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Federal Court of Australia |
Last Updated: 19 October 1998
EXTRADITION - role of Attorney-General under ss 22 and 23 Extradition Act 1988 - whether s 19 Acts Interpretation Act 1901 enables delegation of Attorney-General's statutory function under Extradition Act 1903 to Minister for Justice
ADMINISTRATIVE LAW - relevant considerations - whether Minister took into account all relevant considerations in exercising discretion under s 22(2) of Extradition Act - Procedural fairness - whether applicant given reasonable opportunity to respond to information received from external sources in relation to applicant's extradition
Judiciary Act s 39B
Extradition Act 1988 , ss 22, 23
Acts Interpretation Act 1901 , s 19
Extradition (Commonwealth Countries) Regulations reg 7
Harris v The Attorney-General (Cth) (1994) 52 FCR 386 cited
Todhunter v United States of America (1995) 57 FCR 70 cited
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 cited
Buck v Bavone [1976] HCA 24; (1975-76) 135 CLR 110 cited
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 cited
The King v Judd [1919] HCA 9; (1919) 26 CLR 168 cons.
Bainbridge-Hawker v Minister of State for Trade and Customs for the Commonwealth of Australia [1958] HCA 60; (1958) 99 CLR 521 cons.
The Queen v Gamble; The Queen v Moore (1983) 72 FLR 352 cons.
GTE (Australia) Pty Ltd v Brown (1986) 76 ALR 221 cons.
R v Judd (1919) 19 SR (NSW) 59 cons.
Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153 cons.
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 cited
Forrest v Kelly (1992) 34 FCR 74 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-6) 162 CLR 24 cited
Kioa v West (1985)159 CLR 550 cited
PETER CLARENCE FOSTER v THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
SPENDER J
BRISBANE
12 OCTOBER 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 81 of 1998 |
|
BETWEEN: | PETER CLARENCE FOSTER
Applicant |
|
AND: | THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent |
|
JUDGE(S): | SPENDER J |
| DATE OF ORDER: | 12/10/98 |
| WHERE MADE: | BRISBANE |
THE COURT DECLARES:
1. The warrant dated the 24th day of July 1997 issued by the Minister for Justice purportedly under s 23 of the Extradition Act 1988 in relation to the applicant is a nullity in that the discretion referred to in s 22 of the Extradition Act 1988 may only be lawfully exercised, and was not in this instance exercised, by the Attorney-General or (by the application of s 19 of the Acts Interpretation Act 1901 ) by a Minister or member of the Executive Council validly authorised to act for or on behalf of the Attorney-General.
THE COURT ORDERS:
1. The respondent, his subordinate officers, servants and/or agents be restrained from:
(a) taking or causing to be taken any action on the warrant; and
(b) taking or causing to be taken any action on any order and/or warrant which may have been made and/or issued in pursuance of the warrant.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| QUEENSLAND DISTRICT REGISTRY | QG 81 of 1998 |
|
BETWEEN: | PETER CLARENCE FOSTER
Applicant |
|
AND: | THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent |
|
JUDGE(S): | SPENDER J |
| DATE: | 12/10/98 |
| PLACE: | BRISBANE |
By an amended application the original of which was filed on 29 July 1998, the applicant, Peter Clarence Foster, seeks to challenge a warrant for his deportation, which is dated 24 July 1998 and which was issued by the Minister for Justice, Amanda Vanstone, purportedly under s 23 of the Extradition Act 1988 , (`the Act') in relation to Mr Foster.
The application is made under s 39B of the Judiciary Act 1903 which provides:
"39B(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a) in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament."
By the amended application Mr Foster seeks:
"1. An order that the Respondent validly exercise the discretion conferred by Section 22(2) of the Extradition Act 1988 as to whether the Applicant is to be surrendered to the United Kingdom.
2. A declaration that the Warrant dated the 24th day of July 1998 issued by the Minister for Justice purportedly under Section 23 of the Extradition Act 1988 in relation to the applicant (such Warrant hereinafter referred to `the Warrant') is a nullity in that the respondent failed to validly exercise his discretion as required by the provisions of Section 22 of the Extradition Act 1988.
2A. A declaration that the warrant dated the 24th day of July, 1997 issued by the Minister for Justice purportedly under s.23 of the Extradition Act 1988 in relation to the applicant is a nullity in that the discretion referred to in s.22 of the Extradition Act 1988 may only be lawfully exercised, and was not in this instance exercised, by the Attorney-General.
3. An order setting aside the Warrant.
4. An injunction restraining the respondent, his subordinate officers, servants and/or agents from:-
(a) taking or causing to be taken any action on the Warrant; and
(b) taking or causing to be taken any action on any order and/or warrant which may have been made and/or issued in pursuance of the Warrant."
The particulars of the grounds of the application asserted on behalf of Mr Foster are:
" 1. In purporting to exercise his discretion under Section 22(2) of the Extradition Act 1988 , the Respondent failed to properly inquire into matters which bore upon the exercise of his discretion, in circumstances in which he ought so to have done.
2. In purporting to exercise his discretion under Section 22(2) of the Extradition Act 1988, the Respondent failed to give any or any proper weight to the sworn and unsworn material, and submissions provided to the Respondent by and on behalf of the Applicant.
3. In purporting to exercise his discretion under Section 22(2) of the Extradition Act 1988, the Respondent gave undue weight to unsworn material and submissions placed before the Respondent by and on behalf of various parties.
4. The Respondent denied to the Applicant natural justice and procedural fairness in failing to provide to the Applicant an opportunity to fully respond to the factual assertions and the submissions made to the Respondent by various parties in response to the material and submissions of the Applicant.
5. In purporting to exercise his discretion under Section 22(2) of the Extradition Act 1988, the Respondent allowed himself to be misled by untruthful and/or misleading assertions made to him by his staff and/or by untruthful and/or misleading assertions made to his staff by various other parties."
There are four stages to the process of international extradition pursuant to the Act. As the Full Court of the Federal Court said in Harris v The Attorney-General (Cth) (1994) 52 FCR 386 at 389:
"The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered."
That passage was noted by the Full Court of the Federal Court in Todhunter v United States of America (1995) 57 FCR 70 at 73, the court noting in that case:
"For the purposes of the present appeal, it is important to keep in mind the various stages in the legislative scheme established by the Act."
See also Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 per Gummow J at 547.
The present application concerns the discretionary aspect of the fourth stage, namely, the determination pursuant to s 22 of the Act as to whether the applicant, "an eligible person", ought to be surrendered.
It is not in dispute that Mr Foster is an "eligible person" within s 22(1) of the Act and that he has been committed to prison in respect of five "qualifying extradition offences" as that term is defined in s 22(1) of the Act. Section 22 then relevantly provides:
" (2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence;
(b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;
...
