Federal Jurisdiction and Post-Conviction Review Mechanisms: Attorney-General (Cth) v Huynh [2023] HCA 13
08.08.23
States and Territories allow the possibility, in certain circumstances, for a review of a conviction or sentence even after an offender has exhausted all avenues of appeal. But do these circumstances apply in federal jurisdiction over Commonwealth offences? In the absence of Commonwealth law to that effect, s 68 of the Judiciary Act 1903 (Cth), which places the administration of federal criminal law substantially in the hands of the States and Territories, could possibly achieve that.
The topic of federal jurisdiction is said to be ‘technical, difficult and not infrequently absurd’: Zelman Cowen, Federal Jurisdiction in Australia (Oxford University Press, 1959) ix. But it nevertheless involves important questions about the division of legislative and judicial power in a federal system. In Attorney-General (Cth) v Huynh [2023] HCA 13 (Huynh), the High Court considered whether provisions of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) – the post-conviction review regime in New South Wales – could apply to Commonwealth offences. By a 4:3 majority, the High Court held that some provisions of the CAR Act could be picked up and applied to federal offences: only applications for post-conviction referrals to the Court of Criminal of Appeal are available for federal offences. The minority found that no aspect of Part 7 could apply.
This post will consider the decision and outline the reasoning of the majority and minority judgments. It then provides some observations about the importance of post-conviction inquiries and the potential gap left by the High Court’s decision.
Facts and Background
In NSW, legislation has supplemented the Executive’s prerogative power of mercy with post-conviction inquiries and referrals to an appeal. These do not create a new right of appeal, but operate where the ‘criminal justice system has run its course’ and usually when new evidence has come to light throwing doubt on a conviction or sentence.
Part 7 of the CAR Act provides two possible options to seek a review of a conviction or sentence: (1) a petition to the Governor (s 76), or (2) an application to the Supreme Court (s 78). At the Supreme Court, the Chief Justice or a Judge of the Supreme Court authorised by the Chief Justice (s 75) may exercise the powers under Part 7 ‘if it appears that there is a doubt or question as to the convicted person’s guilt, or as to any mitigating circumstances in the case, or as to any part of the evidence in the case’, pursuant to s 79 of the CAR Act.
The consideration of an application under s 79(1) triggers two alternative ‘gateways’ to the jurisdiction of the Court of Criminal Appeal. The first gateway, under s 79(1)(a), involves the Supreme Court directing an inquiry. The judicial officer conducting the inquiry may then refer the case to the Court of Criminal Appeal for consideration of whether to quash a conviction or review a sentence. This enlivens the Court’s jurisdiction conferred by s 88 of the CAR Act (the inquiry gateway). The second gateway is under s 79(1)(b), which involves the Supreme Court choosing to refer the ‘whole case’ to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. Such jurisdiction is conferred by s 86 (the referral gateway). A third possibility is that the Supreme Court do nothing and dismiss the application.
Importantly, the powers to direct an inquiry or referral are all non-judicial proceedings (s 79(4)) and were characterised as administrative functions by the NSW Court of Appeal in Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 (at [39]–[47], [188]). For s 79 to be capable of being applied in federal jurisdiction, a judicial officer exercising powers under s 79 would need to be acting persona designata, that is, in their personal rather than judicial capacity so as to be compatible with the strict separation of judicial power at the federal level. It was uncontested before the High Court in Huynh that s 79 involved non-judicial powers conferred persona designata.
Mr Huynh was convicted and sentenced at the District Court of New South Wales for conspiracy to import a commercial quantity of a border-controlled precursor – a substance used to manufacture drugs – under ss 11.5(1) and 307.11(1) of the Commonwealth Criminal Code 1995. Having exhausted his avenues of appeal, he made an application for an inquiry into his conviction under s 78 of the CAR Act. The application was dismissed by a judicial officer of the Supreme Court, Garling J, and Mr Huynh in turn sought judicial review of that decision. On its own motion, the New South Wales Court of Appeal considered the preliminary issue of whether Garling J even had the power to consider such an application involving a federal, rather than State, offence.
