Williams v United States of America [2007] FCAFC 109 (3 August 2007)

EXTRADITION – application to restrain State Magistrate from proceeding under s 19 of Extradition Act 1988 (Cth) – whether duty imposed on magistrates as holders of State statutory offices – persona designata – proper construction of s 23(2) of Local Courts Act 1982 (NSW) – history of extradition procedures in Australia

STATUTORY INTERPRETATION – use of context when interpreting legislation – ambiguity not required – relevance of historical context – relevance of consequences of interpretation – relevance of provision’s objective

WORDS AND PHRASES – "another office or appointment", "appointment", "appoint"

Crimes Act 1914 (Cth) s 4AAA
Extradition Act 1988 (Cth) ss 5, 16, 19(1) and 46
Extradition (Commonwealth Countries) Act 1966 (Cth) s 31
Extradition (Foreign States) Act 1966 (Cth) s 24
Federal Court of Australia Act 1976 (Cth) s 20(1A)
Judiciary Act 1903 (Cth) ss 39B(1A) 78A(1), 78B, 79
Interpretation Act 1987 (NSW) ss 12, 21, 34, 46
Legal Profession Act 2004 (NSW) ss 6(a)
Local Courts Act 1982 (NSW) ss 4(2)(b), 4(3)(a), 7, 17, 23
Magistrates Act 1977 (NT) s 11
Magistrates Act 1983 (SA) s 18A
Magistrates Act 1991 (Qld) s 41
Magistrates Court Act 1930 (ACT) s 7G
Magistrates Court Act 1987 (Tas) s 12
Magistrates Court Act 2004 (WA) s 6
Public Services Act 1979 (NSW) s 99

Commonwealth of Australia Gazette (No S 366, 30 November 1988)
Macquarie Dictionary 2^nd Ed
Oxford English Dictionary

Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185 referred to
Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 referred to
Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213 cited
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 cited
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 referred to
Commissioner of Stamp Duties (NSW) v Owens [1953] HCA 62; (1953) 88 CLR 168 cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 cited
Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 referred to
Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352 approved
Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; (1983) 153 CLR 455 cited
Insurance Commission of Western Australia v Container Handlers Pty Limited [2004] HCA 24; (2004) 218 CLR 89 referred to
Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 referred to
Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273 referred to
Papzoglou v Republic of the Philippines (1997) 74 FCR 108 cited
Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 referred to
R v Hughes [2000] HCA 22; (2000) 202 CLR 535 considered
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 cited
Vasiljkovic v Commonwealth [2006] HCA 40; (2006) 228 ALR 447 cited
VJAF v MIMIA [2005] FCAFC 178 referred to
Williams v Minister for Justice and Customs (2007) 157 FCR 286 referred to
Zentai v Republic of Hungary (2007) 157 FCR 585 referred to

LARRY RICHARD WILLIAMS v UNITED STATES OF AMERICA AND MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES

NSD 1038 OF 2007

BRANSON, TAMBERLIN AND ALLSOP JJ
3 AUGUST 2007
SYDNEY

BETWEEN:	LARRY RICHARD WILLIAMS Applicant
AND:	UNITED STATES OF AMERICA First Respondent MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES Second Respondent

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:	LARRY RICHARD WILLIAMS Applicant
AND:	UNITED STATES OF AMERICA First Respondent MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES Second Respondent

1 I have had the advantage of reading in draft the reasons for judgment of Tamberlin J. I agree with the orders proposed by his Honour. Subject to the matters discussed below, I also agree with his Honour’s reasons for judgment.

2 I would reject the submission of the applicant that by s 19(1) and s 46(1)(a) of the Extradition Act 1988 (Cth) ("the Extradition Act") the Commonwealth Parliament has sought to impose a duty on Magistrates, as that term is defined by s 4 of the Local Courts Act 1982 (NSW) ("the NSW Act"), as holders of a State statutory office and not as persona designata.

3 As Finn and Dowsett JJ observed in Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352 at [146], it is now either settled, or it would be inappropriate for reasons of comity for a Full Court of this Court to depart from, the principle that the function performed by a magistrate under s 19 of the Extradition Act is performed by the magistrate as a persona designata. Relevant authorities include the judgment of the Full Court in Papzoglou v Republic of the Philippines (1997) 74 FCR 108 at 125. More recently, in Vasiljkovic v Commonwealth [2006] HCA 40; (2006) 228 ALR 447 at [28] Gleeson CJ has observed:

4 In these circumstances it is appropriate to draw attention to the following observation of a Full Court in VJAF v MIMIA [2005] FCAFC 178 at[16]:

5 Even if it were not appropriate for this Court to follow the above authorities, the same result would, in my view, be dictated by the language of s 46 of the Extradition Act.

