Attorney-General (Cth) v Huynh

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

ATTORNEY-GENERAL (CTH)  APPELLANT

AND

HUY HUYNH & ORS  RESPONDENTS

Attorney-General (Cth) v Huynh

[2023] HCA 13

Date of Hearing: 8 & 9 November 2022
Date of Judgment: 10 May 2023

S78/2022

ORDER

1. Appeal allowed.

2.Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 8 December 2021.

3.Remit the matter to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court.

On appeal from the Supreme Court of New South Wales

Representation

S P Donaghue KC, Solicitor-General of the Commonwealth, with T M Glover and C Ernst for the appellant (instructed by Australian Government Solicitor)

R J Wilson SC with D J Reynolds for the first respondent (instructed by Legal Aid (NSW))

G A Hill SC with J S Stellios, appearing as amici curiae (instructed by Australian Government Solicitor)

R J Orr KC, Solicitor-General for the State of Victoria, with T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

Submitting appearances for the second and third respondents

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Attorney-General (Cth) v Huynh

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – State laws applicable to offenders convicted of Commonwealth offences – Where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence – Where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place – Where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal – Where convicted person applying under s 78(1) was convicted of Commonwealth offence – Whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence – Whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence – Whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court acting in personal capacity a function without their consent – Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly imposed administrative duty on holder of State statutory office without State legislative approval.

Words and phrases – "altered meaning", "Chief Justice or authorised judge", "Commonwealth offence", "different legal operation", "federal jurisdiction", "federal offence", "inquiry into conviction or sentence", "judicial power", "jurisdiction invested", "jurisdiction of State and Territory courts", "jurisdiction of the Supreme Court", "like jurisdiction", "non-judicial power", "persona designata", "pick up and apply", "prerogative of mercy", "referral to Court of Criminal Appeal", "severance".

Constitution, ss 51(xxxix), 76(ii), 77(iii).
Crimes (Appeal and Review) Act 2001 (NSW), ss 75, 77, 78, 79, 81, 82, 85, 86, 88, 114.
Criminal Appeal Act 1912 (NSW), s 5.
Interpretation Act 1987 (NSW), ss 12, 15.
Judiciary Act 1903 (Cth), ss 68, 79.

1. KIEFEL CJ, GAGELER AND GLEESON JJ. Mr Huynh was convicted and sentenced to a term of imprisonment following a trial on indictment in the District Court of New South Wales for an offence under ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). He appealed against the conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) as applied by force of s 68(1) and (2) of the Judiciary Act 1903 (Cth). The Court of Criminal Appeal dismissed the appeal[1].

   [1]Cranney v The Queen (2017) 325 FLR 173.

2. Mr Huynh subsequently applied to the Supreme Court of New South Wales pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") for an inquiry into the conviction. By that application, he sought to obtain an order under s 79(1)(b) of the CAR Act referring the whole of his case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The application was considered and dismissed on its merits by Garling J[2].

   [2]Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356.

3. Mr Huynh then applied by originating summons in the Court of Appeal of the Supreme Court of New South Wales for judicial review of the decision of Garling J pursuant to s 69 of the Supreme Court Act 1970 (NSW). The respondents to the application for judicial review were the Attorneys-General of New South Wales and the Commonwealth and the Supreme Court of New South Wales.

4. On the hearing of the application for judicial review, the Court of Appeal itself raised a preliminary issue. The issue was whether ss 78(1) and 79(1) of the CAR Act apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth, either of their own force or by force of s 68(1) of the Judiciary Act. In a considered judgment[3], the Court of Appeal held by majority (Bathurst CJ, Basten, Gleeson and Payne JJA) that they do not. The dissentient (Leeming JA) took the view that they apply of their own force.

   [3]Huynh v Attorney General (NSW) (2021) 107 NSWLR 75.

5. The holding of the majority resulted in the Court of Appeal making orders declaring the decision of Garling J to be void for want of jurisdiction and dismissing the originating summons for judicial review without the majority reaching the grounds of review sought to be raised by Mr Huynh.

6. On appeal by special leave to this Court, the Attorney-General of the Commonwealth argues with the support of Mr Huynh that the majority in the Court of Appeal was wrong to hold that ss 78(1) and 79(1) of the CAR Act do not apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth.

7. The Attorney-General of New South Wales, although a party to the appeal, has chosen not to participate in its hearing. The Attorney-General of Victoria has intervened under s 78A of the Judiciary Act to raise a narrow and discrete constitutional issue consideration of which can be deferred until the end of these reasons. In the absence of any other contradictor[4], Mr Hill SC and Mr Stellios have been appointed amici curiae. In that capacity, they have presented argument responding to that of the Attorney-General of the Commonwealth and of Mr Huynh.

   [4]See Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542 at 550 [1], 568 [68], 591-592 [149].

8. For the reasons which follow, ss 78(1) and 79(1) of the CAR Act do not apply of their own force to a conviction by a New South Wales court for an offence under a law of the Commonwealth, but ss 78(1) and 79(1)(b) are applied to such a conviction by force of s 68(1) of the Judiciary Act.

9. The outcome of the appeal by the Attorney-General of the Commonwealth is therefore that the appeal will be allowed, that the orders made by the Court of Appeal will be set aside, and that the matter will be remitted to the Court of Appeal for the hearing and determination of Mr Huynh's application for judicial review of the decision of Garling J.

   The CAR Act

10. Part 7 of the CAR Act is framed against the background that a conviction and sentence following a trial on indictment constitute the conclusive determination of criminal liability, subject only to an appeal under s 5 of the Criminal Appeal Act[5], and that the Court of Criminal Appeal has no jurisdiction to reopen an appeal under s 5 of the Criminal Appeal Act which it has heard and finally determined[6].

    [5]Elliott v The Queen (2007) 234 CLR 38 at 41-42 [5].

    [6]Grierson v The King (1938) 60 CLR 431.

11. Part 7 is headed "Review of convictions and sentences". Division 2 of that Part is headed "Petitions to Governor". Although Div 2 does not arise directly for consideration in the appeal, its provisions have contextual relevance. Section 76 allows for a petition for review of a conviction or sentence or the exercise of the Governor's pardoning power to be made to the Governor by or on behalf of the convicted person. Under s 77(1)(b), after the consideration of a petition, the Attorney-General is empowered to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The consequence of a reference under s 77(1)(b) is to enliven jurisdiction separately conferred on the Court of Criminal Appeal by s 86, which is within Div 5 of Pt 7 of the CAR Act.

12. Sections 78 and 79 are in Div 3, which is headed "Applications to Supreme Court".

13. Section 78 provides:

    "(1)An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

    (2)The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister."

14. Section 79 provides:

    "(1)After considering an application under section 78 or on its own motion—

    (a)the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

    (b)the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

    (2)Action under subsection (1) may only be taken if it appears that there is 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.

    (3)The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if—

    (a)      it appears that the matter—

    (i)has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

    (ii)has previously been dealt with under this Part or under the previous review provisions, or

    (iii)has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

    (iv)has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

    (b)the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

    ...

    (4)Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

    (5)The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."

15. The expression "convicted person" is not defined in the CAR Act. The term "conviction" is defined for the purposes of Pt 7, but in a manner which has no bearing on any issue in the appeal[7]. The term "sentence" is defined for the purposes of Pt 7 to include "a sentence or order imposed or made by any court following a conviction"[8].

    [7]Section 74(1) of the CAR Act (definition of "conviction").

    [8]Section 74(1) of the CAR Act (definition of "sentence").

16. The references in ss 78(1) and 79(1), (3) and (4) to "the Supreme Court" must be read in light of s 75 of the CAR Act. Section 75 provides that the "jurisdiction of the Supreme Court" under Pt 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" and that references to "the Supreme Court" in Pt 7 "are to be construed accordingly".

17. Having regard to the declaration in s 79(4) that a proceeding under s 79 is not judicial, the majority in the Court of Appeal took the view that the effect of s 75 is that the references in ss 78 and 79 to "the Supreme Court" are not to the Supreme Court constituted by the Chief Justice or an authorised judge[9], but rather to the Chief Justice or an authorised judge acting persona designata[10]. That view has been accepted by all parties and by the amici curiae in this Court.

    [9]Compare Love v Attorney-General (NSW) (1990) 169 CLR 307 at 318-323.

    [10]Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 80 [1], 88-89 [37]-[39], 90 [44]-[47], 92 [53]-[54], 112 [128], 144 [265].

18. The references in ss 78(2) and 79(5) to "the Minister" must be read in light of s 15 of the Interpretation Act 1987 (NSW) as references to the Minister or a Minister of the Crown in right of the State of New South Wales for the time being administering Pt 7 of the CAR Act. Unsurprisingly, the Minister has at all material times been or included the Attorney-General of New South Wales[11].

    [11]See Allocation of the Administration of Acts 2001 (NSW), cl 20(1).

19. Read with s 79(2) and (3), s 79(1) can be seen to be enlivened where the Chief Justice or an authorised judge, having chosen to consider an application made by or on behalf of a convicted person under s 78(1), entertains a doubt or thinks there to be a question as to the convicted person's guilt or as to mitigating circumstances in the case or evidence in the case. Where s 79(1) is so enlivened, two distinct and alternative courses of action are open to the Chief Justice or the authorised judge under the terms of that provision. In choosing whether or not to pursue either course of action, the Chief Justice or authorised judge performs what Basten JA aptly described in the Court of Appeal as a "gateway function"[12].

    [12]Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 100 [83].

20. One course of action open to the Chief Justice or the authorised judge upon considering an application made under s 78(1) and entertaining a doubt or thinking there to be a question as to the convicted person's guilt or as to mitigating circumstances or the evidence is to exercise the power conferred by s 79(1)(a) to direct that an inquiry be conducted into the conviction or sentence by a judicial officer. The consequence of a direction under s 79(1)(a) is to trigger an inquiry under Div 4 of Pt 7 of the CAR Act.

21. Where directed under s 79(1)(a), an inquiry under Div 4 of Pt 7 is to be conducted by a present or former judicial officer[13] (relevantly defined to include a judge of the New South Wales Supreme Court) to be appointed by the Chief Justice[14] and is to result in that judicial officer reporting to the Chief Justice[15]. The Chief Justice or an authorised judge is then to prepare a report of his or her own, which is to be sent to the Governor together with a copy of the judicial officer's report[16]. The Governor is then at liberty to "dispose of the matter in such manner as to the Governor appears just"[17]. The inquiry and reporting, in that way, facilitate consideration by the Governor of the exercise of the prerogative of mercy, which remains unaffected by anything in the CAR Act[18].

    [13]Section 3(1) of the Judicial Officers Act 1986 (NSW) (definition of "judicial officer").

