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Federal Court of Australia |
Last Updated: 16 February 2001
Oates v Attorney-General for the Commonwealth of Australia [2001] FCA 84
EXTRADITION - request by Australia for surrender of a person in Poland to answer criminal charges in Australia - relief sought under s 39B of Judiciary Act 1903 (Cth) in respect of request - whether making of request an exercise of executive power of Commonwealth of a statutory power conferred by s 40 of Extradition Act 1988 (Cth) - whether request required to "conform" to Poland (Extradition: Commonwealth of Australia and New Zealand) Treaty - whether Treaty contained any stipulations with which request for surrender could comply - effect of legal elements of the Australian offences charged lying outside scope of the crimes and offences enumerated in the Treaty understood in accordance with Australian law - effect of delay in making present application
Extradition Act 1988 (Cth) subs 11(3), s 40
Poland (Extradition: Commonwealth of Australia and New Zealand) Treaty
Barton v Commonwealth of Australia [1974] HCA 20; (1974) 131 CLR 477, applied
Johnson v Williams (Attorney-General) [2000] FCA 3 (FC), distinguished
Levinge v Director of Custodial Services (1987) 9 NSWLR 546 (CA), distinguished
Bollag v Attorney-General of the Commonwealth (1997) 79 FCR 198, referred to
R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42 (HL), distinguished
Bou-Simon v Attorney General [2000] FCA 24 (FC), applied
Zoeller v Federal Republic of Germany (1989) 23 FCR 282 (FC), discussed
Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 (FC), distinguished
Russell v United States 789 F2d. 801 (9th Cir. 1986), referred to
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, referred to
Winkler v Director of Public Prosecutions (1990) 25 FCR 79 (FC), referred to
Brown v West [1990] HCA 7; (1990) 169 CLR 195, referred to
R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, referred to
Newcrest Mining (WA) Ltd v The Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513, referred to
Bennett v Government of the United Kingdom [2000] FCA 916, cited
In re Bellencontre [1891] 2 QB 122, cited
Re Arton (No 2) [1896] 1 QB 509, cited
R v Dix (1902) 18 TLR 231, cited
R v Governor of Pentonville Prison; Ex parte Ecke [1974] Crim LR 102, cited
R v Governor of Pentonville Prison; Ex parte Budlong [1980] 1 WLR 1110, cited
Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1, cited
James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, cited
Government of Belgium v Postlethwaite [1988] AC 924, cited
Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161, cited
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC), referred to
Clyne v Evans (1984) 2 FCR 515, cited
ANTONY GORDON OATES v ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA & ANOR
N 1329 OF 2000
LINDGREN J
16 FEBRUARY 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
1. The application be dismissed.
2. The applicant pay the respondents' costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
BETWEEN: |
ANTONY GORDON OATES APPLICANT |
AND: |
THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT |
|
|
COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT |
JUDGE: |
LINDGREN J |
DATE: |
16 FEBRUARY 2001 |
PLACE: |
SYDNEY |
INTRODUCTION
1 This case raises important questions in relation to the requirements for lawfulness of a request by Australia to a foreign state for the extradition of a person to Australia to answer criminal charges here.
2 The applicant ("Mr Oates") who is in Poland resists being extradited to Australia. In this proceeding he attacks, first, the request dated 7 July 1996 by which the first respondent ("the Attorney-General" and "the Attorney") on behalf of the Government of Australia requested the Republic of Poland to return him to Australia ("the Request"). Secondly, he attacks the failure of the Attorney to accede to a request made by his solicitors on his behalf on 6 February 1997 to withdraw the Request. Thirdly, he attacks a decision of the Minister for Justice acting as Attorney-General in November 2000 not to accede to a further similar request made on his behalf.
3 The heart of the case is Mr Oates' submission that the offences with which he is charged lie outside the terms of the relevant extradition treaty, being a treaty signed on 11 January 1932, between His Majesty and the President of the Republic of Poland, the terms of which were recited in the Poland (Extradition: Commonwealth of Australia and New Zealand) Order in Council, 1934 ("the Treaty").
THE OFFENCES CHARGED, THE TERMS OF THE TREATY AND S 40 OF THE EXTRADITION ACT 1988 (CTH)
4 On 11 January 1995 at Perth, a complaint was laid against Mr Oates under the Justices Act 1902 (WA) by Timothy Graham Phillipps, an officer of the Australian Securities Commission ("ASC") and a warrant was issued for his apprehension. At the time, Mr Oates was resident in Poland, where he had resided since 1991. On 2 February 1995 the ASC wrote to Mr Oates in Poland advising him of the issue of the warrant in respect of the seventeen charges referred to in the Request (set out below). The letter informed Mr Oates that the charges arose out of a joint investigation by the ASC and the Australian Federal Police into certain matters. These were directly or indirectly related to Mr Oates' alleged conduct as a director of Bell Resources Ltd ("Bell") in the conferral of benefits on Alan Bond or companies associated with him, to the disadvantage of Bell's shareholders.
5 Commencing with a response dated 10 February 1995 from Mr Oates' solicitors, Webeck Farland Pender ("WFP" - later Mr Oates' solicitors became Michell Sillar, with whom, apparently, WFP merged) to the ASC, there followed a course of correspondence between WFP on behalf of Mr Oates and both the ASC and the Commonwealth Director of Public Prosecutions ("DPP"), to which I will have occasion to refer in more detail below. It will be appreciated that the Request was made some eighteen months after the laying of the charges. The Request was as follows:
"REQUEST FOR THE EXTRADITION TO AUSTRALIA FROM THE REPUBLIC OF POLAND OF ANTONY GORDON OATES
I, Daryl Williams, Attorney-General of Australia, on behalf of the Government of Australia hereby request that Antony Gordon Oates, who is accused in the State of Western Australia of the following offences:
* one count of conspiracy to defraud contrary to section 412 of the Criminal Code of Western Australia;
* eight counts of improper use of position as a company director contrary to section 229(4) of the Companies (Western Australia) Code; and
* eight counts of failure to act honestly as a company director contrary to section 229(1) of the Companies (Western Australia) Code;
be returned to Australia to be dealt with according to law.
Dated at Perth,
this 7th day of July 1996.
Daryl Williams [signed]
Attorney-General"
6 It will be noted that the Request did not refer to any power in the exercise of which it was made, or to any treaty obligation of Poland to accede to the Request. It informed the Polish authorities of the offences with which Mr Oates was charged and simply requested that he "be returned to Australia to be dealt with according to law". The "bare" nature of the Request is relevant to issues to be discussed later.
7 Section 412 of the Criminal Code (Western Australia) referred to in the Request was as follows:
"Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public, or any person, whether a particular person or not, or to extort any property from any person, is guilty of a crime, and is liable to imprisonment with hard labour for seven years."
8 Subsection 229(1) of the Companies (Western Australia) Code was as follows:
"An officer of a corporation shall at all times act honestly in the exercise of his powers and the discharge of the duties of his office.Penalty
(a) in a case to which paragraph (b) does not apply - $5,000, or
(b) where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of any other person or for any other fraudulent purpose - $20,000 or imprisonment for 5 years, or both."
9 Subsection 229(4) of the Companies (Western Australia) Code was as follows:
"An officer or employee of a corporation shall not make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation.Penalty: $20,000 or imprisonment for 5 years, or both."
Section 570 of the Companies (Western Australia) Code made contravention of each of subss 229(1) and (4) an offence.
10 On 22 October 1996 Mr Oates was arrested by the Polish authorities and confined to prison in Gdansk in relation to and as a result of the Request. On 22 May 1997 he was released from prison by order of the Supreme Court of Poland. On 7 September 2000, the European Court of Human Rights decided that Mr Oates' detention had been unlawful, that he should have been released on 22 December 1996, but that since he had accepted a Polish Government apology on 28 August 2000 the matter was resolved.
11 As at the date of the Request, both the Treaty and the Extradition Act 1988 (Cth) ("the Act") had effect (the Extradition (Poland) Regulations 1999 and the current treaty between Australia and the Republic of Poland, a copy of which was set out in Schedule 1 to those Regulations, came into force on 2 December 1999 and therefore post-dated the circumstances of the present case).
12 The Treaty was entered into in the English and Polish languages. His Majesty acceded to the Treaty in respect of, inter alia, the Commonwealth of Australia. The following terms of the Treaty are of particular relevance to this case:
"His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India,And the President of the Republic of Poland,
Desiring to make provision for the reciprocal extradition of criminals,
Have resolved to conclude a Treaty for that purpose, and to that end have appointed as their plenipotentiaries:
...
Who, having communicated their full powers, found in good and due form, have agreed as follows:-
ARTICLE 1 The High Contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party.
...
ARTICLE 3 Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties (that is to say, in Poland, in accordance with the laws of at least one of the Provinces of Poland):-
1. Murder (including assassination, parricide, murder of relations, infanticide, poisoning), or attempt or conspiracy to murder.
[2-18]...
19. Fraud by a bailee, banker, agent, factor, trustee, director, member, or public officer of any company, or fraudulent conversion.
[20-27]...
28. Revolt, or conspiracy to revolt, by two or more persons on board a ship on the high seas, against the authority of the master.
29. ...
Extradition is also to be granted for participation in any of the aforesaid crimes or offences, before, during or after the crime is committed: provided that such participation is punishable by the laws of both the High Contracting Parties (that is to say, in Poland, in accordance with the laws of at least one of the Provinces).
...
ARTICLE 6 Extradition shall not be granted if the accused has by lapse of time, in accordance with the laws of that part of the territories of the High Contracting Parties in which he is found, acquired exemption from prosecution or punishment with respect to the crime or offence for which his surrender is claimed.
ARTICLE 7 A fugitive criminal shall not be surrendered if the crime or offence in respect of which his surrender is demanded is one of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for a crime or offence of a political character.
ARTICLE 8 A person surrendered can in no case be kept in custody or be brought to trial in the State to which the surrender has been made for any other crime or offence, or on account of any other matters, than those for which the extradition shall have taken place, until he has been restored, or has had an opportunity of returning to the State by which he has been surrendered (whether he has made use of this opportunity or not) or else until having returned there he reappears in the country to which he has been previously surrendered.
This stipulation does not apply to crimes or offences committed after the extradition.
ARTICLE 9 Subject to the provisions of Article...19..., the requisition for extradition shall be presented by the diplomatic agent of the High Contracting Party requiring the extradition to the Secretary of State or Minister for Foreign Affairs of the High Contracting Party applied to.
The requisition for the extradition of an accused person must be accompanied by a warrant of arrest issued by the competent authority of the State requiring the extradition, and by such evidence as, according to the laws of the place where the accused is found, would justify his arrest if the crime or offence had been committed there.
If the requisition relates to a person already convicted, it must be accompanied by the sentence of condemnation passed against the convicted person by the competent court of the State that makes the requisition for extradition.
A sentence passed in contumaciam is not to be deemed a conviction, but a person so sentenced may be dealt with as an accused person.
ARTICLE 10 If the requisition for extradition be in accordance with the foregoing stipulations, the competent authorities of the State applied to shall proceed to the arrest of the fugitive.
ARTICLE 11 In urgent cases a criminal fugitive may be apprehended under a warrant issued by any police magistrate, justice of the peace, or other competent authority in either State, on such information or complaint, and such evidence, or after such proceedings, as would, in the opinion of the authority issuing the warrant, justify the issue of a warrant if the crime or offence had been committed or the person convicted in that part of the dominions of the two Contracting Parties in which the magistrate, justice of the peace, or other competent authority exercises jurisdiction. He shall, in accordance with this Article, be discharged if within the term of thirty days a requisition for extradition shall not have been made by the diplomatic agent of the other State in accordance with the stipulations of this Treaty.
ARTICLE 12 Extradition shall take place only if the evidence be found sufficient, according to the laws of the State applied to, (a) either to justify the committal of the prisoner for trial, in case the crime or offence had been committed in the territory of the same State, or (b) to prove that the prisoner is the identical person convicted by the courts of the State which makes the requisition, and that the crime or offence of which he has been convicted is one in respect of which extradition could, at the time of such conviction, have been granted by the State applied to.
No criminal shall be surrendered until after the expiration of fifteen days from the date of his committal to prison to await the warrant for his surrender.
[ARTICLES 13, 14]...
ARTICLE 15 If sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, or within such further time as the State applied to, or the proper tribunal thereof, shall direct, the fugitive shall be set at liberty.
[ARTICLES 16-18]...
