FEDERAL COURT OF AUSTRALIA
Cabal v Attorney-General of the Commonwealth [2001] FCA 583
ADMINISTRATIVE LAW- judicial review – Attorney-General’s power under s 27 of Extradition Act 1988 (Cth) – whether intention of Parliament was that power to deliver property seized under warrant to extradition country was contingent upon Attorney-General’s own view of whether property may be material as evidence or has been acquired as a result of extradition offence – whether wholly or partly question of objective fact – whether constitutes “jurisdictional facts” for purposes of administrative law.
EXTRADITION – judicial review – Attorney-General’s power under s 27 of Extradition Act 1988 (Cth) to direct, by notice in writing, that property seized under s 14 be sent to extradition country – whether ss 27(b)(i) and 27(b)(ii) contingent upon “jurisdictional facts” – whether Article 23 of Treaty between Australia and United Mexican States operates to limit or qualify s 27.
Extradition Act 1988 (Cth) ss 11(1), 11(6), 14(1)(a), (c), 19(5), 27(a), 27(b)(i), 27(b)(ii),
Treaty on Extradition betweenAustralia and the United Mexican States Art 23
Cabal v United Mexican States (No 3) [2000] FCA 1204 referred to
Cabal v United Mexican States [2001] FCA 427 referred to
Liversidge v Anderson [1942] AC 206 at 225ff referred to
George v Rockett (1990) 170 CLR 104 at 110 referred to
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 referred to
Australian Heritage Commission v Mount Isa Mines Limited (1995) 60 FCR 456 at 465-466 referred to
Minister for Immigration and Ethnic Affairs v Naumovska (1989) 88 ALR 589 at 601-602 referred to
Buck v Comcare (1996) 137 ALR 335 referred to
Timbarra Protection Coalition Inc v Ross Mining NL (1998-1999) 46 NSWLR 55 at 64 referred to
Karalis v Australian Community Pharmacy (1998) 90 FCR 473 referred to
Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 at 476 referred to
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 158 referred to
Coco v The Queen (1994) 179 CLR 427 at 435-436 referred to
Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149 at 188 referred to
Aronson & Dyer, Judicial Review of Administrative Action 2nd ed 2000 at 194, 199
MI Aronson, The Resurgence of Jurisdictional Facts (2001) 12 Public Law Review 17
TERESA PASINI CABAL, ANA MARIA CABAL PASINI, TERESA CABAL PASINI, SOFIA CABAL PASINI and CARLOS CABAL PASINI v THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
V150 of 2000
WEINBERG J
21 MAY 2001
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V150 OF 2000 |
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BETWEEN: |
TERESA PASINI CABAL FIRST APPLICANT
ANA MARIA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) SECOND APPLICANT
TERESA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) THIRD APPLICANT
SOFIA CABAL PASINI (Through her litigation guardian Teresa Pasini Cabal) FOURTH APPLICANT
CARLOS CABAL PASINI (Through his litigation guardian Teresa Pasini Cabal) FIFTH APPLICANT
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AND: |
THE ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The questions to be decided separately from any other question and before any trial in the proceedings be answered as follows:
Question (a) Is the question, whether property or a thing seized under section 14 of the Extradition Act 1988 (Cth) (“the Act”) is property or a thing acquired as a result of an offence within section 27(b)(ii) of the Act, justiciable by the Federal Court?”
Answer: Yes.
Question (b) Does the power of the Attorney-General to direct, pursuant to sub-paragraph 27(b)(ii) of the Act, that property or a thing seized under section 14 of the Act be sent to the extradition country (“the power”) only arise where:
(i) a court of competent jurisdiction determines, in appropriate proceedings, that the relevant property or thing has been acquired as a result of an offence referred to in paragraph 14(1)(a) of the Act; or
(ii) the Attorney-General, acting in good faith and otherwise according to law, concludes that the relevant property or thing has been acquired as a result of such an offence?”
Answer: The power only arises where a court of competent jurisdiction determines, in appropriate proceedings, that the relevant property or thing has been acquired as a result of an offence referred to in par 14(1)(a) of the Act.
Question (c) Is it open to the Federal Court to determine, in a proceeding under subsection 39B(1A) of the Judiciary Act 1903, that particular property or a thing seized under section 14 of the Act was not acquired as a result of an offence referred to in paragraph 14(1)(a) of the Act?
Answer: Yes.