    [14]Section 81(1)(b) of the CAR Act.

    [15]Section 82(1)(b) of the CAR Act.

    [16]Section 82(3) of the CAR Act.

    [17]Section 82(4) of the CAR Act.

    [18]Section 114 of the CAR Act. See Folbigg v Attorney-General (NSW) (2021) 391 ALR 294 at 303 [35].

22. To the certainty of an inquiry under Div 4 of Pt 7 resulting in reports being sent to the Governor is added the potential for the inquiry also to result in the judicial officer referring the subject-matter of the inquiry to the Court of Criminal Appeal together with a copy of the judicial officer's report. Such a referral could be either "for consideration of the question of whether the conviction should be quashed" (were the judicial officer to form the opinion that there was a reasonable doubt as to the guilt of the convicted person)[19] or "for review of the sentence imposed on the convicted person" (were the judicial officer to form the opinion that there was a reasonable doubt as to a matter that may have affected the nature or severity of the sentence)[20]. The referral would enliven jurisdiction conferred on the Court of Criminal Appeal under Div 5 of Pt 7 of the CAR Act by s 88(1) or (2), exercise of which would involve the Court of Criminal Appeal considering the reports in a proceeding to which the Crown in right of New South Wales and the convicted person would be given the opportunity to make submissions[21].

    [19]Section 82(2)(a) of the CAR Act.

    [20]Section 82(2)(b) of the CAR Act.

    [21]Section 85 of the CAR Act.

23. The other course of action open to the Chief Justice or authorised judge upon considering an application made under s 78(1) and entertaining a doubt or thinking there to be a question as to the convicted person's guilt or as to mitigating circumstances or the evidence is to exercise the power conferred by s 79(1)(b) to refer the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The consequence of a reference by the Chief Justice or authorised judge under s 79(1)(b) is to enliven the jurisdiction separately conferred on the Court of Criminal Appeal by s 86, which is the same jurisdiction which would be enlivened as a consequence of a reference by the Attorney-General under s 77(1)(b).

24. Section 86 of the CAR Act provides that the Court of Criminal Appeal, on receiving a reference under s 77(1)(b) or s 79(1)(b), "is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly". Dealing with the case in that way would involve the Court of Criminal Appeal hearing it as if it were an appeal under s 5 of the Criminal Appeal Act and determining it ordinarily by making an order under s 6 of the Criminal Appeal Act.

25. The parties to the appeal under s 86 of the CAR Act read with s 5 of the Criminal Appeal Act would mirror those in an appeal under s 5 of the Criminal Appeal Act (which is commenced by a convicted person filing a notice of appeal which the Registrar of the Court of Criminal Appeal is required to serve on the Attorney-General of New South Wales[22]). The convicted person would be the appellant. The respondent would be either the Attorney-General of New South Wales or the Director of Public Prosecutions of New South Wales "in the character of the person responsible for the indictment"[23] on behalf of the Crown in right of New South Wales[24].

    [22]Sections 10 and 16 of the Criminal Appeal Act.

    [23]R v Williams (1934) 34 SR (NSW) 143 at 152.

    [24]Sections 8 and 9 of the Criminal Procedure Act 1986 (NSW).

26. Those two distinct and alternative courses of action available to the Chief Justice or an authorised judge under s 79(1)(a) and (b) of the CAR Act have different historical roots.

27. The course of action available under s 79(1)(a) originated in legislation first introduced in New South Wales in 1883[25]. The 1883 legislation was re-enacted as s 475 of the Crimes Act 1900 (NSW). As last amended in 1992[26], s 475(1) was expressed to apply "[w]henever, after the conviction in any court of any person, any doubt or question arises as to his guilt, or any mitigating circumstances in the case, or any portion of the evidence therein", and relevantly to empower "the Supreme Court on application by or on behalf of" the convicted person to direct a Justice or a judicial officer to conduct an inquiry "on the matter suggested". The inquiry was to result in a report to the Governor under s 475(4).

    [25]Sections 383 and 384 of the Criminal Law Amendment Act of 1883 (NSW) (46 Vic No 17).

    [26]Schedule 1 to the Criminal Legislation (Amendment) Act 1992 (NSW), enacted after Varley v Attorney-General (NSW) (1987) 8 NSWLR 30.

28. The course of action available under s 79(1)(b) of the CAR Act derives from s 26(a) the Criminal Appeal Act. As enacted in 1912, s 26 the Criminal Appeal Act was modelled on s 19 of the Criminal Appeal Act 1907 (UK). The chapeau to s 26 made clear that nothing in the Criminal Appeal Act was to affect the pardoning power of the Governor. Section 26(a) provided that the Minister of Justice, on considering a petition for the exercise of the pardoning power, may "refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted".

29. Section 475 of the Crimes Act and s 26 of the Criminal Appeal Act were repealed upon the enactment of Pt 13A of the Crimes Act in 1993[27]. Part 13A was amended in 1996[28] and again in 2003[29]. The provisions of Pt 13A of the Crimes Act were then transferred to, and renumbered in, Pt 7 of the CAR Act[30] in 2006[31].

    [27]Schedules 1 and 2 to the Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW).

    [28]Schedule 1 to the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW).

    [29]Schedule 3 to the Crimes Legislation Amendment Act 2003 (NSW).

    [30]Enacted as the Crimes (Local Courts Appeal and Review) Act2001 (NSW).

    [31]Schedule 2 to the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW).

30. Reflecting s 475 of the Crimes Act prior to its repeal, the course of action now available to the Chief Justice or an authorised judge under s 79(1)(a) of the CAR Act, on an application under s 78(1), was available to the Chief Justice or an authorised judge under Pt 13A of the Crimes Act from the time of its enactment in 1993[32]. Reflecting s 26(a) the Criminal Appeal Act as enacted, the course of action now available to the Attorney-General under s 77(1)(b) of the CAR Act, after a petition to the Governor, was available to the Attorney-General under Pt 13A of the Crimes Act from the time of its enactment in 1993[33].

    [32]See ss 474D(1) and 474E(1) of the Crimes Act.

    [33]See s 474C(1)(b) of the Crimes Act.

31. The course of action now available to the Chief Justice or an authorised judge under s 79(1)(b) of the CAR Act, on an application under s 78(1), was not available to the Chief Justice or an authorised judge under Pt 13A of the Crimes Act at the time of its enactment in 1993 but was added by amendment in 1996[34]. The purpose of its addition, as explained in the second reading speech for the amending legislation, was to "give the Supreme Court the same power as the Governor has to refer a case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act". "Given that a petitioner may choose between an application to the Governor and an application to the Supreme Court", the second reading speech explained, "it is considered desirable that the same outcomes be available for the disposition of the application regardless of the preferred venue"[35].

    [34]Items 7 and 11 of Sch 1 to the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW).

    [35]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. See also New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 June 1996 at 2897.

    Sections 78 and 79 of the CAR Act do not apply of their own force to Commonwealth offences

32. The difference between the majority and the dissentient in the Court of Appeal as to whether ss 78 and 79 of the CAR Act apply of their own force to a conviction by a New South Wales court for an offence under a law of the Commonwealth turned on a difference as to the construction of the terms "conviction" and "sentence" and of the expression "convicted person".

33. The "localising principle"[36] expressed in s 12(1)(b) of the Interpretation Act 1987 (NSW) – that "a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales" – leaves the precise nature of the connection between the "conviction" and "sentence" of the "convicted person" and the State of New South Wales to be determined as a matter of construction[37]. The constructions judicially accorded to cognate expressions in other New South Wales statutes[38] are of limited utility in making the necessary constructional choice.

    [36]Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 95 [68].

    [37]See BHP Group Ltd v Impiombato (2022) 96 ALJR 956 at 964-965 [36], 971-972 [63]; 405 ALR 402 at 410, 418-419.

    [38]Compare Seaegg v The King (1932) 48 CLR 251 at 255; Solomons v District Court (NSW) (2002) 211 CLR 119 at 130 [9].

34. The Court of Appeal was unanimous in concluding that the requisite connection with the State of New South Wales involves the conviction and sentence having been by a New South Wales court. What differentiated the majority from the minority was that the majority concluded that the requisite connection also involves the conviction and sentence having been for an offence punishable under New South Wales law.

35. The context of ss 78 and 79 within the scheme of Pt 7 of the CAR Act makes the conclusion of the majority compelling. In enacting Pt 7, the Parliament of New South Wales can be assumed to have used terminology consistently[39] and to have avoided the absurdity of authorising the Chief Justice or a judge of the Supreme Court to engage in an exercise of constitutional futility.

    [39]Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618.

36. The report to the Governor, which is the necessary outcome of the Chief Justice or an authorised judge of the Supreme Court exercising the power conferred by s 79(1)(a) after considering an application made under s 78(1), is constitutionally utile in respect of a person convicted and sentenced for an offence punishable under New South Wales law in so far as it facilitates consideration by the Governor of the exercise of the prerogative of mercy. Such a report would be constitutionally futile in respect of a person convicted and sentenced for an offence punishable under a law of the Commonwealth. Axiomatically, within the federal system of government established by the Constitution, the prerogative of mercy in respect of a person convicted and sentenced for an offence under a law of the Commonwealth is an aspect of the executive power of the Commonwealth vested by s 61 of the Constitution exclusively in the Governor-General[40].

    [40]See Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 at 226 [86]-[87].

37. The conferral by s 86 of the CAR Act of State jurisdiction on the Court of Criminal Appeal to deal with the case of a convicted person as if on an appeal under the Criminal Appeal Act, which is the necessary outcome of the Chief Justice or an authorised judge exercising the power conferred by s 79(1)(b) after considering an application made under s 78(1), is effective in respect of a person convicted and sentenced for an offence punishable under New South Wales law in that it can result in the Court of Criminal Appeal making an order setting aside the conviction or varying the sentence. A conferral of State jurisdiction in those terms would be beyond the legislative power of the State in respect of a person convicted and sentenced in federal jurisdiction for an offence under a law of the Commonwealth[41].

    [41]Rizeq v Western Australia (2017) 262 CLR 1 at 25 [60].

38. Having no application of their own force to a person convicted and sentenced by a New South Wales court for an offence under a law of the Commonwealth, ss 78 and 79 of the CAR Act can have such an application only to the extent they are given it by force of a Commonwealth law – relevantly, s 68(1) of the Judiciary Act.

    Section 68(1) of the Judiciary Act

39. The Judiciary Act is described by its long title as an Act "to make provision for the Exercise of the Judicial Power of the Commonwealth". Part X is headed "Criminal jurisdiction". Division 1 of that Part is headed "Application of laws". Within that Division, s 68 is headed "Jurisdiction of State and Territory courts in criminal cases".

