Huynh v Attorney General (NSW)

1. [1]

   BATHURST CJ: For the reasons given by Basten JA and the additional reasons of Payne JA, I agree with the orders proposed by Basten JA.

2. [2]

   BASTEN JA:

3. [3]

   The applicant appealed against his conviction, though not his sentence, pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). On 29 September 2017 that appeal was dismissed. [1] The applicant sought special leave to appeal to the High Court from that judgment; on 6 February 2019 the application was dismissed. [2]

4. [4]

   On 18 March 2020 the applicant applied to the Supreme Court under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”) for an inquiry into his conviction. Section 78 appears in Pt 7 of that Act, entitled “Review of convictions and sentences”. The application was considered by a judge of the Court, Garling J. On 13 October 2020, Garling J dismissed the application.

5. [5]

   On 18 January 2021 the applicant commenced proceedings under s 69 of the Supreme Court Act 1970 (NSW) seeking an order quashing the decision of Garling J, and a declaration that “there was an error of jurisdiction and law on the part of Garling J.”

6. [6]

   In Sinkovich v Attorney General of New South Wales, [3] this Court accepted that declaratory relief was available with respect to a decision of a judge dealing with an application under s 78 of the Appeal and Review Act. That case involved an attempt to review a conviction for an offence under State law; however, the present application concerns a conviction for an offence under a law of the Commonwealth. There is a preliminary question to be determined as to whether the procedure under Pt 7, Div 3 of the Appeal and Review Act is available to a person convicted in a New South Wales court of an offence against a law of the Commonwealth.

7. [7]

   The proceedings seeking to review the decision of Garling J, filed in the Supreme Court on 18 January 2021 named the Attorney General for New South Wales as the respondent. On 1 February 2021 the Registrar directed that the Supreme Court of New South Wales be joined as a party. An issue having been raised as to whether the State Attorney was the correct party, a further amended summons was filed joining the Attorney-General for the Commonwealth.

Issues

1. [8]

   As to the preliminary question, certain matters were common ground between the parties. First, neither a State court nor an officer of the State would have power under State law to vary or affect the conviction of a person for an offence under a law of the Commonwealth, absent authority conferred by a law of the Commonwealth. Part 7 was a State law authorising such an effect. The primary source of a judge’s authority under Pt 7 with respect to a federal offender was s 68 of the Judiciary Act 1903 (Cth).

2. [9]

   Further, the constitutional basis of s 68(2) was the investing of a State court with federal jurisdiction, pursuant to s 77(iii) of the Constitution. However, s 79(4) of the Appeal and Review Act, dealing with the consideration of an application made under s 78, declares that such proceedings “are not judicial proceedings.” Accepting that characterisation, a non-judicial power could be conferred on a State court so long as it was incidental to the exercise of federal jurisdiction. That criterion was satisfied, because one outcome of the consideration of an application under s 78 was referral of the whole case to the Court of Criminal Appeal “to be dealt with as an appeal under the Criminal Appeal Act 1912”: s 79(1)(b). Such a referral would initiate an exercise of judicial power by the Court of Criminal Appeal.

3. [10]

   There remained a question of statutory construction, namely whether s 68 of the Judiciary Act, in referring to the hearing and determination of “appeals arising out of any … trial or conviction” for an offence against a law of the Commonwealth, was apt to encompass the result of an application for an investigation under s 78 of the Appeal and Review Act.

4. [11]

   The Attorneys General for the State and for the Commonwealth, though by different routes, affirmed each of the propositions set out above. If those propositions were accepted, a further question arose as to the source of the judicial review jurisdiction being invoked by the applicant in this Court. As the subject matter of the application is a conviction for an offence under a law of the Commonwealth, this Court is exercising federal jurisdiction. [4] The applicant had invoked the Court’s jurisdiction under s 69 of the Supreme Court Act; an alternative proposed by the Attorney for the Commonwealth was that the jurisdiction was conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth), being cross-vested in this Court under s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

5. [12]

   No party sought to invoke the judicial review jurisdiction conferred on a State Supreme Court by s 39B(1C) of the Judiciary Act. Rather, it was accepted that, even if exercising power under a federal law, Garling J was not an officer of the Commonwealth.

6. [13]

   For the reasons set out below, the following propositions may be accepted:

   1. (1)

      Part 7 of the Appeal and Review Act generally, and Div 3 in particular (being ss 78 and 79), does not apply of its own force to convictions for federal offences;

   2. (2)

      the function exercised by a judge of the Supreme Court under s 79, namely consideration of an application under s 78, is not a judicial function;

   3. (3)

      the power conferred by s 79(1)(b) to refer an application to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act, could be considered a function incidental to the exercise of judicial power in respect of a federal offender;

   4. (4)

      nevertheless, that power could not be picked up by s 68 to the exclusion of all other functions arising under s 79 because to do so would give the State law an altered meaning;

   5. (5)

      no other Commonwealth law purported to confer a power of review on a Supreme Court judge with respect to a federal conviction;

   6. (6)

      accordingly, Garling J had no power to take either of the steps identified in s 79(1) with respect to the applicant’s application under s 78, or of his own motion.

7. [14]

   As Garling J did not take either of the steps identified in s 79(1), there is no decision to be quashed or set aside. However, it is convenient that the reasoning of the Court be crystallised in the form of a declaration as to the functions of a judge of the Supreme Court in respect of such an application by a federal offender. In those circumstances, it is not necessary to determine whether, and if so under what legislation, this Court could exercise its supervisory jurisdiction with respect to a decision relating to a review of a criminal conviction. That issue could only arise if a Commonwealth officer sought to invoke the power of referral to the Court of Criminal Appeal under either s 77(1) or s 79(1) of the Appeal and Review Act.

8. [15]

   It is inappropriate to address the grounds on which the applicant sought judicial review of the purported decision of Garling J.

(1) Legislative history

1. [16]

   The first step in the reasoning to the above conclusions requires consideration of the nature of the functions under Pt 7 conferred on a judge of the Supreme Court. It will be necessary then to consider whether the power conferred by s 79 in Pt 7 can operate as State law in relation to a conviction for a federal offence.

2. [17]

   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, or pardoning power. The assumption underlying the prerogative of mercy is that the judicial system has taken its proper course, but the consequences of conviction may be ameliorated either by the grant of a pardon, or by remission of sentence. The second aspect is available to deal with apparent miscarriages of justice. It could be called upon at a time when there was no right of appeal from a conviction as a result of a trial by jury on indictment. It pre-dated the Criminal Appeal Act 1912. Although that statute reduced the significance of executive intervention, it did not entirely remove the occasions on which it could be invoked. That was because, as held in Grierson v The King, [5] once an appeal has been determined and orders entered, there is no power under the 1912 Act to reopen that decision, even on the basis of material which had not become known until after the appeal had been determined. However, as Dixon J noted in Grierson, an inquiry by the executive as to a doubt attending a conviction remained available, having been preserved by two separate provisions.

3. [18]

   The first, a procedure under s 475 of the Crimes Act 1900 (NSW), predated the enactment of the Criminal Appeal Act 1912 (NSW), but continued thereafter. It then provided:

4. [19]

   Secondly, s 26 of the 1912 Act, permitted a petition for leniency invoking the pardoning power of the Governor:

5. [20]

   It will be convenient shortly to refer to recent cases dealing with provisions in other states which still reflect s 26. Two cases dealing with s 475 (since repealed) may be noted at this point. Each characterised the power to commence an inquiry as administrative, but the inquiry itself as judicial.

6. [21]

   In Henry White v The King [8] the High Court held that a forgery designed to persuade the Chief Justice (under the second limb of s 475(1)) to initiate an inquiry constituted an attempt to pervert the course of justice. Such an inquiry was held to be a “judicial proceeding.” [9] However, Griffiths CJ noted that the power conferred on the Chief Justice to initiate a judicial inquiry was not itself the exercise of “any judicial function.” [10]

7. [22]

   In Varley v Attorney-General (NSW) [11] this Court followed White in concluding that an inquiry under s 475 was indeed a judicial inquiry, but one which was not to be sought by a formal process of application, such as the issue of a summons. Hope JA (with whom Samuels JA agreed) stated: [12]

8. [23]

   Because the pre-repeal caselaw addressing s 26 of the Criminal Appeal Act has been noted in cases considering similar provisions in other States which remain in force, it may conveniently be referred to here. In R v Gunn (No 1) Jordan CJ noted the background to s 26 in the following terms: [13]

9. [24]

   The Chief Justice considered that a reference under s 26(a) should be regarded “as investing the Court with jurisdiction to deal with the matter as if it were an appeal against conviction duly instituted by the prisoner himself in the ordinary way, notwithstanding that his ordinary right of appeal has been exercised and exhausted.” [14] However, it is clear that the Court envisaged that there were significant limits on such a further appeal. In Gunn (No 1) Halse Rogers J stated: [15]

10. [25]

    That limitation was repeated by Jordan CJ (Davidson and Halse Rogers JJ agreeing) when the matter came back as R v Gunn (No 2): [16]

11. [26]

    Any such limitation on the scope of a second appeal was rejected by the High Court in Mallard v The Queen [17] dealing with s 140(1)(a) of the Sentencing Act 1995 (WA), which was in similar terms to s 26(a). Arguably Jordan CJ’s approach is now encapsulated in s 77 of the Appeal and Review Act, which mirrors s 79, discussed below.

12. [27]

    Provisions similar to s 26 have been discussed in cases in Victoria [18] and Queensland, [19] including cases dealing with federal offenders. However, in each federal case the question was whether a Commonwealth Minister could invoke the power of referral to a State appeal court. [20] Although doubts have been expressed about the availability of the State procedure in relation to a federal conviction, [21] the authorities generally support its availability. [22] That course was not invoked by Mr Huynh in the present case.

13. [28]

    In 1993, s 475 was replaced by Pt 13A of the Crimes Act 1900 and expanded into a suit of 16 sections (ss 474A-474P). An equivalent to s 26 of the Criminal Appeal Act, which was duly repealed, was incorporated in Pt 13A. The two pre-existing statutory schemes were thus amalgamated.

14. [29]

    In 2001, Pt 13A, together with a novel form of review by a DNA Review Panel, was re-enacted as Pt 7 of the Appeal and Review Act by the simple technique, in relation to Pt 13A, of transferring verbatim and renumbering existing provisions.

15. [30]

    As the Gunn cases demonstrated, once the Criminal Appeal Act provided a curial mechanism for the review of convictions and sentences for indictable offences the role of the executive in checking possible miscarriages of justice was rendered vestigial. Its apparent function was to address claims of fresh evidence. The statutory language which allowed a judge to act “of his own motion” had no practical function unless the judge had conducted the trial. When Pt 7 provided a mechanism for an application seeking to raise a doubt or question, the power of a judge to act on his or her own motion was rendered obsolete; why it has been retained is obscure.

(2) Structure of Part 7

1. [31]

   The structure of Pt 7 is by no means straightforward. First, it provides for two streams of applications. The first (Div 2) is by way of a petition to the Governor; the second (Div 3) is by way of an application to the Supreme Court. Division 2 reflects the repealed s 26 of the Criminal Appeal Act which conferred powers on the Minister of Justice with respect to any “petition for the exercise of the pardoning power”. Because s 26 had allowed the Minister to refer the “case” to the Court of Criminal Appeal, or to seek assistance on “any point arising in the case”, it had allowed a somewhat inchoate mechanism for review of a conviction or sentence. The same powers are now found in s 77(1)(b) and (c). However, there is now an additional power, providing for the Governor to direct an inquiry to be conducted by a judicial officer. (As will be noted below, the power to direct an inquiry by a judicial officer is also available in relation to an application to the Supreme Court.) That greater diversity is reflected in the fact that, pursuant to s 76, a petition may invoke one of two courses, namely “a review of a conviction or sentence” or “the exercise of the Governor’s pardoning power”. Petitions under s 76 appear to be unusual, although the procedure was invoked in a matter recently heard by this Court, Folbigg v Attorney General of New South Wales. [23]

2. [32]

   As the present case is not concerned with a petition to the Governor, the procedure available under Div 2 may be dealt with briefly, by way of three observations. The first is that s 114 of the Appeal and Review Act states that “[n]othing in this Act limits or affects in any manner the prerogative of mercy.” A similar provision is still to be found in s 27 of the Criminal Appeal Act, and in s 102 of the Crimes (Sentencing Procedure) Act 1999 (NSW). While the purpose of such provisions (not to limit the operation of the prerogative) is clear, its claim to eschew affectation is not to be read literally. (Adopting one procedure may foreclose another.)

3. [33]

   The second observation is that decisions by the Governor or the Attorney General under s 77(1) are clearly administrative, being taken by the executive. The same is true for other provisions in s 77, including the acceptance that there is a doubt or question as to the person’s guilt (subs (2)), the power to refuse to consider or otherwise deal with the petition (subs (3)), and the power to defer consideration of a petition (subs (3A)). Finally, there is an obligation on the Attorney to cause a report to be given to a registrar of the Supreme Court as to any action taken by the Governor or the Attorney. Significantly for present purposes, each of these administrative steps is reflected in s 79 of the Appeal and Review Act, dealing with applications to the Supreme Court.

4. [34]

   The third observation is that each step which may be taken in relation to a petition to the Governor leads to a procedure by way of inquiry, dealt with in Div 4, or a referral to the Court of Criminal Appeal, dealt with in Div 5. These steps mirror the outcome of consideration of an application to the Supreme Court under Div 3.

5. [35]

   The process for an application to the Supreme Court is provided in s 78 (former s 474D in the Crimes Act), in the following terms:

6. [36]

   Two aspects of this provision may be noted. First, at a mechanical level, the reference to the registrar of the Criminal Division (which no longer exists) is to be taken as a reference to the registrar of the Common Law Division, to whom, in practice, applications are directed. [24]

7. [37]

   Secondly, there is a specific provision dealing with the exercise of the Supreme Court’s jurisdiction in Div 1, namely s 75:

8. [38]

   As a matter of statutory construction, that direction cannot apply to s 78: the application must be delivered to the Supreme Court in its institutional sense. However, references in s 79 dealing with consideration of applications by the Supreme Court should be understood in accordance with s 75. That may be applied to the following aspects of s 79:

9. [39]

   There are references in the caselaw, noted below, to the characterisation of powers conferred on a judge who does not act as a member of the institution, but rather as a persona designata. Such powers are usually characterised as administrative powers because, although the recipient of the power is identified by reference to his or her office, the power is not intended to be exercised by the recipient as a member of the court.

10. [40]

    There are two reasons why the question of characterisation is important in the present case. First, if the exercise of authority under s 78 of the Appeal and Review Act is undertaken by a judge as an exercise of the judicial function of the Supreme Court, it may follow that, as Mr Huynh submitted, there is a right of appeal under s 101 of the Supreme Court Act. If not, an unsuccessful applicant will be limited to the exercise of the supervisory jurisdiction of this Court with respect to a decision made otherwise than in the exercise of judicial power. Secondly, to the extent that ss 78 and 79 of the Appeal and Review Act do not operate of their own force in relation to a conviction for a federal offence, their availability will depend upon federal legislation conferring authority on the judge. However, the only federal law identified was a provision of the Judiciary Act investing a “court of the State” with federal jurisdiction. The legislative power of the Commonwealth does not extend to the selection of members of a court in whom to vest a judicial function. The distinction was identified by Latham CJ in Medical Board of Victoria v Meyer, [25] a case in which an appeal lay from the Medical Board to a judge of the Supreme Court of Victoria, the question being whether an appeal lay from the decision of the judge to the High Court pursuant to s 73 of the Constitution. The relevant distinction was identified by Latham CJ in the following terms:

11. [41]

    As the Chief Justice noted in Meyer, an early decision of the High Court in Holmes v Angwin [26] held that a decision of the Chief Justice of Western Australia on a petition under the Electoral Act 1904 (WA), sitting as a Court of Disputed Returns, did not give rise to a right of appeal.

