FEDERAL COURT OF AUSTRALIA

Foster v Minister for Customs & Justice Senator Amanda Vanstone
[1999] FCA 687

EXTRADITION - review of the Minister’s decision to surrender the applicant under ss 22(2) and 23 the Extradition Act 1988 (Cth) - the purpose of a speciality assurance within s 23(3)(d) - evidence of intention by extradition country to seek waiver of specialty if applicant surrendered - relevance of  the likely punishment the applicant will receive if extradited and convicted to determination of whether surrender was unjust or oppressive or too severe a punishment within reg 7 of Extradition (Commonwealth Countries) Regulations - circumstances in which failure by Minister to have regard to incarceration whilst awaiting extradition and whether such incarceration will affect punishment if convicted of extradition offences did not constitute reviewable error - appropriate considerations in determining what constitutes a trivial offence for reg 7

PRACTICE AND PROCEDURE - applicability and scope of s 39B(1A) the Judiciary Act 1903 (Cth) in reviewing decisions under ss 22(2) and 23 the Extradition Act 1988 (Cth)

Extradition Act 1988 (Cth), ss 11, 15, 22, 23, 34

Judiciary Act 1903 (Cth), ss 39B(1), 39B(1A), 39B

Federal Court of Australia Act 1976 (Cth), ss 21 and s 23

Parliamentary Privileges Act 1987 (Cth), s 16

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Service and Execution of Process Act 1901 (Cth), s 18(6)

Extradition (Commonwealth Countries) Regulations, regs 2, 5, 7

Transport Workers Union v Lee (1998) 84 FCR 60 cited

Felton v Mulligan (1971) 124 CLR 367 cited

Abebe v Commonwealth [1999] HCA 14 cited

Re Media, Entertainment and Arts Alliance; Ex parte The Hoyts Corporation Pty Limited (1993) 178 CLR 379 cited

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 cited

Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 cited

Attorney-General v Foster [1999] FCA 81 cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited

Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 cited

Barton v Commonwealth (1974) 131 CLR 477 cited

Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 cited

The Queen v Governor of Brixton Prison; Ex parte Kolczynski [1955] 1 QB 540 cited

In re Arton [1896] 1 QB 108 cited

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 cited

Narain v Director of Public Prosecutions (1987) 15 FCR 411 cited

Bank of Valletta Plc v National Crime Authority [1999] FCA 791 cited

Buck v Bavone (1976) 135 CLR 110 cited

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 cited

Ex parte Maher [1983] 2 Qd R 695 cited

New Zealand v Venkataya (1995) 57 FCR 151 cited

R v Secretary of State for the Home Department; Ex parte Sinclair [1992] Imm AR 293 cited

PETER CLARENCE FOSTER v THE MINISTER FOR CUSTOMS AND JUSTICE SENATOR AMANDA VANSTONE

Q 99 OF 1999

DRUMMOND J

24 JUNE 1999

BRISBANE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

1                     This is an application for a declaration that the warrant issued by the Minister under s 23 the Extradition Act 1988 (Cth) providing for the surrender of the applicant to the United Kingdom is a nullity.  Consequential injunctive relief is also sought.  The application is brought under s 39B the Judiciary Act 1903 (Cth).

Section 39B(1A)(c) and the review of administrative decisions

2                     In addition to its jurisdiction under s 39B(1), with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, s 39B(1A) provides that the original jurisdiction of this Court now includes “jurisdiction in any matter … arising under any laws made by the Parliament”.  Section 21 the Federal Court of Australia Act 1976 (Cth) empowers the Court to make binding declarations of right in relation to such matters.

3                     The applicant’s reliance on s 39B(1A)(c) requires the scope of the jurisdiction thereby conferred on the Court to deal with challenges to administrative decisions to be identified.  This provision “operates according to its terms as a general conferral of jurisdiction” on this Court:  Transport Workers Union v Lee (1998) 84 FCR 60 at 67.  In Felton v Mulligan (1971) 124 CLR 367, Menzies J said, at 382:

“A matter arises under a law of the Parliament when in a proceeding it is necessary that there should be a decision upon a claim made by one of the parties to the litigation which is based upon that law.”

4                     See also per Barwick CJ at 373, Gibbs J at 416 and Walsh J at 403; Abebe v Commonwealth [1999] HCA 14 at pars [24], [25] and Transport Workers Union v Lee at 67.

5                     Whether the Minister complied with the requirements of s 22(3) the Extradition Act when she made her decision under s 22(2) to surrender the applicant for extradition to the United Kingdom is the matter for determination in this case.  The respondent accepted, correctly in my opinion, that s 22(3) must be complied with if the Minister’s decision to surrender the applicant made under s 22(2), and the consequent issue by the Minister of the warrant under s 23 of that Act, are lawful exercises of the power conferred by the first of these two provisions and the duty imposed by the second.  The matter now for determination thus arises under a law of the Parliament, viz, s 22 the Extradition Act 1988 (Cth); s 39B(1A)(c) the Judiciary Act 1903 (Cth) therefore confers jurisdiction on the Court to deal with that matter.  And, in order to determine it, this Court can grant a declaration under s 21 the Federal Court of Australia Act 1976 (Cth), with or without an injunction under s 23 of that Act.

6                     The Court’s power to grant a declaration in the exercise of jurisdiction conferred by s 39B(1A)(c) the Judiciary Act 1903 (Cth) is no doubt free of some of the limitations on the Court’s power to grant relief under s 39B(1) of that Act. For example, mandamus will only issue to correct a refusal, actual or constructive, to exercise jurisdiction:  see Re Media, Entertainment and Arts Alliance; Ex parte The Hoyts Corporation Pty Limited (1993) 178 CLR 379 at 394.  The Court’s power to grant a declaration is not so limited.

7                     But this Court’s power to grant declarations in relation to matters within its jurisdiction is, in cases involving challenges to administrative decisions, circumscribed by clear limits:  “It is confined by the considerations which mark out the boundaries of judicial power”.  Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582.  When the jurisdiction of this (or any federal court) is invoked to challenge an administrative decision, the Court is confined to exercising judicial power:  since it is not permissible for the Court to exercise administrative power, it cannot conduct a merit review of the decision, ie, an inquiry to determine the correct or most appropriate outcome.  Its role is limited to determining whether the administrative decision is within the power conferred on the official and whether the decision-making process, in so far as the decision-maker was bound to comply with a particular process, has been followed.  See Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 - 41 and Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35 - 36, where Brennan J said:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.”