40. Section 68(1) and (2) provide:

    "(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

    (a)      their summary conviction; and

    (b)their examination and commitment for trial on indictment; and

    (c)      their trial and conviction on indictment; and

    (d)the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

    and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable 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 or Territory by this section.

    (2)The several Courts of a State or Territory exercising jurisdiction with respect to:

    (a)      the summary conviction; or

    (b)the examination and commitment for trial on indictment; or

    (c)      the trial and conviction on indictment;

    of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth."

41. Section 68(1)'s application of certain State and Territory laws "so far as they are applicable" to persons charged with offences against Commonwealth laws in respect of whom jurisdiction is invested in State and Territory courts under s 68(2) has features in common with the prescription in s 79(1) of the Judiciary Act that certain State and Territory laws are binding on courts exercising federal jurisdiction "except as otherwise provided by the Constitution or the laws of the Commonwealth ... in all cases to which they are applicable". There is a substantial degree of overlap in the purposes and operations of the two provisions in so far as both "enable State [and Territory] courts in the exercise of federal jurisdiction to apply federal laws according to a common procedure in one judicial system"[42].

    [42]R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345. See also Putland v The Queen (2004) 218 CLR 174 at 179-180 [7], 188 [36], 189 [41], 215 [121].

42. There are, however, important differences. There is a difference of focus, s 68(1) being concerned with laws applying to persons (in the sense that those persons are the subject or object of the applicable laws whether or not those persons are immediately bound by them) and s 79(1) being concerned with laws binding on courts. Underlying that difference in focus is a difference in the roles of the two provisions, s 68(1) being concerned to pick up identified aspects of State and Territory criminal procedure – so as to ensure that "federal criminal law is administered in each State [and Territory] upon the same footing as State [and Territory] law and [to avoid] the establishment of two independent systems of justice"[43] – rather than being narrowly confined to the jurisdictional gap-filling role identified for s 79(1) in Rizeq v Western Australia[44]. There is also a difference in the nature and degree of translation that is required in picking up and applying State and Territory laws. That difference will need to be explored in some detail.

    [43]R v Murphy (1985) 158 CLR 596 at 617.

    [44](2017) 262 CLR 1 at 18 [32], 36-37 [90]-[92], 41 [103].

43. The key to understanding the scope and operation of s 68(1) lies in an appreciation of the scope and operation of s 68(2). In its application to the "several Courts of a State", s 68(2) is an exercise of the legislative power conferred on the Commonwealth Parliament by s 77(iii) of the Constitution[45]. Section 68(2) in that application invests State courts with federal jurisdiction with respect to a class of matters within those mentioned in s 76(ii) of the Constitution. The class comprises matters arising under Commonwealth laws which create offences. The federal jurisdiction so invested is inherently limited to authority to exercise the judicial power of the Commonwealth or to perform functions incidental to the exercise of that judicial power[46].

    [45]R v Murphy (1985) 158 CLR 596 at 613-614.

    [46]R v Murphy (1985) 158 CLR 596 at 614-618.

44. Section 68(2) defines the federal jurisdiction which it invests in the several courts of a State by reference to the State jurisdiction from time to time exercised by each State court with respect to "the summary conviction", "the examination and commitment for trial on indictment", "the trial and conviction on indictment" and "the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith" of persons charged with offences against the laws of the State.

45. In investing each State court which exercises one or more of those four categories of State jurisdiction with "the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth", s 68(2) "recognizes that the adoption of State law must proceed by analogy"[47]. The federal jurisdiction it invests is "a jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State"[48].

    [47]Williams v The King [No 2] (1934) 50 CLR 551 at 561.

    [48]Williams v The King [No 1] (1933) 50 CLR 536 at 543.

46. To the extent that the federal jurisdiction invested in a State court through s 68(2)'s adoption of State law by analogy might be inconsistent with the federal jurisdiction invested in that State court by s 39(2) of the Judiciary Act, the better view (at least since the insertion of s 39A(1) of the Judiciary Act) is that the specific investiture by s 68(2) displaces the general investiture by s 39(2)[49].

    [49]Brown v The Queen (1986) 160 CLR 171 at 197; R v Gee (2003) 212 CLR 230 at 256 [66]-[67]. See Lindell, Cowen and Zines's Federal Jurisdiction in Australia, 4th ed (2016) at 302-303.

47. Section 68(1) is an exercise of the legislative power conferred on the Commonwealth Parliament by s 51(xxxix) of the Constitution and of such other conferrals of legislative power as might be exercised by the Commonwealth Parliament to create the offences charged[50].

    [50]cf R v Hughes (2000) 202 CLR 535 at 555-556 [40].

48. Section 68(1) operates to apply to persons charged with offences against the laws of the Commonwealth, in respect of whom jurisdiction is invested in State or Territory courts under s 68(2), State or Territory laws from time to time applying to persons charged with State or Territory offences which answer the description of laws "respecting" one or more of six designated categories of criminal procedure: those "respecting ... the procedure for" each of the four categories of State jurisdiction designated in s 68(2), those "respecting the arrest and custody of offenders or persons charged with offences", and those "respecting ... the procedure ... for holding accused persons to bail".

49. Much attention has been focused in argument on the reference in s 68(1)(d) to "the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith". Section 68(1)(d) and the corresponding language in s 68(2) were inserted in 1932[51] in response to the holding in Seaegg v The King[52] that s 68(2) in its original form did not operate to invest federal jurisdiction with respect to criminal appeals as defined by reference to s 5 of the Criminal Appeal Act.

    [51]Judiciary Act 1932 (Cth).

    [52](1932) 48 CLR 251.

50. The term "appeal" was in 1932, and remains, defined in s 2 of the Judiciary Act 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". Neither the object of the Judiciary Act encapsulated in its long title, nor the extensive usage of the term "appeal" throughout the Judiciary Act, nor the evident purpose of the words inserted into s 68 in 1932 to overcome the holding in Seaegg[53], provides any support for the notion advanced by the Attorney-General of the Commonwealth and Mr Huynh that the term so defined extends s 68(1)(d) to a proceeding that is not a proceeding to be heard and determined by a court in the exercise of judicial power.

    [53]See R v LK (2010) 241 CLR 177 at 188-189 [14]-[16].

51. Of the words inserted in 1932, Dixon J said in Williams v The King [No 2][54] that "they necessarily extend to all remedies given by State law which fall within the description 'appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith'". His Honour explained that "[t]his accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice".

    [54](1934) 50 CLR 551 at 560.

52. Construed and applied in the manner indicated by Dixon J in Williams v The King [No 2], the words inserted into s 68 in 1932 were accepted in Peel v The Queen[55] and Rohde v Director of Public Prosecutions[56] to encompass prosecution appeals against sentence. They were accepted in R v LK[57] to encompass a prosecution appeal against a directed verdict of acquittal. One effect of the inserted words so construed and applied is that the prior and continuing reference in each of s 68(1) and (2) to "persons who are charged with offences against the laws of the Commonwealth" must be read without temporal restriction so as to extend to persons who, having been charged, have gone on to be tried and convicted of offences against laws of the Commonwealth.

    [55](1971) 125 CLR 447 at 457, 460, 467-468.

    [56](1986) 161 CLR 119 at 124-125.

    [57](2010) 241 CLR 177 at 187-191 [12]-[20], 215-216 [86].

53. The same words were accepted in R v Gee[58] to extend to a procedure for the reservation by a District Court, and determination by a Supreme Court, of a question of law antecedent to trial. Elaborating on the explanation of the general policy of s 68 by Dixon J in Williams v The King [No 2], Gleeson CJ said in Gee[59]:

    "That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time."

    [58](2003) 212 CLR 230.

    [59](2003) 212 CLR 230 at 241 [7].

54. The general policy explained by Dixon J as elaborated by Gleeson CJ is implemented through the language of s 68(1) purposively construed within the structure of s 68 as a whole. Even on the most purposive of constructions, however, the language and structure of s 68(1) and (2) make it impossible to read the reference to "appeals" in s 68(1)(d) as broader than the federal jurisdiction invested in State courts by the equivalent language in s 68(2). In referring to the procedure for the hearing and determination of appeals arising out of a trial or conviction, s 68(1)(d) refers only to the procedure for the hearing and determination of a proceeding in a court in the exercise of judicial power. The reference does not extend to non-judicial procedures engaged in by persons or institutions who do not, for the purposes of engaging in those procedures, constitute State courts.

55. If State or Territory laws providing for the review or questioning of convictions or sentences through non-judicial procedures engaged in by persons or institutions other than State or Territory courts are to fall within the purview of s 68(1), it can only be, as the amici curiae submit, because those laws answer the description of laws "respecting" one or more of the six categories of criminal procedure designated in s 68(1). The word "respecting", like the cognate expression "in respect of", takes its meaning from its context[60] and accommodates a range of potential relational connections[61].

    [60]State Government Insurance Office (Q) v Rees (1979) 144 CLR 549 at 561.

    [61]R v Khazaal (2012) 246 CLR 601 at 613 [31].

56. Whether and to what extent State or Territory laws answer the description of laws "respecting" one or more of those categories of criminal procedure is a question of characterisation. The answer to that question necessarily turns on considerations of substance and degree.

57. To the extent that State or Territory laws are properly characterised as answering the requisite description, s 68(1)'s application of the text of those laws "so far as they are applicable" to persons charged with offences against Commonwealth laws in respect of whom federal jurisdiction is invested under s 68(2) requires a degree of translation. Not unlike s 79(1)[62], s 68(1) applies the text of a State or Territory law without change to its meaning. However, there are three important qualifications to that general proposition.

    [62]Rizeq v Western Australia (2017) 262 CLR 1 at 32-33 [81], 36-37 [91].

58. The first qualification, recognised in Putland v The Queen[63], is that s 68(1) does not apply the text of a State or Territory law to the extent that in so applying as a Commonwealth law it would be inconsistent with the Constitution or another Commonwealth law.

    [63](2004) 218 CLR 174 at 179 [7], 189 [41], 215 [121].

59. The second qualification is as follows. In the same way as s 79 of the Judiciary Act necessarily proceeds on the hypothesis that a State or Territory law which binds courts exercising State or Territory jurisdiction is capable of binding courts exercising federal jurisdiction[64], s 68(1) necessarily proceeds on the hypothesis that a State or Territory law applicable to a person charged with an offence against a State or Territory law in State or Territory jurisdiction is capable of application to a person charged with an offence against a Commonwealth law in respect of whom like federal jurisdiction is invested under s 68(2). To the extent that s 68(2) recognises that the adoption of State or Territory law must proceed by analogy, so too must s 68(1).

