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Federal Court of Australia |
Last Updated: 17 February 1999
Attorney-General v Foster [1999] FCA 81
PRACTICE & PROCEDURE - retrospective legislation amendment - whether amendment deprived the issue raised by the notice of appeal of any real practical significance
EVIDENCE - notice of motion to adduce further evidence not before primary judge - documentary evidence readily accessible to public and not contentious - whether failure to adduce evidence at trial due to a lack of reasonable diligence - whether evidence important to the proper determination of the application - whether new evidence required formal proof.
ADMINISTRATIVE LAW - relevant considerations - whether Minister acted in accordance with the requirements of natural justice and procedural fairness - whether procedural fairness required a further opportunity for respondent to respond to factual matters in issue.
Acts Interpretation Act 1901 (Cth), s 19
Acts Interpretation Act 1998 (Cth)
Australian Constitution 1901 (Cth), s 64
Evidence Act 1995 (Cth), ss 143, 153, 155
Extradition Act 1988 (Cth), ss 22, 23
Judiciary Act 1903 (Cth), s 39B
Law Officers Act 1964 (Cth), s 17
Acts Interpretation Amendment Bill 1998
Extradition (Commonwealth Countries) Regulations, r 7
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 cited
Papzoglou v Republic of the Philippines (1997) 74 FCR 108 cited
Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 cited
Meggitt Overseas Limited v Grdovic (1998) 43 NSWLR 527 cited
Beitseen v Johnson (1989) 29 IR 336 cited
La Roche v Cormack [1991] FCA 627; (1991) 33 FCR 414 cited
Mayne Nickless Limited v Transport Workers Union of Australia (unreported, Full Federal Court, 16 July 1998) cited
Harris v Attorney-General (Cth) (1994) 52 FCR 386 cited
The Queen v Gamble; The Queen v Moore (1983) 72 FLR 352 referred to
GTE (Australia) Pty Ltd v Brown (1986) 76 ALR 221 discussed
R v Judd (1919) 19 SR (NSW) 59 referred to
Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153 discussed
The King v Judd [1919] HCA 9; (1919) 26 CLR 168 cited
Florance v Andrew (1985) 58 ALR 377 cited
Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 cited
Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435 cited
R v Secretary of State for the Home Department, ex parte Doody (1993) QB 157 applied
O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 cited
Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion (1979) 2 ALD 86 cited
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 applied
Forrest v Kelly (1992) 34 FCR 74 referred to
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 cited
Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 cited
Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 cited
THE HONOURABLE DARYL ROBERT WILLIAMS, AM, QC, MP, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA v PETER CLARENCE FOSTER
QG 128 OF 1998
VON DOUSSA, O'LOUGHLIN & MANSFIELD JJ
ADELAIDE (heard in Adelaide)
16 FEBRUARY 1999 IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Appellant AND: Respondent JUDGES:
QUEENSLAND DISTRICT REGISTRY QG 128 OF 1998
THE HONOURABLE DARYL ROBERT WILLIAMS, AM, QC, MP, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
PETER CLARENCE FOSTER
VON DOUSSA, O'LOUGHLIN & MANSFIELD JJ DATE OF ORDER: 16 FEBRUARY 1999 WHERE MADE: ADELAIDE (Heard in Adelaide)
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The notice of cross-appeal be dismissed.
3. The declaration and orders of Spender J dated 12 October 1998 be set aside.
4. The application under s 39B of the Judiciary Act 1903 (Cth) be dismissed.
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 128 OF 1998 |
|
BETWEEN: | THE HONOURABLE DARYL ROBERT WILLIAMS, AM, QC, MP, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Appellant |
|
AND: | PETER CLARENCE FOSTER
Respondent |
JUDGES:
VON DOUSSA, O'LOUGHLIN & MANSFIELD JJ DATE: 16 FEBRUARY 1999 PLACE: ADELAIDE (Heard in Adelaide)
1 This is an appeal from a decision of Spender J reported as Foster v Attorney-General (1998) 158 ALR 394. His Honour, on an application under s 39B of the Judiciary Act 1903 (Cth) made by the present respondent, Peter Clarence Foster, declared that a warrant dated 24 July 1998 issued by the Minister for Justice purportedly under s 23 of the Extradition Act 1988 (Cth) (the Act) in relation to Mr Foster is a nullity in that the discretion referred to in s 22 of the Act may only be lawfully exercised by the Attorney-General or (by the application of s 19 of the Acts Interpretation Act 1901 (Cth)) by a Minister or member of the Executive Council validly authorised to act for or on behalf of the Attorney-General. His Honour held that the Minister for Justice was not validly authorised to act for the Attorney-General at the time. Consequential injunctions were ordered to restrain action being taken on the warrant.
2 Before this Court the Attorney-General has contended that the warrant was validly issued as the Minister for Justice was authorised at the time pursuant to s 19 of the Acts Interpretation Act to act on behalf of the Attorney-General.
3 Mr Foster in his application to the Court also challenged the validity of the exercise of the discretion under s 22 of the Act on the ground that there was a denial of natural justice and procedural fairness. In the presentation of his case before Spender J, Mr Foster contended that there had been a failure to take into account relevant considerations, that there was no evidence to justify a decision that he be surrendered, and that the decision was so unreasonable that it could not properly have been arrived at. It is not disputed that a decision made by the Attorney-General under s 22 is open to review on these grounds: see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538-539; Papzoglou v Republic of the Philippines (1997) 74 FCR 108 at 114-115; and Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119. Spender J held that none of these grounds were made out. Mr Foster has filed a notice of cross-appeal challenging this part of Spender J's reasons for judgment. As the grounds pleaded in the notice of cross-appeal in effect seek to uphold the judgment setting aside the warrant, the filing of a notice of cross-appeal was not the correct procedure. Order 52, r 22(3) of the Federal Court Rules provides that in such circumstances the respondent to the appeal should file a notice of contention. However, no procedural point is taken on behalf of the Attorney-General.
