 21 as the critical issue. At paragraphs 36 and 39, identified that the nature of the connection required depends on context and subject matter. At 39, your Honour said that there are complex cases, but:

This is not one of them.

In effect, because it was just about the jurisdiction exercised by the Federal Court, and that fact supplied the necessary conviction. In our submission – I have done that quickly – but there was really no call to go beyond the obvious connection created by the fact that the convictional sentence in question was imposed by a New South Wales court.

There was certainly no call, as the end of paragraph 62 makes plain, to treat section 12(1)(b) as if justified adding an additional territorial nexus in circumstances where the provision – on its face – already supplied one. That, again, is how Justice Leeming approached things, if your Honours would go to paragraph 216 of ‑ ‑ ‑

GAGELER J: It is not really a territorial nexus, it is a nexus with the polity of New South Wales, is it not?

MR DONAGHUE: It is actually both, your Honour. Perhaps principally, and New South Wales courts being an obvious component of the judicial part of the polity of New South Wales, imposing sentences, you have that clear connection. Ordinarily, they will be – particularly criminal jurisdiction – exercising that jurisdiction within the territory of New South Wales, which is why I was putting it that way. But I do not disagree with your Honour.

My point is that, even where a New South Wales court is exercising federal jurisdiction, you still have a connection with New South Wales. You do not need to look for a further connection with New South Wales, or to say the connection with New South Wales must be in respect of New South Wales offences, because that is to add an extra connection where you already have a direct connection to the polity of New South Wales. The judicial institution of New South Wales performing a task.

GAGELER J: You accept, of course, that the legislative power of New South Wales does not extend to regulating the exercise of federal jurisdiction by a New South Wales court.

MR DONAGHUE: I do, of course, accept that.

GAGELER J: Yet you say that the provision is still to be interpreted as applying?

MR DONAGHUE: Your Honour, part of the reason might be that this provision is enacted in a context that includes section 68 of the Judiciary Act, and if, as your Honour was putting to me a few moments ago, section 68(1) – there are limits on the extent to which section 68(1) can translate the meaning of the words of a State statute. It would make sense for a State Parliament, knowing it was legislating in that context, to say, I do not define conviction or sentence by reference to anything, and it does not depend on the character, the source of the offence, so when picked up by section 68, there is no change of meaning required.

I accept that it can only operate to result in a quashing of conviction if picked up by section 68, but it makes sense for the gateway to apply in that way, particularly if there be any question as the case below raises the question about whether it can apply whether section 68 can apply to judicial power.

Because if your Honours were to take the view, section 68 is limited to judicial power – and, for the reasons I have already developed, we strongly resist that – but if that were to be your starting point, then a State Parliament legislating against the backdrop of section 68 should say I need to legislate as a matter of State law right up to the edge of the operation of section 68, so that I can engage – I can ensure that section 68 engages this proceeding in the same way for Commonwealth offences as it does for State offences.

So, the administrative power to make the gateway decision applies as a matter of State law irrespective of whether the offence is Commonwealth or State, and then what happens thereafter if it is a State offence depends on State law – Divisions 4 and 5 – and if it is a Commonwealth offence, it depends on State law applying as federal law via section 68, and the result is the same, so the policy of section 68 is achieved.

That is why it would make sense for the State Parliament, as a matter of construction, to say that the gateway applies of its own force. That is what Justice Leeming said at paragraphs 216 and 217 of his Honour’s reasons, which I rely upon, but I will not read to your Honours. But his Honour there emphasises that you do not need extra connections – and, in the middle of 217, that:

it is a mistake to require there to be a connection for each and every element of the statute.

GLEESON J: Mr Donaghue, can I interrupt you? I do not want to take you out of your order, but at some stage I would be assisted by understanding exactly how section 79(1)(b) interacts with 68(1)(d), assuming that you are saying that the law is – correct me if I am wrong – a procedure for the hearing of an appeal, what exactly is the relevant proceeding given that the Division 3 process is commenced by an application for an inquiry which does not appear of itself to create a proceeding? It creates – it leads to a power for the Supreme Court to do one of two things, which might be described as proceedings.

MR DONAGHUE: I will deal with it now, your Honour. So, this is on what I have called the primary limb of my Judiciary Act case. So, 78(1)(b) and Division 5 themselves being enough. In my submission, and this is really how the amici have approached it as well, the gateway really needs to be read together with what follows if the gateway opens so that (a) and Division 4 travel together and that (b) and Division 5 travel together. Approaching them in that way, in my submission, the application under section 78, in its operation through 79(1)(b), potentially leading to Division 5. That entire process is a proceeding respecting an appeal within the meaning of (1)(d). That is how I would invite your Honour to read it.

GLEESON J: I see. Right. Thank you. An administrative proceeding – a single administrative proceeding?

MR DONAGHUE: No, it is ‑ ‑ ‑

GLEESON J: No, it cannot be, can it?

MR DONAGHUE: Because it is a procedure respecting – it is a procedure that starts with an administrative decision persona designata and leads to, through (1)(b), a judicial proceeding.

GLEESON J: So, there is an administrative proceeding and a judicial proceeding, but you say they are one proceeding?

MR DONAGHUE: Well, I say that they are all respecting the procedure for, so I do not need them to be a single proceeding. That entire package of things – so the administrative gateway ‑ ‑ ‑

GLEESON J: But they need to be an appeal, which is a proceeding, or can be more than one proceeding?

MR DONAGHUE: It needs to be a State law respecting – reading from the chapeau of 68(1), a State law – or subject to your Honour Justice Edelman’s point earlier about how tightly one needs to read this, but it is sufficient for my purposes to say it is a State law respecting the procedure for the hearing and determination of an appeal for it to be a State law that says you can apply for the exercise of this administrative power that if exercised in your favour results in an appeal. So, all I need is a connection between the administrative function and the appeal, and that is the connection that I am inviting. I do not need a single procedure.

GLEESON J: Thank you.

MR DONAGHUE: The reason that Justice Basten and their Honours who agreed with him rejected the own force conclusion that Justice Leeming accepted in 216 and 217 appears at paragraphs 68 and 69 of his Honour’s reasons on page 63 of the appeal book. It seems to be critically there. And in paragraph 68 his Honour is referring to what he calls the “localising principle” in section 12(1) and he acknowledges the possibility that it could be conviction by a “court, as an institution, regardless of whether” State or federal. But he prefers the view, in the last sentence, that it:

may also require that the conviction be for an offence under State law –

So that is an extra application of the localising principle. It seems that the reason that his Honour concluded that section 12 had that effect was because of Solomons, because at the end after the quote from paragraph 9 of Solomons, his Honour says:

On that approach, the reference to a “conviction or sentence” in s 78 . . . is to be read as a reference to a conviction for an offence under State law.

It seems that the critical thing was the last part of that block quote from paragraph 9 where, four lines up from the bottom, having identified another number of connections to New South Wales, the Court said:

and the offences in question do not include offences under a law of the Commonwealth.

That was a statement that the Court made in the context of the Costs Act in Solomons. We submit it was not a statement that supports the opposition that in any State law, in any context, the offences in question do not include offences against the law of the Commonwealth. But it was that treating Solomons as answering the question that seems to have led principally to be the fact that led to the rejection of the direct application view.

GORDON J: Can I ask, other than the application of the last line to the facts in Solomons, do you take issue with the principles set out in 9?

MR DONAGHUE: Your Honour, can I defer that question for about two or three minutes, because I am about to come to 9, but I just wanted to deal with something else first. Mostly the answer is no, but, in my submission, one needs to read it in context. Can your Honours go to Solomons, volume 4, tab 32 ‑ ‑ ‑

EDELMAN J: Just before we do, it is no part of your argument, I take it, that we need to engage with what Justice Leeming called step two at this stage. Step two, which is working out whether in the Rizeq analysis, relating to judicial power, this is something that is more closely associated with rights and duties or whether it is more closely associated with procedures of a court.

MR DONAGHUE: That, I think, is the last thing I am going to address your Honours on, which is the legislative power question. So, at this point, no; shortly, yes.

Can I take you to Solomons [2002] HCA 47; (2002) 211 CLR 119, volume 4, tab 32. The first point to note about – this is a case about the Costs Act in New South Wales. In paragraph 1 of the plurality reasons, on page 128, you can see that there were two points decided by the court below – the New South Wales Court:

(i) the State court is not empowered by State law to grant a certificate under s 2 of the Costs in Criminal Cases Act –

That is the direct application point:

(ii) neither s 68 nor s 79 . . . renders the provisions . . . applicable –

In this Court, the appellant accepts the first but contests the second. So, in the High Court, there was no argument about the direct application question. Justice McHugh makes that plain at paragraph 37 of his reasons as well. The case just is not an authority on the direct application point. That is the first observation. The section your Honours will see at paragraph 8 is set out in full and it empowered:

“The Court or Judge or Justice or Justices in any proceedings relating to any offence –

So, this Act, unlike 78 and 79, did refer to offences; it did not refer to convictions or sentences. In proceedings related to an offence, when various conditions were satisfied, the Court would grant the defendant a certificate.

So, the textual focus there on the offence provides a hook for the localising principle that is not translatable to our present context. What was the effect of a certificate of that kind? I am going to skip over paragraph 9 and your Honour Justice Gordon’s question because I am coming back there in a moment. The effect of the certificate is explained at paragraph 12:

Provision for payment under a costs certificate is made in s 4 . . . A person to whom a certificate has been granted may apply to the Under Secretary of the Attorney‑General’s Department for payment from the Consolidated Revenue Fund –

There was not a right to payment. There was then a decision needed to be made by the Treasurer:

“that, in the circumstances . . . the making of a payment . . . is justified” –

So, the certificate was a gateway to an application to the State Government for the Treasurer of the State to make a payment from State and consolidated revenue – being State consolidated revenue is obvious but confirmed by paragraph 13. Then, at paragraph 15, the Court said:

Section 2 . . . is not to be construed in isolation from the balance of the legislative scheme . . . The grant of a certificate under s 2 . . . has no purpose but the satisfaction of a necessary precondition for the exercise . . . of the discretions conferred by s 4 –

So, this was a case where, if section 4 did not apply, there was just no point in section 2 applying. It is not like our case – on the Commonwealth’s primary argument – where, if Division 4 does not apply, that does not mean there is no point in section 79 applying, because there is an alternative that is available: the Division 5 appeal route. So, the kind of reasoning that is said 2 and 4 had to travel together depended on there being no point to the certificate under the regime in issue in Solomons in a way that is not translatable here.

The basic point of all of this, your Honours, is that it is not at all surprising, as a matter of construction, that with respect to a prosecution for Commonwealth offences, being a prosecution that the State does not control – so it does not decide whether to institute this prosecution or not – but if the Commonwealth decides to institute a prosecution and that prosecution fails, why should the State pay out of State consolidated revenue for the failure of a prosecution that it had no part in instituting?

That is what Solomons decides. That it is not at all surprising as a matter of construction that the State Act would not have applied of its own force there, and Solomons decides it could not be picked up because the section 4 part of it could not be picked up.

GAGELER J: Would it not follow from your argument about the scope of section 68(1) that it could have been said in Solomons, I read “Attorney‑General’s Department” as including the Commonwealth Attorney‑General’s Department, Treasurer, Commonwealth Treasurer. Is it not the same form of analysis as you would have us apply here?

MR DONAGHUE: This submission, I think, your Honour, is all about section 79. It is all about courts exercising jurisdiction, and so section 79 could not capture section 4 because it was just outside that realm.

GORDON J: Is that right, given what happens in paragraph 17 and following? I do not think they get to 79 until we get to paragraph 20.

MR DONAGHUE: Paragraph 20, the dispositive analysis is all section 79. So, under the heading “Conclusion” and what follows, I am reasonably confident that their Honours never mention section 68; it is all section 79. That is why I answered Justice Gageler as I did. Perhaps I need to have another look at what their Honours did with section 68, if anything, but I do not think they did anything with it.

GORDON J: Sorry, my point was probably a bit narrower than that. It was to say that I thought they had addressed 68 separately from 79 in 17 through to 19, because they identify what was a difficulty with the analysis under 68.