8                     In deciding whether to exercise its declaratory power in a case like the present, it is, for the reasons given, only if the administrative decision here in question is affected by error of law, or was made in circumstances in which relevant considerations were ignored or irrelevant considerations taken into account, or was made in circumstances in which there was non-compliance with any requirements of procedural fairness with which the decision-maker was, on the proper construction of the Extradition Act, required to comply, that this Court can interfere with the Minister’s decision to surrender the applicant made under s 22(2) the Extradition Act and with the Minister’s action, following upon that decision, in issuing the surrender warrant under s 23 of that Act.

The statutory provisions

9                     Section 23 the Extradition Act 1988 (Cth) provides:

“Where the Attorney-General determines under subsection 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section.”

10                  Section 22 provides:

“(1)     …

(2)               The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.

(3)               For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:

(a)               the Attorney-General is satisfied that there is no extradition objection in relation to the offence;

(b)               the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;

(c)                where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:

(i)                 the person will not be tried for the offence;

(ii)               if the person is tried for the offence, the death penalty will not be imposed on the person;

(iii)             if the death penalty is imposed on the person, it will not be carried out;

(d)               the extradition country concerned has given a speciality assurance in relation to the person;

(e)                where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:

(i)                 surrender of the person in relation to the offence shall be refused; or

(ii)               surrender of the person in relation to the offence may be refused;

in certain circumstances - the Attorney-General is satisfied:

(iii)             where subparagraph (i) applies - that the circumstances do not exist; or

(iv)             where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and

(f)                 the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.

(4)               For the purposes of paragraph (3) (d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of:

(a)               a provision of the law of the country;

(b)               a provision of an extradition treaty in relation to the country; or

(c)                an undertaking given by the country to Australia;

the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country:

(d)               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;

(ii)               any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) 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 (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or

(e)                be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender to the firstmentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.”

11                  Section 11(1)(b) provides:

“11.  (1)  The regulations may:

(a)       …

(b)       make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications.”

12                  Regulation 7 of the Extradition (Commonwealth Countries) Regulations, which, by reg 2, applies to the United Kingdom as an extradition country, provides:

“(1)     … for the purposes of subsection 22(2) of the Act, …, such a person shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of:

(a)               the trivial nature of the offence;

(b)               …

(c)                any other sufficient cause;

it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person …”

13                  This regulation, made pursuant to s 11(1)(b), establishes a limitation on the Minister’s discretionary power under s 22(2) to order surrender, which by force of s 22(3)(e)(i) and (iii), prohibits the Minister ordering surrender unless the Minister first considers each of the circumstances referred to in reg 7 and then reaches the state of mind of being satisfied that none of those circumstances exist.  It follows that, if the Minister is satisfied that one or more of these particular circumstances exist, the Minister is bound to refuse surrender.

The factual background

14                  Much of the background to the present application and details of the history of the Commonwealth’s efforts to extradite the applicant to the United Kingdom are contained in the reasons of the Full Court in Attorney-General v Foster [1999] FCA 81.  The Court there affirmed the validity of the Minister’s decision under s 22(2) to issue the warrant for the applicant’s surrender dated 24 July 1998.  I refer particularly to pars [10], [11] and [47] to [59] of that Court’s reasons.  In view of the applicant’s reliance here upon the material that was before the judge whose decision was the subject of that appeal, I incorporate those passages in these reasons, as a summary of the factual matters there set out.

15                  When, as noted by the Full Court, the United Kingdom requested the applicant’s extradition in respect of six offences, it gave, by the British High Commission in Canberra, a “specialty assurance” on 22 May 1997.  In the event of the applicant being extradited to the United Kingdom, the High Commission confirmed:

“…that in accordance with section 22(4) of the Extradition Act 1988 (Australia), [the applicant] will not, unless he has left or had the opportunity of leaving the United Kingdom, be detained or tried in the United Kingdom for any offence that is alleged to have been committed, or was committed, before his surrender other than:

(i)        Any surrender offence;

(ii)       any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which he could be convicted on proof of the conduct constituting any surrender offence;

(iii)      any extradition offence in relation to the United Kingdom (not being an offence for which the United Kingdom sought his surrender in proceedings under section 19) in respect of which the Attorney-General consents to him being so detained or tried; …”

16                  On 4 March 1998, a Stipendiary Magistrate determined that the applicant was eligible for surrender to the United Kingdom in respect of five of these six offences.  The five qualifying extradition offences are as follows.  First, that the applicant conspired with one Williams between 1 May 1995 and 31 July 1995 to defraud potential creditors and potential suppliers of goods and services to Foremost Bodycare by dishonestly seeking to induce them to supply goods and services on credit to Foremost Bodycare by:

(a)        making false representations as to the financial standing and record of Foremost Bodycare and another company, Alchemy Holdings;

(b)        using forged documents purporting to relate to the financial standing and record of Foremost Bodycare and Alchemy Holdings;

(c)        supplying false information to Dun and Bradstreet with the intention of inducing Dun and Bradstreet to award a higher credit rating to Foremost Bodycare with a view to using the higher credit rating to persuade others to grant credit to Foremost Bodycare.

17                  Second, that the applicant and Williams conspired between 1 May 1995 and 31 July 1995 to defraud Sun Alliance Group Properties Ltd by inducing them to grant a tenancy rent free for one year and to pay £25,000 to Foremost Bodycare by dishonestly making false representations as to the commercial standing of Foremost Bodycare and by using a forged bank reference relating to Alchemy Holdings Ltd.  Thirdly, that the applicant and Williams, on or about 18 July 1995, used an instrument which was and which they knew to be false, viz, a document purporting to be a Dun and Bradstreet credit report relating to Foremost Bodycare, with the intention of inducing an employee of Custom Pharmaceuticals Ltd to accept it as genuine and by reason of so accepting it to do some act to their prejudice.  Fourthly, that the applicant on 7 July 1995 used an instrument which was and which he knew to be false, viz, a document purporting to be an invoice from Interhealth, with the intention of inducing Jonathan Shorts to accept it as genuine and by reason of so accepting it to do some act to his prejudice or that of Gee Lawson Chemicals Ltd.  Fifthly, that the applicant and Williams on or about 18 July 1995 used an instrument which was and which they knew to be false, viz, a document purporting to be a Dun and Bradstreet credit report relating to Foremost Bodycare, with the intention of inducing an employee of Gee Lawson Chemicals Ltd to accept it as genuine and by reason of so accepting it to do some act to their prejudice.