Question (d) Do the provisions of article 23 of the Treaty on Extradition betweenAustralia and the United Mexican States (“the Treaty”)limit or qualify the power of the Attorney‑General pursuant to sub-paragraph 27(b)(ii) of the Act, so that the power will only arise where:
(i) a court of competent jurisdiction determines, in appropriate proceedings, that a third party does not have rights over the relevant property or thing; or
(ii) the Attorney-General, acting in good faith and otherwise according to law, determines that no third party has rights over the relevant property or thing?
Answer: Not answered.
Question (e) Does the Federal Court have jurisdiction to direct the Attorney-General to issue a direction in writing to a police officer, who has retained property or a thing pursuant to subsection 14(5) of the Act, that the police officer deliver the property or thing to a person where the Federal Court concludes that the property or thing has not been acquired as a result of an offence referred to in paragraph 14(1)(a) of the Act?
Answer: Yes.
2. The respondent pay the applicants’ costs of and incidental to the determination of these questions.
3. The proceeding be listed for a directions hearing on a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V150 OF 2000 |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 By amended application under ss 39B and 39B(1A) of the Judiciary Act 1903 (Cth) Mrs Teresa Pasini Cabal and her four children (the applicants) have instituted proceedings against the Attorney-General of the Commonwealth seeking to challenge what is said to be his failure to direct that certain property seized under s 14 of the Extradition Act 1998 (Cth) (the Act) be returned to their possession. The applicants also seek declaratory and other relief.
2 By notice of motion filed on 24 July 2000 the respondent moved the Court for orders pursuant to O 29 r 2 of the Federal Court Rules that the Court decide three questions separately from any other question and before any trial in the proceedings. Senior Counsel for the respondent, Mr Hanks QC, submitted that the determination of these questions in favour of the respondent would decide the outcome of the litigation. It would, he submitted, avoid the need for a lengthy trial of a substantial action.
3 The respondent’s notice of motion was opposed by the applicants. On 8 August 2000, after giving this matter careful consideration, I ordered that the three questions formulated by the respondent be decided separately. I did so in accordance with the principles enunciated by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718. See also Bertran v Vanstone [1999] FCA 1427 per Kenny J. I also gave directions for the preparation of a statement of agreed facts.
4 On 10 October 2000 a statement of agreed facts was filed with the Court. However, it subsequently emerged that it contained some inaccuracies and required amendment. Eventually, on 24 April 2001, an amended statement of agreed facts was filed.
5 When this application came before the Court for hearing, the parties were granted leave to file an amended version of the preliminary questions for determination. That amended version contained five questions, rather than the original three. The five questions were:
“(a) Is the question, whether property or a thing seized under section 14 of the Extradition Act 1988 (Cth) (“the Act”) is property or a thing acquired as a result of an offence within section 27(b)(ii) of the Act, justiciable by the Federal Court?
(b) Does the power of the Attorney-General to direct, pursuant to sub-paragraph 27(b)(ii) of the Act, that property or a thing seized under section 14 of the Act be sent to the extradition country (“the power”) only arise where:
(i) a court of competent jurisdiction determines, in appropriate proceedings, that the relevant property or thing has been acquired as a result of an offence referred to in paragraph 14(1)(a) of the Act; or
(ii) the Attorney-General, acting in good faith and otherwise according to law, concludes that the relevant property or thing has been acquired as a result of such an offence?”
(c) Is it open to the Federal Court to determine, in a proceeding under subsection 39B(1A) of the Judiciary Act 1903, that particular property or a thing seized under section 14 of the Act was not acquired as a result of an offence referred to in paragraph 14(1)(a) of the Act?
(d) Do the provisions of article 23 of the Treaty on Extradition betweenAustralia and the United Mexican States (“the Treaty”)limit or qualify the power of the Attorney‑General pursuant to sub-paragraph 27(b)(ii) of the Act, so that the power will only arise where:
(i) a court of competent jurisdiction determines, in appropriate proceedings, that a third party does not have rights over the relevant property or thing; or
(ii) the Attorney-General, acting in good faith and otherwise according to law, determines that no third party has rights over the relevant property or thing?
(e) Does the Federal Court have jurisdiction to direct the Attorney-General to issue a direction in writing to a police officer, who has retained property or a thing pursuant to subsection 14(5) of the Act, that the police officer deliver the property or thing to a person where the Federal Court concludes that the property or thing has not been acquired as a result of an offence referred to in paragraph 14(1)(a) of the Act?”
