Brock v United States of America [2007] FCAFC 3 (19 January 2007)

ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – hearing of whether person liable for extradition order – nature of review of magistrate’s decision - nature and scope of review of decision under ss 19(1)(d) and 21 of the Extradition Act 1988 (Cth)

EXTRADITION – extradition to and from foreign States – extradition to foreign States – hearing of whether person liable for extradition order – nature of review of magistrate’s decision – nature and scope of review of decision under ss 19(1)(d) and 21 of the Extradition Act 1988 (Cth) - meaning of reasonable time in which to prepare for the proceedings – whether conditions of remand a relevant consideration - double criminality

WORDS AND PHRASES – ‘reasonable time to prepare’; ‘reasonable time in which to prepare’

Extradition Act 1988 (Cth) ss 15, 19, 21

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 cited
Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 applied
Ashby v White (1703) 2 Ld Rayd 938 applied
Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456 cited
Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297 cited
Bennett v United Kingdom [2000] FCA 916; (2000) 179 ALR 113 cited
Board v Board [1919] AC 956 cited
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 considered
Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188 cited
Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 1976 applied
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 cited
Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 considered
Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352 at 386 considered and followed
Ex parte Hicks (1991) 65 ALJR 398 considered
Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 cited
Hermanowski v United States of America [2005] NSWSC 145; (2005) 191 FLR 83 cited
Hermanowski v United States of America [2006] FCAFC 8; (2006) 149 FCR 93 cited
Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 cited
Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327 considered and followed
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 cited
Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 considered
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 47 cited
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 considered
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 applied
Queen v Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513 cited
Rahardja v Republic of Indonesia [2000] FCA 639 cited
Raymond v Honey [1981] UKHL 8; [1983] 1 AC 1 cited
Republic of South Africa v Dutton (1997) 77 FCR 128 considered
Royal Insurance Co Ltd v Mylius [1926] HCA 49; (1926) 38 CLR 477 cited
Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141 considered
Timbarra Protection Coalition v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 cited
Todhunter v United States of America (1995) 57 FCR 70 cited
Vasiljkovic v The Commonwealth [2006] HCA 40; (2006) 228 ALR 447 considered
Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378 applied
Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278 cited

GEORGE PAUL BROCK v UNITED STATES OF AMERICA AND JULIE ANNE HUBER
NSD 966 OF 2006

BLACK CJ, JACOBSON AND RARES JJ
19 JANUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 966 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEORGE PAUL BROCK Appellant
AND:	UNITED STATES OF AMERICA First Respondent JULIE ANNE HUBER Second Respondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE OF ORDER:	19 JANUARY 2007
WHERE MADE:	SYDNEY

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 966 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEORGE PAUL BROCK Appellant
AND:	UNITED STATES OF AMERICA First Respondent JULIE ANNE HUBER Second Respondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	19 JANUARY 2007
PLACE:	SYDNEY

1 This appeal is concerned primarily with the jurisdictional precondition imposed by s 19(1)(d) of the Extradition Act 1988 (Cth), the effect of which is that before conducting proceedings to determine whether a person is eligible for surrender in relation to an extradition offence, the magistrate must consider "that the person and the extradition country have had a reasonable time to prepare for the conduct of such proceedings."

2 Essentially, the appellant’s case is, and has been, that because of the circumstances under which, as an "extreme high risk prisoner", he has been kept on remand under s 15 of the Act, he was never in a position to be able to prepare for the proceedings before the magistrate.

3 The appellant’s extradition is sought by the United States of America. He is a citizen of the United States who was extradited from the Netherlands to Australia where he served a sentence of imprisonment before being released on parole on 17 March 2005. (The material before us does not identify the offence or offences of which he was evidently convicted here.) Upon his release on parole the appellant was arrested under a provisional warrant issued pursuant to a request by the United States under s 12 of the Act. He remains on remand.

4 On 12 May 2005 the Minister for Justice and Customs signed a notice stating that an extradition request had been received from the United States of America in relation to the appellant for the following offences:

The appellant was served with the notice and other extradition documents on the same day.

5 On 24 November 2005 the second respondent, a magistrate of the Central Local Court in the State of New South Wales, conducted a hearing pursuant to s 19 of the Act. It is convenient to set out ss 19(1) and (2) in full:
‘19 Determination of eligibility for surrender

(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;

(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and

(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.

(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a) the supporting documents in relation to the offence have been produced to the magistrate;

(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents--those documents have been produced to the magistrate;

(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.’

6 The transcript shows that the magistrate began the proceeding by considering the matters raised by s 19(1). Upon reaching s 19(1)(d), she invited comment from the appellant who stated that in his present circumstances he would never have time to prepare. He continued:

The magistrate then asked the appellant whether he had applied for legal aid, to which he replied that he had, but that after five months his application had been refused. The magistrate then said: "Well basically what you’re saying then Mr Brock is you say you’ll never have enough time?" The appellant reiterated that under the conditions under which he was held it was impossible for him to prepare.

7 The magistrate then addressed the requirements of s 19(1)(d). Her Honour said:

8 Later in the proceedings the appellant handed up some written submissions, which the magistrate read during the luncheon adjournment. They stated that the appellant was seeking an adjournment and was relying on s 19(1)(d) of the Act and procedural fairness. They repeated what the appellant had said in his oral submissions about his classification as an extreme high risk prisoner and the consequent restrictions upon his access to resources. Four documents were attached as appendixes. The first was a form dated 13 September 2001 by which the appellant requested that the remand centre authorities provide him with a text book on United States extradition law. The form bore a handwritten note which read: ‘Declined against property policy’. The second appendix was a ‘Department of Corrective Services Inmate Request Form’ on which the appellant requested to go to the library for the purpose of legal study because he was self-represented. A notation on the form by the remand centre’s Intelligence Manager stated that management of extreme high risk inmates did not allow access to the library, but that they could request books through staff. The handwritten note was dated 6 October 2005. The written submissions handed up by the appellant to the magistrate at the hearing indicated that this form was returned to the appellant before 9 November 2006 when he showed it to a magistrate who was visiting the remand centre. The third appendix was a letter to Mr Brock from the Executive Officer of the Serious Offenders Review Council dated 28 April 2005. That letter indicated that Mr Brock had raised his concerns about not having access to books and a computer in a letter to the Council dated 23 March 2005. The letter in reply stated: "The matters raised by you concerning access to books and a computer are not within the scope of the Council and should properly be addressed to the Governor of the centre." The final appendix was an affidavit of Lawrence Rivera dated 17 October 2005. Mr Rivera is a United States citizen in custody in the same remand centre as the appellant, also pending extradition to the United States. Mr Rivera’s affidavit stated that Mr Brock had not had access to a library or legal materials and described circumstances in which authorities in the remand centre had hindered Mr Rivera’s attempts to assist Mr Brock to prepare for his extradition proceedings.

9 After the luncheon adjournment the appellant made submissions to the magistrate about double criminality. When counsel for the first respondent began her submissions, the following exchange occurred:

10 Counsel for the first respondent then made her submissions about double criminality. The magistrate concluded that the appellant was eligible for surrender to the United States. In giving her reasons her Honour discussed double criminality. In the course of doing so she said: "As I held earlier today, I was satisfied that there is in fact jurisdiction" and also that the appellant "has suffered extreme difficulty in obtaining access to law books and advice whilst being held in custody."

11 Pursuant to s 19(9) of the Act, the magistrate ordered the appellant committed to prison to await surrender to the United States.