(d) the extradition country concerned has given a speciality assurance in relation to the person;
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances - the Attorney-General is satisfied:
(iii) where subparagraph (i) applies - that the circumstances do not exist; or
(iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
...
(5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person."
Section 23 of the Act provides:
"Where the Attorney-General determines under subsection 22 (2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section."
Regulation 7 of the Extradition (Commonwealth Countries) Regulations provides:
"7.(1) The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that, for the purposes of subsection 22(2) of the Act, in addition to the conditions set out in subsection 22(3) for the surrender of an eligible person in relation to a qualifying extradition offence, such a person shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of:
(a) the trivial nature of the offence;
(b) the accusation against the eligible person not having been made in good faith or in the interests of justice; or
(c) any other sufficient cause;"
it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person or to surrender the eligible person before the expiry of a period specified by the Attorney-General.
(2) In subregulation (1), `eligible person' and `qualifying extradition offence' have the same meanings respectively as in section 22 of the Act.
As to the nature of the present application, subject to limitations not presently material, s 39B of the Judiciary Act 1903 enables the Federal Court to exercise the jurisdiction to direct prohibition, mandamus or an injunction to an officer of the Commonwealth conferred on the High Court by s 75(v) of the Commonwealth Constitution. The grounds of review that are open on such an application were referred to by Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24; (1975-76) 135 CLR 110 at 118-119:
"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....Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed."
A determination under s 22 of the Act is so reviewable: Kainhofer (supra) at 538-539 where Brennan CJ, Dawson and McHugh said:
"Of course, prohibition or mandamus may go to an officer of the Commonwealth who exercises power under the Act: ss 75(v) of the Constitution and 39B of the Judiciary Act 1903 (Cth)."
Their Honours noted:
"The Administrative Decisions (Judicial Review) Act 1977 (Cth) does not apply to decisions under the Extradition Act 1988 : see the Administrative Decisions (Judicial Review) Act 1901 , s 3 and Sch 1, par (r)."
In my opinion, having regard to the observations in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991-1992) 175 CLR 564 at 581, the Federal Court may grant declaratory relief under s 39B of the Judiciary Act even if the court ultimately came to the view that the grant of either a prerogative order or an injunction was not appropriate.
It is accepted on behalf of the Attorney that the Attorney is an appropriate respondent. It was said in submissions on behalf of the Attorney that he is the officer with primary responsibility for the execution of the laws of the Commonwealth, he is charged with the administration of the Act, any remitter would be directed to him and the power was exercised for and on his behalf.
It was submitted by Mr J Logan of counsel for the Attorney "that the Minister for Justice could, and perhaps should have been made an additional respondent. However, no issue is made of this." The signing of a surrender warrant by the Minister for Justice, where s 23 refers only to the Attorney-General, follows, so the Attorney submits, by the application of s 19 of the Acts Interpretation Act, in the circumstances of this case.
Section 19 provides:
"Where in an Act any Minister is referred to, such reference shall unless the contrary intention appears be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister."
In the light of the grounds of the application it is necessary to have regard to the chronology of events leading to the present application.
On 15 April 1997 Mr Foster was arrested pursuant to a provisional warrant issued under the provisions of s 12 of the Act. On 22 May 1997 the United Kingdom formally requested Mr Foster's extradition. On 27 May 1997 a notice under s 16 of the Act was issued by the Attorney-General enabling the matter to be heard by a magistrate.
The United Kingdom Serious Fraud Office accused Mr Foster, who is an Australian citizen, in the United Kingdom of one count of conspiracy to use false instruments, two counts of conspiracy to defraud, and three counts of using a false instrument. The Serious Fraud Office alleges that between May and July 1995, Foster and another person named Christopher Williams, committed the offences in unlawfully and dishonestly inducing various persons to supply goods, services and facilities to a United Kingdom company called Foremost Body Care Corporation Limited (`Foremost'). Williams was a director of Foremost and Foster, while he was not a director, is alleged to have played a major role in the operations of that company. Foremost was initially concerned with marketing a thigh reducing cream and then in producing a slimming pill. The allegation by the Serious Fraud Office is that false documents were used by Foster and Williams in fraudulent attempts to secure supplies, services and facilities for Foremost, and that substantial sums were owed to suppliers.
In 1995 Mr Foster was being prosecuted in Queensland by the Commonwealth Director of Prosecutions (`DPP') for Corporations Law offences. Mr Foster was given bail which allowed him to travel to the United Kingdom. Whilst in the United Kingdom, Mr Foster was prosecuted by the United Kingdom authorities for false trading offences and was sentenced to a term of imprisonment. In August 1996 Mr Foster was allowed out of gaol in the United Kingdom for a seven day period. He did not return to the prison in the United Kingdom at the end of the seven day period, by which time his leave had been revoked by a senior prison officer.
In October 1996 Mr Foster travelled to Australia using a false passport and a false name. He was arrested at Darwin Airport by Australian police and extradited to Queensland, where he eventually pleaded guilty to the Australian Corporations Law charges and was sentenced to gaol in Queensland. Mr Foster was due to be released from gaol in Queensland on or about 15 April 1997, when his custodial sentences for the Australian offences would come to an end. Mr Foster was provisionally arrested on 14 April 1997 for extradition purposes while still in gaol. On 13 May 1997 he was granted bail by the Chief Stipendiary Magistrate, Mr S Deer, despite opposition by the DPP. The notice under s 16 of the Act signed by the Attorney-General on 27 May 1997, enabling the United Kingdom's extradition request to be heard by a magistrate, was then challenged by Mr Foster in the Federal Court.
On 14 November 1997 Cooper J dismissed Mr Foster's challenge to the notice. It is relevant to note that that challenge contained an assertion by Mr Foster that the extradition request was not made bona fide in relation to the Serious Fraud Office charges, but for the improper purpose of securing his return to the United Kingdom in relation to his claimed role in exposing corruption in the United Kingdom. He further asserted that his life would be endangered if he was returned to the United Kingdom requiring any period in official custody.
The extradition hearing before a magistrate was set down for 1 December 1997. Mr Foster failed to appear on 1 December and absconded. The hearing continued in Mr Foster's absence and was then adjourned. Mr Foster remained a fugitive until 7 February 1998 when he was re-arrested in Melbourne. On 4 March 1998 a Stipendiary Magistrate, Mr B P Hine, found Mr Foster eligible for surrender to the United Kingdom in relation to five of the six extradition offences which had been proffered by the Serious Fraud Office.
Mr Foster applied to the Supreme Court for a review of the magistrate's order. That application was dismissed on 7 April 1998, the determination of the magistrate being upheld. Mr Foster had lodged a notice of appeal against the decision of Cooper J of 14 November 1997 concerning Mr Foster's challenge to the Attorney-General's s 16 notice. On 3 July 1998 Mr Foster's solicitors advised that that appeal would be discontinued.