ARTICLE 19 His Britannic Majesty may accede to the present Treaty on behalf of any of His Dominions hereafter named - that is to say,..., the Commonwealth of Australia.... Such accession shall be effected by a notice to that effect given by His Britannic Majesty's representative at Warsaw, which shall specify the authority to which the requisition for the surrender of a fugitive criminal who has taken refuge in the Dominion concerned,..., shall be addressed. From the date when such notice comes into effect, which date shall be specified in the notice, the territory of the Dominion concerned or of India shall be deemed to be territory of His Britannic Majesty for the purposes of the present Treaty.
The requisition for the surrender of a fugitive criminal who has taken refuge in any of the above-mentioned Dominions...on behalf of which His Britannic Majesty has acceded, shall be made by the appropriate consular officer of the Republic of Poland...
[ARTICLES 20-23]..." (my emphasis)
13 Section 40 of the Act provided as follows:
"A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General."
14 By subs 9(1) of the Extradition (Foreign States) Act 1966 (Cth) ("the E(FS) Act") the E(FS) Act was made applicable in relation to Poland. Subsection 9(2) of the E(FS) Act provided that if the operation of the relevant Order in Council was subject to any limitations, conditions, exceptions or qualifications, then, subject to Part II of the E(FS) Act, the E(FS) Act applied subject to those limitations, conditions, exceptions and qualifications. It is common ground that in the case of Poland the relevant Order in Council applied subject to any limitations, conditions, exceptions and qualifications found in the Treaty.
15 Section 5 of the Act defined the expression "extradition country" for the purposes of the Act to mean, relevantly, a foreign state to which the E(FS) Act applied by virtue of s 9 of the E(FS) Act. It follows that Poland is an extradition country for the purposes of the Act. It is common ground that subs 11(3) of the Act has the effect that in the case of Poland the Act applies, subject to any limitations, conditions, exceptions and qualifications to which the E(FS) Act was subject by virtue of s 9 of that Act. Accordingly, I proceed on the basis that the Act applies in relation to Poland subject to any limitations, conditions, exceptions or qualifications found in the Treaty.
16 The Treaty is not incorporated into Australian law and subs 11(3) means only that the Act "applies" "subject to" any limitations, conditions, exceptions or qualifications found in the Treaty that are inconsistent with the Act; cf Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-287, 304, 315; Winkler v Director of Public Prosecutions (1990) 25 FCR 79 (FC) at 90 (Wilcox and O'Loughlin JJ); Bollag v Attorney-General (1997) 79 FCR 198 (Merkel J) at 214-216. I will refer later to the relationship between the Act and the Treaty in more detail but it is worthy of emphasis now that the application of the Act is not affected by it unless the Act would "apply" in some manner that is inconsistent with it.
THE MEMORANDUM OF ADVICE DATED 23 DECEMBER 1996
17 Mr Oates' case is based in large part on a Memorandum of Advice dated 23 December 1996 given jointly by eminent senior and junior counsel in Sydney experienced in extradition law and the law relating to company fraud ("the Advice").
18 The Advice recorded that the question asked of counsel by WFP was whether the offences specified in s 412 of the Criminal Code (Western Australia) ("conspiracy to defraud by deceit or fraudulent means"), subs 229(1) of the Companies (Western Australia) Code ("failing to act honestly as an officer of a corporation") and subs 229(4) of the Companies (Western Australia) Code ("making improper use of position"), all of which statutory provisions were set out earlier, fell within any of the crimes or offences listed in Article 3 of the Treaty. Counsel were of the opinion that none of them did.
19 In relation to the first offence, counsel distinguished between the conspiracy to defraud with which that offence is concerned and an actual "fraud by a...director...of any company" to which point 19 of Article 3 of the Treaty refers. They referred to the use of the word "conspiracy" in the expressions "conspiracy to murder" in point 1 of Article 3 and "conspiracy to revolt" in point 28 of Article 3, as emphasising the distinction and the deliberateness of the omission of "conspiracy to defraud" from point 19.
20 In relation to the second offence, counsel thought the question was whether the new statutory offence under subs 229(1) answered the general description, "`fraud by a...director' etc.". They emphasised that par (b) of subs 229(1) did not identify an element of the offence, but marked an aggravating circumstance going to penalty. They described the offence as simply one of failing to act in the best interests of the company with knowledge that the course of action being engaged in is not in the best interests of the company. Counsel expressed the opinion that this could not be described as "fraud by a director", with the result that the charges under subs 229(1) did not fall within point 19 of Article 3.
21 In relation to the third offence, that under subs 229(4), counsel observed, by reference to Australian appellate authorities, that a director can make "improper use" of his or her position even though he or she does not know that the position is being used improperly, and that although an improper use of position may involve an element of fraud, it does not necessarily do so. Counsel concluded that as fraud or an intention to defraud is not a necessary element of contravention of subs 229(4), it is not accurate to describe that offence as one of "fraud by a director" within point 19 of Article 3.
22 The final paragraph of the Advice was as follows:
"It is not clear to us to precisely what use this opinion can be put in Polish proceedings. Issues of reciprocity are often significant in such matters. We note that the opinions we have expressed herein do not imply that, if Poland had similar offences to those set out in para 1 hereof, Australia would not grant a request for extradition from Poland on the basis of such offences." (emphasis in original)
23 The learned authors of the Advice addressed the question they were asked: "whether in Australian law, the offences...pursuant to which the charges [were] laid, fall within any of the crimes or offences listed in...Article 3" (my emphasis). Accordingly, they compared the legal nature and elements of each of the three offences with the legal nature and elements of "fraud", in each case according to principles of Australian criminal law. They were not called upon to address, and did not address, the question whether the underlying facts alleged against Mr Oates constituted fraud by a director of a company, whether according to Australian or Polish law. Accordingly, they did not refer to the facts charged or otherwise to the alleged acts and omissions of Mr Oates. The Advice records that they were briefed with copies of the charges and the Treaty, but refers to no other document as having been supplied to them.
SUBMISSIONS AND REASONING ON THE APPLICATION
24 Mr Oates seeks declaratory relief and consequential orders under s 39B of the Judiciary Act 1903 (Cth), the latter in pars 5, 7 and 9 of the amended application based on declarations sought in paragraphs which precede those respective paragraphs.
1. Attack on the lawfulness of the Request based on the Act and the Treaty - pars 1 and 5 of amended application
25 Mr Oates submits:
* that the Request was made in exercise of a power given by s 40 of the Act and that the existence of the Treaty had the effect that the executive power of the Commonwealth was not, as it might otherwise have been, available to support the making of the Request;
* that where there is, as there was here, an extradition treaty between Australia and another country, Australian law requires that any request by Australia for return of an alleged offender must "conform" to the treaty, and, in particular and in the case of a treaty based on enumerative crimes or offences, may be validly made only in respect of crimes or offences against Australian law, the legal elements of which fall within the legal elements of the crimes or offences listed in the treaty, as those crimes or offences are understood also according to Australian law; and
* that the Attorney could not lawfully make the Request, having regard to the terms of the Act and of the Treaty.
Section 40 of the Act and the executive power of the Commonwealth
26 The Act is concerned, in the main, with extradition from Australia, not extradition to Australia. Part II (ss 12-27) relates to extradition from Australia to "extradition countries" (the expression "extradition country" is defined in s 5 of the Act) and Part III (ss 28-39) relates to extradition to New Zealand. It is only the five sections of Part IV (ss 40-44) that address extradition to Australia, and of those, only s 40 (set out earlier) touches on the making of the request for extradition.
27 Section 40 does not give power to make a request for the surrender of a person. Rather, it assumes that such a request may be made in the exercise of a power to be found elsewhere and requires that an exercise of that power be by or with the authority of the Attorney-General - a requirement that was satisfied in the present case.
28 Mr Oates relies on the use of the expression "a request under section 40" in s 41 and subs 43(1) of the Act. Section 41 provides that where a person is surrendered to Australia "whether or not pursuant to a request under section 40", the person must be brought into Australia and delivered to the appropriate authorities to be dealt with according to law. Subsection 43(1) provides that where the Attorney-General suspects that a person is an "extraditable person" in relation to Australia, whether or not the Attorney-General has, relevantly, made "a request under section 40 or otherwise in relation to the person", the Attorney-General may authorise the taking of evidence for use in proceedings for the surrender of the person to Australia.
29 In my opinion the expression "a request under section 40" in these two provisions means "a request made in accordance with section 40" (cf The Oxford English Dictionary, "under", 20.d.), that is, "a request made by or with the authority of the Attorney-General as required by section 40", not "a request made in exercise of a power given by section 40".
30 Unless it is displaced, it is part of the executive power of the Commonwealth (or the prerogative of the Crown in right of the Commonwealth) to seek and accept from a foreign state the surrender of a person charged with a crime or offence against Australian law: Barton v Commonwealth of Australia [1974] HCA 20; (1974) 131 CLR 477 ("Barton") per Barwick CJ at 487, per McTiernan and Menzies JJ at 490-491, per Mason J at 494-497, 498-499, per Jacobs J at 505-506; Bollag v Attorney-General (1997) 79 FCR 198 (Merkel J) at 209. Far from displacing this aspect of the executive power of the Commonwealth, s 40 of the Act assumes its existence.
31 Mr Oates relies on certain dicta of Barwick CJ in Barton. In that case, Australian citizens, Alexander Barton and Thomas Barton, challenged a request by the Commonwealth of Australia to the Federative Republic of Brazil for their extradition to Australia in respect of criminal charges under the law of New South Wales. There was no extradition treaty between Australia and Brazil, but the E(FS) Act was in force. Part III of that Act authorised and governed extradition by Australia in respect of an "extradition crime" under the laws of foreign states, while Part IV dealt with requisitions by Australia for extradition by foreign states in respect of an "extraditable crime" under Australian law. Both expressions were defined in the E(FS) Act by reference to a list of crimes or offences such as that found in Art 3 of the Treaty, rather than, in substance, simply as all crimes or offences for which the maximum penalty was death or imprisonment for not less than twelve months (cf the definition of "extradition offence" in s 5 of the Act discussed at [78] below). Section 21 of the E(FS) Act, within Part IV of that Act, was as follows:
"Where a person accused or convicted of an extraditable crime is, or is suspected of being, in a foreign state or within the jurisdiction of, or of a part of, a foreign state ... the Attorney-General may make a requisition to that state for the surrender of the person."
Australia asked Brazil to detain the Bartons, warrants for whose arrest had been issued in New South Wales, pending the making of a requisition for their extradition to Australia. All five members of the Court held that it was within the prerogative power of the Commonwealth to make the request for the detention of the Bartons.
32 After expressing the opinion that the request amounted to a request for "extradition" and that the E(FS) Act did not apply to a state, such as Brazil, with which Australia did not have an extradition treaty, Barwick CJ ventured the following opinion as to how the E(FS) Act would have affected the prerogative if there had been a treaty and the E(FS) Act had applied. His Honour stated (at 487-488):
"How, if at all, has the Act impinged upon the prerogative of the Crown to seek and accept the surrender of a fugitive? Doubtless, the prerogative to do so from a foreign state to which the Act applies has been wholly displaced. The Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined. The only power is that of the Attorney-General to requisition of such a state the surrender of a fugitive who is charged with or has committed an extraditable crime. This requisition will be communicated through diplomatic channels, as is international usage." (my emphasis)
In substance, his Honour thought that the prerogative was displaced by s 21 of the E(FS) Act where that Act applied, that is, where there was an extradition treaty.
33 Mr Oates relies on these obiter dicta of Barwick CJ in support of his general submission that where there is an extradition treaty, the executive power of the Commonwealth to request extradition is displaced. But s 21 of the now repealed E(FS) Act differs from s 40 of the Act in two important respects. First, unlike the current s 40, s 21 conferred a power where certain conditions were satisfied ("the Attorney-General may"). Secondly, the word "requisition" ("the Attorney-General may make a requisition to that state for the surrender of the person") as distinct from the word "request" used in s 40 of the Act, shows that s 21 of the E(FS) Act was referring to the invoking of the other state's treaty obligation. In relation to this second point, Barwick CJ said (at 487):
"...in s 21 the authority of the Attorney-General is to make a requisition - a word which appropriately describes a demand as a right pursuant to treaty and which is in contrast with the word request when properly used, which indicates a resort to discretion or grace rather than concession of a right."
34 For the above reasons, the passage from the judgment of Barwick CJ in Barton on which Mr Oates relies is not persuasive as to the proper construction of s 40 of the Act.
35 In the absence of any other suggested statutory source of power to make the Request, I regard s 40 as predicating a request made in the exercise of the executive power of the Commonwealth, and the Request as having in fact been made in exercise of it.
