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Federal Court of Australia - Full Court Decisions |
Last Updated: 2 April 2007
FEDERAL COURT OF AUSTRALIA
Williams v Minister for Justice and Customs of the Commonwealth of Australia [2007] FCAFC 33
EXTRADITION – Notice of Receipt of Extradition Request
– invalidity – Minister’s opinion must be based on mandatory
statutory
requirements – requirement for personal knowledge of acts or
omissions.
ADMINISTRATIVE LAW – Grounds for judicial review
– jurisdictional error – Wednesbury unreasonableness.
WORDS AND PHRASES – ‘conduct’ –
‘acts or omissions’
Acts Interpretation Act
1901 (Cth) s 19A
Extradition (United States of America)
Regulations reg 3, 4
Extradition Act 1988 (Cth) s 5, 10, 16,
19
Income Tax Assessment Act 1936 (Cth) Part IVA
Judiciary
Act 1903 (Cth) s 39B
Williams v Minister for Justice and
Customs [2006] FCA 1782 – reversed
Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 –
considered
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26;
(1949) 78 CLR 353 – considered
Buck v Bavone [1976] HCA 24;
(1976) 135 CLR 110 – considered
De Bruyn v South Africa [1999] FCA 1344; (1999)
96 FCR 290 – applied
Foster v Attorney-General (Cth)
(1997) 97 A Crim R 560 – overruled
Griffiths
v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 –
applied
Harris v Attorney-General of the Commonwealth (1994) 52
FCR 386 – considered
Minister for Aboriginal Affairs v
Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 – applied
Minister
for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
– applied
Minister for Immigration and Multicultural Affairs v
Eshetu [1999] HCA 21; (1999) 197 CLR 611 – considered
Re Minister for
Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003)
198 ALR 59 – considered
Truong v The Queen [2004] HCA 10; (2004) 223
CLR 122 – applied
Vasiljkovic v The Commonwealth of Australia [2006] HCA 40;
(2006) 228 ALR 447 – considered
Zoeller v Federal Republic
of Germany & Others (1989) 23 FCR 282 –
applied
LARRY RICHARD WILLIAMS v MINISTER FOR
JUSTICE AND CUSTOMS OF THE COMMONWEALTH OF AUSTRALIA AND ATTORNEY-GENERAL FOR
THE COMMONWEALTH
OF AUSTRALIA
NSD 65 OF 2007
GYLES,
ALLSOP AND BUCHANAN JJ
22 MARCH 2007
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal is allowed.
2. The order of 20 December 2006 is set aside and in lieu thereof it is declared that the Notice of Receipt of Extradition dated 17 July 2006 purported to be issued under subs 16(1) of the Extradition Act 1988 (Cth) by the Minister for Justice and Customs is invalid and is set aside.
3. Liberty is granted to the appellant to apply for any further or other relief that may be necessary to give effect to this judgment.
4. The respondents are to pay the appellant’s costs of the appeal and of the proceeding below.
Note: Settlement and entry of orders
is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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LARRY RICHARD WILLIAMS
Appellant |
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AND:
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MINISTER FOR JUSTICE AND CUSTOMS OF THE COMMONWEALTH OF
AUSTRALIA
First Respondent ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent |
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JUDGES:
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GYLES, ALLSOP AND BUCHANAN JJ
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DATE:
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22 MARCH 2007
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
THE COURT:
1 The Extradition Act 1988 (Cth) (the Extradition Act) establishes a mechanism which, by a staged process, permits the surrender of a person in Australia to a foreign government. (See Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 228 ALR 447.)
2 The appellant, Mr Williams, is a citizen of the United States of America. By reg 3 of the Extradition (United States of America) Regulations (the Regulations) made under the Extradition Act the United States of America is declared to be an extradition country. Extradition arrangements between Australia and the United States of America are governed by a Treaty on Extradition (the Treaty) between Australia and the United States of America. By reg 4 of the Regulations the Extradition Act applies in relation to the United States of America, subject to the Treaty as amended by a Protocol agreed at Seoul 4 September 1990 (the Protocol).