MR DONAGHUE: The focus in Solomons, as I understand it, your Honours, was whether or not the Court had the power to issue the certificate. We were concerned with what the Court could do in the exercise of section 68 jurisdiction, and the conclusion was that because section 4 obviously not able to be picked up as having nothing to do with the Court, by section 68, and not otherwise rendered applicable by 79, their Honours found, for the understandable reason that I just identified, that to construe the regime as requiring State officials to make payment for the Commonwealth prosecutions would have been a nonsensical operation of the provision.

The main way – the reason I am going to this at this point is because the paragraph 9 passage which Justice Basten relied upon, and which is relied upon against us, can be seen in the context of the case as a whole to be an observation seemingly about a matter that was not in issue – given paragraph 1 – where their Honours expressed by reference to the localising principle; referred to the general rule of construction which would confine State enactment to State proceedings and offices, which is not controversial. Mentioned in the next sentence that the justices being referred to are New South Wales judicial officers, and in the middle of the paragraph say that the power:

“was clearly intended to be conferred on all New South Wales courts –

So, one had a clear connection to New South Wales already there apparent. In that context, their Honours then went on to refer to further connections to New South Wales that did exist in the context of this legislative scheme and which made sense in the context of this legislative scheme because it was about payments for failed prosecutions but that, in my submission, does not translate into any general principle that requires, in the context of a provision like 79 of the Appeals Act that already has a clear connection to New South Wales courts – that it needs extra connections. The last line of paragraph 9 where the Court says:

This follows as a matter of construction of s 2 . . . in the light of s 12(1) of the Interpretation Act.

It is not clear, with respect, what the “this” means in that context. Does it mean that every connection that is identified earlier in that paragraph follows from section 12? If that was what was suggested, then it would not be contrary to BHP, it would be saying the localising principle means that every possible thing has to be connected to New South Wales. But, in my submission, that is not really a fair reading of what their Honours are saying.

The “this” refers to the fact that all of the connections that have been identified, including the New South Wales court‑type connection, are apparent from this statute and that the statute as a whole, read in the context of section 12, has the connections identified but it does not create a rule of general application that answered the constructional question that arose for the Court.

The final matter that I want to address – and I will be very brief on it – is the legislative power question. The argument from which it is possible the amici are backing away slightly because their oral submissions on this topic in paragraph 7 say:

Query whether s 79 . . . could validly apply to federal offences of its own force.

So, it seems to be a slight step back from the proposition that it could not. But the proposition seems to be that if sections 78 and 79 applied of their own force, they would be invalid because, contrary to Rizeq – the Rizeq restriction on legislative power is a restriction on State laws that:

govern the exercise by a court of federal jurisdiction. A State law –

cannot determine whether:

the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised.

That is reading from Rizeq at 103. In Masson v Parsons, at paragraph 30, your Honours refer to it as:

the absence of State legislative power to command a court as to the manner of its exercise of federal jurisdiction.

GORDON J: I think I put this to you earlier, Mr Solicitor, and that is, is one way of looking at this “applies of its own force” is that a State law is seeking to alter the charter that has already been set in relation to the federal offence? That is, you have a charter having been stipulated and set by the appeal processes which are the ones, on one view, to which section 68 is directed, and then we have now got a State law with its own force coming along and seeking to alter that charter.

MR DONAGHUE: But, in my submission, one needs to, on this limb of the case, be quite precise about what the objectionable State law is supposed to be, because the attack is on 79(1), so the attack is on an administrative power conferred persona designata. That, in my submission, is necessarily incapable of seeking to control or regulate or do anything to the exercise of federal jurisdiction ‑ ‑ ‑

GORDON J: So the tension in your argument is – in this sense, it is the narrow view of what 79 does, whereas we then see it as a broader view of the world, and the other part of the argument when we seek to rely upon the fact, do not worry, it is judicial power and the court is doing it.

MR DONAGHUE: Your Honour, on this direct force application, I accept my argument is – that is a difference between the arguments. On the narrow force – on the direct force argument, all I say is that the administrative power persona designata operates of its own force – 79 alone – and, in my submission, that obviously does not regulate the manner of exercise of federal jurisdiction. There is just no plausible basis upon which it could be said that it is entering into the Rizeq or Masson v Parsons field. It is true that what follows might impinge upon the charter that your Honour refers to, but it is not suggested by us that what follows applies of its own force. So, what follows can only come about because the Commonwealth Parliament chooses to allow it to come about by reason of section 68.

The argument matters really only because one seeks to avoid on this limb of the argument a result where, even though Division 5 at least is unobjectionable, it just confers federal jurisdiction to have a second appeal, it seeks to avoid the consequence that you can never reach the unobjectionable second appeal because the gateway is closed – permanently closed. And, in my submission, as I sought to explain in answering a question from Justice Gageler earlier, a State Parliament is entitled and might properly choose to legislate against the backdrop of section 68 and to say, I know as a State Parliament that I cannot effect federal convictions or federal sentences, but I can enact my law in a form that intersects in a workable way with section 68 of the Judiciary Act and so I can enact a law that applies to all convictions and sentences in its terms so that everything up to the point where section 68 is required operates by State law of its own force and everything thereafter can be picked up by the Judiciary Act with no need to change the meaning.

GORDON J: Can I ask one more question. That is, in the third sentence in 103, the judgment says that:

A State law can determine neither the powers –

It is the last bit I am more concerned with:

nor how or in what circumstances those powers are to be exercised.

Are we in that territory?

MR DONAGHUE: Well, our friends say that we are. That is the words that they rely upon. In my submission, your Honours should not accept that because what is in play here is no different than a law that empowers someone to bring court proceedings. You would not say that a power that enacts – that ASIC, for example, can bring a proceeding – is a law that regulates the exercise of federal jurisdiction, even though it is a step that, when taken, enlivens the exercise of federal jurisdiction. This is the same. It is an administrative power that might result in an exercise of federal jurisdiction, but it does not regulate the exercise of that jurisdiction.

GAGELER J: Well, it directs the exercise of the jurisdiction, does it not? The order that is made under section 79(1)(b) has the effect that a proceeding in the nature of an appeal will occur in federal jurisdiction in the way you read these provisions.

MR DONAGHUE: So, too, an application by ASIC. The court would then have an obligation to exercise the jurisdiction enlivened by the administrative step. In my submission, is it the same.

GAGELER J: Yes.

MR DONAGHUE: So, it is not directing it, other than that it starts it. It starts the process, but what then happens is controlled by the court.

GORDON J: But the control by the court is different here, in the sense that is more akin to the binding that has been referred to in Rizeq, is not it?

MR DONAGHUE: In my submission, it is not. This person – even though it says the Supreme Court, this is an administrative decision by a personal appointment that starts a proceeding. And if that is within the exclusive jurisdiction identified in Rizeq and Masson v Parsons, then there is a lot of litigation coming, because that is, in my submission, not what the Court is referring to when it is identifying an incapacity of State parliaments to seek to regulate or control the exercise of federal jurisdiction.

The enlivening stage is a stage that must necessarily be governed by Parliament in relation to a whole range of statutory agencies in determining the circumstances in which litigation can properly be brought about. But it is not straying into an area of Commonwealth exclusivity to empower the bringing of proceedings. There would be many Commonwealth provisions, and my ASIC example is just ‑ ‑ ‑

GORDON J: It is a bit different, though, is not it? Because you have got the direction under 79(1)(b) which picks up 86, which says, in respect of Commonwealth offences, if the Court is to deal with the case so referred in the same way as if the convicted person had appealed, and the Act applies – so there is both a direction and a mechanism, which is different from the ASIC example.

MR DONAGHUE: Both your Honour Justice Gordon and your Honour Justice Gageler have fixed on the word “direct” ‑ or have raised the word “direct” with me, but, in my submission, it is only a direction relevantly in the sense that the jurisdiction conferred by the Judiciary Act should be exercised. That is, in my submission, the same as the situation that confronts any court confronted with an application. There might be some applications that a court would prefer not to have had made to it, but it, nevertheless, has a duty to exercise the jurisdiction that Parliament has conferred on it to dispose of that application. And the applicant is not directing the court by filing notice of appeal; they are doing something that enlivens the duty of the court to exercise its jurisdiction, but nothing more than that. Here, what happens when this step is taken, is to proceed exactly as if the convicted person had appealed. So, the entirety of the Division 5 process will look just like it would look on an ordinary appeal by the convicted person, and in my submission ‑ ‑ ‑

EDELMAN J: I mean, another way of putting it might be to say that it is – these sorts of steps are steps that do not affect, in any way, whether the authority of the court is a State or federal authority. They are steps that are anterior to that and they are steps that could not regulate that authority in any way.

MR DONAGHUE: Exactly, your Honour. Yes. As is really underlined by the administrative nature of what is going on, so that – well, yes, I accept what your Honour puts to me.

I had been intending to take your Honours to Lodhi – in fact, in light of time, your Honours, I might take your Honours briefly to Lodhi. It is the last thing that I address. So, could your Honours to turn to volume 5, tab 41, Lodhi v Attorney‑General (NSW) [2013] NSWCA 433; (2013) 241 A Crim R 477. This is another decision of the New South Wales Court of Appeal where the leading judgment is given by Justice Basten, and it is quite relevant to a number of the matters that arise in this case.

Mr Lodhi had been found guilty of terrorism offences against Commonwealth law. So, convicted of a Commonwealth offence. He was jailed for a lengthy period. After he was jailed, it came to the attention of the New South Wales sheriff that there may have been an irregularity with one of the jurors, and the applicant applied – you see this in paragraph 5 – to the sheriff, an officer of the New South Wales court, to carry out an investigation into juror misconduct under section 73(a) of the Jury Act and New South Wales Act. So, a New South Wales official being asked to carry out an inquiry under a New South Wales Act into a jury involving a Commonwealth conviction.

The registrar advised that the Chief Judge at common law had decided not to give the consent that was necessary under 73(a) for such an inquiry to occur. So, the gateway never opened to the sheriff’s inquiry and matters stopped. You can see the section at section 8, but I do not need to take your Honours through it. Effectively, the sheriff, with consent, could investigate whether a verdict might have been affected by juror misconduct. The fundamental question that Justice Basten identifies at 13 concerns:

the availability and source of any power . . . to be exercised by the Sheriff –

The appellant having been:

convicted of an offence under federal law –

So, his Honour was, unsurprisingly, alive to the very kind of question that now arises in this matter about the interface of the State regime and the federal regime. In paragraph 14 his Honour identifies the underlying purpose of this sheriff’s inquiry, and you will note at the end of paragraph 14 that one possibility was to “reagitate” a special leave application in this Court – special leave already having been refused – or, in the last few lines:

that he could invoke the executive powers available under Pt 7 of the Crimes (Appeal and Review) Act . . . to have the matter referred to the Court –

So, Justice Basten had in mind that one possible outcome of this was that you could have a Part 7 inquiry with respect to a federal offence, interestingly, being the very thing that the courts held now you cannot do – the court held in the decision below you cannot do. That option, in the middle of paragraph 19, is identified as:

The most plausible relief available –

That is, the referral of an appeal under Part 7, Division 5. His Honour did not think there would be any utility in the inquiry by the sheriff if the only question was a possible second attempt to get special leave in this Court. That is the background. The Court, at paragraph 32, identifies four issues for decision, the first of which is the power question:

whether there is power to carry out an investigation with respect to a federal conviction (power) –

His Honour then summarises the evidence and he turns to the answer to that first question at paragraph 41, noting that the Supreme Court had been exercising federal jurisdiction. At then, end of 41:

The proposed investigation, if it were to bear fruit, was intended to provide a basis for setting aside the convictions for federal offences. It is necessary to consider how that could occur.

So, how the State proceeding could result in setting aside the federal conviction. Paragraph 44 is where his Honour said it would lack utility if it was only special leave. Paragraph 45 says:

The alternative course . . . might constitute a step towards an inquiry under Part 7 . . . However, that raises a separate question as to whether such an inquiry is available in relation to the exercise of federal jurisdiction.

His Honour foreshadows the same question as is now before the Court, as having been raised by Lodhi. Then there is a summary of the Appeal and Review Act that I do not need to take your Honours to. Paragraphs 52 and 53 are critical:

The next question is whether such a review or inquiry may be conducted in relation to a conviction for a federal offence.