6 Section 46 authorises the Governor-General to arrange with a Governor of a State for the performance "by all or any of the persons who from time to time hold office as magistrates of that State" of the functions of a magistrate under the Extradition Act. Although the distinction is highly technical, s 46 can be seen to identify a class of persons, rather than a class of office-holders, any one or more of whom may be designated as the subject of an arrangement between the Governor-General and a State Governor. It would seem that the legislature has deliberately eschewed language such as "all or any of the magistrates of that State" to identify the class the members of which, by arrangement, may perform the function of a magistrate under the Act. The purpose of its having done so, I conclude, is because it intended that function to be performed by a magistrate as a persona designata rather than in his or her official capacity as a State magistrate.

7 Moreover, contrary to the submission of the applicant, the language of s 19 of the Extradition Act does not compel the conclusion that the Commonwealth Parliament has sought to impose a duty on, relevantly, all holders of the statutory office of Magistrate under the NSW Act. Section 19 provides, in effect, that where the necessary preliminary steps have been taken in respect of a person, and an application is made to a magistrate for proceedings to be conducted under the section, "the magistrate shall conduct proceedings to determine whether the person is eligible for surrender". Understood in the context provided by Part II of the Extradition Act, s 19 is concerned to identify the role which is to be performed by a magistrate under the Extradition Act. It is not concerned to identify who is to exercise that role in a particular case. The identification of an appropriately qualified person to perform the role required of a magistrate under s 19 will be undertaken by those responsible for allocating duties to the magistrates of the State concerned. No person whose extradition is sought, nor any extradition country, could, whether by seeking a writ of mandamus or otherwise, compel a particular magistrate to whom the task had not been allocated to entertain an application under s 19.

10 It seems plain that, subject to s 23(2), s 23(1) of the NSW Act is intended to require a Magistrate to devote the whole of his or her working time, whether or not the Magistrate is at all times in New South Wales, to the duties of the Magistrate’s office. There can be no real doubt, for example, that, subject to s 23(2), a Magistrate in, say, Queensland, on approved annual leave or for some other reason, is not free to accept casual or other employment of any kind in that State.

11 Nonetheless, the applicant submitted that the reference to "another office or appointment" in s 23(2) of the NSW Act means another office in and for New South Wales or another appointment in and of New South Wales. That is, that a person holding the office of Magistrate could not be granted approval under s 23(2) to hold another office or appointment if the office was not in and for New South Wales or the appointment was not in and of New South Wales.

12 In addition to placing reliance on s 12(1) of the Interpretation Act, the applicant placed reliance on the general rule of statutory construction that the subject matter of a legislative provision of the New South Wales Parliament is presumed to be confined to a local New South Wales subject matter.

13 The immediate answer to the above submission is that a law concerning how the time of a Magistrate appointed under the NSW Act may lawfully be spent is a local New South Wales subject matter. The circumstances of the present case are distinguishable from those considered in Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119 and Commissioner of Stamp Duties (NSW) v Owens [1953] HCA 62; (1953) 88 CLR 168. The relevant disputes in those cases concerned whether s 79 of the Judiciary Act 1903 (Cth) had the effect of enabling, in the one case, a defendant charged under a Commonwealth Act, and in the other, a litigant in a federal court, to access a New South Wales scheme for the reimbursement of legal costs. In each case a legislative intention that the State scheme was intended to be available to defendants charged under State law and to litigants in State courts was readily discerned. It was inherently unlikely that the New South Wales legislature intended State revenues to be available to support litigation conducted in federal courts or persons charged under Commonwealth law.

14 By contrast, there is nothing inherently unlikely about the New South Wales legislature intending to authorise the Governor to enter into an arrangement with the Governor-General to allow persons who hold office as Magistrate in New South Wales to perform the function of a magistrate under the Extradition Act. Indeed, as Tamberlin J has pointed out, State magistrates have long performed that function or a function of the same character. The applicant was not able to point to anything which suggested an intention in the New South Wales legislature to bring this situation to an end (see s 34 of the Interpretation Act). Moreover, it is to be assumed that any arrangement entered into by the Governor would be an arrangement which the Governor, acting on the advice of the Executive Council, considered to be in the interest of New South Wales.