Factual background
6 The first applicant, Mrs Teresa Pasini Cabal (Mrs Cabal), is the wife of Mr Carlos Cabal Peniche (Mr Cabal). The second, third, fourth and fifth applicants are their infant children. Mrs Cabal acts as their litigation guardian. The family are all Mexican citizens. They lived in Mexico until 1994. They left Mexico in September of that year, just as serious criminal charges were about to be laid against Mr Cabal. They then lived in Europe until 1997. They travelled to Australia, entering this country under false names. They have been living since their arrival in Australia at rented premises at 15 Glyndon Avenue, Brighton, in the State of Victoria.
7 On 10 November 1998, a magistrate, acting under s 12 of the Act, issued a provisional arrest warrant for the arrest of Mr Cabal. Mr Cabal was arrested pursuant to that warrant early on the morning of 11 November, 1998.
8 On the same morning, a magistrate issued a search warrant pursuant to s 14 of the Act authorising the police to enter the rented premises and to search for and seize certain property, including jewellery. According to the terms of the warrant, it was issued on the basis that the magistrate had been informed that there were reasonable grounds for suspecting that there may be in or at those premises certain property, including jewellery, that may be material as evidence in proving two offences under the law of Mexico. The offences were identified as:
“two offences of fraud by employees/executive officers of credit institutions, sanctioned by Article 112 Section V Part d) in relation to numbers 113, Section 1 and 114 of the Law of Credit Institutions alleged to have been committed between January 1993 and September 1994 by Carlos CABAL PENICHE …”
9 The search warrant was executed by Mr Nicholas James Moger, a police officer within the meaning of the Act. Among the property seized during the course of the search were some sixty-six items of jewellery. The present proceeding relates to those sixty-six items of jewellery, and whether their continued retention is lawful.
10 Two requests for Mr Cabal’s extradition to Mexico were subsequently received from the Mexican Government. The first was received on 6 January 1999 and the second on 11 February 1999.
11 The first request for Mr Cabal’s extradition referred to thirteen separate Mexican arrest warrants seeking his arrest. According to the statement of acts or omissions sent with that request, these arrest warrants related to twenty-six offences alleged to have been committed by him. Of the twenty-six offences, twenty-three were said to involve contraventions of Arts 112, 113 and 114 of the Law of Credit Institutions, and three were said to involve contraventions of Art 386 of the Federal Criminal Code. All of the offences were alleged to have been committed between the beginning of 1993 and September 1994. They were said to have resulted in total losses of US$242,722,590 to Banco Union, the bank over which Mr Cabal had effectively presided throughout the relevant period.
12 The second request for Mr Cabal’s extradition referred to four Mexican arrest warrants seeking his arrest. According to the statement of acts or omissions sent with that request the warrants related to five offences alleged to have been committed by him. One of those offences had already been the subject of the first request. Of the remaining four offences, three were said to have involved contraventions of Arts 109 and 111 of the Law of Credit Institutions, and one alleged a contravention of Art 115bis s 1, par (b) of the Federal Tax Code. These offences were also alleged to have been committed in 1993 and 1994. They were said to have resulted in further losses to Banco Union of 13,016,976 Mexican pesos, US$50,000,000 and 488,518,032.99 Mexican pesos.
13 After the seizure of the sixty-six items of jewellery by the police on 11 November 1998 there followed a lengthy exchange of correspondence between the applicants’ legal representatives and the police and the respondent. In broad terms the import of that correspondence may be summarised as follows:
· On 11 December 1998 the applicants’ solicitors wrote to the Australian Federal Police requesting the return of some of the items of jewellery seized.
· On 22 December 1998 the Australian Federal Police responded by saying that the matters raised had been referred to the Attorney-General who had authority pursuant to s 27 of the Act to direct that property seized pursuant to a warrant issued under s 14 of the Act be sent to the extradition country.
· On 24 December 1998 the applicants’ solicitors wrote to the Attorney-General seeking “clarification … as to what action is proposed to be taken in relation to the seized property pursuant to s 27 or any other section of the Act …”.
· On 13 January 1999 the Attorney-General’s Department responded advising that, to the extent that any decision might be made concerning the exercise of the power under s 27 of the Act, the solicitors would be given an opportunity to make submissions.
· On 25 March 1999 the applicants’ solicitors wrote to the Attorney-General’s Department seeking assurances that no decision would be made in respect of the seized jewellery without first giving the applicants an opportunity to make submissions and that no action would be taken in relation to any such decision by the Attorney-General until seven days had elapsed from the solicitors being notified of any such decision.
· On 26 March 1999 the Attorney-General’s Department responded by agreeing to offer these assurances.
· On 3 August 1999 the applicants’ solicitors wrote to the Attorney-General’s Department enclosing a detailed submission in support of their claim that the jewellery could not be the subject of a direction under s 27 of the Act. It appears that nothing further was heard from the Department in response to that submission.