12 The appellant then applied to this Court under s 21(1)(a) of the Act for "a review" of the order made by the magistrate under s 19(9). His application was made on the following grounds:

When the application came on for hearing before the primary judge the appellant was represented by counsel, appearing pro bono. Counsel argued the first and second grounds but did not pursue the third, which is not addressed in the primary judge’s reasons.

13 The judge dismissed the application for review. In his reasons for judgment his Honour set out what the Magistrate had said concerning the appellant’s complaint about the lack of time to prepare his case (see [7] above). His Honour continued:

14 Mr Brock now appeals to the Full Court pursuant to s 21(3) of the Act. The grounds of appeal are:

15 Counsel for the appellant argued that in spite of his client’s assertion that he would never have enough time to prepare, his submissions before the magistrate were properly construed as an application for an adjournment and that in failing to grant that adjournment and instead finding that s 19(1)(d) was satisfied, the magistrate had identified factors which were relevant (the appellant’s conditions on remand) but had made a conscious decision to disregard them. Counsel did not dispute that the primary judge had identified the applicable principles of law, in particular: (1) that a ‘reasonable time to prepare’ was not to be determined simply by considering the period elapsed; and (2) that the transcript of the proceedings before the magistrate should not be approached with an eye finely attuned to error. Nevertheless, the appellant argued, the primary judge had erred in confirming the decision of the magistrate because the transcript revealed an error of law, not merely ‘looseness of language’. Relying on the decision of the Full Court in Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327, counsel argued that the consequence was that the Court must set aside the decision of the magistrate and order the appellant’s release pursuant to s 21(2)(b)(i).

16 Counsel for the appellant also submitted that the magistrate had failed to accord his client procedural fairness, relying on the same facts and reasoning as for his argument about s 19(1)(d).

17 Finally, it was submitted that the double criminality requirement in s 19(2)(c) of the Act had not been satisfied because, in the United States, the appellant could be convicted of both the continuing criminal enterprise offence and the lesser included offence of conspiracy. This was said to offend the double criminality requirement because in New South Wales (as in every Australian jurisdiction) a defendant, having been convicted of one offence, is entitled to raise a plea in bar in answer to a charge for a second offence where all the elements of one of the two offences are among the elements of the other.

18 Counsel for the United States submitted that there was no error in the reasons of the primary judge. She said that s 19(1)(d) is satisfied if the magistrate forms a state of mind in which he or she considers that the person has had a reasonable time to prepare, and that view is formed reasonably on the material before the magistrate, who is not acting dishonestly, capriciously or arbitrarily. Here, there was no reason to conclude the magistrate had erred. It was also submitted that as the appellant had not sought an adjournment for a specific period or to do a specific thing he had, in effect, sought a stay of the proceedings (which the magistrate had no power to grant) or an indefinite adjournment until such time as his circumstances changed. Counsel also argued that the primary judge had correctly found that the appellant had, in any event, overstated his predicament, and that his ability to prepare for the proceedings was demonstrated by his written submissions and oral argument on issues such as double criminality, and by the fact that he had commenced other proceedings in this Court under s 39B of the Judiciary Act 1903 (Cth), challenging the decision of the Minister for Justice and Customs to issue the notice under s 16 of the Act.

19 Finally, the first respondent submitted that the double criminality requirement in s 19(2)(c) of the Act had been met because the inquiry was conduct based and the appellant’s alleged conduct in the United States, had it occurred in New South Wales, would have constituted an extradition offence.

20 As noted, s 21 provides for "a review" by this Court, or by a Supreme Court, of an order made by a magistrate under s 19(9). It also provides for an appeal to the Full Court of this Court from an order made on the review. In either case, the court is to have regard only to the material that was before the magistrate: s 21(6)(d).

21 The learned primary judge proceeded on the footing that where, or to the extent that, a review of a magistrate’s order under s 19(9) involves a challenge to a finding under s 19(1)(d), the finding will only be set aside if an error of law is demonstrated.

22 It is well established in this Court that where a review of a magistrate’s decision concerns an issue arising under s 19(2), the review is to proceed by way of rehearing. In Republic of South Africa v Dutton (1997) 77 FCR 128 at 136, Hill J, in a passage that has been quoted with approval on several occasions since, observed:

See also: Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184 at 194 per Lockhart, Hill and Kiefel JJ; Todhunter v United States of America (1995) 57 FCR 70 at 80-1 per Black CJ, Gummow and Lindgren JJ; but compare Bennett v United Kingdom [2000] FCA 916; (2000) 179 ALR 113 at 119-20 per Katz J.

23 This approach was adopted most recently by a Full Court in Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352. In that case Finn, Dowsett and Conti JJ said (at 386):

24 See also the observations of Bell J in Hermanowski v United States of America [2005] NSWSC 145; (2005) 191 FLR 83 at 84, and the cases cited by her Honour at [6].

25 The question that now arises for decision is whether the primary judge was correct in proceeding, as his Honour did, on a much narrower basis than that outlined in the above cases. In other words, does a "review" for the purposes of s 19(1)(d) have a different character to that established by the cases for s 19(2)?

26 In Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, Mason CJ, Brennan and Toohey JJ said, at 261: ‘what emerges from the judicial decisions and, for that matter, from statutes is that "review" has no settled pre-determined meaning; it takes its meaning from the context in which it appears.’ In the present instance there is strong support for the conclusion that a "review" for the purposes of s 19(1) is different and narrower in scope than the review by way of rehearing established by the cases for the purposes of s 19(2).

27 In Knauder, the Full Court considered a failure of a magistrate, as found by the primary judge, to comply with s 19(1)(d) and also with an alleged failure to afford procedural fairness. Conti J distinguished the statements of principle in Dutton and Kainhofer on the basis that those cases were concerned with reviews of decisions made under s 19(2) of the Act: see at 341. Although each member of the Court approached the matter somewhat differently, all three judges (Mansfield, Conti and Allsop JJ) proceeded on the footing that the magistrate’s decision was wrong in law. They did not suggest that the primary judge should have proceeded by way of a rehearing. Moreover, whilst the primary judge in that case had declined to set aside the whole of the magistrate’s decision on the footing that, by the time the case had come before him on review the applicant had received procedural fairness, the Full Court determined that the deficiency in the magistrate’s decision-making process could not be cured in this way.

28 The circumstance that a "review" may have a different character according to its subject matter, even within the same statute, is consistent with the importance that context plays in determining its meaning. Here, the context differs markedly according to whether the matter in issue is a jurisdictional precondition to the conduct of the proceedings before the magistrate provided for by s 19(1)(d) or the determination, in proceedings validly commenced, of eligibility for surrender in accordance with the criteria in s 19(2).

29 Unlike a review of a magistrate’s findings in relation to the s 19(1)(d) jurisdictional preconditions, a review of the magistrate’s decision in relation to s 19(2) determines whether the person is, ultimately, eligible for surrender. It is not surprising then that the Court is empowered to conduct a rehearing in relation to s 19(2), effectively substituting its own decision for that of the magistrate if it finds that any of the conditions of surrender (correct documentation, double criminality and no extradition objections) are not met. If any of these conditions is not met, the natural consequence is that the person should be released. If the conditions have been met, it is unsurprising that the Court should order the person committed to prison to await surrender: see s 21(2).

