Minister for Home Affairs v Tervonen [2008] FCAFC 24 (6 March 2008)

EXTRADITION – notice of receipt of extradition request – subsequent amended notice – primary judge held both notices invalid – primary judge erred in holding the Minister issuing the second notice failed to consider the matter afresh – information before the Minister included a sufficient statement of the respondent’s conduct – terms of notice severable

Acts Interpretation Act 1901 (Cth) s 46(2)
Extradition Act 1988 (Cth) ss 16, 19

Coco v The Queen (1994) 179 CLR 427 distinguished
De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 referred to
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 referred to
Dutton v Republic of South Africa [1999] FCA 498; (1999) 162 ALR 625 referred to
Foster v Attorney-General (Cth) (1997) 97 A Crim R 560 referred to
Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 referred to
Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; (2007) 160 FCR 465 referred to
Harris v Attorney-General (Cth) (1994) 52 FCR 386 referred to
Heslehurst v Government of New Zealand [2002] FCA 429; (2002) 117 FCR 104 referred to
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 referred to
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 applied
Rahardja v Republic of Indonesia [2000] FCA 1297 referred to
The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22; (1953) 88 CLR 100 referred to
Telstra Corporation Limited v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905 cited
Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 applied
Williams v Minister for Justice and Customs [2007] FCAFC 33; (2007) 157 FCR 286 discussed
Vasiljkovic v The Commonwealth [2006] HCA 40; (2006) 227 CLR 614 referred to
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 cited
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 referred to

MINISTER FOR HOME AFFAIRS v JAN TERVONEN
NSD 2227 OF 2007

JACOBSON, BENNETT & BUCHANAN JJ
6 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2227 of 2007

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

BETWEEN:	MINISTER FOR HOME AFFAIRS Appellant
AND:	JAN TERVONEN Respondent

JUDGES:	JACOBSON, BENNETT & BUCHANAN JJ
DATE OF ORDER:	6 MARCH 2008
WHERE MADE:	SYDNEY

3. It be declared that the document dated 30 April 2007 signed by Senator Johnston is not a valid notice under s 16(1) of the Extradition Act 1988 with respect to the offences listed in [24] – [50], [55], [57] and [58].

4. Entry of Orders 1-3 be delayed for 72 hours from the Court’s publication of its reasons.

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 2227 of 2007

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

BETWEEN:	MINISTER FOR HOME AFFAIRS Appellant
AND:	JAN TERVONEN Respondent

JUDGES:	JACOBSON, BENNETT & BUCHANAN JJ
DATE:	6 MARCH
PLACE:	SYDNEY

1 The appellant raises 17 grounds of appeal against orders made by a judge of the Court on 8 November 2007 quashing two notices under s 16(1) of the Extradition Act 1988 (Cth) in respect of an extradition request received from Finland in relation to Mr Jan Tervonen: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684.

2 The first notice was issued prior to the decision of a Full Court in Williams v Minister for Justice and Customs [2007] FCAFC 33; (2007) 157 FCR 286. The second notice, described as an Amended Notice of Receipt of Extradition Request, was issued after the decision in Williams was handed down.

3 Notwithstanding the apparent scope of the appeal, in our view, the matter can be disposed of without addressing all of the grounds. This is because the appeal turns on the validity of the second notice and the question of whether the primary judge erred in finding that the opinion of the responsible Minister was not validly formed in accordance with the principles stated in Williams.

4 We will refer to the second notice as "the Amended Notice". It is evident from the material that was before the responsible Minister when the Amended Notice was issued, that its purpose was at least in part, to overcome perceived deficiencies in the first notice arising from the decision in Williams.

5 The Full Court in Williams decided that the opinion which must be held by the responsible Minister under s 16(2)(a)(ii) of the Act must be based on actual conduct said to constitute in a factual sense the commission of an identified offence. But what must be borne in mind is that, as the Court observed at [12], no statement of Mr Williams’ conduct was placed before the Minister.

6 Although the primary judge found that the Amended Notice was affected by the same considerations as those which invalidated the opinion of the Minister in Williams, there was material in the present case, on which counsel for the Minister relied, to satisfy the requirement that there be a description of the relevant conduct.