15 In my view, unless a contrary intention is clearly indicated, it should be assumed that the extent of the Governor’s power to grant approval under s 23(2) of the NSW Act is co-extensive with the restraint prima facie imposed on a Magistrate by s 23(1) of the NSW Act. The amendment of s 23(3) in 2006, which substituted the phrase "an Australian legal practitioner" for "a barrister or solicitor" supports this approach. The latter phrase might well have been understood to mean a barrister or solicitor qualified under New South Wales law. However, s 21 of the Interpretation Act provides that "Australian legal practitioner" has the same meaning as in the Legal Profession Act 2004 (NSW). That meaning is "an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate" (emphasis added) (see s 6(a) Legal Profession Act 2004 (NSW)). The intended purpose of the substitution would seem to be to ensure that any approval granted under s 23(2) does not extend to authorising a Magistrate to engage in legal practice anywhere in Australia.

16 With respect to Tamberlin J, I do not consider that assistance in this regard can be derived from s 7 and s 17 of the NSW Act. Those provisions are concerned with the jurisdiction of Local Courts and of Magistrates. They are not concerned with the extent of the Governor’s authority to permit a Magistrate, acting as persona designata, to exercise the functions of another office or appointment.

17 I would also reject the submission of the applicant that to be the subject of an arrangement between the Governor-General and the Governor of New South Wales under s 46 of the Extradition Act is not to "hold ... another office or appointment" within the meaning of s 23(2) of the NSW Act.

18 The meaning of "appointment" will vary depending on the context in which the word is used (Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; (1983) 153 CLR 455 at 470). The Macquarie Dictionary 2^nd Ed shows it to be a word of potentially wide meaning. The term "appoint" is defined by the Macquarie Dictionary to include:

19 The Interpretation Act itself uses the words "appoint" and "appointment" with a wide meaning. For example s 46 of that Act speaks of the power to "appoint a person ... to do any ... thing" and characterises such a power as a power to make an "appointment".

20 The intended meaning of the phrase "another office or appointment" in s 23(3) of the NSW Act is to be ascertained having regard to the context in which the phrase is used. Nothing in the NSW Act as a whole, nor in s 23 itself, suggests that the phrase was intended to take a narrow or technical meaning. In my view, to be the subject of an arrangement between the Governor-General and the Governor of NSW under s 46 of the Extradition Act is to "hold ... another office or appointment" within the meaning of s 23(2) of the NSW Act.

21 For the above reasons it is not necessary to determine the applicability in the circumstances of the present case of s 4AAA of the Crimes Act 1914 (Cth). Section 4AAA, which by subsection (6) applies whether the law conferring a function or power was made before or after the commencement of the section, relevantly provides, in effect, that a function or power conferred under a law of the Commonwealth "relating to criminal matters" is conferred on the person only in a personal capacity and not as a court or a member of a court (s 4AAA(2)). The section also provides that the person need not accept the function or power conferred (s 4AAA(3)). While I incline to the view that the Extradition

Act is a law of the Commonwealth relating to criminal matters, the determination of that question may be left for another day.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

BETWEEN:	LARRY RICHARD WILLIAMS Applicant
AND:	UNITED STATES OF AMERICA First Respondent MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES Second Respondents

22 This is an application under s 39B(1A) of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking orders to restrain the respondents from taking any further steps under s 19 of the Extradition Act 1988 (Cth) ("the Extradition Act") in proceedings before a New South Wales Magistrate to determine whether the applicant is eligible for surrender to the United States of America, and a declaration that ss 19(1) and 46(1)(a) of the Extradition Act do not authorise or permit the conduct of such proceedings.

23 The application was made in the original jurisdiction of the Court. However, that jurisdiction was exercised by a Full Court pursuant to the direction of the Chief Justice made on 18 June 2007 under s 20(1A) of the Federal Court of Australia Act 1976 (Cth).

24 Mr Williams is a citizen of the United States of America. He arrived in Australia on 20 May 2006 and was arrested at Sydney Airport shortly after his arrival upon the request of the United States. He was granted conditional bail on 23 May 2006. After surrendering his passport, Mr Williams gave and currently abides by an undertaking that has various reporting requirements and other restrictions on his movements within New South Wales.