30 By contrast, a finding that a s 19(1)(d) jurisdictional precondition was absent says nothing about the ultimate question of the person’s eligibility for surrender. Nevertheless, according to the Full Court in Knauder, if s 19(1)(d) has not been complied with the Court must release the appellant pursuant to s 21(2)(b)(i) of the Act, with the consequence that the country would have to begin extradition proceedings afresh (assuming it was in a position to do so): see Knauder at 343-4 per Conti J. The inconvenience of this result suggests that the jurisdictional precondition provided for by s 19(1)(d) should not be treated as a jurisdictional fact, subject to review by way of rehearing; that is, absent an error of law, the magistrate’s decision, or her ‘consideration’ under s 19(1)(d), should be final: see Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456 at 466 per Black CJ; Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; (1997) 187 CLR 297; Timbarra Protection Coalition v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64 per Spigelman CJ (Mason P and Meagher JA agreeing). (For a discussion about the distinction between a jurisdictional precondition and a jurisdictional fact see M Aronson, B Dyer and M Groves Judicial Review of Administrative Action, 3^rd ed, Lawbook Co, Sydney, 2004 at 227-9). Even if, as Rares J suggests, the correct approach is to remit the matter to the magistrate for further hearing, considerable inconvenience to all concerned would remain. As Spigelman CJ explained in Timbarra, statutes are construed on the assumption that the legislature does not intend to cause inconvenience. This presumption applies strongly in relation to this Act, which is evidently intended to provide an expeditious and straightforward process, free from duplicitous review procedures: see Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1987, 1615, (Lionel Bowen, Attorney General).

31 It follows that the learned primary judge was correct in approaching the matter in the way he did.

32 It is common ground that the primary judge was correct in concluding that, in determining whether "a reasonable time to prepare" has been allowed, the circumstances of an individual on remand may well be relevant but the weight to be given to those circumstances is a matter for the magistrate.

33 Accepting then that the primary judge was also correct in his approach to the review he undertook, the short question is whether, in taking a not overly critical view of the magistrate’s ex tempore reasons, his Honour was right to conclude that the magistrate had not failed to take into account relevant matters. The point is a very narrow one because it was accepted by counsel for the appellant that the judge applied the right test; his submission was that his Honour came to the wrong result. In our view, on a fair reading of his Honour’s reasons, the point is simply not made out.

34 It is important to recognise, as his Honour did, that the expression "reasonable time to prepare" cannot be deprived of meaning by considering only how much time has elapsed and not, also, the personal circumstances of the person. But nor can the expression be used to import guarantees about access to resources.

35 Since the only basis for the contention that the appellant was denied procedural fairness was the magistrate’s decision to conduct the proceeding notwithstanding the appellant’s assertion that he had not had reasonable time to prepare, it follows that this contention must fail for the reasons already given.

36 Counsel for the appellant sought to argue before us a point that was not raised before the primary judge and accordingly was not dealt with in his Honour’s reasons. The appellant was evidently concerned about this point, which he had argued in person before the magistrate, and despite the initial objection of counsel for the United States we heard short submissions on the issue. In substance the counsel for the appellant claimed that the principle of double criminality could not be satisfied in this case because the appellant had been charged with two offences, one of which was a "lesser included offence" in the United States. Counsel objected that, contrary to the position in Australia, the appellant could be convicted of both offences (although sentenced for only one of them).

37 The use of the expression "double criminality" in this context should not, however, obscure the fact that the requirements of s 19(2)(c) are plain on its face and do not support the appellant’s contention. The appellant is accused of participating in a criminal enterprise which imported more than 600 000 pounds of marijuana into the United States on barges, over a five year period between 1982 and 1987. Specifically, and among other acts, the appellant is alleged to have captained tugs that brought barges loaded with marijuana into United States ports and supervised their unloading. He allegedly received a share of the profits of the sale of the marijuana in the United States. There is no doubt that equivalent conduct would have been, at all relevant times, an offence against the law in force in New South Wales with a maximum penalty exceeding 12 months imprisonment: see the definition of ‘extradition offence’ in s 5 of the Act. As such, the requirements of s 19(2)(c) have been met.

38 The proceedings have revealed no error of law on the part of the primary judge nor any other legal impediment to the appellant’s extradition to the United States. Accordingly, the appeal should be dismissed, with the first respondent’s costs.

39 I wish to record my appreciation of the willingness of counsel for the appellant, Mr Ash, to appear pro bono, and for the evident care and thoroughness with which he advanced his client’s case.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	966 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEORGE PAUL BROCK Appellant
AND:	UNITED STATES OF AMERICA First Respondent JULIE ANNE HUBER Second Respondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	19 JANUARY 2007
PLACE:	SYDNEY

40 I have had the benefit of reading in draft the reasons for judgment of the Chief Justice and the draft reasons of Rares J.

41 I agree that the appeal must be dismissed, essentially for the reasons given by the Chief Justice. In my view, there was no reviewable error in the finding of the magistrate that "Mr Brock has had reasonable time in which to prepare for the conduct" of the extradition proceedings, in accordance with s 19(1)(d) of the Act.

42 Two issues arise on the appeal. The first is whether there was a reviewable error in that finding. This issue raises for consideration the nature of the review conducted by the primary judge under s 21 of the Act and whether his Honour’s reasons disclose any error in the approach that he took.

43 The second question is whether the magistrate erred in determining that the dual criminality provisions of s 19(2)(c) were satisfied. That is to say, was there any error in the finding that the conduct of Mr Brock that was the subject of the offences for which his surrender was sought, was conduct which would have constituted an extradition offence in New South Wales.

44 The second issue was not pressed before the primary judge but it was argued before the learned magistrate. I agree with the Chief Justice and with Rares J that there is no error in her Honour’s finding on that question.

45 The authorities establish that the review provided for in s 21 is not judicial review in the strict sense but is a rehearing, limited to the material before the magistrate; Republic of South Africa v Dutton at 136; Dutton v O’Shane at [148]; Hermanowski at [5] – [9].

46 Those authorities were concerned with the nature of the review of a decision made under s 19(2) as to whether the person was eligible for surrender to the requesting country. They did not deal with the nature of the review under s 21 of a determination made under
s 19(1)(d) that the person had had a reasonable time in which to prepare for the conduct of the proceedings.

47 The evident statutory function of s 19(1)(d) is different from that of s 19(2). The function of s 19(1) is to lay down statutory conditions precedent to the exercise of the power under s 19(2) to determine whether the person is eligible for surrender; it is either a statutory pre-condition to the exercise of the power or a jurisdictional fact authorising the magistrate to determine whether the person is eligible for surrender; Knauder at [34] – [38] (per Conti J); at [51] (per Allsop J).

48 Whether s 19(1)(d) is a statutory precondition or a jurisdictional fact, it is clear that it calls for a state of mind to be reached by the magistrate as to whether the person has had reasonable time in which to prepare for the hearing; Knauder at [48] per Allsop J.

49 It is true, as Allsop J pointed out in Knauder, that this issue is not the same as whether procedural fairness has been afforded. Nevertheless, the authorities dealing with the judicial review of a determination as to a jurisdictional fact offer guidance as to the circumstances under which a review will be granted. Thus the view of the magistrate must be formed reasonably upon the material; Knauder at [49] – [50].

50 In my opinion, in the present case, nothing turns on the question of whether s 19(1)(d) is to be treated as a statutory pre-condition or a jurisdictional fact. Nor does it turn upon whether the review is limited in the way in which the primary judge approached the question. In my opinion, whether the review of a determination under s 19(1)(d) is limited to the ascertainment of jurisdictional error, or is more widely defined, there was no error in the magistrate’s finding.