36 Even if the Attorney-General wrongly thought that the Act empowered him to make the Request and that in making it he was exercising such a statutory power, the prerogative is available to support the Request: cf Brown v West [1990] HCA 7; (1990) 169 CLR 195 at 203 (citing Moore v Attorney-General (Irish Free State) [1935] AC 484; R v Bevan; ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 at 487); Newcrest Mining (WA) Ltd v The Commonwealth of Australia [1997] HCA 38; (1997) 190 CLR 513 at 618. (I need not consider the position where a decision-maker specifies the power purportedly exercised since the Request did not do so - see the recent review of the authorities by Kiefel J in Gurubana Gunggandji People of Yarrabah v Great Barrier Reef Marine Park Authority [1999] FCA 437 at [8] to [22].)
37 Further, in my view the evidence does not establish that in making the Request, the Attorney-General understood that he was exercising a power given to him by the Act as distinct from the executive power of the Commonwealth, controlled, to the extent mentioned, by s 40. In so far as the memorandum dated 18 June 1996 from his Department which recommended that the Attorney request extradition referred to s 40, it did no more than refer to that section as requiring that a request for the extradition of Mr Oates from Poland be made by the Attorney or with his authority.
38 I address the Treaty below, but it is convenient to note now that in my opinion, there is no scope for saying that by subs 11(3) of the Act, "limitations, conditions, exceptions or qualifications" contained in the Treaty somehow affect the application of the Act so that the circumstances, in which the executive power of the Commonwealth to request extradition may be exercised, are confined. As I observe below, apart from stipulating formal requirements with which a request must comply if it is to activate the requested state's Treaty obligation to surrender a person, the Treaty does not impose requirements in relation to the making of requests for extradition.
39 In the absence of statutory constraint then, and subject only to certain observations made below which are not relevant on the facts of the present case, the executive power of the Commonwealth referred to in s 61 of the Constitution is at large so that the Attorney may lawfully request extradition of a person to answer any criminal charges in Australia where the Attorney perceives it to be in Australia's interests to make such a request.
40 This broad view of the power to request extradition is supported, if not conclusively established, by statements in the non-treaty case, Barton, to which I now return. In Barton, Barwick CJ appears to have accepted, although been troubled by, the unconstrained nature of the power where, there being no treaty, s 21 of the E(FS) Act did not apply. His Honour stated (at 488):
"However, the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong."
I regard the word "displaced" in this sentence as including the notion of partial displacement, that is, confinement, restriction or limitation.
41 McTiernan and Menzies JJ stated as follows (at 490-491):
"In the case now before this Court,...one state has asked another state to detain fugitive offenders pending the taking of extradition proceedings in relation to them. This request in the absence of legislative authority - and there is none - is claimed to be outside the power of the executive. It is the request itself to which objection is made and it seems to us that the validity of the objection cannot depend in any way upon either the power or the willingness of the Government of Brazil to comply with it. Whether or not the municipal law of Brazil authorizes such detention seems to us to be immaterial. The Government of Australia could not comply with a request by the Government of Brazil to detain a fugitive offender from Brazil pending proceedings for extradition. Australian law does not authorize such detention. We see, however, no reason why the Australian Government could not receive a request from the Government of Brazil to do what it would have to say is beyond its power. A request is not invalid because it must be refused. In this case it is, in our opinion, immaterial that the Government of Brazil has seen fit to comply with the request and issue an order for the arrest of the plaintiffs. The lawfulness of that response is a matter for Brazil, to be determined in Brazil according to the municipal law of Brazil. With that law this Court is not concerned.The very conception of an invalid request is one with which we find some difficulty. We grasp readily enough the idea of an unlawful request, either by making a request which is forbidden by law or requesting an unlawful act, but here what is claimed is simply that the Government of Australia, which has power to treat with the governments of other states about matters of common concern, had no power to make the request which it did to the Government of Brazil. The so-called problem of the invalidity of that request is not unlike that which this Court disposed of in Clough v Leahy [(1905) [1904] HCA 38; 2 CLR 139, esp at 163]. Indeed the problem is one of lawfulness, not of invalidity. In our opinion, short of some statutory prohibition it was not unlawful for the Government of Australia to do what it did, namely to ask another government to do what it considers would contribute to the bringing of the plaintiffs to trial in Australia in accordance with warrants already issued. If the Government cannot make such a request it seems to us that it must follow that, without legislative authority, any request for extradition would have fallen outside executive power. This history contradicts." (my emphasis)
42 Mason J thought that cases relied on by the Bartons to show that requests for extradition were beyond executive power turned, upon analysis, on "persuasive policy considerations". His Honour said of such cases (at 496):
"In part they reflect a view that the government should not as a matter of propriety participate in the detention and custody of a fugitive offender outside Great Britain when legal authority for that detention and custody might be wanting. They reflect also the view that the necessity for statutory authority for extradition in Great Britain makes it difficult, if not impossible, for the Crown to satisfy the requirement of a foreign government that reciprocal extradition of fugitive offenders will be granted to it."
His Honour distinguished such "persuasive policy considerations" from unlawfulness. There is no suggestion in the present case that the Australian authorities will be knowingly participating in a detention of Mr Oates for which authority is lacking under Polish law.
43 After noting that, after the passing of the Extradition Act 1870 (UK), the extradition of offenders to Great Britain was "in large measure" governed by treaty and the provisions of that Act, Mason J observed (at 497-498):
"The effect of the Act of 1870 in its application to extradition pursuant to treaty was to put beyond doubt the abrogation of the executive power formerly enjoyed by the Crown of surrendering fugitive offenders who were alleged to have committed offences against the law of a foreign state, a power which had already been diminished by the Habeas Corpus Amendment Act of 1679, but there is nothing in the statute to support the view that it abrogated or abolished the Crown's prerogative power to request the extradition from a foreign state of a fugitive offender alleged to have committed an offence against the laws of England.... It provided that where, in pursuance of any arrangement with a foreign state, a person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the 1st Sch. to the Act, was surrendered by a foreign state that person should not be tried for any offence committed prior to the surrender other than such of the crimes as may be proved by the facts upon which the surrender was grounded. The section provided an important protection to a fugitive offender who had been extradited pursuant to an arrangement with a foreign state, but it left entirely untouched the executive power of the Crown to request and to negotiate the surrender by a foreign state of a fugitive offender. This executive power therefore remained unaffected and undiminished by the statute."
44 After observing that the making of a request for extradition falls within the executive power of the Commonwealth, Mason J stated (at 501):
"...the power to seek and obtain the surrender by a foreign state of a fugitive offender is an important power essential to a proper vindication and an effective enforcement of Australian municipal law. It is not to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect." (my emphasis)
45 Jacobs J thought that the Extradition Act 1870 (UK) was silent on any power to request extradition "because the grant of such power was unnecessary [because] the Crown already possessed it" (at 506). His Honour also observed that "an intention to withdraw or curtail a prerogative power must be clearly shown", and that even in the case of a treaty country, s 21 of the E(FS) Act did "not diminish the executive power, though possibly s 21 replace[d] the prerogative power of the Crown by a legislative authority to the Attorney-General to make the requisition to the foreign state" (at 508).
46 The various passages from Barton referred to above are entirely consistent with, and supportive of, the existence (and co-existence with the Act) of executive power in the Commonwealth to request the extradition of Mr Oates to answer the seventeen charges in respect of the three statutory provisions set out earlier, whether or not they fall within Article 3 of the Treaty.
47 Finally, I note that my view that the Act leaves at large the executive power of the Commonwealth to request extradition is consistent with the objects of the Act as stated in it. Section 3 of the Act is as follows:
"The principal objects of this Act are:(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;
(b) to facilitate the making of requests for extradition by Australia to other countries; and
(c) to enable Australia to carry out its obligations under extradition treaties.
The distinction between pars (a) and (b) is striking. In so far as the Act deals with the making by Australia of requests for extradition, it is not a code, but is intended to facilitate the exercise of the executive power of the Commonwealth to make such requests.
48 What I have said above provides sufficient reason for dismissing the claim for relief in par 1 of Mr Oates' amended application, that is, the claim for a declaration that any request by or on behalf of the Attorney for the extradition of Mr Oates from Poland must "be made in conformance with the [T]reaty" and "be made only in relation to a crime or offence listed in Article 3 of the Treaty". But there is more to be said against that claim.
The Treaty
49 The first thing to be said about the Treaty is that it does not purport to give rights to Mr Oates, and, not being incorporated into Australian municipal law, it cannot do so.
50 The relevant terms of the Treaty were set out earlier. Subparagraph 1(a) of the amended application seeks a declaration that a request for extradition of Mr Oates from Poland must "be made in conformance with the [T]reaty". But such a request cannot be made in conformity or in disconformity with the Treaty. The reason is that apart from Article 9, the Treaty contains no requirements of a request for extradition. Although Article 9 sets out formal requirements with which, apparently, such a request must comply if it is to activate the other party's Treaty undertaking, it contains no limitation as to the circumstances in which a request may be made. The Treaty contains reciprocal undertakings to surrender persons, not limitations on either country's power to request the other to do so. The Treaty is directed to the nature and extent of the undertaking by the requested country and the circumstances in which that undertaking is enlivened.
51 Subparagraph 1(b) of the amended application seeks a declaration that a request for extradition of Mr Oates from Poland must "be made only in relation to a crime or offence listed in Article 3 of the Treaty". But the Treaty does not so stipulate. As noted by McTiernan and Menzies JJ in Barton (at 490), in a passage set out earlier, a request is not "invalid" because it must be refused. Clearly, it is only in respect of "a crime or offence listed in Article 3 of the Treaty" that Poland and Australia have each undertaken to the other to surrender a convicted or alleged offender. It is therefore natural that in their memorandum to the Attorney, officers of his Department referred to the Treaty: they contemplated engaging Poland's Treaty obligation. But it is a question for the authorities of a requested state how to respond to any request for extradition. Relevant to the question will be its municipal criminal and extradition laws and its own language version of the extradition treaty, upon which its own courts, not those of the requesting state, must rule.
52 The suggested requirement that a request may be made only in respect of "a crime or offence listed in Article 3 of the Treaty" is ambiguous. In the light of the content of the Advice, the drafter of the amended application probably meant that a request may be made only in respect of "a crime or offence, the legal elements of which, according to Australian law, fall within the legal elements of a crime or offence listed in Article 3, also according to Australian law". An alternative meaning of subpar 1(b) is that the facts of the offence as actually alleged must be provable by facts actually alleged which would prove a crime or offence listed in Article 3. In my view, neither supposed requirement of the lawfulness of a request for extradition is imposed by Australian law.
53 It seems that Mr Oates' case for the declaration mentioned must be that in order to be lawful the Request must, in truth and as a matter of objective fact, engage a Treaty obligation of Poland to surrender Mr Oates to Australia. In my view Australian law does not so require. If it did, considerable practical difficulties would arise. Take the present case as an illustration. Australia would be limited to making requests to which Poland, in accordance with Polish law as determined by the courts of Poland and having regard to the Polish language version of the Treaty, had undertaken to accede. It is difficult to accept that the Treaty was intended to impose on the Australian authorities the burden of correctly determining, in effect, what the Polish courts would decide, at the peril of making an invalid request, that is, a request which an Australian court would declare invalid after itself correctly determining, in effect, what the Polish courts would decide.
54 Again, consider the position of the requested country, Poland in the present case. Upon receiving a request the Polish authorities could not know that it was safe to be acted upon until all means of testing its validity in the Australian courts had been unsuccessfully resorted to by the person concerned. If the Polish authorities acted on a request, the validity of which had not been thoroughly tested in Australia, it might transpire that they had devoted money and resources to arresting the person and supporting their actions in the Polish courts, only to be told subsequently that the request had been ruled invalid by an Australian court, with whatever consequences would follow, such as an action by Mr Oates against them for damages akin to our action for damages for unlawful imprisonment. Again, it is difficult to think that the framers of the Treaty intended it to operate in this fashion.
55 The facts of the present case are illustrative of the practical difficulties that can arise. On 16 August 2000 the District Court in Gdansk decided, pursuant to the Polish Code of Criminal Procedure, to decree the extradition of Mr Oates to Australia. Mr Oates appealed to the Court of Appeals in Gdansk on 5 September 2000. The appeal is fixed for hearing on 16 February 2001. According to what Mr Oates' case must be, as I have described it, I must determine the validity of the Request on the basis of my prediction of what the result of that appeal will be. But the actual result in that Court can be known, and soon will be. It would be embarrassing:
* if I were to hold the Request unlawful, in effect on the basis of an assessment by me that the Gdansk District Court erred in Polish law, the more so when the best, indeed the conclusive, evidence of whether Poland has undertaken to extradite Mr Oates will soon be available in the form of an actual decision of the Court of Appeals in Gdansk; or
* (less significantly) if I were to hold the Request valid on the basis of my prediction that Mr Oates' appeal will fail, only to find that the best, indeed the conclusive, evidence of whether Poland has undertaken to extradite Mr Oates, is an actual decision of the Court of Appeals in Gdansk allowing that appeal and setting aside the decision of the Gdansk District Court.