4 The decision of Spender J to set aside the warrant was based on a narrow interpretation of s 19 of the Acts Interpretation Act. At the time of the decision under appeal, that section read:
"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."5 The subject warrant on its face stated that in issuing the warrant the Minister for Justice was acting for the Attorney-General of the Commonwealth. A letter dated 24 November 1997 signed by the Attorney-General and addressed to the Minister for Justice was tendered in the course of evidence before Spender J. That letter read:
"Dear Minister6 Spender J held that s 19 was confined in its operation to cases of temporary absence, for example when a Minister is on holiday or is sick, and that the authorisation had to be by the Prime Minister or Cabinet rather than merely by the authorising Minister.
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 apears.
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'.
Yours sincerely
(Sgd) Daryl Williams"
7 The decision had significant ramifications for government administration as s 19 has commonly been used to authorise a junior portfolio Minister, or another Minister, to exercise statutory powers vested in the holder of a specific Ministerial office. When the appeal came on for hearing the Solicitor-General, appearing for the Attorney-General, informed the Court that the Acts Interpretation Amendment Bill 1998 was that day being introduced to the House of Representatives. The provisions of the Bill according to the Explanatory Memorandum were intended to provide for a Minister to authorise another Minister or Parliamentary Secretary to act on his or her behalf, and to validate past authorisations that may have been made in reliance on s 19 to the extent that they might be invalid. The Bill has since passed into law, see the Acts Interpretation Act 1998 (Act No 125 of 1998) assented to by His Excellency the Governor-General on 21 December 1998. Notwithstanding the introduction of the Bill, no request was made to this Court to adjourn the hearing of the appeal, nor would the Court have been justified in adjourning the matter on account of the possibility that the law could be the subject of amendment by Parliament: see Meggitt Overseas Limited v Grdovic (1998) 43 NSWLR 527.
8 Assuming that the amending Act has the intended effect stated in the Explanatory Memorandum - a point upon which this Court has heard no argument - the question arises whether the amendment has deprived the issue raised by the notice of appeal of any real practical significance such that the Court should refrain from delivering judgment on the point: see Beitseen v Johnson (1989) 29 IR 336; La Roche v Cormack [1991] FCA 627; (1991) 33 FCR 414 and Mayne Nickless Limited v Transport Workers Union of Australia (unreported, Full Federal Court, 16 July 1998). In this case, the appeal seeks to set aside the orders made at trial because, notwithstanding the statutory amendments, the orders made by Spender J, including the injunctions which prevent action being taken on the warrant remain in place. An order of the Court on appeal is required to overturn the orders. The appeal therefore continues to have practical significance, and must be determined by judicial decision.
9 No application has been made by the Attorney-General to reopen the hearing of the appeal to raise the statutory amendments as a reason for overturning the orders of Spender J. The Attorney-General is apparently content to rely on the arguments advanced at the hearing of the appeal which was completed before the amendments were passed.
10 The issue of the warrant by the Minister for Justice was the final step in proceedings for the extradition of Mr Foster to the United Kingdom. Those proceedings had followed the four stage process of international extradition described in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. On 15 April 1997 Mr Foster had been arrested pursuant to a provisional warrant issued under s 12 of the Act. On 22 May 1997 the United Kingdom formally requested Mr Foster's extradition. On 27 May 1997 a notice was issued under s 16 (1) of the Act by the Attorney-General enabling the matter to be heard by a Magistrate. It will be necessary to say more about the matters alleged against Mr Foster and the events which delayed the completion of a hearing before a Magistrate later in these reasons. On 4 March 1998 a Magistrate found Mr Foster eligible for surrender to the United Kingdom on five of six extradition offences alleged against him. An application by Mr Foster to the Supreme Court of Queensland for a review of the Magistrate's order was dismissed on 7 April 1998. On 7 May 1998 Mr Christopher Nyst, the solicitor for Mr Foster forwarded submissions, which with annexures ran into some 274 pages, to the Attorney-General relevant to the Attorney's determination under s 22(2): the terms of that subsection are set out below. Correspondence then passed between Mr Chris Meaney, the Assistant Secretary, International Branch, Criminal Law Division of the Attorney-General's Department and Mr Nyst, to which further reference will be made in these reasons when the notice of cross-appeal is considered.
11 On 24 July 1998 the Minister for Justice issued the warrant for Mr Foster's deportation. The warrant recited that the Minister considered that in her discretion Mr Foster should be surrendered, 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:12 Section 22(1) of the Act defines "eligible person" and "qualifying extradition offence". There is no dispute that Mr Foster came within the definition of an eligible person, and that the warrant was issued in respect of qualifying extradition offences. The following subsections of s 22 then provide:
(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]
"(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.13 Section 23 of the Act provides:
(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;
(c) where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i) the person will not be tried for the offence;
(ii) if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii) if the death penalty is imposed on the person, it will not be carried out;
(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.
(4) ...
(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."