51 What constitutes a reasonable time to prepare for the conduct of the proceedings is to be determined objectively having regard to the facts and circumstances of each case. The magistrate is required to investigate the circumstances and to reach a state of satisfaction on this question. Thus, in Knauder, where the magistrate failed to investigate the facts and circumstances, his determination that s 19(1)(d) had been satisfied was described as "arbitrary and capricious"; at [50].

52 Here, as the primary judge observed at [14], the magistrate did consider the factors put forward by Mr Brock in support of his contention that he did not have a reasonable time to prepare. Her Honour did not discard those factors but considered, on balance, that Mr Brock had had a reasonable time in which to prepare. There was nothing erroneous in this approach.

53 It is to be noted that Mr Brock did not seek from the magistrate a stipulated period in which to prepare. Rather, he submitted that he would never be in a position to prepare, given the conditions of his remand.

54 However, as the primary judge observed at [15], Mr Brock "overstated his predicament". He was apparently not allowed access to the library, but, a note of which he was plainly aware, demonstrated that he could request staff to make books available.

55 Indeed, there was nothing to suggest that Mr Brock was hampered in his preparation for the hearing. He addressed the learned magistrate on the issue of dual criminality and the concept of double jeopardy. Moreover, his own written submissions stated that, two months earlier, he had filed an application to the Federal Court under s 39B of the Judiciary Act seeking a review of the Minister’s decision to issue a notice under s 16 of the Act.

56 I do not consider that the statement made by the magistrate that Mr Brock had suffered difficulty in obtaining access to law books and advice was a finding of fact. Her Honour was dealing with an argument to that effect put by Mr Brock and her remarks must be read in that context.

57 Even if those remarks amounted to a finding, the magistrate’s earlier stated finding that s 19(1)(d) had been satisfied took into account what Mr Brock put to her on that subject.

58 In my opinion, the material before the magistrate did not demonstrate that Mr Brock’s conditions of remand failed to allow him a reasonable time in which to prepare for the hearing. The principles of statutory construction to which Rares J refers at [96] and following are therefore not enlivened.

60 I join with the Chief Justice in thanking counsel for the appellant who appeared pro bono.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	966 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEORGE PAUL BROCK Appellant
AND:	UNITED STATES OF AMERICA First Respondent JULIE ANNE HUBER Second Respondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	19 JANUARY 2007
PLACE:	SYDNEY

61 On 24 November 2005 a Magistrate in the State of New South Wales issued a warrant under s 19(9) of the Extradition Act 1988 (Cth) committing George Paul Brock to the Metropolitan Remand and Reception Centre to await surrender for extradition to the United States of America. Mr Brock was found to be eligible for surrender in relation to the extradition offences of:

63 Mr Brock sought a review of her Honour’s decision. A judge of this Court dismissed his application for review. He raised two grounds on appeal. The first was that the primary judge should have found that the Magistrate erred in finding that the condition in s 19(1)(d) of the Act had been satisfied. This required the Magistrate to consider, before commencing proceedings to determine whether Mr Brock was for surrender, whether he had had reasonable time in which to prepare for the conduct of the proceedings. He had informed her Honour that the circumstances in which he was being held on remand under s 15 of the Act prevented him from having access to any legal materials.

64 The second ground was that the Magistrate had erred in failing to consider the question under s 19(2)(c) of whether the conduct the subject of the offences for which his surrender was sought was conduct which would have constituted an extradition offence in New South Wales. Under United States law, conspiracy is considered a lesser included offence of every continuing criminal enterprise. Mr Brock could be convicted by a jury there of both offences, unlike the position in New South Wales. However, the United States Court could only sentence a defendant, if convicted on both accounts, on one of them. Mr Brock did not agitate the second basis before the judge below, but no objection has been taken to it being raised on this appeal and the Court heard full argument on it.

65 In order to determine the first issue it is necessary to construe the powers of the Court on a review under s 21 of the Act and whether it extends to the satisfaction of the conditions in s 19(1). If the Court can review this issue, there is no further evidence beyond what was before the Magistrate that the applicant for review can lead on the review, including the effect that a denial of a reasonable time in which to prepare for the conduct of the hearing caused to the applicant for review.

66 The structure of the relevant provisions is as follows. Four conditions are set out in s 19(1) which must exist. First, the person must be on remand under s 15 (s 19(1)(a)). Importantly, s 15(2) provides that the person shall be remanded by the Magistrate in custody ‘for such a period or periods as may be necessary for proceedings under s 18 or 19, or both, to be conducted’. There is a right to be remanded on bail under s 15(2) only where there are such special circumstances as justify such a remand pursuant to s 15(6). A remand occurrs under s 15(2) because the person has been arrested under a provisional arrest warrant issued under the Act and brought as soon as practicable before a Magistrate in the State or Territory in which the arrest occurred (s 15(1)). Here, there was no issue that Mr Brock was such a person. He had been remanded in custody for proceedings under s 19 to be conducted.

67 Next, the Attorney-General has to give a notice under s 16(1) in relation to the person (s 19(1)(b)). That notice is issued by the Attorney-General in his or her discretion stating that an extradition request had been received for extradition country in relation to the person. Again, in this matter there is no issue about that question, although there is some evidence that Mr Brock took proceedings in early September 2005 under s 39B of the Judiciary Act 1903 (Cth) challenging the lawfulness of the certificate in this case. Here, a certificate dated 12 May 2005 was signed by the Minister for Justice and Customs. No issue was taken in the appeal as to how the Minister for Justice and Customs came to sign the certificate rather than the Attorney-General (cf: ss 18C, 19 and 19A of the Acts Interpretation Act 1901 (Cth)). Whether that issue is the subject of the proceedings under s 39B of the Judiciary Act 1903 (Cth) was not a matter that was ventilated in the appeal.

68 Next, an application has to be made to a Magistrate by or on behalf of either Mr Brock or the United States of America for proceedings to be conducted in relation to Mr Brock under s 19. That was satisfied on 24 November 2005 by the application made by the United States before the Magistrate (s 19(1)(c)).

70 Once the provisions of s 19(1) are satisfied, the matters which the Magistrate is to determine are identified in s 19(2) which provides that:

71 Next, ss 19(3) and (4) define supporting documents for the purposes of s 19(2)(a) and, where there are deficiencies in them, how the Magistrate is to deal with the conduct of proceedings.

72 The person whose extradition is sought is not entitled to adduce, and the Magistrate is not entitled to receive, evidence to contradict an allegation that the person engaged in the conduct constituting an extradition offence for which his or her surrender is sought (s 19(5)). Then, ss 19(6)-(8) deal with the authentication of documents and their proof in matters not presently relevant. Critically, s 19(9) provides that where, in the proceedings, the Magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the Magistrate must, by warrant in a statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under s 22(5). If the Magistrate determines that the person is not eligible for surrender, he or she must be released (s 19(10)).

73 The order the subject of the review is the order made by the Magistrate under s 19(9) or (10): see Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 at 537 per Brennan CJ, Dawson and McHugh JJ; see too at 546 and 554 per Gummow J. There Toohey J said that only the Magistrate’s decision under s 19 as to eligibility for surrender is expressly reviewable under s 21 of the Act (185 CLR at 541).