Section 77(iii) of the Constitution provides that the Commonwealth Parliament may vest federal jurisdiction into State courts. For offences created by Commonwealth law, this is accomplished by s 68 of the Judiciary Act. Where a State court has jurisdiction over offences against State law, s 68(2) vests the ‘like jurisdiction’ on that court with respect to offences against Commonwealth law. To avoid gaps in the exercise of federal jurisdiction, s 68(1) then provides that various State procedural laws relating to trial and conviction are to apply ‘so far as they are applicable’. Relevantly, s 68(1)(d) picks up laws ‘respecting … the procedure for ... the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith.’
‘The tail cannot wag the dog’: Kiefel CJ, Gageler and Gleeson JJ and Jagot J
All judges found that Part 7 of the CAR Act cannot apply of its own force to federal offences (at [38], [140], [232], [265]). The more contentious issue was whether s 68 of the Judiciary Act could pick up Part 7 of the CAR Act to allow a review of the conviction. In the majority, a plurality consisting of Kiefel CJ and Gageler and Gleeson JJ, outlined the established principles governing the operation of s 68 of the Judiciary Act. Most significantly, where a ‘particular provision of State law is an integral part of a State legislative scheme’, it could not be picked up ‘if to do so would be to give an altered meaning to the severed part of the State legislation’: Solomons v District Court (NSW) (Solomons) [36]-[37]. To judicially alter the law in this manner would be to impermissibly intrude on the legislature.
Regarding the inquiry gateway under s 79(1)(a), the plurality noted that all the procedures involved – including the direction of an inquiry, followed by a decision whether to report to the Governor – might lead to the appellate jurisdiction of the Court of Criminal Appeal under s 88 of the CAR Act. But the ‘tail cannot wag the dog’: the breadth of the expression ‘appeal’ in s 68(1)(d) did not change the fact that the inquiry was ‘not a proceeding to be heard and determined by a court in the exercise of judicial power’ (at [50]) and the severing the inquiry procedures leading up to a potential referral would alter the provision’s meaning. Section 79(1)(a) could therefore not be picked up.
The referral gateway, on the other hand, more directly implicates the jurisdiction of the Court of Criminal Appeal under s 86, permitting a ‘like jurisdiction’ at the federal level to be conferred (at [74]). The plurality then considered whether the referral gateway procedures could thus be picked up by s 68(1) of the Judiciary Act. The underlying premise was that s 79(1)(b) could be taken in isolation; their Honours considered that the legislative history and the legal operation of the two gateways were distinct enough to allow for only one to be picked up in federal jurisdiction without the other (at [76]). Although both gateways shared the same procedures and preconditions (CAR Act, ss 79(2) and (3)), disaggregating s 79(1)(b) from s 79(1)(a) did not substantially alter the legal operation of Part 7 of the CAR Act. Section 68(1) of the Judiciary Act was not limited to State laws ‘which stand alone or which are components of State or Territory legislative schemes capable of application as Commonwealth laws in their entirety’ (at [66]).
Jagot J also found that the referral gateway of the CAR Act was capable of being picked up and applied to federal offences. In considering the various techniques to ‘create a permissible extension’ of State law (at [297]), her Honour emphasised the Interpretation Act (NSW)’s presumption that an Act is severable if parts of it exceed legislative power or are invalid: s 32. Absent contrary intention in the CAR Act itself, it could be presumed that the inquiry gateway could be severed from the rest of Part 7 to become applicable in federal jurisdiction. The unavailability of one of the other gateways does not ‘undermine the sensible and cogent operation of the provisions’ (at [291]).