The embarrassment disappears once it is accepted, as I think it should be, first, that a request for extradition is not invalidated merely because the crimes or offences charged are ultimately held to lie outside the Treaty obligation undertaken by Poland, and, secondly, that whether they do is a matter for decision by the courts of Poland reached on the Polish language version of the Treaty and in accordance with Polish law, rather than for the Australian courts.
56 My approach to the issue of the validity of the Request is consistent with that taken by Merkel J in another treaty case, Bollag v Attorney-General of the Commonwealth (1997) 79 FCR 198, to the question of the validity of requests made by a delegate of the Attorney-General pursuant to s 10 of the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("the Mutual Assistance Act") on behalf of the DPP and the Australian Federal Police, to the relevant Swiss authorities. The requests were for assistance in the form of the obtaining of bank records, the issue and execution of search warrants on the premises of Jurg Bollag, a Swiss national, and the summoning of Mr Bollag for examination on oath in relation to his dealings with Alan Bond. Section 10 of the Mutual Assistance Act provided that requests by Australia for international assistance in criminal matters might be made by the Attorney-General.
57 The applicants, Messrs Bollag and Bond, contended that the requests made were not authorised by the Mutual Assistance Act, and were ultra vires, unauthorised by law, and an abuse of the powers of the Attorney-General.
58 After reviewing relevant provisions of the Mutual Assistance Act, the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters and the Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 (Cth), Merkel J made observations to the following effect:
* The Mutual Assistance Act did not forbid, limit or circumscribe the request for assistance which might be made by the executive government in the exercise of the prerogative;
* The requests did not contravene Australian law;
* The requests had been accepted by the Swiss authorities as complying with the treaty;
* Messrs Bond and Bollag had had their allegations that their rights under Swiss law had been infringed determined against them by the relevant judicial authorities and processes in Switzerland; and
* Messrs Bond and Bollag had not demonstrated that any right they had under Australian law had been infringed by the making of the requests or by the requested conduct in Switzerland.
In my opinion, these observations are applicable, mutatis mutandis, in the present case.
Bad faith and abuse of process
59 In several cases in recent years the courts have been confronted with the question whether there is jurisdiction to grant relief in respect of an unlawful removal of a person to a country to be tried on criminal charges there.
60 Mr Oates relies on Levinge v Director of Custodial Sevices (1987) 9 NSWLR 546 (CA) ("Levinge"). In that case, Kirby P and McHugh JA accepted (McLelland AJA expressing no opinion) that the Supreme Court of New South Wales has jurisdiction to prevent an abuse of its process by staying criminal proceedings where, in procuring an alleged offender to be brought into New South Wales to answer the criminal charges, the prosecuting authorities have "knowingly circumvented", or connived in the knowing circumvention of, an applicable extradition treaty. In that case, the appellant alleged that after his arrest by the Mexican police, certain members of the United States Federal Bureau of Investigation ("FBI") paid a Mexican official a bribe of US$40,000 for which the Mexican police delivered him to FBI agents, enabling them to take him into the United States, from which he was extradited to Australia. The appellant unsuccessfully argued that the Australian police and prosecuting authorities had connived in his unlawful and wrongful removal from Mexico into the United States.
61 The facts alleged in Levinge are far removed from those of the present case. It is sufficient to refer to the bribe allegedly paid by the FBI to the Mexican official in that case. Requesting that Poland extradite a person to Australia in which, let it be assumed, the charges are in respect of crimes or offences lying outside Poland's treaty obligations, is of a totally different order. The making of such a request is simply an exercise of the executive power of the Commonwealth to which Poland will respond as it sees fit. There is no criminal or otherwise wrongful conduct by anyone. In particular, there is no misleading, deliberate or otherwise, by the Australian authorities of the Polish authorities. If the conclusion in Poland is that its Treaty obligation is engaged, no doubt it will discharge that obligation by surrendering the person. If, on the other hand, the conclusion in Poland is that its Treaty obligation is not engaged, no doubt it will decide in accordance with Polish municipal law and Polish government policy whether to surrender the person.
62 In the present case the Attorney has made and not withdrawn the Request. For all that is known, the ultimate judicial decision in Poland, like that of the District Court in Gdansk, may be that by the Treaty Poland has obligated itself to extradite Mr Oates. It is impossible to say that in making and not withdrawing the request, the Attorney has knowingly circumvented, or connived in a knowing circumvention of, the Treaty.
63 Even if this Court were now persuaded to rule on some basis that the Request was unlawful, this would not mean that when making it and subsequently not withdrawing it, the Attorney had knowingly circumvented, or connived in a knowing circumvention of, the Treaty, for the purpose of the principle recognised by the majority in Levinge. So far as the evidence shows, the Attorney has at all relevant times believed that Mr Oates was properly extraditable by Poland to Australia. If the Court were now to declare the Request unlawful, the Attorney would apparently act in bad faith if he still persisted with the Request, but that is another matter, and there is simply no legal basis available at present on the evidence on which the Court could make such a declaration.
64 For the above reasons, Levinge does not assist Mr Oates. It is noteworthy that the form of curial relief countenanced by Kirby P and McHugh JA in Levinge was a stay of the criminal proceeding on the ground of abuse of process once the extradited person was before the criminal court in New South Wales. Strictly, therefore, the case is not authority for the availability of relief at the stage at which Mr Oates seeks it, but I accept that consistently with the principle recognised by their Honours, relief may well be available at an earlier stage, once "knowing circumvention" or "connivance in knowing circumvention" was established: cf Bou-Simon v Attorney-General [2000] FCA 24 (FC) ("Bou-Simon") discussed below, in which it seems to have been accepted that in an appropriate case relief might be available in respect of a request for extradition, even though the person concerned was still in the foreign country.
65 In R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42 (HL) ("Bennett"), Bennett, a New Zealand citizen, was alleged to have committed criminal offences in England. The British police traced him to South Africa. The South African police forcibly returned him to England where he was handed over to the British police. There was no extradition treaty between the two countries, but special ad hoc extradition arrangements could be made under s 15 of the Extradition Act 1989 (UK). The British police decided not to take such a proceeding. Mr Bennett claimed that he had been kidnapped from South Africa as a result of a collusive arrangement between the British and South African police forces.
66 The question before the House of Lords was whether there was power to take cognisance of the circumstances in which a defendant in a criminal matter had been brought back into the jurisdiction, and to refuse to try the defendant. The House of Lords held by a four to one majority that the answer was "yes".
67 Again, the facts of Bennett are far removed from those of the present case. Bennett's case was that the British police had circumvented an available extradition process and that he had been unlawfully arrested in South Africa and removed against his will to England. In Bou-Simon, a Full Court of this Court was called on to consider "what Bennett's Case stands for". Since I discuss Bou-Simon below, I will not examine the speeches in Bennett in as much detail as I might otherwise have done. Lord Griffiths said (at 62):
"In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party."
His Lordship had referred earlier to "a serious abuse of power" and to a "flouting" of extradition procedures and deprivation of the accused person of safeguards built into the extradition process for his benefit, such as the speciality provision (at 62). Lord Lowry referred (at 73) to "abuse of the process of the court which is to try the accused" as the ground of justifiable curial intervention in the extradition process.
68 In Bou-Simon, the Attorney requested the Republic of France to extradite Mr Bou-Simon to Australia to face criminal prosecution for alleged contraventions of the Corporations Law. In the course of the extradition proceeding in the French Court, the Australian authorities were requested to provide certain further information. In response, a supplementary affidavit was sworn and provided. Mr Bou-Simon's case was that the supplementary affidavit was misleading and inaccurate and had been relied on by the Australian Government in circumstances such as to amount to an abuse of process.
69 The primary Judge (unreported, Emmett J, 8 April 1998) was prepared to assume that if there were bad faith in relation to the extradition process, an Australian court might interfere on the principles recognised in Bennett, but that the intervention would normally be by way of a stay of the prosecution. His Honour said that although there might have been errors of judgement, he was not persuaded that the deponent of the supplementary affidavit had been shown to be lacking in good faith, or that there was a risk that there was an abuse or fraud on the extradition process such as would justify intervention.
70 On the appeal, Mr Bennett submitted that it was not necessary that bad faith be established to make out a case of abuse of, or fraud on, the extradition process such as would justify curial intervention.
71 The Full Court reviewed the speeches in Bennett and subsequent decisions in which Bennett had been referred to (R v Martin [1997] UKHL 56; [1998] 2 WLR 1 (HL) and R v Staines Magistrates' Court; Ex parte Westfallen [1988] 4 All ER 210). In their joint judgment, their Honours concluded as follows (at [34]):
"It is thus clear that Bennett's Case is concerned with serious misconduct and that it provides no support for a conclusion that there was an abuse of process in the present case. The formulations all differ somewhat, but in the absence of bad faith, it cannot possibly be said, for example, that something occurred here that was so gravely wrong as to make it unconscionable that a trial of Mr Bou-Simon should go ahead, or to make it unconscionable that the extradition proceed to enable a trial to take place. The trial judge's view of Bennett's Case was quite correct. To make out a case of abuse of process on the basis of Bennett's Case, the appellant would be required, at the very least, to prove that Mr Craigie [the deponent of the supplementary affidavit] deliberately set out to mislead the French court and acted fraudulently or in bad faith and this, of course, is quite apart from other considerations that would need to be taken into account both in relation to the establishment of abuse of process and the relief sought."
Their Honours also stated (at [36]):
"We should mention at this point that neither the Attorney-General nor the DPP challenged the judge's conclusion that if bad faith were established in connection with the extradition process, an Australian court might well intervene by ordering a stay of the prosecution in respect of which extradition was sought. Indeed, counsel for the Attorney-General implicitly accepted the correctness of the judge's approach, submitting that his Honour had been correct in concluding that the intervention of the Court would only be justified if bad faith or deliberate deception on the part of the relevant Australian authority were established. He also submitted that the judge was correct in his conclusion that if intervention by the Court were ever justified, it would normally be by way of stay of the prosecution. Essentially, the Attorney-General's submission was that to make out an abuse of process such as to justify intervention, it was necessary to establish that there had been a serious and deliberate abuse of executive power and that no abuse of that nature had been shown in the present case. In oral argument counsel for the DPP took a similar approach, stressing that before any intervention could be justified there would, at the least, need to be established what he described as `an actionable abuse of process' involving a deliberate attempt to mislead."
72 Their Honours considered a submission by Mr Bou-Simon that there were two aspects of abuse of process which do not necessitate the proof of bad faith: vexation, oppression and unfairness to the other party to the litigation; and the bringing of the administration of justice into disrepute (Mr Bou-Simon relied, particularly, on the observations of Mason CJ in Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 256). After reviewing the authorities, their Honours concluded as follows (at [41]):
"In the circumstances of the present case the conduct that might have misled a foreign court (it was conceded that there was no evidence that the French court was in fact misled) could not, in our view, be characterised as sufficiently serious or weighty in terms of vexation, oppression or unfairness to amount to an abuse of process, unless it were shown to be part of an attempt, in bad faith, to deceive the French court. Nor, absent that element of bad faith, could it be said the misleading conduct complained of would bring the administration of justice into disrepute. Accordingly, even if the present matter were to be considered in the light of the broad aspects of abuse of process, rather that more specifically in the light of Bennett's Case, it would still be necessary to show that there was a deliberate attempt by the Australian authorities to mislead the French court."
73 Finally, their Honours stated (at [53]):
"In our view therefore Emmett J, having correctly identified proof of bad faith as an essential prerequisite to any finding that there had been an abuse of process in the present case, and having fully and correctly considered the allegations of misleading conduct, was also correct in declining to make a finding of bad faith. No case for intervention in the criminal proceedings, or otherwise, was made out. This conclusion makes it unnecessary to consider any of the other submissions on behalf of the appellant relating to this aspect of the appeal. In relation to procedural fairness before the French court, however, we would observe that even if an abuse of process had been demonstrated, the nature of the allegedly misleading conduct said to constitute the abuse of process on the one hand and the opportunities, on the other hand, for Mr Bou Simon and his counsel to appear before the French court and to correct any matter they considered to be misleading would, on discretionary grounds, point strongly against the exercise of any power to stay the criminal proceedings."