"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."14 At trial counsel for the Attorney-General contended that s 19 of the Acts Interpretation Act, on its true construction, allowed one to read "Attorney-General" in ss 22 and 23 of the 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". It was submitted that there was no contrary intention evinced in those sections which would prevent the application of s 19 in this way.
15 Spender J agreed that there was no contrary intention evinced in ss 22 and 23 of the Act. However, he held that s 19 did not have the wide application submitted on behalf of the Attorney-General, and his Honour construed the section in the narrow manner indicated earlier in these reasons.
16 In his reasons for judgment, his Honour referred to a joint news release by the Attorney-General and the Minister for Justice dated 10 October 1997, and to the letter referred to above from the Attorney-General to the Minister for Justice dated 24 November 1997 wherein the Attorney purported to authorise the Minister for Justice to exercise for and on his behalf all the powers and functions which are conferred on the Attorney under enactments which refer to "the Attorney-General". The news release 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:"17 Then followed two columns, one under the heading "Attorney-General", and the other under "Minister for Justice" for various matters. In the column of matters under the Attorney-General heading, appeared "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 news release continued:
"'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.18 The Attorney-General's letter of 24 November 1997 to the Minister for Justice made specific reference to s 19 of the Acts Interpretation Act, and his Honour considered it clear that the Attorney purported to be relying on s 19 of the Acts Interpretation Act as the source of power for his authorisation to the Minister for Justice to act on his behalf. Submissions to this Court confirm that to be so.
Senator Vanstone said; `Dividing the portfolio responsibilities between the Attorney-General and Minister for Justice will give legal affairs a much higher profile'"
19 Spender J held that s 19 of the Acts Interpretation Act is an interpretation section and that it does not authorise one Minister of his or her own motion to delegate that Minister's powers under an Act to another Minister. His Honour said:
"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 and on behalf of the first, or is further to be contrasted with a direction by the Prime Minister that a second Minister act for and on behalf of another Minister.20 His Honour referred to academic writings concerning s 64 of the Australian Constitution (1901) (Cth). That section provides:
...
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."
"The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish.His Honour continued:
Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth.
After the first general election no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives."
"There is much to be said from (the academic writings) that (it) 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."21 His Honour considered support for his conclusions existed in several decisions to which he referred, The Queen v Gamble; The Queen v Moore (1983) 72 FLR 352; GTE (Australia) Pty Ltd v Brown (1986) 76 ALR 221; R v Judd (1919) 19 SR (NSW) 59; and Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153. In Gamble, 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. In GTE (Australia) the decision under review had been made by the Minister of State for Administrative Services acting for and on behalf of the Minister of State for Industry and Commerce. In the course of his reasons for judgment, Burchett J noted that at the time the decisions were taken, the Minister of State for Industry and Commerce was on holidays, and that the Minister of State for Administrative Services had been requested by the Prime Minister to act as Minister for Industry and Commerce, and said (at 251):
"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."22 Burchett J at 252-3 referred to Gamble's case, and a passage from the dissenting judgment of Gordon J in the Full Court of the Supreme Court of New South Wales in R v Judd. Gordon J's view was subsequently adopted as the unanimous view of the High Court on appeal: see The King v Judd [1919] HCA 9; (1919) 26 CLR 168. Burchett J went on to say, in a passage which Spender J considered was important for the purpose of the present case, at 254:
"Although it is not specifically stated in the reports [relating to Judd] 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."23 In Zoeller a notice had been issued pursuant to s 15(1)(a) of the Extradition (Foreign States) Act 1966 (Cth) by the Minister of State for Trade Negotiations "for and on behalf of the Attorney-General". By letter dated 10 August 1987 the Prime Minister, Mr Hawke, had written to Mr Duffy, who had been appointed Minister of State for Trade Negotiations by the Governor-General, as follows:
"Mr Bowen will be taking leave for medical reasons for approximately three weeks.24 After referring to these cases Spender J said:
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."
"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'."25 Upon the hearing of this appeal, application was made on behalf of the Attorney-General for the Court to receive further evidence, namely Commonwealth Government Gazettes notifying appointments by the Governor-General, and a document issued by the Prime Minister, the Honourable John Howard, on 4 April 1996 entitled "A Guide on Key Elements of Ministerial Responsibility". These documents were not introduced into evidence or otherwise brought to the attention of Spender J at trial. Over objection by counsel for the respondent the Court ruled that this further evidence should be received on the appeal. The reasons for that ruling appear below.
26 The Prime Minister's foreword to "A Guide on Key Elements of Ministerial Responsibility" advises that the document is a Ministerial guide intended as a source of quick reference "for ministers, parliamentary secretaries and ministerial staff" which sets out in summary form the main principles, conventions and rules by which government at the Commonwealth level is conducted. The first chapter of the Guide commences:
"1. THE CONSTITUTIONAL AND LEGAL FRAMEWORK27 The Gazettes establish the following relevant appointments:
Distribution of Powers
The framework for Australian government is set out in the Constitution, with Commonwealth functions separated broadly into legislative, judicial and executive. Executive power is vested primarily in the Governor-General acting with the advice of the Federal Executive Council. The Constitution provides that all ministers are Executive Councillors and the practice has been to appoint all parliamentary secretaries to the Council as well. As members of Parliament, ministers also take part in the exercise of legislative power, including in the introduction of proposed legislation to Parliament for consideration.