25 On 13 July 2006, Australia received a request from the United States to extradite the Mr Williams to the United States. The United States wishes to prosecute Mr Williams on an indictment alleging offences of wilful attempts to avoid federal income tax.

26 On 17 July 2006, the Minister for Justice and Customs issued a Notice of Receipt of Extradition Request under s 16 of the Extradition Act. Mr Williams sought judicial review of the decision to issue that Notice and his application was allowed by the Full Court on appeal: Williams v Minister for Justice and Customs (2007) 157 FCR 286.

27 On 29 March 2007, the Minister issued a new Notice of Receipt of Extradition Request, and as a consequence proceedings under s 19 of the Extradition Act were commenced before a New South Wales Magistrate. Mr Williams has been required to appear and has appeared at the Sydney Local Court for hearings concerning his release on bail and the preparation of proceedings under s 19 of the Extradition Act. Orders were made by the Magistrate in relation to the latter proceedings and the matter was set down for hearing in August 2007.

28 On 8 June 2007, Mr Williams filed an application in this Court challenging the validity of ss 19(1) and 46(1)(a) of the Extradition Act.

29 On 15 June 2007, the proceedings came before Branson J and her Honour stood the matter over to allow the Chief Justice to consider whether the matter should be heard by a Full Court. Her Honour also removed the Director of Public Prosecutions for the Commonwealth, who was originally named as the first respondent, as a party to the proceedings. The Magistrates of New South Wales, who are now the second respondents, indicated to the Court that they would file a submitting appearance except as to costs.

30 Pursuant to s 78B of the Judiciary Act, the applicant served a Notice of a Constitutional Matter on all Attorneys-General throughout Australia. The Attorneys-General of the Commonwealth and New South Wales both decided to intervene in the proceedings, as they are entitled to do under s 78A(1) of the Judiciary Act. The Attorney-General of the Commonwealth joined with the first respondent and both were represented by the same counsel. The Attorney-General of New South Wales was represented by the Solicitor-General of New South Wales.

32 In order to succeed in its application, the applicant acknowledges that it must establish all four of the following propositions:

33 Due to the importance of the proper construction of both the Extradition Act and the NSW Act, it is necessary to set out the relevant legislative provisions. The relevant provisions of the Extradition Act are as follows:

34 The expression ‘magistrate’ is defined in s 5 of the Extradition Act to include a magistrate of a State in respect of whom an arrangement is in force under s 46.

36 As s 12 of the Interpretation Act 1987 (NSW) clarifies, the reference in any New South Wales Act or instrument to an office is a reference to such an office in and for the State of New South Wales.

37 Pursuant to s 46 of the Extradition Act, a notice was published in the Commonwealth of Australia Gazette (No S 366, 30 November 1988, p2) recording an arrangement between the Governor-General of the Commonwealth, acting on the advice of the Executive Council, and the Governor of New South Wales, acting on the advice of the Executive Council of New South Wales. The arrangement, dated 24 November 1988, was expressed in the following terms:

38 Before considering the propositions advanced by the applicant, it is appropriate to set out a brief history of the development of Australia’s extradition system.

39 The major step forward in Australia’s extradition system occurred when the Commonwealth Parliament enacted the Extradition (Commonwealth Countries) Act 1966 (Cth) and the Extradition (Foreign States) Act 1966 (Cth). Before the promulgation of these Acts, Australia’s extradition procedures were governed by the domestic law and international treaties of the United Kingdom. Indeed, some of those treaties have been inherited by and are still in force in Australia, including for example those with Iraq, Lithuania and Estonia: Extradition Treaty between the United Kingdom and Iraq (opened for signature 2 May 1932) [1934] ATS 4 (entered into force in Australia 31 August 1934); Extradition Treaty between the United Kingdom of Great Britain and Ireland and the Republic of Lithuania (opened for signature 18 May 1926) [1928] ATS 18 (entered into force in Australia 4 May 1928); Extradition Convention between the United Kingdom of Great Britain and Ireland and Estonia (opened for signature 18 November 1925) [1927] ATS 4 (entered into force in Australia 23 February 1927).