    [64]John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 95; Maguire v Simpson (1977) 139 CLR 362 at 376.

60. Williams v The King [No 1][65] is an illustration. Section 5D of the Criminal Appeal Act, which is expressed to confer a right of appeal against sentence on the Attorney-General of New South Wales, was there held not to confer that right on the Attorney-General of New South Wales in the analogous federal jurisdiction invested by s 68(2) of the Judiciary Act. Starke J posed and answered the determinative question[66]:

    "By whom, then, can the right of appeal granted in respect of sentences pronounced regarding offences against the Federal law be exercised? In my opinion, that right is exercisable by the Crown, and the proper officer to assert it is the legal adviser and representative of the Crown in the Commonwealth; in other words, the Attorney-General of the Commonwealth."

    To similar effect, Dixon J expressed the opinion that it was "clear that the appeal is not given by the legislation to the Attorney-General of the State", adding[67]:

    "It is true that sub-sec (1)(d) of sec 68 of the Judiciary Act ... applies the laws of the State with respect to the procedure for the hearing and determination of appeals arising out of the trial or conviction on indictment, or out of any proceeding connected therewith, of offenders against the laws of the States. But the qualification contained in the words occurring in the sub-section, 'so far as they are applicable,' excludes the application of so much of the State law as gives the appeal to the State Attorney-General."

    [65](1933) 50 CLR 536.

    [66](1933) 50 CLR 536 at 543.

    [67](1933) 50 CLR 536 at 545.

61. Peel and Rohde are further illustrations. In Peel, which was also concerned with federal jurisdiction invested by s 68(2) of the Judiciary Act by reference to s 5D of the Criminal Appeal Act, Gibbs J identified one of the questions to be "whether the right of appeal which s 68(2) confers is given to the Attorney-General of the Commonwealth". Answering that question with reference to what had been said by Jordan CJ in R v Williams[68], Gibbs J said[69]:

    "As Jordan CJ pointed out ... if s 68(2) '... is read as meaning that the jurisdiction is to be restricted to hearing appeals by persons designated by the State Act, it becomes nugatory, because neither persons convicted on New South Wales indictments nor the Attorney-General of New South Wales could have any concern with appeals arising out of trials or convictions for offences against the laws of the Commonwealth.' This provides a sound reason for concluding that in the application of s 68(2) 'the adoption of State law must proceed by analogy'."

    Proceeding by analogy, Gibbs J continued:

    "Section 5 of the Criminal Appeal Act ... gives a right of appeal to a person convicted upon indictment under State law and s 68(2) in its operation on s 5 gives a right of appeal to persons convicted upon indictment under the law of the Commonwealth. Section 5D of the Criminal Appeal Act gives the Attorney-General of the State a right of appeal because he is the proper officer to represent the State; s 68(2) in its operation on s 5D gives a right of appeal to the Attorney-General of the Commonwealth as the proper officer to represent the Commonwealth. The functions exercised by the Attorney-General of the Commonwealth are like functions to those of the Attorney-General of the State and the jurisdiction exercised by the Court of Criminal Appeal in hearing and determining an appeal by the Attorney-General of the Commonwealth against a sentence imposed for an offence against Commonwealth law is a like jurisdiction to that exercised by the Court of Criminal Appeal in hearing an appeal by the Attorney-General of the State against a sentence imposed for an offence against the law of the State."

    [68](1934) 34 SR (NSW) 143 at 151-152.

    [69](1971) 125 CLR 447 at 468-469.

62. Although Gibbs J did not specifically address the operation of s 68(1), it is obvious that, for the federal jurisdiction so invested by s 68(2) of the Judiciary Act to be efficacious, the text not only of ss 5 and 5D but also of Pt 4 of the Criminal Appeal Act (governing the procedure for the hearing and determination of appeals under those sections) must be applied as Commonwealth laws by s 68(1)(d) of the Judiciary Act. As so applied, the text of those provisions needs to be translated to the extent of treating references to the Crown in right of the State of New South Wales as references to the Crown in right of the Commonwealth and of treating references to the Attorney-General of the State as references to the Attorney-General of the Commonwealth.

63. In Rohde, the operation of s 68(2) of the Judiciary Act to confer federal jurisdiction defined by reference to s 567A of the Crimes Act 1958 (Vic) (which was expressed to confer a right to appeal against a sentence for an offence against a Victorian law on the Victorian Director of Public Prosecutions) was held to confer a right of appeal against a sentence for an offence against a Commonwealth law on the Attorney-General of the Commonwealth. The right of appeal so conferred was held to be exercisable by the Commonwealth Director of Public Prosecutions by operation of s 9(7) of the Director of Public Prosecutions Act 1983 (Cth).

64. Just as s 68(2) of the Judiciary Act must displace s 39(2) to the extent of any inconsistency, so s 68(1) must displace s 79(1) to the extent of any inconsistency in the translation of State laws. Section 68(1) is the more specific of the two provisions, and giving priority to s 68(1) is harmonious with the purposes of both provisions.

65. The third qualification to the general proposition that s 68(1) of the Judiciary Act applies the text of a State or Territory law without change to its meaning is that expressed in Solomons v District Court (NSW)[70] and repeated in Putland v The Queen[71] in relation to s 79. The qualification is that "where a particular provision of State law is an integral part of a State legislative scheme, [the section] could not operate to pick up some but not all of it, if to do so would be to give an altered meaning to the severed part of the State legislation". The qualification was applied in Solomons to hold that neither s 68 nor s 79 of the Judiciary Act empowered the District Court of New South Wales to grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)[72] in proceedings involving federal offences, given that the certificate would have lacked utility as no Commonwealth law effected a "corresponding transmutation" upon s 4 of that Act, which allowed a certificate granted under s 2 to be used to make an application to an executive officer of the State of New South Wales for payment of the certified costs from the Consolidated Revenue Fund of New South Wales[73].

    [70](2002) 211 CLR 119 at 135 [24].

    [71](2004) 218 CLR 174 at 188 [36]-[37]. See also R v Gee (2003) 212 CLR 230 at 254 [62].

    [72](2002) 211 CLR 119 at 128 [1], 134 [19], 136 [29].

    [73](2002) 211 CLR 119 at 135-136 [25]-[27].

66. The third qualification does not mean that the operation of s 68(1) is limited to the application of State or Territory laws which stand alone or which are components of State or Territory legislative schemes capable of application as Commonwealth laws in their entirety. That is not how s 68(1) works, as Brown v The Queen[74] and Cheatle v The Queen[75] (each recognising the partial application of State jury provisions by s 68(1)) well enough illustrate. What the third qualification means is that s 68(1) does not apply the text of a State or Territory law where to apply the text divorced from its State or Territory context would give that text a substantively different legal operation.

    [74](1986) 160 CLR 171.

    [75](1993) 177 CLR 541.

67. Those being the principles which inform the answer to the determinative question of whether and to what extent s 68(1) of the Judiciary Act applies ss 78 and 79 of the CAR Act to a conviction by a New South Wales court for an offence under a law of the Commonwealth, it is appropriate now to turn to that question.

    The extent to which 68(1) of the Judiciary Act applies ss 78 and 79 of the CAR Act

68. For reasons which have been explained, determination of whether and to what extent s 68(1) of the Judiciary Act applies the text of ss 78 and 79 of the CAR Act as Commonwealth laws necessarily begins with identification of the State jurisdiction by reference to which "like jurisdiction" is invested by s 68(2) of the Judiciary Act.

69. The argument of the Attorney-General of the Commonwealth and of Mr Huynh in its broadest form is that support for the application of the text of ss 78(1) and 79(1) of the CAR Act as Commonwealth laws by force of s 68(1) of the Judiciary Act can be found in the "like jurisdiction" which was exercised under s 68(2) of the Judiciary Act by the District Court of New South Wales when convicting and sentencing Mr Huynh for an offence under ss 11.5(1) and 307.11(1) of the Criminal Code.

70. That broadest form of the argument fails at the level of characterisation of ss 78(1) and 79(1) of the CAR Act for the purpose of s 68(1) of the Judiciary Act. Those provisions cannot be characterised as laws respecting the procedure for the trial and conviction on indictment of a convicted person. The provisions speak only when jurisdiction to hear and determine the matter concerning the criminal liability to which the trial and conviction related has been spent and when the criminal liability which had been in issue in that matter has merged in the conviction and sentence[76].

    [76]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 106.

71. A narrower form of the argument of the Attorney-General of the Commonwealth and of Mr Huynh is that support for the application of the text of ss 78(1) and 79(1) of the CAR Act as Commonwealth laws by force of s 68(1) of the Judiciary Act can be found in the "like jurisdiction" which might be invested by s 68(2) of the Judiciary Act by reference to the State jurisdiction conferred on the Court of Criminal Appeal under s 88 of the CAR Act, in the event of a direction under s 79(1)(a) giving rise to a referral by a judicial officer conducting an inquiry under Div 4, and that is invested under s 86 of the CAR Act, in the event of a referral under s 79(1)(b).

72. Adopting the approach of Dixon J in Williams v The King [No 2] as applied in Peel, Rohde, Gee and LK, there is no difficulty in principle in characterising the jurisdiction conferred by each of s 86 and s 88 of the CAR Act as jurisdiction with respect to the hearing and determination of an appeal arising out of the trial or conviction of a convicted person. Neither s 86 nor s 88 of the CAR Act confers jurisdiction of a kind inherently incapable of defining "like jurisdiction" invested by s 68(2) of the Judiciary Act.

73. There are, however, insurmountable difficulties in characterising ss 78(1) and 79(1)(a) of the CAR Act as laws respecting the procedure for the jurisdiction conferred by s 88 of the CAR Act so as to be applied as Commonwealth laws by force of s 68(1) of the Judiciary Act. The relationship between a direction under s 79(1)(a) and a referral by a judicial officer conducting an inquiry under Div 4 enlivening the jurisdiction conferred by s 88 is no more than contingent and remote. Moreover, a direction under s 79(1)(a) cannot have the potential to result in a referral by a judicial officer, so as to enliven the jurisdiction conferred by s 88, without also having the certainty of invoking the totality of the procedures for inquiry and reporting under Div 4. To attempt to disentangle one from the other would be to give the text of s 79(1)(a) a radically different legal operation. And on no basis could the provisions of Div 4 which provide for inquiry and reporting be characterised as laws respecting the procedure for the hearing of appeals in the jurisdiction conferred by s 88 of the CAR Act. The tail cannot wag the dog.

74. The same difficulties do not arise in characterising ss 78(1) and 79(1)(b) of the CAR Act as laws respecting the procedure for the hearing of appeals in the jurisdiction conferred by s 86 of the CAR Act. The sole legal consequence of a referral under s 79(1)(b) is directly and immediately to enliven the jurisdiction conferred by s 86. No non-judicial procedure intervenes.