74 Where a Magistrate makes an order under s 19(9) or (10) in relation to a person whose surrender is sought by an extradition country, the person, or extradition country respectively, has 15 days after the date on which the Magistrate makes the order to apply to the Federal Court or to the Supreme Court of the relevant State or Territory ‘for a review of the order’, by force of s 21(1). By s 21(2) the Court may, by order, confirm the order of the Magistrate or quash it and direct the Magistrate, in the case of an order under s 19(9) to order the release of the person, or, in the case of an order under s 19(10), order by warrant in the statutory form that the person be committed to prison in the way required by s 19(9). Either the person or the extradition country may appeal to the Full Court of this Court from an order under s 21(2) of a judge of the Court or the Supreme Court. Strict time limits of 15 days from the date of relevant orders apply for the filing of the appeals or an application for special leave to appeal to the High Court of Australia from a decision of the Full Court of this Court (s 21(4) and (5)).

75 Importantly, where a review is instituted or in an appeal from a decision on such a review, s 21(6)(d) requires the Court to which the application or appeal is made to have regard ‘only to the material that was before the Magistrate’. In the review or appeal under s. 21, if the person has not been released, the Court to which the application or appeal is made may order that the person be kept in such custody as the Court directs or, where there are special circumstances, grant bail until the review has been conducted or the appeal heard (s 21(6)(f)). If the Court determines that the person is eligible for surrender within the meaning of s 19(2) in relation to an extradition offence or extradition offences, the Court must include in its judgment on the review or appeal a statement to that effect, specifying the offence or offences (s 21(6)(g)).

76 In Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246, the High Court held that s 21 of the Act conferred on the Federal Court a judicial, not administrative, function. Gleeson CJ, Gaudron, McHugh and Gummow JJ said (209 CLR 246 at 255 [18]) that under s 19 of the Act the Magistrate was required to determine administratively whether a person was eligible for surrender to an extradition country. They said that under s 21 the Federal Court was required to determine whether that decision was right or wrong and, if wrong, what decision should have been made by the Magistrate, ‘... thereby determining the rights and liabilities of the parties to the review proceedings and, thus, exercising judicial power’. As they pointed out, in a review under s 21, the Federal Court is required, if the Magistrate’s decision was erroneous, to determine what order should have been made by the Magistrate (209 CLR at 255 [17]).

77 The nature of the review mandated by s 21 is a full merits review of the administrative decision of the Magistrate but without recourse to any material that was not before him or her (s 21(6)(d)). This review process has been the subject of some consideration. In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35; (1995) 185 CLR 528, Toohey J said that there was force in Prof Shearer’s comment that a feature of the Act is ‘... a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion’ (see Shearer: ‘Extradition and Human Rights’ (1994) 68 ALJ 451 at 452).

78 In Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352 at 386 [148] Finn and Dowsett JJ said that the review under s 21 was not judicial review in the strict sense. Rather, it is a review by way of rehearing in which the Court is authorised to reach its own conclusions on eligibility for surrender, albeit that it is limited in so doing because it can only have regard to the material before the Magistrate by reason of s 21(6)(d). Earlier, they had pointed out the difficulties that the peculiar review process mandated by s 21 creates for a court when called upon to review a magistrate’s order made under s 19 (132 FCR at 384 [143]; see too Republic of South Africa v Dutton (1997) 77 FCR 128 at 136 per Hill J; Cabal v United Mexican States (No 3) [2000] FCA 1204; (2000) 186 ALR 188 at 234 [115] per French J).

79 In Vasiljkovic v The Commonwealth [2006] HCA 40; (2006) 228 ALR 447 at 456-457 [24]- [25] per Gleeson CJ, 473 [101] per Gummow and Hayne JJ, 484 [150] per Kirby J and 499 [222] per Heydon J, the Court affirmed what had been said in Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 at 255 [18] about the review under s 21. Kirby J noted that the involvement of the Court in that review is extremely limited, being confined to the scrutiny of formal matters (228 ALR at 484 [150]). He went on to say that the requirement of the Magistrate to consider whether the person has had reasonable time in which to prepare for the conduct of the proceedings mandated by s 19(1)(d) would not normally present any difficulty given the limited function of the proceedings: namely to determine whether the person was eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person was sought by the extradition country (s 19(1)): see 228 ALR at 484 [151].

80 In Ex parte Hicks (1991) 65 ALJR 398 Toohey J, sitting as a single justice, considered s 35 of the Act (which is in Pt III dealing with extradition from Australia to New Zealand). He said that the powers on appeal of the Full Court of this Court are to be found in s 28 of the Federal Court of Australia Act 1976 (Cth) and were not limited by s 35 (which is an analogue of s 21(2)) simply to require the Full Court to dismiss the appeal or alternatively to quash an order under the analogue to s 19(9) and direct the Magistrate to require the release of the person. He said that the Full Court could still order a rehearing by a single judge of the application under the analogue of s 21(1) (i.e. s 35(1)). But, as Hill J pointed out in Republic of South Africa v Dutton (1997) 77 FCR 128 at 137E-G, the powers of this court at first instance are different to those on appeal, being confined by s 21(1) and (2). That is because s 21(3) of the Extradition Act 1988 (Cth) creates the right of appeal and attracts the appellate jurisdiction conferred on the Full Court by s 28 of the Federal Court of Australia Act 1976 (Cth).

81 The jurisdiction to review under s 21(1) is quite specific. In particular s 21(1) confines the relevant review to a review of the order, in this case under s 19(9), by warrant to commit Mr Brock to prison to await surrender. The question then arises of whether the review under s 21 encompasses consideration of the issues raised in s 19(1)(a)-(d).

82 The United States argued that s 21(1) did not extend the review to the question of the satisfaction of the conditions in s 19(1) which authorised the Magistrate to conduct the proceedings. However, such a construction of s 2(1) would allow what the Act does not expressly authorise. It would treat the failure to satisfy the conditions in s 19(1) as never having occurred. The question is whether the requirements of s 19(1) are, in effect, in the nature of jurisdictional facts so that the absence of satisfaction of any one of those facts denies authority to the Magistrate to conduct the proceedings (Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327 at [51]] per Allsop J)

83 It would be odd for the Magistrate to have power to conduct the proceedings where, for example, the Attorney-General had not given a notice under s 16(1) in relation to Mr Brock. Obviously, the existence of such a notice is an objective fact which the section requires to be in existence. What gives the Magistrate power to conduct the proceedings under s 19(1) is the satisfaction of each of the jurisdictional conditions in s 19(1)(a)-(d). It is the satisfaction of those conditions which gives the Magistrate the authority of the enactment to make a decision under s 19(9) or (10) in proceedings which are conducted under the Act.

84 An administrative decision which involves jurisdictional error is regarded in law as no decision at all: Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Their Honours held that if there had been jurisdictional error because, for example, of a failure to discharge imperative duties, or to observe ‘inviolable limitations or restraints’, the decision in question could not properly be described as having been made under the Act there in question. While, of course, each statute must be construed having regard to its own terms, it is the purpose of s 19(1) to define the circumstances in which the Magistrate may conduct the proceeding it authorises with the ultimate consequences provided in s 19(9) or 19(10).