12. [42]

    It is true that doubt has been cast on the distinction, particularly in circumstances where a question arises as to the possible incompatibility of a function imposed on a judge with the essential characteristics of a court for the purpose of being invested with federal jurisdiction under Ch III of the Constitution. [27] However, that is not to deny the distinction between the exercise of a judicial function and the exercise of an administrative power, nor the significance of the distinction for particular purposes. Section 68(2) of the Judiciary Act may be invoked because jurisdiction is conferred on a court of a State. If the State law picked up and applied in the exercise of federal jurisdiction is not conferred on a court exercising State jurisdiction, s 68 will not be engaged.

13. [43]

    It is also necessary to consider whether the State law which confers the administrative function operates of its own force, regardless of some federal element. As explained in Rizeq v Western Australia, [28] and as applied in Masson v Parsons, [29] a State law which creates rights, powers, obligations or immunities, may be applied by a court exercising federal jurisdiction, absent inconsistency with a Commonwealth law, without reliance on provisions of the Judiciary Act.

14. [44]

    There are three further reasons for characterising the powers conferred by s 79 as administrative. The first is that the powers reflect those conferred on the Governor and the Attorney General under s 77, which, from their context, are clearly intended to be administrative powers. The fact that the powers to consider an application to the Supreme Court are expressed in identical terms is a strong indication that they do not confer a judicial function.

15. [45]

    The second indicator is to be found in the express terms of s 79(4) that proceedings under s 79 “are not judicial proceedings.” Further, the express power to consider “written submissions made by the Crown” demonstrates that the application does not create a justiciable dispute (or lis) as between the Director of Public Prosecutions as the prosecutor in the criminal trial and the offender. Nor is it expected that there would be any oral hearing.

16. [46]

    Thirdly, it is inconsistent with the nature of judicial power that the judge to whom an application is made has no obligation to consider it on the merits. That factor is reflected in the reasoning of the Queensland Court of Appeal in Holzinger v Attorney-General (Qld) [30] that the offender who sought unsuccessfully to engage the Queensland equivalent of s 26 of the Criminal Appeal Act had not had any right or legal interest affected by the dismissal of his petition.

17. [47]

    Although the applicant contended that, if the proceeding before a judge of the Court pursuant to s 79 were not administrative, he had a right of appeal under s 101 of the Supreme Court Act as from a judgment or decision of the Court in a Division, he presented no basis for concluding that Garling J was involved in a judicial proceeding. While the statement in s 79(4) may not be determinative, taken with the other factors considered above, it is a legally correct characterisation of the proceedings.

18. [48]

    This conclusion has consequences for the engagement of various provisions of the Judiciary Act which might otherwise operate to pick up procedural provisions of State legislation, so that they apply in the exercise of federal jurisdiction, that is, in an exercise of judicial power.

19. [49]

    When Varley was decided in 1987, under the old form of s 475 of the Crimes Act, power to direct an inquiry was conferred on a judge of the Supreme Court “of his own motion”. The question in Varley was whether that function could be engaged by an offender making an application to the Court. This Court held that it could not, although any material supplied to a judge might be taken into account in determining whether, of his or her own motion, to direct an inquiry. Although clearly not determinative of that issue, the nature of the inquiry which might be directed was a material consideration. The direction which a judge could give would require a justice to summon and examine persons on oath, the power of attendance being enforceable as if the justice were hearing a case. It seems to have been assumed in Varley that a direction to a justice to consider any “unease” about a conviction was a direction “to hold a judicial inquiry to decide what the facts truly were and to report upon whether that unease was justified.” [31] That assumption did not affect the conclusion that the direction itself, given by the judge acting on his or her own motion, was an administrative act.

20. [50]

    As has already been noted, the assumption in White that the inquiry was a judicial inquiry supported the finding that sending a false declaration to a judge of the Supreme Court involved an attempt to pervert the course of law and justice. However, it did not follow that the inquiry under s 475 of the Crimes Act would have been characterised as an exercise of judicial power in relation to a federal offender, nor would it necessarily have engaged the power to issue prerogative writs. A Royal Commissioner will have powers to administer oaths and take evidence, but it does not follow that the Royal Commissioner is exercising judicial power. The taking of evidence by a justice of the peace under s 475 merely resulted in a deposition being taken from each witness called, which was transmitted by the justice to the Governor or the judge, depending on who had directed the inquiry: s 475(4). Thereafter the matter was to be disposed of “as to the Governor, on the report of such Judge, or otherwise, shall appear to be just.” Where directed by a judge, the inquiry thus resulted in the taking of evidence, on the basis of which the judge prepared a report for the Governor. What happened thereafter was a matter of executive discretion. The taking of evidence was not any part of the exercise of judicial power, nor was it a precondition to the exercise of an executive power.

21. [51]

    As will be addressed below, the characterisation of the inquiry (which was a possible outcome of an application under s 78), may affect whether the consideration under s 79 is conduct “incidental to” an exercise of federal jurisdiction. Bearing in mind this historical background, it is necessary to turn to the statutory scheme for an inquiry which now appears in Div 4 of Pt 7 of the Appeal and Review Act (ss 80-82), and initially appeared as Div 4 of Pt 13A of the Crimes Act.

22. [52]

    Section 80 requires that the inquiry be conducted “as soon as practicable”, noting that the direction may have been given either by the Governor under s 77(1)(a), or by “the Supreme Court” under s 79(1)(a). With respect to procedure, s 81 provides:

23. [53]

    There are a number of aspects of this provision which warrant attention. First, the jurisdiction of the Supreme Court under Pt 7 may be exercised by the Chief Justice or a judge “who is authorised by the Chief Justice to exercise that jurisdiction”. By contrast, an inquiry under Div 4 is to be undertaken by a judicial officer, [32] not necessarily a judge of the Supreme Court, “appointed by the Chief Justice”, or by the Attorney, depending on the source of the direction. This is not the language of conferral of judicial power on a court.

24. [54]

    Secondly, by conferring on the judicial officer powers, authorities, protections and immunities conferred on a Commissioner under the Royal Commissions Act, it is clear that the judicial officer is not acting as a judge of a court, but as a persona designata.

25. [55]

    Thirdly, the provision in subs (4) of procedural fairness to a person whose character may be besmirched has a long history, dating back to 1883, apparently as a concession to female complainants whose character might be attacked by the offender.

26. [56]

    The only other provision relating to inquiries is s 82, which addresses the action to be taken on completion of the inquiry:

27. [57]

    Putting to one side subs (2), which did not find a place in former s 475 of the Crimes Act, it is clear that little changed in 1993 with respect to the outcome of the inquiry. A report must be prepared (including the depositions) to be sent to the Chief Justice; the Chief Justice must cause a report to be sent to the Governor and the Governor may then dispose of the matter in such manner as appears just. None of those acts involves an exercise of judicial power.

28. [58]

    The new provision, introduced in 1993 as s 474H(2) in the Crimes Act, provided for the judicial officer to refer the matter directly to the Court of Criminal Appeal. The result of such a referral may be an exercise of judicial power by the Court of Criminal Appeal, but the referral itself is clearly an administrative act.

29. [59]

    Division 5 of Pt 7 deals with proceedings in the Court of Criminal Appeal. There are five routes by which a matter may reach the Court of Criminal Appeal. The first two bypass any inquiry by a judicial officer, namely a referral by the Attorney General under s 77(1)(b) and a referral by “the Supreme Court” under s 79(1)(b). In such cases, the Court is to deal with the case referred “in the same way as if the convicted person had appealed … under the Criminal Appeal Act 1912, and that Act applies accordingly”: s 86.

30. [60]

    The third route is that the Court may be required to deal with a “request” by the Attorney to give an opinion on any point arising in the case, pursuant to s 77(1)(c). Again no inquiry precedes the request. The Court is required to consider the request and furnish the Attorney with its opinion; the Governor is then empowered to dispose of the matter as appears just to him or her: s 87. It is by no means clear that the provision of such an opinion constitutes an exercise of judicial power, given that it does not lead to any judgment or order affecting the rights of the offender, nor is it a necessary gateway to a pardon or other exercise of the Governor’s executive powers.

31. [61]

    The fourth route is that, by a process not otherwise dealt with in Pt 7, the Court of Criminal Appeal may hear an application for the quashing of a conviction by a person to whom a pardon has been granted, pursuant to s 84(3). The procedure on such an application is dealt with in s 85. It appears that such a process must by implication be conditional upon the completion of an inquiry under Div 4, and the preparation of reports under s 82 by the judicial officer. That report, and any report prepared by the Supreme Court under s 82(3), together with submissions “on any such report” made by “the Crown” or the convicted person, constitute the only material upon which the Court may act, unless the Court gives leave otherwise: s 85(1). It is further stated that the rules as to the admissibility of evidence do not apply, but that Pts 3 and 4 of the Criminal Appeal Act dealing with appeals against conviction do apply. Precisely how the scheme would operate in practice need not be addressed: it is by no means clear that it constitutes an exercise of judicial power, although it may result in the quashing of a conviction.

32. [62]

    The fifth route by which a matter may reach the Court of Criminal Appeal is a referral by the judicial officer conducting an inquiry under Div 4, pursuant to s 82(2). In deciding whether a conviction should be quashed, the Court is required to deal with the referral as if an application had been made for the quashing of a conviction by a person to whom a pardon was granted under s 84. Section 85 then applies with the concomitant uncertainty as to the precise role of the Court. What is clear, however, is that in such a case the straightforward requirement that the Court deal with the matter as if the person had appealed under the Criminal Appeal Act (s 86) does not operate.

33. [63]

    In the present case, the matter proceeded no further than an exercise of administrative discretion by Garling J not to direct an inquiry under Div 4, pursuant to s 79(1)(a), and, by necessary inference, not to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act, pursuant to s 79(1)(b). It has been necessary to consider the functions exercised by the Court of Criminal Appeal only because, on one aspect of the submissions, the power of the judge was said to be “incidental to” an exercise of judicial power even though it did not have that result.

34. [64]

    The application for review of the applicant’s conviction was made pursuant to s 78 of the Appeal and Review Act. A decision to take none of the steps available under s 79, other than to consider the application, was the decision sought to be reviewed in this Court. The analysis set out above demonstrates that the decision was either (i) an exercise of administrative power on the part of a judge of the Supreme Court, acting as a persona designata and not exercising the judicial functions of the Supreme Court, or (ii) to the extent there could have been a decision “to refer the whole case to the Court of Criminal Appeal”, the exercise of a power incidental to a future judicial proceeding in federal jurisdiction. Each possibility will be addressed.

35. [65]

    There can be no doubt that, with respect to convictions for offences under a law of the Commonwealth, the Commonwealth could establish a statutory scheme for review in circumstances where the usual rights of appeal have been exhausted but a doubt has arisen as to the correctness of the conviction (or the appropriateness of the sentence). The power could derive from s 61 of the Constitution (the executive power of the Commonwealth), or as a matter incidental to the execution of judicial power, or the power giving rise to the offence, pursuant to s 51(xxxix). The circumstances in the cases referred to above [33] demonstrate the availability of a non-statutory Commonwealth executive power. [34] However, it may also be that the State legislation can operate of its own force, up to the point where judicial power is engaged. As this last possibility, if accepted, would avoid the need to explore the complexities of federal power, it will be addressed first.

(3) State law operating of its own force

1. [66]

   The first question, which was not expressly raised before Garling J, but the answer to which was assumed to be favourable to the applicant, is whether the judge had power to carry out such a review. It may be assumed for present purposes that the question includes the powers to (i) refuse to deal with the application (s 79(3)), (ii) defer consideration (s 79(5)), (iii) direct the holding of an inquiry under Div 4 (s 79(1)(a)) and (iv) refer the “whole case” to the Court of Criminal Appeal under s 79(1)(b). It is further assumed, consistently with the declaration in s 79(4), that consideration of the exercise of these powers is not a judicial function.

2. [67]

   The answer to this question must come in two (interrelated) parts. The first concerns the constitutional scope of State legislative power; the second concerns the specific exercise of an available power. In terms relevant to the present case, the first part asks to what extent a State can pass laws affecting a conviction for a federal offence; the second whether s 79 of the Appeal and Review Act purports to do that. The parts are interrelated because there is a principle of statutory interpretation which, especially in construing laws having the potential to affect the exercise of government powers by another polity, reads a law which does not expressly identify the scope of its operation as having local effect only.

3. [68]

   The localising principle is identified in s 12(1) of the Interpretation Act 1987 (NSW) and may confine the operation of the function to a conviction by a New South Wales court, as an institution, regardless of whether the court was exercising State or federal jurisdiction at a particular time. That is because where the Commonwealth has invested federal criminal jurisdiction in a State court, it takes the court as it finds it and has no power to alter the nature or scope of its functions. [35] However, the localising principle may also require that the conviction be for an offence under State law, or that the court of trial was exercising State jurisdiction.

4. [69]

   In Solomons v District Court of New South Wales, [36] the High Court rejected the proposition that the power of a court or judge to grant a certificate under the Costs in Criminal Cases Act 1967 (NSW) was picked up by s 68 of the Judiciary Act. The Court also considered, but rejected, the proposition that the State law could operate of its own force in relation to a prosecution for a federal offence. The joint reasons of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ stated:

5. [70]

   In Lodhi v Attorney General of New South Wales, [39] this Court held that the exercise of power by a judge in requesting the Sheriff to investigate whether a member of a jury may have been ineligible to serve was a non-judicial power available in the administration of criminal justice and operated as such in respect of a trial which had been conducted in federal jurisdiction. The Court held that it is “only where some step has a potential effect on a federal conviction that a federal source of power is required”: at [61]. The power in question, conferred by s 73A of the Jury Act 1977 (NSW), provided for the Sheriff, “with the consent of or at the request of the Supreme Court or District Court”, to investigate whether any criminal proceedings may have been affected by improper conduct by a member of the jury. The conduct the subject of challenge in Lodhi was the refusal of the Chief Judge at Common Law to request or consent to such an investigation. No step had been taken which could result in the calling into question of the validity of the conviction, although, if an investigation were held and a concern were raised, an application might have been made under s 78 of the Appeal and Review Act. The Court held:

6. [71]

   No party challenged the ultimate finding in Lodhi, although the Commonwealth Attorney was critical of aspects of the reasoning. Its relevance for present purposes is that the greater the distance between the administrative function and any exercise of judicial power, the greater the likelihood that the function falls within State legislative power, and that the legislation was intended to operate regardless of any possible distant federal effect. That issue did not arise in Solomons, because the power was one conferred on the trial court which had, prior to the conclusion of the trial, been exercising federal jurisdiction.

7. [72]

   An administrative function may be characterised as “incidental to” the exercise of judicial power. [40] In that case, if the judicial power is that of the Commonwealth, the function may only be exercisable with the authority of the Commonwealth. One part of the function conferred by s 79 of the Appeal and Review Act, namely the power to refer to the Court of Criminal Appeal, may reasonably be treated as incidental to an exercise of federal jurisdiction by that Court, where the referral involves a conviction for a federal offence. Putting that matter to one side, there are other indicators in Pt 7, Div 3 that it was not intended to operate of its own force with respect to federal convictions. In particular, s 78(2) and s 79(5) require that the registrar of the Supreme Court, Common Law Division, provide a copy of an application (under s 78) and a report of any action taken (under s 79) to “the Minister”. In accordance with s 15(2) of the Interpretation Act, the reference to “the Minister” is a reference to the Minister administering the Appeal and Review Act; that is, a Minister of the State government. The assumption is that that Minister has an interest in the operation of criminal justice within the State. It cannot be read as referring to a Commonwealth Minister. The significance of this point may be illustrated by the manner in which the High Court has dealt with the application by analogy of State law in relation to federal offences when dealing with the right of appeal conferred on a (State) Attorney-General.

8. [73]

   In 1924 the Criminal Appeal Act was amended to include ss 5C and 5D, permitting an appeal by the Attorney General to the Court of Criminal Appeal where the trial court had quashed an indictment or imposed an inadequate sentence. In Williams v The King [No 1] [41] the High Court held that, whilst the reference to appeals might include an appeal by the Attorney against sentence, [42] the language of s 68(2) did not confer a power on the State Attorney (who had prosecuted the appeal) to bring an appeal in relation to a federal offence. Dixon J noted: [43]

9. [74]

   By parity of reasoning, the State Minister administering the Appeal and Review Act can have no interest in, or responsibility for, a conviction for a federal offence. Nor is there any obligation to provide the relevant documents to a Commonwealth Minister. These provisions in the Appeal and Review Act therefore are not engaged in relation to a federal offence. The inference may therefore be drawn that Div 3 of Pt 7 was not intended to apply in relation to federal convictions.