3 In accordance with the Treaty, as amended by the Protocol, a request for extradition shall be made ‘through the diplomatic channel’ and shall be supported by a number of matters including:
‘(b) a description of the conduct constituting the offence; and
(c) a statement of the law describing the essential elements of the offence for which extradition is requested.’
4 Provision is also made for a request for provisional arrest of a person sought to be extradited, with a proviso that a person provisionally arrested may be discharged 60 days from the date of arrest if the formal request for extradition and supporting documents have not by then been received. The next steps in an extradition, according to the legislative scheme in the Extradition Act, involve the issue to a magistrate, by the Attorney-General or the responsible Minister (see Acts Interpretation Act 1901 (Cth) s 19A), of a Notice of Receipt of Extradition Request, followed by a determination by a magistrate of eligibility for surrender and a decision by the executive government that a person is to be surrendered.
5 Mr Williams was provisionally arrested at the request of the government of the United States of America on 20 May 2006. It appears that he has been released on bail subject to recognizances, the details of which are not before us. A formal request for his extradition was made 54 days after his arrest. A Notice of Receipt of Extradition Request was issued by the first respondent (the Minister) on the 58th day after the appellant’s provisional arrest, four days after receipt of a formal request for his extradition.
6 An application was made under s 39B of the Judiciary Act 1903 (Cth) to review the decision of the Minister to give the Notice. The application was dismissed by a Judge of the Court on 20 December 2006 (Williams v Minister for Justice and Customs [2006] FCA 1782). This appeal challenges her Honour’s judgment and orders.
7 The discretion to issue a Notice of Receipt of Extradition Request is governed by s 16 of the Extradition Act. Relevantly it provides:
‘(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) The Attorney-General shall not give the notice:
(a) unless the Attorney-General is of the opinion:
(i) that the person is an extraditable person in relation to the extradition country; and
(ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia;...’
8 As earlier mentioned, the functions of the Attorney-General may be performed by the responsible Minister, as occurred in this case. ‘Extradition offence’ is defined by s 5 of the Extradition Act. For present purposes it is sufficient to indicate that it includes an offence against a law for which the maximum penalty is imprisonment for not less than 12 months.
9 It will be noted that s 16(2)(a)(ii) refers to an opinion about ‘the conduct of the person constituting the extradition offence’. An interpretative provision is contained in s 10(2) of the Extradition Act in the following terms:
‘(2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.’
10 The present appeal turns ultimately on the question whether the Minister was required to have knowledge of the acts or omissions alleged by the United States government against Mr Williams or whether it was sufficient to have knowledge of the nature of the offences alleged to have been committed in the United States of America and offences under relevant Australian law with apparently comparable legal elements.
11 In forming his opinion for the purpose of issuing the Notice of Receipt of Extradition Request in this case, the Minister relied on advice and analysis from departmental officers and from the office of Commonwealth Director of Public Prosecutions (the DPP). The material before the Minister comprised nine pages made up of a recommendation (three pages and some lines), a draft notice of extradition request and a four page analysis of the statutory preconditions for a valid notice. The analysis of the requirements of s 16(2)(a)(ii) was as follows:
‘Subparagraph 16(2)(a)(ii) – you must be of the opinion that if the alleged criminal conduct had taken place in Australia at the time the extradition request was received, the relevant conduct would have constituted an extradition offence in relation to Australia
5. The Office of Commonwealth Director of Public Prosecutions has advised that if Mr Williams had committed the conduct comprising the United States criminal offences in New South Wales at the time the request for his extradition was received, he would have committed the following offences against Commonwealth law:
(i) In relation to the offence wilful attempt to evade federal income tax for tax year 1999 – general dishonesty, contrary to subsection 135.1(3) of the Criminal Code (Cth) (Criminal Code) which attracts a maximum penalty of five years imprisonment. The conduct may also constitute an offence of general dishonesty contrary to subsection 135.1(1) of the Criminal Code, which attracts a maximum penalty of five years imprisonment.