7 There are two essential issues on the appeal. The first issue is whether the primary judge was in error in finding that Senator Johnston, who issued the Amended Notice, did not consider the whole of the material "afresh". This finding was critical to his Honour’s reasons because he found that the first notice was wholly invalid and the amended version of it was infected by the invalidity of the first notice.

8 The second issue is whether there was information before Senator Johnston which satisfied the requirement that was absent in Williams, namely a description of the conduct said to constitute, in a factual sense, the commission of an identified offence.

9 As a Full Court observed in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389, the Act contemplates four stages in extradition proceedings, namely (1) commencement;
(2) remand; (3) determination by a Magistrate of eligibility for surrender; and (4) executive determination that the person is to be surrendered. The Full Court’s description of these stages has been cited with apparent approval by the High Court: Vasiljkovic v The Commonwealth [2006] HCA 40; (2006) 227 CLR 614 at [55]; Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 547.

10 The extradition process with respect to Mr Tervonen has reached the third stage but the present appeal is concerned with the commencement of the process, that is to say, the giving of a notice under s 16(1) of the Act.

(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; ..."

12 The expression "extraditable person" is defined by s 6 of the Act. Section 6 provides, relevantly:

(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act;

13 An "extradition offence" in relation to a country other than Australia, means, inter alia, an offence against the law of the country for which the maximum penalty is imprisonment for a period of not less than 12 months: see s 5 of the Act.

14 In Williams, the Full Court declined to follow an earlier decision of Cooper J in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560. In Foster, his Honour held that s 16(2)(a)(ii) only requires the responsible Minister to hold the relevant opinion; an applicant to set aside a notice must demonstrate that the opinion is unreasonable or perverse in the Wednesbury sense.

15 The Full Court was of the view that the approach taken by Cooper J bypassed the requirements of s 16 under which the first consideration is whether the statutory conditions for the exercise of the power have been satisfied.

16 Their Honours reviewed the authorities in some detail and came to the view that curial intervention is permissible at two separate levels. The first involves an examination of whether the decision-maker has taken relevant, and only relevant, considerations into account. The second, which only arises if the decision satisfies the first enquiry, involves the potentially available ground of Wednesbury unreasonableness.

17 Thus, the error which the Full Court identified in Cooper J’s approach was that it dealt only with Wednesbury unreasonableness without first addressing the essential pre-requisite to a consideration of that ground, namely whether the decision-maker had taken into account relevant considerations.

18 Their Honours were of the view that s 16(2)(a)(ii) is to be construed harmoniously with s 19(2)(c). What is required is a statement of that which the person has allegedly done or omitted to do. This is to enable the decision-maker to determine whether the conduct so described satisfies the requirement of dual criminality.

19 As we said above, their Honours observed at [12], that "No statement of Mr Williams’ alleged acts or omissions (that is the conduct) was provided to the Minister." The decision of the Court was therefore confined to the first level of curial intervention, failure to take into account relevant considerations. That is plain from what their Honours said at [34], [40] – [43] and [50].

20 Their Honours accepted that it is open to Ministers to rely upon advice and analysis provided to them by their departmental staff. However, they said that where an opinion is required to be formed personally by the Minister, the Minister will not be able to rely upon advice or recommendations that are not accompanied by sufficient disclosure of the factual materials: at [24].

21 On 2 August 2006 the Australian government received a request from the State of Finland for the extradition of Mr Tervonen to be prosecuted for a large number of fraud, company, accounting and tax offences.

22 On 18 August 2006 the then Minister for Justice and Customs, Senator Ellison, issued a Notice of Receipt of Extradition Request under s 16(1) of the Act. This was the notice which we have called "the first notice". It specified the extradition offences in respect of Mr Tervonen in 56 numbered paragraphs.

23 On 7 February 2007 Mr Tervonen commenced proceedings seeking judicial review of the first notice. The primary judge refused an application for interlocutory relief brought by Mr Tervonen: see Tervonen v Minister for Justice and Customs [2007] FCA 464. His Honour dismissed the claim for interlocutory relief on 12 March 2007.