40 However, in 1966 Commonwealth countries adopted the so-called "London scheme". This scheme required all Commonwealth countries to enact their own domestic legislation to govern extradition within the Commonwealth of people against whom a requesting state could raise a prima facie case. The scheme’s intention was to obviate the need for these countries to enter into international treaties with each other. The Extradition (Commonwealth Countries) Act 1966 (Cth) gave effect to the scheme in Australia, and Parliament simultaneously enacted the Extradition (Foreign States) Act 1966 (Cth) to establish a similar scheme in respect of non-Commonwealth countries. An aspect of both schemes which is relevant to the present proceedings was the provision for arrangements to be concluded between the Governor-General of the Commonwealth and Governors of the States for the appointment of State magistrates to implement the new extradition system.

41 In the 1980s significant reform of Australian extradition procedures was conducted. The reform was intended in part to address the complexity of the existing system, reliant as it was on two separate Acts of Parliament, and the lacuna in the legislation which was exposed by the High Court’s decision in Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477. The culmination of this period of reform came in 1988 when Parliament enacted one Act which was intended to regulate the entirety of Australia’s extradition system.

42 Section 46 of the Extradition Act continued the preference in Australia for extradition procedures to be carried out by State magistrates. Although the Extradition Act was promulgated six years after the NSW Act (which was enacted in 1982), the system which it adopted by way of s 46 was in existence in Australian legislation for 16 years before the NSW Act.

43 I turn now to the four propositions advanced by the applicant. As noted above, each of these propositions must be established if the application is to be successful. If the applicant fails to establish one of its propositions, then the application as a whole must fail.

44 For the reasons set out below, I am of the opinion that, on a proper construction of the meaning and operation of s 23 of the NSW Act, the State of New South Wales has given statutory approval for its Magistrates to perform the duty required of them under s 19 of the Extradition Act. It is therefore not necessary for the Court to consider the first, second or third propositions advanced by the applicant. However, in order to properly contextualise the construction of s 23 of the NSW Act, I will briefly elaborate in a general sense the content of those three propositions.

45 The applicant submits that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval. This proposition is disputed by the respondents. The proposition is said to be based on the principle expressed in Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 82-83 and, it is claimed, on an implication drawn from the ‘dualist’ federal structure of the Australian Constitution which comprises a central government and a number of State governments separately organised. The applicant submits that one result of this dualist structure is that not only is a State unable to unilaterally vest functions under its laws in officers of the Commonwealth (see Bond v The Queen [2000] HCA 13; (2000) 201 CLR 213 at 219; R v Hughes [2000] HCA 22; (2000) 202 CLR 535 at 553 (per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ)), but also that the Commonwealth has a reciprocal incapacity to unilaterally impose by its laws administrative duties on the holder of a State office, such as a magistrate. The argument put by counsel for Mr Williams draws heavily on principles set out in Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 82-83 and Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185 at 217-220 (per Gleeson CJ), 245-246, 249, 251, 257-261, 265 and 269 (per Gaudron, Gummow and Hayne JJ).

46 It is not necessary to decide whether this first proposition is correct. Accordingly, I refrain from investigating and deciding the question of Constitutional law raised by the applicant because it is unnecessary to do so: see Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248 at 270 (per Gleeson CJ, Gummow and Hayne JJ). I note that, as stated by Gaudron, Gummow and Hayne JJ in Austin v Commonwealth [2003] HCA 3; (2003) 215 CLR 185 at 269, and reiterated by a Full Court of this Court in Zentai v Republic of Hungary (2007) 157 FCR 585 at 589, this proposition involves ‘a large proposition’ which was not in those cases, and is not in this case, necessary to decide and therefore is ‘best left for another day.’

Proposition two – whether an administrative duty is imposed by s 19 of the Extradition Act

47 There is no dispute between the parties that the task imposed by s 19 of the Extradition Act is an administrative task. That is confirmed by the authorities in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 at 538 (per Brennan CJ, Dawson and McHugh JJ) and Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 at 254-255 (per Gleeson CJ, Gaudron, McHugh and Gummow JJ).

48 Although some argument in submissions addressed whether s 19 of the Extradition Act imposes a ‘duty’ instead of conferring a ‘power’ or ‘function’, it is not necessary to decide this question.

49 The applicant submits that the duty is imposed on New South Wales Magistrates as holders of a State statutory office and not as persona designata. This proposition is disputed by the respondents.

50 Again, it is not necessary to express an opinion on this third proposition. In light of my decision not to accept the applicant’s construction of s 23 of the NSW Act, and bearing in mind the acknowledgment by the applicant that it must establish all four propositions to be successful in its application, any consideration of the arguments on persona designata is redundant.