18                  The applicant challenged the Minister’s surrender warrant issued on 24 July 1998 by proceedings for declaratory and other relief issued on 29 July 1998.  This came on for hearing before the primary judge on 29 September 1998.

19                  On 21 September 1998, however, having learned that the United Kingdom prosecuting authority, the Serious Fraud Office, had offered no evidence against Williams, the applicant’s co-accused, and that the charges against him had been dismissed, the applicant’s solicitor wrote to the Attorney-General asking that he reconsider the exercise of the Minister’s discretion to issue the warrant of 24 July 1998, notwithstanding that the applicant’s challenge to that warrant had not then come before this Court.  On 23 September 1998, the Serious Fraud Office wrote to the Attorney-General’s Department advising that it would no longer be proceeding with the prosecution against Williams; it also advised that after re-examination of the documents upon which the five extradition charges were based, its experts had changed their original opinion that the handwriting on those documents was that of Williams to the opinion that it was the handwriting of the applicant.  It was in these circumstances that the Serious Fraud Office had decided that there was no basis for prosecuting Williams and so no basis for the conspiracy charges against the applicant or Williams.  That Office, however, confirmed its intention to prosecute the applicant by himself on the third, fourth and fifth charges I have referred to.

20                  Notwithstanding the change in relevant circumstances that resulted from the termination of the prosecution of Williams, the Minister allowed the hearing in this Court in relation to her warrant of 24 July 1998 to proceed, as she was entitled to do.  On 12 October 1998, the learned primary judge delivered his judgment rejecting the applicant’s challenge to the validity of the decision to issue that warrant based on the alleged failure by the Minister to properly evaluate relevant material, a decision upheld by the Full Court.  However, his Honour declared the warrant a nullity because it could only lawfully have been issued by the Attorney-General whereas it was issued by the Minister for Justice, as the Attorney’s delegate.  This second ruling was overturned by the Full Court, on appeal by the Minister heard on 26 November 1998, in its judgment delivered on 16 February 1999, which, in effect, held that warrant was valid.

21                  On the same day of this Full Court judgment, the Department wrote to the applicant’s solicitor acceding to his earlier request to make further submissions on behalf of the applicant.  These were directed principally to the changes in relevant circumstances already referred to, that had occurred after the issue of the warrant of 24 July 1998.  On 2 March 1999, the applicant’s solicitor referred again to the intention of the United Kingdom authorities to seek the applicant’s extradition for prosecution only on the three charges and invited the Minister to consider submissions earlier made that having regard to all the circumstances “including likely penalty, delay and safety considerations as raised in our submissions of 7 May 1998 and following” it would be unjust or oppressive or too severe a punishment to surrender Mr Foster in respect of the charges on which his extradition is now apparently sought”.  These submissions were said to be increased considerably in weight by the changed circumstances.  The Minister was also invited to take into account, as a ground for exercising the discretion against surrender, to infer that much of the material placed before the Magistrate on the basis of which the Magistrate determined that the applicant was a person eligible for extradition in relation to the five offences, would not be able to be relied on in the prosecution of the applicant alone, in view of Williams’ discharge; the solicitor invited the Minister to obtain “a concise report of what material would constitute the prosecution brief on the charges in respect of which Mr Foster’s extradition is now sought” and to consider anew, having regard to that material, whether the applicant should now be surrendered.  The solicitor also drew attention to the answer given by the Lord Chancellor to a question on notice in the House of Lords, on 22 February 1999, to the effect that “[t]he Serious Fraud Office currently seeks the extradition of [the applicant] on nine charges of using a false instrument contrary to Section 3 of the Forgery Act 1981, six charges of furnishing false information contrary to Section 17 of the Theft Act 1968 and one charge of procuring the execution of a valuable security contrary to Section 20 of the Theft Act 1968”.  The three extradition charges I have referred to are included in this list of charges.  The solicitor submitted that the Lord Chancellor’s comments revealed that the only specialty assurance ever given, ie, that of 22 May 1997, was insufficient to meet the specialty requirement of s 22(3)(d) of the Act.  While recognising that it was not for the Minister to revisit the question of the applicant’s eligibility for surrender, she was invited to exercise her discretion to decline to surrender the applicant.

22                  On 12 March 1999, the Department not having replied, the solicitor wrote to the Department to inform it of the answer given in Parliament on 10 March 1999 by the Lord Chancellor to a question asking for the details, including “the amount of money involved in each of the 16 charges” for which he had earlier informed the House that the applicant was being extradited from Australia.  The Lord Chancellor said:

“The evidence contained in the papers supporting the application to the Australian Government for the extradition of [the applicant] discloses the commission of 16 offences.  Three of these offences were listed in the original extradition warrant and relate to offences of using a false instrument contrary to Section 3 of the Forgery and Counterfeiting Act 1981.  No value is specified in relation to these offences.  The Australian authorities have been informed that Her Majesty’s Government will seek waiver of the specialty rule in relation to the remaining 13 charges, which comprise a further six charges contrary to Section 3 of the Forgery and Counterfeiting Act 1981 (no value specified), six charges of furnishing false information contrary to Section 17 of the Theft Act 1968 (no value specified) and one charge of procuring the execution of a valuable security by deception in the sum of £29,484.80.”

23                  The solicitor again asked the Minister to refuse surrender “based on what is effectively the failure of the specialty assurance required by Section 22(3)(d) and/or the grounds provided in Sections 22(3)(e) and 22(3)(f)”.

24                  It can be seen from the Lord Chancellor’s statement (and from the letter from the Serious Fraud Office to Mr Meaney of the Attorney-General’s Department of 28 September 1998) that the United Kingdom authorities accept that the additional thirteen offences for which they wish to prosecute the applicant may not be offences covered by the only specialty assurance the United Kingdom has given in connection with the applicant’s extradition.

25                  On 19 March 1999, still not having received any response to either of the letters of 2 March or 12 March, the applicant’s solicitor again wrote to the Department repeating his request for a review of the discretion in favour of the applicant.  Then, in circumstances not revealed by the evidence, on 24 March 1999 Mr Kerr, the Shadow Justice Minister, asked a number of questions in Parliament of the Minister concerning the extradition proceedings against the applicant, including whether the United Kingdom Government has sought a waiver of the specialty assurance and:

“(3)     Has the Commonwealth established the period of imprisonment for which [the applicant] is liable if he is convicted of the offences for which his extradition has been sought.

(4)       Is it a fact that:  (a) [the applicant] has spent 25 months in maximum security prison and 15 months solely waiting for the extradition proceedings and  (b) the total period he has been detained is longer than the period referred to in part (3).”