74 Mr Oates does not submit that there was bad faith on the part of the Attorney or anyone else in the present case and, on the evidence, he could not responsibly make such a submission. The Australian authorities have not misled, deliberately or otherwise, the Polish authorities or courts. The Advice and the four Polish legal opinions have been placed before the Polish courts. There is simply no ground for intervention to be found in the principles recognised in Levinge, Bennett or Bou-Simon.
The Treaty, the Act and double criminality
75 Mr Oates referred to the principle of double (or "dual") criminality as if it assisted him, but it does not. The questions to be asked are:
* What do the Treaty and the Act provide?
* Do their provisions somehow produce the result that Australian law restricts the executive power of the Commonwealth to request Mr Oates' extradition?
76 Mr Oates submits:
"The [T]reaty permits extradition only in respect of crimes or offences listed in Article 3 thereof: see Articles 1,3, 10."
But neither the Articles referred to nor any other Articles in the Treaty support his submission. The Treaty simply contains mutual promises to deliver up. It does not contain any promise not to deliver up or not to request delivery up. The Treaty simply says nothing to the making of a request for delivery up of a person who is accused or convicted of a crime or offence not enumerated in Article 3, or to the response that may be made to such a request.
77 The principle of double criminality is reflected in the Treaty, but not in any way that assists Mr Oates. The principle is reflected in the opening words of Article 3:
"Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties (...):" (my emphasis)
Accordingly, it is, relevantly, only when "fraud by a...director...of any company" is a crime or offence punishable in accordance with the laws of both Australia and Poland, that a request by one of them to the other for surrender of a person will engage the Treaty obligation of that other. But I find nothing in the Treaty to prevent a request being made and acceded to outside the scope of the mutual obligations undertaken. It would, of course, be bad faith for a requesting state knowingly to misinform the requested state that "fraud by a...director...of any company" was a crime or offence punishable in accordance with its laws, or knowingly to mislead the requested state otherwise, but that is not this case.
78 I turn next to the Act which also reflects a principle of double criminality, but, again, not in a way that assists Mr Oates. The definition of "extradition offence" in s 5 of the Act is important. It is relevantly as follows:
"extradition offence means:(a) in relation to a country other than Australia - an offence against a law of the country:
(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or
(ii) if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or
(b) in relation to Australia or a part of Australia - an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months."
Subparagraph (ii) of par (a) of the definition is irrelevant on the facts of this case. It will be seen that otherwise the expression "extradition offence" is defined in relevantly identical terms in relation to both Australia and in relation to any other country: it is defined by reference to penalty rather than to enumerated crimes or offences. (The difficulties inherent in the "enumerative method" of defining extraditable offences in treaties are, perhaps, obvious enough, and prompted the development of the "eliminative method" of defining such offences simply by reference to their punishability according to a minimum standard of severity: cf Shearer, Extradition in International Law (1971) at 132-137.)
79 To be an "extraditable person", a person must be accused or convicted of an "extradition offence": s 6 of the Act.
80 The only other interpretative provision to be noted is that found in subs 10(2) of the Act which provides:
"A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed."
81 Persons in Australia are protected by the Act's restrictions on the response that the Australian authorities may make to requests for extradition. Subsections 16(1) and (2) provide, relevantly, as follows:
"(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.(2) The Attorney-General shall not give the notice:
(a) unless the Attorney-General is of the opinion:
(i) that the person is an extraditable person in relation to the extradition country; and
(ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or
(b) ..." (my emphasis)
This provision reflects a principle of double criminality, though by reference simply to penalty, not to any treaty and not to enumerated offences.
82 Section 19 provides for a magistrate to determine whether a person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender is sought by the extradition country. Subsection 19(2) provides that a person is eligible for surrender in relation to an extradition offence in relation to the extradition country, only if, inter alia, the "supporting documents" (defined in subs 19(3)) have been produced to the magistrate, and
"(e) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia." (my emphasis)
Paragraph 19(9)(c) requires the magistrate to:
"record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General."
This provision plays an important role in connection with the speciality assurance provision contained in s 22 discussed in the next paragraph.
83 Section 22 provides that the person eligible for surrender is to be surrendered only if, inter alia, the extradition country concerned has given a "speciality assurance" in relation to the person. Subsection 22(4) provides that the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of a provision of the country's law, a provision of an extradition treaty in relation to the country or an undertaking given by the country to Australia, the eligible person, after being surrendered to the country, will not, unless he or she has left or had the opportunity of leaving the country,
"be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than:(i) any surrender offence [the expression `surrender offence' is defined in s 5 and perhaps the most common form of it is an extradition offence in respect of which a magistrate has determined under s 19 that a person is eligible for surrender];
(ii) any offence (...) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence;
(iii) any extradition offence in relation to the country (...) in respect of which the Attorney-General consents to the eligible person being so detained or tried;..."
84 The above provisions of the Act confer powers of detention and surrender which the Australian authorities would not otherwise have, subject to protective safeguards in the interests of the individual. While the magistrate is limited to one of the supporting documents, namely, "a duly authenticated statement in writing setting out the conduct constituting the [extradition] offence [for which extradition is sought by the extradition country]" (s 19(3)(c)(ii)), in identifying the acts and omissions comprised in that conduct, for the purpose of determining whether the same conduct would constitute an extradition offence in relation to Australia, the magistrate is entitled to take into account all the conduct in the authenticated statement, not only that which would establish the extradition offence in relation to the extradition country for which extradition is sought: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 (FC) ("Zoeller"). As the Full Court said in Zoeller (at 300):
"All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law."
Accordingly, if elements A, B and C are necessary elements of the extradition offence for which extradition is sought, but A, B, C and D are necessary elements of an Australian offence (or even if D alone establishes an Australian offence), the magistrate is not limited to the part or those parts of the authenticated statement showing conduct proving elements A, B and C, but is entitled to have regard to the whole of the authenticated statement, for the purpose of satisfying himself that there is alleged conduct which would establish element D. (Zoeller was followed by Katz J in the present respect in Bennett v Government of the United Kingdom [2000] FCA 916 at [61] et seq.)
85 I have noted previously that Part IV of the Act deals with extradition to Australia from other countries and that it is only s 40 within that Part which in any way addresses the making by Australia of a request for such an extradition. Section 42 contains a speciality provision to the effect that where an extraditable person in relation to Australia is surrendered to Australia, the person shall not:
"(a) be detained or tried in Australia for any offence that is alleged to have been committed or was committed before the surrender of the person, other than:(i) any offence in respect of which the person was surrendered or any other offence (...) of which the person could be convicted on proof of the conduct constituting any such offence; or
(ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be;..."
Apparently the expression "the conduct constituting any such offence" in s 42 is to be construed expansively as similar expressions are construed in s 19.
86 We do not know what the counterpart provisions of the Polish municipal extradition laws are. For example, we do not know what those laws provide as to the alleged underlying conduct of Mr Oates to which the Polish authorities may have regard, or the documents to which reference may be made to identify that alleged underlying conduct. Such questions are for the Polish courts to decide. All that need be said is that the principle of double criminality recognised in the Act as referable to the underlying conduct alleged is in conformity with the judicial approach to the interpretation of extradition treaties noted at [91] below.
87 Finally, it will be recalled that subs 11(3) provides, relevantly and in its application to this case, that the Act applies in relation to Poland subject to any limitations, conditions, exceptions or qualifications to be found in the Treaty. But there is no provision of the Act touching the making of a request for surrender, the application of which could be the subject of any such limitations, conditions, exceptions or qualifications contained in the Treaty. There are no limitations, conditions, exceptions or qualifications in the Treaty which bear upon the making of such a request.
What if the Request could be unlawful in the absence of bad faith?
88 What if I am wrong in my conclusion above that the Request was an exercise of the executive power of the Commonwealth and in my view that such a request cannot be unlawful, at least in the absence of bad faith (including a deliberate misleading of the requested state, a deliberate circumvention of an applicable extradition treaty of the kind alleged in Levinge, and a deliberate circumvention of an available ad hoc extradition procedure of the kind that occurred in Bennett). This question is difficult to address because it requires me to identify grounds of unlawfulness which, I have held, do not exist. Nonetheless, in the light of the course which the debate took on the hearing, I make the following observations.
89 The Treaty refers, in Articles 9 and 12, to the furnishing of evidence by the requesting state to the requested state. The evidence shows that two lengthy affidavits, one by Stephen David Hall, then Assistant Director in the Perth Office of the DPP, sworn 26 October 1995, and the other of Timothy Graham Phillips, then of the Office of the Chairman of the ASC, Sydney, sworn 27 October 1995, "were included in the extradition brief forwarded to the Polish authorities". There is also evidence suggesting that further affidavits were before those authorities as noted in par [129] below. These affidavits included evidence of the alleged underlying acts and omissions of Mr Oates.
90 The respondents did not submit that the Advice was wrong in so far as it was to the effect that according to Australian law, the legal elements of the three offences did not necessarily establish the legal elements of fraud by an officer of a company, but contended that this was beside the point. For his part, Mr Oates did not submit that the alleged underlying facts did not show fraud by him as an officer of a company, but contended that this was similarly beside the point. Of course it is not in dispute that "fraud by a company director" for the purposes of Australian law is consistent with, and may be accompanied by, underlying facts showing commission of the three offences mentioned. Indeed, the second species of offence (failing to act honestly as an officer of a corporation) expressly contemplates the possibility that at least there may be an accompanying intent to deceive or defraud the company, members or creditors of the company or creditors of any other person, or other accompanying fraudulent purpose.
91 The Treaty is to be construed against the common understanding that the precise formulations of crimes and offences according to municipal systems of criminal law will differ and will change from time to time. Accordingly, it is well established that it is not necessary, in order to satisfy the extradition treaty principle of double criminality, that there be a correspondence between the legal elements of offences under the municipal criminal laws of the respective states: rather, attention is directed to the underlying facts, that is, the alleged acts and omissions of the person whose extradition is sought, and a comparison between them and the terms of the treaty, to see whether the acts and omissions satisfy the terms of the treaty according to the municipal criminal laws of both the requesting and the requested states (In re Bellencontre [1891] 2 QB 122 at 140-141 per Wills J; Re Arton (No 2) [1896] 1 QB 509 at 517; R v Dix (1902) 18 TLR 231 ("...the essential thing was to see whether what the evidence showed prima facie that the prisoner had done was a crime in both countries and within the treaty" - at 232); R v Governor of Pentonville Prison; Ex parte Ecke [1974] Crim LR 102; R v Governor of Pentonville Prison; Ex parte Budlong [1980] 1 WLR 1110 at 1118-1123; Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 at 17 per Deane J). This understanding of the double criminality principle is reflected in the Act's provisions which were discussed at [78] to [85] above and explained by the Full Court in Zoeller, esp at 296-297, 300. Moreover, treaties generally are interpreted more liberally than are domestic statutes: cf James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141 at 152 per Lord Wilberforce; Government of Belgium v Postlethwaite [1988] AC 924 at 947 per Lord Bridge; Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad [1998] HCA 65; (1998) 196 CLR 161 at 227 per Callinan J.
92 Russell v United States 789 F2d. 801 (9th Cir. 1986) provides a pertinent illustration. Australia requested extradition of Russell for conspiracy to defraud. Under Australian law, an overt act was not required to establish conspiracy, whereas an overt act was required under both United States and California law. The United States Court of Appeals for the Ninth Circuit held that Russell was extraditable because her alleged conduct was criminal in both countries, that is, there was evidence of overt acts in any event.
93 In the light of the understanding of the treaty principle of double criminality outlined above, it must surely be arguable that if, contrary to my clear view, the lawfulness of the Request is somehow to be tested by reference to the Treaty, it would have to be tested by reference to the alleged acts and omissions of Mr Oates. On this basis, in the case of the Treaty, based as it is on enumerated crimes or offences, the principle would be satisfied if the underlying facts showed a prima facie case of the relevant Treaty crime or offence, which was a crime or offence according to the municipal criminal laws of both states. In the present case, Mr Oates has not attempted to show, for the purposes of this proceeding, that according to Australian criminal law his acts and omissions as alleged do not show a prima facie case of fraud by a company director (or of offences against s 412 of the Criminal Code (Western Australia) and of subss 229(1) and (4) of the Companies (Western Australia) Code).
2. Attack on the decision to make the Request - a legitimate expectation of the chance to make representations - pars 2 and 5 of the amended application
94 Mr Oates seeks in par 2 of the amended application a declaration that he had a legitimate expectation that unless he was previously advised to the contrary and given a chance to make representations, any request for his extradition would:
"(a) be made in conformance with the Treaty; and(b) be made only in relation to a crime or offence listed in Article 3 of the Treaty."