Proposition four – whether s 23 of the NSW Act, properly construed, provides State legislative approval

51 The fourth and final proposition advanced by the applicant involves a question of statutory construction as to whether s 23 of the NSW Act confers legislative approval by New South Wales for the imposition of the duty contained in s 19 of the Extradition Act upon its magistrates.

52 This question arises because, if it can be established that New South Wales has given statutory approval to the imposition of the tasks under s 19 of the Extradition Act on its Magistrates, then the application must fail. In this sense, the case for the applicant hinges on the absence of such approval of the New South Wales legislature.

53 Counsel for Mr Williams submits that the reference to ‘another office or appointment’ in s 23(2) of the NSW Act means another office or appointment ‘in and for, or in and of, New South Wales’, and does not extend to an office or appointment under a federal Act. In support of this approach, the applicant cites s 12 of the Interpretation Act 1987 (NSW) and relies on the principle of statutory construction expressed in R v Hughes [2000] HCA 22; (2000) 202 CLR 535 at 569 that the functions of a donee of legislative power are generally taken to be restricted to those relevant to the polity within which the officer or authority operates. As a consequence, it is said, the general words ‘another office or appointment’ must be read down to cover only other offices or appointments in and for, or in and of, New South Wales. The ‘exceptional situation’, as the applicant calls it, in s 23(2) of the NSW Act is thereby limited to include only administrative duties in and for the State of New South Wales. Accordingly, the applicant submits, the provision cannot be said to confer legislative authority on the Governor of New South Wales to enter into an arrangement with the Governor-General of the Commonwealth which requires New South Wales Magistrates to perform an administrative role under a federal Act.

54 There are a number of difficulties with this reading down of the language of s 23(2), which on its face is sufficiently broad to cover an appointment to perform the duties imposed by s 19 the Extradition Act.

55 The first difficulty is that s 23 of the NSW Act itself points away from any such limitation. Subsection 23(3), which clarifies that no approval of the Governor of New South Wales under s 23(2) will allow a magistrate to ‘practise as an Australian legal practitioner’, suggests that offices or appointments which may be approved extend to include offices or appointments anywhere in Australia. This would include assuming an office or appointment in another State or Territory, which clearly is not a matter in or for the State of New South Wales. In this way, the section itself suggests that a construction which limits s 23(2) to offices or appointments only in or for New South Wales is not correct.

56 A second difficulty which indicates a construction contrary to the one advanced by the applicant arises out of s 7 of the NSW Act, which provides that the Local Courts in which New South Wales Magistrates sit can have jurisdiction conferred upon them ‘by or under any Act or other law’. Likewise s 17 of the NSW Act envisages a situation where ‘any other Act’ may affect the exercise by a Magistrate of the functions of the office of a Magistrate. The term ‘Act’ as used in ss 7 and 17 is defined in s 4(3)(a) as including ‘a reference to an Act of the Commonwealth’. Accordingly, the NSW Act expressly leaves open the possibility that the offices and appointments of a New South Wales Magistrate may actually be conferred or at least affected by an Act of the Commonwealth Parliament, such as the Extradition Act.

57 When considering the construction of s 23, it is also important to take into account the character of the individual, authority or officer in whom the power to make an exception to the prohibition in s 23(1) is vested. The repository of the power under s 23(2) to make exceptions in this case is the Governor of New South Wales acting on the advice of the Executive Council. The Governor, acting with such advice, is in a position at the highest level of government to make such decisions and represent the State’s position. Whilst not necessarily determinative as to the construction of any individual legislative provision, where the power is entrusted to such a senior officer acting on the advice of elected Ministers, it is appropriate not to construe that power narrowly.

58 A further significant consideration is the historical context in which the NSW Act was enacted. As the High Court noted in CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ), and reiterated in Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; (2004) 218 CLR 273 at 280-281 (per McHugh A-CJ, Gummow and Hayne JJ) and Insurance Commission of Western Australia v Container Handlers Pty Limited [2004] HCA 24; (2004) 218 CLR 89 at 138ff (per Heydon J), the modern approach to statutory interpretation is one which considers the context of the provision in the first instance, and not merely at a later stage when ambiguity might be thought to occur. ‘Context’ is a broad expression. It covers various things, such as other provisions and headings in the same Act, the subsequent practice the parties when fulfilling obligations or exercising powers under the provision, extrinsic materials such as explanatory memoranda and second reading speeches, the existing state of the law, and the mischief which the provision or Act as a whole seeks to remedy. Another role which ‘context’ plays in statutory interpretation derives from the principle which allows a court to consider the inconvenient results of one interpretation, and consequently prefer an alternative construction to a strict literal interpretation: see CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408 (per Brennan CJ, Dawson, Toohey and Gummow JJ); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320-321 (per Mason and Wilson JJ).