26                  The evidence does not reveal what, if any, answer has been given to any of these questions and, in particular, to questions (3) and (4).

27                  No objection was made to the tender by the applicant of the relevant extract from Hansard.  It does not appear to infringe s 16 the Parliamentary Privileges Act 1987 (Cth).  Nor, in my opinion, given the purpose for which that memorandum was prepared, does the tender, on behalf of the Minister, of her adviser’s memorandum of 26 March 1999 (to which I will later refer) in which there is reference to these questions infringe s 16(3)(c) of that Act, although counsel invited me, on the basis of that reference to the questions, to draw inferences as to matters considered by the Minister.  The contrary was not suggested.

28                  Finally, the solicitor, in his letter of 30 March 1999 to the Minister, referring to the questions asked in the Australian Parliament, emphasised the importance for the Minister, in exercising her discretion to order surrender, to give consideration, in the context of reg 7, to the punishment the applicant could expect to receive if convicted on the three extradition charges.

29                  The facts outlined in the Full Court’s reasons show that in the period of nearly two years between expiry on 15 April 1997 of the term of imprisonment the applicant served after conviction in Australia and 30 March 1999, when the decision now challenged was made, he spent two periods totalling fourteen and a half months in custody in connection with the extradition proceedings, the first, from 15 April to 13 May 1997 and the second, from 7 February 1998 to that day, 30 March 1999.  The first of the periods ended with his release on bail and the second commenced with his arrest after he had breached the conditions of that bail.

30                  A memorandum was prepared on 26 March 1999 by a responsible officer in the Department, Mr Sheil, after receipt of the letters from the applicant’s solicitor of 2, 12 and 19 March 1999, but prior, of course, to receipt of the letter of 30 March.  It contained recommendations that the Minister make a new determination under s 22(2) that the applicant be surrendered to the United Kingdom for the three extradition offences referred to and that the Minister execute a new warrant under s 23 revoking the earlier warrant of 24 July 1998 and authorising the applicant’s surrender for those three offences.  Mr Sheil’s memorandum was considered and approved without any change by two of his senior officers that same day.  It was then put before the Minister for her consideration.

31                  The submissions made by the applicant’s solicitor had little success.  On 30 March 1999, the Minister, by her endorsement on the memorandum, expressly approved Mr Sheil’s two recommendations, determined that the applicant should be surrendered but only in relation to the three forgery offences and issued the new warrant, which revoked the warrant of 24 July 1998.  It is that decision and warrant which are the subject of the present challenge.

The specialty assurance of 22 May 1997

32                  The applicant did not suggest that if attention is confined only to the three extradition offences, the assurance of 22 May 1997 failed to constitute a “specialty assurance” sufficient for the purposes of s 22(3)(d).  But he contended that, in view of the present intention of the United Kingdom authorities with respect to his future prosecution, this assurance cannot be regarded as one sufficient for the purposes of s 22(3)(d) in this case.

33                  When the evidence identifies an undertaking as having been given by the requesting State in the particular case, the question whether it amounts to a “specialty assurance” within s 22(3)(d) is a question of law for the Court:  Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.  Once the Court is satisfied that a “specialty assurance” has been given, the next question is what is the role of the Court where there is evidence that the State that has given that assurance will not or may not honour it, if the fugitive is extradited.  It is that question to which the applicant’s submissions must, I think, be taken to be directed.  The applicant’s contention is, in effect, that because such evidence exists here, the circumstances of the case show that the Minister, in deciding in favour of surrender under s 22(2), failed to have proper regard to it as a consideration relevant to the exercise of the power conferred by that section.  The respondent did not dispute, in view of Peko-Wallsend at 39 - 40, that s 22(3), including sub-par (d), identify matters relevant to the exercise of the decisional power conferred on the Minister by s 22(2).  But the Minister raised a number of answers to the applicant’s contention.

34                  It was first submitted that s 22(3)(d) should be construed not as requiring that there, in fact, be a specialty assurance answering the requirements of s 22(4) before the Minister can lawfully exercise the power conferred by s 22(2) with respect to surrender, but only as requiring that the Minister be satisfied that such an assurance has been given:  it is said that, if that is correct, there is no justifiable basis for this Court interfering with the decision.

35                  The ordinary meaning of the wording of s 22(3)(d), read in the context of s 22, is that the Minister’s power to order surrender is only exercisable if an assurance answering s 22(3)(d) and (4) in fact exists.  The respondent’s submission requires the wording of s 22(3)(d) to be read as subject to an implied limitation.  I can see nothing in either the text of the section or in the objects the provision is intended to serve to justify reading down its ordinary meaning.  Section 22(3), in terms, draws a precise distinction between matters upon which the Minister must be satisfied (those in sub-pars (a), (b) and (e)) and matters which must be shown to exist as objective facts (those in sub-pars (c) and (d)) before the surrender power conferred by s 22(2) can be exercised.  The care that Parliament has taken in drawing this distinction tells against giving s 22(3)(d) the construction urged by the Minister.

36                  Further, precise criteria which must be satisfied before an undertaking given by the requesting country will constitute “an undertaking” within s 22(3)(c) (where the extradition offence is punishable by death) and before there will be a “specialty assurance” within s 22(3)(d) are spelled out in s 22(3)(c)(i) to (iii) and in s 22(4), respectively.  The existence or non-existence, in fact, of an assurance of either kind is thus a matter readily capable of determination by a court.  This is in contrast to the statutory expression held in Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 not to constitute a jurisdictional fact which had to exist before an administrative body could exercise a statutory power for the reason, among others, that a decision on whether the statutory criteria relevant to the exercise of the power there in question were satisfied was such as to involve “matters of opinion and degree” and so not the kind of precondition to the exercise of a statutory power that requires only the opinion of the decision-maker as to its being met.  See 301 and 303 - 304.

37                  Further, if the object of a specialty assurance were confined to serving considerations involving only the relations between Australia and other nation States and thus a matter of concern only to the Minister as the political representative of Australia in extradition matters, that would support the Minister’s argument.  In The Laws of Australia, section 11.10, par 28, it is said that:  “Principally, the specialty assurance protects the interests of the requested State, it being considered a breach of faith to prosecute for offences other than those for which surrender was granted.”.  This is undoubtedly one object of the specialty rule.  But, in my opinion, the requirement contained in s 22(3)(d) for a specialty assurance is also intended to provide a protection for the person in respect of whom extradition is sought.  The wording of s 22(3)(d) and (4) suggests as much and Mason J, in Barton v Commonwealth (1974) 131 CLR 477 at 500, described a requirement for specialty assurance under the extradition legislation there in question as constituting an “important protection” conferred on fugitive offenders.  Acceptance of the respondent’s argument would restrict the Court’s power to give effect to this important object of the statutory provision.  That the specialty assurance requirement serves these two quite different and potentially conflicting interests, one Australia’s international relations and the other, the interests of the fugitive, therefore suggests that s 22(3)(d) should not be read as providing only for the Minister’s satisfaction as to the existence of an assurance.  I therefore reject this first submission.