24 The decision of the Full Court in Williams was handed down on 22 March 2007.

25 On 30 April 2007 Senator Johnston, who was then the Minister for Justice and Customs, issued the Amended Notice. The extradition offences in respect of Mr Tervonen set out in the Amended Notice consisted of 58 numbered paragraphs. Some of the paragraphs stated the offence as comprising more than one count. Examples of the multiple counts are to be found in [57] and [58] of the Amended Notice as follows:

"(57) Five counts of Registration Offence on 2 August 2004, contrary to Finland’s Penal Code, Chapter 16, section 7

(58) Two counts of Registration Offence on 2 June 2004, contrary to Finland’s Penal Code, Chapter 16, section 2."

26 The material before Senator Johnston when he issued the Amended Notice consisted of:

27 The package of supplementary documentation supplied from Finland included the original eight warrants for Mr Tervonen’s request and a "supplementary account" of the offences referred to in the fifth warrant.

The memo from the Attorney-General’s Department and the CDPP’s briefing memo

29 The memorandum to the Minister from the Attorney-General’s Department and the CDPP’s briefing memorandum were in evidence before the primary judge in redacted form. This was because the Minister claimed privilege for part of the material, though he subsequently waived some of his claims.

30 The memo from the Attorney-General’s Department referred to the request from Finland to extradite Mr Tervonen. The memo then indicated that the first notice had been issued on 18 August 2006. The memo continued by stating:

"The Commonwealth Director of Public Prosecutions has now identified an additional seven offences which could have been included in that notice."

31 A number of lines appearing under the paragraph that we have quoted were redacted. The memo concluded with a recommendation that Senator Johnston sign the Amended Notice.

"There is a risk that the existing section 16 notice issued in this matter might be found to be partly invalid. Further, as discussed below, it is desirable that the existing notice be amended to include an additional seven offences which were not included in that notice."

33 The effect of the decision in Williams received special mention in the memorandum as follows:

8. ... it is arguable, in light of the Full Federal Court judgment in Williams v Minister for Justice and Customs [2007] FCAFC 33, that the submission relating to the existing section 16 notice did not provide a sufficient description of the conduct constituting some of the offences for which Mr Tervonen’s extradition was sought, to enable the Minister to form the requisite opinion under subparagraph 16(2)(a)(ii) Extradition Act in respect of those offences. As a result, there is a risk that the existing section 16 notice might be found to be partly invalid."

34 Paragraph 9 of the briefing memo, which appears to have been part of the material under the section dealing with the impact of the Williams decision, was redacted.

35 Paragraph 25 of the briefing memo was partially redacted. We will set out the paragraph in the form in which it was in evidence before the primary judge as follows:

36 Counsel for Mr Tervonen relied upon the redacted form of [25] of the briefing memo in support of a submission that the Minister did not consider the Amended Notice afresh but confined his attention to the additional seven extradition offences. We will deal with this submission later but it is necessary to observe that the briefing memo also stated at [16] that the Minister was required to consider whether he was of the opinion referred to in
s 16(2)(a)(i) and (ii) of the Act:

"in respect of each of the offences stated in the Notice at Attachment A, and whether you are of the opinion that there is no extradition objection in respect of those offences."

37 The briefing memo included reference to the dual criminality requirement. It referred to the CDPP’s initial advice that dual criminality could be established in respect of 77 of the offences specified in the first notice. It said that the CDPP had reconsidered the dual criminality issue and had provided advice that dual criminality could be established in respect of an additional seven offences, bringing the total to 84.

"26. The Department considers the requirements of section 16 of the Extradition Act and Article 7 of the Treaty have been met for the offences listed in the attached fresh section 16 notice, and we are not aware of any circumstances that would justify the exercise of your discretion to decline to issue a notice in respect of these offences..."

39 The CDPP’s advice on dual criminality deals with each of the eight warrants. Under the heading "Warrant 5 – 1 September 2005 – Helsinki District Court", the advice states:

"89. It is alleged that Tervonen was involved in a scheme with a number of other persons in which they hired persons by the name Soderqvist and Raappana to make applications for loans using false documentation."

40 Paragraph 89 of the memo continues by describing the applications to the banks and financial institutions that were made by S öderqvist on the basis of forged sales contracts for real estate located in Finland. Raappana and a company called Flamelle Oy were said to have used forged documents to obtain registration of title to the properties. Söderqvist was said to have presented himself to the bank as buyer of the properties from Flamelle Oy and Raappana.