(ii) In relation to the offence wilful attempt to evade federal income tax for tax year 2000 – general dishonesty, contrary to subsection 135.1(3) of the Criminal Code, which attracts a maximum penalty of five years imprisonment. The conduct may also constitute an offence of general dishonesty contrary to subsection 135.1(1) of the Criminal Code, which attracts a maximum penalty of five years imprisonment, and
(iii) In relation to the offence wilful attempt to evade federal income tax for tax year 2001 – general dishonesty, contrary to subsection 135.1(3) of the Criminal Code, which attracts a maximum penalty of five years imprisonment. The conduct may also constitute an offence of general dishonesty contrary to subsection 135.1(1) of the Criminal Code, which attracts a maximum penalty of five years imprisonment.
6. You may therefore be of the opinion that if Mr Williams committed the conduct comprising each of the United States offences in Sydney at the time the extradition request was received, each of the offences for which the United States has requested his extradition would have constituted an extradition offence in relation to Australia.
(emphasis added)
12 No statement of Mr Williams’ alleged acts or omissions (that is the conduct) was provided to the Minister.
13 We were invited to infer that the relevant officers of the DPP had knowledge of the acts or omissions charged because of the requirement in the Treaty that a request for extradition be supported by a description of the conduct constituting the offence. However all that is revealed in the analysis of s 16(2)(a)(ii) set out above is that the comparison of offences in the USA and Australia proceeded by reference to whether ‘Mr Williams had committed the conduct comprising the United States criminal offences’. This formulation does not go far enough to sustain the inference suggested. It would be to substitute conjecture for inference to find that the documents required to be provided under the Treaty ‘through the diplomatic channel’ had been put before officers of the DPP. There is no basis disclosed, furthermore, to suppose they were before the officer who made the recommendation to the Minister that he sign the Notice.
14 Notwithstanding these conclusions, for the purpose of disposing of this appeal we can make an assumption that the DPP, officers of the DPP, or officers in the Minister’s department knew of the conduct. It was accepted on appeal that the Minister, for his part, had no knowledge beyond the matters revealed by the text of the nine pages of recommendations and analysis, and thus that the Minister was not personally aware of the conduct.
15 The essence of the appellant’s case before the primary judge (although there were some variations on the main theme) was that a valid opinion under s 16 could not be formed unless the Minister had some knowledge of the conduct alleged as a matter of fact, rather than simply as a statement of the offences charged.
16 Her Honour rejected this premise. Her Honour applied the reasoning of Cooper J in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 (Foster) where his Honour rejected a similar argument that under s 16(2)(a)(ii) of the Extradition Act a minister must have knowledge of the conduct alleged saying:
‘Because the only documents which were submitted for the respondent's consideration were the departmental minute of 27 May 1997 and its attachments, the respondent, it was submitted, did not consider the conduct constituting the extradition offence. This followed, it was submitted, because there was no description of the applicant's alleged conduct constituting the extradition offence in the documents provided to the respondent. It was submitted that being so uninformed, the respondent could not properly form the opinion required by s 16(2)(a)(ii) of the Act.
Section 16(2)(a)(ii) only requires that the Attorney-General hold the relevant opinion. The notice issued by the respondent under s 16 of the Act and signed by him expressly states that he held the requisite opinion. In order to avoid the consequence of the respondent in fact holding the opinion, the applicant must demonstrate that no person in the position of the respondent on 27 May 1997, having the material which was available to the respondent, could reasonably have held the opinion. That is, the applicant must show that the opinion was perverse: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 228.’
17 This approach accepts that the Minister’s opinion is protected from challenge unless apparently perverse even though there was no information before him about the facts and omissions said to constitute the relevant conduct.
