FEDERAL COURT OF AUSTRALIA

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

JUDGMENT SUMMARY

            This summary does not constitute the reasons for judgment of the Court.  It is intended to assist an understanding of the issues on the appeal and the role of the Court with respect to them.  The reasons for judgment given by the judges are the only authoritative pronouncement on the issues.

The Minister for Customs and Justice previously determined to surrender Mr Foster to the United Kingdom to stand trial on five charges:  two charges of conspiracy to defraud and three of using a false instrument.  The United Kingdom Serious Fraud Office later advised that it intended proceeding only with the last three charges.  The Minister considered the request for extradition in light of that change in circumstances.  The Minister decided to order Mr Foster’s extradition.

            Mr Foster sought review of that decision by this Court.  The Court has power to undertake a review but in doing so cannot form its own opinion as to whether it would surrender Mr Foster.  Its role is to ensure, for example, that the Minister, in making her decision, took into consideration those matters which she was legally obliged to.  The Judge who heard the application considered that the Minister’s decision should stand.  Mr Foster appealed from that decision.

            The appeal essentially concerned matters which the regulations to the Extradition Act required to be considered:  whether the offences with which Mr Foster remained charged were “trivial”, so that extradition could not be said to be warranted;  and whether extradition would, in the circumstances pertaining to Mr Foster, be “oppressive” or “too severe a punishment”.

            The Full Court decided that the Minister did consider whether the alleged offences were “trivial” and that the conclusion that they were not trivial was one open to her.  On this point the Court also considered the suggestion that the Minister may have misunderstood what was involved in the charges, and has held that she was properly informed.

            Mr Foster had argued that extradition would be “too severe a punishment” because he had already been held in custody for some time in Australia.  By a majority this Court has held that the Minister did consider that factor and that was all that was required.

            The Full Court ordered that Mr Foster’s appeal be dismissed with costs.

            The Judges on the appeal were the Honourable Justice Carr, the Honourable Justice Moore and the Honourable Justice Kiefel.