41 The banks were said to have granted loans totalling approximately EUR1.28 million. The majority of the money was said to have been drawn in cash by Raappana, or against cheques in respect of which orders were made in advance for foreign currency which was withdrawn in cash.

"The advice in relation to these offences is premised on the fact that if a Magistrate accepts that the acts and omissions are sufficient, offences would be found for dual criminality purposes based upon aiding, abetting, counselling or procuring the commission of those offences."

43 The supplementary account of the offences in the fifth warrant included a number of statements of the conduct in which Mr Tervonen was said to be involved.

44 The supplementary account referred to information obtained in a pre-trial investigation that Raappana and Söderqvist had no independent role in planning and committing the offences. They were said to have been supervised by a person named Mika Siira.

45 Reference was made in the supplementary account to interviews with Raappana and Söderqvist who said they had been instructed by Siira when carrying out their actions and that Siira had been in telephone contact with other persons whose identity they did not know.

46 The supplementary account then contained a number of descriptions of Mr Tervonen’s involvement. They appeared under a sub-heading "probable causes for considering, on the basis of an overall assessment, Jan Tervonen to be a suspect in the series of crimes described below."

48 The primary judge found that in some sections of an advice from the CDPP that was before Senator Ellison, there was material which could amount to a sufficient description of Mr Tervonen’s alleged acts or omissions to enable the Minister to form an opinion under
s 16(2)(a)(ii) in respect of the first notice: see Tervonen (No 2) at [50].

49 However, his Honour found that in respect of a large number of the 56 paragraphs contained in the first notice, there was such a dearth of material before Senator Ellison describing Mr Tervonen’s acts or omissions that it would not have been possible for the Minister to form the opinion as to dual criminality required by s 16(2)(a)(ii).

50 The paragraphs of the first notice which his Honour considered to be deficient comprised well in excess of 50% of the first notice. His Honour then turned to the question of whether the paragraphs which were not supported by sufficient material could be severed from the first notice, thereby leaving a part of it to stand as a valid notice.

51 His Honour accepted that it was possible to sever those parts of a s 16 notice which were included in the notice in excess of power: Tervonen (No 2) at [83]ff. He referred to the provisions of s 46(2) of the Acts Interpretation Act 1901 (Cth). However, he came to the view that there was no basis to sever the offending portions of the first notice.

52 The reasons why his Honour declined to sever those portions were set out at [90] – [105]. The effect of what he said was that Senator Ellison asked himself the wrong question and:

"[98] ... the inference which I am satisfied should be drawn is that Senator Ellison deferred to or accepted the opinion of the CDPP without himself considering any of the conduct alleged against Mr Tervonen for the purposes of s 16(2)(a)(ii). Senator Ellison simply accepted the CDPP’s advice as authorising him to sign the s 16(1) notice."

53 The primary judge’s reasons for finding that the Amended Notice was invalid followed from his approach to the first notice.

54 After considering at some length the material provided by Finland and the advice from the CDPP, his Honour found at [173] that Senator Johnston could not have formed the opinion required by s 16(2)(a)(ii) in relation to [24] – [50] and parts of [51] – [52] of the Amended Notice. He said this was because there was no sufficient specification of the acts or omissions of Mr Tervonen necessary for the opinion to be formed.

55 His Honour also found at [180] that it was not open to Senator Johnston to form an opinion on the material before him that Mr Tervonen’s conduct would have constituted an extradition offence in respect of the new paragraphs, [57] and [58] of the Amended Notice.

56 The essential reason why his Honour considered that the whole of the Amended Notice was invalid and that the offending portions could not be severed was that he came to the view that Senator Johnston did not give a "fresh notice". His reasoning process may be found in the following paragraphs of his judgment:

198 Senator Johnston did not give a fresh s 16 notice. By its very terms, his was an ‘Amended Notice’. Thus, he may have proceeded on the basis that there was a risk some of Senator Ellison’s s 16 notice was invalid or affected by jurisdictional error of the kind identified in Williams [2007] FCAFC 33; 157 FCR 286. But there is no basis in the evidence before me to suggest that Senator Johnston approached the matter completely afresh. I am not prepared to draw an inference that he did, on the incomplete material in evidence and the failure of the Minister to give any direct evidence of his decision-making.