10. [75]

    That reasoning applies with even greater force to the provisions in Pt 7, Div 2 dealing with petitions to the Governor for the exercise of the Governor’s pardoning power. The State Governor has no pardoning power with respect to federal offenders; accordingly there would be no reason to read any part of Div 2 as applying to federal offenders. Division 2, however, provides an alternative mechanism to Div 3 for consideration of convictions where a doubt or question is said to arise. It is appropriate to read the scope of Div 2 and Div 3 consistently, as each may give rise to an inquiry under Div 4, or a referral to the Court of Criminal Appeal under Div 5. Accordingly, and regardless of the link (or absence of link) with the exercise of federal jurisdiction leading to the conviction, neither Div 2 or Div 3 should be read as extending to federal convictions. Div 3 has no operation in the present case, of its own force.

Application of Judiciary Act, s 68

1. [76]

   The focus of the submissions of the applicant and the Attorneys as to the availability of review under Pt 7 of the Appeal and Review Act was s 68 of the Judiciary Act. Section 68 relevantly provides:

2. [77]

   These provisions have two functions: s 68(2) confers jurisdiction on a State court with respect to what may conveniently be described as criminal proceedings. Section 68(1) provides for State laws with respect to procedures to apply to persons charged with offences against laws of the Commonwealth, in respect of whom jurisdiction is conferred on the courts of that State. Section 68(1) is significant because it picks up State laws which might be described as incidental to, or ancillary to the exercise of the judicial function, such as laws with respect to the arrest and custody of persons charged with offences and with respect to committal proceedings. The Commonwealth Attorney directed submissions primarily to subs (1), while the State Attorney focused on subs (2). However, the laws picked up by subs (1) are only those which apply “to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State” under s 68(2). Both provisions must be addressed.

3. [78]

   The first step in construing s 68 is to note the definition of “appeal” in s 2 of the Judiciary Act:

4. [79]

   As a preliminary matter, it is convenient to note that the Crimes Act 1914 (Cth) now makes extensive provision with respect to the issue of search warrants, the gathering of information, the arrest of alleged offenders, the conduct of controlled operations and the sentencing, imprisonment and release of federal offenders. Thus, to the extent that s 68 is capable of picking up State laws with respect to post-conviction review, it may be necessary to consider whether such laws are inconsistent with the specific provisions under Commonwealth law for the post-conviction treatment of offenders.

5. [80]

   The breadth of the laws envisaged as falling within s 68(1) raises a question as to its constitutional basis. In 1985, in The Queen v Murphy, [44] a challenge was mounted to the power of a State magistrate to conduct a committal proceeding in relation to a federal offence. Further, the defendant having been charged with an attempt to pervert “the course of justice in relation to the judicial power of the Commonwealth”, [45] it was contended that no offence was committed, any attempted inference being with a committal proceeding which did not involve an exercise of judicial power.

6. [81]

   The Court noted that, [46] “[i]t has been held in this Court that a magistrate conducting committal proceedings is not exercising judicial power”, referring to Huddart, Parker & Co Pty Ltd v Moorehead [47] and Ammann v Wegener. [48] The Court then identified the challenge to the validity of s 68(2) in the following terms: [49]

7. [82]

   In relation to the third proposition, s 77(iii) of the Constitution confers power on the Parliament to make laws “investing any court of a State with federal jurisdiction.” As to that provision the Court observed: [50]

8. [83]

   By contrast, the process of post-conviction review provided under s 79 of the Appeal and Review Act, (a) does not involve a curial proceeding, (b) is not conferred on a court, but on individual judges, (c) does not involve an obligation to act judicially, (d) adopts no procedures similar to those followed in judicial proceedings, (e) does not result in the commitment of any person to prison and (f) is not a traditional part of any curial process, but rather is an adjunct to, and an attempt to formalise the exercise of, an executive power. The closest step in relation to an exercise of judicial power is that the judge on considering an application may refer the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. In that respect the judge performs a gateway function, permitting a further appeal where all other statutory rights of appeal have been exhausted. Nevertheless, the judge is (i) under no obligation to consider such an application (s 79(3)), (ii) may, instead of referring the matter to the Court of Criminal Appeal, direct an inquiry by a judicial officer (itself not a judicial proceeding), and (iii) may only act if satisfied there is a “doubt or question as to the person’s guilt” (s 79(2)), that being a necessary but not sufficient precondition to the exercise of a power of referral. (For example, even if satisfied that there is a doubt as to the correctness of a conviction, a referral may be refused if the doubt has been fully addressed by an earlier appeal and rejected.) Thus, although in appropriate circumstances (likely to be rare) the matter may be referred directly to the Court of Criminal Appeal, the non-judicial power conferred by s 79(1) cannot be a power incidental to the exercise of judicial power in the sense envisaged in Murphy, dealing with the scope of s 77(iii). At best one element of it may so qualify.

9. [84]

   In the British Medical Association case, [52] Latham CJ, after referring to s 71 of the Constitution setting out the judicial power of the Commonwealth, continued:

10. [85]

    In Queen Victoria Memorial Hospital v Thornton, [53] the Court held invalid a Commonwealth law purporting to confer jurisdiction on a magistrate to make decisions substituting one employee for another under the Re-establishment and Employment Act 1945 (Cth). Deeming this to be an “entirely administrative” function, the Court stated: [54]

11. [86]

    This statement constituted a weakening of the prohibition in British Medical Association, so as to permit the conferral of administrative or ministerial powers which were incidental to the exercise of judicial power. The further step taken in Murphy was to permit a court, other than the court which was to exercise the judicial power, to undertake administrative functions which were closely connected to the exercise of judicial power in the sense discussed above. Although the Court in Murphy did not say so, it would appear that the conferral of such incidental non-judicial powers fell within the scope of s 77(iii).

12. [87]

    In Solomons, the picking up of State laws was considered not as a function of s 68(1), but as a function of s 79 of the Judiciary Act, which was addressed in the following terms:

13. [88]

    The joint reasons in Solomons operated on an assumption that the determination of an application under the Costs in Criminal Cases Act, by the judge who had conducted proceedings in which the applicant was acquitted, was exercising jurisdiction with respect to the criminal proceeding. [58] No such assumption is to be made in respect of the present matter: first, the application is made to a judge of the Supreme Court, not the District Court where the applicant was convicted, and, secondly, the judge exercising a function under s 79 was not exercising judicial power.

14. [89]

    Apart from the fact that the power conferred by the Costs in Criminal Cases Act was to be exercised by the judge who conducted a judicial proceeding, two factors militated against the power being picked up by a law dealing with the exercise of federal jurisdiction by a State court. One was the fact that the subject matter of consideration was the conduct of “proceedings relating to any offence”; the second was the purpose of the certificate, namely to confer upon the acquitted defendant an opportunity to receive payment from the consolidated revenue of the State. Both aspects were to be construed as limited to State matters. In construing s 79 of the Appeal and Review Act, the question is whether the same localising presumption should apply to the “conviction”, that is limiting the reference to conviction for an offence under State law, or whether it was to be understood as limiting it to a conviction by a State court. If the latter, the procedure might be available of its own force. However, the fact that one outcome of the consideration under s 79 might be a referral of the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act, casts doubt on that reading. Consistently with Solomons, the better view is that Pt 7, Div 3 was not, in its terms, intended to confer a right on a person convicted of a federal offence. Thus, unless it was picked up by a federal law and applied in respect of a federal offence, a judge of the Supreme Court had no power to entertain the application.

15. [90]

    That construction, it should be noted, does not exclude the operation of Pt 7 of the Appeal and Review Act with respect to convictions for State offences by a court exercising federal jurisdiction where, as for example in Rizeq v Western Australia, [59] the court was exercising diversity jurisdiction.

16. [91]

    Much of the discussion concerning the application of State law in federal jurisdiction 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. [60] In Northern Territory of Australia v GPAO [61] Gleeson CJ and Gummow J stated:

17. [92]

    Mr Rizeq was convicted of a drug offence in Western Australia, the proceedings being an exercise of federal jurisdiction because he was resident in a different State. He contended that a provision of Western Australian law permitting majority verdicts could not apply because, the Western Australian Misuse of Drugs Act having been picked up and applied as a federal law, the indictment was for a federal offence and s 80 of the Constitution, which did not permit majority verdicts, was engaged. Applying the principle as to the operation of s 79 of the Judiciary Act set out above, the joint reasons concluded:

18. [93]

    Whatever the scope of the incidental power in relation to federal jurisdiction, a State law conferring a non-curial power on a Supreme Court judge does not engage s 79, nor s 68(1) of the Judiciary Act. The circumstances in which a law of the Commonwealth can pick up and apply as a federal law a function of a State officer are limited. A broad reading of such a power would constitute an interference with the operation of the State as an independent polity, contrary to the Melbourne Corporation case. [63]

19. [94]

    Assuming that a direction pursuant to s 79(1)(b) would constitute an administrative act incidental to an exercise of judicial power, a further question must be addressed. As explained in Solomons, [64] s 79 (and by inference s 68) cannot pick up “a particular provision of State law [which] is an integral part of a State legislative scheme” if the result would be “to give an altered meaning to the severed part of the State legislation”. Bearing in mind the complexity of the procedural steps identified in Pt 7 of the Appeal and Review Act, of which some only result in a possible exercise of judicial power, it is not possible for a Commonwealth law to pick up and apply only those parts which could result in an exercise of judicial power. To do so would change the nature of the power conferred under Pt 7, Div 3, and thus give the State law an altered meaning.

20. [95]

    As noted by the Commonwealth Attorney, a different view has been taken by a judge in the Criminal Division with respect to the forerunner of s 79 of the Appeal and Review Act, namely s 474E(1) of the Crimes Act 1900 (NSW). In Application of Pearson, [65] Wood CJ at CL accepted that the purpose of an application to the Supreme Court under s 474D (the equivalent of s 78 in the Appeal and Review Act) was to “call in question” the correctness of the conviction, and thus might constitute an “appeal” for the purposes of the Judiciary Act. However, he did not accept that the whole of Div 3 involved an exercise of, or was incidental to, judicial power. Rather, he held that the function exercised under s 474E was not the exercise of judicial power, nor was the conduct of an inquiry under Div 4 an exercise of judicial power. [66] The judge held that s 68(1) of the Judiciary Act picked up s 474E(1)(b), but not s 474E(1)(a). That was not, he concluded, to give the State legislation an “altered meaning”, which would go beyond the scope of the provisions such as ss 79 and 68 of the Judiciary Act. [67]

21. [96]

    Rather, Wood CJ at CL reasoned from such decisions as Brown v The Queen [68] and Cheatle v The Queen [69] that it was possible to pick up a portion of a State law without giving the law an altered meaning. Thus in Brown the High Court held that because s 80 of the Constitution required that a federal indictable offence could be prosecuted only before a jury, that part of State law which permitted an accused to elect for a trial by judge alone was not picked up. In Cheatle the Court held that a State Act could not, consistently with s 80, permit conviction by a majority verdict of the jury. [70] The judge concluded:

22. [97]

    The reasoning in Pearson is sound up until the last step; this last step is unpersuasive. First, with respect to Brown and Cheatle, a constitutional constraint on what state laws may be picked up is an exercise different in kind from determining the limit of the constitutional power to pick up state laws. In other words, the power to invest a state court with federal jurisdiction permits the application of specific state laws subject to a qualification, that they not be inconsistent with the Constitution or any law of the Commonwealth. That can give rise to a hybrid system of applicable laws. However, the extent to which a particular state law can be changed is a different question. A state law providing for a jury trial does not cease to operate in its terms because an alternative of trial by a judge alone is not available, nor because a provision for a majority verdict is not available.

23. [98]

    To say of a purely administrative exercise that it may be incidental to the exercise of judicial power if it results in one decision rather than another is to divide the function into two separate parts and, in effect, into two separate discretionary powers. A better analogy is that which may be drawn from Murphy’s case. The function of undertaking a committal hearing was not incidental to an exercise of judicial power only if the person were to be committed for trial, and not if the charge were to be dismissed. While it may be accepted, as stated by Wood CJ at CL, that “[t]he line is not easy to draw”, [71] the better view is that if the judge considering an application under s 78 has no power to direct that an inquiry be conducted (as he or she would in relation to a State offence), the power in question is not that conferred by s 79, but only a part of that power. The submissions of the State Attorney which supported that conclusion should be accepted.

24. [99]

    If the last conclusion (that s 79(1)(b) alone is not available to be picked up as incidental to the exercise of federal jurisdiction in relation to an offence under Commonwealth law) be wrong, and conceding constitutional capacity, there remains an issue as to whether s 68 of the Judiciary Act in fact picked up s 79(1)(b) of the Appeal and Review Act.

25. [100]

    In undertaking that exercise of statutory construction, it is necessary to bear in mind two fundamental features of Pt 7 which have been identified above. The first is that Pt 7 is not an element of the criminal process for determining the guilt of an offender on indictment. It comes into play only when the hierarchical structure of appeals in criminal proceedings has been exhausted. The second is that it does not simply provide a gateway or filter to, or a contingent right to, a further appeal. Rather, it provides an opportunity in a case where doubt has arisen, either for further steps to be taken in the Court of Criminal Appeal, or for an administrative inquiry to be held.

26. [101]

    As originally enacted, s 68(2) did not refer to the hearing and determination of appeals. However, s 72 of the Judiciary Act provided for a procedure by way of reserving a question of law which arises on a trial on indictment for consideration of a full court. Section 77 imposed constraints on an appeal to the High Court from a judgment or sentence pronounced on the appeal of a person charged with an indictable offence against the laws of the Commonwealth. In Seaegg v The King [72] the High Court stated, referring to s 68(2):

27. [102]

    The Judiciary Act was amended in the same year (1932) to remedy the omission. [73] More recently, the High Court has identified the central purpose of s 68 as to establish a regime for the administration of criminal justice in federal jurisdiction mirroring, as closely as possible, the respective State jurisdictions. Accordingly, restrictive inferences are no longer drawn from the availability of other powers in the Judiciary Act.

28. [103]

    The reasoning in Williams [No 1] [74] is inconsistent with the proposition that s 68(2) picks up a provision for an appeal under State law where the availability of the appeal turns upon an administrative decision by a State officer. The moving party under s 5D of the Criminal Appeal Act is the State Attorney General or Director of Public Prosecutions; the Commonwealth was responsible for prosecuting the offence. Indeed, Williams [No 1] might support the view that the intrusion of the State Director of Public Prosecutions into the process, by making submissions to Garling J as to why the application should be rejected, was an intrusion by a person who had no interest in the proceeding and therefore no right to be heard in opposition to the application. It also follows that there was an error in so far as the Registrar of the Common Law Division gave a copy of the application under s 78 to the State Attorney and not to the Commonwealth Attorney.

29. [104]

    After Williams [No 1] a question remained as to whether s 68(2) of the Judiciary Act enabled the Commonwealth Attorney to appeal to the Court of Criminal Appeal in respect of an inadequate sentence. That issue came before the High Court in Williams [No 2], following the lodging of an appeal in the Court of Criminal Appeal by the Commonwealth Attorney. The Court divided as to the proper construction of s 68(2). [75] Gavan Duffy CJ, Evatt J and McTiernan J held that s 68 did not enable the Commonwealth Attorney to bring an appeal; Rich, Starke and Dixon JJ held that “the adoption of State law must proceed by analogy” so that the proper officer of the Crown was, in respect of a federal offence, the Commonwealth Attorney. [76] As noted by Geoffrey Lindell in Cowen and Zines’s Federal Jurisdiction in Australia [77] the latter view was accepted in Peel v The Queen [78] and, by the whole Court, in Rohde v Director of Public Prosecutions. [79] There can be little doubt that if Pt 7 Div 3 were to be picked up by s 68 of the Judiciary Act, the relevant application by analogy must include a conferral of power on a Commonwealth officer, or the conferral of Commonwealth power on a judge of the State Supreme Court. [80] How that could have happened will be addressed below.