38                  The Minister also argued that it is not open to this Court to investigate and make a decision upon whether the United Kingdom authorities will honour the assurance they have given, particularly if those authorities do apply for the Minister’s consent to prosecute the applicant on the other offences and that consent is refused.

39                  There is support for the Minister’s submission that this is not a justiciable issue.  See Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 278 and 280; The Queen v Governor of Brixton Prison; Ex parte Kolczynski [1955] 1 QB 540 at 549 and In re Arton [1896] 1 QB 108 at 111 - 112 and 114 - 115.  The principle referred to in Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40 - 41 may also support the argument.  The narrow inquiry required of the Minister by reg 7(b) - cf Narain v Director of Public Prosecutions (1987) 15 FCR 411 at 414, 420 - 423 - is not inconsistent with the submission.  But the law is not all one way.  Considerations of comity (and other aspects of public policy) that appear to underlie the principles referred to in these authorities do not require an Australian court to automatically defer to even such a formal exercise of sovereign authority by a foreign state as the enactment of legislation that prohibits the disclosure of information by its nationals when that information is demanded by subpoena of an Australian court or required by other demands made under Australian law:  see Bank of Valletta Plc v National Crime Authority [1999] FCA 791.

40                  Moreover, although the Parliament has excluded decisions under the Extradition Act 1988 (Cth) from review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), it has, by s 39B(1) and (1A) the Judiciary Act 1903 (Cth), given this Court jurisdiction to review such decisions:  see Attorney-General v Foster at par [3].  Parliament has not placed any limitations on the ambit of the Court’s powers of review that are intended to ensure that Australian officials act within the authority conferred on them by Australian law.  The justification for restraint by an Australian court in pronouncing upon the actions of a foreign sovereign is absent if the Australian Parliament invests the Court with authority to do just that:  see Heinemann Publishers at 53.  And since the Court has only powers of judicial review in respect of extradition decisions, it could not, irrespective of how strong it thought the evidence to be of bad faith with respect to the assurance given (and subject only to whether an extradition decision is reviewable for unreasonableness), deprive the Minister of the final say in whether, after he or she had identified and considered all relevant considerations, the person should nevertheless be surrendered.  That s 22(3)(d) is not concerned only with matters affecting Australia’s national interests but also with the protection of the fugitive from injustice in the extradition country also tells against the submission.  Given all this, it is not apparent why the Court should not insist that the Minister advert to such evidence where it exists, while necessarily leaving it to the Minister to determine where the balance lies in the particular case, in exercising the discretionary power conferred by s 22(2).

41                  However, it is unnecessary to reach a conclusion on the Minister’s submission here, since the evidence does not show that the United Kingdom authorities will breach the undertaking they have given to the Australian authorities in the specialty assurance of 22 May 1997.  On the contrary, the evidence indicates that the United Kingdom authorities, though desirous of prosecuting the applicant on a number of offences additional to the three extradition offences, acknowledge the limitations on their freedom to prosecute imposed by the undertaking they have given to Australia and can be expected to charge him with the other offences only if they can procure from the Minister a waiver of specialty of the kind provided for by s 22(4)(d)(iii).  In these circumstances, the fact that, under s 19(2)(ii) the Extradition Act 1989 (UK), English law may permit the United Kingdom authorities to prosecute a person for certain offences different from those covered by the undertaking, does not provide any basis for an inference that the formal assurance that has, in fact, been given by the United Kingdom authorities to the Australian authorities in respect of the applicant will not be kept.

42                  When the assurance of 22 May 1997 is read in its factual context and even if that context includes the evidence as to the expanded prosecutorial intentions of the United Kingdom authorities, there is no basis for concluding that when the Minister made the surrender determination under s 22(2) in March last, she did not have before her an undertaking that met the requirements of s 22(3)(d).  Moreover, it is quite plain that the considerations raised by the changed intentions of the United Kingdom authorities for the applicant’s prosecution were the subject of full analysis by Mr Sheil in attachment “G” to his submission to the Minister of 26 March 1999, upon which she acted.  There is no basis, on the material before me therefore, to think that the Minister did not, in fact, advert to these considerations when she made her decision now in question.  This attack on the decision must be rejected.

43                  The applicant also challenged the Minister’s decision on the basis that it was made ignoring a relevant consideration because it was given without any response by the United Kingdom authorities to the queries raised in the Department’s letter of 26 February 1999 to the Serious Fraud Office about whether those authorities intended to bring new extradition proceedings against the applicant in respect of the additional charges or whether they would wait until the applicant had been surrendered (if that was to be the Australian Minister’s decision) and seek waiver of specialty in respect of those additional charges.  I do not think there was any obligation on the Minister to hold her hand until the United Kingdom authorities responded to these queries.  She was entitled to make the decision on surrender when she did in reliance on the specialty assurance given and in the knowledge that the United Kingdom authorities had indicated that, of the original five extradition offences, they now only intended to prosecute the applicant in respect of three of them even though they intended to request waiver of specialty.  These circumstances are sufficient to show that she was under no obligation to have the further information sought by the Department’s letter of 26 February 1999 before she made the decision of 30 March 1999.

Were other relevant considerations ignored?

44                  Of more substance is the attack made on the validity of the warrant by reason of what is said to be the failure of the Minister to advert to the matters which the Minister was obliged by ss 22(3)(e) to take into account before deciding to issue the warrant.  Because the circumstances were then materially different from those in which the Minister made her decision of 24 July 1998, the Full Court’s determination that that decision was free of reviewable error cannot preclude review of her most recent decision.

45                  So far as review of an administrative decision is concerned, where the validity of the decision depends upon the decision-maker’s satisfaction as to the existence or non-existence of a particular state of affairs, as is the case with the considerations referred to in s 22(3)(e), the availability of effective review of the decision will largely depend upon the nature of the matters upon which the authority is required to be satisfied.  See Buck v Bavone (1976) 135 CLR 110 per Gibbs J at 118 - 119.  But such a decision is not beyond review:  see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 per Gummow J at pars [131] - [137].  If the evidence establishes that a decision-maker who can only validly exercise a power if satisfied that a certain state of affairs exists or does not exist has failed entirely to advert to that matter, eg, because the decision-maker did not have any information on that topic, then there is no impediment to a court declaring the invalidity of the decision.