On 7 May 1998 Mr Christopher Nyst, the solicitor for Mr Foster, wrote to the Attorney-General detailing Mr Foster's submissions to the Attorney relevant to the Attorney's determination under s 22(2) of the Act. That submission and annexures was of approximately 277 pages. The submission conceded that there was no extradition objection as contemplated by s 22(3)(a) and that the circumstances referred to in s 22(3)(c) did not apply. Mr Nyst did not contend that on surrender Mr Foster would be subjected to torture under the sanction of the requesting country, but it was asserted that "for reasons which are set out in detail below we believe that he is in grave risk of physical danger which may well include torture at the hands of criminals in the requesting country". The Attorney was urged to decline surrender, particular reliance being placed on the provisions of s 22(3)(e) and (f) of the Act as well as the requirement stemming from reg 7(1) of the Extradition (Commonwealth Countries) Regulations 1988 that Mr Foster not be surrendered if the Attorney was satisfied by reasons of the matters set out in that regulation that it would be unjust, oppressive, or too severe a punishment to surrender him.
In a very detailed and comprehensive submission the reasons why it was said the Attorney should decline surrender were set out. It was submitted that:
"Given the true gravamen of the charges and the likely penalty in all the circumstances, the real and obvious danger in returning Mr Foster to the British prison system cannot be justified."
The submission in its conclusion said:
"In our submission, whatever may have been Mr Foster's sins in the past, it is appropriate that he be given palpable recognition for his efforts since August 1996 to assist law enforcement authorities both here and in the United Kingdom. It is perhaps regrettable that in the past, when the turn of events has threatened to embarrass those to whom he has provided assistance, little such recognition has been forthcoming. In its place have come silence and half truths. Indeed, we are concerned that such may be the response to Mr Foster's assertions regarding his recent involvement in the AFP investigation. To that end, we ask that we be given the opportunity to respond to any submissions and/or assertions of fact which might be made to you by any relevant authority regarding our client's request that you decline surrender. We are confident that if you have all of the facts before you you will be satisfied that Mr Foster has provided significant assistance to law enforcement agencies both here and in the United Kingdom, at considerable risk to himself. He has done so at the behest of those law enforcement authorities, and as a result, he now finds himself in an invidious position."
It was then submitted:
"Regulation 5 of the Extradition (Commonwealth Countries) Regulations provides that a person is not to be extradited to the United Kingdom in respect of an offence which carries a maximum sentence of less than two years. Regulation 5 does not preclude Mr Foster's extradition, but in practical effect it is, in our view, most unlikely that he will be sentenced to a term of imprisonment of two years or more. However, even if he is returned to the British prison system for a short time pending bail or a hearing in that country, he is clearly at severe risk of injury or death at the hands of criminals in that country."
On 16 June 1998, Mr Chris Meaney, the Assistant Secretary, International Branch, Criminal Law Division of the Attorney-General's Department, wrote to Mr Nyst and referred to "your letter and submissions to the Minister for Justice dated 7 May 1998 on behalf of Mr Peter Foster". The letter and submissions had in fact been directed to the Honourable Mr D Williams QC, the Federal Attorney-General. Mr Meaney's letter in paragraph 2 under the heading "Further Submissions" said:
"In your letter you asked for the opportunity to respond to any authority regarding your client's request that the Minister decline surrender. I advise that this department has received advice from various authorities concerning your client's submissions."
The letter then referred to advice from the Home Office in consultation with the relevant United Kingdom law enforcement and prison authorities that:
"There is no assessable threat to your client's safety in the UK prison system arising from his informant activities."
The letter invited any additional information that Mr Foster wished to put before the Minister for her consideration in relation to the question of his safety or any other matter that should be done by 26 June 1998. The letter dealt also with a proposal for a negotiated return on terms of an agreement that he be granted bail on his return to the United Kingdom and also referred to the need for formal discontinuance of the Federal Court appeal against the decision of Cooper J.
On 23 June 1998 further submissions were forwarded by Mr Foster in response to the invitation contained in Mr Meaney's letter of 16 June. Mr Foster's solicitors said, in part:
"...we now enclose a copy of his letter in reply which we believe addresses most of the matters which you have raised."
In a 9 page letter, Mr Foster forcefully joined issue with the claim that there was no assessable threat to his safety, with detailed reference to many matters which he said bore on this question. A further submission was made on Mr Foster's behalf by letter of 17 July 1998. That submission said in part:
"The offences alleged against Mr Foster are relatively minor and relate to events which are said to have occurred approximately three years ago. Since then he has already served more time in prison than he would have served in respect of any sentence likely to be imposed upon conviction and, more significantly, since then he has voluntarily assisted law enforcement agencies in two continents in the most direct and practical way. In our respectful submission there are sound reasons why, in such circumstances, the government would and should acknowledge Mr Foster's contribution by allowing him to remain in this country."
On 27 July 1998 Mr Meaney wrote to Mr Nyst, which letter said:
"I refer to previous correspondence and to your submissions in relation to this matter.
The Minister for Justice has taken into account all representations made by and on behalf [of] Mr Foster and has determined under s 22(2) of the Extradition Act 1988 that Peter Foster is to be surrendered to the United Kingdom in respect of all the offences for which extradition was sought."
The letter attached a signed surrender warrant signed by Senator Amanda Eloise Vanstone, Minister for Justice. The warrant recited that the Minister was satisfied that there was no extradition objection in relation to the two conspiracy counts and the three counts of using a false instrument, was satisfied that Mr Foster on surrender will not be subjected to torture and that the United Kingdom had given a specialty assurance in relation to Mr Foster. The warrant expressed the Minister's satisfaction that the circumstances requiring refusal of surrender did not exist. The warrant recited that the Minister considered that in her discretion Peter Clarence Foster should be surrendered in relation to the offences and the warrant then continued:
"NOW THEREFORE I, Senator Amanda Eloise Vanstone, Minister for Justice, acting for the Attorney-General of the Commonwealth of Australia, under section 23 of that Act, hereby:
(f) require you, the person in those custody PETER CLARENCE FOSTER is being held, to release him into the custody of a police officer;
(g) authorise that police officer to transport PETER CLARENCE FOSTER in custody, and if necessary or convenient, to detain him in custody, for the purpose of enabling him to be placed in the custody of the escort and transported out of Australia; and
(h) authorise the escort to transport PETER CLARENCE FOSTER in custody out of Australia to a place in the United Kingdom for the purpose of surrendering him to a person appointed by that country to receive PETER CLARENCE FOSTER."
[emphasis added]
The warrant therefore on its face says that the Minister for Justice purported to act for the Attorney-General of the Commonwealth of Australia in relation to the power contained in s 23 of the Act.
