Re Harold Rolf Linhart and Paula Bongart v Elwyn Edgard Ernest Elms; the Honourable Lionel Bowen, Attorney-General of the Commonwealth of Australia and the Federal Republic of Germany [1987] FCA 429 (26 November 1987)

FEDERAL COURT OF AUSTRALIA

Re: HAROLD ROLF LINHART and PAULA BONGART
And: ELWYN EDGARD ERNEST ELMS; THE HONOURABLE LIONEL BOWEN, Attorney-General
for the Commonwealth of Australia and THE FEDERAL REPUBLIC OF GERMANY
No. G665 of 1987
Extradition

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Extradition - extradition (Foreign States) Act 1966 - s.17(6) - review pending of magistrate's decision to commit to prison - application for bail under s.15 Administrative Decisions (Judicial Review) Act - unavailability of bail under Extradition Act - application for bail granted.

Extradition (Foreign States) Act 1966 - s.17(6)

Administrative Decisions (Judicial Review) Act 1977 - s.15

HEARING

SYDNEY
26:11:1987

Solicitor for Applicants: Mr. A.M. Colefax of Hunt and Hunt

Solicitor for 1st Respondent: H.K. Roberts (Crown Solicitor)

Counsel for 2nd and 3rd Respondents: Ms P. Flemming Q.C. instructed by: Australian Government Solicitor for 2nd Respondent Director of Public Prosecutions for 3rd Respondent

ORDER

That pursuant to s.15 of the Judicial Review Act the operation of the warrants of committal under s.17(6) of the Extradition (Foreign States) Act 1966 issued against the applicants be suspended until the final determination of the application under the Judicial Review Act or further order, on the following conditions:

1. That the applicants not apply for the

return of their passports which are
currently in the possession of the
Australian Federal Police, nor apply for
fresh passports.

2. That the applicants stay away from any
point of departure overseas from Australia.

3. That the applicants report each Monday and
Friday to the officer in charge of Vaucluse
Police Station between the hours of 9.00 am
and 5.00 pm.

4. That the applicants notify the Australian
Federal Police within 72 hours of any
change in their address.

5. That within 48 hours they lodge cash or
security to the satisfaction of the
Registrar of this court to the value of
$10,000.

6. Costs of the hearings on 25 and 26 November
1987 reserved.

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

DECISION

In these proceedings the applicants seek an order of review of the decision of the first respondent made on 25 November 1987 that the applicants are liable to be surrendered to the Federal Republic of Germany and that they should be committed to a prison to await the warrant of the second respondent for their surrender to that country. The decision was made pursuant to s.17(6) of the Extradition (Foreign States) Act 1966 ("the Extradition Act"). The present application is that the applicants be admitted to bail pending a final hearing of the application for an order of review.

2. The applicants have been on bail since April 1987. For the purposes of dealing with the present application I need not refer in any detail to the circumstances which led to them being granted bail during the pendency of the extradition proceedings. It is sufficient to say that up until the present time there has been no real apprehension that the applicants will not answer their bail when required. Indeed, they have done so on several occasions during the last six months.

3. However, the position has now been reached where the extradition proceedings have terminated and an order under s.17(6) has been made. It seems clear that once an order under s.17(6) of the Act has been made, the magistrate has no power to grant bail except in the limited circumstances referred to in s.17(6)(d). This leads to the unsatisfactory result, as has already been observed by other judges of the court (e.g. see per French J. in Hempel v. Moore, unreported, 9 March 1987) that a fugitive is better off if he has broken the law in Australia than if he has not done so. In Hempel v. Moore (unreported, 10 December 1986) Burchett J. correctly, in my opinion, described the relevant provisions of the Act as absurd.

4. It must surely be the case that s.17(6) of the Act cannot have been intended to have the irrational consequences which undoubtedly flow from it. It is no doubt because of the absence of any provision in the Act authorizing the granting of bail in a case such as the present that the applicants have commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). It is argued on the applicants' behalf that s.15 of the last mentioned Act gives this court power to make an order granting them bail pending the final hearing of their application under the Judicial Review Act.