30. [105]

    Similar questions might have arisen in cases where provisions equivalent to former s 26 of the Criminal Appeal Act were invoked. The equivalent Queensland provision is s 672A of the Criminal Code, which confers the power of referral on “the Crown Law Officer”, a phrase defined in s 1 of the Code to mean the Attorney-General for Queensland or the Queensland Director of Public Prosecutions.

31. [106]

    One such case involved Mr Martens, who had been convicted in a Queensland court of a Commonwealth offence. Following an unsuccessful appeal, he sought to invoke the pardoning power of the Commonwealth, relying on s 672A of the Criminal Code (Qld). The application was considered by the Minister for Home Affairs as the Minister responsible for administering the Judiciary Act. There was an issue in the Federal Court proceedings as to whether the application of s 672A by analogy conferred power on that Minister, rather than the Attorney-General. Logan J accepted that it did, further accepted that the decision of the Minister was judicially reviewable, and set the decision aside. [81]

32. [107]

    On reconsideration, the Minister exercised the power to refer the matter to the Queensland Court of Appeal. That Court held, by a majority, that it had jurisdiction, the matter being the first case in which the issue of jurisdiction was fully argued. The majority decision (Muir and Chesterman JJA, Fraser JA dissenting) dismissed a doubt which had been expressed by an earlier Court of Appeal dealing with a bail application by Mr Martens. [82] The Court noted the difficulty in the following terms:

33. [108]

    It is not necessary in the present matter to decide whether this Court should follow the reasoning of the majority in Martens (No 2), or that of Fraser JA. That is for two significant reasons. First, the language of s 672A of the Queensland Criminal Code, whilst closely comparable to the now repealed s 26 of the Criminal Appeal Act, is markedly different from Pt 7 of the Appeal and Review Act. In particular, the procedure available by way of application to the Supreme Court under s 79 is not expressed in terms of a petition invoking the pardoning power.

34. [109]

    Secondly, there was no attempt in the present case to invoke, by analogy, functions of the Commonwealth executive. By contrast, it was a uniform assumption of all the judges involved in the Martens cases that State officers had no role to play in relation to a conviction under a federal law.

The conferral of non-curial power

1. [110]

   Accepting that the Commonwealth can confer powers on judicial officers which are not incidental to the fulfilment of their judicial duties, the High Court has held, for example, that federal search warrants and telephone interception warrants may properly be issued by judges, without contravening a constitutional separation of powers. That can be done by conferring the powers on judges in their personal capacity and not as members of the courts which they constitute for the exercise of judicial power: see Hilton v Wells, [85] approved in Grollo v Palmer, [86] where Brennan CJ, Deane, Dawson and Toohey JJ stated: [87]

2. [111]

   In Aston v Irvine [88] the High Court upheld the conferral of a ministerial power on State magistrates by the Service and Execution of Process Act 1901 (Cth) to undertake steps with respect to the execution of warrants for the arrest and removal of a person to another State. Those powers were not entirely ministerial, but permitted the exercise of a discretion in circumstances where the charge was of a trivial nature, the application for the return of the person was not made in good faith or would, for any other reason, be unjust or oppressive. Those powers were conferred on magistrates or justices of the peace and not on a State “court”. They could not, therefore, depend on s 77(iii) for their validity. The ministerial functions were held to be properly conferred on State officers in respect of which they had similar functions under State law, pursuant to the legislative power under s 51(xxiv) with respect to the service and execution of process through the Commonwealth. Further, the Court stated: [89]

3. [112]

   To the extent there was doubt about that analysis (in fact s 19 provided a power of review on application of the person the subject of a warrant) the Court further stated, as to the discretionary power of the magistrate or justice:

4. [113]

   A more recent case dealing with Commonwealth conferral of functions on State judicial officers is O’Donoghue v Ireland. [90] Pursuant to the Extradition Act 1988 (Cth) the eligibility of a person for surrender by way of extradition to another country was conferred on State magistrates. (The ultimate decision to surrender was vested in the Commonwealth Attorney.) The term “magistrate” was defined to include “a magistrate of a State … in respect of whom an arrangement is in force” between the Commonwealth and State executives for the performance of functions under the Extradition Act. Senior counsel for the applicants relied on three propositions: [91]

5. [114]

   As Gleeson CJ noted, counsel had qualified the first proposition so as to accommodate the “autochthonous expedient of conferring federal jurisdiction on State courts”. [92] The proposition was further refined by a requirement that the functions and incidents of State office “are exhaustively defined by State legislation.” [93] As the Chief Justice noted, that qualification raised an issue about the effect of an arrangement between the State Governor and the Governor-General as to the availability of particular magistrates.

6. [115]

   With respect to the second proposition, Gleeson CJ noted that the Extradition Act envisaged that, if the function conferred was a non-judicial function, it was conferred “only in a personal capacity”.

7. [116]

   The reasoning of the joint judgment (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) was to similar effect. They noted that the argument for invalidity turned on “the imposition by the federal law of a duty rather than merely the conferral of a power” which reflected the reasoning in Aston v Irvine. Because it was concluded that no duty was imposed on any magistrate, the joint reasons found it unnecessary to address either the first or third propositions.

8. [117]

   The engagement of these principles faces two difficulties in the present case. The first is that, other than the provisions of the Judiciary Act, no law of the Commonwealth was identified which purported to confer functions such as those found in Pt 7 of the Appeal and Review Act on State officers. But if ss 78 and 79 of the Appeal and Review Act 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. Secondly, even if that obstacle were overcome, there is nothing in s 79 of the Appeal and Review Act which provides for voluntary acceptance of federal power. The State Act cannot, therefore, operate in its own terms without contravening the essential element of conferral of federal administrative power on a State officer identified in Grollo.

9. [118]

   Both the State and Commonwealth Attorneys sought to avoid the last obstacle by relying on s 4AAA of the Crimes Act 1914. That section relevantly provides:

10. [119]

    Section 4AAB provides for the Governor-General to make arrangements with, amongst others, the Governor of a State, for the performance of such functions by a State judge. While it is understandable that these provisions could operate in circumstances where a law of the Commonwealth specifically makes provision for the exercise of administrative functions by a State judge, it is less clear that s 4AAA can have any operation where the Commonwealth law purports to pick up and apply unchanged a relevant State law having that effect.

11. [120]

    It follows that, if an application under s 78 engaging the functions conferred on a State Supreme Court judge under s 79 cannot as a matter of State law operate with respect to a conviction for a federal offence, there is no Commonwealth law which gives that provision any extended operation. That is because (i) no Commonwealth law purports to do so; and, (ii) to the extent that the Judiciary Act provisions might have such an operation, they are not in a form which would comply with the constitutional constraints on Commonwealth power.

Conclusions

1. [121]

   As has been seen, there have been a number of cases in which a Commonwealth officer has sought to invoke powers under a State law to have a matter referred to a Court of Criminal Appeal for further consideration by way of appeal under the relevant State law. Because no such power has been engaged in the present case, it is not necessary, nor appropriate, to reach any conclusion as to the availability of Pt 7 to a Commonwealth Minister or the Governor-General.

2. [122]

   The question in this case was whether the Commonwealth had legislated so as to confer such power on a State officer. A State law which purported to permit an officer of the State to take steps to allow a possible reversal of a conviction for a federal offence would give rise to an inconsistency pursuant to s 109 of the Constitution, and would be, to that extent, ineffective. The same conclusion would follow if a State court were to quash a conviction entered in the exercise of federal jurisdiction, in the absence of a Commonwealth law conferring federal jurisdiction on the State court.

3. [123]

   No party submitted that the Commonwealth had legislated so as to confer power on any officer, whether Commonwealth or State, to take steps to review a conviction for an offence against a law of the Commonwealth by way of executive or administrative action. The only powers relied upon were those conferred on a State court in the exercise of federal jurisdiction, pursuant to s 68 of the Judiciary Act. However, as Garling J was not exercising judicial power, s 68 of the Judiciary Act was not engaged on that basis.

4. [124]

   There remained the proposition that the steps taken pursuant to s 79 of the Appeal and Review Act, whilst they constituted administrative acts, were nevertheless incidental to the exercise of federal judicial power. But that was so only if the judge referred the case to the Court of Criminal Appeal, being one of a number of available outcomes. To permit the power to be used only for this purpose would alter the effect of the State law and prevent it being picked up in its altered state.

5. [125]

   For these reasons, Mr Huynh’s application under s 78 of the Appeal and Review Act failed to engage the function of a Supreme Court judge under s 79 of that Act. The exercise undertaken by Garling J was therefore ineffective. While it is appropriate for a court to make a declaration to that effect, as there was no exercise by the judge of a power under s 79(1), there is no relevant decision which needs to be set aside.

6. [126]

   The point at which these reasons depart from those of Leeming JA is in identifying the operation of the localising rule expressed in s 12 of the Interpretation Act. We agree that the terms “conviction” and “sentence” refer to outcomes of a criminal proceeding in a State court. We further agree that this may include a conviction and sentence resulting from the exercise of federal jurisdiction. Leeming JA concludes that that may include any exercise of federal jurisdiction. These reasons conclude that ss 78 and 79 of the Appeal and Review Act do not extend to a conviction and sentence for a federal offence, but only for State offences. Leeming JA does not need to find support for the application of s 68 or s 79 in the Judiciary Act and, while he acknowledges the necessity for federal law to make Div 5 of Pt 7 applicable for federal offences, he considers that ss 78 and 79 (comprising Div 3) can be treated separately. These reasons proceed on the basis that federal law is required to make Pt 7, Div 3 applicable to federal offences, but conclude that Pt 7, Div 3 cannot be picked up and applied without substantial alteration and is therefore not so applied. Accordingly, it does not operate in respect of convictions or sentences for federal offences.

Orders

1. [127]

   The Court should make the following orders:

   1. (1)

      Declare that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW):

   2. (2)

      Declare that the decision of Garling J purporting to determine an application lodged with the Supreme Court by Huy Huynh under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect.

   3. (3)

      Otherwise dismiss the summons.

2. [128]

   GLEESON JA: I agree with the orders proposed by Basten JA for the reasons his Honour gives. I also agree with the additional reasons of Payne JA.

3. [129]

   LEEMING JA: As Basten JA explains, Mr Huy Huynh seeks to review the dismissal by Garling J of his application for an “inquiry” into his conviction by the District Court on one count of conspiring to import a commercial quantity of a border controlled drug precursor, contrary to s 307.11 and 11.5(1) of the Commonwealth Criminal Code. Mr Huynh’s application was made pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) within Division 3 of Part 7 of that Act. Although s 78 simply referred to an application for an inquiry, s 79 authorised “the Supreme Court” to accede to an application in either of two distinct ways, corresponding to Divisions 4 and 5: to direct that there be an inquiry conducted by a judicial officer, or to refer the whole case to the Court of Criminal Appeal, to be dealt with “as an appeal”, but in either case only if it appeared that there was “a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”. The statute refers to “the Supreme Court” as the body to which the application is made and by which it is considered and determined, but also provides in s 75 that the jurisdiction of the Supreme Court under Part 7 is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction. The full text of s 79 and other relevant legislation is reproduced in the annexure to these reasons, but s 79(4) provided that:

4. [130]

   The ultimate question is whether, as Mr Huynh contends, there is appellable or alternatively judicially reviewable error in the dismissal of his application. However, most of the written and oral submissions in this Court concerned two inter-related but anterior questions:

   1. (1)

      what is the nature of this Court’s jurisdiction (if any) to review the decision under s 79 in respect of a conviction under federal law, and

   2. (2)

      how (if at all) did ss 78 and 79 apply to Mr Huynh's application?

5. [131]

   The former is this Court’s “first duty”, namely, to identify the character of the jurisdiction being exercised: see Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [14]. It is linked to the latter, insofar as the distinct appellate and supervisory jurisdictions exercised by this Court turn on the nature of the decision from which proceedings are brought. Briefly, this Court exercises appellate jurisdiction pursuant to s 101(1) of the Supreme Court Act 1970 (NSW) from judgments or orders of the Court in a Division, subject to the exception in s 17 for those criminal proceedings specified in the Third Schedule (which by and large fall within the jurisdiction of the Court of Criminal Appeal). This Court also exercises a supervisory jurisdiction over exercises of State executive power, which is regulated by s 69 of the Supreme Court Act and aspects of which (namely, review for jurisdictional error) are constitutionally entrenched: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1.

6. [132]

   The parenthesised words in the two anterior questions identified above reflect the facts that arguments have been advanced that (a) this Court lacks jurisdiction to determine Mr Huynh’s summons, and (b) ss 78 and 79 did not apply to Mr Huynh’s application to Garling J. Those arguments are based upon the federal aspects of this litigation, which should also be mentioned at the outset because they are the source of greatest complexity.

7. [133]

   This Court is exercising federal jurisdiction today. It was common ground, correctly so in my opinion, that whatever the character of the appellate or supervisory jurisdiction this Court was exercising, it was federal jurisdiction. Indeed, this Court might decide that Mr Huynh’s summons was not within its jurisdiction, and dismiss it for want of jurisdiction, but even in that case, this Court’s undoubted authority to decide whether a claim is within its jurisdiction would be federal jurisdiction (see State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31]). This Court is inevitably exercising federal jurisdiction because the ultimate basis of Mr Huynh’s application was his challenge to his conviction of a federal offence, and this, by analogy with the principles in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581; [1983] HCA 31 is a matter arising under a federal law (the Commonwealth Criminal Code).

8. [134]

   As will be seen, there is a large question whether federal law was involved more directly in the dismissal of Mr Huynh’s application under s 78. But that is a separate point, with consequences for whether that dismissal was a decision “made under an enactment” for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

9. [135]

   As will also be seen, there is a deal of complexity in the way in which this Court has been invested with federal jurisdiction. The present is a (rare) case where it is not sufficient to point to the general investments of federal jurisdiction in ss 39(2) and 68(2) of the Judiciary Act 1903 (Cth). That is because (a) other federal laws, which are directed to confining the review of certain classes of decisions to federal courts, qualify those general investments of federal jurisdiction, and (b) further federal laws re-invest federal jurisdiction but on highly qualified terms to fill the gap thereby created. The powers to invest federal jurisdiction in State courts and to make the jurisdiction of federal courts exclusive in s 77(ii) and (iii) of the Constitution have been used repeatedly and with a view to achieving different ends by important complicated federal legislation (ss 39 and 68 of the Judiciary Act, s 9 of the Administrative Decisions (Judicial Review) Act and ss 4 and 6 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The interaction arises at the threshold of this application, because on one view this Court cannot hear and determine the summons, but must transfer it to the Federal Court of Australia.

10. [136]

    Hence it is necessary to identify, and at the outset, the nature of the jurisdiction invoked by Mr Huynh’s summons. Enough has already been said to indicate that that is quite complex. However, in my view the submissions advanced in this Court paid insufficient attention to three more general propositions which simplify the analysis.

    1. (1)

       First, merely to establish that a decision is ancillary or incidental to the exercise of judicial power does not without more identify its character. The same decision can be ancillary or incidental to the exercise of both judicial and non-judicial power.

    2. (2)

       Secondly, at the State level, distinctions between judicial and non-judicial power are less significant than at the Commonwealth level. The separation of powers found in Chapter III of the Commonwealth Constitution does not apply at the State level: Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [106]. Nonetheless binding authority holds that there is no federal legislative power to confer powers which are neither judicial nor incidental to judicial power upon a State court: Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144; [1953] HCA 11. But care must be taken in deploying authorities concerning federal judicial and non-judicial power.

    3. (3)

       Thirdly, much has altered following the reformulation of principle by the High Court in Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 and Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21, which is helpfully discussed in J Stellios, The Federal Judicature: Chapter III of the Constitution (2nd ed 2020, LexisNexis), Ch 10. No longer is it necessary to identify a federal law (such as s 79 of the Judiciary Act) to pick up the body of State statute law when a court is exercising federal jurisdiction; cf Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 at [12]. Instead, it necessary to inquire into whether particular State laws (such ss 78 and 79 of the Crimes (Appeal and Review) Act) are characterised as State laws governing the exercise of jurisdiction or State laws determinative of the rights and duties of persons: see Masson v Parsons at [30]. If the former, some federal law is required to make the State laws applicable. However, if the latter, the State laws apply of their own force even if the Court is exercising federal jurisdiction. Once again, care must be taken in relying upon earlier authorities on the need to identify a federal law in order for a State law to be applicable in the exercise of federal jurisdiction. That said, and as Edelman J observed in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45; 94 ALJR 51 at [229], it is possible for a law to be neither exclusively determinative of the rights and duties of persons nor exclusively concerned with the manner of exercise of jurisdiction; see also Doyle’s Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) [2021] NSWCA 246 at [54]. In that case, nothing turned on the overlap. In the present case, it may.