Of relevance to the assertion that there was a denial of procedural fairness and a failure to take into account relevant considerations is the circumstance that not all of the documentation submitted by Mr Nyst or Mr Foster was placed before the Minister. It was said that this failure involved the two errors of law just referred to. What in fact occurred was that a submission was prepared for the Minister for Justice. Many of the documents referred to in the submissions by Mr Nyst or Mr Foster were forwarded with that submission, but a good number were not. There was, however, in my opinion, a careful summary of the contentions, enquiries made concerning them, and of the responses from various authorities concerning those enquiries. The submission, insofar as it touches on the complaints advanced by Mr Foster concerning the absence of procedural fairness and the failure to take into account relevant considerations, contained the following paragraphs:
"13. Paragraph 22(3)(f) of the Act provides that, notwithstanding the satisfaction of all other considerations, a person is only to be surrendered if you, in your discretion, consider that he or she should be surrendered in relation to the qualifying extradition offences. This discretion only arises once all of the other considerations under subsection 22(3) of the Act have been satisfied.
14. Mr Foster, his solicitors and his mother have made detailed submissions relating to the exercise of your discretion. The effect of these submissions is that you should refuse to surrender Mr Foster to the UK because of the serious risk to Mr Foster's life in the UK caused by his previous activities as a known prison informer. They also assert that the SFO charges are not serious enough to warrant extradition to the UK. The response of the UK authorities to Mr Foster's assertions has been obtained and Mr Foster given the opportunity to comment on them. Mr Foster's assertions and the UK authorities' response are summarised and reviewed in detail in Attachment B. The conclusion of Attachment B is that there is no basis for considering that there is a serious risk to Mr Foster's life were he to be surrendered to UK (sic) other than Mr Foster's own assertions. On the other hand, the SFO charges are serious matters punishable by imprisonment in the UK for up to 10 years. It is therefore recommended that you exercise your discretion to surrender Mr Foster to the UK to face the SFO charges despite his assertions.
15. Mr Foster's assertions, and those of his mother and solicitors, as well as written correspondence sent by this Department or received from the UK authorities and the Australian Federal Police (AFP) comprises extensive documentation. While a summary of this extensive documentation is set out in Attachment B [to the submission to the Minister for Justice], the documentation itself has been assembled in a separate folder which has been forwarded to your office."
Attachment B referred to in those paragraphs contained the following:
"9. Pursuant to paragraph 22(3)(e) of the Act you must also consider any mandatory or discretionary grounds for refusal of extradition which are created by these regulations. The effect of regulation 7 of the Extradition (Commonwealth Countries) Regulations 1988 (`the Regulations') (which is designed to give effect to an exception under the `London Scheme' for extraditions between Commonwealth Countries) is that extradition shall not be granted if you are satisfied that by reason of:
(i) the trivial nature of the offences;
(ii) the accusation against the eligible person not having been made in good faith or in the interests of justice; or
(iii) any other sufficient cause,
it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person.
10. Mr Foster has, through his solicitor Witheriff Nyst, submitted that you should not exercise your discretion to surrender because the conditions under (i) - (iii) exist. His submissions are dealt with in detail below."
Then follows what in my opinion is a careful and fair summary of the submissions advanced on Mr Foster's behalf in relation to the nature of the offences, the likely penalty that might be imposed, submissions concerning the bona fides of the United Kingdom charge, delay in the prosecution of the United Kingdom charges, and the safety considerations advanced by Mr Foster. In respect of the last consideration, the submission stated:
"61. There is no dispute that Mr Foster was an informant in the UK and with the AFP.
62. On balance, the fact that Mr Foster appears to have made his informant status publicly known in order to avoid further incarceration weighs against his assertions about the danger that now flows as a result of that publicity. Also, Mr Foster's (and his family's) predictions that he would be liable to harm in detention in Brisbane (despite being under protection) have proved to be incorrect. If there is a threat to Mr Foster in a UK prison, there is no reason to conclude that protective custody would not function as well in the UK as it has in Brisbane."
One matter contained in the submission deserves explicit mention. Under the heading "Surrender Determination" the submission stated:
"As soon as practicable after a person becomes an `eligible person' for surrender, subsection 22(2) of the Act requires the Attorney-General or a person authorised to act on his behalf to determine whether the person is to be surrendered in respect of `qualifying extradition offences'. If you determine that the person should be surrendered then section 23 of the Act requires you to issue a surrender warrant."
[emphasis added]
Neither s 22(2) or s 23 of the Act states that a person authorised to act on behalf of the Attorney-General may make a determination as to the surrender of an "eligible person" or issue a surrender warrant in the place of the Attorney-General.
The submission indicated that the statutory criteria had been met and "It is open for you to determine that Mr Foster can be surrendered to the United Kingdom". The Minister circled the option on the submission "Surrender approved"; circled the option "Surrender warrant signed", and signed and dated the submission. The Minister then dated and signed the document headed "Surrender Warrant under Section 23".
In my opinion, s 22 of the Extradition Act 1901 requires the surrender of a person to be determined by the Attorney-General, or (by the application of s 19 of the Acts Interpretation Act) by a Minister or member of the Executive Council validly authorised to act, for the time being, for or on behalf of the Attorney-General.
I am of the opinion that the Minister for Justice on 24 July 1998 was not such a person. Because of that conclusion, the Court should make a declaration in terms of paragraph 2A of the amended application, with the addition of the words "or (by the application of s 19 of the Acts Interpretation Act 1901 ) by a Minister or member of the Executive Council validly authorised to act for or on behalf of the Attorney-General".
In my opinion, it is not competent for the Attorney-General to delegate to the Minister for Justice the powers that are conferred by the Act on him. It is important to note that there is no power of delegation under the Act given to the Attorney-General to delegate his powers to the Minister for Justice or, indeed, to anybody else, and further, in my opinion, s 19 of the Acts Interpretation Act 1901 does not provide a basis on which the Attorney-General can delegate his powers and duties under the Act to the Minister for Justice.
It is accepted by the Attorney-General that what in fact occurred in relation to the signing of the warrant is only lawful if there exists some basis on which the Minister for Justice might act for the Attorney-General under ss 22 and 23 of the Act. It is submitted on behalf of the Attorney-General that s 19 of the Acts Interpretation Act 1901 , on its true construction, allows one to read "Attorney-General" in ss 22 and 23 of the Extradition Act as meaning in effect "Attorney-General, including any Minister or Member of the Executive Council for the time being acting for the Attorney-General", and further it was submitted that there is no contrary intention evinced to permit such a reading.