210 Here, Senator Johnston could have given a wholly fresh notice under s 16 in the form of the one he did. The provisions of s 46(2) of the Acts Interpretation Act would apply to sever the portions of it relating to warrant 5 which I have found to be invalid, while leaving the balance of the notice valid and operative. But, if in signing the notice he asked himself the wrong question (as his predecessor had recently done in Williams [2007] FCAFC 33; 157 FCR 286) or confined the formation of his opinion under s 16(2)(a)(ii) to pars (57) and (58), then the whole notice would be bad because of jurisdictional error, namely the failure to form the opinions required in accordance with s 16(2)(a)(ii) in respect of any paragraphs other than pars (57) and (58). Nothing in s 46(2) would save it.

212 Senator Johnston addressed whether pars (57) and (58) should be added to the ‘amended notice’. But he came to the incorrect conclusion that they should. I am of opinion that he did not consider the whole of the material afresh in such a way as would justify me in severing portions of the notice to preserve its validity. A considerable part of the notice could not have satisfied Senator Johnston had he correctly considered forming an opinion in accordance with s 16(2)(a)(ii). While s 46(2) of the Acts Interpretation Act enables those portions which I have found to be invalid to be severed from the notice, the material in evidence comfortably satisfies me that the Minister was not addressing himself to the correct question when considering the amended notice. As Dixon J said in Avon Downs 78 CLR at 360:

Whether Senator Johnston considered afresh the matters in the Amended Notice

57 In our view, the material before the primary judge strongly supported a finding that Senator Johnston did not confine himself to the question of whether [57] and [58] should be added to the notice.

58 There are five reasons why we have come to this view. We will set them out below. They are reinforced by the concession, fairly and properly made by counsel for Mr Tervonen that the purpose of the Amended Notice was to put in place a valid notice under s 16 as to all of the matters which it dealt with.

59 First, the context in which Senator Johnston was requested to sign the Amended Notice made it plain that the first notice might be found to be partly invalid because of the decision of the Court in Williams. Senator Johnston’s attention was expressly drawn to this in the briefing memo in the extract we have reproduced at [33] above.

60 In particular, the briefing memo stated that the submission in relation to the first notice did not provide a sufficient description of the conduct constituting some of the offences. Senator Johnston was not told which of the offences were not supported by a sufficient description.

61 The clear inference we draw from this is that Senator Johnston was requested to, and did, consider the Amended Notice without relying on any conclusion reached by his predecessor in relation to the first notice.

62 Second, Senator Johnston was informed in express terms that he was required to consider whether he was of the stipulated opinion "in respect of each of the offences" in the Amended Notice. We have set out the relevant passage from the briefing memo at [36] above.

63 There was nothing in any of the evidence before the primary judge to suggest that Senator Johnston did otherwise than what he was told he must do, as recorded in that paragraph of the briefing memo.

64 Indeed, the Departmental memo, to which the briefing memo was attached, stated the Department’s recommendation that the Minister sign and date the Amended Notice "in respect of the extradition offences set out in the notice". This must be taken to have been a recommendation for all of the offences listed in the "attached fresh section 16 notice" as referred to in the passage from the briefing memo set out at [38] above.

65 Third, the briefing memo stated that the CDPP had reconsidered the dual criminality question and that its advice was attached. The CDPP’s advice was Attachment D of the material before Senator Johnston. The advice was not confined to the additional offences included in the Amended Notice. Instead, it dealt with each offence contained in each of the eight warrants.

66 In our view, this is inconsistent with any suggestion that Senator Johnston failed to consider the Amended Notice afresh.

67 Fourth, Senator Johnston was supplied with a substantial volume of material provided by Finland in support of the request for Mr Tervonen’s extradition. That material comprised more than 270 pages. The briefing memo described it as supplementary documentation in support of the request and said that it:

68 This was a clear statement to Senator Johnston that the large volume of material addressed all of the offences, not merely those which were added to the Amended Notice. There was no point in providing the additional material to Senator Johnston if he was intended to confine his attention to the additional offences.