14 Eventually, on 16 March 2000, the applicants, apparently dissatisfied with the respondent’s refusal to direct that the property seized be returned to them forthwith, commenced the present proceeding in this Court.
15 There are several other matters which should be noted. On 17 December 1999 a magistrate determined, pursuant to s 19 of the Act, that Mr Cabal was eligible for surrender in relation to the offences for which his extradition was sought. Proceedings were brought by Mr Cabal to review that determination. Those proceedings were later dismissed by French J: Cabal v United Mexican States (No 3) [2000] FCA 1204. On 18 April 2001 a Full Court of this Court dismissed an appeal against his Honour’s decision: Cabal v United Mexican States [2001] FCA 427.
the claim for judicial review
16 The applicants’ claim for judicial review is predicated upon two separate contentions of fact. They contend that, if permitted to do so, they can establish that:
· none of the items of jewellery seized is capable of providing evidence of the commission of the offences for which Mr Cabal’s extradition is sought; and
· none of those items of jewellery was acquired by the applicants as a result of any offence identified in any of the warrants.
17 It follows, so the applicants say, that the jewellery seized is not capable of being made the subject of a lawful direction by the respondent that it be sent to Mexico, and accordingly should be returned to them forthwith. They say, in the alternative, that the respondent ought not be permitted to continue to defer a decision under s 27 of the Act until after all Mr Cabal’s legal challenges to his extradition have been finally determined. They contend that the respondent has already delayed unreasonably in responding to their request that the items of jewellery be returned to them. They seek an order in the nature of mandamus compelling him to decide forthwith whether any of the jewellery should be sent to Mexico.
18 The particular relief sought by the applicants is as follows:
1. A declaration that the jewellery identified in Schedule “A” to this Amended Application is not property or a thing acquired as a result of any offence identified in the warrant issued by Deputy Chief Magistrate Street on 11 November 1998 pursuant to s14 of the Extradition Act 1998 (Cth).
2. A declaration that the jewellery identified in Schedule “A” to this Amended Application is not a property or a thing that is capable of being subject to a direction under s27(b) of the Extradition Act 1998 (Cth) by the Respondent directing that it be sent to the United Mexican States.
3. An order directing the Respondent to issue a direction in writing to Nicholas James Moger a police officer within the meaning of the Extradition Act 1988 (Cth) directing him to deliver the jewellery identified in Schedule “A” to this Amended Application to the first applicant.
4. Alternatively, an order directing the respondent to make a decision under s27 of the Extradition Act 1988 on whether to direct that any property or thing seized under the warrant issued by Deputy Chief Magistrate Street on 11 November 1999 pursuant to s14 of the Extradition Act 1998 (Cth) be sent to the United Mexican States.”
the RELEVANT LEGISLATIVE AND TREATY REGIME
19 Section 27 of the Act provides as follows:
27. Where:
(a) property or a thing is seized under section 13 or 14; and
(b) the property or thing:
(i) may be material as evidence in proving any offence referred to in subparagraph 13(1)(b)(i) or paragraph 14(1)(a), as the case requires, in relation to a person whose surrender is sought by extradition country; or
(i) has been acquired as a result of such an offence;
the Attorney-General may, whether or not a surrender warrant or a temporary surrender warrant is issued in respect of the person, direct, by notice in writing, that the property or thing be sent to the extradition country.
20 Section 14 of the Act, to which reference is made in s 27, relevantly provides:
14. (1) Where a magistrate is informed by affidavit that there are reasonable
grounds for suspecting that there may be in any place any thing:
(a) that may be material as evidence in proving any offence in relation to which a provisional arrest warrant was issued or for which surrender of a person is sought by an extradition country; or
…
the magistrate may issue a warrant … authorising a police officer named in the warrant …to enter upon or into the place, to search the place for any such thing and to seize any such thing found in the place. …”
21 Section 11(1) of the Act provides that the regulations may state that the Act applies in relation to a specified extradition country subject to such “limitations, conditions, exceptions or qualifications” as are necessary to give effect to a bilateral extradition treaty, a copy of which is set out in the regulations. Regulation 5 of the Extradition (United Mexican States) Regulations 1991, No 36, provides that the Act applies in relation to Mexico subject to the Treaty on Extradition between Australia and Mexico done at Canberra on 22 June 1990. A copy of the English text of that Treaty is set out in the Schedule to the regulations.