That is the question now before the Court:

As the review or inquiry would not involve the exercise of judicial power, the terms of s 68 of the Judiciary Act are not engaged.

We submitted below, and I maintain in this Court, that this sentence is wrong, for the reasons I have developed. Section 68 is not limited to the exercise of judicial power. With that qualification, that exception, we submit that the reasoning in this case is correct. His Honour then says, going over the page:

it is likely that the whole case would then be referred to the Court of Criminal Appeal to be dealt with as an appeal. At that stage an exercise in judicial power would be engaged and, because the convictions were under a federal law, it would involve an exercise of federal jurisdiction. Once that point is reached, the terms of s 68(2) would be engaged: the definition of “appeal” being sufficiently broad to pick up State laws –

His Honour holds that 68(2) would pick up Division 5. Then, at 53, he refers to Pearson, and at the end of 53:

the Supreme Court, under s 79(1), exercises an administrative function, which requires no authority under Commonwealth law unless and until a step is taken which could result in a review of, or call into question, the federal conviction.

In other words, his Honour finds there – consistently with what Justice Leeming said below – that you need the Judiciary Act, once you get to Division 5, but you do not need it for 79(1). It is an administrative function that can be applied without the Judiciary Act. That is what he says in paragraph 59, with the agreement of the other members of the Court – and Justice Leeming quotes it. In paragraph 55, there is a recognition that there is a possible difference between Division 2 and Division 3, but I will not dwell on that. At paragraph 61:

It is understandable that a court . . . should look to . . . s 68 . . . However, it does not follow from the fact that a matter is before the court, that all steps along the way must be supported by the operation of s 68. Rather the administrative steps, if involving coercive powers, may be sourced in State law. It is only where some step has a potential effect on a federal conviction that a federal source of power is required.

We respectfully submit that that reasoning is right. It is consistent with what Justice Leeming held below and it was not adopted by Justice Basten in this case because his Honour took – I withdraw that. His Honour’s stated explanation for not adopting that reasoning was because there was a difference in the distance between the exercise of the administrative power in Lodhi – the inquiry by the sheriff – and the administrative power in this case.

But, with respect, that does not explain the reasoning, because the reasoning I have just taken your Honours to was reasoning specifically about Part 7, Division 3. There is no distance; his Honour was talking about the same regime in the parts of the reason that I have just relied on. His Honour’s reasons were correct in Lodhi. Justice Leeming was correct to adopt them. And that supports the alternative pathway of direct application of 79 alone, accepting that once one gets through section 79, one needs the Judiciary Act to give operative effect to the provisions that
might result in – to use Justice Basten’s language – once you are taking a step that:

could result in the review of, or call in question –

the federal jurisdiction, you need federal law, but you do not need it before that. That was why you did not need it for Division 3.

Your Honours, unless there are any other questions, those are my submissions.

GAGELER J: Thank you, Mr Solicitor. The Court will, at this stage, adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2:15 PM:

GAGELER J: Mr Wilson.

MR WILSON: Yes, thank you, your Honour. On behalf of the first respondent in this case, I largely, gratefully, adopt the submissions made on behalf of the appellant in relation to the three questions. I do not intend to say anything about question 1 – the issue of persona designata – that, as, the Solicitor‑General indicated, may call for additional submissions and raises all sorts of complexities. So, it may be that additional submissions might be required, were that to be an issue. The written submissions deal fairly extensively with that and I adopt the written submissions of the appellant as well as our own in relation to that question.

I do not intend to add to the submissions of the appellant on question 2 – the issue of direct application of, in particular, section 79(1)(b) of the Crimes (Appeal and Review) Act (NSW). I will focus the first respondent’s submissions on question 3 – the extent, the pick‑up, of the relevant provisions by section 68 of the Judiciary Act. In particular, I intend to focus on the interpretation of section 68; the meaning of the term “appeal” in the Judiciary Act and, in particular, in section 68; I will briefly address the constraints on Commonwealth power which had been raised by Victoria in that intervener’s submissions in relation to consent by the individual judge upon whom a power is conferred – a State judge upon whom a power is conferred by a Commonwealth law – and the State authority; I will briefly address the intervener’s submissions in relation to that; and I will finally address the severance issue.

GAGELER J: Can I ask you a question about the first sentence of your paragraph 7. You say:

Whether or not Div 3 applies of its own force, it is picked up and applied by JA, s 68(1).

MR WILSON: Yes.

GAGELER J: If it is picked up and applied by section 68(1), can it have application of its own force, or does section 109 of the Constitution displace any State law?

MR WILSON: To the extent that – if it could take it back. Firstly, it depends on the interpretation of section 68(1) which, in my submission, is broad enough to pick up both State laws that apply of their own force and State laws that cannot apply of their own force, so that section 68(1) is capable of picking up both of those, and to the important ones in this case, both section 79(1)(b) of the Crimes (Appeal and Review) Act, if it also applied of its own force, and section 86 in Division 5, which clearly cannot apply of its own force. It is capable of picking up both, in my submission.

EDELMAN J: Is your assumption that section 86 cannot apply of its own force because section 86 is viewed as the creation of judicial power?

MR WILSON: Yes.

EDELMAN J: You may wish to consider whether that assumption ‑ I think it also underpinned the Solicitor-General’s submissions – is correct in light of Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, where the Court considered – albeit a differently‑worded provision in Western Australia – but one which, in section 140 of the Sentencing Act provided for a petition for the exercise of the royal prerogative of mercy, but then went on to provide for that petition to be heard and determined as if it were an appeal.

MR WILSON: Yes.

EDELMAN J: And the history of hearing and determining a matter as if it were an appeal in light of an exercise of clemency was described by the Court in various places as the instantiation, effectively, of executive power – albeit governed by the procedures of the Court, which was why, in Mallard, the Court of Appeal was not bound by the material that would have been before the trial judge.

MR WILSON: I am aware of that case, but I do not have it to hand, and I do not have the passages to hand. If I could take that on notice ‑ ‑ ‑

GORDON J: It may be also unnecessary in that context to also think about whether or not, when 86 is talking about courts to deal with the case referred in the same way as if the convicted person appealed against the conviction or sentence under the Criminal Appeal Act and the Act applies accordingly, that it truly is what we would understand to be an appeal in the way in which section 68 deals with an appeal, or whether it is dealing with it in a different context, and that is in a context of prerogative, and looking at it – in fact, creating something which is itself unique, although it looks and smells and works as though if it is an appeal under that Act – it is in effect the middle ground or step back from that which was approached in Mallard. It may very well then impact on the way you might look at section 68.

MR WILSON: If that, in terms of the first respondent’s position, if section 68(1) is capable of picking up administrative powers then, if section 86 were in fact some kind of administrative power rather than an exercise of judicial power then that certainly changes the lay of the land in relation to the capacity of the Commonwealth to give an administrative power to a State court. So, there may be a difficulty, a constitutional difficulty, as I understand it, if what is happening under section 86 is not the conferral of judicial power but a conferral of some kind of administrative function on the Court of Criminal Appeal ‑ ‑ ‑

GORDON J: Well, I think that is one question, which is the question Justice Edelman is asking you, and then the second question is, when it comes to dealing with the definition of it, which I think you are going to come to, this concept of appeals under section 68, which is where we necessarily need to start on your analysis, I think.

MR WILSON: Yes.

GORDON J: Whether or not, when one properly looks at and construes the nature and the subject matter of what is going on in section 79 in the context of section 86 by reference to prerogative and one looks to see the way in which the appeal is, as if it is, and the creation of this sort of unique route procedure is itself intended to be caught and could be caught by section 68?

MR WILSON: Well, certainly section – if we turn to the text of section 68, and what it says on the face of it, that it is picking up, relevantly in this case:

the laws of a State or Territory respecting ... the procedure for:

. . .

(d) the hearing and determination of appeals –

Then if one turns to section 2 of the Judiciary Act, in joint book of authorities, volume 1, page 88 in the interpretation section under that Act:

Appeal includes an application for a new trial and any proceeding to review or call in question the proceedings decision or jurisdiction of any Court of Judge.

It is a particularly, on the face of it, broad definition which includes any proceeding, and I will come to whether that is limited to judicial proceeding, as the amici submit.

GAGELER J: Can we come at it in a slightly different way?

MR WILSON: Certainly.

GAGELER J: Subsection (1) of section 68 is only concerned with matters in which there is jurisdiction conferred by this section. You have really got to start with section 68(2), I think, to find jurisdiction. You see section 68(2), as the Solicitor‑General submitted, is a law of the Commonwealth made under section 77(iii) conferring federal jurisdiction on State courts.

MR WILSON: State courts, yes.

GAGELER J: That is where you see this language:

hearing and determination of appeals arising out of any such trial or conviction –

That is in the conferral of jurisdiction on State courts. That can only be judicial power. The language that is used in subsection (2) can only be referring to judicial power.

MR WILSON: Because subsection (2) itself is only dealing with judicial power. It is dealing with the vesting of jurisdiction in courts in respect of particular persons – persons who are charged with offences against the laws of the Commonwealth. Section 68(1) defines the persons to whom the laws are picked up and applied, as being those same persons as in section 68(2). But it is only a way of identifying the cohort of persons to which it applies. Section 68(2) has to do with the conferral of jurisdiction of courts. Section 68(1) is not limited to the picking‑up and applying of the laws of a State or Territory in relation to courts. It picks up and applies laws on the various topics – many of them do ‑ ‑ ‑

EDELMAN J: In other words, section 68(2), in your submission, is the personal aspect of jurisdiction and 68(1) is the subject matter aspect of jurisdiction or dimension.

MR WILSON: Not really. Section 68(2) is what vests, or confers, jurisdiction in the court. Section 68(1), among other things, picks up laws about how jurisdiction might be exercised – the procedures for the exercise of that jurisdiction – but it does not only do that. It is doing that in relation to persons and it is doing it in relation to the same persons in respect of whom jurisdiction is vested in courts in subsection (2). So, it does pick up laws respecting procedures – broadly similar to section 79 of the Judiciary Act – but instead of being binding on courts, it is applicable by reference to persons. The laws that it picks up are not limited to laws regulating the exercise of jurisdiction by courts.

GORDON J: Can I put it this way, then. If you accept – as I think you did to Justice Gageler – when one starts at section 68(2) to work out what the scope of the jurisdiction is that is able to be given to courts. Then one sees in 68(1) that you have to read it subject to the section, so you have to read it in the context of the whole of 68(1) and (2). Is 68(2) not only the starting point but also the limit?

It is true that 68(1) picks up, arguably, some incidental matters to the exercise of judicial power – and it gives custody and arrest as good examples – because they are necessary for the exercise of judicial power addressed in the balance of the section. You do not take any issue with any of that, do you?

MR WILSON: The words that appear in both subsections, subject to this section, in my submission are referring to the subsections that follow, that modify certain aspects of the application of both subsections 4, 5, 5A, et cetera. Sections 68(1) and 68(2) do not affect the operation of each other in any way other than the definition of the cohort of persons to whom the laws are applied in section 68(1) is the same, is picked up as the same cohort of persons as is referred to in section 68(2).

We do not have it, unfortunately, in the joint book of authorities, the as‑enacted version of the Judiciary Act for some reason does not include section 68, but as enacted, sections 68(1) and (2) did not refer to each other at all. Section 68(1) simply said:

persons who are charged with offences against the laws of the Commonwealth –

The exact words do not come to mind, but – who are being tried or capable of being tried in a particular State. There was no cross‑referencing between them. The jurisdiction conferred on the Court by the section in section 68(1) is referring as a feature of the persons, it is defining the cohort of persons to whom the laws are applied under section 68(1) by reference to section 68(2). It is not subject to 68(2) in the sense that it in any way changes the operation of section 68(1), it is simply a reference point to identify the cohort of people, it being the same cohort of people.

Certainly, in section 68(2), given that that is a vesting of jurisdiction in a court, in my submission, that is talking about jurisdiction of the court, but in section 68(1), because the laws of a State or Territory respecting the procedure for these various listed items goes beyond simply regulating the jurisdiction of the court, they should be taken on their terms and the definition of “appeal” under section 2 of the Judiciary Act is a broad one.

