FEDERAL COURT OF AUSTRALIA

Mokbel v Attorney-General for the Commonwealth of Australia

[2007] FCAFC 161

 EXTRADITION –– validity of request for extradition to Australia issued by the Minister for Justice and Customs – whether s 40 of the Extradition Act 1988 (Cth) evinces a “contrary intention” for the purposes of s 19A of the Acts Interpretation Act 1901 (Cth).

Attorney-General v Foster (1999) 84 FCR 582 considered

Mokbel v Attorney-General for the Commonwealth of Australia [2007] FCA 1536 affirmed

Re Patterson; ex parte Taylor (2001) 207 CLR 391 considered

Acts Interpretation Act 1901 (Cth) s 19A

Extradition Act 1988 (Cth) s 40

Constitution ss 61, 62 and 64

Administrative Arrangements Order, Commonwealth of Australia Gazette (No. S178, 21 September 2006)

ANTONIOS SAJIH MOKBEL v ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA & ANOR

915 OF 2007

HEEREY, NORTH & JESSUP JJ

12 OCTOBER 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

HEEREY J:

1                     On 21 June 2007 the Minister for Justice and Customs, Senator the Honourable David Albert Lloyd Johnston, signed a Request to the Hellenic Republic (Greece) for the return of the appellant to Australia.   The Request was made under s 40 of the Extradition Act 1988 (Cth).

2                     The Request was made on two bases. First, the appellant had been convicted in the Supreme Court of Victoria of being knowingly concerned in the importation of cocaine.  He had absconded during the trial and had been sentenced in absentia to 12 years imprisonment with a non-parole period of nine years.  Secondly, surrender was sought in relation to 20 offences of which he had been accused but not convicted.  These included two offences of murder, and also drug trafficking and conspiracy to pervert the course of public justice.

3                     At first instance before Gordon J, the appellant claimed the Request was invalid and sought an order that it be quashed, along with other consequential relief.

4                     Relevantly for the present appeal, the applicant argued that the Request did not comply with s 40 because it was not signed by the Attorney-General.  Section 40 provides:

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.

5                     Her Honour dismissed the application: Mokbel v Attorney-General for the Commonwealth of Australia [2007] FCA 1536. Her Honour relied on the following grounds:

·                    the source of power to request extradition was the executive power of the Commonwealth;

·                    section 40 was a machinery provision which regulated the exercise of that power;

·                    under ss 61, 62 and 64 of the Constitution and the Administrative Arrangements Order of 21 September 2006 the Governor-General appointed the Honourable Philip Ruddock MP to hold the office of Attorney-General and to administer the Attorney-General’s Department (instrument dated 26 October 2004) and appointed Senator Johnston to hold the office of Minister for Justice and Customs and to administer the same Department (instrument dated 9 March 2007).  The legislation administered by that Department includes the Extradition Act;

·                    section 19A of the Acts Interpretation Act1901 (Cth) provides that if a provision of an Act refers to a particular Minister then, unless the contrary intention appears, where for the time being two or more Ministers administer the provision, the reference is a reference to any one of those Ministers; and 

·                    the appellant’s argument was inconsistent with the legislative history of s 19A and the decisions in Attorney-General v Foster (1999) 84 FCR 582 and Re Patterson; ex parte Taylor (2001) 207 CLR 391.

6                     I see no error in her Honour’s conclusion, which was correct, for the reasons she gave at [16]-[49] and which I incorporate by reference in these reasons.

7                     Section 40 regulates the exercise of the power to make an extradition request.   It precludes any of the members of the Federal Executive Council other than the Attorney-General from exercising the power.  Were it not for s 40, any member of the Council could have made a request.

8                     Applying s 19A of the Acts Interpretation Act, the word “only” in s 40 serves the purpose of limiting the class of persons who could otherwise exercise the power.  The word “only” is not intended to exclude the exercise of the power by a Minister, the Minister for Justice and Customs, who has been directed to administer the Extradition Act, including s 40.

9                     No contrary intention appears. Read with s 19A, s 40 discloses a consistent and rational intention, namely that the power to make a request is not to be exercised by any member of the Federal Executive Council other than those Ministers administering the Extradition Act.

10                  There is no rational reason for Parliament to have intended to exclude from the exercise of the s 40 power a Minister who, equally with the Attorney-General, is responsible to Parliament for the administration of the Extradition Act.  

11                  The appellant’s argument accepts that the s 40 power need not be exercised by the Attorney-General personally; it can be exercised by some other person with the Attorney-General’s authority.  It would seem odd that a minor official, authorised by the Attorney-General, can validly exercise the power but another Minister of the Crown expressly authorised to administer the Extradition Act cannot.

12                  The appeal should be dismissed with costs.

Associate:

Dated:         12 October 2007

REASONS FOR JUDGMENT

NORTH J:

13                  I agree that the appeal should be dismissed for the reasons expressed by the presiding judge.

Associate:

Dated:         12 October 2007

REASONS FOR JUDGMENT

JESSUP J:

14                  I also take the view that the appeal should be dismissed, and I do so for the reasons given by his Honour the presiding Judge.

Associate:

Dated:         12 October 2007