Express law No. 70

15 May 2008

High Court rejects challenge to validity of conferral
of Commonwealth administrative power on state officers

The High Court, in a 6:1 decision (Kirby J dissenting),
has rejected a challenge to the validity of state magistrates
determining under s 19 of the Extradition Act 1988 (Cth)
whether persons are 'eligible for surrender' to the requesting
country: O'Donoghue v Ireland; Zentai
v Hungary; Williams v United States of America [2008]
HCA 14 (23 April 2008).

The constitutional issue before the High Court concerned
whether the Commonwealth and a state could agree at the executive level
for the holder of a state statutory office, such as a magistrate,
to perform administrative functions under a Commonwealth
law or whether conferral by the Commonwealth of such a
function on a state magistrate required legislative approval
of the state. The appellants had argued that the administrative
function under s 19 of the Extradition Act was imposed
on state magistrates as a duty and that it was an
implication from the federal structure of the Constitution
that a Commonwealth law could not impose a duty on
holders of state statutory offices (such as magistrates)
without the state giving legislative (rather than
executive) approval.

The case is significant for federal–state relations
as there are a wide range of Commonwealth administrative
functions–beyond those under the Extradition Act–which
are performed by state officers.

The High Court rejected the challenge to validity on the
basis that s 19 of the Extradition Act did not impose a
duty but conferred a power. The Court therefore did not
need to decide whether the constitutional limitation asserted
by the appellants, relating to the imposition of duties
by Commonwealth laws, should be accepted.

However, the underlying premise of the majority judgments
is that there is no constitutional limitation precluding
the conferral by the Commonwealth of, at least, administrative
powers on state officers in the absence of state legislative
consent. This removes a potential threat to those existing
federal–state arrangements under which administrative
powers are exercised by state officers under Commonwealth


O'Donoghue v Ireland and Zentai v Hungary involved
determination by WA magistrates as to whether the appellants
were 'eligible for surrender' under s 19 of the Extradition
Act, whereas Williams v United States of America concerned
performance of this function by NSW magistrates. In accordance
with s 46 of the Extradition Act, arrangements had been
made between the Governor-General and the Governors of
WA and NSW respectively for magistrates in those states
to perform functions under the Extradition Act.

In each matter the Full Federal Court had held that there
was state legislative approval for the performance of the
functions by WA magistrates (under s 6 of the Magistrates
Court Act 2004 (WA)) and by NSW magistrates (under
s 23 of the Local Courts Act 1982 (NSW)), so the
constitutional issue did not need to be considered.

The three matters were heard together by the High Court
on 5 and 6 December 2007.

The High Court

The main arguments put by the appellants to the High Court
(see [13]) were:

  1. It is an implication from the federal structure of
    the Constitution (reflected in the Melbourne Corporation
    doctrine) that the Commonwealth Parliament cannot impose
    an administrative duty on the holder of a state statutory office
    without state legislative approval. (The Melbourne
    Corporation doctrine prevents the Commonwealth from enacting
    laws that in their 'substance and operation' constitute
    'in a significant manner, a curtailment or interference
    with the exercise of State constitutional power': Austin
    v Commonwealth (2003) 215 CLR 185 at 246 [115], 265
    [168] (Gaudron, Gummow and Hayne JJ).)
  2. Section 19 of the Extradition Act imposes an administrative
    duty on magistrates as holders of state statutory offices.
  3. The imposition of that duty is not approved by any
    legislation of the parliaments of WA or NSW.
  4. A member of the state executive, such as the Governor,
    has no power under a state constitution to alter or add
    to the functions of an office such as that of a magistrate
    created by state legislation.

Gummow, Hayne, Heydon, Crennan and Kiefel JJ delivered
a joint judgment dismissing each of the appeals. In a separate
judgment, Gleeson CJ also dismissed the appeals.

The joint judgment

Unnecessary to decide Melbourne Corporation and state
legislative approval questions

From a constitutional perspective, the joint judgment's
key finding (at [57]) was that it was unnecessary to decide
whether the Melbourne Corporation doctrine prevents a Commonwealth
law imposing an administrative duty on the holder
of a state statutory office without state legislative approval.
This was because, as the Commonwealth submitted, s 19 of
the Extradition Act merely confers an administrative power
rather than imposing a duty on state magistrates to determine
eligibility for surrender for extradition purposes (see
also [47], [68], [79]). For the same reason it was not
necessary to decide whether WA and NSW legislation provided
legislative consent to the performance of functions under
the Extradition Act by state magistrates (at [78]).