GORDON J: Do you accept it is the same as in (1) – the same language, it means the same thing in both subsections? By that I mean, to be fair:

the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith –

MR WILSON: Yes, it can have the same broad meaning, but there are no State courts which have like jurisdiction to people making administrative decisions. So, it does not – appeals, even though the word “appeals” in subsection (2) could be capable of having the extended definition, obviously it is not because it is limited by only picking up like jurisdiction from State courts. So, the meaning is the same. The meaning of “appeals” can include all sorts of types of appeals beyond judicial proceedings, but they are not going to be picked up by section 68(2) because it only vests like jurisdiction in courts with State courts, and that is ‑ ‑ ‑

GAGELER J: Well, it can only invest the judicial power of the Commonwealth.

MR WILSON: Exactly.

GAGELER J: It can only invest federal jurisdiction in State courts.

MR WILSON: Yes, that is right.

GAGELER J: But you say that exactly the same words in subsection (2) when they appear in subsection (1)(d) have a different and expanded meaning.

MR WILSON: Yes, because they are capable of having a different – the full extent of the meaning defined under the Judiciary Act is capable of applying under section 68(1), but not 68(2), and the definition of “appeal” refers to any proceeding to call in question the decision of a court – of any court or judge. In my submission, the meaning of “any proceeding” in section (2) is not limited to judicial proceeding.

GORDON J: Sorry, could you just put that submission again – I just missed it – that the meaning of appeal in subsection (2) was not limited to ‑ ‑ ‑

MR WILSON: Sorry not – I withdraw that if I said subsection, I mean section 2 of the Judiciary Act ‑ ‑ ‑

GORDON J: Thank you.

MR WILSON: Where it is defined in section 2, page 88 of the joint book of authorities – the definition in the Judiciary Act of “Appeal”:

includes . . . any proceeding –

and there is an issue between the amici and the first respondent and the appellant about whether “proceeding” in that definition means a judicial proceeding. In my submission, it does not. When one looks at some of the other definitions in section 2 of the Judiciary Act, over the page:

Matter includes any proceeding in a Court –

“Plaintiff” is defined in relation to:

proceeding in a Court.

So, there is an indication that where “proceeding in a Court” is meant, that is specified. It is even specified in the definition of “Appeal” itself:

proceedings decision or jurisdiction of any Court –

The word “proceeding” can mean – certainly in the Constitution, it is clearly used to refer to proceedings that are not judicial proceedings – proceedings of Parliament – when judicial proceedings are being referred to, they are referred to specifically as judicial proceedings.

Likewise, in other sections of the – so the sections of the Constitution are section 50, section 51(xxv) and section 118, where there are references to “proceedings” and there is clearly a difference – when judicial proceedings are meant, that term is used. There is no need for it to be used if “proceeding” means judicial proceeding.

That “proceeding” in the Judiciary Act does not mean, is not limited to judicial proceeding, is consistent with some more recent amendments to the Judiciary Act – section 77RA, page 167 of the joint book of authorities in relation to Part XAA of the Judiciary Act, there is a specific definition that:

proceeding means a proceeding in a court –

Now, if that were the meaning of “proceeding” in the Judiciary Act, that it was judicial proceedings, it was proceedings in a court – that definition would not be required. Similarly, in relation to section 77RL on page 173, Part XAB, “proceeding” in that particular Part is defined as:

(a) in relation to a court –

or alternatively:

(b) in relation to a tribunal –

So, clearly, the word – the natural meaning of the word by itself, in my submission, as it is being used throughout the Judiciary Act – “proceeding” is not limited to a judicial proceeding.

GAGELER J: So, what does it mean?

MR WILSON: So, an appeal – if given the broad definition of any proceeding including an administrative proceeding to call into question the decision of a court – could encompass section 79(1)(b) itself – that itself, could be an appeal as defined in the Judiciary Act. The inquiry – if an inquiry were directed by a judicial officer under Division 4 of the Crimes (Appeal and Review) Act – on this extended definition, such an inquiry could amount to an appeal under this broad definition of an appeal, since either of those proceedings call in question a decision or jurisdiction of a court – even though they are not able to – even though they do not resolve the question, it is a proceeding which calls into question the decision of a court.

Section 79(2) is the precondition for the exercise of the power under section 79(1)(b) that there needs to be a doubt about the conviction. So, that involves calling into question the decision, in my submission. So, under this broad definition, a possible interpretation of section 68(1) with reference to the extended definition of “appeal” under section 2 of the Judiciary Act is a very wide meaning and could include all of those aspects – including, of course, section 86.

If the meaning is more narrow and proceeding in section 2 in the extended definition of “appeal” – as the amici submit – is limited to a judicial proceeding, then, on behalf of the first respondent, I submit that section 86, Division 5, still meets the definition of an “appeal” because it is a judicial proceeding, in my submission. Those are my submissions in relation to the definitions – the meaning of section 68(1), how it operates, and the definitions of appeal, and procedure for the hearing and determination of an appeal under that section.

In relation to the constitutional constraints raised by the submissions on behalf of the State of Victoria, in my submission, section – and those two concerns were the requirement for individual consent by a State judge on whom the power under section 79(1)(b) has been confirmed and is being conferred, and whether it is a duty which would then require the authorisation of the State. In my submission, when one looks at section 79(3) of the Crimes (Appeal and Review) Act at page 265 of the joint book of authorities volume 1, that provides that:

The Supreme Court –

and that is under – because of section 75 is referring to a Supreme Court judge and, in this case, persona designata:

may refuse to consider or otherwise deal with an application. Without limiting the foregoing –

and there are a number of factors listed. So, there is an absolute capacity for a judge to simply refuse to deal with the application. So, in my submission, that, of itself, is an answer to the question of individual consent.

GLEESON J: If that happened, there would never be a proceeding, would there?

MR WILSON: No. That is right. If the Supreme Court refused to deal with it, there would be no proceeding. Just to correct the record on a matter that is of no moment but it is relevant to this in one sense, what happened in this case, Justice Garling did in fact consider refusing to considering the application under subsection (3) but he, in fact, went on and considered the application and positively determined not to refer the case to the Court of Criminal Appeal. So, there was an application. He acknowledged that he had the option of refusing to consider it, but went on to, in fact, consider it and dismiss it. So that, in my submission, if a –

GORDON J: Can I ask you about subsection (4) in that context?

MR WILSON: Yes. Subsection (4) of section 79? Yes.

GORDON J: Do you wish to make any submissions about that section?

MR WILSON: Only in relation to the question of whether the proceedings under section 79 are judicial proceedings, which they are not. That goes to question 1 about which there is little debate. The absence of the equivalent of subsection 4 in Division 5 may be of some consequence, because it is the position of the appellant and the first respondent; that what the power that is exercised on receiving the reference under section 86 is the exercise of judicial power, and they are judicial proceedings.

On the question of a duty which must be accepted, in my submission, section 79(3) of the Act is also an answer to that. It is clearly not a duty if the judge can refuse to consider it, and, in my submission, that is the answer to the issue of State authorisation. There are also, in the written submissions – noting the time – section 4AAA of the Crimes Act has been dealt with. I will briefly address the Court in relation to that.

Section 4AAA of the Crimes Act, in my submission, provides another answer to the two concerns raised by Victoria. On behalf of Victoria, it is said that there is a temporal problem but, in my submission, section 4AAA operates directly on section 68(1). Section 68(1) – we turn to section 4AAA in volume 2 – section 68(1) is a law of the Commonwealth relating to criminal matters, and it is pursuant to it that the function or power is being conferred upon the State judge.

In my submission, the use of the present tense is conferred and the purpose of 4AAA, which is clearly to address possible – to avoid any excess of Commonwealth power and undue extensions of Commonwealth power – it applies at the time that section 68 operates and enlarges the categories of laws that are applicable by that section. So, section 68 has to be interpreted in the light of the operation of section 4AAA. It is not – there is no reason to read into section 4AAA the need to ignore section 4AAA when section 68(1) is operating. To somehow quarantine section 68(1), apply that and then once – if something has been conferred under 68(1), then go to 4AAA. Those need to be considered simultaneously. That, in my submission, provides an answer to each of those problems asserted on behalf of the State of Victoria.

In relation to the pick‑up – the severability question – I will very quickly point to two things. In section 79 of the Crimes (Appeal and Review) Act, there are some provisions which, if they were not picked up, would change the meaning of section 79(1)(b). So, this is – I am addressing the issue of whether section 79(1)(b) can be picked up without section 79(1)(a). Section 79(1)(a) has no impact whatsoever on the process – on the power that is exercised under section 79(1)(b). Other subsections do.

Section 79(2); if that were for some reason not able to be picked up, that would change the meaning of section 79(1)(b) because it would remove a precondition to the exercise of that power. That is the way in which cases like Solomons are referring to a severed section having its meaning altered by not picking up another section. It is the section that is – if section 79(2) were not picked up, then section 79(1)(b) would be at large in relation to the issue of a doubtful question. So, in my submission, that section is the type of section that has an impact on the severed section – the section that has been picked up by itself – and that is the sense in which picking up one but not the other could have an altered meaning.

EDELMAN J: There is a second aspect to the severance‑type issues though as well, is there not?

MR WILSON: Yes.

EDELMAN J: There is the aspect which is the intention of a State Parliament in relation to a section like section 79, but there is also the aspect of whether the Commonwealth Parliament under section 68 intended to provide for a pick‑up of only a partial regime, so that there would not be a parity of operation between Commonwealth offenders and State offenders.

MR WILSON: Yes. In relation to the first aspect, the test is referrable to the provisions that are in fact picked up – what is called the severed provisions – and, in my submission, the other point that is important in relation to this when looking at the nature of the power in section 79 is the direct parallel in the Crimes (Appeal and Review) Act in section 77.

There are what has been described as the two pathways, being the inquiry under Division 4 and the reference to the Court of Criminal Appeal under Division 5; and the two entry points, the entry points being sections 77 and 79; and they are in very similar terms and 77(1)(a) and (b) are in almost identical terms to 79(1)(a) and (b), except that this power that the Court of Appeal found was a single indivisible power is to be exercised, in section 77, by two different decision‑makers.

GORDON J: I accept that is the construction, but I think the point we made was, well, it is indivisible because – and I put this to the Solicitor‑General – if you pick up part of it you have lost one pathway. In order words, it does away with one pathway, and that means there is not parity in relation to State and federal offences.

MR WILSON: Well, it is to the extent ‑ ‑ ‑

GORDON J: Sorry, I should just say that the Solicitor‑General’s submissions proceeded from the premise that 68 should be read against the background that there was to be parity.

MR WILSON: Yes.

GORDON J: So, you end up with the opposite result, on this analysis.

MR WILSON: Except that section 68 is couched in – includes the words “so far as they are applicable” and, in my submission, that also countenances that the whole legislative scheme may not be able to be picked up. In my submission, a completely different pathway – one pathway does not change the other, any more than a jury trial is changed by whether or not there is a trial by judge alone. They just cannot affect each other. If there is a trial by judge alone, there is no jury trial. If there is a jury trial, there is a jury trial. If a jury trial cannot be picked up – sorry, if a judge alone trial or a majority verdict cannot be picked up, it does not change the nature of the verdict or the trial that can go ahead.

In my submission, because these options are mutually exclusive – they are in the nature of remedies. In the civil sphere, it would be as if there was a right occasioned and there were some different remedies, and one was not available. Does that mean that that right was extinguished? Does it mean that the other remedy is not available at all? In this case – I know in civil cases sometimes one remedy can affect another; the amount of damages, or whatever, but in this case, there is just no way for either of the pathways to affect each other. They have no bearing on each other whatsoever. They are options open to a decision‑maker but picking up one of those powers does not change that power. It does not in any way change that power.

It is not like picking up the limitation period without the exceptions. It is not like picking up a power to sue the Crown without preconditions. It is not like picking up a certificate for costs without the ability to do anything with it. Here, in my submission, section 79(1)(b) and Division 5 work perfectly well and in no way are altered in their meaning whether section 79(1)(a) is picked up or not.

Unless I can be of any further assistance, those are my submissions.

GAGELER J: Thank you. Mr Hill.

MR HILL: Your Honours, could I just check whether your Honours have received our oral outline?