5. The question whether this court has such a power in relation to a person who has been committed to prison pursuant to s.17(6) of the Extradition Act has not, so far as I am aware, been finally determined. It was submitted on behalf of the respondents that it has no such power. This submission was based on the argument that the Extradition Act lays down a code governing the circumstances in which persons dealt with under that Act may be admitted to bail, and that s.15 of the Judicial Review Act accordingly has no application. Subject to one matter, which I shall presently mention, there is no doubt that a decision under s.17 of the Extradition Act is susceptible of review under the Judicial Review Act. It appears to me that such a decision is plainly within the class of decisions to which the Act applies. This has been assumed to be the case in a number of past decisions of the court: see, for example, Commonwealth v. Riley (1984) 57 ALR 249. In Prevato v. Metropolitan Remand Centre [1986] FCA 17; (1986) 8 FCR 358 at 364 Wilcox J. held that a decision under s.17 was reviewable under the Judicial Review Act.

6. However, counsel for the respondents has raised, but not argued, the question whether a decision of a magistrate under the Extradition Act is judicial rather than administr ative in character. If it is judicial in character then, of course, it would not come within the class of decisions which are reviewable under the Judicial Review Act. For the purpose of dealing with the current application it is proper, I think, for me to accept, as other judges have done, that a decision under s.17(6) of the Extradition Act is reviewable under the Judicial Review Act. I leave the question open for argument on the final hearing, if counsel for the respondents then wish to put further submissions upon it.

7. In Prevato's Case (supra) Wilcox J. observed in an obiter dictum that this court's powers under s.15 of the Judicial Review Act would appear to be sufficient to enable it in a proper case to suspend the operation of a committal order upon appropriate conditions as to bail: see 8 FCR at pp 364-365. In his decision in Hempel v. Moore (supra) French J. expressed his agreement with Wilcox J.'s observation.

8. I am of the opinion that the court does have power under s.15 of the Judicial Review Act to make an order the effect of which is to grant bail to a person who has been dealt with under s.17(6) of the Extradition Act. Although I did not precisely decide this point in Zoeller v. Bowen (3 September 1987, unreported) I think it necessarily follows from what I said in that case that the court does have such a power. Zoeller's Case was concerned with the interpretation of ss.17(2), (2a) and (2b) of the Extradition Act, but I think it follows from what I there said that the court's power under s.15 extends to the making of an order in the nature of a grant of bail where a person has been dealt with under s.17(6).

9. It is true that the Extradition Act contains extensive provisions dealing with the granting of bail by magistrates, but I do not think that that is sufficient reason for reading down the plain words of s.15 of the Judicial Review Act. In my opinion, the court should be slow to do that when the result would be to render unavoidable the absurd consequences which flow from s.17(6) of the Extradition Act. I therefore reject the argument that the Extradition Act provides an exclusive code laying down the circumstances in which bail may be granted.

10. I should add that if the Administrative Decisions (Judicial Review) Amendment Bill which was introduced into the Senate on 15 September 1987 is passed into law, it may well be the case that applications for review of decisions made under the Extradition Act will become most unlikely to succeed because of the alternative methods of review provided for in s.18 of the Extradition Act. It would be a pity if the end result of the legislative changes is that the unfortunate consequences that flow from s.17(6) become unavoidable. That is a matter which should engage the attention of the legislature.

11. I turn now to consider the merits of the application. I have reached the conclusion that I should make an order under s.15 of the Judicial Review Act, the effect of which will be to grant bail to the applicants pending the final hearing of the present proceedings. It is true, as counsel for the respondents has submitted, that the position of the applicants is now worse than it was before the magistrate made his order. I see the force of that submission, but it is only one matter to be taken into account in deciding whether I should make an order. There does not appear to be any serious question that the applicants will answer their bail. As I have already observed, they have done so on a number of occasions in the past. There does not appear to be any suggestion that they fled their native country or that they have attempted to disguise their identities in this country.

12. I order pursuant to s.15 of the Judicial Review Act that the operation of the warrants of committal under s.17(6) of the Extradition (Foreign States) Act 1966 issued against the applicants be suspended until the final determination of the application under the Judicial Review Act or further order, on the following conditions:

1. That the applicants not apply for the
return of their passports which are
currently in the possession of the
Australian Federal Police, nor apply for
fresh passports.

2. That the applicants stay away from any
point of departure overseas from Australia.

3. That the applicants report each Monday and
Friday to the officer in charge of Vaucluse
Police Station between the hours of 9.00 am
and 5.00 pm.

4. That the applicants notify the Australian
Federal Police within 72 hours of any
change in their address.

5. That within 48 hours they lodge cash or
security to the satisfaction of the
Registrar of this court to the value of
$10,000.

6. Costs of the hearings on 25 and 26 November
1987 reserved.