Ministers and Departments
Acting on advice, the Governor-General appoints ministers, establishes departments, then formally allocates executive responsibility among ministers through Administrative Arrangements Orders published in special issues of the Commonwealth Gazette. The Orders specify the department which is to be responsible to each minister and list both the specific Commonwealth Acts and the broad functions to be administered in the portfolio."
9 October 1997 Senator Vanstone appointed Minister for Justice by the Governor-General
9 October 1997 The Minister for Justice appointed to administer the Attorney-General's Department by the Governor-General. The instrument of appointment is signed and sealed with the Great Seal of Australia by the Governor-General and counter-signed by the Prime Minister.
18 June 1998 The Governor-General acting with the advice of the Federal Executive Council signed and sealed an Administrative Arrangements Order. The Order was counter-signed by the Prime Minister. The Order revoked all previous administrative arrangements orders, and ordered that:
"1. The matters dealt with by a Department of State include:28 It will be remembered that the joint news release was issued on 10 October 1997, and the Attorney-General's letter authorising the Minister for Justice to act on his behalf pursuant to s 19 of the Acts Interpretation Act was dated 24 November 1997.
(a) the matters referred to in the Part of the Schedule relating to that Department; and
(b) matters arising under the legislation administered by a Minister of State administering the Department.
2. The legislation administered by a Minister of State administering a Department is:
(a) the legislation referred to in the Part of the Schedule relating to that Department; and
(b) legislation passed before or after the date of this Order, that relates to a matter dealt with by the Department, not being legislation referred to in another Part of the Schedule."
The Schedule which followed ordered that the matters dealt with by the Attorney-General's Department include Criminal law and law enforcement, and that the legislation administered by a Minister of State administering the Attorney-General's Department included the Extradition Act.
29 The appointment of the Honourable Daryl Williams as Attorney-General has not been formally proved but it is common ground that at all relevant times he was a duly appointed Minister of State administering the Attorney-General's Department.
30 The further evidence now before the Court establishes that both the Attorney-General and the Minister for Justice were, at the time that the subject warrant was issued, Ministers under order from the Governor-General acting on the advice of the Executive Council, and with the express approval of the Prime Minister, administering the Attorney-General's Department, and the Extradition Act.
31 Counsel for the respondent opposed the reception of further evidence on the appeal on the ground that it could not be established on the Attorney-General's behalf that all reasonable diligence had been exercised prior to trial to procure that evidence and that, even if it had been before the trial court, it would not have produced such a different complexion to the case that reversal of the trial result should ensue: see Florance v Andrew (1985) 58 ALR 377 at 381 Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 and Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435.
32 In support of the Attorney-General's motion that further evidence be received, an affidavit from Mr Bishop, the solicitor who had the carriage of the matter for the Attorney-General, was read in which it was claimed that the precise ground upon which Spender J set aside the warrant was not pleaded until an amendment was allowed during the trial. Counsel for the Attorney anticipated argument about the entitlement of the Minister for Justice to exercise the powers and functions of the Attorney-General under s 22(2) of the Act, and made submissions concerning the application of s 19 of the Acts Interpretation Act. However, we think it is understandable that counsel did not appreciate either at trial, or before the delivery of judgment, that the matters established by the further evidence should have been the subject of formal proof.
33 Fulfilment of the general rules relating to the reception of further evidence on an appeal, discussed in the authorities relied on by the respondent, is of particular importance where the further evidence concerns matters of fact which may have been contentious had the evidence been led at trial. In such a case, on appeal, there is only limited opportunity to challenge the new evidence. If the appeal court considers that the new evidence would have been likely to have affected the result, the remedy open to the court of appeal is to set aside the decision under appeal and to order a retrial so that a trial judge can assess all the available evidence, including the new evidence, to determine the facts of the case. In the present case however, the further material was not of a contentious nature. It comprises documentary material readily available in public libraries. Upon production to the Court, pursuant to s 153 of the Evidence Act 1995 (Cth), it is to be presumed that the documents comprising the new evidence are what they purport to be, published on the day on which each purports to have been published. It is to be presumed that the appointments made by the Governor-General notified in those documents had duly occurred on the days stated, unless the contrary was proved. Moreover, the Administrative Arrangements Order, and the documents signed by the Governor-General appointing Ministers of State constitute Commonwealth records for the purpose of s 155 of the Evidence Act.
34 The parties argued the Attorney-General's motion to adduce further evidence on the footing that the new evidence concerned matters that required formal proof. Even if that is so, we considered that the new evidence should be received as it did not concern facts that could be contentious. The news release of 10 October 1997 and the Attorney-General's letter of 24 November 1997 gave a picture of public administration that was incomplete. The picture is completed by the new evidence which, in our opinion, is important to the proper determination of Mr Foster's application. We consider the failure of the Attorney-General, through his counsel, to anticipate the need to lead the evidence at trial was understandable and was not due to a lack of reasonable diligence.
35 Although the Attorney-General in argument did not seek to invoke s 143 of the Evidence Act, it seems to us that the appointments of Ministers of State and the Administrative Arrangements Orders are orders of the Governor-General made under an Act, namely s 64 of the Constitution and, by s 143(1)(c), do not require proof. They constitute matters about which judges may inform themselves in any way that they think fit: s 143(2). The Gazettes provide an appropriate source for that information.