69 Fifth, there is a presumption of regularity which applies to the acts of public officials. It is found in the Latin maxim, ‘omnia praesumuntur rite esse acta’ and is explained in the authorities discussed by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164; see also Guiseppe v Registrar of Aboriginal Corporations [2007] FCAFC 91; (2007) 160 FCR 465 at [45].

70 Counsel for Mr Tervonen drew our attention to the redacted portion of the briefing memo set out at [35] above. It is true that the effect of the paragraph as redacted is that the recommendation to Senator Johnston was that he issue a new s 16 notice to ensure that the additional seven extradition offences were put before the magistrate for the purpose of his determination under s 19 of the Act.

71 However, without making any assumption as to what may have been included in the redacted portion, the paragraph which was in evidence must be read in its full context. The other paragraphs of the briefing memo, which we have set out above, made it clear that the purpose of the Amended Notice was not confined to the inclusion of seven additional offences.

72 Accordingly, we are of the view that the primary judge was incorrect to find that Senator Johnston failed to consider the Amended Notice afresh. Further, contrary to the approach taken by the primary judge, no occasion for the application of the principle stated in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 arose.

"The only act or omission expressly referred to by the CDPP as alleged against Mr Tervonen was contained in the single sentence that he ‘was involved in a scheme with a number of other persons’. The CDPP’s advice did not provide any detail as to how it could be found that Mr Tervonen was aware of all the material ingredients of the underlying conduct in relation to each of the balance of the offences in warrant 5 so as to attract the liability of a person who aids, abets, counsels or procures the commission of the principal offences: Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473."

74 The first sentence of the paragraph we have quoted is central to the determination of whether his Honour erred in finding that the Amended Notice was vitiated by the error identified in Williams.

75 The second sentence of the quote relates to a further ground of attack made by the Minister on the primary judge’s reasons for judgment. This was that his Honour failed to deal with the matter upon the "no evidence" extradition scheme which was applicable to the treaty between Australia and Finland: Vasiljkovic v The Commonwealth at [12], [13] and [23] per Gleeson CJ; Extradition (Finland) Regulations.

76 We do not need to deal with that ground because the appeal may be disposed of by dealing with, as in Williams, the question of whether or not a statement of Mr Tervonen’s alleged conduct was provided to the Minister.

77 In our view the evidence to which we have referred above demonstrates that there was such a statement of conduct, at least insofar as it was sufficient for Senator Johnston to form an opinion in relation to a substantial number of paragraphs of the Amended Notice.

78 As we understood him, the effect of the submissions for the Minister on the appeal was to concede that the offences identified in [24] – [50] and [55] of the Amended Notice could not be supported. Mr Beech-Jones SC contended, initially, that [57] – [58] could be supported, though with a "blue pencil" applied so as to leave those paragraphs of the Amended Notice in force with respect to one count of each of the specified offences.

79 Ultimately, Mr Beech-Jones abandoned [58] of the Amended Notice, though he sought to support [57], subject to severance of all but one count of the offence.

80 The primary judge approached the question of whether there was a sufficient statement of the alleged conduct of Mr Tervonen by focusing upon the statement of the CDPP that Mr Tervonen was involved in a scheme with a number of other persons. This was a reference to the opening sentence of [90] of the CDPP’s advice which we have reproduced at [42] above.

81 However, it seems to us that the proper approach to the question of whether there is a sufficient statement of conduct, requires a consideration of that statement in its full context. There was other material before Senator Johnston relevant to the question of the sufficiency of the statement of conduct. This material was not limited to the statements in the CDPP’s advice.

82 The proper approach to a determination of whether the material contains a sufficient statement of conduct is to be found in the observations of the High Court in Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122.

83 In Truong, the question before the Court was whether the trial of a person in Australia on charges of kidnapping and murder contravened the specialty rule stated in s 42 of the Act on the ground that the person had been extradited from the United Kingdom for the offences of conspiracy to kidnap and murder, not kidnapping and murder per se.