Dialogue between the Executive and the Courts: Steward and Gordon JJ and Edelman J
In a dissenting judgment, Steward and Gordon JJ held that s 68 of the Judiciary Act could not pick up any section of Part 7 at all. Section 79(1)(a) was not one of the class of proceedings enumerated in s 68(1) of the Judiciary Act (at [158]-[160]). The main divergence, however, was whether the s 79(1)(b) referral gateway could be picked up in isolation. Their Honours began from the broader structure and history of the post-conviction review legislation. Historically, the Governor had the power to direct an inquiry to inform their pardoning power. By the late 19th century, an application could also be made to the NSW Supreme Court to direct such an inquiry. Following the creation of the Court of Criminal Appeal, the Governor was given the power to refer the whole case to that Court under the Criminal Appeal Act 1912. This remedial provision arose from public reaction to miscarriages of justice and the judicial reluctance of appeals being allowed even after the establishment of the Court of Criminal Appeal: Mallard v The Queen [4]. In a 1996 amendment, all these provisions were amalgamated into the current structure under the CAR Act – the Supreme Court was now also given the power to refer a case to the Court of Criminal Appeal (now s 79(1)(b)), so that ‘same outcomes be available for the disposition of the application regardless of the preferred venue’ (at [102]).
Accordingly, both gateways within Part 7 of the CAR Act form a whole, which, ‘in the context of the royal prerogative of mercy, recognise[s] that there is a choice to be made about the appropriate way to address an application for mercy’ (at [168]), whether by conducting an inquiry or referring the whole case to the Court of Criminal Appeal. That the inquiry gateway under s 79(1)(a) could not be picked up in federal jurisdiction foreclosed the possibility of any other provision in Part 7 being picked up. Section 79(1)(b) could not be taken in isolation from the rest of the legislative scheme. The meaning of the provisions would be too substantially altered.
Another important consideration came from the extensive reporting requirements between the Attorney-General and the Supreme Court under both the inquiry and referral gateways. In considering a petition to the Governor, the Attorney-General must also report to the Supreme Court (s 77(4)). The Supreme Court must report to the Attorney-General following the consideration of an application (s 79(5)) and/or following an inquiry (s 82(3)), on the premise that the Governor would be advised by the Executive Council as to the use of their prerogative power of mercy. Part 7 thus ‘prescribes a necessary dialogue between the Executive of New South Wales and the Supreme Court of New South Wales’ (at [104]). This posed a further difficulty to translating Part 7 into federal law as this model would be ‘unworkable’ if an offender was convicted for both State and Commonwealth offences (at [171], [174]).
The other dissenting judge, Edelman J, placed similar emphasis on the legislative scheme. Picking up Part 7 in a manner that severed s 79(1)(a) would alter the operation of a legislative scheme and defeat the purpose of the 1996 amendments, which were intended to ensure parity between the Supreme Court and the Executive’s review powers. To sever s 79(1)(b) would create an inequality between applications to the Supreme Court and the Governor: in the former case, only one option – a referral to the Court of Criminal Appeal – would be available.
Post-Conviction Review for Federal Offences?
On one level, the High Court’s decision underscores the intricacies of the law applicable in federal jurisdiction. Huynh demonstrates an important aspect of the operation of s 68 of the Judiciary Act: s 68(2) cannot vest a ‘like jurisdiction’ if that State jurisdiction is contingent on and interposed by non-judicial or administrative processes, such as a post-conviction inquiry. Nevertheless, there was recognition of the need to flexibly construe s 68 of the Judiciary Act. Edelman J noted the ‘judicial creativity’ involved in fashioning the composite body of law applicable in federal jurisdiction (at [257]).