75. The question is then as to whether ss 78(1) and 79(1)(b) of the CAR Act can be applied as Commonwealth laws by force of s 68(1) of the Judiciary Act independently of s 79(1)(a) of the CAR Act. There is no textual difficulty applying the text of ss 78(1) and 79(1)(b) without applying the text of s 79(1)(a). The critical question is whether the absence of s 79(1)(a) would give that text a substantively different legal operation. The answer is that it would not.

76. The structure and history of Pt 7 of the CAR Act (to which reference has already been made) indicate that, despite both being available upon the making of a common form of application under s 78(1) and both being regulated by s 79(2) and (3), the two courses of action available to the Chief Justice or an authorised judge of the Supreme Court by s 79(1)(a) and (b) are distinct and separate. The unavailability of one course of action does not alter or detract from the availability or incidents of the other course of action. Taking away s 79(1)(a) has no effect on the form or method of application set out in s 78(1), on the circumstances in which the Chief Justice or an authorised judge of the Supreme Court might refuse to consider or otherwise deal with that application in accordance with s 79(3), on the precondition to the taking of action under s 79(1)(b) set out in s 79(2), or on the range of other considerations available to be taken into account by the Chief Justice or an authorised judge in deciding whether or not to take action under s 79(1)(b).

77. The conclusion to which that leads is that the texts of ss 78(1) and 79(1)(b) of the CAR Act are applied as Commonwealth laws by force of s 68(1) of the Judiciary Act on the basis that they are laws respecting the procedure for the hearing of appeals in the "like jurisdiction" to that conferred under s 86 of the CAR Act (read with the Criminal Appeal Act) invested in the Court of Criminal Appeal by s 68(2) of the Judiciary Act upon its receipt of a reference under s 79(1)(b) of the CAR Act. The matter to be heard and determined in the exercise of the judicial power of the Commonwealth in that like federal jurisdiction is a controversy, between a person convicted of and sentenced for an offence against a law of the Commonwealth and the Attorney-General of the Commonwealth representing the Crown in right of the Commonwealth, as to whether the conviction or sentence should be quashed or otherwise dealt with on any ground for which provision is made in the Criminal Appeal Act.

78. The conclusion accords with that reached by Wood CJ at CL with respect to the forerunners of ss 78(1) and 79(1)(b) of CAR Act, namely ss 474D(1) and 474E(1)(b) of the Crimes Act, in Application of Pearson[77].

    [77](1999) 46 NSWLR 148.

79. Whether s 68(1) of the Judiciary Act operates to apply the text of the notice provisions in ss 78(2) and 79(5) of the CAR Act, and if so whether that text is to be translated to require notice to the Attorney-General of the Commonwealth as distinct from notice to the Attorney-General of New South Wales, has not been the subject of argument and need not be determined in order to resolve the appeal. Those are questions which, at least in relation to s 78(2) of the CAR Act, are within the scope of the issues raised by Mr Huynh in his application for judicial review. The merits of that application, as has already been noted, were not addressed by the majority in the Court of Appeal and will remain to be addressed on remittal to the Court of Appeal. Enough for present purposes is to record that the resolution of those questions about the notice provisions, one way or the other, has no bearing on the conclusion that the texts of ss 78(1) and 79(1)(b) of the CAR Act are applied as Commonwealth laws by force of s 68(1) of the Judiciary Act.

    Victoria's discrete constitutional argument

80. There remains to consider the discrete constitutional argument put on behalf of the Attorney-General of Victoria. The argument is that the text of ss 78(1) and 79(1)(b) of the CAR Act applying as a Commonwealth law by force of s 68(1) of the Judiciary Act would infringe one or perhaps two limitations on Commonwealth legislative power.

81. The limitation on Commonwealth legislative power which it is said would be infringed is that recognised in Grollo v Palmer[78]: that the Commonwealth Parliament cannot confer on a judge of a court in their personal capacity a non-judicial function unless the individual judge has consented to that conferral. The limitation which it is said would perhaps be infringed is that considered but left unresolved in O'Donoghue v Ireland[79]: that the Commonwealth Parliament cannot impose an administrative duty on the holder of a State statutory office without State legislative approval.

    [78](1995) 184 CLR 348 at 364-365. See also Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 13.

    [79](2008) 234 CLR 599.

82. The argument is answered sufficiently for the purposes of the present case, in which Mr Huynh's application under s 78(1) of the CAR Act was considered and dismissed by Garling J as a judge of the Supreme Court authorised by the Chief Justice under s 75 of the CAR Act, by noting that Garling J did not come under any enforceable obligation to entertain Mr Huynh's application by virtue of the authorisation under s 75 or by virtue of the application being allocated to him[80].

    [80]cf O'Donoghue v Ireland (2008) 234 CLR 599 at 618 [24].

83. Garling J made a choice to entertain Mr Huynh's application, as is evidenced by his conduct in considering and dismissing it. Neither s 78(1) nor s 79(1)(b) of the CAR Act applying as a Commonwealth law by force of s 68(1) of the Judiciary Act imposed any duty on him to entertain the application at all. Any question concerning whether the Chief Justice might come under an enforceable obligation to entertain an application which would infringe either of the constitutional limitations to which the Attorney-General of Victoria draws attention can be addressed if and when it arises[81].

    [81]See Knight v Victoria (2017) 261 CLR 306 at 324 [32], 326 [37].

    Orders

84. The appeal is to be allowed. The orders made by the Court of Appeal are to be set aside. The matter is to be remitted to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court. There is to be no order as to costs.

85. GORDON AND STEWARD JJ. On 9 June 2015, Mr Huynh was convicted in the District Court of New South Wales of an offence against a law of the Commonwealth, being one count of conspiracy to import a commercial quantity of a border-controlled precursor (pseudoephedrine) in breach of ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). He was sentenced to imprisonment for 12 years, with an eight-year non-parole period.

86. In March 2020, having exhausted all available avenues of appeal, Mr Huynh applied to the Supreme Court of New South Wales for an inquiry into his conviction under s 78 in Div 3 of Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act"). Mr Huynh's application was dismissed by Garling J in October 2020. His Honour held that having examined Mr Huynh's submissions and all of the relevant material, and having considered the issues substantively, he had "no sense of unease or doubt as to [Mr Huynh's] guilt".

87. In January 2021, Mr Huynh commenced proceedings against the Attorney‑General of New South Wales in the Court of Appeal of the Supreme Court of New South Wales 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". Mr Huynh subsequently joined the Attorney-General of the Commonwealth ("the A‑G (Cth)") and the Supreme Court of New South Wales.

88. Before the Court of Appeal, a preliminary question was raised as to whether the procedure under Div 3 of Pt 7 of the CAR Act was available to a person convicted in a New South Wales court of an offence against a law of the Commonwealth. The Court of Appeal made the following orders and declarations, from which the A-G (Cth) now appeals:

    "(1)Declare that the power conferred by s 79 of the [CAR Act]:

    (a)is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata;

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

    (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 [CAR Act] with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect.

    (3) Otherwise dismiss the summons." (emphasis added)

89. Given that the interests of Mr Huynh aligned with those of the A‑G (Cth) and there was no contradictor[82], the Court appointed Mr Graeme Hill SC and Mr James Stellios as amici curiae to support the orders made by the Court of Appeal. The Attorney-General of Victoria intervened.

    [82]On appeal to this Court, each of the Supreme Court of New South Wales (the third respondent) and the Attorney-General of New South Wales (the second respondent) filed submitting appearances.        

90. The A-G (Cth) submitted that three questions arose on the appeal, all of which should be answered "Yes":

    "(a)Is the function conferred by Div 3 of Part 7 of the [CAR Act] an administrative function that is conferred on Supreme Court judges persona designata? (Question 1)

    (b)If the answer to Question 1 is 'yes', then does Div 3 of Part 7 apply of its own force to federal offenders who are convicted and sentenced in New South Wales courts? (Question 2)

    (c)Does s 68(1) of the Judiciary Act 1903 (Cth) (Judiciary Act) pick up and apply Div 3 of Part 7 as federal law? (Question 3)"

    For the following reasons, we would answer Question 1 "Yes" but Questions 2 and 3 "No". We would therefore dismiss the appeal.

91. To assess these questions (especially Questions 2 and 3) it is first necessary to consider the royal prerogative of mercy in New South Wales. Because Mr Huynh and the A-G (Cth) argue that only one part of one of the mechanisms in the CAR Act relating to the prerogative of mercy (Div 3 of Pt 7 of the CAR Act) applies to Commonwealth offenders, it is then necessary to pay close attention to the whole of Pt 7 of the CAR Act and the role it plays in the exercise of the prerogative of mercy, which remains unaffected by Pt 7[83].

    [83]CAR Act, s 114.

    The prerogative of mercy and the early review and referral provisions

92. Prerogative powers were "accorded to the Crown by the common law"[84]. The royal prerogative of mercy is an "ancient right of the Crown to pardon, partially or fully, those who have been convicted of a public offence"[85]. There is no need, in this case, to explore how large that power is. At common law, the pardon was not equivalent to an acquittal; its effect was merely "to remove from the subject of the pardon, 'all pains penalties and punishments whatsoever'" that may ensue from the conviction, but it did not eliminate the conviction itself[86].

    [84]Barton v The Commonwealth (1974) 131 CLR 477 at 498.

    [85]Milne, "The Second or Subsequent Criminal Appeal, the Prerogative of Mercy and the Judicial Inquiry: The Continuing Advance of Post-Conviction Review" (2015) 36 Adelaide Law Review 211 at 216-217, citing Smith, "The Prerogative of Mercy, the Power of Pardon and Criminal Justice" [1983] Public Law 398.

    [86]Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 350-351 [98], quoting R v Cosgrove [1948] Tas SR 99 at 106 and R v Foster [1985] QB 115 at 130.

93. At the Commonwealth level, the power to grant a pardon is sourced in s 61 of the Constitution[87]. In New South Wales, the power to grant a pardon under the prerogative of mercy was originally conferred by the Governor's Commission, and then by permanent Letters Patent as supplemented by Royal Instructions[88]. Those Letters Patent were revoked following the passing of the Constitution (Amendment) Act 1987 (NSW)[89], and the Governor's power is now generally to be found in s 7(2) of the Australia Act 1986 (Cth), which provides that "all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State".

    [87]See CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at 538 [42] and the cases there cited.

    [88]Twomey, The Constitution of New South Wales (2004) at 624, 662. See Smith v Corrective Services Commission (NSW) [1980] 2 NSWLR 171 at 180 [28].