On 10 October 1997 there was a joint press release by the Attorney-General and the Minister for Justice. It commenced:
"Following the Prime Minister's announcement of renewed Ministerial appointments, Attorney-General, Daryl Williams, and Minister for Justice, Senator Amanda Vanstone have determined the allocation of portfolio responsibilities on the following basis:"
[emphasis added]
and there is set out in two columns, one under the heading "Attorney-General" and the other under "Minister for Justice" various matters. In the column of matters under the Attorney-General heading, is included "Director of Public Prosecutions" and "International Law". In the matters referred to in the column headed "Minister for Justice" is included "Criminal Law" and "Extradition". The press release contained the following two statements:
"'The separation of the duties of Attorney-General and Minister for Justice means that Senator Vanstone and I will provide even greater focus on law reform to continue the Government's work to achieve balance, equity and justice for all Australians', Mr Williams said. Senator Vanstone said `Dividing the portfolio responsibilities between the Attorney-General and Minister for Justice will give legal affairs a much higher profile'."
[emphasis added]
On 24 November 1997 the Attorney-General, Mr Williams, wrote to Senator Vanstone. That letter reads:
"I refer to our previous discussions regarding the allocation of portfolio responsibilities, as set out in our joint press release dated 10 October 1997. I am writing in respect of your powers under legislation and associated instruments which refer to the Attorney-General.
The effect of section 19 of the Acts Interpretation Act 1901 is that where a Minister is referred to in an Act, the reference shall be deemed to include any Minister or member of the Executive Council acting for or on behalf of such a Minister, unless the contrary intention appears.
I hereby authorise you as Minister for Justice to exercise for and on my behalf all of the powers and functions which are conferred on me under enactments which refer to `the Attorney-General', together with any powers and functions conferred on me under regulations or other instruments which are made, granted or issued under enactments and which refer to `the Attorney-General'."
It is plain that the last paragraph of the Attorney's letter of 24 November 1997 purports to be an authorisation by the Attorney for the Minister for Justice to exercise all the powers and functions of the Attorney-General under any Act and, in particular, the powers and functions under the Extradition Act. Further, it seems to me clear that the Attorney is relying on s 19 of the Acts Interpretation Act as the source of power for his authorisation.
In my judgment, s 19 of the Acts Interpretation Act 1901 is an interpretation section; it does not authorise one Minister to delegate his powers under an Act to another Minister.
In my view, no contrary intention appears in the Extradition Act 1914 to preclude the operation of s 19 of the Acts Interpretation Act. In my opinion, there is no requirement to be derived from a consideration of the Act that the powers of the Attorney under the Act, and in particular the powers of the Attorney under ss 22 and 23, must in every case be exercised by the Attorney-General personally.
It is true that the Act provides an important role for the Attorney-General in the extradition process: under s 16 of the Act the Attorney-General can authorise the commencement of proceedings for extradition; under s 17(1) the Attorney-General has power to stop the process and order the applicant's release at any time during the eligibility and review stages; under s 19(9) and (10), on conclusion of the eligibility proceedings under s 19, the magistrate is required to report back to the Attorney regarding his findings; and the exercise of the discretion under s 22 and the issuing of the surrender warrant under s 23 are the final stages of the extradition process.
Notwithstanding these references and notwithstanding the importance of the subject matter with which the Act is concerned, if there was in truth a Minister or Member of the Executive Council for the time being acting for or on behalf of the Attorney-General, it would be competent for that person to exercise each of the powers of the Attorney-General to which reference has just been made. The King v Judd [1919] HCA 9; (1919) 26 CLR 168 supports that conclusion. In that case, an offence under s 6(3A) of the War Precautions Act-1916 required that an offence against the Act shall not be prosecuted upon indictment except in the name of the Attorney-General. An indictment against Judd was presented in the name of "The Honourable Littleton Ernest Groom, being the Minister for the time being acting for and on behalf of His Majesty's Attorney-General for the Commonwealth of Australia, who by virtue of an appointment made to him for such purpose prosecuted for His Majesty in his behalf".
All members of the High Court (Griffith CJ, Barton, Isaacs, Gavan Duffy and Rich JJ) held that an offence against the War Precautions Act 1901 may be prosecuted on indictment in the name of the Minister for the time being acting for or on behalf of the Attorney-General. Each judgment turned on the absence of a contrary intention; in particular, there was no issue that Mr Groom was a Minister and was, within the terms of the section, "the Minister for the time being acting for or on behalf of the Attorney-General".
Bainbridge-Hawker v Minister of State for Trade and Customs for the Commonwealth of Australia [1958] HCA 60; (1958) 99 CLR 521 was concerned with the question of whether s 245 of the Customs Act-1954 authorised the institution of proceedings in the official name of the Minister or whether it was necessary that the personal name of the Minister be used. There are references to the effect that s 19 permitted an expansion from a named Minister to include a Minister acting for the time being for or on behalf of that Minister: per Williams J at 527, per Kitto J at 553 and Taylor J at 557. But nothing in the case touches on the important question of in what circumstances a Minister can be said to be acting for the time being for or on behalf of another Minister, and how that state of affairs may properly be brought about.
The question in this case is whether a Minister can of his own motion, so to speak, delegate to another Minister or Member of the Executive Council the powers and functions of the first Minister so as to bring the second Minister within the description in s 19 of the Acts Interpretation Act 1966 . This mode of delegation or authorisation (which is what happened in the present case) is to be contrasted with the approval of the Executive Council to the second Minister acting for or on behalf of the first, or is further to be contrasted with a direction by the Prime Minister that a second Minister act for or on behalf of another Minister.
The second two methods of authorisation were raised by the New South Wales Court of Criminal Appeal in The Queen v Gamble; The Queen v Moore (1983) 72 FLR 352. The notice of appeal in that case, which was an appeal against sentence, was signed by a Minister of the Commonwealth other than the Attorney-General. In the body of the notice of appeal in each instance, the Minister stated that he was acting for or on behalf of the Attorney-General of the Commonwealth. The matter was raised by the Court itself, as appears from the discussion found at p 359 of the report. At p 360 Street CJ said:
"The matter was not argued on behalf of the respondent. The court sought the assistance of the representatives of the Crown to elucidate the factual situation, and the court has now been informed that in September 1982 the Prime Minister asked Mr Brown, the Minister who signed the notice of appeal, to discharge all of the functions of the Attorney-General. The position apparently was that the Attorney-General, Senator Durack, was in ill-health and had relinquished the ordinary discharge of the functions of his office of Attorney-General, those functions being at the Prime Minister's request exercised during Senator Durack's illness by Mr Brown. It was during that period that the present notices of appeal were signed and filed.
As the point has not been argued, and as the practice, so the court has been informed, of assumption, or acting assumption, of the duties by one Minister on behalf of another is of longstanding, along the lines of that which was adopted in the present instance, we take the view that it is not appropriate in the present appeal to go into the matter any further, nor to look behind the practice."