36 We are unable to agree with the narrow construction which Spender J applied to s 19 of the Acts Interpretation Act. His Honour described the section as an interpretation section rather than one that established the power on the part of a Minister to appoint another Minister or member of the Executive Council to act on his or her behalf. However, whilst his Honour's decision does not turn on this characterisation of s 19, in our opinion the section is not merely one in aid of interpretation of legislation. Other provisions in the Acts Interpretation Act, for example ss 19B, 19BA and 19BB, empower the Governor-General by order to give certain directions. In providing that a reference in an Act to any Minister "shall...be deemed to include...", s 19 has a substantive effect. We agree with the Solicitor-General that if there were no other provisions authorising another Minister to act on behalf of a Minister, s 19 would do so.
37 It is now well recognised that efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes. The observation of Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody (1993) QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) has application in Australia. His Lordship said:
"Parliament frequently confers powers on a minister who is the political head of a department. Much less frequently, it confers powers on an official of a particular description or grade. I know of no instance, and counsel were not able to find one, where power is conferred on a junior minister. But it is absurd to suppose that every power which is conferred on the political head of a department must be exercised by him and him alone. It is in general sufficient that the power is exercised by a junior minister or an official on his behalf."See also O'Reilly v The Commissioners of the State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 at 11.
38 Section 19 recognises and gives effect to the practice of one Minister or a Parliamentary Secretary who is a member of the Executive Council acting for or on behalf of another Minister.
39 In the present case, the Governor-General had appointed two Ministers to administer the Attorney-General's Department and the Extradition Act. The operation of s 64 of the Constitution is not confined to the appointment of one Minister only to administer a department of state: Zoeller v Attorney-General at 165. By the news release of 10 October 1997 the two Ministers announced the allocation of portfolio responsibilities within the Department of State. Then by his letter of 24 November 1997 the Attorney-General, relying on s 19 of the Acts Interpretation Act, appointed the Minister for Justice to act for and on his behalf in respect of enactments which refer to "the Attorney-General". Although Spender J referred to this devolution of power as a delegation of power it was, in strictness, not a delegation. Acts performed pursuant to the authority from the Attorney-General by the Minister for Justice have the character of acts done by the Attorney-General: see Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion (1979) 2 ALD 86 at 93-94 and O'Reilly v The Commissioners of the State Bank of Victoria at 30-31.
40 Spender J held that an authorisation given for the purposes of s 19 of the Acts Interpretation Act required for its validity the assent of the Prime Minister or Cabinet. There is nothing in the language of s 19 which suggests any such limitation. Section 19 was described by Barton J in The King v Judd, at 171, as "absolutely general". The Court has been referred to the House of Representatives Practice, 3rd ed., at 94-95 and Erskine May's Treatise on The Law, Privileges, Proceedings and Usage of Parliament (UK) 22nd ed., at 337. Whilst both authorities refer to the practice of one Minister acting for another there is no suggestion that an authorisation to do so requires the assent of the Prime Minister or Cabinet. Burchett J in GTE (Australia) recognised a "longstanding practice" by virtue of which the Prime Minister has requested Ministers to act on behalf of other Ministers. This practice is sufficient to explain the factual circumstances considered in the cases referred to by Spender J. However, that limitation is not, in our opinion, one imposed by the legislation as distinct from a practice or convention by which government at the Commonwealth level is conducted. In any event, the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by "a Minister of State administering" that Department, is in itself a sufficient indication that the Executive Council and the Prime Minister contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice.
41 In our opinion, there is nothing in the language of s 19 that limits the authorisation of one Minister to act on behalf of another to situations where the other Minister is incapacitated through illness, absence or other temporary cause. Spender J considered that limitation arose from the words "for the time being" which appear in s 19. In our opinion these words are no more than a reference to the situation existing at a particular time. The Shorter Oxford English Dictionary, 3rd ed., defines the expression "for the time being" as meaning "during the period under consideration". We think that is the meaning conveyed by the expression in s 19. The "deeming" effected by s 19 operates while any Minister or member of the Executive Council is acting for or on behalf of the Minister referred to in the relevant Act.
42 We agree with Spender J that the Extradition Act does not indicate a contrary intention which excludes the operation of s 19 of the Acts Interpretation Act in respect of the exercise of power vested in the Attorney-General under ss 22(2) and 23 of the Act. The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: Re Reference under Ombudsman Act s 11 at 93 and O'Reilly v The Commissioners of the State Bank of Victoria at 11. The Act at different stages of the international extradition procedure vests important roles in the Attorney-General. The exercise of the discretion by the Attorney-General under s 22 and the issue of the surrender warrant under s 23 constitute the final stage of the procedure. However, there is no express provision in the Act which either prohibits the delegation of the power, or prohibits the appointment by the Attorney-General of another to exercise those powers on the Attorney's behalf. It could not have been expected by Parliament that the Attorney-General personally would exercise each of the powers reposed in the Attorney-General under the Act in each and every case where extradition is sought. The classic statement of principle by Lord Greene MR in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 has application:
"It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials."43 The Law Officers Act 1964 (Cth), s 17 gives to the Attorney-General a general power of delegation. Under s 17(1) the Attorney-General may either generally or otherwise as provided by the instrument of delegation delegate to the Solicitor-General all or any of his or her powers and functions under all or any of the laws of the Commonwealth. Under s 17(2) the Attorney-General may delegate all or any of his or her powers and functions under the laws of the Commonwealth to the Secretary of the Attorney-General's Department or "to the person for the time being holding or performing the duties of the office specified in the instrument of delegation". That the laws of the Commonwealth permit the delegation of the powers reposed in the Attorney-General under the Extradition Act to others who are not directly answerable to Parliament, lends weight to the conclusion that the nature of the powers reposed in the Attorney-General under the Act need not be exercised personally by the holder of that office.