The parties’ submissions on jurisdiction

1. [137]

   The parties advanced a cascade of submissions as to the nature of this Court’s jurisdiction and the nature of the decision sought to be impugned. I shall broadly follow the order in the hearing, but the starting point is the jurisdiction exercised by the District Court and the Court of Criminal Appeal in 2015 and 2017 at Mr Huynh’s original trial and appeal.

2. [138]

   The District Court when it heard and determined the indictment charging Mr Huynh with a federal offence was exercising federal jurisdiction. The indictment also contained charges against Mr Christopher Cranney, arising out of the same facts. As it happened all of the charges against both men were federal offences, but that did not affect the character of District Court’s jurisdiction. There was a single “matter” for the purposes of Chapter III of the Constitution, being a matter arising under a law of the Commonwealth falling within the description of a “matter” in s 76(ii) of the Constitution, as French CJ, Crennan and Kiefel JJ noted in Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 at [6]. If the indictment had also charged offences under State law arising out of the same facts, there would still have been a single matter: the position is no different from civil litigation where a claim under federal statute is accompanied by a claim at common law or under State statute based on the same factual substratum. As was said in Rizeq at [55], “There is but one matter and that matter is entirely within federal jurisdiction, as distinct from State jurisdiction”. A recent example may be seen in Ozgen v R [2021] NSWCCA 252 at [49]-[57].

3. [139]

   Jurisdiction, which was necessarily federal, was invested in the District Court to hear and determine that matter by s 68(2) of the Judiciary Act. That occurred because State law authorised the District Court to hear and determine (most) matters arising on indictment and s 68(2) invested the “like jurisdiction” in that Court. (This is somewhat more complex than it may seem: see Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [39] but nothing turns on this for present purposes.)

4. [140]

   The Court of Criminal Appeal was also exercising federal jurisdiction invested by s 68(2) of the Judiciary Act when it dismissed the appeals brought by him and Mr Cranney against their convictions: Cranney v R; Huynh v R [2017] NSWCCA 234. It is well settled that s 5 of the Criminal Appeal Act 1912 (NSW) (which authorised the appeals) read with amendments to s 68(1) and (2) enacted promptly after Seaegg v The King (1932) 48 CLR 251; [1932] HCA 47 expressly referring to “the hearing and determination of appeals” is available to sustain an appeal to the Court of Criminal Appeal from a conviction for a federal offence. It may be tempting to think that the provisions of Part 7 of the Crimes (Appeal and Review) Act apply in the same way. But as this proceeding demonstrates, the position is much more complex, because Part 7 contains a suite of provisions some of which unquestionably involve administrative power (Division 4), some of which unquestionably involve judicial power (Division 5), to both of which ss 78 and 79 (Division 3) are the gateway.

5. [141]

   The conviction and sentence imposed by the District Court were nonetheless a judgment and orders of a State court. As it happens, it is quite obvious on the face of the conviction that the District Court was exercising federal jurisdiction, because the conviction was for an offence created by Commonwealth law. That need not be so. Convictions and sentences for offences under New South Wales law may be imposed in the exercise of federal jurisdiction, and in a number of ways. If as in Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 and Rizeq the accused is a resident of another State when proceedings are commenced, then the court may be exercising federal (diversity) jurisdiction (which is to say, there will be a matter answering the description of s 75(iv) of the Constitution) even though the prosecution is for a State offence. Even if the accused person is a resident of New South Wales, and raises a non-colourable defence based on federal law, or under the Constitution, then the District Court will once again be exercising federal jurisdiction (there will be a matter answering the description of s 76(i) or (ii) of the Constitution): see for example Lavender v Department of Industry (NSW) [2017] NSWDC 236; 25 DCLR (NSW) 389 (summons dismissed Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development [2018] NSWCA 174; 359 ALR 96) and Garth v The Queen [2017] NSWDC 469; 30 DCLR (NSW) 298. Importantly, the constitutional or federal claim need not be accepted in order for the jurisdiction to be federal. That was the point of Owen Dixon KC’s example in 1927 of the Swan Hill tramp, arrested for vagrancy, who claimed that he was engaged in interstate commerce and could not be obstructed:

6. [142]

   It was said in Macteldir Pty Ltd v Dimovski [2005] FCA 1528; 226 ALR 773 at [36], with reference to authority,

7. [143]

   I mention these last points because it may not be obvious on the face of the record whether the court was exercising federal jurisdiction, and that bears upon some of the submissions made on Mr Huynh’s summons. A ruling during a trial raising a federal issue may suffice, and even if it is rejected, it may lead to the whole of the proceedings being in federal jurisdiction (unbeknownst to the Crown, the accused person and the judge). As was noted in Momcilovic at [134], the fact that the County Court of Victoria was exercising federal jurisdiction at the trial in 2008 seems only to have been appreciated in the appeal to the High Court.

8. [144]

   Mr Huynh maintained that the judge was exercising a judicial function. The forensic goal was twofold. In part it was to engage this Court’s appellate jurisdiction, which was perceived (not incorrectly) to give greater opportunities for success. In part it was to identify error on the part of the judge, who was said to have “erred by misapprehending the nature of the power being exercised, in finding at [9] that the Court is engaged in an administrative task or function when determining this application”. This was the fifth ground of Mr Huynh’s application.

9. [145]

   In support of this submission, Mr Huynh relied upon the fact that s 78 is expressed in terms of an application being made “to the Supreme Court”. He submitted that “[t]o the extent that Sinkovich decides to the contrary, that case was wrongly decided”. The result was that an appeal would lie (subject to leave) pursuant to s 101 of the Supreme Court Act, with the summons being treated as a summons seeking leave to appeal.

10. [146]

    Some of the issues arising on Mr Huynh’s summons are complex, but this is not one of them, and it is best resolved immediately. I agree with the unstated premise in Mr Huynh’s submission that s 17 of the Supreme Court Act does not disapply that Act. Section 17 disapplies the Supreme Court Act in respect of proceedings specified in the Third Schedule, and precludes claims for relief against interlocutory judgments or orders in some of the proceedings specified in that Schedule. The complexities of that poorly understood section need not be explored because it is tolerably clear that even on the broadest view of the Schedule, the application dismissed by Garling J was neither a proceeding specified in the Schedule, nor an interlocutory judgment or order in any such proceeding, even though the Schedule extends to “sentencing or otherwise dealing with persons convicted”. Rather, as explained below, Garling J was dealing administratively with a separate application made years after Mr Huynh was convicted and sentenced.

11. [147]

    Contrary to Mr Huynh’s submission, Garling J was not exercising a judicial function for these reasons:

    1. (1)

       First, the function was created by statute, and the statute spoke with unmistakable clarity to its nature. Subsection 79(4) provided that “Proceedings under this section are not judicial proceedings.” Mr Huynh provided no submissions to explain why the statute should be construed to achieve a result diametrically opposed to what it stated in terms.

    2. (2)

       Secondly, the incidents of the application under s 78 are antithetical to ordinary incidents of judicial functions. There was no obligation to hear and determine the application in open court. Nor was there any obligation to give reasons. Both were identified as typically defining characteristics of courts in North Australian Aboriginal Justice Agency Limited v Northern Territory (2015) 256 CLR 569; [2015] HCA 41 at [39]. In Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 the absence of reasons was regarded as critical to the finding of incompatibility: see at [44], [54]-[58] and [104]-[109].

    3. (3)

       Thirdly, s 79(3) provided that “the Supreme Court may refuse to consider or otherwise deal with an application”. The notion of a “judicial function” has been used to connote different things from time to time (see M Aronson et al, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017), pp 859-860). However, the idea that a person exercising a judicial function in the sense advanced by Mr Huynh is at liberty to choose not to determine a matter seems decidedly unlikely.

    4. (4)

       Fourthly, Mr Huynh’s submission that Garling J was exercising a judicial function is not merely contrary to Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (a decision of this Court constituted by five judges), as he fairly recognised. Sinkovich built upon what had been held by a majority of this Court in Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 (Hope JA, with whom Samuels JA agreed, Kirby P dissenting). The function was also held to be non-judicial in Patsalis v Attorney-General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 at [22] and in Lodhi v Attorney-General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [22] (in both cases, by Basten JA, Bathurst CJ and Beazley P agreeing). Patsalis has in turn been applied on this point in Buttrose v Attorney General of New South Wales [2015] NSWCA 221; 324 ALR 562 at [4] (Beazley P and Leeming JA); GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [140] (Payne JA, Beazley ACJ agreeing, Simpson JA dissenting in the result, but confirming at [4] that it was “an exercise of administrative, not judicial, power”) and Clark v Attorney General of New South Wales [2020] NSWCA 70 at [12] (McCallum JA, Basten JA and Macfarlan JA agreeing).

12. [148]

    The submissions advanced by counsel on Mr Huynh’s behalf did not acknowledge, let alone seek to engage with, the full weight of authority against the conclusion that Garling J was exercising a judicial function. Nor did they explain how he was entitled to refuse to determine the application (as recorded in his Honour’s reasons, to which I shall return). Nor did they explain why s 79(4) did not mean what it said.

13. [149]

    Despite the legislation referring to “the Supreme Court”, ss 78 and 79 did not confer a judicial function. They conferred an administrative function, from which no appeal lay. It follows that Mr Huynh’s summons should be treated as a summons seeking judicial review not leave to appeal, and that the jurisdiction exercised by this Court is supervisory, not appellate.

14. [150]

    By way of fallback, Mr Huynh submitted that the power was incidental to judicial power, or alternatively administrative, in which case he adopted the submissions of the Commonwealth Attorney-General.

15. [151]

    The Commonwealth Attorney-General consented to being joined to the proceedings in this Court, and took the lead in opposing Mr Huynh’s submissions both on the merits as well as in relation to jurisdiction.

16. [152]

    The Commonwealth Attorney-General submitted that Part 7 applied by reason of s 68 of the Judiciary Act, and that while the power to determine an application was properly characterised as administrative, it was performed either by an authorised judge acting persona designata or by the Court as a function incidental to judicial power. The Attorney’s preferred position was that the judge was acting persona designata, by reference to the fact that the proceedings were stated by s 79(4) to be “not judicial proceedings”, and by reference to the historical character of post-conviction schemes being decisions of the executive. This was said to lead to a straightforward application of s 68 of the Judiciary Act and in turn to engage s 4AAA of the Crimes Act 1914 (Cth). Alternatively, if power was conferred on the Court, then s 79(1)(b) was to be regarded as ancillary to judicial power, and in that fashion picked up by s 68.

17. [153]

    Either way, it was said that an exercise of power pursuant to ss 78 and 79 in relation to a federal offender was an exercise of power conferred by Commonwealth legislation, and therefore reviewable pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), because however the sections be characterised, the decision was “under” s 68 of the Judiciary Act and hence a decision under a federal enactment. I shall deal with the consequences of this below.

18. [154]

    The written submissions filed by the New South Wales Attorney-General took an agnostic stance, advancing the following ten propositions.

19. [155]

    Those submissions were helpful in explaining the permutations and the inter-relationship between them, but fell short of indicating the Attorney’s preferred position. However, in oral address, Mr Sexton submitted that jurisdiction was conferred on the Supreme Court, rather than the judge as persona designata, but that the power exercised under ss 78 and 79 was incidental to judicial power invested in the Court of Criminal Appeal and to that extent made applicable to federal offenders through the operation of s 68 of the Judiciary Act (ie propositions (c), (e) and (f) above). The consequence was that the decision of Garling J was either a decision under an enactment for the purposes of the Administrative Decisions (Judicial Review) Act (if so, the New South Wales Attorney agreed with the analysis of jurisdiction by the Commonwealth Attorney which ensued, including the conclusion that it was appropriate for this particular “special federal matter” to be heard and determined by this Court), or alternatively (by proposition (g) above) the decision fell within this Court’s supervisory jurisdiction in the exercise of federal jurisdiction invested pursuant to s 39(2) of the Judiciary Act. The significance of the potential for there to be a hearing in the Court of Criminal Appeal was confirmed by the following exchange:

20. [156]

    The complexity is palpable. I have found it helpful to identify the elements involved in analysing the jurisdictional question, and the constraints to which the parties’ submissions are subject. A little unusually, there are constraints upon both State and Commonwealth legislative power.

21. [157]

    First, there is a question of construction. Do ss 78 and 79 of the Crimes (Appeal and Review) Act apply in terms to persons convicted and sentenced for a federal offence? This turns on the operation of s 12 of the Interpretation Act 1987 (NSW) and the general rule of construction whereby State legislation is confined so as to have a connection with the State.

22. [158]

    Secondly, there is a question of State legislative power. If ss 78 and 79 do apply as a matter of construction to persons convicted or sentenced for a federal offence, may the State Legislature empower these steps which are intended to open a gateway for the conviction or sentence to be quashed? This is closely linked to a question of severance. For it cannot be the case that a State law can of its own force empower a court to set aside a conviction by a State court of a federal offence, or to alter the sentence imposed by that Court. That falls foul of the reasoning of all judgments in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. But the provisions in the Act on one view lend themselves readily to a divisible approach. Division 3 concerns “Applications to Supreme Court”, Division 4 concerns “Inquiries” and Division 5 concerns “Court of Criminal Appeal”. Each Division is discrete and Division 4 is mutually exclusive with Division 5. The question of power amounts in the present case to determining whether ss 78 and 79 which constitute Division 3 apply of their own force to applications concerning convictions or sentences of federal offenders, leaving the provisions of Division 5 (“Court of Criminal Appeal”) to operate through being made applicable by ss 68(1) or 79 of the Judiciary Act.

23. [159]

    Thirdly, the nature of the power exercised under ss 78 and 79 bears upon the operation of s 68 of the Judiciary Act. It does so in two ways. The first is that it affects whether as a matter of construction, s 68 of the Judiciary Act applies to ss 78 and s 79. This principally turns on the extended definition of “appeal” in s 2 of the Judiciary Act. The second is because of limitations upon Federal legislative power.

24. [160]

    The Commonwealth Parliament cannot invest a State court with a function which is neither judicial nor incidental to a judicial function. That is because ss 77 and 79 of the Constitution define the limits of federal power. Latham CJ said in British Medical Association v Commonwealth (1949) 79 CLR 201 at 236; [1949] HCA 44 that “There is no provision in the Constitution which enables the Commonwealth Parliament to require State courts to exercise any form of non-judicial power”. In the same decision, Dixon J strongly hinted that he favoured the same result, noting at 257 that it was “a suggestion not lightly to be rejected”, but ultimately did not decide the point. Subsequently the joint judgment of all members of the Court in Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144; [1953] HCA 11 upheld and applied what Latham CJ had said, continuing at 152 “It would be strange indeed if the Constitution contained a grant of legislative power which would enable the Parliament to require or to authorise State courts as such to execute duties, functions or powers which were not judicial.” Thus a federal law which conferred power upon a court of summary jurisdiction to determine which of two persons entitled to preference through war service should be engaged by an employer, being a power which was purely administrative, was invalid. The joint judgment noted that:

25. [161]

    Conversely, there is federal legislative power to authorise a member of a State court, in his or her own personal capacity, to exercise an administrative power. In Hilton v Wells (1985) 157 CLR 57; [1985] HCA 16, a majority of the Court proceeding on the basis that the power conferred by federal law to issue a telecommunications interception law was neither judicial nor incidental to any judicial function, said, citing Queen Victoria Hospital at 151-152:

26. [162]

    Finally, there is a subtler question of federal power which turns on the interplay between s 68 of the Judiciary Act and s 4AAA of the Crimes Act 1914 (Cth). Section 4AAA of the Crimes Act 1914 specifies the rules governing the conferral of functions which are neither judicial nor incidental to a judicial function upon, inter alia, State judges. Section 4AAA(3) provides that the person need not accept the function, and s 4AAA(2) provides that the function or power “is conferred on the person only in a personal capacity and not … as a court or a member of a court”. This reflected what was held to be permissible in Grollo v Palmer (1995) 184 CLR 348 at 364-365; [1995] HCA 26. It applies with retrospective effect, through s 4AAA(6), and in O’Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14 a majority of the High Court applied the provision to a federal law which had been enacted earlier: at [61]. The provisions are expressly displaced by a contrary intention: s 4AAA(6A).