Mr Purvis QC, senior counsel for the Crown had indicated that his instructions were that in September of 1982 Mr Brown was then Minister of State for Communications when Senator Durack, then the Attorney-General, became ill; and the Prime Minister had asked Mr Brown to act as Attorney-General during the currency of Senator's Durack's illness. The Chief Justice asked:
"It is really as a request of the Prime Minister. Are they not the Governor-General's Ministers?
...
And it is normally the Executive Council's authentication. The Prime Minister indicates whom he puts forward; but are they not put forward to the Head of State for accreditation?"
To which Mr Purvis QC replied:
"The view was taken that any Minister was able to act in any portfolio on behalf of any Minister, and at the request of the Prime Minister at that time Mr Brown acted as the Attorney-General."
The position in that case was that there was no question of a permanent job-sharing deal between two Ministers but that, in the absence of the Attorney-General through illness, the Prime Minister had requested the Minister of State for Communications to act for and on behalf of the Attorney-General during the Attorney's illness.
Section 17(h) of the Acts Interpretation Act provides:
"'Minister of State' or `Minister' shall mean one of the King's Ministers of State for the Commonwealth;"
No reliance is placed by the Attorney, in this case, on the provisions of s 19A of the Acts Interpretation Act, which provides:
"19A. (1) Where a provision of an Act refers to a Minister, using the expression `the Minister' without specifying which Minister is referred to, then, unless the contrary intention appears, the expression means:
(a) if, for the time being, different Ministers administer the provision in respect of different matters:
(i) if 2 or more Ministers administer the provision in respect of the relevant matter - any one of those Ministers; or
(ii) if only one Minister administers the provision in respect of the relevant matter - that Minister;
(b) if paragraph (a) does not apply and, for the time being, 2 or more Ministers administer the provision - any one of those Ministers; or
(c) if paragraphs (a) and (b) do not apply - the Minister for the time being administering the provision."
The provisions of ss 19B and 19BA of the Acts Interpretation Act make provision for directions by the Governor-General in circumstances where a Minister or Department has been abolished or where a reference to a Minister or Department is inconsistent with changed administrative arrangements, "by virtue of administrative arrangements ordered by the Governor-General". The Act then provides for the Governor-General to give directions as to how the provision is to take effect in such circumstances.
It seems to me that the intent of s 19 was to provide a mechanism by which illness or absence from Australia or leave or other emergency could be met so as to permit the continued orderly administration of the enactments of the Parliament of the Commonwealth. It is important to note the temporal quality inherent in the application of the section. It was not intended to provide a mechanism by which a Minister might choose which parts of his portfolio he or she would administer and which parts he or she might consign to another Minister. Consistent with the notion of responsible government is the requirement that Ministers of State, appointed by the Governor-General, administer Departments of State, and the cases reflect a "longstanding practice" that the Prime Minister might appoint a Minister to act, for the time being, for or on behalf of another Minister. Those cases indicate that the second Minister acts for or on behalf of the first Minister in respect of the entirety of the powers, duties and functions of the first Minister.
In Constitutional Law in Australia, 2nd ed, Butterworths, the learned author, Peter Hanks, says at p 174:
"Section 64 of the Commonwealth Constitution authorises the Governor-General to `appoint officers to administer such Departments of State of the Commonwealth as the Governor-General in Council may establish', to `hold office during the pleasure of the Governor-General', and to `be the Queen's Ministers of State for the Commonwealth,' "
and at 175 he said:
"A further constraint on the Governor-General's power to appoint Ministers lies in the reference, in s 64, to the role of Ministers - `administering departments of State of the Commonwealth'. If a Member of Parliament receives any payment for discharging the duties associated with an office in the government, the member will be disqualified from Parliament unless he or she is a `Minister of State' within s 64, administering a `department of State'."
In 1952 the Governor-General was advised by Prime Minister Menzies to appoint four members of the House of Representatives as parliamentary under-secretaries. The Speaker considered that the payment of out-of-pocket expenses was enough to disqualify the under-secretaries from membership of Parliament under s 44(iv) of The Constitution. The Parliament, however, resolved that appointments to such positions did not disqualify the appointees from membership of Parliament. In 1971 the Governor-General appointed several assistant ministers, who were appointed as executive councillors but not appointed as ministers of state nor paid any salary above that due to them as members of parliament; their functions being to assist several specified Ministers of State in the administration of their portfolios. Hanks notes:
"It was [generally accepted] that the critical factor was remuneration."
There is much to be said from the above that is for the Governor-General on advice to appoint officers to administer such departments of State as are established, and that it is not even for the Prime Minister to determine who should be appointed to administer such departments. Certainly it does not suggest that a Minister can himself, by his own authorisation, determine which minister shall administer his department of State.
In De Smith's Judicial Review of Administrative Action, 4th ed, by J M Evans, it is said at 304:
"...it is improper for an authority to delegate wide discretionary powers to another authority over which it is incapable of exercising direct control, unless it is expressly empowered so to delegate. Thus the Minister of Works could not allocate to the Minister of Health part of his functions in the system of building licensing."
citing Jackson, Stansfield & Sons v Butterworth [1948] 2 All ER 558, 564-566.
In the 10th ed of ECS Wade and AW Bradley Constitutional and Administrative Law at 118, it is said:
"Where a statutory duty is vested in one Minister, he may not adopt a policy whereby decisions are effectively made by another Minister."
citing Lavender & Son Ltd v Minister of Housing [1970] 3 All ER 871.
The present is not a case in the "alter-ego" line of authorities, where it has been held that a Departmental Official can be the "alter ego" of the Minister and, because the officer is subject to the fullest control by his superior, he is not to be regarded as a delegate. There is no suggestion that the Minister for Justice is in any way the "alter-ego" of the Attorney, because there is no suggestion that the Minister for Justice is subject to the fullest of control (or indeed any control) by the Attorney-General in any decision she might make, or discretion she might exercise, under the purported authorisation of 24 November 1997.
In GTE (Australia) Pty Ltd v Brown (1986) 76 ALR 221, Burchett J made observations relevant to the present difficulty. In that case the Governor-General had notified in the Government Gazette that certain persons had been chosen and summoned to be members of the Federal Executive Council and had been sworn in as Executive Councillors. Those persons included Robert James Lee Hawke, Senator John Norman Button and John Joseph Brown MP. The same Special Gazette notified that the Governor-General:
"...has been pleased to direct and appoint the following members of the Federal Executive Council to hold the offices mentioned in connection with their respective names, and to administer the Departments of State connected with such offices, namely:
The Honourable Robert James Lee Hawke, AC, MP, Prime Minister
...
Senator the Honourable John Norman Button, Minister for Industry and Commerce
...