44 In our opinion the issue of the subject warrant by the Minister for Justice on 24 July 1998 was not rendered invalid by any want of power or lawful authority on the part of the Minister for Justice. On the contrary, in our opinion the Minister for Justice was lawfully exercising the power of the Attorney-General on his behalf at the time.
45 This conclusion requires that we consider the issues raised by the notice of cross-appeal which pleads that Spender J erred in concluding that the Minister for Justice had acted in accordance with the requirements of natural justice and procedural fairness in deciding that Mr Foster should be surrendered.
46 To understand the submissions made on Mr Foster's behalf, it is necessary to summarise the complex factual circumstances which preceded the issue of the subject warrant.
47 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 he was prosecuted by the United Kingdom authorities for false trading offences and was sentenced to a term of imprisonment. The extradition offences in respect of which the warrant was issued concern alleged offences which occurred at about that time.
48 In August 1996 Mr Foster was allowed out of gaol in the United Kingdom for a seven day period. He did not return to prison at the end of that time and his leave was revoked by a senior prison officer. Mr Foster asserts that he was not seeking unlawfully to escape from the authorities but was absent because of an undercover role he had undertaken to assist the police to uncover corrupt prison officers associated with an "Asian mafia".
49 In October 1996 Mr Foster travelled to Australia using a false passport and a false name. He claims that he was provided with a false passport by the Derbyshire Constabulary, an allegation which the Constabulary deny. Mr Foster 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 imprisonment. He 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. However, on 15 April 1997 he was arrested pursuant to a provisional warrant issued under the provisions of s 12 of the Act. This event commenced the first of the procedural steps required by the Act.
50 The provisional warrant was issued in respect of six offences in the United Kingdom of which Mr Foster was accused by the United Kingdom Serious Fraud Office. The offences alleged were 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 alleged that between May and July 1995 Mr Foster and another person named Christopher Williams, committed the offences by unlawfully and dishonestly inducing various people and companies to supply goods, services and facilities to a United Kingdom company called Foremost Body Care Corporation Limited (Foremost). Mr Williams was a director of Foremost. Mr Foster, whilst not a director, is alleged to have played a major role in the operations of Foremost. Foremost was initially concerned with marketing a thigh reducing cream and then introducing a slimming pill. The Serious Fraud Office alleged that, in consequence of the offences, substantial sums are owed to suppliers to Foremost.
51 Following Mr Foster's arrest on the provisional warrant, on 13 May 1997 he was granted bail despite opposition by the DPP. A notice under s 16(1) of the Act signed by the Attorney-General on 27 May 1997 enabled the United Kingdom's extradition request to be heard by a Magistrate. The notice however was challenged by Mr Foster in the Federal Court. On 14 November 1997 Cooper J dismissed the challenge which included an assertion by Mr Foster that the extradition request by the United Kingdom 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 asserted that his life would be endangered if, upon return to the United Kingdom, he were required to spend any time in official custody. Mr Foster lodged a notice of appeal against the decision of Cooper J but further steps were not taken to proceed with the appeal. On 3 July 1998 Mr Foster's solicitors advised that the appeal would be discontinued.
52 The extradition hearing before a Magistrate was set down for 1 December 1997. Mr Foster failed to appear. On this occasion he had absconded. The hearing continued in his absence. Mr Foster was arrested on 7 February 1998 in Melbourne, and on 4 March 1998 a Stipendiary Magistrate found Mr Foster eligible for surrender to the United Kingdom in relation to five of the six extradition offences. Mr Foster's application to the Supreme Court for review of the Magistrate's order was dismissed on 7 April 1998.
On 7 May 1998 Mr Nyst made detailed submissions to the Attorney-General concerning the exercise of the Attorney's discretion under s 22(2) of the Act. 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. The submission acknowledged that a specialty assurance as required by s 22(3)(d) had been given. The submission said that as regards s 22(3)(b) it was not contended that, on surrender to the United Kingdom, Mr Foster would be subject to torture under the sanction of the requesting country. However, the submission went on to give detailed reasons why Mr Foster believed he would be at grave risk of physical danger (including possible torture at the hands of criminals) in the requesting country if he were surrendered. Submissions were made as to the triviality of the offence, as to the lack of good faith on the part of the Serious Fraud office in seeking his extradition, and as to other sufficient causes why Mr Foster should not be surrendered. These three topics were specifically addressed because of the application of regulation 7 of the Extradition (Commonwealth Countries) Regulations. Regulation 7 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:53 The submission made by Mr Nyst argued that it would be unjust or oppressive or too severe a punishment for Mr Foster to be surrendered. The submission concluded as follows:
(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."
"Conclusion54 On 16 June 1998 Mr Meaney from the Attorney-General's Department acknowledged the submission, and asked Mr Nyst to consider matters then outlined in the letter. Relevant to these proceedings, the letter continued:
In our respectful submission it is appropriate that you exercise your discretion under Section 22(2) of the Act, with particular reference to Section 22(3)(e) and Section 22(3)(f), to decline to surrender Mr Foster to the United Kingdom for the reasons set out above. In particular, it is our submission that, given the true gravamen of the charges, and the likely penalty in all the circumstances, the real and obvious danger inherent in returning Mr Foster to the British prison system cannot be justified.
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.
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.