27. [163]

    Can s 68 of the Judiciary Act insofar as it makes applicable a function which is not incidental to judicial power engage s 4AAA? This was the favoured position of the Commonwealth Attorney-General. The question involves a question of construction and a question of power.

28. [164]

    The only way in which s 4AAA may be engaged is if some federal law makes ss 78 and 79 of the Crimes (Appeal and Review) Act applicable. That federal law must be “a law of the Commonwealth relating to criminal matters”. That is inapt to describe s 79 of the Judiciary Act. Section 79 is expressed in universally general terms, which denies to it any relationship with criminal matters except insofar as the general includes the particular. Instead, reliance was placed upon s 68(1), which is a law of the Commonwealth relating to criminal matters.

29. [165]

    It is worth exposing at the outset an unstated proposition embedded within the Commonwealth Attorney-General’s submissions. It is that while s 68(2) of the Judiciary Act is confined to the investment of federal jurisdiction in courts, and necessarily confined to judicial power or functions which are incidental to the exercise of judicial power, s 68(1) is broader and extends to making applicable a law which confers neither a judicial function nor something which is incidental to a judicial function upon a judge in his or her personal capacity, rather than upon a court.

30. [166]

    I shall attempt to explain why that is so. It is clear that s 68(2) is an investment of jurisdiction in State courts pursuant to s 77(iii) of the Constitution. It follows that s 68(2) is necessarily confined in its operation to courts. Only a State court may be invested with federal jurisdiction.

31. [167]

    However, s 4AAA is only engaged if a function conferred upon (relevantly) a State judge is neither judicial nor incidental to a judicial function. Thus s 4AAA is only engaged if a law confers a function on a judge in his or her personal capacity. As noted above, there is no legislative capacity on the part of the Commonwealth to confer a function which is neither judicial nor incidental to a judicial function on a State court: Queen Victoria Memorial Hospital.

32. [168]

    Thus the Commonwealth Attorney-General’s submission involves s 68(1) making applicable ss 78 and 79 of the Crimes (Appeal and Review) Act on the basis that they do not confer a function on a State court but instead confer a function on a judge in his or her personal capacity. But if that is so, then ss 78 and 79 are not laws which engage the investment of “the like jurisdiction” within the meaning of s 68(2). That is because s 68(2) is about the investment of jurisdiction in a State court, and only applies by reference to State courts exercising jurisdiction with respect to the nominated subject matters.

33. [169]

    Thus the Commonwealth Attorney-General’s submission involves characterising ss 78 and 79 of the Crimes (Appeal and Review) Act as falling outside the scope of s 68(2) but nonetheless being made applicable by reason of s 68(1). This is, at least to my mind, an unlikely conclusion. The two subsections operate by reference to identically drafted subject matters, and the point of s 68(1) is to make applicable those State laws in respect of persons charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on a State court by s 68(2) itself. But only if the State law as a matter of its proper construction imposes a function on a State judge in his or her personal capacity thereby falling outside s 68(2), which function nonetheless is made applicable by s 68(1), might s 4AAA be engaged.

34. [170]

    The State's preferred (and the Commonwealth’s alternative) submission was that ss 78 and 79 conferred power on a court, that s 68 of the Judiciary Act was necessary in order for ss 78 and 79 to apply to federal offenders, but that ss 78 and 79 were incidental to judicial power. This requires an analysis of what is incidental to judicial power.

35. [171]

    The Queen v Murphy (1985) 158 CLR 596; [1985] HCA 50 bears upon the limits of what may be incidental to judicial power. The question was whether the power of a court to decide whether a person charged should be committed to trial was incidental to the judicial power exercised by a different court (namely, the court which would conduct the trial). The joint judgment said at 615-616 after reference to Queen Victoria Memorial Hospital:

36. [172]

    Pearce v Cocchiaro (1977) 137 CLR 600; [1977] HCA 31 does not bear upon the present question. However, the final sentence of the passage from R v Murphy reproduce above does. The exercise of administrative power by Garling J, even though Mr Huynh was seeking for there to be a further hearing by the Court of Criminal Appeal, was not performed in association with any further hearing by the Court of Criminal Appeal. This suggests the function performed by Garling J is not to be regarded as incidental to the potential exercise of judicial power in the future by the Court of Criminal Appeal.

37. [173]

    Further, suppose an application is made for an inquiry by a judicial officer pursuant to Division 4 of Part 7 of the Crimes (Appeal and Review) Act. In circumstances that there is no prospect of any exercise of judicial power, it is difficult to see how the consideration and determination under Division 3 of such an application could be incidental to judicial power.

38. [174]

    Those considerations cast doubt upon the preferred positions of both intervening Attorneys-General.

39. [175]

    A further complexity concerns this Court’s jurisdiction if the Administrative Decisions (Judicial Review) Act is engaged, in light of intricacies accompanying aspects of the investment of federal jurisdiction in this country. Mr Kennett’s submissions explaining this were, if I may say so, a model of clarity and concision. I shall deal with it in short form in these reasons, because on the view I take nothing turns on it, and it is addressed more fully in M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed Federation Press, 2020), pp 161-171.

40. [176]

    The starting point is that s 9 of the Administrative Decisions (Judicial Review) Act excludes the jurisdiction of State courts in respect of decisions of an administrative character made under a Commonwealth Act. (At some stage it may be necessary to consider the interrelation between s 9 and the entrenched supervisory jurisdiction recognised in Kirk but this may – indeed must in the absence of a s 78B notice – be passed over for present purposes.) Section 9 commences with the words “Notwithstanding anything contained in any Act other than this Act” and goes on to provide that State courts do not have jurisdiction to review decisions to which that Act applies. It is accepted that while s 9 is effective to deny the general investments of jurisdiction under s 39(2) and s 68(2) of the Judiciary Act, it does not stand in the way of a supplementary investment of jurisdiction by s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), operating in the manner explained in Hopkins v Governor-General of Australia [2013] NSWCA 365; 303 ALR 157. However, that in turn is subject to an obligation in s 6(1) generally requiring the transfer of the proceeding to the Federal Court because it is a “special federal matter”.

41. [177]

    Nonetheless, after reaching that conclusion, the Commonwealth Attorney submitted that there were “special reasons” for ordering that the matter be determined in this Court, in accordance with s 6(3):

42. [178]

    Section 6 makes quite elaborate provision for the way in which a Supreme Court may order not to transfer a special federal matter to a federal court. In particular, s 6(6)(a) provides that “In considering whether there are special reasons for the purposes of subsection (3), the court must: (a) have regard to the general rule that special federal matters should be heard by the Federal Court ...”.

43. [179]

    The written submissions of the Commonwealth Attorney-General said that:

44. [180]

    Mr Huynh and the New South Wales Attorney agreed that there were “special reasons” but did not seek to elaborate why that was so.

45. [181]

    Both matters relied on by the Commonwealth Attorney are correct, but it may be doubted that they sustain the conclusion that there are “special reasons” to depart from the general tenet of the regime that special federal matters be heard and determined in a federal court. For the starting point is the “general rule” in s 6(6). Moreover, the Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding “other than reasons relevant to the convenience of the parties”. That is a powerful consideration that the federal legislation is intended to apply notwithstanding the parties’ inconvenience.

46. [182]

    The Commonwealth Attorney-General pointed to an ex tempore decision (Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697 at [26]-[28]) which stated that the parties’ convenience was not a matter excluded from consideration, and relied expressly on matters of convenience. To my mind, there is much to be said for the proposition that the parties’ convenience is a matter which cannot ground the exercise of discretion to decline to transfer a special federal matter to a federal court. It is difficult otherwise to give force to legislative command that the reasons be “special” and that they be “other than reasons relevant to the convenience of the parties”. The Court is entitled to have regard to the parties’ preference, but something more is needed in order to displace the general rule.

47. [183]

    No oral submissions were made amplifying why, if the Commonwealth Attorney were correct, and this was a special federal matter, this Court should depart from the ordinary course mandated by s 6(3) (despite a request during the hearing: transcript, 19 August 2021, p 47). Had I come to a different view as to the nature of the decision made by Garling J, I doubt it would have been right to accede to the course proposed by the Commonwealth Attorney-General, supported by Mr Huynh and the New South Wales Attorney-General. This may illustrate aspects of the unwisdom of the complexities and inconveniences involving the interaction between the Administrative Decisions (Judicial Review) Act and the Jurisdiction of Courts (Cross-vesting) Act, but that does not entitle this Court to disregard the plain words of the statute.

48. [184]

    However, the practical acceptance that it was appropriate for the Court to hear and determine Mr Huynh’s summons casts doubt upon the reasoning that there is a “special federal matter” which, absent special circumstances, must only be determined by a federal court. That in turn, coupled with the difficulties attendant upon the submissions on jurisdiction outlined above, causes one to doubt whether in truth s 68(1) of the Judiciary Act was necessary to empower Garling J to determine Mr Huynh’s application, to which I now turn.

49. [185]

    All parties proceeded on the assumption that if Part 7 applied to a federal offence, it did so by way of federal law. The Commonwealth Attorney submitted that “If Pt 7 applies to federal offenders, it must have its basis in federal law”. The New South Wales Attorney elaborated this orally:

50. [186]

    I agree that if the conviction is to be set aside by a process in the Court of Criminal Appeal, authorisation by federal law is required. A State law which purported of its own force to empower the Court of Criminal Appeal to set aside a conviction for a federal offence would be ineffective. The Court of Criminal Appeal would inevitably be exercising federal jurisdiction, and so the reasoning in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 would apply to preclude State law of its own force from authorising the Court of Criminal Appeal to do so.

51. [187]

    But it seemed reasonably arguable, to say the least, that no federal law was necessary in order to empower a judge to perform the function under ss 78 and 79. That was not the primary position of any party or intervener, although it fell within paragraph (c) of the permutations presented by the New South Wales Attorney-General. Nevertheless, at the outset of the hearing, I flagged the possibility – which accorded with what had been said in Lodhi v Attorney-General (NSW) [2013] NSWCA 433; 241 A Crim R 477 – that reliance on s 68 might not be necessary (transcript, 19 August 2021, p 5). That helpfully led to submissions extending to the point.

52. [188]

    I am of the view that s 68 was not required. My reasons involve four steps:

    1. (1)

       Garling J was exercising an administrative function, and even if that function may be characterised as incidental to a judicial function, it does not follow that ss 78 and 79 cannot apply of their own force in relation to a conviction for a federal offence.

    2. (2)

       Applying the distinction in Rizeq, the rights conferred by ss 78 and 79 are better regarded as determinative of the rights and duties of persons, rather than governing the exercise of jurisdiction of a court.

    3. (3)

       As a matter of ordinary construction of New South Wales legislation, ss 78 and 79 extend to convictions of the District Court exercising federal jurisdiction, including convictions for federal offences.

    4. (4)

       As a matter of construction, s 68 does not apply to the application under ss 78 and 79 of the Crimes (Appeal and Review) Act determined by Garling J.

53. [189]

    First, irrespective of whether there is an inquiry, or a referral to the Court of Criminal Appeal, or the deferral or dismissal or refusal to consider the offender’s application, nothing that is done under ss 78 and 79 themselves has any direct impact upon the federal offence. The fact that there is an administrative gateway which needs to be satisfied at the threshold, before there can be any further hearing in the Court of Criminal Appeal, is not inconsistent with the conviction.

54. [190]

    This turns upon an analysis of the regime established by Part 7 and in particular the role of ss 78 and 79. This is not a case where State law qualifies an existing right of appeal (say, by the requirement to obtain an extension of time). Mr Huynh has no right to appeal against his conviction. Mr Huynh has at best a right to have his case referred to the Court of Criminal Appeal, there to be addressed as if it were an appeal. An element of that right is an order under s 79(1)(b) in the exercise of an administrative function by a judge of the Supreme Court authorised by the Chief Justice.

55. [191]

    That is to say, there is the prospect of a hearing in the Court of Criminal Appeal, which will exercise the judicial power of the Commonwealth and call into question the 2015 conviction by the District Court. But until and unless an order is made under s 79(1)(b) that right is contingent. The order under s 79(1)(b) is an “integer or element of the right” itself, to use the language in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 277; [1995] HCA 43. It is in this sense that s 79(1)(b) is a “gateway”.

56. [192]

    In the large majority of cases, the s 79(1)(b) gateway does not in fact open for the convicted person making an application. That is not merely a matter of impression of the daily business of the Common Law Division. Taking the decisions published on CaseLaw since January 2019 to date, and bearing in mind that not every decision need have been published on Caselaw, and also that my searches may have missed some, the pattern is clear. Of the 24 decisions revealed by my searches:

    1. (1)

       18 were refused (Coles [2019] NSWSC 797; GAR [2019] NSWSC 982; Doyle [2019] NSWSC 1029; Gonzales [2019] NSWSC 1412; Reznitsky [2019] NSWSC 1600; Li [2020] NSWSC 59; Steer [2020] NSWSC 623; Uusimaki [2020] NSWSC 1019; AZ [2020] NSWSC 1048; Huynh [2020] NSWSC 1356 (from which the present proceeding has been brought); Gonzales (No 3) [2021] NSWSC 263; Holland [2021] NSWSC 384; Li [2021] NSWSC 544; AB [2021] NSWSC 575; Svanda [2021] NSWSC 1061); Klewer [2021] NSWSC 1225; Clark [2021] NSWSC 1364; Gillies [2021] NSWSC 1392);

    2. (2)

       5 were referred to the Court of Criminal Appeal (Shi [2019] NSWSC 1686; Bae [2019] NSWSC 1413; Aboud [2020] NSWSC 1648; Olivares [2021] NSWSC 96 and Chen [2021] NSWSC 1024), and

    3. (3)

       1 was deferred pending the determination of an application for judicial review (Dacich [2020] NSWSC 1179).

57. [193]

    (Indeed, it may be that the proportion of successful applications is less than is indicated by that sample. In 2018, the Court of Criminal Appeal decided Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 altering the approach to be taken when an accused person pleaded guilty to a federal offence. Four of the five successful applications on Caselaw in the last three years (Aboud, Bae, Chen and Olivares) were cases where sentence had been imposed prior to Xiao. Putting the change of law effected by Xiao to one side, the only matter referred to the Court of Criminal Appeal in the sample of 24 identified over the last 3 years was Shi, a claim based on parity, in which the appeal was dismissed: Shi v R [2020] NSWCCA 42.)

58. [194]

    The function conferred by s 79 is a necessary gateway to the exercise of judicial power by the Court of Criminal Appeal in the event that there is a referral. But that is not dispositive of its character, nor is it dispositive of whether Garling J was empowered by s 68 of the Judiciary Act.

59. [195]

    The function conferred by s 79 is also a necessary gateway to an inquiry if an order is made under s 79(1)(a). It must follow that the potential of what might follow the exercise of the function if an application is granted is not determinative of the issue.

60. [196]

    As was said in Lodhi at [28]:

61. [197]

    The concluding words of that passage warrant emphasis. The fact that the function is characterised as incidental to judicial power would be important if the function were conferred on a federal court which was subject to the separation of powers. But no such restriction applies at the State level.

62. [198]

    Mr Huynh and both interveners advanced submissions that s 68 was applicable. A characterisation of the function under s 78 as one that is incidental to judicial power was thus a necessary part of that submission. But in fact there is a much simpler anterior question: do ss 78 and 79 apply of their own force to Mr Huynh’s application, or was it necessary for some federal law to make them applicable? This change in approach is a consequence of Rizeq (which was flagged before the luncheon adjournment so that all counsel might consider the point).