95 For the reasons given above, in my opinion the Attorney was not limited to making requests of these kinds. It follows that Mr Oates could not have a legitimate expectation that he would be given the advice, and given the chance to make representations, referred to in par 2 of his amended application.
96 There are further general reasons why I do not think Mr Oates had the legitimate expectation described in that paragraph:
* The Request, like the request to a Justice to issue a warrant for arrest, represented an early step in the prosecuting process and such a step does not attract a duty to accord procedural fairness: Clyne v Evans (1984) 2 FCR 515; Nguyen v Critchlow [2000] NSWSC 1145 (Ireland AJ) at [82];
* Advice that a request for extradition is to be made would give fugitives an opportunity to frustrate or delay the extradition process;
* In many cases, the Attorney will not know a fugitive's whereabouts in the requested country and so will be unable to communicate with him or her;
* The fugitive has the opportunity to make representations against his or her extradition to the authorities of the requested state.
97 Mr Oates relies on Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 ("Teoh"). But in Teoh, the applicant was entitled to a hearing generally and the legitimate expectation in question was one of a hearing on a particular matter (the Minister's intention not to give primary importance to the interests of the children) in the course of the general hearing. In the present case, on the other hand, the question is whether Mr Oates was entitled to a hearing at all. That is, Mr Oates must show that he was entitled to a hearing on the particular matter identified in par 2 of the amended application, although not entitled to one generally in relation to the making of a request for his extradition. The general reasons listed above tell at least as strongly against an entitlement to a hearing on that question as they do against an entitlement to a general hearing.
3. Attack on the decision to make the Request - failure to have regard to a relevant consideration, alternatively, "Wednesbury unreasonableness" - pars 3 and 5 of the amended application
98 Paragraph 3 of the amended application seeks three declarations in the alternative. The first is that the Request was invalid because the charges against Mr Oates were not of crimes or offences listed in Article 3 of the Treaty. I have already dealt with Mr Oates' submission that the Request was invalid for that reason.
99 The second alternative declaration is that the Attorney's decision to make the Request was invalid as he failed to have regard to a relevant consideration to which he was bound to have regard, namely, whether the charges were of crimes or offences listed in Article 3 of the Treaty. For reasons given earlier, the Attorney was not required to have regard to the question whether the legal elements of the three offences charged fell within the legal elements of Article 3's "fraud by...a director...of any company", in each case determined according to Australian law. As explained earlier, the Act does not limit the Attorney's entitlement to request extradition and there is no implication to be found in the subject-matter, scope or purpose of the Act that the Attorney is required, when deciding whether to request extradition of a person to Australia, to have regard to the consideration whether the offences charged are within a crime or offence listed in Article 3 of the Treaty, however that notion is understood: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40-42. Accordingly, the second alternative declaration should not be made because the Attorney was not bound to have regard to the consideration mentioned, however that consideration is understood.
100 The Attorney did in fact have regard to the consideration mentioned, if that consideration is understood in a certain way. The memorandum dated 18 June 1996 from the Criminal Law Division of the Attorney-General's Department ("the Department") to the Attorney on which, on 7 July 1996, he recorded his decision to make the Request, stated:
"[w]hile the Polish authorities do not appear to have any trouble in accepting that the alleged offences are covered by offences in the list, they have not, to date, been able to give us unequivocal advice that Oates' alleged conduct, had it occurred in Poland, would be `punishable' under Polish law. They are still examining this issue....We are,..., yet to receive definitive advice on the point."
The memorandum stated:
* that the usual practice was that requests for extradition were not made until the advice of the foreign authorities was received;
* that the DPP had been urging that a formal request be lodged with the Polish authorities;
* that the most recent advice from the Head of the International Relations Department in the Polish Justice Ministry was that definitive advice on the outstanding question was unlikely to be available in the near future; and
* that a formal request for extradition should be lodged immediately, as this would expedite consideration of the matter.
It follows that the Attorney did refer to the question whether the offences charged were in respect of crimes or offences listed in Article 3, although not in the sense or the manner relied on by Mr Oates.
101 The third alternative declaration sought in par 3 of the amended application is that the decision to make the Request was invalid because it was so unreasonable that no reasonable person could have made it. Clearly this ground was formulated by reference to what Lord Greene MR said in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. "Wednesbury unreasonableness" is, as I understand it, concerned with the exercise of a discretion (cf Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 648-650 per Gummow J). It has no relevance to a case such as the present one in which the question for decision is the anterior and fundamental question, whether the lawfulness of the Request necessarily depends on the criterion mentioned.
102 In any event, and finally, for all the reasons given above, unreasonableness is not established.
4. Attack on the decision to make the Request - misleading of the Attorney-General - pars 4 and 5 of the amended application
103 In par 4 of the amended application, Mr Oates seeks, in the alternative, a declaration that:
"(a) the statement in paragraph 3 of the submission to the First Respondent from his Department dated 18 June 1996 that the Applicant has refused to return to Australia voluntarily to face the charges (`the statement') was misleading and incorrect;(b) the First Respondent's decision to make the request was based on the statement;
(c) the First Respondent's decision to make the request was accordingly vitiated as, in the events that happened:
(i) the decision was manifestly unreasonable;
(ii) the decision involved a failure to have regard to a relevant consideration he was bound to have regard to, namely that while the Applicant was not prepared unconditionally to return to Australia voluntarily to face the charges, he was prepared to do so on the basis of conditions communicated to officers of the Second Respondent in the Office of the Commonwealth Director of Public Prosecutions (`DPP') between 14 March 1995 and 4 May 1995;
(iii) breached the Applicant's legitimate expectation, created by the course of correspondence passing between the solicitors for the Applicant and officers of the Second Respondent in the office of the DPP between 14 March 1995 and 4 May 1995 that the First Respondent would not issue a request, or officers of the Second Respondent in the office of the DPP would not approach the First Respondent to have a request made, unless and until the Applicant advised he was not returning voluntarily under any circumstances or unless and until the DPP advised that no further negotiations with the Applicant's solicitors on the topic of voluntary surrender would take place."
In the written submission dated 18 June 1996 to the Attorney-General from the Criminal Law Division of his Department, it was stated that Mr Oates had "refused to return to Australia voluntarily" to face the charges against him. Mr Oates' case for saying that this statement was misleading depends on a course of negotiation engaged in by his solicitors on his behalf which I discuss below. The Attorney's first submission is simply that the statement was true.
104 When the ASC wrote to Mr Oates on 2 February 1995 advising him that a warrant for his apprehension had been issued in Perth on 11 January 1995, it invited him to return to Australia and to surrender himself voluntarily to the warrant, adding:
"Please note that if you fail to accept or decline the offer by Monday 13 February 1995, I will proceed on the basis that you have declined the offer."
105 WFP replied on Mr Oates' behalf to the ASC on 10 February 1995 noting the invitation and asking for further information to enable Mr Oates to consider it. WFP's letter concluded:
"[w]e await your reply and assume that the deadline set out in your letter dated 2 February 1995 shall be extended pending your response to this letter."
106 The ASC replied on 10 February 1995 advising, inter alia, as follows:
"[i]n the light of your correspondence today I will extend the deadline for your client to accept or decline the offer to Monday 26 February, 1995. If your client fails to accept or decline the offer to return voluntarily within that time I will proceed on the basis that he is declining the offer."
107 On 27 February 1995, WFP replied stating:
"[w]e note that in [the ASC's letter dated 10 February 1995] the deadline for our client to accept or decline the ASC offer was stated as Monday, 26 February 1995. We assume that the date given was a misprint and in fact should be Monday, 27 February 1995."
108 On 28 February 1995, the ASC replied to WFP, stating:
"in the circumstances I am prepared to extend the deadline for your client to accept or decline the offer to Tuesday 7 March 1995. If your client fails to accept or decline the offer voluntarily within that time I will proceed on the basis that he is declining the offer. It is extremely unlikely that the deadline will be further extended."
109 In the course of the correspondence between WFP and the ASC, a question was raised as to the bail conditions that would apply to Mr Oates if he were to return to Australia voluntarily - a matter which, the ASC advised WFP, should be raised by them with the DPP. Apparently on 2 March 1995, Mr Webeck of WFP telephoned Mr Hall of the Perth office of the DPP about bail conditions which would permit Mr Oates to return to Poland to live and to work, subject to conditions. The DPP wrote to WFP on 3 March 1995 proposing bail conditions and stating as follows:
"If Mr Oates wishes to avail himself of the above proposal, he will be required to return to Australia within the next four weeks. I also confirm that if he did not return voluntarily but was extradited to Australia, the above conditions would not apply. Indeed, this Office would strongly object to any proposal that your client be permitted to leave Australia if extradited."
110 On 6 March 1995, WFP wrote to the ASC enclosing a copy of that letter from the DPP and advising the ASC that a further copy of the DPP's letter was being sent to Mr Oates for his instructions. WFP concluded their letter by asking:
"...would you kindly extend the deadline for our client to accept or decline the offer from tomorrow (7 March 1995) for a further 7 days until close of business on Tuesday, 14 March 1995."
111 Importantly, on 7 March 1995, the ASC replied stating:
"[t]he deadline for your client to accept or decline the offer is extended for a further 7 days until the close of business on Tuesday, 14 March, 1995." (my emphasis)
The respondents contend that there was no further extension beyond this extension to 14 March 1995, and that further correspondence down to the Department's written submission of 18 June 1996 to the Attorney did not waive that deadline.
112 On 14 March 1995, WFP wrote to the DPP on the subject of bail conditions, concluding:
"[w]e await your early reply. In the meantime, we assume that no steps shall be taken against our client pending the resolution of the above matters."
113 On 16 March 1995, WFP wrote to the ASC enclosing a copy of their letter of 14 March to the DPP, concluding:
"[p]lease confirm that no steps shall be taken against our client pending the resolution of the outstanding matters with the DPP."
It will be appreciated that the ASC's deadline had expired two days earlier on 14 March.
114 On 16 March 1995, the DPP replied to WFP's letter of 14 March relating the bail conditions. The DPP's letter stated as follows:
"As regards the conditions relating to your client's passport and limitations on international travel, it may be possible to agree to amended conditions that would enable Mr Oates to travel for legitimate business reasons, subject to all other matters being agreed.It would not be correct to assume that no steps will be taken against your client pending the resolution of these negotiations. Until such time as negotiations for the voluntary return of your client are successfully finalised, this Office will continue to take such steps as it deems appropriate. In the circumstances, I would suggest that it is in your client's interests to finalise these negotiations as soon as possible." (my emphasis)
Mr Oates submits that the DPP should have informed him that he was already deemed to have refused to return voluntarily, and that by continuing to negotiate with him through his solicitors, the DPP caused him to assume otherwise. But I think that the words "this Office will continue to take such steps as it deems appropriate" were apt to convey the meaning that Mr Oates was at risk of the making of a request at any time for his extradition, if the DPP should deem the taking of that step appropriate.
115 On 17 March 1995, the ASC wrote to WFP, referring to both their letter of 16 March 1995 to the ASC and to the DPP's letter of that same date to WFP. The ASC's letter of 17 March stated:
"In answer to your question regarding what steps may be taken against your client pending the resolution of negotiations I refer you to the letter from the Commonwealth Director of Public Prosecutions."
By referring to the letter from the DPP, this paragraph also conveyed the meaning that Mr Oates was at peril of the making of a request for his extradition, and, indeed, had been at peril of that eventuality since the ASC's deadline had passed on 14 March.
116 On 21 March 1995 WFP wrote to the DPP further about bail conditions. The letter advised that discussions were in train to obtain a surety resident in Perth in a sum of up to $250,000, and requested amended conditions concerning Mr Oates' use of his passport to permit him to engage in international travel "for legitimate business reasons". The final paragraph in the letter was as follows:
"We note that the Director [of Public Prosecutions] will continue to take such steps as the Director deems appropriate but nevertheless suggests that it is in our client's best interest to finalise these negotiations. So that we are able to advise our client of his position in the matter, would you kindly indicate what steps, if any, the Director and/or the ASC have taken in relation to the extradition of our client. Otherwise we see little point in conducting negotiations in good faith for the voluntary return of our client to Australia on conditions that are acceptable to both the Director and our client."
This paragraph makes clear that WFP understood that the DPP and the ASC had reserved the right to seek forcible removal of Mr Oates from Poland to Australia.