59 In relation to extradition proceedings in Australia, for sixteen years prior to its enactment there was an arrangement in place between the State of New South Wales and the Commonwealth which was similar in effect to the arrangement provided by s 46 of the Extradition Act. Both before and after the promulgation of the Extradition Act, State magistrates have been available to determine the eligibility of persons for surrender. The provision in s 46 of the Extradition Act was paralleled by s 24 of the Extradition (Foreign States) Act 1966 (Cth) and s 31 of the Extradition (Commonwealth Countries) Act 1966 (Cth). Given this established pattern of practice and cooperation between the State and federal governments, it would require a clear expression of intent in the provisions of the NSW Act or in the extrinsic material surrounding it to justify a conclusion that it was intended to significantly depart from the previously existing pattern of cooperation. If, as seems correct to me, s 23(1) of the NSW Act is to be read as precluding, subject to any exception which might be found elsewhere in s 23, a Magistrate from performing any functions outside those of the Magistrate’s office, then, in the absence of a clear indication to the contrary, it is appropriate to give a liberal construction to the exception which is found in s 23(2). This approach is supported when one has regard to the inconvenience of the result which a contrary interpretation of the provision would procure, namely the disruption and even total prevention of the cooperative arrangements adopted by the State of New South Wales and the Commonwealth at the highest level of government over a significant period of time.

60 Another consideration which is to be borne in mind when construing s 23 of the NSW Act is that the objective of the provision, as evident from its language, is to ensure that Magistrates have sufficient time and capacity and resources to perform their role as New South Wales Magistrates. Indeed, there are similar provisions to s 23 of the NSW Act in the legislation of almost all other States and Territories: see s 6 of the Magistrates Court Act 2004 (WA); s 41 of the Magistrates Act 1991 (Qld); s 11 of the Magistrates Act 1977 (NT); s 18A of the Magistrates Act 1983 (SA); s 12 of the Magistrates Court Act 1987 (Tas); s 7G of the Magistrates Court Act 1930 (ACT). These provisions are not identical in terms to the NSW Act, but the clear object of each of them is to ensure that by restricting the capacity of a magistrate to engage in other activities his or her magisterial functions can be carried out properly. Furthermore, prior to the NSW Act, New South Wales Magistrates were appointed under the Public Services Act 1979 (NSW), s 99 of which provided that Magistrates should not engage in commercial or other employment without the permission of the Public Service Board. This provision was plainly intended, on its face, to ensure that Magistrates spent their time on magisterial duties, and did not engage in activities which might distract them from this. Similarly, it can be inferred that the NSW Act has a similar objective in that it sought to limit the activities of a Magistrate in areas outside their magisterial duties. To give effect to this objective (and to the similar objectives of each of the provisions in the various State and Territory Acts), it is irrelevant whether the additional function is the exercise of power or performance of a duty pursuant to a State or federal Act. As the Solicitor-General for New South Wales pointed out, it is not material for the achievement of the object of s 23 of the NSW Act whether the other function which could interfere with the performance of the duties of a Magistrate is ‘in and of’ New South Wales or otherwise. There is therefore no basis for implying a limitation that such interference should only derive from an appointment in and for New South Wales.

61 Counsel for Mr Williams also submits that s 19 of the Extradition Act does not validly impose a duty on New South Wales Magistrates because, before a duty can be performed, one must hold ‘another office or appointment’, and s 19 does not provide for a magistrate to hold an office or appointment other than or in addition to that of a New South Wales Magistrate. In particular, it is submitted that the word ‘appointment’ cannot include a requirement to perform a task unless some office, or position akin to an office, is held by the person performing that task and pursuant to which his or her functions can be exercised. Because there is no such office or appointment which can be held by the magistrate, s 46 is said not to apply.