GAGELER J: Yes, we have.

MR HILL: It might be useful, if you have a printout, to have it ready to hand, if I might ask that indulgence. What your Honours will see in our oral outline – we have tried to summarise where we are going in paragraph 2, and what your Honours will see is that there is not an entry for question 1. And we have said something about that in writing in paragraphs 6 to 8, and if it would assist the Court, we have thought about it over lunch, and I might finish with some short submissions, but if your Honours are more inclined to receive a considered submission from the different parties, then I will not share Doctor Stellios’ lunchtime thoughts, because that is as far as we have got. So, I will see how we are going at the end.

What we are proposing to do is focus on questions 2 and 3. Your Honours see that with question 2 we submit that section 79(1)(b) of the New South Wales Act does not apply of its own force in relation to federal offences. And we have got two points there: one is the offences versus courts point, and the second is the idea that those two words, “conviction” and “sentence”, would have a consistent meaning throughout Part 7.

Ultimately, I think that point reduces to the same divisibility point that comes up in the Judiciary Act, so I will explain that later. On the Judiciary Act, we do say “appeal”, as it appears in section 68(1) of the Judiciary Act, is limited to a judicial proceeding. So, then, the question would be whether administrative steps are respecting such a proceeding and, we say, the section 79(1) proceeding, taken as a whole, does not respect – is not respecting such a judicial proceeding, and that is because of the divisibility point in the second dot point of our paragraph 2(b); that paragraph (a) is not applicable because these references to New South Wales executive officers cannot be translated to have any sensible operation to Commonwealth offences.

We will be addressing the Commonwealth submission that all that needs to happen is change the Governor to Governor‑General. We submit that that would not work and then, we say, that section 79(1)(b) cannot be picked up separately. So, I was proposing to deal with that divisibility point right at the end and spend some time on it. Even though it comes up earlier in the argument, I am proposing to postpone that big issue right to the end, if that is suitable for the Court.

Starting with the proper construction of the New South Wales Act, as your Honours know, this is the point on which the Court below was divided. Justice Leeming said sections 78 and 79 could apply of their own force; the other members of the Court said they could not. Essentially, we adopt the reasoning of the majority justices on this point. So, as your Honours are well aware, there is agreement on all sides that there must be some part of the New South Wales Act that provides the connection with New South Wales. The question is whether that connecting element is the polity that enacted the relevant offence or whether it is sufficient that the orders of convictions are made by New South Wales’ courts.

This is, basically, a question of construction, although, as your Honours will see at the end of our submissions, we do say constitutional considerations can intrude and support the construction that we put. But we, essentially, say it is a matter of construction and we agree with his Honour Justice Leeming that it turns on the proper hinge of the provision. It is just that we take a different view of what that hinge is.

So, looking to our outline, we have made a point in paragraph 3 of that outline – and I now regret that we filed our oral outline before we heard the oral argument this morning, because your Honour Justice Gageler put the point to the learned Solicitor much better than we have put it here. Your Honour said it is a question of nexus with a polity, not just a territorial nexus. And that is our submission; that the relevant question in deciding on what section 79 of the New South Wales Act operates is to think about not only territorial considerations but connection with the polity.

That is why, we say – this putting it crudely and I hope I will be able to refine it as we go along; this is where we are trying to go – we say, a State Act is construed not only against the presumption that it operates with a territorial connection to things in New South Wales, but in a federation it also takes account of the broad division of responsibilities as between the different levels of government. So, that is not a geographical point; that is a connection with the polity. A point that I will be coming back to is that ‑ ‑ ‑

GORDON J: Is that any different, though, from your third argument that it is beyond the legislative power of the State?

MR HILL: They are certainly connected, your Honour. What we say is you do not need to ‑ ‑ ‑

GORDON J: Are they not the flipside of the same proposition, though?

MR HILL: I am sorry. Say again, your Honour?

GORDON J: Is it not just the flipside of the same proposition?

MR HILL: I am sure it is, that we say because of questions of absence of legislative power, that is why you have this presumption that a – so our short proposition is this: the Commonwealth enacts offences; the Commonwealth Government decides whether a person having been duly convicted and exhausted all their appeal rights, whether that punishment should be dispensed in any way. We say that just follows axiomatically from the nature of the dispensation power. It is an exercise of executive power by the polity which enacted the offence. So that is why we say – we take a little bit of a run‑up in the dot point to our paragraph 3. We have referred to Jacobsen v Rogers where it quotes Justice Dixon in the Foreman Case saying:

“A federal system is necessarily a dual system. In a dual political system you do not expect to find either government legislating for the other.”

We say it is in the same sort of vicinity as that, that in a federal system when a Commonwealth enacts Commonwealth offences and the State enacts State offences you would expect, normally, that State legislation dealing with offences, and certainly dealing with pardoning and exercises of clemency, would be dealing with State offences because that is the government that belongs to those matters.

So, we start with section 12(1)(b) of the Interpretation Act 1987 (NSW), turning the page to paragraph 4 of our outline. We do say that Solomons is much more authoritative than the learned Solicitor would have you believe, and so we say it is a statement – albeit without it being a point of contest, but it is a statement of a well‑known proposition that should be accepted.

If I could go briefly to Solomons, it is under tab 32 of the authorities, it is [2002] HCA 47; (2002) 211 CLR 119. And if I could just take your Honours back to paragraph 9, just to spend a little bit longer on this paragraph, what your Honours will see is that their Honours said:

There is a “general rule of construction” which would confine the State enactment to State proceedings and officers.

Citing Seaegg v The King at page 255 as well as Owens [No 2]. In my submission, this statement – I think my learned friend, the Solicitor, managed to say this general rule of construction was nothing of the sort. There was no generality of the State at all. But, in my submission, their Honours meant what they said, that there is a general rule of construction which would confine a State enactment to State proceedings and officers.

What your Honours will see is that the general rule is about State proceedings. It is not in terms about State offences. It is true that Solomons was – the relevant Act did refer specifically to offences, but the general rule of construction which reflects what was said in Seaegg is State proceedings, a much broader concept. Your Honours, if I could just remind your Honours that in paragraph 37, without going to it, Justice McHugh said much the same thing. The relevance of this is, of course, that this statement about confining a:

State enactment to State proceedings –

is not a question of geographical connection but a question of connection with the polity because, of course, we are talking about a person charged with a Commonwealth offence in a State court. My learned friend, the Commonwealth Solicitor, of course points out, correctly, that ultimately the reason that a provision such as section 2 of the Costs Act could not apply of its own force to Commonwealth offences was there was whole aspects of the scheme drawing on the State treasury, and it is arguably – it is questioning whether that could validly apply of its own force in relation to a Commonwealth offence. But, in my submission, this statement in paragraph 9 is quite unaffected by the other aspects of the statutory scheme in Solomons. It is a statement supported by Seaegg to that effect.

If I could just pause here. The Commonwealth says that this submission that State legislation is presumed to apply to State offences cannot be right because it does not take account of common law offences. Now, the answer to that is that when you have a shorthand for State laws apply to State offences, what you are really saying is State laws are presumed not to apply in respect of offences enacted by another polity. So they are, relevantly then, presumed not to concern offences against Commonwealth law, but, equally, they would be presumed not to apply to offences enacted by another State. It is just that usually you do not have the same geographic intersection with laws of different States.

So, once the presumption is understood that way, there is no disconformity with saying that it is presumed – a presumption that State legislation applies to matters in and of the State means criminal offences committed in that State that are either contrary to State criminal offences or are common law offences, and there is no violence to the language to finesse the presumption in that way. So, that is what we say Solomons is saying. The particular thing is that State proceedings not Commonwealth proceedings – and if I could support that by taking your Honours back to Seaegg v The King, which is under tab 31.

If I could just ask your Honours to go straight to page 255. Your Honours will remember this is the passage quoted by the joint judgment in Solomons – is at page 255. Starting from the top of the page, your Honours will see how their Honours set out the effect of section 5 of the Criminal Appeal Act of New South Wales, and about eight lines down their Honours say this:

We do not think that the State enactment by these general words –

So, general words such as indictment and conviction:

intends to refer to prosecutions or indictment preferred by the law officers of the Commonwealth for offences against the laws of the Commonwealth.

Then they do refer for the next sentence about the special provisions in the Judiciary Act, and I skip over that. The part that I rely on is close to the middle of the page:

Apart from the general rule of construction requiring an interpretation which would restrain the general words so that they would not apply to Federal proceedings so regulated and would confine the State enactment to State proceedings –

So, the reason their Honours start the sentence “apart from” is that there is a specific reference – that their Honours go on to say there are “specific references to the Attorney‑General of the State”. But, in my submission, in that sentence is a statement that there is a general rule of construction requiring an interpretation which restrains general words so they do not apply to federal proceedings and only apply to State. So that is an example where saying a State Act is confined to State proceedings, the real burden of it is to say it does not – it is presumed not to apply to federal proceedings.

GLEESON J: The Solicitor‑General seemed to suggest that the approach to construction in this case was out of date when reference is made to R v Gee.

MR HILL: Yes. May I come to that very, very soon. I am grateful to your Honour. If I could just – while I have Seaegg still open, do your Honours see on page 256, about eight lines up from the bottom, there is a reference to:

Secs. 72 to 77 of the Judiciary Act are headed “Appeal,” and contain a code of procedure –

Do your Honours see that? If I could just ask your Honours just to see that reference to “code of procedure” because the answer to Justice Gleeson’s question is the part of Seaegg that has been overruled or been decried in Gee’s Case is that aspect of Seaegg to say certain provisions of the Judiciary Act provided a code of procedure. The part that I have taken your Honours to at page 255 is still good law, remembering that Gee was decided in 2003 and only a year before both Justices McHugh and Gummow – who were the judges in Gee that I will come to – they both cited Seaegg at 255 for the proposition I am putting to your Honours.

So, in my submission, the part of Seaegg that I rely on has not been affected by Gee at all and, if it is convenient, could I take your Honours to Gee’s Case, which is in tab 26. The part that I think your Honour have been referred to is paragraph 61 and in that statement Justices McHugh and Gummow say:

In construing the provisions of the Judiciary Act as it now stands, effect no longer should be given to those statements in Seaegg.

But the key is, well, what are those statements, and those statements are the statement that are set out in paragraph 58. Without reading them out, your Honours can see that they are talking about the interpretative effect that should be given to the fact that section 72 to 77 of the Judiciary Act were heard at appeal and they were called a code of procedure, and they contain special provisions.

GORDON J: Do you say they are the ones that led to the amendment?

MR HILL: Yes, exactly, which is what their Honours say in paragraph 59. They say, following the result in Seaegg, the Act is amended to explicitly say, stay provision for appeals are picked up. But that does not decry the usual presumption there when you see a reference to proceedings in a State Act. It would mean State proceedings, because, of course, the effect of Judiciary Act is to pick up State laws and apply them as Commonwealth laws.

I understood the Solicitor to say that Gee also overcomes the interpretation of “appeal” in Seaegg, and, in my submission, I would not accept that submission as put. What I say is, of course, the Act was amended following Seaegg explicitly to confer a right of appeal under the Judiciary Act. It does not say anything about what the meaning of appeal is, which is going to be a point that is going to be important in answering question 3 below.

If I could just ask your Honours to note something. In our outline, back in paragraph 3, there is a New South Wales case, Lowe [2003] NSWCCA 150; (2003) 57 NSWLR 102. Those paragraphs 42 and 45 emphasise the point that your Honour made – Justice Gageler – that, in and of, looks at not just geographical connections but nexuses the polity. So, when a New South Wales proceeding says in that case – sorry, the question was: is it an offence against New South Wales law to take steps in New South Wales to interfere with committal proceedings in Victoria?

Justice Handley found – this is paragraph 34, just for reference – the New South Wales offence only applied to judicial proceedings in and of New South Wales because of section 12 of the Interpretation Act, and then said, in paragraph 42, a federal court or court of another State may sit in New South Wales, but is not of New South Wales; and in paragraph 45, a Victorian court is not in and of New South Wales. So, particularly paragraph 42 is distinguishing between mere notions of territoriality and focussing on questions of nexus with the polity.