46                  It is said that the evidence here shows that the Minister failed to advert to at least two of the matters which she was required by s 22(3)(e) and reg 7 to consider.  It was submitted that the changed circumstances resulting from the dropping of the prosecution of the applicant’s co-accused required the Minister to consider whether the three remaining extradition offences were of a trivial nature, but that she failed to do that.  It was further submitted that the Minister failed to advert to whether, in the circumstances which existed at the time the Minister decided to issue the warrant, surrender would involve too severe a punishment of the applicant for the surrender offences.

47                  Regulation 7 the Extradition (Commonwealth Countries) Regulations requires the Minister to form an opinion on what is likely to happen to the particular fugitive, if extradited.  It is only if the Minister has information indicating what the particular fugitive’s situation is then likely to be that the Minister will be in a position to form a view on whether, having regard to all the circumstances, including whether the offence is trivial in nature, surrender would expose the fugitive to injustice, oppression or too severe a punishment.

48                  Regulation 5 of those Regulations modifies the general rule so that a person is only exposed to extradition to a country such as the United Kingdom if the offence in question carries a maximum punishment of at least two, rather than only one, years’ imprisonment.  But reg 7 proceeds on the assumption that the qualifying extradition offence can still be of a “trivial nature”, ie, where the maximum punishment for that offence is at least two, and even more, years’ imprisonment.  In forming a view on whether the extradition offence is of a “trivial nature” for the purposes of reg 7, the Minister cannot therefore confine attention to the theoretical maximum punishment imposable for the offence in the extradition country.  That is no doubt a relevant matter, but so also are the facts and circumstances of the particular extradition offence:  cf Ex parte Maher [1983] 2 Qd R 695 at 696 - 697.  That was a decision on s 18(6) the Service and Execution of Process Act 1901 (Cth) and extradition between States of the Commonwealth is subject to fewer restrictions than are imposed by the Extradition Act on international extraditions.  But that the regulation directs the decision-maker’s attention to what is likely to happen to the particular fugitive, if extradited, is good reason for giving the expression in reg 7 the same interpretation as in Maher.

49                  As the Full Court observed in Attorney-General v Foster at par [61], the Minister does not personally have to consider every document relating to the extradition of the particular person held by her Department and every submission made on behalf of that person before she can avoid a charge that she failed to advert to relevant considerations.  She is fully entitled to act on summaries prepared by her advisers.  But the mere existence of information in departmental files on a topic which the Minister is required to consider in making a decision, not shown to have been evaluated by the Minister’s advisers and dealt with by them by way of summary or otherwise in the material they placed before the Minister, cannot assist in protecting the Minister’s decision from review for such a failure.

50                  It can, however, be inferred that the material which the Minister took into account here included that which her advisers put before her.  In his attachment G to his memorandum of 26 March 1999, Mr Sheil dealt at length with the changed circumstances and specifically with whether the remaining three extradition offences could be said to be trivial in nature.  He said, in dealing with the significance of “The discontinuance of the criminal charges against the co-accused Williams”:

“7.       Although the prosecution case against Foster has now been changed by discontinuing the two conspiracy charges, there is no suggestion that the prosecution against Foster for the remaining three charges will be withdrawn.  Nor is the case against Foster in respect of those charges weakened by the circumstances associated with the discontinuing of the conspiracy charges.  The SFO has confirmed that it fully intends to prosecute Foster for the remaining three charges.  …”

51                  In dealing with “The reduced number of the charges for which extradition is sought”, Mr Sheil said:

“8.       … The issue is, whether surrendering Foster for three charges would be unjust and oppressive (eg, by reason of ‘the trivial nature of the offences’).

9.         The three remaining charges of using a false instrument are serious charges and carry, penalties of up to ten years imprisonment for each offence.  The alleged conduct involved substantial amounts of money, and it could not be said that the offences are trivial or minor in nature.  There is nothing to suggest that it would be unjust or oppressive to surrender Foster for them on this basis.”

52                  I infer from this and the Minister’s endorsement of the memorandum that she probably did form the opinion, in the course of making her decision on 30 March 1999, that the three offences were serious ones, ie, not trivial in nature.

53                  But Mr Sheil does not suggest, either in his affidavit or in any of the information he prepared for the Minister, that he looked at any material touching on just what were the facts and circumstances of these three offences before making these comments, save in so far as there was such material in the attachments to his submission of 26 March 1999, which he lists in par 5 of his affidavit.  The material provided by the applicant’s solicitor, which Mr Sheil attached to his Ministerial submission, emphasises the need for the Minister to obtain information as to those facts and circumstances and to consider whether the three offences were trivial ones.  It was also said in that material from the solicitor that none of the three charges involved the receipt by the applicant of any money or other benefit or that anyone suffered any financial or other detriment.  This was supported by the Lord Chancellor’s answer to the question as to “the amount of money involved” in these three charges, which was before the Minister.

54                  Against this background, it is of particular significance that, as appears from his attachment G, Mr Sheil relied only on three matters, ie, on the determination of the Serious Fraud Office to proceed in relation to the three charges (no doubt against the background of his knowledge that, as the Serious Fraud Office said in its letter to the Attorney-General’s Department of 23 May 1997, it is only concerned with investigating and prosecuting allegations of serious or complex fraud, less serious frauds being the province of the Crown Prosecution Service and the police) and on the fact that each carries a maximum punishment of ten years’ imprisonment and that “the alleged conduct involved substantial amounts of money”, in expressing his opinion to the Minister that the charges cannot be said to be trivial in nature.

55                  The third of these considerations is unfortunately erroneous or cannot be said, by reference to any of the material before the Court, to be an accurate comment with respect to any of the three extradition offences (although it would have been perfectly accurate in relation to the original five extradition offences in respect of which a similar comment was made in the Departmental memorandum of 10 July 1998 at p 2:  one of the conspiracy offences which, by 30 March 1999 the United Kingdom authorities had abandoned, involved the allegation that the applicant and his co-accused had conspired to deprive the victim of valuable property, including the large sum of £25,000).

56                  The second consideration, the maximum imposable penalty, that Mr Sheil drew to the Minister’s attention is relevant to the consideration the Minister was required to give to whether the offences were trivial in nature.  But, for the reasons already given, the Minister could not properly form a view on that issue without knowing, in addition, something of the actual circumstances of the three offences.