62 I do not agree. The word ‘appointment’ on its ordinary meaning can include the assignment of a duty, function or task. According to the Oxford English Dictionary, one meaning of the expression ‘an appointment’ is the act of directing what is to be done. The word ‘appoint’ can include a grant of authorisation to fulfil or perform a task. One often speaks of a person being appointed to perform a task such as to conduct an investigation or inquiry. In ordinary parlance, it is common and appropriate to refer to a person as being appointed to carry out a task – there is no necessity to create an office or position which is capable of being ‘held’ by that person. The holding of a position or office is not necessary to give meaning to the term. Indeed, the notion of appointment is consistent with either holding or not holding a particular position: see Gollin & Co Ltd v Karenlee Nominees Pty Ltd [1983] HCA 38; (1983) 153 CLR 455 at 470. It does not strain the language of s 23(2) of the NSW Act to speak of an appointment to exercise a function which includes duty, power, or authority. The expression ‘another appointment’ is broad enough to cover the functions provided for in s 19(1) of the Extradition Act.

63 In my opinion, s 23(2) of the NSW Act, on its proper construction, is sufficiently extensive to enable the Governor to make an arrangement in relation to any function, including the imposition of a duty by the Commonwealth, as occurs in s 19 of the Extradition Act. The provision does not operate to vest a discretion in the recipient of the function to reject the exercise of the function, but rather invests the Magistrate with a capacity to carry out other functions, including a duty, which do not attach to the office of a New South Wales Magistrate. In other words, s 23(2) provides that before a person who currently holds and exercises the function of the office of a New South Wales Magistrate can exercise the functions pursuant to another appointment, the Governor must give his or her approval. By s 4(2)(b) of the NSW Act, the ‘exercise of a function’ under s 23(2) includes the ‘performance of [a] duty’. Accordingly, when the Governor approves the holding and exercising of functions pursuant to another office or appointment by the Magistrates, that approval extends to include an arrangement for the performance of a duty imposed by that additional appointment, regardless of whether the individual magistrate elects to do so.

64 Having regard to these considerations I do not accept the submission that s 23(2) of the NSW Act should be read down so that the expression ‘another office or appointment’ is limited to an office or appointment in and for, or in and of, New South Wales. Nor do I accept that a magistrate must ‘hold’ an office or appointment under the Extradition Act before he or she can perform the task required of them. As stated above, I am of the opinion that s 23, on its correct construction, provides statutory approval for New South Wales Magistrates to perform the duty encompassed in s 19 of the Extradition Act. Accordingly, I consider that the construction contended for by the respondents is correct and that there is legislative approval by New South Wales to the arrangement made under s 46(1) of the Extradition Act. Consequently, even assuming that the first three propositions can be made out by the applicant, the application must fail because of the construction of the language of s 23(2) of the NSW Act.

The application is therefore dismissed and the applicant is to pay the costs of the first respondent in this proceeding.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

BETWEEN:	LARRY RICHARD WILLIAMS Applicant
AND:	UNITED STATES OF AMERICA First Respondent MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES Second Respondent

66 I agree with the reasons of Branson J and with her Honour’s agreement with the orders proposed by, and reasons of, Tamberlin J (subject to the express qualification in her Honour’s reasons). In particular, I agree with the views expressed by Tamberlin J (with which Branson J agrees) as to the relevance of the historical context of the arrangements for co-operation between the States and the Commonwealth about an important aspect of external affairs such as extradition. One would not easily construe s 23 of the Local Courts Act 1982 (NSW) to be so narrow as not to provide for such well-known arrangements as

those for extradition between the Governor of New South Wales and the Governor-General of Australia as existed in 1982.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Counsel for the Appellant:	Mr S Gageler SC, Mr R Lancaster and Ms G Mahony

Solicitor for the Appellant:	Watsons Solicitors

Counsel for the Respondent and for the Commonwealth Attorney-General, intervening:	Mr H Burmester QC and Mr G Hill

Solicitor for the Respondent and for the Commonwealth Attorney-General, intervening:	Office of the Commonwealth Director of Public Prosecutions and Australian Government Solicitor

Counsel for the New South Wales Attorney-General, intervening	Mr M Sexton SC, Solicitor-General for the State of New South Wales, and Ms N Sharp

Date of Hearing:	16 July 2007

Date of Judgment:	3 August 2007

JUDGE:	ALLSOP J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1038 OF 2007

JUDGES:	BRANSON, TAMBERLIN AND ALLSOP JJ
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	SYDNEY

Federal Court of Australia - Full Court Decisions

Williams v United States of America [2007] FCAFC 109 (3 August 2007)