63. [199]

    State laws do not necessarily require any assistance of federal law in order to apply in the exercise of federal jurisdiction, as French CJ suggested in Momcilovic at [99], and as was held in Rizeq and followed in Masson v Parsons. Rizeq and Masson distinguish between State laws governing the exercise of jurisdiction and State laws determinative of the rights and duties of persons: see Masson v Parsons at [30]. The language of “rights” and “duties” is a little imprecise in the present context, but if one asks whether the application under s 78 of the Crimes (Appeal and Review) Act falls within the determination of a right or duty as opposed to a law which governs the exercise of jurisdiction by a court, the former is the preferable characterisation. Mr Huynh has the right to apply for an administrative decision under s 78, no differently from any other offender, and he is faced by an incapacity to obtain an inquiry or another hearing in the Court of Criminal Appeal until he obtains a favourable order under s 79. If the application is dismissed or deferred or not considered or a direction is made for an inquiry, there will never be any exercise of jurisdiction by the Court of Criminal Appeal. If the case is referred to the Court of Criminal Appeal, then s 79 concededly does authorise the latter court to deal with it “as an appeal” and this will require federal law. But I do not think it follows from the fact that the case may be removed to the Court of Criminal Appeal (which court will be exercising federal jurisdiction) that the exercise of administrative power requires the Judiciary Act in order for it to be effective.

64. [200]

    That is to say, ss 78 and 79 are not directed to the exercise of jurisdiction by a court in the sense stated in Rizeq. They confer a right upon a person convicted of an offence to apply to a judicial officer who will make an administrative decision as to whether there will be an inquiry or whether the matter will be removed to the Court of Criminal Appeal. Those provisions do not themselves direct the exercise of federal jurisdiction by a court. Rather, they are laws conferring a new “right” upon the parties, although it might be more precise to say that if the application is acceded to, the order satisfied an element of the right to there being a further hearing in the Court of Criminal Appeal.

65. [201]

    I accept that in a sense, the exercise of administrative power under s 79 is connected with the future exercise of judicial power by the Court of Criminal Appeal, and in that somewhat attenuated sense it is directed to the exercise of jurisdiction by a court. But much more directly and immediately, the exercise of administrative power removes a prohibition upon the convicted person having his or her case reheard by the Court of Criminal Appeal, or else is an integer or element of the right to a new hearing by the Court of Criminal Appeal. It is better regarded as a law determinative of Mr Huynh’s statutory right to have a second hearing in the Court of Criminal Appeal, rather than a law directed to the exercise of jurisdiction by the Court of Criminal Appeal.

66. [202]

    As Edelman J suggested in Brewster at [229], the distinction in Rizeq and Masson is not a crisp one. Speaking of the broadly worded power under s 183 of the Civil Procedure Act which is capable of supporting a wide range of orders, his Honour said:

67. [203]

    The conclusion that ss 78 and 79 apply of their own force accords with existing authority, notably passages in Lodhi at [23] when dealing with an application for an inquiry into a jury following a conviction for a federal offence. This Court stated that where an appeal remained on foot, further steps could properly be described as ancillary to judicial power. However, where no right of appeal remained available, the court spoke of the decision whether to hold an inquiry in the following terms:

68. [204]

    Basten JA, with whom Bathurst CJ and Beazley P agreed, also stated at [52]-[53] and [62]-[63]:

69. [205]

    The Commonwealth Attorney-General made submissions to the effect that the portions of [52] and [53] reproduced above were wrong. It was submitted that the exercise of judicial power was not a precondition for s 68 to be engaged. That is strictly correct, insofar as an exercise of power which is ancillary to judicial power could attract s 68. However, as Basten JA observed during the hearing, Lodhi was decided before Rizeq, and has to be reconsidered in that light (transcript 19 August 2021, p 37). For the reasons given above, and consistently with Rizeq, the reasoning in Lodhi that s 68 of the Judiciary Act was not required in order for the function under s 78 to be performed is correct.

70. [206]

    The Commonwealth Attorney-General’s overarching submission was that “the exercise of the power in s 79(1)(b) in relation to a federal conviction is plainly a step which ‘calls into question’ that conviction, within the extended meaning in s 2 of the Judiciary Act” and maintained that the power, and the provisions of Div 3 of Part 7 more generally, were only available in relation to a federal conviction to the extent that s 68 picked them up. This was put more equivocally in oral submissions:

71. [207]

    This submission contains two distinct aspects. One bears upon the character of the State law, as to whether it is determinative of rights and duties, or whether it governed the exercise of jurisdiction. Accepting as I do that the distinction need not be clear-cut, for the reasons I have given ss 78 and 79 are better characterised as determinative of rights and duties, notwithstanding that the applicant seeks for there to be a further hearing in the Court of Criminal Appeal, and in a small minority of cases, there will be such further hearing. The second aspect is a point which I have not so far addressed. It is the third step in my reasoning outlined above, namely, whether as a matter of construction s 78 applies to Mr Huynh’s conviction.

72. [208]

    To reiterate, it is not sufficient merely to conclude that the application of ss 78 and 79 did not require the Judiciary Act, but rather that they were capable of applying of their own force. It is also necessary that those sections as a matter of construction extended to a conviction by the District Court of a federal offence. (Indeed, normally one would start with the question of construction. In the present case, because the primary submission of all parties was that some federal law such as s 68 of the Judiciary Act was required, it seemed better to address that issue first.)

73. [209]

    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. 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 v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [8]-[9] which referred to “offence” and was construed in accordance with s 12 of the Interpretation Act not to extend to federal offences.

74. [210]

    Still less do ss 78 and 79 mention the character of the jurisdiction being exercised by the court which convicted the person. As noted earlier in these reasons, it may be quite unclear on the face of the conviction that the District Court was exercising federal jurisdiction (as occurred in the Lavender and Garth decisions mentioned above), or in a case where the accused was a resident of another State.

75. [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.

76. [212]

    However, the question is affected by authority, namely, an unreported decision of Barr J (Application of James William Shepherd (13 September 1996) which was reproduced without adverse comment by Wood CJ at CL in Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143 (both decisions were decisions under earlier provisions corresponding to s 78). Barr J said:

77. [213]

    Barr J added that the provisions of the Part dealing with the prerogative of mercy confirmed the view that it was confined to State offences, and the entitlement of the Crown to make submissions was a reference to the Crown in right of New South Wales.

78. [214]

    I respectfully disagree with the reasoning reproduced above.

79. [215]

    The reliance placed on Grollo v Bates is with respect misplaced. That concerned the construction of a State law authorising an order directing a suspect to provide a fingerprint if there were reasonable grounds to believe that the suspect has committed “an offence”, which was held as a matter of construction not to extend to federal offences. That is no different from what was held in Solomons at [8]-[9]. But ss 78 and 79 do not mention “offence”; they speak merely of a “conviction” or “sentence”.

80. [216]

    It is true that s 78 is to be construed as a component of Part 7, and in accordance with the rule of construction reflected in s 12 of the Interpretation Act 1987 (NSW) confined to New South Wales. But to my mind the natural “hinge” (to use the language of DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 at [35]-[38] and [157]) upon which the provisions apply is that a conviction has been entered by, or a sentence imposed by, a New South Wales court, rather than that the conviction or sentence be in respect of an offence contrary to a New South Wales statute. Whether or not that court was exercising federal jurisdiction, and whether or not the conviction was entered following trial for an offence created by statute or common law, and if statute, whether the statute was a New South Wales statute or a Commonwealth statute, and indeed whether there was an indictment with a number of offences, possibly both federal and state (cf Ozgen v R [2021] NSWCCA 252) is not to the point.

81. [217]

    I shall for the moment focus upon what most applications seek, namely, a referral to the Court of Criminal Appeal (that accords with the approach consistently taken over more than two decades to the effect that an inquiry is not authorised in respect of a conviction for a federal offence: see Chidiac, Neil – Application pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2015] NSWSC 157 at [19]-[20]). It seems quite artificial to exclude from the scope of a beneficial provision which is designed to prevent injustice to offenders serving terms of imprisonment for convictions by New South Wales courts of federal offences. The text of the provision refers to “conviction or sentence”. Those are acts of a court, following the finding of guilt for an offence. The more natural reading is that s 78 applies to convictions or sentences of New South Wales courts, rather than convictions or sentences for offences contrary to New South Wales statutes. It is with respect a mistake to require there to be a connection with New South Wales for each and every element of the statute, and the construction adopted in Shepherd amounts to reading the provision as confined in its application to convictions or sentences by New South Wales courts imposed in respect of New South Wales offences; cf DRJ (No 2) at [113]. Further, in the not uncommon case of an offender charged with importation and possession of illicit drugs, it would be capricious if s 78 were only available in respect of the conviction for possession, but not for the conviction for importation. There are many other examples of indictments joining Commonwealth and State offences.

82. [218]

    Section 68(1) and (2) of the Judiciary Act operate in two quite distinct ways. Section 68(2) invests jurisdiction in a State court with respect to the summary conviction, commitment for trial on indictment, trial and conviction on indictment and hearing and determination of appeals, in respect of persons charged with offences against the laws of the Commonwealth. Section 68(1) makes applicable State laws concerning those subject matters to all those processes.

83. [219]

    I have concluded that neither s 68(1) nor s 68(2) applies as a matter of construction to ss 78 and 79.

84. [220]

    The starting point is that the function under ss 78 and 79 is not judicial. If the function is regarded as not being incidental to judicial power, then it necessarily falls outside of s 68(2) (because federal legislative power does not extend to imposing a function which is neither judicial nor incidental to judicial power on a State court) and further, because s 68(1) operates in tandem with s 68(2), it falls outside s 68(1). If ss 78 and 79 are regarded as conferring a non-judicial function on a member of a State court in his or her personal capacity, then there is federal legislative power to apply that function, but if that is how s 68(1) operates, it would seem quite strained. That is because s 68(2) is an exercise of the power in s 77(iii) and is confined to investing jurisdiction in State courts, and it is difficult to see how s 68(1), which is so similar in language and has a complementary function of applying laws in those cases where there has been an investment of federal jurisdiction by s 68(2), operates more broadly to cases where a State law does not apply to a court as such but instead to a member of a court in his or her personal capacity.

85. [221]

    Putting those difficulties to one side, s 68(1) could only apply if ss 78 and 79 were regarded as falling within “the procedure for ... the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith” within the meaning of s 68(1)(d). An application under ss 78 and 79 is not the hearing and determination of an “appeal” in any ordinary sense of that term; rather it is an administrative function which, if acceded to, may cause there to be a further hearing by the Court of Criminal Appeal as an appeal.

86. [222]

    Section 2 defines “appeal” to include “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”. Those words are wide, but I do not think they extend to the application before Garling J. I think they are confined to judicial proceedings. The definition is in the Judiciary Act. The definition is deployed in s 68 which concerns the exercise of federal jurisdiction. But proceedings under ss 78 and 79 are not judicial. (It may be that s 68(1) has no operation to State laws which of their own force apply, and is limited to the same gap-filling role as was accorded to s 79 (cf Rizeq at [63]). If so, then this and the previous four paragraphs are unnecessary. But in light of the above, it is unnecessary to decide whether s 68 operates in the same way.)

87. [223]

    There are very real problems in some of the provisions in Part 7 (notably, those in Division 4) applying to convictions for federal offences. But I return to the fact that ss 78 and 79 of the Crimes (Appeal and Review) Act comprising Division 3 confer a gateway function, which is primarily invoked by convicted persons to seek to obtain a referral to the Court of Criminal Appeal in the absence of any right of appeal. That was how it was sought to be invoked by Mr Huynh. In order to resolve the jurisdictional aspects of this summons, a fuller examination of the provisions is not necessary. I appreciate that that approach leaves unaddressed questions concerning aspects of Part 7. But that restraint accords with the practice of not investigating or deciding constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties: Lambert v Weichelt (1954) 28 ALJ 282 at 283.

88. [224]

    It follows that Garling J exercised an administrative function pursuant to ss 78 and 79 which applied of their own force. If Garling J had acceded to Mr Huynh’s application, the Court of Criminal Appeal would, in the exercise of federal jurisdiction invested by s 68(2), hear and determine the proceeding as if it were an appeal, pursuant to the provisions of Division 5, made applicable by reason of s 68(1). This Court’s supervisory jurisdiction in respect of the dismissal of the application was regularly invoked by Mr Huynh’s summons, pursuant to s 69 of the Supreme Court Act.

The grounds in Mr Huynh’s summons

1. [225]

   Mr Huynh’s summons, filed on 18 January 2021, alleged two errors:

2. [226]

   That summons was drafted prior to counsel accepting briefs to appear for Mr Huynh. It was elaborated by quite extensive written submissions filed by Mr Huynh, once again seemingly prepared without legal assistance. I shall deal with each in turn, although it is first necessary to say something concerning the evidence at Mr Huynh’s trial.

3. [227]

   Mr Huynh stood trial on one count of conspiring between about 1 January 2012 and 30 June 2012 to import a commercial quantity of pseudoephedrine. The Crown case was that there were separate importations of pseudoephedrine in March and June 2012. It was based on the testimonial evidence of Mr Adrian Lamella, a Customs officer called in the Crown case who said that he was involved in the conspiracy, as well as telephone intercepts, some physical surveillance showing meetings between Messrs Huynh and Lamella, Mr Huynh’s mobile phone purchase and use, deposits into Mr Huynh’s bank accounts of some $87,500 after the June importations at a time when he was unemployed, and travelling to Vietnam prior to and overlapping with the June importations.

4. [228]

   Mr Huynh gave evidence at trial. He said that he had been pretending to organise drug couriers for Mr Lamella in order to assist a friend who owed Mr Lamella money.

5. [229]

   Mr Huynh was found guilty by the jury and sentenced to a term of imprisonment for 12 years with a non-parole period of 8 years, commencing 1 August 2014: [2015] NSWDC 276. The Court of Criminal Appeal dismissed his appeal in 2017, including dismissing a ground that the evidence failed to establish “the existence of a single conspiracy as opposed to separate conspiracies”, one relating to the March importation and one relating to the June importations: Cranney v R; Huynh v R [2017] NSWCCA 234; 269 A Crim R 449 at [228]-[254]. Another ground of that appeal which was dismissed was that there was no evidence aside from the testimony of Mr Lamella linking Mr Huynh to the June importations. The Court referred to the purchase of a Blackberry device in Vietnam in May, his travel, and the substantial cash deposits in July and August 2012: at [220]. The High Court dismissed an application for special leave to appeal.

6. [230]

   The grounds advanced by Mr Huynh before Garling J were that the trial judge did not adequately put the defence case to the jury, and that there was an abuse of process insofar as there was a single count of conspiracy. Garling J plainly considered those grounds to be weak. The latter had been rejected by the Court of Criminal Appeal in terms. The former was based on the fact that the defence at trial was that Mr Huynh was not involved, that no objection was taken at trial to the way the judge had summed up, and that the arguments had been rejected by the Court of Criminal Appeal. Garling J concluded at [53]-[55]:

7. [231]

   Mr Huynh’s first ground of review in this Court appeared to be based on the proposition that Garling J rejected his application on the basis that he was not satisfied that there was a doubt or question of his guilt, as opposed to the appearance of a doubt or question. The gravamen of the complaint was that his Honour formed the view that the argument, drafted by Mr Huynh without the assistance of a lawyer, was merely a re-run of the unsuccessful appeal on the same grounds. Nonetheless, Garling J correctly framed the question in terms of “the appearance of a ‘doubt or question’” at [11]. There was no error to approach that question in the way that his Honour did.

8. [232]

   The second ground as articulated by Mr Huynh is a little obscure, but there is no abuse of process in the prosecution electing to charge Mr Huynh with a single count in respect of all importations.

My Huynh’s counsel’s submissions

1. [233]

   The further submissions filed by counsel were directed to five reformulated grounds in a further amended summons, leave for which was granted at the commencement of the hearing. I shall deal with each in turn.