18 The issues raised for the primary judge’s consideration were relevantly indistinguishable from the legal issue in Foster which was addressed by Cooper J in the passages quoted above. It was to be expected therefore that her Honour would, as a matter of judicial comity, apply the same analysis to the issues before her. However, on this appeal counsel for Mr Williams have put Cooper J’s analysis directly in issue and submitted it was wrong and should not be followed. We must, therefore, determine the point for ourselves.
19 We have concluded that there is force in the submission put for Mr Williams and that Cooper J’s analysis proceeds upon an erroneous approach to the construction of s 16(2)(a)(ii) of the Extradition Act. In particular, it was incorrect to introduce notions of ‘Wednesbury unreasonableness’ into an examination of that issue.
20 Before explaining why that is so, it is necessary to deal with another matter, which will serve as an introduction to a short discussion of the role of any assessment of reasonableness (‘Wednesbury unreasonableness’ in particular) in judicial review of administrative decisions.
21 Counsel for the respondents referred to passages in the judgments of each of Gibbs CJ and Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (Peko) in support of his submission that the work of executive government, and the decision-making processes entailed therein, require that Ministers be able to rely for advice, and summaries of issues and material, upon the staff of their departments. So much, in a general way, may obviously be accepted. Further, it would be legitimate for the Minister to have recourse to the DPP for advice in forming an opinion about the effect of the criminal law. If the Minister were entitled to form an opinion about the conduct of Mr Williams without knowing what that conduct was (other than what could be gleaned from the terms of the alleged offence), the reliance by him upon the opinion of the DPP could hardly be said to be unreasonable. However, when a decision is required by statute to be made personally by a Minister and the matters to be taken into account are directed by the statute itself, the statutory command, properly construed, may prevent reliance upon advice, recommendations or analysis which are not accompanied by sufficient disclosure of the factual matters upon which the decision of the Minister is to be based.
22 When the passages relied upon from Peko are seen in full context, and against other passages, they do not support the respondents’ argument but, rather, are against them.
23 In Peko, Gibbs CJ said (162 CLR at 30) in the passage relied on by the respondents:
‘Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department.’
(emphasis added)
24 Reliance on a summary is clearly not inconsistent with a requirement for personal knowledge but, where attention to the facts is a necessary element in the performance of a Minister’s administrative decision-making role, the necessary facts must be sufficiently disclosed. Gibbs CJ went on, immediately after the passage relied upon by counsel, to say (162 CLR at 30-31):
‘No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.’
(emphasis added)
25 The judgment of Gibbs CJ does not support any proposition that the Minister may be left in ignorance of relevant facts or may simply rely on the advice or recommendations of others where relevant facts are not revealed.
26 Reliance was placed upon the following observations of Brennan J in Peko (162 CLR at 65-66) as follows:
‘The Department does not have to draw the Minister’s attention to every communication it received and to every fact its officers know. Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister’s appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister’s decision depends upon his having had regard to the salient facts, his ignorance of the fact does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.’
(emphasis added)
This passage does not support the respondents’ argument, but is against it.
27 Moreover, the most influential statement in Peko is contained in the judgment of Mason J (with whose reasons both Gibbs CJ and Dawson J agreed).
28 Mason J identified the issues in the case as follows (162 CLR at 37):
‘Two questions now arise in the proceedings before this Court. The first is whether the Minister was bound, in making his decision pursuant to s. 11, to have regard to the respondent’s submissions, so that his failure to do so amounted to a failure to take into account a consideration relevant to the exercise of the power. The second question, which only arises if the first is answered in the affirmative, is whether relief should have been refused on discretionary grounds.’
29 He then identified an argument before the Court in that case which raises an issue relevant to the present appeal. He said (162 CLR also at 37):
‘During argument, counsel for the Minister sought to raise an additional point, the effect of which was to deny that the Minister had failed to take into account the respondent’s submissions. It was argued that where submissions are made to a Minister and summarized by his departmental officers in a way that omits certain details, and the Minister then makes a decision on the basis of that summary, it cannot be said that the Minister has failed to take those omitted details into account. He is entitled to delegate to his staff the function of deciding what weight, if any, should be given to a particular fact, and in the present case there was no evidence that the departmental officers had failed to consider those facts.’