So far, I have put our arguments in terms of the Interpretation Act in 12(1)(b) and said the reference to “in and of” imports a nexus with a polity, and that there is a presumption spelt out in Seaegg and then Solomons that a State Act would normally be confined to State proceedings. Just to, as amicus, make sure I am assisting the Court to the fullest extent, may I just make it perfectly clear that it is just a presumption – and so sometimes this statutory context means that a reference in the New South Wales Act to offences includes Commonwealth offences, and we have come across a case – and I will give your Honours this reference just so we are not taken to be making any sort of absolute submission.

There is a case called D151 v NSW Crime Commission [2017] NSWCA 143; (2017) 94 NSWLR 738, and the relevance of it is that it prevented or limited the ability of the Commission to question the person about an offence if they had been charged. The courts rightly said, well, there is a presumption that offence means New South Wales offence, but here the purposes of the Act are such that it should be extended to both State and Commonwealth offences. We have been talking about section 12(1).

I do want to talk about the common law presumptions and the recent decision of your Honours in the BHP Group case, because we say that that decision assists us as well. If I could take your Honours back to it, this is BHP Group under tab 36. We emphasise the point in paragraph 23, where your Honours, the Chief Justice and Justice Gageler said that it is not just about a “presumption against extraterritorial operation”:

the presumption of the common law . . . is more accurately labelled a “presumption in favour of international comity”.

JAGOT J: Sorry, which page is it? The paragraph numbers are just cut off.

MR HILL: I am sorry. I think it should be page 6 of the judgment. I am sorry, I printed of a copy of this before we got the joint book of authorities. It should be at the bottom. There is a heading, “The common law presumption”.

JAGOT J: Yes, yes.

MR HILL: Thank you, your Honour. It is over the next page – the top of page 7 is where your Honours say it:

is more accurately labelled a “presumption in favour of international comity”.

The reason I emphasise that is to say again – that is obviously a case about territorial connection and connection with overseas countries, but that statement by your Honours shows that it is not just about pure territoriality but the relationships between governments, and that is why we say in a federation, similar considerations arise. One thing I do need to acknowledge is that at paragraph 35, your Honours say this:

Section 21(1)(b) –

which is equivalent to 12(1)(b) of the New South Wales Act:

says nothing in terms about how statutory references to “persons” are to be understood.

Your Honours disapprove Solomons at paragraph 37, which is one of the passages from Solomons that I rely on, and I thought I should make submissions on why nothing what your Honours say in this case cuts across my submissions as to what Solomons held.

My submission is that your Honours are pointing out that the application of 12(1)(b) is not a mechanical exercise where you take every word in the statute and you say each word must be in and of New South Wales, and that was one way that his Honour’s reasons in Solomons could be understood. So, you were decrying such a mechanical approach. We would embrace, it is necessary to look at the statute, work out what the hinge is and then work out the appropriate territorial and other link that that hinge would have with the State. Because what we address is now something in the joint judgment because – if I could just go back to the joint judgment at paragraph 59 – that is where your Honours say, you need to identify the hinge, and we embrace that.

Then your Honours pointed out, at paragraph 71 – your Honours say, towards the bottom of that – so this is on page 28 of the report. Your Honours said at the bottom of that page:

it is important not to conflate the question of statutory construction with that of constitutional validity: “the fact that a provision in a particular form would have been within the competence of the legislature does not provide any positive assistance towards the true construction of a provision expressed in perfectly general terms –

We get two things from that paragraph. The first is that, of course BPH Group was a case of that territorial connection, so the fact that your Honours say, the fact that the defendant is in Australia provides a sufficient territorial connection, you do not need to go beyond that, is a remark directed towards a situation in that case. It does not assist us when the question of connection is about nexus with a polity, not territorial connection.

This last statement I have just taken the Court to – the importance of this, in my submission, is that, merely because a theoretical New South Wales Act could operate by reference to all decisions of New South Wales courts, and that would provide a sufficient connection, does not answer, well, what does this Act operate by reference to. Because we say this Act operates by reference to which polity enacted the offence.

That is the point that I will be coming to very soon, after I have taken your Honours to one last case on the common law presumption. This is a New South Wales case called DRJ (No 2), which is under tab 37. If I could just take your Honours to two passages in the judgment of Justice Leeming. The first is at paragraph 122. The reason for taking your Honours to this paragraph is to draw a link between what your Honours, the Chief Justice and Justice Gageler said in the BHP Group about this scope of the presumption reflecting international comity and its link to Solomons and Seaegg. Do your Honours see in paragraph 122, about halfway through the paragraph, there is the statement:

“it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or State”.

That is very similar, if not identical, to what your Honour is referring to in BHP Group. Then, his Honour considered that that rule of construction has been applied and his Honour refers to Seaegg at 255 and Solomons at 9 and 37.

So, that is why I make the submission that the presumption in Seaegg and Solomons is not just about territorial connection, it is about connection with a polity comparable to this idea of the jurisdiction properly belonging to some other polity within the federation to adapt that quote. The other statement ‑ ‑ ‑

EDELMAN J: One has to be careful, though, with a submission like that, because otherwise you can end up answering the very question that you are purporting to ask, just by the way that the question is framed. That is why the hinge becomes very important. In other words, if you say, this is really just about which polity enacts the legislation, you have already answered the question. If one puts it in different terms and says, what it is really concerned with, with the hinge rather than being about a polity, it might be concerned with a particular type of offence or an offence within the territory, then you have answered the question in a different way.

MR HILL: I understand, your Honour, and I fully accept that it is necessary not to engage in a simple labelling as you find the polity. What I will attempt to do very soon is explain why we say this particular Act – the hinge is which polity enacted the offence. That is a statement of conclusion which I need to justify. So, I accept what your Honour puts to me.

GORDON J: Is your proposition any broader than it is not mechanistic, and one has to look to see what the statute is directed at – both in terms of text and context – and then ask the question?

MR HILL: I submit that we go further than that because clearly, ultimately, it is necessary to do all those things. We do submit there is a general rule of construction which can, of course, be overcome by the particular statutory context, that a reference to “proceedings” in a State Act will be State proceedings and not federal proceedings. The only other paragraph I wanted to refer to is a sentence at the end of paragraph 138.

EDELMAN J: Just before you do, just in response to that answer ‑ ‑ ‑

MR HILL: Yes.

EDELMAN J: ‑ ‑ ‑ I am just wondering how much the presumption really helps at all because, in one sense, you might say – as the Solicitor‑General submitted – that this legislation is being enacted against the background of section 68. So, you could quite comfortably start with almost the opposite presumption. So, a presumption that in a universe where the goal is to try to achieve a sort of seamless application of procedures in relation to State and federal offences, one does not concern oneself with which polity had enacted the offence.

GORDON J: Whose goal would that be? Would that be part of the State’s goal?

MR HILL: So, taking those questions in turn, we actually say that the object of section 68 is not as broad as the Solicitor says. So, a large part of our submission relies on the federal structure established by section 68, to say this is how far it travels, and no further and, thereafter, matters of clemency and dispensation with duly‑reported convictions must be a matter for the Commonwealth to deal with. So, I will be coming to that, but I understand exactly what your Honour puts to me.

GORDON J: I think the problem is – to put it back to where we started – there are sort of three ways home here for you.

MR HILL: Yes.

GORDON J: You start at this presumption question, you then have the construction question, and then you have the power question.

MR HILL: Yes.

GORDON J: And it may very well be that they are interconnected and interlinked and, in a sense, influence each other in the way in which you look at all three of them. In other words, one can start from the question that one looks the legislative power of the Commonwealth and then one looks at the legislative power of the State and said, well, I do not need the presumption.

MR HILL: Yes.

GORDON J: So, in a sense, the answers you have just given to both Justice Edelman and Justice Gleeson reflect the interconnectedness of all three streams of your argument on this question.

MR HILL: I accept and adopt, in fact, how all the considerations are connected. I do submit the presumption has some work to do, and I also accept that it cannot be a substitute for analysing this statutory scheme, which I will be doing very shortly. If your Honours still have that case open, it is just to adopt what his Honour Justice Leeming says at the end of paragraph 138, because his Honour says there:

Section 12 of the Interpretation Act 1987 (NSW) does not produce the result that legislation is to be given a legal meaning such that is applies to the maximal extent of extraterritorial competence.

Which is the same point that your Honours were making in BHP at paragraph 71. The reason I have mentioned that is that it is put against us, all you need is a connection – having State law limited to State courts provides a sufficient connection to New South Wales, why do you need to go any further? And the answer is because you need to find the right connection to New South Wales, not just the one that gives it the maximal field of operation.

Now, what we say – and just picking up what your Honour Justice Gordon has put to me – is that all these things are linked. We started with Solomons and Seaegg, saying, normally you see proceedings, you think it probably means State proceedings, but another way – certainly another important factor is, since – I think the Punishment of Offences Act is a 1901 Act. So, the Judiciary Act is a 1903 Act. So, since at least 1903, this federal structure has been that the Commonwealth confers federal jurisdiction on State courts to try Commonwealth criminal offences, and it picks up other laws that are necessary to make that exercise of federal jurisdiction effective. Now, a key matter is: what is the end point for section 68? So, I am going to come back to this when I talk about section 68 of the Judiciary Act, but could I say this. Our submission will be section 68 picks up laws before a person is charged – clearly, that is what it says; it says arrest and charging ‑ ‑ ‑

GORDON J: “Arrest”, “custody” and “bail”.

MR HILL: Exactly. And we say, yes, to that extent it applies beyond laws that are applied by courts, but the reason is it picks up these laws to enable the effective exercise of jurisdiction by courts. And so that means, we say – and I will come back to this – once section 68 – section 68 ceases operation at the point at which the courts give their decision, any appeal rights are exhausted, and that is when section 68, its field of operation, ceases.

Now, it is true – and I will have to come to this as well – it has been assumed on all sides that if you do have a referral under Division 5 of the New South Wales Act, particularly section 86, to be treated as an appeal, that proceeding involves an exercise of judicial power and, therefore, an exercise of federal judicial power picked up by the Judiciary Act. As I will come to, there is actually case law suggesting that that is the correct analysis.

But, just for the moment, we are talking about what is the hinge of sections 78 and 79, and my submission is the hinge is offences for which the State has responsibility for dispensation. I say that is consistent with the scheme of section 68 of the Judiciary Act where the power to hear and determine Commonwealth criminal offences is conferred by Commonwealth law to the exclusion of State law. So, for more than 100 years, State laws have not applied of their own force to the hearing and determination of Commonwealth criminal offences, and that is a background matter which informs what a State law of this sort would operate on.

Now, I need to deal with Lodhi at some point, and it seemed to me that it is as convenient to deal with it now as anywhere. As your Honours have put to me, it is key to look at each statutory context to work out the hinge of the law and work out its connection with the relevant polity. As your Honours know, Lodhi was a case where there was an application for a court to consent to having the sheriff investigate a matter going to a juror’s eligibility to sit as a juror. All we can say is that in this area, there two areas of exclusive legislative power that butt up against each other.

On the one hand, the State establishes courts and the Commonwealth when it confers federal jurisdiction on those courts takes those courts as they find them. In my submission, one of the institutions created by the State, which is part of the court on which federal jurisdiction is conferred, is the jury. So, of course, that is subject to the requirement of section 80 of the Constitution, but for the most part when the Commonwealth enacts legislation – such as section 68 – it is operating on a court and a jury established by and in accordance with State law.

So, when one thinks of what is the hinge for a State law investigating the eligibility of a juror, in my submission, it is readily defensible to say that the hinge there is a matter about the internal workings of an institution established under State law. It is true that institution, the jury, performs functions in federal cases, but this particular investigation was not, at that stage at least, going to its performance of federal cases, and that contrasts with the situation in Rizeq.

What your Honours remember in Rizeq, there was a trial for a State criminal offence that was in federal jurisdiction because the accused was an interstate resident. The court relied on a Western Australian provision which allowed a guilty verdict of 11 out of 12 jurors to stand. Your Honours said at paragraph –I will pull up Rizeq. Rizeq is tab 29. There are two paragraphs where this point is addressed. The first is at paragraph 23 in the judgment of the Chief Justice.

GORDON J: Did you say page 23 or paragraph 23?