85 Here, once the Magistrate had embarked upon the proceedings under s 19(1) after forming the view that each of the conditions in that section had been met, and then became aware, for example, that the person was not on remand under s 15, there is nothing in the scheme of s 19 to require or, indeed permit, the Magistrate to continue with something that is being done at that time without satisfaction of a jurisdictional requirement. The proceedings would lack the authority of the Act, because one of the requirements for their conduct was absent. As Gleeson CJ, Gummow, Kirby and Hayne JJ held in Enfield City v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 155 [48], where the question is whether the administration decision-maker acted within jurisdiction – ‘...it must be for the court to determine independently for itself whether that is the case’. If the Magistrate were to have mistakenly considered that one of the elements of s 19(1)(a)-(d) had been satisfied, she would be able to correct that mistake by making a later decision reflecting the true position in accordance with Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 614-615 [51]- [52] per Gaudron and Gummow JJ and see too per Gleeson CJ at 603-604 [5]-[8], 606 [15].

86 The question is whether the Magistrate erred in considering that Mr Brock had had reasonable time in which to prepare for the conduct of the proceedings, when he was claiming that circumstances of incarceration, through no fault of his own, denied him access to material which he said he needed. The conditions in s 19(1)(a)-(c) are capable of ascertainment as objective facts. That in s 19(1)(d) is different because it requires the formation of a state of mind by the Magistrate.

87 Because the Court on a review is precluded by s 21(6)(d) from having regard to any material not before the Magistrate, the person cannot prove that there was any other material which he or she may have had available. It was conceded by the United States that it was possible for persons who were facing extradition in proceedings under s 19(1) before the Magistrate, to tender documents relevant to matters in s 19(2). Here, the issue is whether it is open to the person, on a review, to show that there had been some denial of procedural fairness or otherwise because he or she had not been allowed further time to prepare.

88 The parties debated before the Court that one or other side had the onus of showing or negativing that Mr Brock could have done or tendered something were he to have been given more time to prepare. That eschewed consideration of the effect of s 21(6)(d). If the Magistrate failed properly to consider the question under s 19(1)(d), there is no evidence on a review under s 21 that could now be put before the court as to prejudice or otherwise beyond what was before her Honour. And, what was before her Honour showed, as she found, that Mr Brock ‘has suffered extreme difficulty in obtaining access to law books and advice whilst being held in custody’. The material before her Honour which justified that finding was in his written submissions handed up after she had ruled under s 19(1)(d) against him. That finding was not challenged.

89 The position in a review under s 21 in the circumstances of a case like the present is much closer to the position in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 12 [34]. There McHugh, Gummow, Callinan and Heydon JJ pointed out that the failure to say what would have been done had the requirements of procedural fairness been complied with was not fatal to the availability of constitutional or prerogative writ relief. If one has not in truth had the opportunity to investigate or prepare for the conduct of a hearing, it is unreal to suggest that a person in Mr Brock’s position should have been required to tell the Magistrate what he or she would have done. It is the denial of the opportunity to investigate what he or she would have done, which the Act contemplated the person would receive, which grounds the entitlement to relief. And, s 21(6)(d) precluded him providing evidence on this issue in the review.

90 Time for preparation for the conduct of proceedings under s 19(1) may be necessary in order to consider legal arguments and the availability or relevance of other documents or evidence. In Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141 at 145 the Court held that unless it can be shown that no different result would occur, a breach of the requirements of procedural fairness necessitates the setting aside of the decision under review. Mason CJ, Wilson, Brennan, Deane and Dawson JJ did observe that, in the context of judicial, rather than administrative proceedings, when the denial of natural justice affected the entitlement of a party to make submissions on an issue of fact, especially when that issue is whether the evidence of a particular witness should be accepted, it was more difficult for a Court of Appeal to conclude that compliance with the requirements of natural justice could have made no difference.

91 What factors are relevant for the Magistrate to consider under s 19(1)(d)? In order to give meaning to the nature of the inquiry required by s 19(1)(d) it is necessary to examine the provisions within their legislative context.

92 It is important to recognize that by force of ss 15(2) and 19(1)(a) the person whose extradition is sought must have been remanded, in custody or on bail, at some time before the Magistrate is required to consider the question raised by s 19(1)(d). The purpose of the remand under s 15(2) is so as to ensure the attendance of the person at the proceedings under s 19(1). The conditions of the remand cannot defeat the intention of the Parliament expressed in s 19(1)(d) that the person has had reasonable time in which to prepare for the conduct of the proceedings to determine his or her eligibility for surrender.

93 The United States argued that it had no responsibility for the conditions of Mr Brock’s remand and that, therefore, those conditions were irrelevant to the considerations to which the Magistrate can have regard under s 19(1)(d). However, the Parliament has required both that the person be remanded and that before proceedings to determine his or her eligibility for surrender may commence, the Magistrate consider the question of whether he or she has had reasonable time in which to prepare for the conduct of those proceedings.

94 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381-382 [69]- [71], McHugh, Gummow, Kirby and Hayne JJ said:

95 What was the purpose of the Parliament requiring the Magistrate to consider the issue of whether a person it had required be remanded under s 15(2) had had reasonable time in which to prepare for the conduct of proceedings under s 19(1)? It must have been to ensure that there was a real, not illusory, opportunity of the person to prepare. Although s 19(1)(d) refers to time, the grant of time alone, without conditions of remand that enable reasonable preparation to be made, would be illusory.

96 It is a fundamental principle of law that, as Holt LCJ said in Ashby v White (1703) 2 Ld Rayd 938 at 954:

97 The principle is that if there is a duty which arises from a statute for the exercise of a public function, the Courts will find, in the absence of words of necessary intendment or clear implication, that there is a correlative right similarly arising. Once the right is established, the maxim of the law is ‘ubi jus ibi remedium’: Royal Insurance Co Ltd v Mylius [1926] HCA 49; (1926) 38 CLR 477 at 496 per Isaacs J (Knox CJ and Starke J concurring at 498). Isaacs J cited Viscount Haldane’s advice for the Judicial Committee in Board v Board [1919] AC 956 at 962 when he said:

Isaacs J, in a case dealing with a statutory obligation of an insurer to reinstate fire damaged buildings, continued:

98 Consideration by the Magistrate of the criterion of reasonable time in s 19(1)(d) is intended to ensure that there is a real opportunity to be heard provided to the parties in the proceedings under s 19(1). That is, the Parliament envisaged that not only should there be a right to be heard, but there should be adequate time to prepare for the conduct of that hearing in circumstances where the person whose eligibility for surrender is being considered will have been on remand under s 15(2) prior to those proceedings. Of course, the extradition country must also have a reasonable time to prepare, notwithstanding the importance which the Courts and quasi judicial tribunals give to dealing timeously with matters involving personal liberty: cf Williams v The Queen [1987] HCA 36; (1986) 161 CLR 278 at 283 per Gibbs CJ 297-298 per Mason and Brennan JJ applying John Lewis & Co Ltd v Tims [1952] AC 676 esp at 691 per Lord Porter. There is a common law rule that a person making an arrest must bring the person arrested before a justice in as short a time as is reasonably practicable. As Mason and Brennan JJ said (at 161 CLR at 298):

99 In contrast, here, s 19(1)(d) seeks to provide for reasonable time in which to prepare for the conduct of the proceedings. That involves considering whether there are ‘gaps in the evidence’ or the law. The parties to proceedings under s 19(1) must have such time as the Magistrate considers reasonable in which to investigate the arguments which the Act allows to be explored and ventilated for promoting or resisting the making of an order under s 19(9).