The Honourable John Joseph Brown, MP, Minister for Sport, Recreation and Tourism and Minister for Administrative Services.
By special Gazette No S 46 of 11 March 1983, the Governor-General, acting with the advice of the Federal Executive Council, approved certain administrative arrangements by virtue of which, inter alia, the Customs Tariff (Anti-Dumping) Act 1975 was included in a list of enactments to be administered by the Minister of State administering the Department of Industry and Commerce."
Burchett J identified the assertion on behalf of the respondent in that case as follows:
"The decisions purportedly made pursuant to s 8 of the Act, in the present case, were each expressed to be made by `John Joseph Brown, Minister of State for Administrative Services acting for and on behalf of the Minister of State for Industry and Commerce'. It is proved that, at the time the decisions were taken, Senator Button was on holidays, and Mr Brown had been requested by the Prime Minister, Mr Hawke, to act as Minister for Industry and Commerce on his behalf. If it matters, it is also proved that Senator Button had endorsed this request by an informal personal communication. It is accepted that there has been a longstanding practice by virtue of which the Prime Minister, from time to time, requests Ministers to act on behalf of other Ministers. But the applicant's submission is that, where a decision can only lawfully be taken by a particular Minister, s 64 of the Constitution of the Commonwealth of Australia precludes the possibility that another Minister, not appointed for the purpose by the Governor-General, may perform that function."
Burchett J at 252 noted:
"It is not the administration of a Department of State with which this case is concerned, but the performance of a particular statutory function."
Burchett J later said:
"It seems to me that in s 19 the reference to a Minister or member of the Executive Council for the time being acting for or on behalf of another Minister has reference to the longstanding practice by which the Prime Minister requests Ministers to act for other Ministers."
His Honour referred to R v Gamble (supra) where the right of another Minister, at the request of the Prime Minister, to act for the Attorney-General, who was ill, in the institution of an appeal was called in question. Burchett J referred at 253 to the dissenting judgment of Gordon J in the Full Court of the Supreme Court of New South Wales, a judgment in R v Judd (1919) 19 SR (NSW) 59. His Honour in that case was of the view that there was no contrary intention expressed in the War Precautions Act. Gordon J's view was the unanimous view of the High Court on appeal, to which reference has earlier been made. Gordon J at p 68 said of the argument that a `contrary intention' was evinced by s 6:
"With all deference I do not agree with that contention. The result would be in the absence of the Attorney-General, no prosecution by indictment could take place, although the duties of the Attorney-General were being performed during his absence by one of his fellow Ministers with the concurrence of the Cabinet. I presume that the Minister so selected to act for and on behalf of the Attorney-General during his absence or during a vacancy in that office, would be capable of fulfilling the duties confided to his care. The Hon Littleton Ernest Groom in whose name the indictment was presented is on the evidence shown to be a Minister of State and for the time being acting for and on behalf of the Attorney-General. Mr Groom was, therefore, when he presented the indictment in question, the Attorney-General for the Commonwealth in every respect except in the name."
Burchett J noted that that passage makes no reference to any `ad hoc' action by the Governor-General, but focussed on whether the elements satisfied s 19 of the Acts Interpretation Act. In an important passage for present purposes, Burchett J said at 254:
"Although it is not specifically stated in the reports that Mr Groom had not been appointed by the Governor-General to administer the Attorney-General's Department during the absence of the Attorney-General, it seems to be implicit in the passage I have quoted from the judgment of Gordon J, and in the submission of counsel upon the High Court appeal, that he had not. Although Gordon J refers to `the concurrence of the Cabinet', I do not think this shows that Mr Groom was acting on behalf of the Attorney-General upon any different basis from that which obtained in the present case. If the Prime Minister requests a Minister to act on behalf of another Minister, and the Cabinet does not demur, I think concurrence sub silentio is to be understood. But the reasons of Barton and Isaacs JJ, particularly having regard to the submission which had been made, is not tied to any particular authorisation; it relies on the generality of s 19 of the Acts Interpretation Act."
In Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153, a notice pursuant to s 15(1)(a) of the Extradition (Foreign States) Act (Cth) was issued by the Minister of State for Trade Negotiations (Cth) "for and (sic) on behalf of the Attorney-General", referring to a number of charges mentioned in warrants issued by a German court. The circumstances in that case were that by letter dated 10 August 1987 the Prime Minister, Mr Hawke, wrote to Mr Duffy, who had been appointed by the Governor-General Minister of State for Trade Negotiation, as follows:
"Mr Bowen will be taking leave for medical reasons for approximately three weeks.
I should be grateful if you would act for and on behalf of the Attorney-General with effect from 9 August 1987 until he returns to duty."
The submission in that case that under s 64 only one Minister can administer each Department of State and that it was not lawful to appoint two Ministers (Mr Hayden and Mr Duffy) to administer the one Department of Foreign Affairs and Trade, does not have any present relevance, although his Honour was of the view that two Ministers might administer the one Department.
It was argued that the reference in s 19 to a Member of the Executive Council should be read down so as to pick up only those Ministers who are actually administering a Department of State. His Honour declined to confine the operation of s 19 in such a way. However, he did note:
"Under that provision [referring to s 19 of the Acts Interpretation Act] it is contemplated that an appointment may be made of a Minister or other member of the Executive Council to act for or on behalf of another Minister."
[emphasis added]
It seems to me that that reference provides no support for the contention by the Attorney in the present case, namely, that it was competent for him, by means of the letter of 24 November 1997, to vest his powers under ss 22 and 23 in the Minister for Justice.
Judd, Gamble, GTE and Zoeller are all cases which seem to reflect a practice that where a minister is unable to act, through illness, absence, or more generally, an appointment may be made, either by Cabinet or by the Prime Minister, of a Minister or member of the Executive Council to act during the absence or indisposition of the first Minister for and/or on behalf of the first Minister in carrying out the duties and exercising the powers of the first Minister. No case supports the view that a Minister can, of his own notion, assign his powers and duties to another minister, the assignment being part only of his duties and powers, and not being an assignment "for the time being".
It might be thought nit-picking and offensive to the efficient and orderly arrangement of the business of the Attorney-General's Department that I have concluded that the Minister for Justice is not a person who satisfies the description in s 19 of the Acts Interpretation Act. However, the liberty of an Australian citizen and our international obligations in respect of extradition highlight the need for a punctilious compliance with the law in this area. Deane J noted in Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 61 ALJR 190 at 196:
"Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody."
My conclusion just expressed is sufficient to dispose of the matter. In the event that my conclusion be wrong, I express my conclusions as to the other bases of challenge by Mr Foster.
It is not in dispute that the making of a determination under s 22 of the Act attracts the requirement to afford an eligible person procedural fairness. As Mason CJ, Deane and McHugh JJ said in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598:
"It can 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: Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 109-110; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at p 456; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, at p 680.