MR HILL: Paragraph 23, your Honours. This is, in my submission, a very neat encapsulation of why a law such as majority verdict law is the sort of law that regulates the exercise of jurisdiction which then has to be picked up in federal cases by federal law. Her Honour the Chief Justice said section 114 of the Criminal Procedure Act:

regulates the manner in which the matter of a person’s guilt or innocence is to be adjudicated and for that reason is directed to State courts . . . Such laws could not apply to State courts exercising federal jurisdiction unless s 79 operated upon them and picked them up.

In paragraph 104, the joint judgment makes the same point. Your Honours say at paragraph 104:

Section 114(2) of the Criminal Procedure Act, governing what is to be taken to be the verdict –

Your Honours say it could not apply directly of its own force to a matter in federal jurisdiction. It could only apply through section 79 of the Judiciary Act.

So, what we submit is the two cases of Rizeq and Lodhi show how the areas in which a State provision can operate of its own force – even when connected to a matter of federal jurisdiction – can require close attention to the relevant Act and what it is operating on and what the jury is doing at the time. So, similarly, here, what this requires is a close consideration of the rights and duties on which Part 7 operates. But, certainly, we submit that the fact that the decision was made in Lodhi a certain way tells us very little about the proper construction of Part 7 of the New South Wales Act.

GORDON J: It might do two things. It might tell us that Lodhi, unlike this provision on your argument, was not a State law affecting the exercise of federal jurisdiction by a State court because Lodhi was not looking at that aspect at all, whereas, as I understand it, it is at least argued on your power question that might be in play here. Second, Lodhi did not at any point – either at the preliminary step or otherwise – affect the charter that had been created because it did not, ultimately, at that point, affect the conviction.

MR HILL: Yes, exactly.

GORDON J: Whereas here, as I understand your argument, it is different.

MR HILL: Yes, exactly. The second point we put particularly. We say, once the charter has been established by a conviction by court order and all appeal rights exhausted, then the only way of departing from that charter is through the operation of Commonwealth law or State law could not affect that charter and, as part of that, we say, not even to establish some sort of gateway. I will come back to that gateway soon.

What I wanted to do now, your Honours, is to make some submissions. If your Honours are following along in the outline – I think we are in paragraph 5 – is to make some submissions about the nature of Part 7. The reasons for these submissions is to try to make good the submission I started with. So, your Honour, Justice Edelman, said to me, it cannot just be a matter of assertion – I cannot just say, Commonwealth offences – it is all connected at polity – put your pens down. So, what I am going to try to do with the next few submissions is to try to explain why, in our submission, Part 7 is connected with New South Wales offences and not Commonwealth offences.

The first point we make is that Part 7, generally – including section 79 – it operates after conviction and what we say is, therefore, the exercise – certainly the initial exercise – of federal judicial power has finished. We say, any action from that point is a matter for the Executive. So, in the outline, we have referred to Knight’s Case – and I do not need to take the Court to it. That was talking about rights of parole. At paragraph 29 of Knight – which is Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306, the Court said laws dealing with parole do not even intersect with the exercise of judicial power – judicial power is finished. Parole is now an exercise of executive power and, we say, the same is true of Part 7.

GAGELER J: You say the same is true of Division 5 of Part 7. I thought you said something different.

EDELMAN J: Especially in relation to section 86.

MR HILL: What we say is this, your Honours. Once the section 86 proceeding is initiated – if it can be done validly – certainly, that is an exercise of federal judicial power, but the initial exercise of federal judicial power has been completed and one can only get to the second exercise of judicial power through an exercise of executive power, is how we put it.

So, there is an exercise of judicial power if one validly gets to the section 86 proceeding, but before you get there, there has to be an exercise of executive power to make a decision whether to allow a person to make a further challenge.

EDELMAN J: That may be in similar terms to the point that Justice Gordon made to you – or made at the start – about the approach to the decision in Mallard, which is to say that, well, it may be an exercise of judicial power, but it is judicial power that is sort of mimicking the prerogative power; it is taking an exercise of the prerogative and dressing it up and turning it into judicial power at the end of an executive process.

MR HILL: That is exactly our submission. Can I say – I will deal with it now to the extent I am able to deal with it – Mallard. What your Honours understand is that Mallard is an exercise of the power in section 140 of the Western Australian Sentencing Act.

If your Honours have a hardcopy of our outline, what we have tried to do – if your Honours go to the last page – there should be a fourth page, and there is a table. Unfortunately, to fit it on a single page, we had to use small font, so I hope that your Honours – looking at this very youthful Bench, I am sure there will not be any difficulty in reading this small handwriting. What we would invite your Honours to look at is there is a fairly common form of proceeding – and your Honours see Western Australia – there is section 140. Talks about:

‘A petition for the exercise of the Royal Prerogative . . . may be referred by the Attorney General to the Court of Appeal either —

(a) for the whole case to be heard and determined . . . or

(b) for an opinion –

So, clearly Mallard is an exercise that arose in response to a petition for the exercise of the prerogative of mercy. If your Honours look at this, what we say is that Victoria’s provision is very similar – that is section 327 of the Criminal Procedure Act. Section 672A of the Queensland Act is very similar. Basically, all the States and Territories in Australia, except for New South Wales and the ACT, have kept with that provision that is very similar to section 26 of 1912 Appeal Act of New South Wales – which is very obviously connected to – a petition for mercy goes to the Governor and then there is a decision of what to do with it, which includes a facility to refer it to a court to be dealt with as if on appeal.

Our stumbling point with the way it has been put is that we say if it is referred to a court to be dealt with as if on appeal, the court is exercising judicial power proper. It is true that the occasion for its exercise was something connected with a prerogative and in our submission, must be done by the executive government of the polity which created the offence for which dispensation is sought. But once it is in the court, we say it is an exercise of judicial power proper because, we say, otherwise it would not have been possible in Mallard to appeal from that decision to this Court and, in fact, I am afraid that my thinking on this stopped when I read Ratten’s Case [1974] HCA 35; (1974) 131 CLR 510 at page 513, when Chief Justice Barwick said if there is a referral to the Court, the Court exercises judicial power and their decision can be appealed to this Court.

I think as early as 1937 in a case called Davies and Cody v King [1937] HCA 27; 57 CLR 170 a matter referred to a court came up to this Court on special leave, which I thought indicated that it was an exercise in judicial power proper. But what we do embrace is the statement in paragraph 6 of Mallard’s Case [2005] HCA 68; (2005) 224 CLR 125, where their Honours say the provision of section 140 is “a substitute for, and an alternative to, the invocation” of the Crown prerogative.

We say that is its function, so, when one is thinking what does a law of this sort apply to, in my submission, the answer is that it applies to the offences that the Crown prerogative would have applied to. You do not petition a State Governor for dispensation from a Commonwealth offence, you petition the Governor-General. And so, given these provisions are a substitute for an alternative for a prerogative power of mercy, we say this field of operation is the same.

EDELMAN J: It is a little bit more than that, though. I mean, the Court does go on to say that:

inhibitory purpose and effect of the words “as if it were an appeal” are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires –

the proviso to be applied. So, if the nature of the proceeding as a substitute for the exercise of the prerogative, it is still shaped by the manner in which the prerogative or the core issues which would have arisen on the prerogative.

MR HILL: Yes, your Honour, I embrace that because that promotes, we say, our interpretation and our approach. The fact that even these later judicial proceedings are shaped by the prerogative strengthens the argument that they are proceedings to deal with the matter that that prerogative could have dealt with, which in New South Wales is New South Wales offences.

GORDON J: Or explains the proper construction of section 68 or informs or assists in the proper construction of 68 and its sphere of operation.

MR HILL: I embrace all those things, your, Honour yes.

GORDON J: That is why we are back to this interconnectedness. If you look at the sphere of operation and you ask yourself, what are you doing in relation to the prerogative, then you would say that the spheres are different.

MR HILL: Yes, exactly.

STEWARD J: Could I just ask, just by way of clarification, having regard to the way you characterise section 86 as judicial. Does that mean it could potentially be picked up by 68(2) if there was a valid pathway to it?

MR HILL: Yes, your Honour. We have accepted that in principle, if all this Act contained was 79(1)(b) and section 86, then, we say, it could be picked up by the Judiciary Act.

STEWARD J: Thank you.

GAGELER J: That is because section 86 would give rise to the conferral of like jurisdiction under section 68(2) ‑ ‑ ‑

MR HILL: Yes.

GAGELER J: Then, the course – you accept that section 79(1)(b), standing alone, could be characterised as a procedure for the hearing and determination of the appeal in the exercise of that like jurisdiction.

MR HILL: Our submission – sorry, your Honour – is it is an administrative proceeding. We say it is a procedure, laws respecting the procedure that an administrative step of that sort as a gateway to the future exercise of judicial power is incidental. It is not dissimilar to the nature of a special leave application to this Court. It not itself judicial, but it so closely connected with the later exercise of judicial power that it is validly conferred on a court.

JAGOT J: Could I just ask, if you accept that proposition, then does your argument all collapse to an issue of severability, then, because I had understood what you had previously said is that Part 7 of the CAR operates only after conviction; that is, conceptually after federal jurisdiction has been exhausted, and therefore all you have got left is the executive power, and in order to get to section 86, Division 5, which you accept is an exercise of judicial power in and of itself, but to get to that there needs to be an exercise of executive power under 79(1)(b), and that that step was not picked up by 68(1) too. That is how I understood you to be saying it. But, if you do accept that if it was just 79(1)(b) and 86 and that was it, you could get over that administrative step because it would be so closely related that it would be incidental to the judicial power.

MR HILL: Yes.

JAGOT J: Does that not then mean that your argument collapses to an alteration of meaning?

MR HILL: Your Honour, I only quibble with the word collapse. I prefer ‑ ‑ ‑

JAGOT J: I do not mean collapses. I mean ‑ ‑ ‑

MR HILL: I prefer to see my argument as winnowing away the irrelevant issues and directing the Court’s mind ‑ ‑ ‑

JAGOT J: But that means you are not saying in principle you can never get over that which happened to be right, you can never get over that administrative step. So, you are not hanging your hat on the fact that all appeal rights have been exhausted, that federal jurisdiction is exhausted, you are hanging your hat ultimately on that 79(1)(b) and 86 do not stand alone, that they are part of a much broader scheme and you cannot have a bit of it.

MR HILL: Yes, exactly.

JAGOT J: Okay.

MR HILL: So, just to explain ‑ ‑ ‑

GORDON J: Do you accept that?

JAGOT J: Is that what you are saying?

MR HILL: I am worried that I may have acceded too quickly to your Honour’s very persuasive comment to me.

JAGOT J: No, no, I thought you had said – and I understood what you said – that the step after federal jurisdiction is exhausted, all you have got left is this executive power and you cannot get over that – section 68 cannot get you over that hurdle or roadblock.

MR HILL: Yes.

JAGOT J: That I got, but then when you said you accepted what Justice Gageler put to you about 79(1)(b) and 86 if they stood alone, well, that to me, is inherently accepting that you can get over the executive roadblock.

MR HILL: I need to clarify my submissions, your Honour.

JAGOT J: Okay.

MR HILL: So far I have been talking about whether the New South Wales provisions could apply of their own force, and the main reason I say they cannot apply of their own force is because they are an exercise of executive power directed to dispensation from a conviction, and I say only the Commonwealth Executive can exercise any powers. So that is the relevance, and I say that section 68 of the Judiciary Act, I will be coming back to its sphere of operation. But I say consistently with that submission about the sphere of operation of State laws of their own force, section 68 of the Judiciary Act, it stops at the point of conviction and appeal rights being exhausted as well.

So that is why I say the field of operation of State laws dispensing with convictions matches the scope of when 68(2) of the Judiciary Act stops. But ultimately, your Honour, I think it is true to say that our submission comes down to there is something that would be possible, and the reason it is not possible is because the provisions are not severable or divisible.

GORDON J: I do not quite understand that so I am also confused. It seems to me that if you accept that the scope and sphere of operation of section 68 is as you have just described before you dealt with the collapse argument, then why does not that not carry over when one gets to whether or not you can do the picking‑up? I put this bluntly. We started off by asking what was the scope and sphere of 68 and you explained that it dealt with the exercise of judicial power consistent with providing a scheme which was matched – and I think you said you did not accept the Commonwealth’s submissions as to the breadth so much but you accepted the underlying idea was that there would not be a difference between State and federal offences in terms of the proceedings leading up to the trial of and then the appeals relating to those offences.