    [89]Constitution (Amendment) Act 1987 (NSW), s 2, Sch 1 item 3, inserting s 9F into the Constitution Act 1902 (NSW).

94. The prerogative of mercy is a broad discretionary power exercisable by the Governor of New South Wales acting on the advice of the Executive Council and the Attorney-General[90]. Its purpose remains "to temper the rigidity of the law by dispensing clemency in appropriate circumstances"[91].

    [90]Mallard v The Queen (2005) 224 CLR 125 at 129 [6]; Interpretation Act 1987 (NSW), s 14. See also FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 364‑365.

    [91]New South Wales Department of Communities and Justice, "Royal Prerogative of Mercy: Fact Sheet" (2022) at 1. See also Holzinger v Attorney-General (2020) 5 QR 314 at 324 [17], citing Bentley [2001] 1 Cr App R 21.

95. Over time, there came to be two distinct and alternative statutory pathways in New South Wales, now reflected in Pt 7 of the CAR Act, aimed at assisting in the exercise of the granting of a pardon under the prerogative of mercy, and providing for the quashing of convictions. Those two pathways "have different historical roots"[92]: one in s 475 of the Crimes Act 1900 (NSW) and the other in s 26(a) of the Criminal Appeal Act 1912 (NSW).

    [92]Reasons of Kiefel CJ, Gageler and Gleeson JJ at [26].

96. Section 475 of the Crimes Act, before its absorption into what became Pt 7 of the CAR Act, provided in substance that the Governor (on the petition of a convicted person or someone on their behalf) or the Supreme Court (on an application by or on behalf of the person or on its own motion) could, if a doubt or question arose as to the convicted person's guilt, mitigating circumstances, or any part of the evidence, direct a judicial officer to conduct a review by summoning and examining on oath all persons likely to give material information on the matter[93]. That evidence, along with the judicial officer's conclusions on the review, were then to be provided to the Governor "and the matter shall thereafter be disposed of, as to the Governor ... shall appear to be just"[94].

    [93]Crimes Act, s 475(1).

    [94]Crimes Act, s 475(4).

97. The background to the enactment of what became s 475 of the Crimes Act reveals that at the time of its commencement in 1883[95], and for some time after, there was no general right of appeal in criminal cases[96]. The legislative history of s 475 reflected a desire on the part of the colonial legislature to provide "solid ground on which the Executive may proceed when they [had] to deal with capital cases where doubts [were] thrown on the character of persons connected with them"[97]. As the Minister explained in his second reading speech in 1883, that solid ground would assist in circumstances where representations were frequently made to the Government after a person was convicted in relation to the character of the victim or certain witnesses, and the Government did not have the power to institute inquiries on oath to determine the foundation of such complaints[98]. In other words, the s 475 inquiry was enacted to provide the Executive with assistance in its consideration of petitions for mercy.

    [95]Criminal Law Amendment Act 1883 (NSW), ss 383 and 384.

    [96]Eastman (2003) 214 CLR 318 at 344 [74].

    [97]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 February 1883 at 618, quoted in Eastman (2003) 214 CLR 318 at 340 [68].

    [98]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 22 February 1883 at 618, quoted in Eastman (2003) 214 CLR 318 at 340 [68].

98. Section 26(a) of the Criminal Appeal Act, before its absorption into what became Pt 7 of the CAR Act, provided a different pathway for post-conviction review. Section 26 provided as follows:

    "Nothing in this Act shall affect the pardoning power of the Governor, but the Minister administering the Justices Act 1902, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may:

    (a)refer the whole case to the court, and the case shall be heard and determined by the court as in the case of an appeal by a person convicted;

    (b)if he desires the assistance of the court on any point arising in the case with a view to the determination of the petition, refer that point to the court for their opinion thereon, and the court shall consider the point so referred and furnish the Minister with their opinion thereon accordingly."

99. As was observed in Mallard v The Queen[99], provision for such referrals to the Court as found in s 26(a) owed its origin to public adverse reactions to the excessive imposition of capital punishment, and a judicial reluctance, even once Courts of Criminal Appeal were established and rights of appeal became more prevalent, to allow appeals in criminal cases[100]. Referrals to the Court of Criminal Appeal were, and are, "effectively both a substitute for, and an alternative to, the invocation, and the exercise of the Crown prerogative, an exercise in practice necessarily undertaken by officials and members of the Executive, unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions"[101].

    [99](2005) 224 CLR 125.

    [100](2005) 224 CLR 125 at 128-129 [4].

    [101]Mallard (2005) 224 CLR 125 at 129 [6] (emphasis added).

100. Those two pathways were made available, as options, in a single scheme for the first time by the Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW). The changes included inserting into the Crimes Act a new Pt 13A, titled "Review of Convictions"[102], which relevantly adopted the structure which now exists in Pt 7 of the CAR Act, containing both a form of the s 475 inquiry pathway and a form of the s 26 referral and opinion pathway.

     [102]Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW), s 3, Sch 1 item 3.

101. The new Pt 13A incorporated a number of important reforms identified in a review undertaken a year earlier by the Criminal Law Review Division of the New South Wales Attorney-General's Department into s 475 of the Crimes Act[103]. In that review, the abolition of the s 475 pathway was not endorsed and its continued existence was said to have advantages, among other grounds, because the judicial officer has a broad discretion to determine the procedure at such an inquiry[104] and because of the limits on the scope of the s 26(a) pathway[105]. An Issues Paper published as part of that review, referred to by the Minister in his second reading speech on the Bill to introduce Pt 13A[106], stated that "the procedure under section 475 offers advantages which section 26 does not and vice versa. The availability of the section 26 procedure may not therefore on its own justify abolishing the section 475 procedure"[107]. The Issues Paper also addressed what the Minister indicated was a "present incompatibility between section 475 and section 26"[108], namely that there appeared "to be no requirement that an election be made between pursuing a section 475 inquiry and seeking a review of a conviction by any of the other means available", including by way of a s 26(a) referral[109]. As the Issues Paper noted, "[i]t will not always be a simple matter to determine which of the variety of mechanisms available for the review or scrutiny of criminal convictions is the most appropriate in a particular case"[110].

     [103]New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 18-20, especially at 19.

     [104]New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 17.

     [105]New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 18-19.

     [106]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1993 at 4575.

     [107]New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 19.

     [108]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1993 at 4575.

     [109]New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 8-9.

     [110]New South Wales Attorney-General's Department, Criminal Law Review Division, Review of Section 475 of the Crimes Act 1900, Issues Paper (1992) at 11.

102. The solution was the combination of the s 475 pathway and the s 26 pathway in the new Pt 13A. Critically, the referral power, now found in s 79(1)(b) of the CAR Act, was subsequently added in 1996[111], so that the Supreme Court had the same power to refer a case to the Court of Criminal Appeal (to be dealt with as an appeal) when an application was made to it as the Governor had following a petition. The Attorney-General explained in his second reading speech the symmetry of operation that was intended by that addition[112]:

     "There is no reason in principle why a corresponding power should not reside in the Supreme Court upon consideration of an application for an inquiry. It may be that the court considers that the matter warrants collective expertise of three judges sitting as the Court of Criminal Appeal rather than a judge sitting alone. This will remain a choice solely within the discretion of the Supreme Court. Given that a petitioner may choose between an application to the Governor and an application to the Supreme Court, it is considered desirable that the same outcomes be available for the disposition of the application regardless of the preferred venue." 

     Since 2006[113], the dual pathways and their symmetrical operation have been found in Pt 7 of the CAR Act.

     [111]Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), s 3, Sch 1 item 7.

     [112]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096. See also New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 12 June 1996 at 2897.

     [113]Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW), s 4, Sch 2.1 item 1. At that time, the CAR Act was named the Crimes (Local Courts Appeal and Review) Act 2001 (NSW).

103. Four interrelated aspects of the prerogative and the CAR Act should be noted. First, it is critical to recognise that by s 114 of the CAR Act nothing in that Act "limits or affects in any manner the prerogative of mercy". That is, despite the existence of Pt 7, the Governor of New South Wales retains the ability to and can grant a pardon, at any time. Second, the pardoning power, being one exercisable by the Governor of New South Wales, is in practice one which is exercised on the advice of the Executive Council and the Attorney‑General. So much is made plain by convention[114], and expressly by s 14 of the Interpretation Act 1987 (NSW)[115]. Third, s 114 indicates that the dual pathways brought together in Pt 7 of the CAR Act retain their character as avenues to both assist the Executive in its exercise of the pardoning power, and provide a substitute and alternative pathway to the invocation and exercise of that power[116].

     [114]See FAI Insurances (1982) 151 CLR 342 at 364-365; Mallard (2005) 224 CLR 125 at 129 [6].

     [115]Section 14 of the Interpretation Act 1987 (NSW) provides that "[i]n any Act or instrument, a reference to the Governor is a reference to the Governor with the advice of the Executive Council, and includes a reference to any person for the time being lawfully administering the Government".

     [116]Mallard (2005) 224 CLR 125 at 129 [6].

104. Fourth, the exercise of the prerogative at all times remains politically controlled. The process of inquiries and referrals under Pt 7 reflects that essential fact. Under Pt 7, in respect of applications made to the Supreme Court, at each point in the process – when an application is made[117], when the Court decides which pathway to take[118], and on the completion of an inquiry[119] – the Supreme Court reports to the Executive. The reporting to the Executive, at each step, reflects that they are steps to assist in what is quintessentially a political decision whether to afford mercy to a person who will, apart from exceptional cases, have exhausted judicial remedies to challenge the conviction and sentence that constitute the final disposition of the judicial process. And it is a process during which the Executive Council and the Attorney‑General retain the ability to at any point advise the Governor of New South Wales to grant a pardon. Put in different terms, Pt 7 of the CAR Act is a process designed to assist in the exercise of the prerogative and to provide an alternative pathway to the invocation and exercise of that power and, for that reason, prescribes a necessary dialogue between the Executive of New South Wales and the Supreme Court of New South Wales.

     [117]CAR Act, s 78(2).

     [118]CAR Act, s 79(5).

     [119]CAR Act, s 82(3).

271. Similarly, in such a case, asking whether the State or Territory law involves an integrated statutory scheme[371] is another tool or technique to assist in ascertaining if the application of s 68(1) of the Judiciary Act to only part of a law of a State or Territory impermissibly involves giving an altered meaning to that part. This conceptual framework is another legitimate judicial technique of interpretation and characterisation. Further, asking if that part of a State or Territory law which may be applied by s 68(1) of the Judiciary Act to a person charged with an offence against a law of the Commonwealth is able to "operate independently"[372] from the balance of the State or Territory law which cannot be applied to that person[373] is another legitimate judicial tool or technique to ascertain if any altered meaning is being given to that part. But it does not follow from this that if the State or Territory law in issue involves a statutory scheme, including potentially different pathways to a range of possible outcomes, s 68(1) is necessarily inapplicable to that law (or those laws) or any part of it (or them). The State or Territory law may be capable of operating in part as a State or Territory law by operation of the doctrine of severance[374]. If so, the application of s 68(1) of the Judiciary Act to apply an otherwise severable part of the State or Territory law[375] to a person charged with an offence against a law of the Commonwealth may not involve giving the law an altered meaning.