117 On 23 March 1995 the DPP replied to WFP. The letter stated that the DPP's proposal was for either a single surety of $500,000 or two sureties of $250,000 each. The last two paragraphs of the DPP's letter were as follows:
"In regard to the final paragraph of your letter I decline to provide the information you seek. It is not apparent that your client could in any way be prejudiced by continuing negotiations for his voluntary return to Australia in these circumstances. As I have previously indicated, in the event that your client did not return voluntarily but was extradited to Australia, this Office would not agree to conditions such as those contained in the attachment to this letter. It is desirable that negotiations concerning your client's position be finalised (one way or the other) as soon as possible and it would be useful if your client could indicate when he expects to be in a position to say whether he is able to comply with the proposed conditions.For your information I advise that on Wednesday 22 March 1995 the writer was telephoned by Mr John Summers. Mr Summers said that he had been asked to act as a surety for your client and had been provided by you with copies of letters from this Office. Mr Summers sought information on the obligations of a surety. I outlined such obligations and told him that he may wish to seek advice from his own solicitor."
Again, the first paragraph set out above makes clear the stance that was being taken by the DPP: Mr Oates was already at risk of being extradited; there was no prejudice to him in his continuing to negotiate about the terms on which he might return voluntarily; and, accordingly, there was no reason why the DPP should advise WFP of any steps already taken towards the extradition of Mr Oates.
118 On 5 April 1995 WFP replied to the DPP advising that the proposed bail surety for Mr Oates was Mr John Summers, a resident of Perth. The letter again discussed bail conditions. It advised that Mr Summers was prepared to act as surety in a sum not exceeding $250,000, and that Mr Oates was contemplating contacting some former colleagues to cover the shortfall of $250,000. The letter included the following paragraph:
"Of greater concern to our client is that notwithstanding agreement being reached in relation to the bail conditions, the Australian Taxation Office may take steps to procure a departure prohibition order against our client in accordance with the provisions of the Income Tax Assessment Act. We shall therefore need an arrangement to be in place with the Australian Taxation Office prior to agreeing to any proper bail conditions."
On the same day (5 April 1995) WFP forwarded a copy of that letter to the ASC.
119 On 7 April 1995, the DPP wrote to WFP asking them to indicate the basis on which they suggested the Australian Taxation Office ("ATO") might take steps to procure a Departure Prohibition Order against Mr Oates. As well, the DPP asked the solicitors to indicate whether they had approached the ATO in this regard or intended doing so.
120 On 28 April 1995, WFP replied advising, inter alia, that Mr Oates was having discussions with a further Australian resident with a view to that person's becoming a second surety to the extent of $250,000. The letter also advised that the ATO had issued assessments against Mr Oates who had lodged objections to them. The solicitors asserted that their understanding was that the Commissioner of Taxation was at liberty to issue a Departure Prohibition Order against Mr Oates if the Commissioner thought it desirable to do so in order to ensure that Mr Oates did not leave Australia without first discharging his alleged tax liability. WFP advised that they needed to have an arrangement in place with the ATO prior to agreeing to any proper bail conditions, that they had not yet approached the ATO in this regard, and that the issue should be included in the discussions regarding the voluntary return of Mr Oates.
121 On 4 May 1995 the DPP wrote to WFP stating that it would be appropriate for them to approach the ATO about the question of a Departure Prohibition Order.
122 On 26 May 1995 the DPP wrote to the Department seeking a notice under s 43 of the Act authorising the taking of evidence for use in extradition proceedings in relation to Mr Oates. The DPP's letter referred to the laying of the complaint against Mr Oates and the issue of the warrant for his arrest, both on 12 January 1995, copies of which documents were attached. The letter stated:
"Oates presently resides in Poland. He was formally advised of the charges against him by letter from the Australian Securities Commission dated 2 February 1995. Through his solicitors he has indicated a preparedness to return to Australia on terms agreeable to him to face the charges. There is no realistic possibility that negotiations will result in Oates' voluntary return in the foreseeable future." (my emphasis)
The letter also stated as follows:
"The offences with which Oates had been charged appear to fall within the ambit of Article 3 clause 19 of that treaty (at least in respect of s.409 [sic - 412] of the Criminal Code and s.229(1) of the Companies (WA) Code) which reads:`19. Fraud by a bailee, banker, agent, factor, trustee, director, member or public officer of any company, or fraudulent conversion.'
In these circumstances there are sufficient grounds to suspect that Oates is an extraditable person in relation to Australia."
123 In his submissions, senior counsel for Mr Oates criticises both of the paragraphs set out above, but I do not think there is substance in the criticisms. I have no reason to doubt that the writer of the letter believed that there was "no realistic possibility" that negotiations would result in Mr Oates' voluntary return in the then foreseeable future. Negotiations had been taking place since February 1995; the question of an additional surety or additional sureties to make up the shortfall of $250,000 had not been resolved; WFP had raised a new issue (the possibility of the making of a Departure Prohibition Order by the ATO) in their letter of 5 April 1995 to the DPP about which WFP had not approached the ATO; and the DPP had not had a reply by WFP to the DPP's letter to them of 4 May 1995 - 22 days earlier.
124 Similarly, I see no problem in the expression of the DPP's opinion that in the light of point 19 of Article 3 of the Treaty, there were sufficient grounds to suspect that Mr Oates was an extraditable person in relation to Australia. If, contrary to my view expressed earlier, the lawfulness of the Request could be challenged on some such basis as that propounded by Mr Oates, I see no reason why the charges against him would not be severable for the purpose. For what relevance it may have, I see no reason not to accept that it did appear to the DPP that two of the crimes or offences charged ("conspiracy to defraud by deceit or fraudulent means" and "failing to act honestly as an officer of a corporation") fell within the Treaty notion of fraud by a director of a company, while the third ("making improper use of position") may or may not have done so.
125 On 28 July 1995 there commenced a different course of negotiation between WFP and the ASC. This time, it was the South Australian regional office of the ASC that was involved, whereas in the correspondence referred to above, it was the ASC's Western Australian regional office in Perth. The ASC wrote from its Adelaide office to WFP inquiring whether Mr Oates would provide a statement to the ASC of his knowledge of the circumstances surrounding the initial acquisition, financing and subsequent disposal of the painting, "La Promenade", by Edouard Manet, during the period 1983 to 1990, by Bond Corporation Holdings Ltd. Commencing with that letter, the course of correspondence between WFP and the Adelaide office of the ASC about this matter continued down to at least 26 June 1996. It is not of direct relevance to the question of Mr Oates' extradition, but Mr Oates relies on it as showing (as it does) that correspondence relating to his cooperation with the ASC continued down to the critical memorandum from the Department to the Attorney dated 18 June 1996.
126 The next development of relevance to the extradition of Mr Oates, following the DPP's "no realistic possibility" letter of 26 May 1995 to the Department, was a further letter from the DPP to the Department dated 13 February 1996. The first four paragraphs of the letter were as follows:
"I refer to my telephone attendance on you of 9 February 1996 and confirm your advice that in addition to the affidavits of Aspinall, Devries and Nizzola the translation of the affidavits of Hall and Phillipps has now been completed and those affidavits have been sent to Poland. I further confirm you are awaiting advice from Polish authorities as to whether the translated materials are sufficient for an extradition request. I note that on receiving advice from Poland that the translated materials are sufficient a formal request for the extradition of Oates will be made.I look forward to being advised of developments in this regard.
With regard to further translation work, I note my advice that it may be appropriate to arrange the translation of the index of evidence in support of the charges alleged to have been committed by Oates: being pages 6-14 of the extradition brief. Further, although the affidavits of Aspinall, Devries and Nizzola contain the bulk of the evidence against Oates this Office considers it advisable that the translator be requested to commence the translation of the final affidavits (MacPherson, May and Reed) albeit on the normal rather than urgent work cost scale.
I look forward to receipt of the English language versions of the Polish criminal and commercial codes following receipt by you of copies from the Polish authorities."
This letter makes clear that by its date (13 February 1996) Polish translations of five affadavits had already been sent to the Polish authorities and that Polish translations of a further three were to be sent to them. Apparently then, by the time of the Polish authorities' receipt of the Request (after 7 July 1996), they were in possession of Polish translations of at least five, and probably eight, affidavits as to the underlying facts. By the letter the DPP also asked the Department to take all steps possible to expedite the matter of Mr Oates' extradition, while acknowledging that the matter was "largely with the Polish authorities".
127 On 26 February 1996 WFP wrote to the ASC in Adelaide advising that Mr Oates was willing to assist in the ASC's inquiries concerning "La Promenade" and that WFP had no objection to the ASC's contacting Mr Oates directly by telephone. The final sentence in the letter, however, was as follows:
"We would nevertheless request that prior to you contacting our client directly, would you kindly provide us with an appropriate indemnity."
128 The ASC's Adelaide office replied on 1 March 1996 asking that WFP "provide further details", and adding:
"Should you in fact be requesting a full immunity from prosecution for your client in respect of this particular matter then I advise that an immunity can not be considered until the Commission has received and reviewed your client's evidence."
129 On 22 April 1996, the DPP wrote to the Department a letter which included the following:
"As you are aware, trial dates have been set for Bond and Mitchell commencing 4 February 1997. We are concerned that time is running in the case and that there is no guarantee of an early response from the General Prosecutor's Office in Poland with respect to the issue of dual criminality. I note that the latest advice from Poland suggests that the material already translated will be sufficient for their needs, assuming dual criminality can be satisfied.In the circumstances, we suggest that consideration be given to making an immediate formal request to Poland for the extradition of Oates.
The advantage of making a formal request is that it might speed up the processes in Poland. We need to do everything that is reasonably open to get Oates back to Australia in time to stand trial with his co-accused.
One potential disadvantage of making a formal request at this stage is that we might be limited to the evidence that has been translated to date. However, unless the procedure in Poland is very different from procedures elsewhere, it should be possible to provide further material if it turns out that the material already translated is not sufficient. If you have any information on that issue, please let me know."
130 As noted earlier, the memorandum from the Criminal Law Division of the Department to the Attorney as to whether a formal request should be made to Poland for Mr Oates' extradition to Australia was dated 18 June 1996. On 7 July 1996 the Attorney noted on the memorandum that he had signed the Request.
131 I have thought it necessary to recount above the course of the correspondence in question in some detail because of Mr Oates' submission that the 14 March 1995 deadline was waived by the subsequent correspondence. In my opinion it was not.
132 It is true that the Departmental memorandum to the Attorney of 18 June 1996 might have conveyed more information than it did. It might have informed the Attorney of the course of correspondence following the passing of the 14 March 1995 deadline, including, for example, the correspondence about Mr Oates' assisting the ASC's inquiries in relation to the "La Promenade" transaction. The memorandum might have selected and emphasised aspects of the correspondence that cast Mr Oates in a more favourable light. The memorandum might have stated matters which might have led the Attorney to decide that further inquiries should be made of Mr Oates before his surrender was requested. But it was not incumbent on its authors to do any of these things and their omission to do any of them did not render the statement that Mr Oates had refused to return to Australia voluntarily false or misleading.
133 In any event, even if I thought the statement was an inadequate summary account of the effect of the correspondence, that inadequacy would not vitiate the decision of the Attorney to make the Request. While I infer, even in the absence of a statement of reasons for his decision to make the Request, that the statement attacked was one consideration to which the Attorney had regard, in the absence of a statement of reasons I do not know what significance, if any, the statement had. There is authority, drawn from another area, suggesting that the supposed inadequacy of the statement not vitiate the Request unless it amounted to a fraud upon the Attorney: see the warrant cases, Lego Australia Pty Limited v Paraggio (1994) 52 FCR 542 at 555, 569; Dunesky v Elder (1994) 54 FCR 540; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 (FCA/Hill J) at 400; Malubel Pty Ltd v Elder (1998) 88 FCR 242 at 259-261. No doubt the Departmental officers might have provided a more ample submission to the Attorney. They might have attached all the correspondence to their memorandum so that the Attorney could make his own assessment of the position. Alternatively, they might have stated in the memorandum that through his solicitors, Mr Oates had been corresponding on the subject of conditions on which he might be prepared to return voluntarily; that a deadline for his agreement to return voluntarily had been set by the DPP and passed; that Mr Oates had found one surety for half the amount of bail security required by the DPP; that there were other unresolved issues such as Mr Oates' wish to be assured that the Commissioner of Taxation would not issue a Departure Prohibition Order against him and that he was requesting an "indemnity"; and that inconclusive correspondence had continued down to the date of the memorandum in relation to the "La Promenade" matter. The statement that Mr Oates had refused to return voluntarily was made in good faith by persons who did not derive any advantage from it, and any inadequacy in it was due to inadvertence. In deciding whether to make the Request, the Attorney was not, in my opinion, bound to have regard to the consideration whether Mr Oates was willing to return voluntarily (there is no basis in the provisions or purpose of the Act for concluding that he was so bound). In all these circumstances, in my opinion, Mr Oates is not entitled to relief.