For all of the reasons referred to above, we urge you to decline surrender. If you have any doubts or concerns in relation to any of the material or submissions contained herein, we ask that you provide us with the opportunity to further address you in response."
"Further submissions55 On 23 June 1998 further submissions were forwarded by Mr Nyst in response to the invitation contained in Mr Meaney's letter. Mr Nyst enclosed a memorandum prepared by Mr Foster containing nine pages of single spaced typing. Mr Nyst's letter said that the memorandum contained Mr Foster's instructions "which we believe addresses most of the matters which you have raised". Mr Foster denied the claim that there was no assessable threat to his safety and gave detailed reasons for his contrary belief. He gave references to his exposure as a police informant in widely circulating daily newspapers, to the knowledge of his undercover activities by "a notorious member of the Asian mafia", to incidents which he said bore out his belief that he ran a risk of being executed by criminals, and to many events which supported his view that he could not be adequately protected by the authorities if he were surrendered. The allegation that Mr Foster owed [sterling]15,000 as a gambling debt was asserted to be a complete lie, and Mr Foster suggested that the Attorney-General pursue lines of inquiry in England to confirm Mr Foster's involvement as an informant working with the police and prison service. Numerous threats alleged to have been made against Mr Foster by the Asian mafia were catalogued. The memorandum concluded with the summary that:
2. In your letter, you asked for the opportunity to respond to any submissions from 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.
3. The Home Office, in consultation with the relevant UK law enforcement and prison authorities, has advised that there is no assessable threat to your client's safety in the UK prison system arising from his informant activities. We are also advised that Mr Foster provided information about two Asian prisoners in HMP Sudbury in order to secure their transfer because he owed them a [sterling]15,000 gambling debt and not to assist the authorities to break up an `Asian mafia'.
4. If your client has any additional information he wishes to put before the Minister for her consideration in relation to the question of his safety or any other matter, I invite you to do so by 26 June 1998."
"My life is on the line here, and it is not satisfactory for the Attorney General to reply (sic) upon a simple communication from the Home Office following their half hearted enquiries, to the effect, `she'll be right, mate'.56 On 1 and 11 June 1998 Mr Nyst forwarded letters from Mr Foster supplying additional information which enlarged on the submission of 7 May 1998.
...
I cannot spell it out any clearer, I will die if returned to the UK." (Emphasis in original text).
57 On 17 July 1998 Mr Nyst made a further submission addressed to the Minister for Justice. That submission enclosed another letter from Mr Foster concerning various issues thought relevant to the Minister's decision. Mr Nyst's letter submitted:
"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."58 Mr Foster's submissions to the Attorney-General's Department and supporting annexures were very extensive. They were supplemented by correspondence received by the Department from Mr Foster's mother and, in addition, the Department had information received in response to an inquiry to the Home Office. Mr Meaney prepared for the consideration of the Minister for Justice a summary of the events known or alleged since 1995, and to that summary annexed as "Attachment B" a paper which summarised and reviewed in detail Mr Foster's submissions and his assertions. The paper summarised evidence provided by Mr Foster and where relevant summarised the response of the UK authorities to the allegations. The paper also contained comments and the departmental assessment of the merits of the submissions. Not every piece of paper and appendix received from Mr Foster was placed before the Minister for Justice, although Mr Meaney's summary said:
"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 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.59 Attachment B specifically addresses the available information concerning Mr Foster's submissions that the offence should be treated as trivial because, first, he had no intention to cause loss and secondly, because, as a matter of sentencing, even if he were convicted it is likely that he would receive no, or only a very short, custodial sentence; that the request for his extradition was not bona fide; that the United Kingdom authorities have unduly delayed making an extradition request; that his life would be in danger in the United Kingdom prison system as a result of his informant activities; and that he was in poor physical and mental health. The summary discloses that many of Mr Foster's assertions are denied by the United Kingdom authorities, and that the United Kingdom authorities have indicated that they have evidence which does not bear out important parts of Mr Foster's submissions.
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, the documentation itself has been assembled in a separate folder which has been forwarded to your office."
60 Spender J held that Mr Meaney's summary was a careful and fair one. We agree.
61 It does not follow that because not every document received by way of submission or annexure was placed before the Minister that the Minister did not take into account relevant considerations. Mr Meaney's summary, which was before the Minister, adequately and fairly covered the substance of the material submitted by or on behalf of Mr Foster. The relevant considerations for and against each of the matters urged by Mr Foster were set out in this summary. The evidence does not disclose any basis for a finding that the Minister failed to take into account relevant considerations.
62 In the course of his reasons for judgment his Honour said that "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". After referring then to Forrest v Kelly (1992) 34 FCR 74 at 81 where a Full Court of the Federal Court held that the discretion in s 22(2) was not limited to the matters arising out of paragraphs (a) to (e) of s 22(3), his Honour continued "the matters referred to in s 22(3) are the only expressly `relevant considerations'". In oral argument counsel for Mr Foster contended that these passages in the reasons indicated that his Honour had erred because he had overlooked the provisions of regulation 7 of the Extradition (Commonwealth Countries) Regulations (although in written submissions filed in support of the cross-appeal it was conceded that Spender J correctly found that the matters referred to in s 22(3) of the Act and regulation 7 are the only expressly relevant considerations).