     [371]Solomonsv District Court (NSW) (2002) 211 CLR 119 ("Solomons") at 135 [24], citing The Commonwealth vMewett (1997) 191 CLR 471 at 556.

     [372]Brown v The Queen (1986) 160 CLR 171 at 218.

     [373]eg, Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 125, 130.

     [374]Section 31(2) of the Interpretation Act 1987 (NSW).

     [375]ie, as a matter of State or Territory law.

272. These concepts are all useful. But, individually or cumulatively, they do not necessarily yield an answer to the application of s 68(1) of the Judiciary Act. It must also be recognised that, to some extent or another, all statutory provisions are capable of being characterised as part of a statutory scheme. Accordingly, while these concepts may all expose something meaningful about the operation of s 68(1) of the Judiciary Act with respect to a particular State or Territory law, the relevant question remains whether the State or Territory law, as would be applied by s 68(1), is given an altered meaning in its application to a person charged with an offence against a law of the Commonwealth (that is, altered as compared to its meaning as applied to a person charged with an offence against a law of the State or Territory)[376]. Examples of cases falling on one or other side of the divide assist in exposing this limitation on the operation of s 68(1).

     [376]Solomons (2002) 211 CLR 119 at 146 [60].

     Examples of s 68(1): permissible extension or impermissible alteration?

273. In Brown v The Queen[377], s 68(1) of the Judiciary Act did not apply to a person charged with an offence against a law of the Commonwealth a provision of a State Act permitting an accused to elect a trial before a judge alone (because the application of that provision in federal jurisdiction would contravene s 80 of the Constitution) but did apply to that person the balance of the State Act relating to juries. The effect was that an accused charged with an offence against a law of the Commonwealth did not have the same right to make an election for a trial before a judge alone which an accused charged with an offence against the laws of the State would enjoy. This effect, implicitly at least, was not characterised as giving an altered meaning to the part of the State law applied by s 68(1) of the Judiciary Act.

     [377](1986) 160 CLR 171.

274. Similarly, in Cheatle v The Queen[378], s 68(1) of the Judiciary Act did not apply to a person charged with an offence against a law of the Commonwealth a provision of a State Act enabling majority verdicts (because the application of that provision in federal jurisdiction would contravene s 80 of the Constitution) but did apply to that person the balance of the State Act relating to trials on indictment. The effect was that an accused charged with an offence against a law of the Commonwealth could be convicted only by unanimous verdict of the jury, whereas an accused charged with an offence against a law of the State could be convicted by a majority verdict. Again, this effect, implicitly at least, was not characterised as giving an altered meaning to the part of the State law applied by s 68(1) of the Judiciary Act.

     [378](1993) 177 CLR 541.

275. A case in which the nature and extent of the integration of the relevant provisions of the laws of the State, and the lack of relevant equivalent legal or factual circumstances in federal jurisdiction, meant that no part of the law could be applied by s 68(1) of the Judiciary Act is Solomons v District Court (NSW)[379]. In that case, the statute concerned the grant of a costs certificate by a court in which the only purpose of the grant was to enable an application for the payment of costs by the State[380].

     [379](2002) 211 CLR 119.

     [380]Solomons (2002) 211 CLR 119 at 132 [15].

     The present case

276. In the present case, the majority in the Court of Appeal distinguished Brown and Cheatle on the basis that those decisions concerned parts of a law of a State inconsistent with the Constitution and not "the extent to which a particular State law can be changed" in its operation[381]. In so doing, the majority also disapproved of Application of Pearson[382], in which Wood CJ at CL held that s 68(1) of the Judiciary Act operated to "pick up some, but not all of the otherwise applicable terms, of Div 3 of Pt 13A" of the Crimes Act 1900 (NSW)[383]. Wood CJ at CL reasoned that the State law, the then equivalent to Pt 7 of the CAR Act, was not being altered in its meaning by the partial application effected by s 68(1) of the Judiciary Act, the difference being procedural rather than substantive (that is, confining the options available to the Supreme Court, being a direction for the conduct of an inquiry or the referral of the case to the Court of Criminal Appeal to be dealt with as an appeal for State offences, to the latter option only for offences against a law of the Commonwealth)[384].

     [381]Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 at 105 [97] (emphasis in original); see also at 80 [1], 112 [128], 144‑145 [269].

     [382](1999) 46 NSWLR 148.

     [383](1999) 46 NSWLR 148 at 164 [73]. Division 3 of Pt 13A of the Crimes Act 1900 (NSW), at the time, contained the predecessor provisions to those in the CAR Act relating to inquiries into a conviction or sentence, including the referral of an application for an inquiry "to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912": s 474E(1) of the Crimes Act 1900 (NSW).

     [384](1999) 46 NSWLR 148 at 164‑166 [75]‑[81].

277. It is not apparent why the reason that s 68(1) of the Judiciary Act does not apply to one part of a State or Territory law (such as constitutional invalidity, or inconsistency with a law of the Commonwealth, or practical impossibility) determines whether the application of s 68(1) to another part of the law involves giving an altered meaning to that part. In Brown and Cheatle, the State laws as to juries, by operation of s 68(1) of the Judiciary Act, operated differently on an accused charged with an offence against a law of the Commonwealth from an accused charged with an offence against a law of the State.

278. In the present case, there is undoubtedly a statutory scheme. The statutory provisions have a complex legislative history, as identified in the other judgments. Section 78 of the CAR Act, in referring to an "application for an inquiry into a conviction or sentence", reflects the legislative history of the provisions in which the prerogative power of mercy was (and, by s 114 of the CAR Act, remains) vested in the Governor of each State as the representative of the Crown. The other provisions of the CAR Act supplement this prerogative power, reflecting two main statutory pathways. The first is a pathway available since the late 19th century enabling the Supreme Court to conduct an inquiry into a conviction or sentence, resulting in a report to the Governor and a potential exercise of the prerogative power of mercy[385]. The second is a pathway available since the commencement of the Criminal Appeal Act 1912 (NSW) by which the relevant Minister could refer a petition to the Governor for an exercise of the prerogative of mercy to the Court of Criminal Appeal for the case to be "heard and determined by the court as in the case of an appeal by a person convicted"[386].

     [385]Sections 383 and 384 of the Criminal Law Amendment Act of 1883 (NSW); s 475 of the Crimes Act 1900 (NSW), as enacted.

     [386]Section 26(a) of the Criminal Appeal Act 1912 (NSW) as enacted, the relevant Minister in that Act then being referred to as the Minister of Justice.

279. The Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), for the first time, enabled the Supreme Court, on an application for an inquiry into a conviction or sentence, to either "direct that an inquiry be conducted by a prescribed person into the conviction or sentence" or "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912"[387]. These options are now reflected in s 78(1) together with s 79(1)(a) and (b) of the CAR Act.

     [387]Section 474E of the Crimes Act 1900 (NSW), as amended by the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW).

280. The fact that s 78(1) of the CAR Act refers to an "application for an inquiry" and not an application for an inquiry or referral to the Court of Criminal Appeal is of no great moment for present purposes. Section 78(1) is to be construed in the context of s 79. Under s 79, an application for an inquiry may result in one of three outcomes: (a) under s 79(3), the Supreme Court may "refuse to consider or otherwise deal with [the] application"; (b) under s 79(1)(a), the Supreme Court may "direct that an inquiry be conducted by a judicial officer into the conviction or sentence"; or (c) under s 79(1)(b), the Supreme Court may "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912".

281. It follows that while an application under s 78 is styled as an application for an inquiry, that application may engage two distinct powers – a direction for an inquiry under s 79(1)(a) or a referral of the whole case to the Court of Criminal Appeal under s 79(1)(b). Further, while the Supreme Court's consideration of the application as a pre‑condition to any exercise of power as specified in s 79(1) does not involve an exercise of judicial power[388], if there is a referral under s 79(1)(b): (a) it is the "whole case" which is referred to the Court of Criminal Appeal; and (b) that "whole case" is to be dealt with "as an appeal under the Criminal Appeal Act 1912". In such a case, moreover, the only further provision of the CAR Act which is engaged is s 86, which provides that, on receiving a referral under s 77(1)(b) (from the Attorney‑General on receipt of a petition for a pardon by the Governor) or s 79(1)(b), "the Court is to deal with the case so referred in the same way as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly". That is, once the Court of Criminal Appeal is seized of the whole case by reason of a referral under s 79(1)(b), the Court of Criminal Appeal is doing nothing other than exercising judicial power.

     [388]Section 79(4) of the CAR Act provides that proceedings under s 79 are not judicial proceedings.

282. On this basis, if ss 78, 79(1)(b) and 86 of the CAR Act are considered in isolation (for the moment): (a) the operation of s 68(1) of the Judiciary Act on the making of an application under s 78 for an inquiry (understood in context as an application potentially engaging a referral under s 79(1)(b) and not merely an inquiry under s 79(1)(a)); (b) the referral of the whole case to the Court of Criminal Appeal under s 79(1)(b); and (c) the Court of Criminal Appeal dealing with that whole case "as if the convicted person had appealed against the conviction or sentence under the Criminal Appeal Act 1912", with that Act applying "accordingly", involve no alteration to these State laws or parts of State laws.

283. The potential alteration in meaning arises at, and is confined to, the first stage, in the exercise of the non‑judicial incidental power of the Supreme Court under s 79 of the CAR Act to consider the application and decide which pathway to take (to make a direction for an inquiry, or to make a referral to the Court of Criminal Appeal, or to refuse to consider or otherwise deal with an application). In that exercise of non‑judicial power, for an offence against a law of the Commonwealth, one option which would otherwise have been available to the Supreme Court for an offence against a law of the State (a direction for an inquiry under s 79(1)(a)) is unavailable.

284. As will be explained, ss 78, 79(1)(b) and 86 of the CAR Act, understood in their context, are not given an altered meaning in their application to a person charged with an offence against a law of the Commonwealth. They apply to that person exactly as they would apply to a person charged with an offence against a law of the State. The unavailability of one option to the Supreme Court on the making of an application for an inquiry by a person charged with an offence against a law of the Commonwealth (a direction for an inquiry to be conducted) does not alter the State law.