100 The function of the Magistrate under s 19(1)(d) is akin to the exercise of a power to ensure that the proceedings under s 19(1) are conducted with fairness to the person and the extradition country, the legitimate public interest in the extradition to other countries of persons who are eligible for surrender and the need to maintain public confidence in the administration of the law. Thus in Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378 at 392-395 Mason CJ, Deane and Dawson JJ held that the legal principle and decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the ground of abuse of process provide guidance in determining whether a superior court with jurisdiction to do so should stay administrative proceedings. Here, s 21 gives this Court and the Supreme Courts a power of review. But, first, before that review can be conducted, the Magistrate must consider whether, in effect, the person concerned has had a reasonable time in which to prepare to conduct the proceedings having regard to that person being on remand. If the person is on bail, what is a reasonable time may be quite different to one in which the person is on remand in custody in circumstances where, as with Mr Brock, he was given no access to facilities to properly investigate his defence.

101 To take an example removed from the present case, if Mr Brock had been kept in a dark room without access to light or facilities in which he could read the extradition papers served on him, for the whole period between his remand and the hearing of the proceedings under s 19(1), the Magistrate could not have had material upon which she could consider he had had reasonable time in which to prepare to conduct the proceedings. That is because the circumstances of his remand would have made that impossible. It is the Act which the source of the power to hold Mr Brock on remand. It must be an implication in the Act that the remand is to be of such a kind that there is utility in reasonable time being available to the person in which to prepare for the conduct of the proceedings under s 19(1). As Holt LCJ said in Ashby v White (1702) 2 Ld Rayd 938 at 953:

102 The purpose for which the remand under s 15 of the Act is authorized is to enable proceedings to be brought under s 19(1). Without an effective means, during the remand, to prepare to conduct the proceedings, there would be no point in the Parliament providing that the Magistrate should consider, before embarking on the conduct of those proceedings, whether the extradition country or the person concerned had had a reasonable time in which to prepare for the conduct of the proceedings. If, because of the circumstances or way in which a person was kept on remand in custody pursuant to s 15(2) of the Act, he or she could not prepare for the conduct of the proceedings under s 19(1) no matter how much time they had, he or she would be hindered in their ability to conduct those proceedings. The consequences of an order under s 19(9) are very serious for the person. It would be an abuse of the process of remand under s 15(2) to allow the remand to be used by the authorities having custody of the person in a way which prevented him or her exercising his or her right to legal representation, or if by choice or otherwise indigent, the person did not engage lawyers, to have the ordinary facilities of a prison library, available to other prisoners, made available to him or her.

103 Indeed, under the common law, a convicted prisoner, in spite of his or her imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1981] UKHL 8; [1983] 1 AC 1 at 10G-H per Lord Wilberforce. In general, a person remanded under s 15(2) is not a convicted prisoner in respect of the extradition offence. He or she is entitled to the presumption of innocence. The Act does not expressly or by necessary implication authorize circumstances of remand which do not permit the person to prepare for the conduct of the proceedings.

104 In the Queen v Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513 at 520, Gibbs CJ said that a body which was required to observe the rules of natural justice had to afford a person whose rights would be directly affected by an order which it made ‘a full and fair opportunity to be heard before the order is made’ (Brennan J at 155 CLR 527 and Dawson J at 532 agreed with Gibbs CJ). The purpose of giving a hearing was expanded on by Aickin J in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 515, where he said that a person affected would need a true opportunity to bring forward any material to the person or body making the order which he or she thought helpful to their case and to seek to disabuse the person with power to make the order of any misapprehensions which he or she thought to entertain. He recognised that the application of the principles of natural justice did not depend upon rigid rules and that the requirements of compliance with the principles would depend upon the particular circumstances.

105 In Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396, Dixon CJ and Webb J said that it was a deep rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi judicial proceeding he must be afforded an adequate opportunity of being heard. And, in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 Mason CJ, Deane and McHugh JJ said that it could now be taken as settled, that when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

106 The purpose of s 19(1)(d) is to require consideration of whether the person and the extradition country have had reasonable time in which to prepare for the conduct of the proceedings to be conducted by the Magistrate. In Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 221, Toohey J discussed the operation of a provision of the Crimes Act 1958 (Vic) which required that before any questioning of a person suspected of having committed an offence who was in custody for that offence, the investigating official had to inform the person that he or she could communicate with or attempt to communicate with a friend or relative as well as a legal practitioner. The investigating official had to defer the questioning for a time that was reasonable in the circumstances to enable the person to make or attempt to make the communication that is, to exercise the right to communicate. He said:

107 The presence of the word ‘reasonable’ in s 19(1)(d) imports an element of objectivity. The consideration is directed to the particular proceedings to be conducted, not extradition proceedings in general under s 19. In other words, the nature of the issues involved in the particular proceedings and the identity of the parties is relevant. An indigent unrepresented person on remand who spoke no English and was not afforded interpretation facilities would not have a reasonable time in which to prepare for a hearing where at least some of the documentation was not translated into a language in which the person was fluent. Such a person would never be able to prepare for the hearing, if there were no implication of a requirement to provide reasonable time for the documents to be understood by the person.

108 In George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 112 the High Court said that when a statute prescribed that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief, it required the existence of facts which were sufficient to induce that state of mind in a reasonable person. That, of course, is a different criterion to the one selected by s 19(1)(d). In Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327 at 345 [49]- [50], Allsop J said that the consideration or belief of the Magistrate must be one formed reasonably upon the material before him or her and that it was not sufficient for the Magistrate subjectively to consider that the appellant in that case had had a reasonable time to prepare for the hearing. He explained that a consideration or belief of the Magistrate would be ‘formed reasonably upon the material before the decision-maker’ if the Magistrate did not act dishonestly, capriciously or arbitrarily. He referred to what Starke J had said in Boucaut Bay Co Ltd (In Liq) v Commonwealth [1927] HCA 58; (1927) 40 CLR 98 at 101. Starke J explained that the Court would not interfere:

109 Allsop J held that there the Magistrate had made no real effort to ascertain whether the appellant had in fact received the material that another Magistrate had ordered to be served on him three months before the hearing and that there had been no investigation of the facts. In that circumstance his Honour, with whom Mansfield J agreed, concluded that the Magistrate’s view that s 19(1)(d) had been satisfied could only be described as arbitrary and capricious. And he said:

There was also, as his Honour found, an absence of procedural fairness (127 FCR at 345 [52]).

110 Because s 15(2) expressly provides that the purpose of the remand in custody of a person in Mr Brock’s position is to be for such period as may be necessary for proceedings under s 19 to be conducted and s 19(1)(d) requires the Magistrate to consider, in the circumstances of this case, that Mr Brock had reasonable time in which to prepare for the conduct of proceedings under s 19(1), it would seem to me to be impossible to divorce the conditions of his remand in custody from the ascertainment of whether he had reasonable time.