30 The argument was rejected upon the basis that the importance of the Minister’s function, and the central place it occupied in the statutory scheme, compelled the conclusion that ‘the Minister’s function under s 11 is to be exercised by him personally unless he delegates it under s 76’ (162 CLR at 37-39).
31 We are not concerned in the present appeal with any possibility of formal delegation of the opinion required under s 16 of the Extradition Act. There is no doubt, in the present case, that the Minister was bound to decide the matter himself. The question for decision is whether he was required to be told of the acts and omissions (the conduct) said to constitute the offences alleged, or to be imputed, against Mr Williams.
32 The principles on which a court might intervene to review an administrative decision made by a Minister of the Crown were discussed in detail by Mason J in Peko. Omitting most citations the principles may be distilled as follows (162 CLR at 39-42):
‘(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.
(e) The principles stated above apply to an administrative decision made by a Minister of the Crown.’
(emphasis and citation in original)
33 The context in which reference to Wednesbury Corporation is made in (d) above should be noted. Discussion by Mason J of the application of the ‘Wednesbury unreasonableness’ test concerned questions about the weight given to a relevant factor by an administrative decision-maker, not the issues which arise when deciding whether a factor is, or is not, mandatory. Mason J said, as to this aspect of possible judicial review (162 CLR at 41):
‘It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.’
(citations omitted)
34 The distinction between failing to take into account relevant considerations, (or taking into account irrelevant considerations) on the one hand, and a mistaken attribution of weight to a relevant factor (other than weight that is indicated by the statute), on the other, is an important one. It points to the need to distinguish between a failure to carry out the statutory task and its erroneous discharge, albeit by response to relevant considerations, in a ‘manifestly unreasonable’ way.
35 The distinction is one recognised in the Wednesbury Corporation case itself. Lord Greene MR concluded his judgment with the following summary of the principle upon which his judgment rested ([1948] 1 KB 223 at 233-234):
‘In the result, this appeal must be dismissed. I do not wish to repeat myself but I will summarise once again the principle applicable. The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere. The power of the Court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs.’
(emphasis added)
36 In Australia, at about the same time as Wednesbury Corporation was decided, the legal bases for review of an administrative decision were stated by Dixon J, (a short time after, but without reference to, Wednesbury Corporation) in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (Avon Downs) at 360:
‘But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.’
This passage remains a valuable statement of relevant principle (see, for example, Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [8]).
37 The legal principle stated by Dixon J is not out of harmony with Wednesbury Corporation. Lord Greene plainly did not intend to state a new category of, or basis for, judicial review or to suggest that it subsumed other matters for separate, and preliminary, consideration. On the contrary, it is clear that he regarded his approach to the case, and the legal principles, as entirely conventional.
38 In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Gummow J said of Wednesbury Corporation at [123]:
‘The case concerned the exercise of the power of an authority to impose conditions, not, for example, any anterior question as to the jurisdictional fact that the authority have power in the area to grant licences under the 1909 statute. In Attorney-General (NSW) v Quin [(1990) [1990] HCA 21; 170 CLR 1 at 36-37], Brennan J identified the duty and jurisdiction of the court to review administrative action by reference to the declaration and enforcement of the law which (i) determines the limits of the power in question and (ii) governs its exercise. Wednesbury is concerned with the second, namely with abuse of power.’
(emphasis added)
39 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-276 (Wu Shan Liang) the High Court drew attention to the altered examinability (from early last century) of decisions of administrative decision-makers under the common law. It cited with approval the following statement by Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 (at 118-119) as an accurate statement of the general law position:
‘It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.’
(emphasis added)
40 The principles according to which intervention is permissible, as discussed in the cases we have mentioned have at least two aspects. The first involves an examination of whether the decision-maker has (or has not) taken relevant (and only relevant) matters into account. Assuming that examination vindicates the use of the material upon which the decision was based there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process.