84 The majority Justices in Truong at [13] observed that the material before the Magistrate on the s 19 determination included a lengthy affidavit from a police officer. That affidavit explained the nature of the evidence against Mr Truong. The facts set out in the affidavit disclosed that the case against the accused was circumstantial and that the offences of conspiracy were to be inferred from the actual kidnapping and murder.

85 Their Honours continued by stating that a "legally informed reader" of the affidavit would have understood that the overt acts were important, if not critical aspects, of the allegations of conspiracy. They also referred to statements in the affidavit that the accused was the most senior member of a criminal network who assisted and directed the persons who carried out the kidnapping and murder. Their Honours said at [13]:

"In other words, the allegation was that, and the material in the ... affidavit supported the inference that, the appellant organised and directed the kidnapping and murder."

86 The majority Justices in Truong also observed at [20] that the acts or omissions referred to in s 10(2) of the Act, ie the conduct, directs attention to the concrete rather than the abstract. They are not to be described by reference to the contents of a text book; this is important when dealing with the "protean" offence of conspiracy. The conduct by virtue of which the offences are alleged to have been committed, lies:

"... at a level of abstraction between a formal statement of the elements of the offence ... and an account of the evidence relied on to prove the relevant conduct...": Truong at [29].

87 Here, the relevant offences are aiding and abetting the commission of fraud, company and tax offences. That was plainly stated in the CDPP advice. Moreover, the relevant paragraphs of the advice which we have set out above, included a description of the principal acts comprised in the scheme in which Mr Tervonen was said to have been involved.

88 Aiding and abetting is not so protean an offence as conspiracy. It requires intentional participation in the principal offence based upon knowledge of the essential elements of the contravention: Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661; see also Truong at [30] – [31]. The description of the conduct alleged against Mr Tervonen, as set out in [89] – [90] of the CDPP’s advice was sufficient for a legally informed reader to have understood that Mr Tervonen was alleged to have been knowingly involved in the criminal frauds described by the CDPP. The conduct was described to the level of satisfaction stated in Truong at [29].

89 Moreover, the supplementary account of the offences provided by the Finnish authorities, contained a more detailed description of Mr Tervonen’s involvement with Siira in the commission of the offences. In particular, the description of Mr Tervonen’s conduct disclosed that the Finnish authorities alleged, and indeed could obtain evidence, that Mr Tervonen was "involved" with Siira in the following respects:

90 This was a statement of what is alleged to have been actually done by Mr Tervonen, not a mere restatement of the charges in respect of which extradition is brought: Williams at [45] citing Zoeller v Federal Republic of Germany (1989) 23 FCR 282 and De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290.

91 It is true that the CDPP’s advice was not set out in the briefing memo which appeared immediately following the memo to Senator Johnston from the Department. But there was a reference to the CDPP’s advice in [7] of the briefing memo. It is also true that the supplementary account provided by the authorities was not at the forefront of the material provided to the Minister.

92 However, we reject the submission made by counsel for Mr Tervonen that Senator Johnston was provided with a number of disjointed documents asserting a global involvement in miscreance falling short of the appropriate standard.

93 One of the purposes of a statement under s 19(3)(c)(ii) of the Act is to permit a magistrate to be satisfied that the conduct said to constitute the offence would be in accordance with the requirement of dual criminality: Griffiths v United States of America [2005] FCAFC 34; (2005) 143 FCR 182 at [53]. The description of the conduct which is to be provided to the Attorney-General, or the responsible Minister, for the purpose of forming the opinion under
s 16(2)(a)(ii) serves the same purpose: Williams at [45], [46].

94 What is required is a clear and coherent statement of the acts and omissions which are said to constitute the offence. It must be sufficiently specific and coherent to serve its purpose. It must not be so vague, general or disorganised that the relevant acts or omissions cannot be reasonably identified: Rahardja v Republic of Indonesia [2000] FCA 1297 at [76] – [77] and the authorities there referred to. The description of the conduct in the present case was sufficient to meet this test.

95 We cannot see anything in the authorities to support the submission of counsel for Mr Tervonen that, where multiple offences are alleged, it is necessary to have a separate description of the conduct in respect of each offence. A description of the conduct in terms that are capable of being understood by a legally informed reader, and at the level of abstraction referred to in Truong, does not require that degree of detail. Nor is it required by the authorities referred to in Rahardja. The approach urged on us by counsel for Mr Tervonen would, in cases such as the present, require a repetitive regurgitation of the events in a way that would be quite unnecessary.