2. [234]

   The first and second were that the Commonwealth Minister should have been notified and given an opportunity to participate. Section 78(2) provided that a registrar “must cause a copy of any application made under this section to be given to the Minister”. It was uncontroversial that the State Attorney-General was notified but the Commonwealth Attorney-General was not. The obligation to notify the Commonwealth Attorney-General was said to arise by analogy with the reasoning of the High Court in Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, where s 68 was construed to authorise a Crown appeal by the Commonwealth Attorney-General. It was put that the reference to the Minister in s 78(2) was picked up by s 68 of the Judiciary Act and proceeds by way of analogy to mean or include the Commonwealth Attorney-General. It was then put that the “notification requirement is jurisdictional, not merely ‘directory’.” That was said to flow from four considerations: the evident purpose of notification was to facilitate the participation of the Minister or another federal agency such as the Commonwealth Director of Public Prosecutions; the obligation upon the judicial officer to consider any submissions made by the Crown; the requirement that natural justice be observed to the Crown in right of the Commonwealth, and as part of the process of preferring a construction consistent with the Constitution, in order to avoid undermining the integrity of a Chapter III court.

3. [235]

   This submission is readily disposed of. Let it be assumed, favourably to Mr Huynh, that statute required the Commonwealth Minister to be notified. It is accepted that that was not done. As the Commonwealth Attorney submitted, and as Mr Bruckner (who had carriage of this aspect of the submissions for Mr Huynh) conceded, it remains necessary for Mr Huynh to establish, on the balance of probabilities, that the non-compliance was material. The concession was properly made. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2], it was confirmed that:

4. [236]

   Mr Huynh did not discharge that onus. Had the Minister been notified, there was no obligation upon the Minister to provide any submission. There is no reason to think that, faced with an application which did no more than restate the submissions already rejected by the Court of Criminal Appeal, the notification of the Minister would have any impact at all. The stance taken by the Commonwealth Attorney-General in this Court is confirmatory of the position. That is an end to these grounds.

5. [237]

   I would add that it is not entirely clear to me that the assumption that the Commonwealth Minister required notification is correct. There are difficulties in a construction which leads to the conclusion that the Commonwealth Minister must be notified by the registrar if the court were exercising federal jurisdiction. How is the registrar of the Criminal Division to know what jurisdiction was being exercised? The Commonwealth Minister would have no interest in a conviction for a State offence by a State court which was exercising federal jurisdiction because of the residence of the accused person, or because some constitutional or federal claim was made at an interlocutory stage which had no bearing on the conviction. On the other hand, if the Commonwealth Director of Public Prosecutions prosecuted for a federal offence in a State court, as in the present case, then it is true that a Commonwealth Minister is better placed to make submissions. But what if there were Commonwealth and State charges on the indictment? An alternative approach would be for s 78(2) to bear its ordinary meaning, and for the registrar to provide a copy to the New South Wales Minister in every case. The offices in the New South Wales government department or agency who regularly examine such applications will be much better placed than the registrar to identify whether it is appropriate for it to be forwarded to a federal agency. It is not necessary to express a concluded view on this, because in any event these grounds fail on the issue of materiality.

6. [238]

   Ground 3 was that Garling J erred by failing to treat Mr Huynh’s application as being, at least in part, in respect of sentence. It was submitted that “[a]lthough parts of the application were framed as concern as to being ‘convicted’ in respect of the June Importations, the substance of the application was, at least in part, a complaint about being sentenced in respect of them.” But Mr Huynh’s submissions to Garling J did not mention any complaint about his sentence, except in one passage:

7. [239]

   A fair reading of the submissions is that they are exclusively directed to his conviction. The entirety of the submissions directed to the summing up was exclusively directed to the conviction. The submissions commence with a paragraph “I, the applicant, seek a review into my conviction under section 78...” and continue “I seek a review into my conviction as I believe his Honour the trial [judge] did not properly direct the jury as to my defence for the June offences”. The balance of the submission is directed to the conviction. The single sentence relied upon, reproduced above, was part of the applicant’s submission that it was necessary in order for the applicant to be convicted for the Crown to establish beyond reasonable doubt that Mr Huynh had agreed to both the March and June importations. The is no mention otherwise of the sentence imposed, let alone a complaint that it was too severe. This was very squarely raised during the hearing, and Mr Bruckner (who had the conduct of this aspect of the case) confirmed there was no other mention. He said that Mr Huynh was unrepresented and his submissions had to be read accordingly. Mr Huynh was unrepresented and doubtless allowance must be made for that, but that does not entail a conclusion that there was judicially reviewable error in Garling J not attending to a complaint about sentence which was not articulated.

8. [240]

   Further, Mr Huynh maintained in this Court that he enjoyed, today, the right to seek leave to appeal from his sentence. Admittedly, he would require a considerable extension of time. However, that has not stood in the way of numerous appeals against sentence in the Court of Criminal Appeal, in accordance with what was held in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. It is clear that in assessing whether to extend the time, it is necessary to have regard to the merits of the appeal.

9. [241]

   If Mr Huynh’s application had indicated a basis for doubting the sentence, it would have been open to the judge to refuse to consider it, on the basis that there was an unexercised right to seek leave to appeal out of time to the Court of Criminal Appeal.

10. [242]

    The fourth ground was based on Garling J’s statement at [13]:

11. [243]

    It was submitted that “The prospect of further material being obtained was a relevant consideration that should have been taken into account”. In oral submissions, Mr Bruckner likened the position where an offender put forward a claim that DNA testing should be undertaken, as had been mentioned in the second reading speech. But as members of this Court pointed out during the hearing, Mr Huynh did not even identify the evidence which should be obtained and considered. Rather, it was put that that “The Commonwealth likely has access to the submissions and transcript or oral submissions on sentence, which could be material to a sentence appeal in respect of Mr Lamella’s evidence concerning the June Importations” and “Further factual inquiries might have been made by the Commonwealth in addition”. It was confirmed that the submission was that the mere possibility was enough to lead to the conclusion of error:

12. [244]

    I disagree. There could be no referral to the Court of Criminal Appeal unless it appeared to the judicial officer that there was a “doubt or question” within the meaning of s 79(2). It was entirely open to determine the application on the basis that no such doubt or question was raised by what had been put forward, and to resist the submission that some other unidentified evidence might at some stage be forthcoming and thereby give rise to a doubt or question.

13. [245]

    The fifth ground was a claim that Garling J had misapprehended the fact that he was exercising judicial power when he stated, in accordance with Varley that his function was administrative. For the reasons already given, there was no such error.

Orders

1. [246]

   For those reasons the summons must be dismissed.

2. [247]

   In this Court, Mr Huynh had caused subpoenas to issue, and sought to tender six volumes of material none of which had been before Garling J. The material was admitted provisionally in the interests of dealing with the questions of law which squarely arose on Mr Huynh’s summons, after Mr Bruckner acknowledged that this material was “not relevant to the question of whether there was an error” (rather, it was tendered on the basis that it was relevant to discretion). It follows from the above that the tender should be rejected.

3. [248]

   The New South Wales Attorney General did not seek costs. Although the Commonwealth Attorney-General did seek costs, the large majority of the submissions were directed to questions of jurisdiction which are of wider importance than Mr Huynh’s particular claim. Further, in large measure I have not accepted the Commonwealth’s submissions. It is appropriate not to make any order as to costs.

4. [249]

   Finally, after judgment was reserved, and without leave, the Court received a further submission dated 14 October 2021 from Mr Huynh personally, complaining about an aspect of his representation. I record that fact in the interests of transparency. The submission should not have been sent. Providing supplementary written material after the conclusion of oral argument, without leave, has been deprecated repeatedly. McHugh ACJ, Gummow, Callinan and Heydon JJ described doing so as “unsatisfactory” and “impermissible” in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192]; see also Eastman v DPP (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [28]–[31] and [143] and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [111]; more recent authorities in this Court may be found in Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49]. I would accept that Mr Huynh is unaware of that rule. However, the appropriate course is to decline to engage with the further submission.

5. [250]

   I propose that Mr Huynh’s further amended summons provided at the hearing on 19 August 2021 be dismissed.

6. [251]

   PAYNE JA: I have read the judgment of Basten JA in draft. I agree with the orders proposed and essentially with his Honour’s reasons.

7. [252]

   Mr Huynh’s conviction for a federal offence, and his current challenge to that conviction, is, by analogy with the principles identified in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581; [1983] HCA 31, a matter arising under a federal law, namely the Criminal Code of the Commonwealth, a Schedule to the Criminal Code Act 1995 (Cth).

8. [253]

   I have concluded that, absent authority conferred by a law of the Commonwealth, neither a court nor an officer of the State of NSW has jurisdiction to review the conviction or sentence of a person convicted under a law of the Commonwealth.

9. [254]

   The text and context of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act) generally, and ss 78 and 79 in particular, make clear that they do not apply of their own force to convictions for federal offences. Section 74 of the Appeal and Review Act relevantly provides the following definitions:

10. [255]

    The definition of “conviction”, whilst inclusive, does not in context refer to a conviction for a federal offence. The specific inclusion of special verdicts entered under NSW legislation, namely the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, is an initial indication that the definition does not extend to verdicts of a like kind entered under federal law, namely Pt IB Divs 7-9 of the Crimes Act 1914 (Cth). Convictions for federal offences, which are the sole subject of those latter verdicts, form no part of the scheme of review of convictions. Likewise, the definition of “sentence”, whilst inclusive, is another indication that sentences or orders imposed by a court under federal law are not, of their own force, part of the statutory scheme of review.

11. [256]

    As Basten JA explains, the Appeal and Review Act is a product of a long history and now provides for two distinct means of challenging a “conviction” or “sentence”. The Appeal and Review Act must be understood in light of that history.

12. [257]

    The first means of challenging a “conviction” or “sentence” is identified in Div 2 of Pt 7 in which s 76 provides:

13. [258]

    In Div 2, the Governor is the Governor of NSW. According to the text and context, a “conviction” or “sentence” to which s 76 applies can only be, respectively, a conviction for an offence under NSW law or a sentence imposed for breach of a NSW law.

14. [259]

    The second means of challenging a “conviction” or “sentence” is identified in Div 3 of Pt 7. I agree with Basten JA that Div 2 must be read and understood consistently with Div 3, as each pathway may give rise to an inquiry under Div 4, or a referral to the Court of Criminal Appeal under Div 5. I am unable to agree with the applicant’s contention that the “conviction or sentence” which the Governor has the power to review under s 76 should be understood as relating to a different “conviction or sentence” which may be the subject of an application to the Supreme Court under ss 78 and 79. Those two provisions, which constitute Div 3 of Pt 7, provide:

15. [260]

    The text indicates that Div 3 does not apply to federal offenders of its own force. The Minister responsible for administering the Appeal and Review Act, and to whom a report of any action taken under Div 3 must be made pursuant to sub-s 79(5), is the NSW Attorney General and Minister for Prevention of Domestic and Sexual Violence. [94] The NSW Attorney General has no responsibility for a person convicted of a federal offence. Nor is there any obligation in s 79 to report to a Commonwealth Minister.

16. [261]

    If the express limitation of s 79 to offences against NSW law were not otherwise clear, the context makes it so. Pt IB of the Crimes Act 1914 (Cth) and the prescriptive powers given to the Commonwealth Attorney General in relation to parole and administrative release of federal prisoners would provide a formidable barrier, through the operation of s 109 of the Constitution, to the NSW Attorney General taking any steps affecting the parole or administrative release from prison of a federal offender. In addition, the Governor-General’s power to exercise the Royal prerogative of mercy in respect of federal offenders is expressly recognised and preserved: Crimes Act 1914 (Cth), s 21D.

17. [262]

    Sections 78 and 79 of the Appeal and Review Act are not engaged of their own force in relation to a federal offender. Div 3 of Pt 7 of the Appeal and Review Act was not intended and should not be construed, of its own force, to apply to federal offenders. As Basten JA explains, this conclusion is underlined by s 12(1) of the Interpretation Act 1987 (NSW).

18. [263]

    For Pt 7 of the Appeal and Review Act, a law of the State of NSW, to operate in relation to a federal conviction or sentence, it must be applied as a surrogate federal law by s 68 and/or s 79 of the Judiciary Act 1903 (Cth). Those sections, relevantly, provide:

19. [264]

    I agree with Basten JA that neither s 68 nor s 79 of the Judiciary Act has the effect of adopting and applying Pt 7 of the Appeal and Review Act to federal offences as a surrogate federal law. Given the long and separate history of the exercise of the prerogative of mercy, the function being performed by Garling J here was not relevantly a proceeding connected with the conviction of a federal offender within the meaning of s 68 of the Judiciary Act. No real attempt was made by the applicant to call in aid s 79 of the Judiciary Act as a separate mechanism for applying the Appeal and Review Act to federal offences here.

20. [265]

    As Basten JA and Leeming JA each explain, a Judge of the NSW Supreme Court nominated by the Chief Justice under s 75 for the purposes of ss 78 and 79 is performing an administrative, and not a judicial, function. I agree with Basten JA that the Commonwealth cannot, at least without the consent of that judicial officer, impose an administrative function on a judge of the Supreme Court of NSW.

21. [266]

    The submission of the Commonwealth Attorney General was that the power in s 79 of the Appeal and Review Act here engaged was incidental to the exercise of judicial power in the sense envisaged in R v Murphy (1985) 158 CLR 596; [1985] HCA 50. I do not agree.

22. [267]

    The process of post-conviction review provided under s 79 of the Appeal and Review Act is not conferred on individual judges but on the Supreme Court. The process is not a traditional part of any curial process, but rather is an attempt to formalise an exercise of executive power. It is true that the judge authorised by the Chief Justice under s 75 to exercise the jurisdiction of the Supreme Court to consider an application made under s 78 for an inquiry into a conviction or sentence may refer the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): s 79(1)(b). I agree with Basten JA that in that respect the judge performs a gateway function, permitting a further appeal where all other statutory rights of appeal have been exhausted. Nevertheless, the judge is under no obligation to consider such an application: s 79(3). Even if the judicial officer does consider the application, the judicial officer may, instead of referring the matter to the Court of Criminal Appeal, direct that an inquiry (itself not a judicial proceeding) be conducted by a judicial officer, who may be a former judicial officer: s 79(1)(a). The judicial officer may only act if satisfied there is a “doubt or question as to the convicted person’s guilt” (s 79(2)), that being a necessary but not sufficient precondition to the exercise of a power of referral to the Court of Criminal Appeal under sub-s 79(1)(b), or to direct an inquiry under sub-s 79(1)(a).

23. [268]

    I agree with Basten JA that, although in appropriate circumstances the matter may be referred directly to the Court of Criminal Appeal, the non-judicial power conferred by s 79(1) cannot be a power incidental to the exercise of judicial power in the sense envisaged in R v Murphy. At best, one element of the various powers conferred on a judge by s 79 may so qualify. In most cases an application under s 79 will lead to no outcome or to an administrative process. I do not accept that, simply because one possible outcome of the gateway function – referral to the Court of Criminal Appeal – will involve the ultimate exercise of judicial power by that Court, therefore the result is that the entire gateway decision in all of its aspects – including of course no outcome, the decision reached by Garling J here – is therefore incidental to the exercise of judicial power. I do not agree that the other outcomes the subject of Div 3, not involving the ultimate exercise of judicial power by the Court, are swept up as “incidental” to the exercise of judicial power.

24. [269]

    That is, I agree with Basten JA that the power conferred by s 79(1)(b) to refer an application to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act could be a function incidental to the exercise of judicial power in respect of a federal offender, but that power is not picked up by s 68 to the exclusion of all other functions arising under s 79. To do so would give the State law an altered meaning, which is inconsistent with the decision of the High Court in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [24].

25. [270]

    Finally, I should record that I do not regard Lodhi v Attorney-General (NSW) [2013] NSWCA 433; (2013) 241 A Crim R 427 as mandating a different conclusion about any of the issues here. As Basten JA concluded in that case at [63]:

26. [271]

    The executive powers of the Sheriff and the context of an investigation under the Jury Act 1977 (NSW) are more remote from the possible exercise of judicial power than the powers here sought to be engaged and make Lodhi a quite different case to the present.

27. [272]

    For these additional reasons, I agree with the reasons of Basten JA and the orders he proposes.

28. [273]

    If it were necessary to do so, I would agree with Leeming JA that the substantive claim by Mr Huynh is without merit and, assuming the existence of jurisdiction to consider it, the application must be dismissed for the reasons Leeming JA gives.