Extradition Act confers power rather than imposes duty
on state magistrates

The joint judgment noted (at [40]) that it was settled
by authority, including Pasini v United Mexican States (2002)
209 CLR 246 and Vasiljkovic v The Commonwealth (2006)
227 CLR 614, that the determination by state magistrates
under s 19(1) of the Extradition Act of eligibility to
surrender 'involves the exercise of administrative functions
and not the exercise of the judicial power of the Commonwealth'.

The joint judgment then addressed the appellants' argument
that s 19(1) of the Extradition Act imposed an administrative
duty on state magistrates. As explained by the joint judgment
(at [39]), s 19(1) provides that, where the preceding steps
in the extradition process have been taken and the state
magistrate considers there has been a reasonable time to
prepare, the magistrate 'shall conduct proceedings
to determine whether the person is eligible for surrender
in relation to the extradition offence' (emphasis added).

The appellants conceded that particular heads of power
under s 51 of the Constitution (such as the defence power
in s 51(vi)) might by their 'subject matter or context'
allow the Commonwealth to 'compel the performance of duties
under federal law even without State legislative approval'
(at [45], emphasis added). The joint judgment noted that
this concession was in apparent response to the First
Uniform Tax Case (1942) 65 CLR 373, which upheld wartime
tax legislation authorised by the defence power, enabling
the Commonwealth to 'take over from the States their officers,
premises and equipment concerned with the assessment and
collection of income tax'. The appellants argued that,
in contrast to laws enacted under the defence power, the
Commonwealth could not impose administrative duties on
the states in legislation authorised by the external affairs
power in s 51(xxix) of the Constitution, such as the Extradition

The joint judgment noted the appellants' concession
that their case must fail if s 19(1) of the Extradition
Act 'confers a power but does not impose a duty' (at [47]).
This concession was said to reflect the reasoning in Aston
v Irvine (1955) 92 CLR 353 at 364, where the High Court
said that provisions of the Service and Execution of
Process Act 1901 (Cth) merely conferred powers upon
state magistrates or other officers in respect of interstate
service of process, and that this involved no interference
with the executive governments of the states.

The central conclusion of the joint judgment was that
s 19(1) of the Extradition Act must be read with s 4AAA
of the Crimes Act 1914 (Cth) and did not impose
an administrative duty on state magistrates (at
[57], [59]). Section 4AAA sets out:

the rules that apply if, under a law of the Commonwealth relating
to criminal matters, a function or power that is
neither judicial nor incidental to a judicial function
or power [such as an administrative extradition function
under the Extradition Act] is conferred on … a
magistrate'. [Section 4AAA(1); emphasis added.]

The provision states that a function or power to which
it applies is conferred on a magistrate 'only in a personal
capacity and not … as a court or a member of a court'
(s 4AAA(2)), and, significantly–in s 4AAA(3)?that
'the person need not accept the function or power conferred'.
While this latter provision appears to make it clear that
any Commonwealth law to which s 4AAA applies does not impose
a duty on a state magistrate, this can be countered by
the operation of s 4AAA(6A), which states that 'a rule
set out in this section does not apply if the contrary
intention appears' (emphasis added).

The appellants accepted that if s 4AAA(3) of the Crimes
Act applied to s 19(1) of the Extradition Act then their
case must fail (joint judgment, [60], [67]). The Court
decided that s 4AAA(3) did apply so that s 19(1) conferred
only a power on state magistrates to determine eligibility
to surrender rather than imposing a duty to do so. It rejected
the appellants' argument that s 4AAA was not a law of the
Commonwealth 'relating to criminal matters' (at [70], [71]).
The Court also rejected the argument that the Extradition
Act contained a 'contrary intention' (derived from the
use of the term 'shall' in s 19(1)) to the operation of
s 4AAA(3) (joint judgment, [66], [67]). The joint judgment
said that any operative 'contrary intention' would need
to state explicitly that 'a State magistrate is obliged
to accept the obligation to perform the functions of a
magistrate under the Act' in the first place (at [76]).
This was not established merely by a function under the
Act, such as s 19, being formulated in terms which, once
the function is accepted, require the taking of steps by
the magistrate if conditions precedent or jurisdictional
facts be satisfied' (at [76]).