134 In Johnson v Williams (Attorney-General) [2000] FCA 3, a Full Court of this Court quashed a decision of the Attorney not to withdraw a request for extradition on the ground that he had been misled or had not had drawn to his attention a material position taken by the DPP which might lead to the person's never being brought to trial. Their Honours observed (at [19]):
"It was conceded, quite fairly we should say, that if the Attorney-General was misled or had not had drawn to his attention the position taken by the DPP, then his decision was liable to be set aside, subject to discretionary considerations; see Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 at 90."
The concession deprives the case of authority on the question whether any inadvertent misleading of the Attorney by the omission to mention the possibility that Mr Johnson might never be brought to trial, would have rendered the Attorney's decision liable to be quashed.
135 Leung's case (reported in the official reports at (1997) 79 FCR 400) was one in which applicants for certificates themselves made misrepresentations to the Minister in order to obtain the certificates. The proeeding was one between the actual misrepresentors (certificate holders) and the Minister. The misrepresentors could hardly, in these circumstances, insist on the invulnerability of their certificates from attack.
136 For the above reasons, both Johnson v Williams (Attorney-General) and Leung's case are distinguishable from the facts of the present case.
137 It was not submitted, and on the evidence could not properly be submitted, that the Department's written submission of 18 June 1996 to the Attorney was a fraud on him.
138 In so far as Mr Oates seeks in subpar 4(b) of his amended application a declaration that the Attorney's decision was "based on the statement [that Mr Oates had refused to return to Australia voluntarily]", the amended application must fail because the evidence does not establish that the request was "based on" the statement, as distinct from establishing, as I would infer to be the case, that the Attorney took the statement into account in deciding to make the Request; cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC) at 220-221.
139 In so far as Mr Oates seeks in par 4(c)(i) a declaration that the Attorney's decision was "manifestly unreasonable", he fails, whether or not the Attorney was aware of the course of correspondence.
140 In so far as Mr Oates seeks in par 4(c)(ii) a declaration that the decision to make the Request involved the failure to have regard to a relevant consideration to which the Attorney was bound to have regard, again the declaration must be refused. There is no legal ground for thinking that the Attorney was bound to have regard to the course of negotiations, or, in particular, to offers that Mr Oates had made.
141 Finally, in so far as Mr Oates claims in par 4(c)(iii) a declaration that the course of correspondence gave rise to a legitimate expectation that the Attorney would not make a request for Mr Oates' extradition, and that the DPP would not approach him to have such a request made, unless and until Mr Oates advised that he was not returning voluntarily under any circumstances or unless and until the DPP advised that no further negotiations with his solicitors about voluntary surrender would take place, the DPP's letter of 16 March 1995 provides a sufficient answer. The DPP did not depart from the warning contained in that letter that it would "continue to take such steps as it deems appropriate". Moreover, the DPP could not restrict the exercise by the Attorney of the executive power of the Commonwealth by the terms of the DPP's negotiations with a person charged with offences in the position of Mr Oates.
5. Attack on failure to withdraw the Request pursuant to WFP's request of 6 February 1997 - pars 6 and 7 of the amended application
142 On 6 February 1997 WFP wrote to the Department asking that the Request be withdrawn on the basis of the matters raised in the Advice and in legal opinions of Polish experts on extradition law copies of which were enclosed. I have previously summarised the Advice. The Polish legal opinions were four in number (none of which is in evidence before me), two by Professor Lech Falandysz and two by Professor Piotr Kruszynski.
143 Apparently, officers of the Department considered the letter from WFP and referred it to Mr Chris Meaney, Assistant Secretary of the International Branch of the Criminal Law Division of the Department, who replied on 21 February 1997, relevantly, as follows:
"As you are aware, the request for your client's extradition is presently being processed in Poland. The question of whether your client is eligible for extradition is a matter for the Polish authorities to resolve in due course. The Australian Government intends, quite properly, to await the decision of the Polish authorities. The extradition request will not, therefore, be withdrawn."
The Attorney's advice, subsequently conveyed in a letter from his solicitor in this proceeding, the Australian Government Solicitor, to Mr Oates' solicitors in this proceeding, and apparently accepted by Mr Oates as satisfactorily stating the position for the purpose of this proceeding, is that neither the Attorney nor any delegate of his made a decision in 1997 not to withdraw the Request, and that it was left to Mr Meaney to respond on behalf of the Attorney.
144 In par 6 of the amended application, Mr Oates seeks a declaration that neither the Attorney nor his authorised delegate ever considered the application by WFP dated 6 February 1997, alternatively, a declaration that the Attorney, in considering it, failed to have regard to a relevant consideration to which he was bound to have regard, namely, whether for the purposes of the validity of the Request, the charges were crimes or offences listed in Article 3 of the Treaty, in the alternative, a declaration that the Attorney's decision refusing to withdraw the Request was invalid as it was so unreasonable that no reasonable person could have made it. In par 7, the amended application seeks an order in the nature of certiorari under s 39B of the Judiciary Act 1903 (Cth) quashing the "decision" made by or on behalf of the Attorney in February 1997 to refuse to withdraw the Request, and an order in the nature of mandamus that the Attorney reconsider the application according to law.
145 In Johnson v Williams (Attorney-General) [2000] FCA 3, a Full Court of this Court quashed a decision of the Attorney-General not to withdraw a request for extradition. Their Honours (Spender, Emmett and Finkelstein JJ) noted that it appeared to have been conceded that the decision not to withdraw the request was capable of review by a court. They stated that as the point was not argued, they expressed no opinion as to whether the concession was rightly made, and proceeded on the assumption that it was (at [13]).
146 The case is no authority as to the jurisdiction of the Court to review the failure of the Attorney to withdraw the Request in response to WFP's letter of 6 February 1997 (or the decision of the Minister for Justice, acting as Attorney-General, in November 2000 not to accede to the later further similar request made on Mr Oates' behalf). The respondents did not submit that the Court lacks jurisdiction to review a failure to withdraw the Request, and I proceed on the assumption that the jurisdiction exists.
147 Clearly, for the reasons given earlier in relation to failure to have regard to the consideration mentioned and to Wednesbury unreasonableness, the claims for relief in pars 6 and 7 must be refused.
148 This relief must also be refused on discretionary grounds. A later request that the Attorney withdraw the Request was made by Michell Sillar on behalf of Mr Oates on 14 June 2000, supplemented by letters from those solicitors, in some cases with accompanying documents, dated 7 July, 31 July, 11 August and 23 August 2000. On 20 November 2000 the Department's Criminal Justice Division made a detailed submission to the Minister for Justice and Customs, acting as delegate for the Attorney in his absence, dealing with matters which Mr Oates submits the Attorney should have dealt with in response to his solicitors' submission of February 1997. The Department wrote to Mr Oates' solicitors in December 2000 advising that the Minister for Justice and Customs had considered their representations on behalf of Mr Oates but had decided not to withdraw the Request.
149 I accept the Attorney's submission that any inadequacy of consideration of the February 1997 submission was overtaken by the consideration given to that of 14 June 2000.
150 Finally, in so far as par 7 of the amended application seeks an order in the nature of mandamus, it fails because the Attorney was not under a public duty to consider and determine Mr Oates' request for reconsideration: cf Clyne v Evans (1984) 2 FCR 515 at 524.
6. Attack on decision communicated on 7 December 2000 not to withdraw the Request following Michell Sillar's request of 14 June 2000 - pars 8 and 9 of the amended application
151 I have recounted above the facts relating to the request made by letter dated 14 June 2000 from Michell Sillar on behalf of their client, Mr Oates, to the Attorney, and the decision by the Minister for Justice and Customs as his delegate, not to withdraw the Request, communicated to those solicitors by the Department on 7 December 2000.
152 Paragraph 8 of the amended application seeks a declaration that in deciding on or about 10 November 2000 not to withdraw the Request, the Minister failed to have regard to a relevant consideration to which she was bound to have regard, namely, whether, for the purposes of the validity of the Request, the charges were in respect of crimes or offences listed in Article 3 of the Treaty; alternatively, a declaration that her decision was invalid because it was so unreasonable that no reasonable person could have made it.
153 For reasons given earlier, the Minister was not bound to have regard to the consideration mentioned. In any event, the submission dated 20 November 2000 of the Criminal Division of the Department to the Minister placed before the Minister the Advice and the four Polish legal opinions obtained on Mr Oates' behalf. On the face of the documents, the Minister had regard to the consideration mentioned, if that consideration is understood in conformity with the Advice.
154 In so far as par 8 seeks a declaration that the decision not to withdraw the Request was invalid because of Wednesbury unreasonableness, it fails for reasons given in relation to Wednesbury unreasonableness earlier.
7. Discretion - delay
155 The relief sought by Mr Oates is discretionary. The respondents submit that relief should be refused on the ground of Mr Oates' delay in seeking it.
156 Mr Oates was detained by the police in Sopot, Poland on 22 October 1996 following transmission of the Request from the Australian Government to the Government of Poland on 8 August 1996. I infer that WFP obtained the Advice dated 23 December 1996 on or about that date. They wrote on behalf of their client to the Attorney on 6 February 1997 asking that the Request be withdrawn. Mr Meaney of the Department replied on 21 February 1997 advising that the view was taken that whether Mr Oates was liable to be extradited was a matter for the Polish authorities to resolve in due course, that the Australian Government intended to await their decision, and that the Request would not, therefore, be withdrawn. The period from that response to the commencement of this proceeding (on 13 December 2000) was three years and ten months.
157 I have referred earlier to negotiations between WFP and the Australian authorities in relation to the possible voluntary return by Mr Oates to Australia. The DDP's deadline was 14 March 1995; the last item of correspondence between WFP and the DPP in evidence is dated 4 May 1995; the last item of correspondence in relation to the "La Promenade" transaction was a letter dated 26 June 1996 from the ASC to Mr Oates. For whatever relevance they may be thought to have, these events occurred years before the present proceeding was commenced.
158 Mr Oates has taken other proceedings, challenging, in one way or another, his extradition to Australia. On 18 August 1997 he commenced a proceeding in this Court for judicial review of the Attorney's decision to consent to the institution of the criminal proceedings themselves. On 27 February 1998, Moore J dismissed the application ((1998) 81 FCR 296). Mr Oates appealed against that decision to a Full Court which heard the appeal on 25 May 1998 and upheld Mr Oates' appeal on 6 July 1998 ((1998) 84 FCR 348). The Attorney and the Minister for Justice then appealed against the Full Court decision to the High Court which heard the appeal in June 1999 and delivered judgment on 5 August 1999, allowing the appeal ((1999) [1999] HCA 35; 198 CLR 162). The period from then to the commencement of this proceeding on 13 December 2000 was some sixteen months.
159 In my opinion, the delay in this case is disentitling. The institution of the other proceedings does not satisfactorily explain Mr Oates' delay in commencing this proceeding until just before the hearing before the Gdansk Court of Appeals on 16 February 2000. Mr Oates submits (incorrectly in my view) that the Advice supports the view that the Request was invalidly made. On that basis, he must claim to have been armed since 23 December 1996 with a weapon with which to attack the making of the Request. Yet he has chosen to attack the bringing of the criminal charges against him in this Court and the extradition procedure in the Polish courts, while reserving until the end of the day his present attack on the making of the Request.
160 In Johnson v Williams (Attorney-General) [1999] FCA 586, O'Loughlin J indicated that he would have refused relief (if it had otherwise been warranted) because the person to be extradited in that case had delayed between four to six months in seeking to have the request withdrawn. An appeal against his Honour's decision succeeded, not on the basis that the Full Court considered the length of delay acceptable or acceptably explained, but because, on the facts, the primary Judge had erred in considering the period before which the applicant had sought withdrawal of the request as delay to be counted against him. In the present case, the delay is to be measured from, at the latest, the time when it was made clear to Mr Oates that the Request would not be withdrawn. As noted earlier, that date was 21 February 1997, and the delay from that date to the commencement of this proceeding was three years and ten months.
161 If I had thought that the Request was unlawful, I would have refused the relief sought in the exercise of my discretion, leaving Mr Oates to his litigation in Poland for any relief to which he may be entitled.
CONCLUSION
162 The application should be dismissed with costs.
I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 16 February 2001
Counsel for the Applicant: |
Mr P S Hastings QC and Dr J G Renwick |
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Solicitor for the Applicant: |
Michell Sillar |
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Counsel for the Respondents: |
Mr D J Fagan SC and Mr S B Lloyd |
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Solicitor for the Respondents: |
Australian Government Solicitor |
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Dates of Hearing: |
29, 30 January 2001 |
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Date of Judgment: |
16 February 2001 |
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