96 In our view, the information to which we have referred contained a sufficient description of the conduct alleged in respect of the offences described in the Amended Notice other than [24] - [50] and [55]. We will deal with [57] and [58] below.

97 Williams is not authority for the proposition that where some of the offences specified in a notice under s 16 are not supported by a statement of the alleged conduct, those paragraphs cannot be severed from the notice.

98 The primary judge declined to order severance under s 46(2) of the Acts Interpretation Act because he came to the view that Senator Johnston had asked himself the wrong question. That finding turned upon the proposition that Senator Johnston had not considered the Amended Notice afresh, and upon his Honour’s view that Senator Ellison had failed to exercise the power that was reposed in him in accordance with the principle stated in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22; (1953) 88 CLR 100 at 119-120. His Honour also referred to Coco v The Queen (1994) 179 CLR 427 at 442-443.

99 Ex parte Melbourne Stevedoring turned upon the statement that there must be "other indications" that the wrong test has been applied. There were no such indications in the present case.

100 Moreover, what their Honours said in Coco v The Queen at 443 was to the effect that severance becomes a "contentious exercise" where the invalid part of a decision has influenced the making of the valid part. We do not consider that the evidence demonstrated any such process.

101 Section 46(2) of the Acts Interpretation Act applies to non-legislative instruments made by an authority. It provides that if any instrument would, but for s 46(1), be construed as being in excess of the authority’s power, it is to be taken to be valid to the extent to which it is not in excess of power.

102 This provision was introduced by an amendment contained in the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth). It replaced the former s 46 which applied to "instruments", including rules, regulations and by-laws, made by an authority.

103 Prior to the 2003 amendments, there was authority for the proposition that s 46(2) was limited to legislative instruments and that it did not apply to a s 16 notice because it was not such an instrument: Dutton v Republic of South Africa [1999] FCA 498; (1999) 162 ALR 625 at [32]; cf Heslehurst v Government of New Zealand [2002] FCA 429; (2002) 117 FCR 104.

104 However, the debate which is revealed in these authorities has been overtaken by the terms of the amended form of s 46 of the Acts Interpretation Act. That section specifically applies to instruments that are not legislative. It plainly applies to notices under s 16 of the Act. This is supported by the decision in Telstra Corporation Limited v Australian Competition and Consumer Commission (No 3) [2007] FCA 1905.

105 For the reasons referred to above, the primary judge should have applied the terms of s 46(2) of the Acts Interpretation Act to the Amended Notice which is to be taken as a valid instrument to the extent to which it was not in excess of power.

106 Mr Beech-Jones conceded that [58] of the Amended Notice could not be supported. Further, there are difficulties in applying a "blue pencil" to [57] so as to substitute one offence for the five that are referred to. Mr Beech-Jones conceded as much, though he did not go so far as to concede the entire paragraph.

107 We consider, however, that the whole of [57] and [58] of the Amended Notice should be severed from it.

108 For the reasons referred to above, we do not need to deal with the first notice. We propose to make orders as follows:

(2) Orders 2, 4 and 5 made by the primary judge on 8 November 2007 be set aside.

(3) It be declared that the document dated 30 April 2007 signed by Senator Johnston is not a valid notice under s 16(1) of the Extradition Act 1988 with respect to the offences listed in [24] – [50], [55], [57] and [58].

109 Proposed Order (3) reflects what we understood to be the concessions made before the primary judge and on appeal. If this is not correct, the parties are to notify us before the entry of final orders. We will order that entry of final orders be delayed for 72 hours to enable this to be resolved.

110 In our view, the Minister has had a sufficient degree of success on the appeal to warrant an order that the respondent pay the appellant’s costs of the appeal and the costs of the proceedings at first instance.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant:	Mr R Beech-Jones SC with Ms K Morgan

Solicitor for the Appellant:	Blake Dawson

Counsel for the Respondent:	Mr D Ash

Date of Hearing:	15 February 2008

Date of Judgment:	6 March 2008

Federal Court of Australia - Full Court