If that is the end point and one is now dealing with a prerogative which is an administrative executive power giving rise to its own scheme why does not the same idea about the scope of section 68 carry over to your picking up argument in the context where, as you properly point out, even consistent with Mallard, whether it is executive or whether it is administrative or judicial, we are dealing with a different subject matter, we are dealing with a prerogative. We are dealing with a provision which says it is as if it is an appeal under the Act.

MR HILL: Your Honour, the answer is that my first submission is focussing on the reach of section 68 in relation to the initial conviction, to say that the effect of section 68 on that conviction which then you seek dispensation from. That stops at the point of order of the Court and appeal exhausted.

GAGELER J: I am not sure why that is so. Would it not depend on the content of State law? State law provides for a second appeal – it would be picked up by section 68, would it not?

MR HILL: Going back to this useful table prepared by Dr Stellios, you are thinking of provisions such as, in this table, we noticed there was Part 6.4 of the Criminal Procedure Act (Vic) which is a second right of appeal to a court. Yes, when I say appeal rights exhausted, including any second appeal rights, what I am trying to distinguish is, if the initial go‑around in the courts and in the second appeals is finished, then the only thing a person has available to them is some form of the prerogative, the power of dispensation which, conferred on the Executive ‑ ‑ ‑

GAGELER J: Well, I am just not sure how useful that is as some global proposition, given that we are trying to understand the meaning and operation of Part 7 of the New South Wales Act.

MR HILL: Exactly. May I go, then, directly to Part 7?

GAGELER J: Yes.

EDELMAN J: Just before you do, do you accept, then, that in section 68(1) the word “proceedings” in (d) does not just mean judicial proceedings? Or that the words “hearing and determination of appeals” have a broader scope than “hearing and determination of appeals” in subsection (2)?

MR HILL: I am pretty sure my answer is no. I say that “proceedings” have a consistent meaning of judicial proceedings throughout.

EDELMAN J: Yes. And so, if that is the case, then how does section 68(1) apply to, in its terms, to the administrative procedure that would lead up to the second appeal?

MR HILL: Your Honour, I will be coming to the Judiciary Act but I will answer your Honour now, and then probably develop it a bit more because it is laws of a State or Territory respecting various matters and we say the word “respecting” in section 68(1) can do the same work as “with respect to” in section 77 of the Constitution to pick up incidental non‑judicial powers. So that is how we get there to say in principle section 68(1) could pick up an administrative gateway provision such as section 79 if it were possible to pick up the section 86 proceedings as an exercise of like jurisdiction under section 68(2) of the ‑ ‑ ‑

GAGELER J: So you would say all of paragraphs (a), (b), (c) and (d) of section 68(1) are things that are done in the exercise of judicial power, but that a gateway procedure, whether it is regarded as incidental to an exercise of judicial power or whether it is even characterised as an exercise of executive power, can still be respecting the procedure; it is the way into the procedure?

MR HILL: Certainly our submission is the word “respecting” in the chapeau to subsection (1) can include non‑judicial powers.

EDELMAN J: Well, particularly because it precedes arrests and so on.

MR HILL: Exactly. The only qualification – I am sorry to point out the obvious – with paragraph (b), it is “examination and commitment for trial”, which, of course, is an administrative power, sui generis. But apart from that, yes, exactly what we say is that. We say that the proper place to start – and I will be coming back to this with the Judiciary Act – the proper place to start is the conferral jurisdiction on subsection (2). It is section 77(3) jurisdiction ‑ the source of power for subsection(2) is, of course, 77(3), and then in incidental power.

GAGELER J: Mr Hill, it is our fault. We have taken you to your question 3; you were trying to complete your submissions on question 2.

MR HILL: I was hoping to, your Honours, and your Honour has rightly pointed out, I have been talking at too high a level of generality. So, could I attempt to say something about this particular statutory scheme? And by going to what the Court in this hearing has said about the nature of the statutory scheme and adopt that description of the scheme to support the proposition that is ultimately a substitute for, or connected with, executive power. That is where I am trying to go with this submission.

The first point is to actually go back to the decision of Justice Garling, and if I could ask the Court to go to core appeal book, page 9, and just point out a couple of things that his Honour said about the nature of the task under section 79 – it is Court book 9, paragraph 9. What your Honours sees at the start of that paragraph is the obvious that it is an “administrative task” because 79(4) expressly provides it is “not judicial proceedings.” But what I wanted to emphasise is the next statement:

this application is not another avenue of appeal. Rather, it is an administrative function engaged once the criminal justice system has run its course –

Now, the relevance of that is that if it were an appeal there might be a question whether a New South Wales Act is concerned with correcting error by all decisions of New South Wales courts. There might be that possible construction. The fact that this has a different focus supports our submission that it is concerned with New South Wales offences. Then in the second passage over the page at paragraph 12, the statement that:

“in almost every case, [arise] where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence”.

This again is just to make the submission that these provisions in Part 7 are not really about correcting error per se which is in the nature of appeal, but have a different focus, and what we adopt is what Justice Basten said about the scheme in paragraph 17 of his Honour’s reasons which are at core appeal book paragraph 44.

GORDON J: Do you rely upon what is in 13 and 14 before you go there where Justice Garling explains not only is the focus different, but the materials you look at are different?

MR HILL: Yes, that it might be that once you get to the section 86 proceedings it is looking pretty familiar as a court‑like proceeding, albeit not limited to the proceeding before the initial court. But all the steps before it are very different. I was going to take your Honours to what his Honour Justice Basten says about the scheme at paragraph 17. Your Honours will see that Justice Basten said:

Part 7 of the Appeal and Review Act gives statutory effect to two disparate, but related, aspects of executive power in relation to the administration of criminal justice. The first may be described as the prerogative of mercy . . . The second aspect is available to deal with apparent miscarriages of justice. It could be called upon –

before there are criminal appeals but – and his Honour says:

Although that statute reduced the significance of executive intervention, it did not entirely remove the occasions on which it could be invoked.

So that is merely to say this is an executive function, has a different focus from the traditional appeal rights. So that is why we say the hinge for such an exercise of executive function is the offences for which the New South Wales Executive could provide dispensation, because it is a substitute for the prerogative of mercy exercised by the New South Wales Government.

GAGELER J: Perhaps another way of putting the same submission, but focussing more particularly on the words of the Act, is that the conviction or sentence referred to in section 78 in respect of which the application could be made must be a conviction or sentence which could be dealt with under section 79 by either of the two routes, one of which ends in the prerogative of mercy being considered by the State Governor.

MR HILL: Yes. Yes, your Honour, so ‑ ‑ ‑

GAGELER J: That would be using the language consistently.

MR HILL: Yes. Thank you, your Honour, perhaps I should have started with that. If your Honours have the outline, we way in paragraph 6, we say “conviction” and “sentence” have a consistent meaning in Part 7. That is exactly the point your Honour puts to me, that these words are used throughout. There are certain Divisions, particularly the executive inquiry under Division 4 where it is accepted that that process cannot apply in relation to Commonwealth offences and as a matter of textual analysis it does not make sense that the same words, “conviction” or “sentence”, have a different scope of operation in one Division than in another. I adopt the way your Honour Justice Gageler has put it to me, which is to say “conviction” or “sentence” means something on which either of the paths could operate.

GAGELER J: One of which is the exercise, or non‑exercise, of the true prerogative of mercy.

MR HILL: Yes, exactly, your Honour. If I could then go to the New South Wales Act briefly, this is under tab 5. If I could just make this submission briefly without reading out any subsections, what your Honours see is that this policy that I took your Honours to from Justice Garling, that this is not a substitute for appeals, it happens after the appeal process, your Honours will see this in the grounds on which an application may be refused under section 79(3). Under subsection (3):

the Supreme Court may refuse to consider or otherwise deal with an application if –

(a) it appears that the matter –

(i) has been fully dealt with in the proceedings giving rise to the conviction . . .

. . .

(iii) has been the subject of a right of appeal . . . but no such appeal or application has been made, or

At (iv), an appeal that has been commenced has been withdrawn. Your Honours will notice, under subsection (3A), there is scope to defer consideration if the person can exercise an appeal right. So that emphasises what his Honour said, that this is not a substitute for an appeal – it is not a second go‑around, it is a different beast. One thing I wanted to point out – this is most important when it comes to divisibility – is that I am not sure that it has been made clear to your Honours that one of the outcomes of an executive inquiry under Division 4 is to have the matter referred back into the court.

GORDON J: I put that to the Solicitor this morning. One of the reasons why – I think I said to him, I thought that you had underplayed – or overplayed – depending which way you looked at it – the distinction between (a) and (b).

MR HILL: Yes.

GORDON J: Because it seems to me that it is a very complicated scheme. But one of the outcomes of (a) can be a judicial inquiry under (b) – a judicial inquiry not dissimilar to (b).

MR HILL: Yes. So, if your Honours have the Act, what your Honours will see is that at section 82(2) there is scope for the judicial officer who has finished the executive inquiry to refer the matter to the Court of Criminal Appeal for consideration of whether the conviction should be quashed or for review of the sentence – that is subsection (2). Then, what your Honours see is that that is a reference to section 84(4) – or, at least, subsection (4) refers to what proceedings that is. So, Division 5, actually ‑ ‑ ‑

GORDON J: I think you go to 88.

MR HILL: I am sorry, your Honour?

GORDON J: I think you go to 88 which says ‑ ‑ ‑

MR HILL: I am sorry, your Honour is quite right but – sorry, this is what I was thinking of. Your Honours see that it is dealt with as if it was made under section 84. So, in fact Division 5 is not a monolithic beast either. It is not as simple as saying that Division 5 is completely separate from inquiries because you can end up with an application to quash a conviction following a pardon under sections 84 and 85 and then only section 86 deals with dealing with a matter as if it was on appeal. So, we embrace the comment by your Honour Justice Gordon that this is a complicated scheme and the different Divisions are actually integrated, we say, quite closely in ways such as that. I will come back to the Act when I make submissions as to why it is not applicable with in the meaning of the Judiciary Act.

GAGELER J: Have we finished question 2?

MR HILL: I have one last submission, which will take, I hope, only a couple of minutes. This is to respond to something said by his Honour Justice Leeming, and I think embraced by my learned friends. Could I ask your Honours to turn up Justice Leeming’s judgment at paragraph 217 – it should be core appeal book, page 120. If your Honours see at the end of page 120, his Honour Justice Leeming says:

It seems quite artificial to exclude from the scope of a beneficial provision which is designed to prevent injustice to offenders –

federal offenders. Then, his Honour says at the end of that paragraph, given a person might be charged with both federal and State offences:

it would be capricious if s 78 were only available in respect of –

State offences. Our submission is – remembering that the question here is, does section 78 apply of its own force, because that is what his Honour has directed these remarks towards. So, what we say is, the fact something is a beneficial provision obviously cannot make it mean what a court wishes it had been enacted, and his Honour Justice McHugh said this with typical bluntness in Eastman [2003] HCA 28; (2003) 214 CLR 318 at paragraph 60. His Honour was talking about the phrase remedial, saying calling legislation “remedial”:

does not of course mean that courts can construe a statute so as to achieve a result which they think the legislature should have enacted –

We say the same principle applies to beneficial legislation. As to “capricious”, we say there is no way of achieving perfect matching between Commonwealth and State offences, because on his Honour’s approach, Division 4 does not apply to Commonwealth offences, but Division 5 does. We say that seems equally, in our submission, more capricious because at least our construction is based on a consistent understanding of what the Act operates on.

It operates on State offences because the State can only dispense with convictions for State offences. It cannot, or would be presumed not to attempting to dispense with Commonwealth offences. I have just realised that we have something to say about State legislative power, so that might
be something that I hope that I need not spend too long on that tomorrow, your Honours.

GAGELER J: Will we finish in half a day tomorrow, Mr Hill?

MR HILL: Definitely. I am confident your Honours will be able to make us all finish in half a day.

GAGELER J: We will then adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 9 NOVEMBER 2022