Chief Justice Gleeson's judgment

Gleeson CJ also found it unnecessary to decide whether,
in accordance with the Melbourne Corporation doctrine,
there was a prohibition implied from the federal structure
of the Constitution that the Commonwealth cannot impose
an administrative duty on state statutory office holders
without the legislative approval of the state concerned
(at [14]). He noted, however, (at [16]) that the capacity
of the Commonwealth Parliament to enact laws which impose
duties on officers of a state 'is a matter that has far-reaching
consequences for Federal–State relations'. He observed

Some of the arguments from both the Commonwealth and
the States appeared to have a prophylactic purpose not
directly related to the issues that have to be decided
in the present cases. [at [16]]

As the joint judgment had concluded, Gleeson CJ also held
that s 4AAA of the Crimes Act applied in this case in relation
to s 19(1) of the Extradition Act, and that the conferral
on state magistrates of the function of determining eligibility
for surrender did not amount to the imposition by Commonwealth
law of a 'duty' rather than the conferral of a power (at

In addition, Gleeson CJ rejected the appellants' argument
that there was no state legislative approval for the performance
by WA and NSW magistrates of functions under the Extradition
Act. His Honour agreed with the Full Federal Court that
such approval could be found in s 6 of the WA Magistrates
Court Act and s 23 of the NSW Local Courts Act.

Justice Kirby's dissent

Kirby J said that the majority judgments ignored 'the
deeper questions' raised by this case (at [117]), stating

I do not agree that the problem presented by these cases
can be circumvented in the manner suggested by my colleagues.
I deprecate the avoidance of important constitutional
questions by defining them out of existence. That is
not the function of a constitutional court. [at [95]]

Kirby J said that the constitutional arguments of the
appellants must be accepted. In his view, the Extradition

as a federal law, purported to impose 'functions' on
State office-holders (so named as 'magistrates')
without the approval of the State Parliament that created
their offices and provided for the functions and duties
of office. Without 'mirror' or counterpart
State laws, the imposition of such 'functions' by
federal law alone could not be valid. [at [166]]

In Kirby J's view, magistrates are not 'minor State employees'
but 'amongst the most senior office-holders of the State'
(at [170]–[171]). Even when performing administrative
functions in their personal capacity:

where they are chosen to do so as 'magistrates' they
inescapably retain the general character of their offices
as such. Inferentially, they perform their functions
in State facilities, using State resources, assisted
by State officials, performing their functions in State
time, by inference paid for in this respect by salaries
and allowances drawn on the State Treasury. [at [170]]

There was a constitutional requirement, therefore, that
'the legal supplementation of the duties of State magistrates
be authorised by State law' (at [171]). Kirby J concluded

Because of the absence of State laws signalling clear
consent to the purported conferral of federal functions
on State magistrates by the Extradition Act 1988 (Cth)
('the Act'), that Act is, in this respect,
invalid under the Constitution. The Federal Parliament
cannot impose such functions in a unilateral manner.
Nor can it do so by invoking executive arrangements.
[at [97]]

AGS (Peter Prince, Thomas John, Heidi Willems and David
Bennett QC from the Constitutional Litigation Unit and
Stephen Vorreiter) acted for the Commonwealth in Zentai and
the Commonwealth Attorney-General intervening in O'Donoghue and Williams,
with the Commonwealth Solicitor-General David Bennett AO
QC, AGS Chief General Counsel Henry Burmester AO QC and
Graeme Hill of the Melbourne Bar as counsel.

For further information about the case please contact:

David Bennett QC
Deputy Government Solicitor
T 02 6253 7063 F 02 6253 7303

Peter Prince
Senior Lawyer
T 02 6253 7571 F 02 6253 7303

For advice about the issues arising from the case please

Guy Aitken
Special Counsel
T 02 6253 7084 F 02 6253 7304

Leo Hardiman
Senior General Counsel
T 02 6253 7074 F 02 6253 7304

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