57                  That the Serious Fraud Office only prosecutes the more significant frauds, the first consideration upon which Mr Sheil relied in expressing his view to the Minister about the non-trivial nature of these three offences, is a matter relevant to that issue.  It was the only material that entitled the Minister to reach a conclusion to that effect and it was of only  slender significance.

58                  If, as I think likely, the Minister also had regard to Mr Sheil’s erroneous statement about the offences involving substantial amounts of money in considering the matters she was required by reg 7 to advert to when she made her surrender decision, the only result is that, while the Minister did consider whether the offences were trivial in nature, she may have reached a wrong conclusion on that matter.  But, as the Full Court in Foster pointed out at par [66], there is no reviewable error simply because the decision-maker makes a wrong finding of fact.

59                  Even if the Minister’s surrender decision can be said to be made in circumstances in which she did not merely make an error of fact by relying on what Mr Sheil had to say about the money involved in the offences, but instead, took into account an irrelevant consideration in concluding that the offences were serious, rather than trivial ones, such a flawed approach to the making of the decision does not mean that the surrender decision itself is necessarily flawed with reviewable error because it is not by itself determinative of anything for or against surrender.  The Minister still has to make a discretionary judgment on all the circumstances of the case and form the opinion that they show that surrender for the offence would impose too severe a punishment on the person before being required to refuse surrender.

60                  The matter of severity of punishment is the next question for consideration.

61                  Injustice to the accused, in the form of risk of prejudice in relation to the conduct of the proposed trial, and hardship to the accused resulting from his own personal circumstances, are matters to be considered in determining whether surrender would be unjust or oppressive:  cf Sackville J’s discussion of the words “unjust” and “oppressive” in s 34(2) the Extradition Act 1988 (Cth) in New Zealand v Venkataya (1995) 57 FCR 151 at 165.  As to the question of the severity of punishment, surrender itself can hardly qualify as a punishment; it is the consequences that will flow from surrender and, in particular the punishment the person is likely to receive if convicted of the extradition offence, that must, I think, be the focus for consideration when the question is whether surrender will be too severe a punishment.  That the severity of the punishment is to be considered by the Minister “having regard to all the circumstances” is, I think, an indication that what is here relevant is not just the theoretical maximum punishment imposable under the law of the extradition country, but also the actual facts and circumstances of the particular extradition offence:  it is that which will govern, in large part, what the fugitive’s situation will be, if ultimately sentenced for the extradition offence.

62                  That reg 7 requires the Minister to form an opinion on the severity of punishment “having regard to all the circumstances” cannot, however, entitle the Minister here to have regard to the punishment he might receive if convicted of any of the thirteen offences additional to the three extradition offences.  Although the Minister must form the opinion as to the severity of punishment “having regard to all the circumstances”, the question can arise only when the Minister is determining whether a person should be surrendered “in relation to a qualifying extradition offence”.  I would therefore read the phrase “having regard to all the circumstances” as limited to those circumstances that relate to the qualifying extradition offence or offences.  Otherwise the restriction imposed by the Parliament by s 22(3)(d) on extradition would be deprived of its intended effect.

63                  There is reason to think that the Minister failed to advert to the punishment issue that she was required by reg 7 to take into account in so far as she was prevented from doing that by the lack of any information before her to indicate the likely punishment this applicant would receive if extradited to the United Kingdom and convicted there only of the three extradition offences.  There was much in the material before her to which I have referred which emphasised the importance of the Minister considering the question of the severity of the punishment to which the applicant would be exposed by surrender, having regard particularly to the fact that he would only be prosecuted on three of the original five offences for which he was eligible for surrender and had spent so long in custody awaiting extradition.  That material was such as to require her to give consideration to the question raised by reg 7 of the severity of punishment that surrender of the applicant might involve before she could validly make her decision for the applicant’s surrender.  There is no reason to doubt the ready availability of such information.  There would appear, from the ease of communication between the Department and the Serious Fraud Office revealed by the evidence, no difficulty in obtaining an informed opinion from that Office as to the punishment the appellant would be likely to receive if convicted in the United Kingdom of only the three extradition offences.

64                  Mr Sheil, in the memorandum and attachments he prepared in March 1999 for the Minister’s consideration, did not, however, give any consideration to the issue of the likely severity of punishment or put any material before the Minister on that issue, save incidentally, in so far as he observed that each offence carried a maximum punishment of ten years’ imprisonment and, erroneously, that “the alleged conduct involved substantial amounts of money”, as reasons why the offences could be considered to be other than trivial in nature.  In some cases, eg, where serious violence to the person or fraud involving persons being deprived of large sums constitutes the gravamen of the extradition offence, the Minister may need nothing more than that to form the opinion that a significant sentence of imprisonment is likely to be imposed if the fugitive is convicted.  But, here, where the information, so far as it goes, indicates that the prosecuting authorities are only entitled to proceed against the person, if extradited, on a small number of charges not on their face stamped with the character of serious offences, the Minister cannot be in a position to discharge her obligation under the law to consider the punishment question in exercising her discretion to surrender or not surrender if all she knows is what Mr Sheil here had to say.

65                  The severity of punishment issue was considered by the Minister’s advisers who prepared the submission with recommendations of 10 July 1998 and attachment B to that submission, on which the Minister relied to make her earlier surrender decision of 24 July 1998:  this material was included with Mr Sheil’s memorandum and was before the Minister when she made her decision of 30 March last.  However, I do not regard what was then said as providing information that the Minister could properly act on to form a view on the punishment issue now in question for two reasons.  First, the comments in the 10 July 1998 memorandum did not deal with the punishment likely to be imposed if the applicant were convicted of only the three offences that are all that remain of present relevance, but rather with the five offences, as a group, which included the conspiracy charge that involved the loss to the victim of valuable property including £25,000 in cash.  The Minister was well able to conclude that this offence, even without the other four, was likely to attract substantial punishment.  That the only three charges still of relevance will do that is not at all obvious.  Secondly, the comments in attachment B to this July 1998 memorandum, in contrasting (in pars 22 and 24) the likely sentences the five offences would attract in the United Kingdom with the sentences that would be imposed by an Australian court and then (in par 25) suggesting that it is unnecessary to form a view on the sentences a United Kingdom court would be likely in fact to impose on the applicant, wrongly divert attention from the comparison that is required to be made by reg 7, viz, a comparison between the actual sentence the United Kingdom court is likely to impose and the circumstance of present relevance - the punishment the applicant had already suffered by way of loss of liberty while awaiting extradition.