41 It is not necessary for us to explore in this case the limits of the review available with respect to the second limb. However, it is clear that authority does not require that it be used in any examination of the first aspect. The question which arises as to the first aspect is not whether reference to particular material was reasonable (whatever standard of reasonableness is posited) but rather whether the material was required to be (or alternatively not to be) taken into account.
42 In Foster (97 A Crim R 560), Cooper J thought the ‘Wednesbury unreasonableness’ test should be applied to the question of whether it was proper for the Minister to form an opinion in the absence of knowledge about the factual circumstances of the offences alleged in that case. This implies that a judgement is required about whether it is reasonable to proceed without that knowledge. With respect to the contrary view expressed by Cooper J in Foster (97 A Crim R 560), it is not in accordance with settled law to conclude that a ministerial decision under the Extradition Act will be protected from review unless ‘perverse’. Such a conclusion passes by the first, and generally most important, consideration: namely, whether the statutory conditions for the exercise of power have been satisfied. Until that question is answered any examination of reasonableness is unnecessary and likely to be distracting.
43 There is no escape from the conclusion that the holding of the opinion provided for by s 16(2)(a)(ii) of the Extradition Act is a mandatory statutory requirement for validity of a Notice of Receipt of Extradition Request. The question in the present case is not whether it was reasonable to form the requisite opinion but whether it was possible, in conformity with the statute, to do so.
44 The answer is dictated by the words of s 16(2)(a)(ii) and the interpretative provision in s 10(2). Those provisions require an opinion by the Attorney-General (or responsible Minister) about the character and criminality of alleged conduct. Although the Attorney-General (or responsible Minister) may rely on advice, we are unable to accept that identification of offences in the United States of America and in Australia merely by name – or even by identification of their legal elements if that is to be implied – is a sufficient description of the ‘conduct of a person’ or of ‘the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed’.
45 There is no basis for distinguishing the construction of s 16(2)(a)(ii) from s 19(2)(c). In particular, there is no basis for construing ‘the conduct of the person’ any differently. Those words in s 16(2)(a)(ii) and s 19(2)(c) are to be read in accordance with s 10(2). Section 10(3) expressly applies to both s 16(2)(a)(ii) and s 19(2)(c). In connection with s 19(2)(c), it is well established that a bare description or definition of the offence will not suffice. The statement of the conduct must be such as to permit the magistrate to form the requisite opinion. (See Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 at [50]–[55]). As was said by Gleeson CJ, McHugh and Heydon JJ in Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 at [29]:
‘The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other’
What is required is ‘a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is brought’ (Zoeller v Federal Republic of Germany & Others (1989) 23 FCR 282 at 297 and see also De Bruyn v South Africa [1999] FCA 1344; (1999) 96 FCR 290 at [11] and [30]-[37]).
46 An harmonious construction of s 16 and s 19 in requiring both the Attorney-General (or responsible Minister) and the magistrate to have before them the conduct said to constitute the offence, appropriately disclosed, so that each may discharge his or her obligations is to be preferred to one which sees the magistrate required to understand the conduct upon which the requesting country is basing the claim for extradition, but not the Attorney-General (or responsible Minister).
47 There is nothing technical or pedantic about this. The Attorney-General’s (or responsible Minister’s) role in s 16 is an important stage at the commencement of a process which may see a person involuntarily removed from Australia to face criminal proceedings. Oftentimes the person will be incarcerated in Australia during the life of the process. The Attorney-General (or responsible Minister) is called on by s 16(2)(a)(ii) to come to an opinion about the acts or omissions by virtue of which the offence is alleged to have been committed, if they had occurred in Australia. Given the importance the Extradition Act places on the difference between such conduct and the offence itself, and the clear requirement for the opinion of the Attorney-General (or responsible Minister) to be that of himself or herself, s 16 should be understood as requiring the Attorney-General (or responsible Minister) to know what the conduct is said to be before forming the opinion called for by s 16(2)(a)(ii). If this were not required then (as here) it would be sufficient for the Attorney-General (or responsible Minister) to say: whatever might be the conduct, of which I am unaware, if my advisers say s 16(2)(a)(ii) is satisfied, I will rely on that. That is not the formation of a relevant opinion about the conduct, because the conduct is not known.