63 In our opinion the oral submission does not pay due regard to the reasons for judgment as a whole. Elsewhere in them his Honour referred expressly to regulation 7, and discussed the submissions made to the Minister by Mr Nyst concerning the three matters mentioned in regulation 7. Whilst there may be a degree of looseness in the language used by his Honour in the passage relied on by counsel for the respondent, when the reasons are considered as a whole we do not consider that his Honour fell into the error alleged. More importantly, however, for the purposes of disposing of this appeal we do not consider that it was established at trial that the Minister for Justice failed to consider the matters about which satisfaction was required under regulation 7, or that the Minister failed to take into account considerations relevant to those issues.
64 Counsel for Mr Foster contended that the information before the Minister rose no higher than suspicion and speculation. It was contended that Mr Foster was denied natural justice because the decision was based on evidence of his character. The submission was supported by a reference to the judgment of Deane J in Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 686-688. In those pages Deane J referred to decisions of the United States Supreme Court which have recognised that the requirements of a fair hearing to which an established alien is entitled will not be satisfied if a deportation is based on no more than suspicion and speculation. Deane J said (at 688):
"...I consider that the approach adopted by the United States Supreme Court that the fundamental standards of fairness which are inherent in the concept of procedural due process extend, at least when issues of the gravity of deportation of an established resident are concerned, to exclude decision on the basis of suspicion and speculation, is of relevance and assistance in the determination of what are the requirements of natural justice when a decision involving issues of such gravity is under review before the Tribunal."65 This submission cannot be accepted. The Minister's decision was conditioned upon there being a determination under s 19 of the Act by a Magistrate that Mr Foster was a person eligible for surrender in relation to specified extradition offences. That condition has been fulfilled. In exercising the discretion under s 22(2) the Minister had to be satisfied as to the matters raised in s 22(3) and regulation 7. To the extent that those matters were not admittedly established, there was ample evidence to support a finding of satisfaction on the part of the Minister.
66 Insofar as the Minister's decision rejects Mr Foster's submissions that the extradition offences were trivial, and that the request for extradition was not made bona fide, any elements of suspicion or speculation in the totality of the evidence arise only by giving weight to the assertions of Mr Foster. If those assertions are put aside, that is, given no weight, the balance of the information is not merely speculation and matters of suspicion. The weight that is to be given to matters to be taken into account is for the decision-maker. The material summarised in Mr Meaney's report to the Minister shows that the central facts asserted by Mr Foster were disputed by the United Kingdom authorities. In short there were conflicting versions of relevant events. The Minister was entitled to give weight to the version propounded by the United Kingdom authorities, and not to give weight to Mr Foster's version. It is not the function of a court on judicial review to substitute its own decision by re-exercising the discretion afresh: Minister for Aboriginal Affairs v Peko Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40-41. There is no error of law simply in the decision-maker making a wrong finding of fact: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at 77 per Brennan J.
67 Insofar as the Minister was required to consider whether there was any other sufficient cause for not surrendering Mr Foster under regulation 7, it was Mr Foster who was asserting facts which he said justified the exercise of the discretion in his favour. In many respects his assertions did not rise above matters of suspicion and speculation. Nevertheless he forcefully argued that the matters should be taken into account and, notwithstanding the argument now put forward on his behalf, the matters were placed before the Minister, and taken into account.
68 The notice of cross-appeal contends that Spender J erred in concluding that procedural fairness did not require that Mr Foster be given a further opportunity to deal with factual matters in issue. The concluding paragraph of Mr Nyst's letter of 7 May 1998 sought the opportunity to make further submissions if the Attorney-General had doubt or concerns in relation to any of the material that had been provided. Mr Meaney's letter of 16 June 1998 gave such an opportunity to Mr Foster in respect of significant matters which had emerged from the Attorney-General's Department's communications with the United Kingdom Home Office, namely that there was no assessable threat to Mr Foster's safety in the United Kingdom prison system, and that Mr Foster had provided information about two Asian prisoners in order to secure their transfer because he owed them a gambling debt, not to assist the authorities to break up an Asian mafia.
69 Mr Nyst's submission of 7 May 1998 demonstrates clearly that Mr Foster and his advisers were alive to the issues which the Attorney-General was required to address under s 22(3) and regulation 7, and to the further fact that the Minister's discretion was ultimately at large in considering whether there was "any other sufficient cause" not to order the surrender of Mr Foster. Extensive submissions were made on each of these issues. It is questionable whether procedural fairness required that any further opportunity be given to Mr Foster to make submissions. Whether that be so or not, a further opportunity was given to address important matters of fact where the Attorney-General's Department had gathered information inconsistent with Mr Foster's submissions. In our opinion the submission that Mr Foster was not given adequate opportunity to be heard or to place material before the decision-maker should be rejected. We agree with Spender J that procedural fairness did not require that Mr Foster be given another opportunity to deal with the factual matters in issue.
70 In our opinion the issues raised by the notice of cross-appeal fail.
71 The appeal should be allowed. The declaration and other orders of Spender J should be set aside. The application under s 39B of the Judiciary Act should be dismissed.
72 In accordance with an agreement reached between the parties on the question of costs, there will be no order as to costs.
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I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
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Associate:
Dated:
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Counsel for the Appellant: | Mr D M J Bennett QC and Mr J A Logan |
| Solicitor for the Appellant: | Australian Government Solicitor |
| Counsel for the Respondent: | Mr J A Griffen QC and Mr P Hackett |
| Solicitor for the Respondent: | Witheriff Nyst |
| Date of Hearing: | 26 November 1998 |
| Date of Judgment: | 16 February 1999 |
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