66                  The Minister has not given any reasons for her decision of 30 March 1999.  She is not obliged to do so.  But as Watkins LJ pointed out in R v Secretary of State for the Home Department; Ex parte Sinclair [1992] Imm AR 293 at 301, while the failure to give reasons where there is no obligation to do that does not of itself attract judicial review of a Minister’s surrender decision, the absence of reasons does not necessarily leave the decision immune from such a challenge.  A failure to give reasons when the evidence shows the advice given to the Minister did not advert to a relevant consideration leaves uncontradicted the inference that that consideration was overlooked when the decision was made.

67                  I find that the Minister had no information before her on the likely punishment the applicant would receive, if convicted of the three extradition offences, and so could not do what she was required by reg 7 to do when she made her decision of 30 March 1999, viz, have regard to whether surrender would be too severe a punishment for him.

68                  However, after only one month in custody awaiting extradition, the applicant applied for and was granted bail under s 15(2) the Extradition Act 1988 (Cth).  The only reason the applicant was imprisoned for thirteen and a half of the total of the fourteen and a half months he spent in custody up to the time of the Minister’s decision of 30 March 1999 was that, after being granted bail on 13 May 1997, he breached his bail conditions, absconded and, when finally located, was taken back into custody in February 1998.  Almost all of the time he has spent in custody and which he says the Minister failed to take into account, thereby invalidating her surrender decision, was the result of his own breach of the terms on which he was given his freedom in May 1997.  I do not wish to say that, where a person bailed in extradition proceedings breaches his bail conditions with the result that he spends a period of time back in custody awaiting extradition, that person may not be able to show that there are special circumstances which require the Minister to take into account his loss of liberty, even though self-inflicted.  But where, as here, nothing more is relied on than its duration to show that a quite substantial period spent in custody awaiting extradition is such as to make surrender too severe a punishment for the person, and if it further appears, as is also the case here, that that was brought about by the person’s own deliberate conduct, I do not think that is a matter which the Minister is under any obligation to consider in order to discharge her duty under reg 7.  Otherwise a fugitive able to get bail could, when facing extradition on less serious charges, deliberately create a situation in which he could defeat an otherwise proper extradition.  That in making the decision the Minister did not advert to something which, if she had adverted to it, could not have affected her decision in favour of surrender, cannot provide a ground for invalidating that decision.

69                  If I am wrong in thinking that the Minister is not bound to have regard to the quite long period the applicant has spent in custody awaiting extradition, I think that (save in an exceptional situation) the fact that a circumstance that should be adverted to was created by the offender’s own deliberate conduct would make it so insignificant a circumstance that failure to take it into account could not be said to have materially affected the decision:  see Peko-Wallsend at 40.

70                  On the material before me, the only period in custody that the applicant could be entitled to have taken into account by the Minister on the severity of punishment issue in making her surrender decision was the initial period of one month before the applicant was granted bail.  But, in the absence of explanation for why the grant of bail was delayed and in the absence of something to show that such a relatively short period of loss of liberty may fall severely on the particular fugitive, that will ordinarily be too insignificant a circumstance to be capable of materially affecting the decision the Minister made.  That it may have been overlooked cannot invalidate the decision:  see Peko-Wallsend.

71                  The time the applicant has spent in custody since his re-arrest in February 1998 has been protracted in considerable part because he has taken legal action to challenge various of the steps taken in the extradition process.  I do not consider that a person should, by doing nothing more than pursue his legal rights in a court system that cannot offer litigants immediate hearings be said to have inflicted the relevant loss of liberty upon himself, at least where, as is the case here, his conduct of the litigation cannot be said to involve an abuse of the process of the Court.

Miscellaneous issues

72                  As to the applicant’s attack on the decision as unreasonable, there are many dicta in the High Court cases that accept that Wednesbury unreasonableness is a ground for the review at common law of administrative decisions.  See Eshetu at pars [124] to [126], per Gummow J.  But the exact scope of this head of review cannot be regarded as settled.  The unresolved question appears to be whether unreasonableness as a ground of administrative review at common law is confined to cases where no particular reviewable and invalidating error in the exercise of the power can be identified, but the decision goes so far beyond that which a repository of the power, acting reasonably, could make as to require the conclusion that the power has been unlawfully exercised or whether instead, unreasonableness is a ground of wider scope that permits review of the way the decision-maker has gone about arriving at the decision (a basis for review which it is nevertheless accepted cannot be so wide as to permit the Court to enter the field of merit review).  See Abebe v Commonwealth per Gaudron J at pars [114] - [116]; Gummow and Hayne JJ at par [194] and Eshetu per Gleeson CJ and McHugh J at par [44], Gaudron and Kirby JJ at pars [100] - [101], Gummow J at pars [124 - 126] and Callinan J at pars [183] - [187].  Hayne J would leave open the whole question whether this Court’s power to interfere with an administrative decision extends to holding it to be invalid on this ground:  see Eshetu at par [159].

73                  However, it is unnecessary for me to determine whether the Minister’s decision of 30 March 1999 is reviewable for unreasonableness, whether on the narrow or the wide basis upon which such a ground for the judicial review of administrative decisions at common law may be available.  The unreasonableness argument here involves nothing more than the proposition that the Minister failed to give proper weight to a range of competing considerations, including the significance of the abandonment by the United Kingdom authorities of any intention to prosecute the applicant for the two conspiracy offences in respect of which he was found to be eligible for surrender.  As is explained by Gleeson CJ and McHugh J in Eshetu at pars [40] to [45], this does not raise for determination any question of invalidity for Wednesbury unreasonableness.

74                  The applicant accepted that he could not dispute the Full Court’s decision in so far as it rejected his attack on the Minister’s alleged failure, in making her decision of 24 July 1998, to have proper regard to the material concerning the activities he claims he engaged in to assist United Kingdom prison and police authorities and his consequent exposure to harm, if returned to prison in the United Kingdom.  However, he submitted in effect that it could be seen that the Minister’s decision of 30 March 1999 had failed to give the additional weight those same matters now called for, in view of the changed circumstances.  The applicant thus invites the Court to form its own view on how the competing considerations that the Minister had to consider should be balanced, each against the other, and so test the validity of the Minister’s decision of 30 March 1999 by reference to the decision the Court would have made, if in the Minister’s chair.  If the Court were to do that, it would be entering the forbidden area of merit review.  This invitation must be rejected.

75                  The application will be dismissed.

Associate:

Dated:              24 June 1999