These difficult questions of federal jurisdiction sit in the broader context of post-conviction reviews and criminal appeals throughout the States and Territories. These are still linked, historically and legally, to the prerogative of mercy. Post-conviction petitions to the Governor or the Supreme Court are crucial means to address wrongful convictions, particularly where fresh and compelling evidence comes to light after all other judicial avenues have been exhausted. Advances in technology or understanding of forensic evidence may only emerge long after an appeal. The recent pardon of Katherine Folbigg for the murder and manslaughter of her four infant children illustrates just how potential miscarriages of justice can occur through a range of factors, including, among other things, unsatisfactory understanding of the medical evidence pointing to sudden infant death syndrome (SIDS) and the fixation on an apparently damning piece of evidence: Emma Cunliffe, Murder, Medicine and Motherhood (Hart Publishing, 2011) ch 7. Two inquiries under the CAR Act following petitions to the Governor in 2019 and 2022, accompanied by significant public attention, ultimately led to her pardon in what some have described as ‘possibly the worst miscarriage of justice in western criminal law history’.
The absence of these inquiry procedures over federal offences is concerning, where the Governor-General’s prerogative would provide the sole means for post-conviction review: Crimes Act 1914 (Cth) s 21D. Edelman J’s dissenting judgment lamented that the ‘scope for dealing with post-conviction, and usually post-appeal, miscarriages of justice involving Commonwealth offences has relied, on a wing and a prayer’ as well as creative application of the Judiciary Act (at [257]). The compromise reached by the majority in Huynh at least permits for some of these post-conviction review mechanisms to apply to federal offences, namely referrals to the Court of Criminal Appeal exercising federal jurisdiction. Even so, the judicial inquiry serves an important public function in the context of the Executive’s discretion pursuant to their prerogative, ‘unconfined by any rules or laws of evidence, procedure, and appellate conventions and restrictions’. Concerns about the lack of transparency and absence of public scrutiny in these Executive-oriented powers have arisen from this. The policy choice underlying the CAR Act to adopt the more dialogue-based model between the executive and judiciary addresses this shortcoming. Gordon and Steward JJ’s focus in Huynh on the political character of the prerogative of mercy and the dialogue with the Courts might be regarded as more compelling reasons for the enlistment of judicial functions to this process. In this way, judicial procedures can help ensure transparency and impartiality.
Although s 68 of the Judiciary Act was intended ‘to place the administration of the criminal law of the Commonwealth in each State upon the same footing’, reliance on that provision and its necessary focus on curial procedures may not be fit for purpose in the context post-conviction reviews. In Solomons, the High Court stated that s 79 of the Judiciary Act (cognate to s 68 in this regard) is ‘not … directed to the rights and liabilities of those engaged in non-curial procedures under State laws’ (at [23]). It is perhaps time for the Commonwealth Parliament to enact a uniform scheme for post-conviction reviews for federal offences. Parliament can conceivably achieve this due to the likelihood that judges performing these post-conviction review functions act as personae designatae and thus consistent with the strict separation of judicial power at the federal level: Huynh v Attorney General (NSW) (2021) 107 NSWLR 75 [64].
Conclusion
A majority of the High Court has upheld at least a part of NSW’s post-conviction review mechanisms in their application to offences against Commonwealth law. But even so, the future of post-conviction review for federal offences appears in need of Commonwealth legislation. Indeed, the minority’s position would arguably have posed a serious challenge to the administration of criminal justice in Australia. Concern over miscarriages of justice and wrongful convictions, graphically illustrated by the recent inquiries and pardon of Katherine Folbigg, highlight the importance of these post-conviction review mechanisms. Their precarious availability for federal offences is a significant gap which it appears only the Commonwealth Parliament can address.
Jack Zhou is a Bachelor of Arts/Bachelor of Laws candidate at the University of New South Wales and Forum Editor of the University of New South Wales Law Journal. He would like to thank the editors of the AUSPUBLAW Blog for their helpful comments.
Suggested citation: Jack Zhou ‘Federal Jurisdiction and Post-Conviction Review Mechanisms: Attorney-General (Cth) v Huynh[2023]HCA 13’ (8 August 2023) <https://www.auspublaw.org/blog/2023/8/federal-jurisdiction-and-post-conviction-review-mechanisms-attorney-general-cth-v-huynh-2023-HCA-13/>