285. Section 78(1), s 79(1)(b) and, to the extent it refers to s 79(1)(b), s 86 in Pt 7 of the CAR Act are not integrated with the other provisions forming the scheme in Pt 7 of the CAR Act in a manner rendering them altered in their application to a person charged with an offence against a law of the Commonwealth merely because one option (a direction for an inquiry) is inapplicable to such a person. They are capable of independent operation.

286. This conclusion gives effect to: (a) the language of s 68(1) of the Judiciary Act (requiring application of the law of the State so far as applicable); (b) the purpose of s 68(1) and (2) of the Judiciary Act (to put offences against a law of the Commonwealth on the same footing as offences against the laws of the relevant State or Territory in which the offence is dealt with[389]); and (c) the required hypothesis or assumption on which sub‑ss (1) and (2) of s 68 of the Judiciary Act operate, that a law of a State or Territory can be applied by that section notwithstanding that the legislative intention evinced by that law is that it apply only to offences against the laws of the State or Territory. On analysis, this conclusion also accords with the legislative intention evinced by Pt 7 of the CAR Act construed in context, as a matter of State law. The question remains the application of s 68(1) to the provisions of the CAR Act. But the proper construction of the State or Territory legislation, although not the issue to be determined, informs the answer[390].

     [389]Williams v The King [No 2] (1934) 50 CLR 551 at 560.

     [390]John Robertson (1973) 129 CLR 65 at 80.

287. The following matters in respect of the construction and characterisation of the provisions of Pt 7 of the CAR Act as a matter of State law indicate that ss 78, 79(1)(b) and 86 of the CAR Act, understood in their context, are not given an altered meaning in their application to a person charged with an offence against a law of the Commonwealth merely because s 68(1) of the Judiciary Act cannot apply s 79(1)(a) of the CAR Act to that person.

288. First, s 31(2) of the Interpretation Act 1987 (NSW) provides that if "any provision of an Act or instrument, or the application of any such provision to any person, subject‑matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament" then: (a) "it shall be a valid provision to the extent to which it is not in excess of that power"; and (b) "the remainder of the Act or instrument, and the application of the provision to other persons, subject‑matters or circumstances, shall not be affected". Section 31 applies to the CAR Act except insofar as the contrary intention appears in that Act[391]. Provisions such as s 31 "reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible"[392]. To displace this presumption "it must sufficiently appear that the invalid provision forms part of an inseparable context"[393]. What is required is "a positive indication ... in the enactment that the legislature intended it to have either a full and complete operation or none at all"[394].

     [391]Section 5(2) of the Interpretation Act 1987 (NSW).

     [392]Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371.

     [393]Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 371.

     [394]Cam & Sons Pty Ltd v The Chief Secretary of New South Wales (1951) 84 CLR 442 at 454. See also Tajjour v New South Wales (2014) 254 CLR 508 at 585‑586 [169]‑[170].

289. No such positive indication is apparent in Pt 7 of the CAR Act. The text and context of Pt 7 of the CAR Act support the conclusion that ss 79(1)(a) and 79(1)(b) are divisible and are intended to have a distributive operation to the extent legally or practically required in respect of any application for an inquiry made under s 78. If that is so as a matter of State law, it is difficult to conclude that the operation of s 68(1) of the Judiciary Act to ss 78 and 79(1)(b) of the CAR Act, but not s 79(1)(a) of that Act, would give an altered meaning to the CAR Act.

290. Second, and as noted, an "application for an inquiry" in s 78 of the CAR Act must be construed in the context of s 79 as embracing both options – a direction for an inquiry or a referral to the Court of Criminal Appeal. It follows that, at least to the extent that the application for an inquiry can engage the power of the Supreme Court to refer the whole case to the Court of Criminal Appeal, an application for an inquiry by a person convicted and sentenced by a court of New South Wales in respect of an offence against a law of the Commonwealth can be a valid application and that application can have utility if s 68(1) of the Judiciary Act operates. This may be contrasted with the legal and practical circumstances in Solomons.

291. Third, while one option (the direction for an inquiry) is removed from the Supreme Court in response to an application by a person charged and convicted of an offence against a law of the Commonwealth, the Supreme Court retains the options of doing nothing under s 79(3) of the CAR Act or referring the whole case to the Court of Criminal Appeal under s 79(1)(b). That is, in such a case, the Supreme Court is not forced to take one pathway rather than another merely by reason of the unavailability of the pathway of a direction for an inquiry. It can decide to do nothing in respect of the application. Further, the Supreme Court would not be precluded from considering the unavailability of the option of a direction for an inquiry, whatever the reason for that unavailability, to the extent it might be relevant to its administrative decision either to refuse to consider or otherwise deal with an application or to "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912". That is, the unavailability of the option of a direction for an inquiry under s 79(1)(a) could not be said to undermine the sensible and cogent operation of the provisions. By its own processes of consideration under s 79(1) to (3), the Supreme Court can ensure the available provisions do have a sensible and cogent operation. If it were otherwise, practical unavailability of the option of an inquiry (for whatever reason) itself might invalidate the Supreme Court's process of consideration.

292. Fourth, and related to the third consideration, while the Supreme Court undertakes a single process of consideration under s 79(1) of the CAR Act ("[a]fter considering an application ..."), ss 79(1)(a) and 79(1)(b) vest two distinct powers in the Supreme Court, each conditioned on the appearance of doubt under s 79(2). This is reinforced by the fact that each of s 79(1)(a) and (b) starts with the words "the Supreme Court may ...". Consistently with this, s 79(3) provides that the "Supreme Court may refuse to consider or otherwise deal with an application". As noted, the Supreme Court may refuse to deal with an application even if it concludes that it appears there is a doubt within the meaning of s 79(2).

293. Fifth, the fact that the power to refer the whole case to the Court of Criminal Appeal under s 79(1)(b) of the CAR Act, like the power in s 79(1)(a), is enlivened only when, under s 79(2), "it appears that there is a doubt or question as to the convicted person's guilt ...", is important. In the face of this provision, it is difficult to conclude that Pt 7 of the CAR Act manifests a legislative intention that ss 78 and 79 not operate at all if, for any reason, the options in both ss 79(1)(a) and 79(1)(b) are not available. For example, assume invalidity of s 79(1)(a) of the CAR Act for some reason. Given s 31(2) of the Interpretation Act, it is not apparent why the doctrine of severance would not operate to preserve the operation of s 79(1)(b).

294. Sixth, the s 79(1)(a) pathway (a direction for an inquiry) involves an administrative and not a judicial function. In contrast to the duty on judges to exercise judicial functions, the judges of the Supreme Court may agree or not agree to exercise the administrative functions involved in Pt 7 of the CAR Act[395]. It follows from this that there may be practical reasons why the administrative function of an inquiry may not be able to be performed either at all or in a timely manner in response to an application for an inquiry under s 78. The circumstances of the application, such as urgency of a final judicial determination of the conviction or sentence, may make the pathway of a direction for an inquiry impractical or unjust, especially given that one possible outcome of an inquiry under s 79(1) of the CAR Act (and no doubt the outcome sought by the person making the application under s 78) is referral of the matter to the Court of Criminal Appeal. Further, and for example, the judge considering the application under s 78 may take the view that their doubt as to the soundness of the conviction is sufficiently strong so as to make the "considerable resources required to mount and conduct an inquiry"[396], before any possible referral to the Court of Criminal Appeal, unjustified. Again, given that the taking of any action in response to an application requires it to appear that "there is a doubt or question as to the convicted person's guilt ...", it seems unlikely that the New South Wales legislature intended that, if the administrative option of an inquiry under s 79(1)(a) was unavailable or unable to be performed in a timely manner for some reason, the s 79(1)(b) pathway also would be unavailable. The potential for serious injustice, in that event, is manifest.

     [395]Section 75 of the CAR Act provides that the "jurisdiction of the Supreme Court under this Part 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".

     [396]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096.

295. Seventh, the Crimes Amendment (Review of Convictions and Sentences) Act 1996 (NSW), which enabled the Supreme Court, on an application for an inquiry into a conviction or sentence, to either "direct that an inquiry be conducted by a prescribed person into the conviction or sentence" or "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912", was enacted against the background of s 31(2) of the Interpretation Act. The statement in the Second Reading Speech for the Crimes Amendment (Review of Convictions and Sentences) Bill 1996, that "it is considered desirable that the same outcomes be available for the disposition of the application regardless of the preferred venue"[397], concerns giving to the Supreme Court the same power as vested in the Governor either to direct the conduct of an inquiry or to "refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912"[398]. It does not concern the distributive or unitary operation of the provisions once a person has selected their "venue" (be it a petition to the Governor or an application for an inquiry to the Supreme Court).

     [397]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096.

     [398]The equivalent powers of the Governor are now in s 77(1) of the CAR Act. See also New South Wales, Legislative Council, Parliamentary Debates (Hansard), 12 September 1996 at 4096.

296. Eighth, it is one thing to conclude that Pt 7 of the CAR Act applies only to convictions and sentences imposed by a court of New South Wales for offences against a law of New South Wales. It is another thing to conclude that the CAR Act, contrary to fact, operates in a vacuum sealed off from the reality that the courts of New South Wales routinely convict and sentence people for offences against a law of the Commonwealth. In this context, a construction of Pt 7 of the CAR Act which gives s 79(1)(a) and (b) a distributive operation better accords with: (a) this reality; (b) the unlikelihood that the New South Wales legislature intended that, where a judge entertains a genuine doubt about a person's conviction or sentence, that person would be left without any remedy merely because the option of a direction for an inquiry under s 79(1)(a) was unavailable for whatever reason (legal or practical); and (c) the lack of any positive indication constituting a "contrary intention" for the purpose of s 31(2) of the Interpretation Act.

297. For these reasons, the effect of s 68(1) of the Judiciary Act applying ss 78(1), 79(1)(b) and 86 of the CAR Act to a person charged with an offence against a law of the Commonwealth, and not the provisions of that Act enabling a direction for the conduct of an inquiry, is to create a permissible extension of the laws of the State to a person charged with an offence against a law of the Commonwealth, as in Brown and Cheatle, and not the giving of an altered meaning to the laws of the State.

298. I otherwise agree with Kiefel CJ, Gageler and Gleeson JJ that: (a) whether the notification and reporting requirements in ss 78(2) and 79(5) of the CAR Act are applied and translated by s 68(1) of the Judiciary Act need not be determined; and (b) Garling J, being the judge authorised by the Chief Justice to exercise the jurisdiction of the Supreme Court under Pt 7 of the CAR Act in respect of Mr Huynh's application, must be taken to have consented to the conferral of that function.

299. The orders Kiefel CJ, Gageler and Gleeson JJ propose should be made.