111 The primary judge took the view that her Honour’s reasons were to be read as expressing the finding that a considerable period of time had elapsed and that while she accepted that there were a number of factors which made it difficult for Mr Brock to prepare, he had had a reasonable time to do so ([14]). Because of the construction which I have reached for s 19(1)(d), I am of opinion that her Honour ignored the circumstances of Mr Brock’s confinement in considering the question under s 19(1)(d), and looked only at the elapse of time. But, given that her finding that Mr Brock had suffered extreme difficulty in obtaining access to law books and advice while being held in custody, which was amply justified on the material before her, she could not have considered that he had had reasonable time in which to prepare for the conduct of the proceedings while he was being held in remand for that very purpose. In Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436, Mason CJ, Brennan, Gaudron and McHugh JJ held that that the presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom and that to constitute such authorization express words are required. They approved what Gaudron and McHugh JJ had said in Plenty v Dillon (1991) 171 CLR at 654:

112 No doubt the executive, in maintaining a facility in which a person is kept on remand in custody pursuant to the authority granted by s 15(2) of the Act, may need to take account of the circumstances of the individual person in fashioning the conditions of the remand in custody. Thus, someone who was at risk of self-harm, may have to be placed in a particular kind of custody. But the authority given to the executive to hold such a person on remand cannot extend to denying that person fundamental rights such as reasonable access to material of a legal research nature which he or she could reasonably require to consider for the purposes of conducting proceedings under s 19(1).

113 The person who is remanded in custody under s 15(2) has only been accused of committing a crime and is being detained so that the request of the extradition country for his or her surrender for extradition can be considered. And, in such circumstances, the extradition country is seeking to put the person on trial for the offence.

114 To deny such a person the opportunities of every other member of the community who is free to have access to such legal research materials simply because the Act requires the person to be remanded in custody, would be to deny the person basic rights. Not only does the Act not authorize that to happen, it expressly contemplates that the person will be remanded in custody so that the proceedings for his or her surrender for extradition under s 19(1) can be conducted in circumstances where the Magistrate considers he or she has reasonable time to prepare for the conduct of such proceedings. It is not to be supposed that the Parliament engaged in a solemn farce of requiring such persons to be kept on remand in custody, be given time to prepare, but not be allowed to have reasonable access to the materials for preparation.

115 By failing to consider the circumstances of the remand, her Honour failed to address a relevant consideration under s 19(1)(d). The proceedings under s 19(1) before her Honour then lacked any lawful authority. Even if the Court is unable to determine this question on a review under s 21 of the Act, s 22 of the Federal Court of Australia Act 1976 (Cth) requires that the Court grant either absolutely, or on such terms and conditions as it thinks just, all remedies to which any of the parties appear to be entitled. The proceedings before her Honour were no proceedings at all and a declaration to that effect should be made. By reason of the jurisdictional error which she committed, the warrant under s 19(9) of the Act should be set aside on the ground that it was not issued under the Act, because the jurisdictional basis for proceedings under s 19(1) had never been established. It follows that Mr Brock should remain in custody pending the hearing and determination of the proceedings under s 19(1).

116 Mr Brock argued that s 19(2)(c) should be construed so as to prohibit his surrender because the two offences for which his surrender is sought operate, under the law of the United States, to permit him to be convicted of both offences although they arise from the same conduct.

117 The Magistrate had to be satisfied under s 19(2)(c) that if the conduct of Mr Brock constituting the offences in relation to the extradition country, or equivalent conduct, had taken place in New South Wales, and at the time at which the extradition request in relation to him was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to New South Wales. Mr Brock argued that the affidavit in support of the extradition prepared by an Assistant United States Attorney identified the conspiracy charge as a lesser included offence of every continuing enterprise charge. Because the affidavit explained that Mr Brock could be convicted of both charges, notwithstanding that one was a lesser included offence, Mr Brock said that he had been exposed to double jeopardy. Under Australian law he argued that he could have entered a plea in bar to the conspiracy count once he had been convicted of the more serious count (Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 228 ALR 1 at 12 [40] per Gummow and Hayne JJ and 17-18 [60]-[62]).

118 The enquiry under s 19(2)(c) is not concerned with the procedural or substantive laws of the United States. Rather, it is directed to an evaluation of the conduct of the person which constitutes the offence in the extradition country being compared with whether that conduct would have constituted an offence in the part of Australia where the Magistrate is sitting. Once the Magistrate is satisfied that the conduct would have constituted an offence in both places (under the law of the country seeking extradition and in the local jurisdiction) the task imposed by s 19(2)(c) has been fulfilled. It was not suggested that the conduct, the subject of each of the two offences for which Mr Brock’s extradition has been sought, was not, in respect of each count, conduct of a kind which had it taken place in New South Wales would have constituted an extradition offence. That could hardly be doubted given the significant quantities of marijuana involved in the charges and the protracted period over which it is alleged that the criminal enterprise was conducted.

119 The conduct relied on must be set out in a supporting document described in s 19(3)(c)(ii). In Hermanowski v United States of America [2006] FCAFC 8; (2006) 149 FCR 93 at 112-113 [50] Gyles, Conti and Graham JJ approved the approach endorsed by Whitlam, Finn and Conti JJ in Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 at 192-193 [50]- [55]. In the latter case their Honours went on to approve what Finn and Dowsett JJ had said in Dutton v O’Shane [2003] FCAFC 195; (2003) 132 FCR 352 at 366 [58]:

120 Here, the conduct in each extradition offence alleged would have constituted an extradition offence in relation to New South Wales. The section is not directed to a conviction for an offence. Instead it focuses on whether the conduct as alleged would amount to an offence in the forum. All that the definition of extradition offence requires is that in relation to a country other than Australia, relevantly, the offence is against a law of the country for which the maximum penalty is imprisonment for not less than 12 months and, that in the Australian forum, the offence is against a law for which the maximum penalty is imprisonment for not less than 12 months. Eligibility of the person to be convicted of every offence charged is not to the point. Rather s 19(2)(c) looks at whether the charge is made under a law in each jurisdiction which, if proved, provides the sentencing court with power to impose a particular level of penalty. Once those criteria are found to have been met the function under s 19(2)(c) is exhausted.

121 The principle of dual criminality in extradition law provides a safety mechanism to prevent person being surrendered to be tried and punished for conduct which according to the standards of the requested State is either not an offence or is one which attracts a custodial penalty of less than 12 months. This was explained by Deane J in Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 at 18-19, under the earlier legislation in terms which were approved by Black CJ, Gummow and Lindgren JJ in Todhunter v United States of America (1995) 57 FCR 70 at 90D in relation to the operation of the Act.

122 Australian Courts and Magistrates are not equipped to determine the validity of the charges the subject of the domestic law of the requesting State. Questions as to whether the charges are duplicitous, for example, under the law of the requesting State were said by Tamberlin J in Rahardja v Republic of Indonesia [2000] FCA 639 at [58] to be a matter for the law of the requesting State and not one for the Australian Courts (His Honour’s decision was affirmed on appeal in Rahardja v Republic of Indonesia [2000] FCA 1297).

123 The evidence showed that Mr Brock could not be sentenced for both offences if he were convicted of them. Sentencing would be for only one of the offences. There is nothing in the Act to which the Court was referred which suggests that it is the concern of the Magistrate or Australian Courts to enquire as to the procedures of the requesting country’s courts in the event of conviction in circumstances such as the present. This ground therefore fails.

124 I echo the appreciation of the Chief Justice and Jacobson J for the willingness to assist and the assistance of counsel appearing pro bono for Mr Brock. The assistance of legal practitioners who are willing to appear in matters without fee is an important feature of membership of a honourable profession. It enhances the proper administration of justice.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Counsel for the Appellant:	D Ash

Counsel for the Respondent:	P E McDonald

Solicitor for the Respondent:	The Commonwealth Director of Public Prosecutions

Date of Hearing:	10 November 2006

Date of Judgment:	19 January 2007

Federal Court of Australia - Full Court Decisions

Brock v United States of America [2007] FCAFC 3 (19 January 2007)