48 Also, it should be recognised that to conclude that one knows enough about the conduct from the terms of the charge in order to form the opinion called for by s 16(2)(a)(ii) will require assumptions to be made about the foreign legal system. Such assumptions do not form part of the process in the Extradition Act. In some cases such assumptions would be unwarranted. For instance, the charge of "murder" may seem straightforward; but it is not difficult to think of acts or omissions (that is, conduct) which one polity may brand as such unlawful killing, which another polity may not so characterise. The treatment of abortion or infanticide by different societies are easy examples. Dealing with the asserted offence here, (wilful evasion of income tax) one would need to understand the acts and omissions to form an opinion for the purposes of s 16(2)(a)(ii). For instance, the deliberate (wilful) undertaking of acts, which (without intent to defraud) may constitute a scheme under provisions the equivalent of Part IVA of the Income Tax Assessment Act 1936 (Cth), might be a crime elsewhere, which could conceivably be described by the terms of the offence identified here, but it is doubtful that it would be a crime in Australia. These examples are not intended to be definitive statements of Australian or other law. They are only made to highlight the importance of understanding the conduct (the acts or omissions) before one can form an opinion for s 16(2)(a)(ii).
49 Neither the Attorney-General (or the responsible Minister), nor an Australian magistrate is taken to be expert in foreign law. Rather, he or she can be expected to form a view about whether identified acts or omissions (or equivalent conduct) would have constituted an extradition offence in relation to Australia. In the present case, the material before the Minister did not even include a statement of the elements of the United States offences. There is no basis upon which a presumption of regularity could fill the gap in the information before the Minister. The recommending officer could not further delegate the receipt of that necessary information.
50 The opinion which must be held by the Attorney-General (or the responsible Minister) under s 16(2)(a)(ii) must relate to, and be based on, actual conduct said to constitute, in a factual sense, the commission of an identified offence. In the present case there was no information before the Minister to furnish that knowledge. Accordingly, the Minister was not in a position to form an opinion about Mr Williams conduct, whether in reliance on advice or personally, so as to conclude that the requirements of s 16(2)(a)(ii) were met. As a result, the opinion was not validly formed.
51 The appeal is allowed. The order of 20 December 2006 is set aside and in lieu thereof it is declared that the Notice of Receipt of Extradition dated 17 July 2006 purported to be issued under subs 16(1) of the Extradition Act 1988 (Cth) by the Minister for Justice and Customs is invalid and is set aside.
52 The appellant also seeks the following further relief:
• A declaration that s 19 of the Extradition Act 1988 (Cth)
(i) did not authorise the commencement of proceedings in Parramatta Local Court as case number H26744910; and
(ii) does not authorise the continuation of proceedings in Central Local Court at Sydney as case number 00051684/06/8, to determine whether Larry Richard Williams is eligible for surrender to the United States of America.
• An order requiring the Attorney General, pursuant to s 17 of the Extradition Act 1988 (Cth) or otherwise, to direct the relevant magistrate of the Central Local Court at Sydney or such other magistrate as may be appropriate) to order the discharge of the recognizances on which bail was granted to the Applicant.
53 The declaration sought is unnecessary. The absence of a valid notice under s 16(1) is obviously fatal to the proceedings before the magistrate. The discharge of recognizances would also necessarily follow. It would be unusual to make an order directed to the Attorney-General such as that sought. It can be expected that the Attorney-General will abide by the law. It will be sufficient if liberty is granted to the appellant to apply for any further or other relief that may be necessary to give effect to this judgment.
54 The respondents are to pay the appellant’s costs of the appeal and
of the proceeding below.
Associate:
Dated: 22
March 2007
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Solicitor for the First and Second Respondents:
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/33.html