In Kioa v West (1985)159 CLR 550, at 584, Mason J said that the law in relation to administrative decisions `has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' In Haoucher (1990) 169 CLR, at p 653, Deane J said that the law seemed to him `to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making."
The content of the requirement to accord procedural fairness varies according to the exigencies of a particular case, and the question is whether the process which occurred in this case accorded procedural fairness to Mr Foster.
In the present case, subject to satisfaction as to certain specified issues (about which there is no dispute), the discretion as to whether or not to surrender an eligible person is ultimately at large: s 22(3)(f) of the Act. In Forrest v Kelly (1992) 34 FCR 74, the Full Court of the Federal Court (Davies, Wilcox and Einfeld JJ) said at 81:
"Section 22(3) provides that a person is only to be surrendered if certain conditions are satisfied. Those conditions include, in par (f), `the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence'. Contrary to the suggestion of counsel for the appellant, that discretion is not limited to matters arising out of the preceding paragraphs of the subsection. As might be expected, having regard to the variation in the circumstances of extradition matters and the political and diplomatic sensitivities of the subject, the Attorney-General's discretion is at large. The Attorney-General may decline extradition for any reason which he or she thinks appropriate. Those reasons include that the request for extradition has been unduly delayed."
The matters referred to in s 22(3) are the only expressly `relevant considerations'. In the well known passage of Mason J [as he then was] in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-6) 162 CLR 24, he said at 39-40:
"What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50; adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, at p 505. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act."
It follows from that passage that it was competent for the decision-maker to take into account the submissions made by Mr Foster, but there was no obligation to accept them.
In my opinion, all expressly relevant considerations were taken into account by the decision-maker. The question of weight in relation to competing assertions was a matter for the decision-maker. As Mason J said in Peko-Wallsend (supra) at 40-41:
"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.
...
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: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR, at p 375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, at p 205; Elliott v Southwark London Borough Council [1976] 1 WLR 499, at p 507; [1976] 2 All ER 781, at p 788; Pickwell v Camden London Borough Council [1983] QB 962, at p 990."
And at 42:
"...in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."
Contrary to the submission advanced on Mr Foster's behalf, in my opinion, this is not a case where the Minister delegated the exercise of the discretion to somebody else; in my opinion, in this case the Minister did not purport to delegate the exercise of the discretion to any officer or officers responsible to her, and did not do so. It was also contended on behalf of Mr Foster the material on which the Minister relied "consisted almost entirely of unsupported and unsourced hearsay". In assessing the weight to be given to the assertions by Mr Foster, in particular the assertions concerning his safety, in my opinion, the enquiries that were made were adequate in the context of the complaints and it was open to the Minister to reach the conclusions that she did. Moreover, there was no denial of procedural fairness when one has regard to the nature of the opportunities that were given to Mr Foster and his solicitor to respond to the information that had been received concerning the United Kingdom's views and the Australian Federal Police's views on the assertions of Mr Foster.
In my opinion, the decision-maker was entitled to reject the applicant's assertion that there was some collateral purpose on the part of the United Kingdom in seeking Mr Foster's extradition. Likewise, it was open to the decision-maker to reach a different conclusion from that urged by Mr Foster as to the existence or extent of any threat to his safety on extradition. I accept the submission made by Mr Logan on behalf of the Attorney-General that the submissions on behalf of Mr Foster evidence a misunderstanding of Peko-Wallsend in relation to the competence of a decision-maker to determine what weight, if any, is to be given to a particular consideration and as to what factual issues ought properly be reached on material which permits the conclusion that was in fact reached. I also accept that the applicant's submissions indicate a misunderstanding of Kioa v West (supra) in relation to the obligation to afford an opportunity to be heard. In this particular case, it cannot be said that there was anything colourable in the opportunity that was given to him. The claims and assertions by Mr Foster were investigated and, in the end, the Minister was not persuaded that any mandatory ground for denying surrender was made out, nor did any other discretionary factor so indicate. In my opinion, procedural fairness did not require that Mr Foster be given a yet further opportunity to deal with the factual matters in issue. I am not satisfied that any of the grounds of review other than the requirement that the power in s 23 be exercised by the Attorney-General (or by a Minister or member of the Executive Council for the time being acting for or on behalf of the Attorney-General) has been made out.
The final matter relates to the question of information that came into existence subsequent to the signing of the warrant on 24 July 1998. Mr Nyst deposes that he was informed on 18 September 1998 by Mr Williams, Mr Foster's co-accused, that on 14 September 1998 the charges had been listed for trial in the Knightsbridge Crown Court and the Crown offered no evidence against Mr Williams and the charges were dismissed. Mr Williams was discharged and the Crown was ordered to pay his expenses. Subsequently, on Monday 21 September, Mr Nyst wrote to the Attorney-General advising that the Serious Fraud Office had offered no evidence against Mr Williams. The letter said:
"In our respectful submission, that is a development which should cause you to reconsider the exercise of your discretion in relation to our client in this matter."
On 25 September, Mr Meaney wrote to Mr Nyst saying that he had consulted the Serious Fraud Office concerning the dismissal of the charges against Mr Williams, and that Office had confirmed that it fully intended to proceed with the prosecution against Mr Foster on the three counts of using a false instrument and, on that basis, was still seeking the extradition of Mr Foster. Mr Meaney advised:
"The SFO has advised that it will not be proceeding against Mr Foster in relation to the two counts of conspiracy to defraud. We intend to bring that fact to the attention of the Minister for Justice who may well take the view that it would be inappropriate to surrender Mr Foster in relation to the two conspiracy charges."
Subsequent developments can be relevant on the question of the grant of discretionary relief. It would not, I would have thought, have been relevant in a question of review of the decision of 24 July 1998 to issue the warrant. It may have a relevance in relation to any application for a reconsideration of that decision. I am not concerned with any such matter at the moment and, having regard to my finding that the Minister for Justice was not empowered to sign a warrant of surrender under s 23 of the Act, fresh consideration (by a person lawfully authorised to exercise the power) will have to be given to the question of whether Mr Foster is to be surrendered.
I will hear the parties as to the form of the orders I should make, and on costs.
|
I certify that this and the preceding twenty-eight (28) pages are a true copy of the Reasons for Judgment herein of the Honourable
Justice Spender. |
Associate:
Dated: 12/10/98
|
Counsel for the Applicant: | Mr V A Griffin |
| Solicitor for the Applicant: | Witheriff Nyst |
| Counsel for the Respondent: | Mr J A Logan |
| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 29 September 1998 |
|
Written submissions by the applicant:
Written submissions by the respondent |
6 October 1998
2 October 1998 |
|
Date of Judgment: |
12 October 1998 |
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/1998/1299.html