22 Article 23 of the Treaty is in the following terms:
“1. At the request of the Requesting Party, the Requested Party shall secure and deliver, to the extent that its laws permit and without prejudice to the rights of third parties, property:
(a) that may serve as evidence; or
(b) which, has been obtained as a result of the offence and has been found in the possession of the person sought at the time of that person’s arrest, or which has been subsequently found.
2. The property mentioned in paragraph 1 shall, if the Requesting Party so requests, be surrendered even though the extradition cannot be carried out owing to the death, disappearance or escape of the person sought.
3. The Requested Party may temporarily retain any property mentioned in paragraph 1 if it is the subject of, or required for, proceedings in that State, or it may temporarily surrender it on condition that it be returned free of charge.
4. When the Requested Party or third parties have rights over the property surrendered to the Requesting Party in accordance with the provisions of this Article, such property shall be returned to the Requested Party as soon as possible and free of charge.”
23 It is a nice question whether Art 23 of the Treaty contains “limitations, conditions, exceptions or qualifications” within the meaning of s 11(1) of the Act such that it is Art 23, rather than s 27, which applies to the delivery of property to “the Requesting Party” (Mexico) in extradition proceedings involving extradition from Australia to Mexico. It is plain that Art 23, though similar in form to s 27, is not expressed in precisely the same terms. It speaks of property “that may serve as evidence” as distinct from property which “may be material as evidence”. It also refers, in terms, to the “rights of third parties”, an expression which is notably absent from s 27.
24 Both for the sake of completeness, and because it is relevant to the resolution of the preliminary questions raised for determination, it should be noted that s 19(5) of the Act provides:
“In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.”
the respondent’s submissions ON THE PRELIMINARY QUESTIONS
25 Mr Hanks submitted that the application brought by Mrs Cabal and her children was misconceived as a matter of law, being based upon an erroneous interpretation of s 27 of the Act. He commenced by summarising what he understood to be the underlying factual basis for the applicants’ case:
· Among the items of jewellery seized pursuant to the warrant there were a number which had been acquired prior to 1993.
· It would follow that those items of jewellery could not “be material as evidence in proving any of the offence[s]” for which Mr Cabal’s extradition was sought. Self-evidently, they could not have been acquired “as a result of such offence[s]”.
· Among the other items of jewellery seized pursuant to the warrant (all of which were acquired after 1993) some at least could be proved to have an entirely legitimate provenance.
· Assuming that such a provenance could be established, those items of jewellery could not “be material as evidence” in proving the commission of the offences.
· It would also follow that those items of jewellery had not been acquired “as a result of such offence[s]”.
26 Mr Hanks submitted that there was no foundation for the applicants’ case because the premise which lay behind it was that the requirements set out in ss 27(b)(i) and 27(b)(ii) of the Act were matters which constituted “jurisdictional facts” for the purposes of judicial review, and that premise was misconceived. By the term “jurisdictional facts” he meant facts which are jurisdictional preconditions to valid action. He submitted that the requirements set out in those provisions would be met if the respondent, acting in good faith and otherwise according to law, concluded that the facts set out therein existed. He submitted, in other words, that the respondent’s power to make directions under s 27 was contingent upon the respondent’s own view of whether the property seized may be material as evidence in proving any offence for which Mr Cabal’s extradition was sought, or may have been acquired as a result of an offence referred to in s 14(1)(a) of the Act. The power was not contingent upon the existence of either of those facts.
The nature of the respondent’s task under s 27 of the Act
27 Mr Hanks submitted that the question of construction which confronted the Court should not be determined solely by reference to the language in which s 27 of the Act is expressed, but also by reference to the nature of the function which that section requires the respondent to perform.
28 Mr Hanks submitted that s 27 of the Act is intended to ensure that this country is in a position to fully implement its international obligations in relation to extradition. He submitted that the section had to be read in the context of the specific obligations assumed by Australia under Art 23 of the Treaty. That Article made it clear that the initiative for this country to seize and deliver up property had to originate from the Requesting Party, Mexico. It could reasonably be anticipated that the information necessary to enable this country (through the respondent) to decide whether any property seized answered the description in Art 23.1(a) or Art 23.1(b) of the Treaty would be provided by Mexico. That information would reflect not only the factual background relating to the relevant offences, but also information as to the relevant aspects of Mexican law. Mr Hanks submitted that it was highly unlikely, in that regard, that Australia and Mexico intended that the obligations assumed by this country under Art 23 would apply only where it concluded, in accordance with the processes of its own legal system, that the property sought by Mexico in fact answered the description in either Art 23.1(a) or Art 23.1(b).
Sequence of Administrative Process
29 Mr Hanks submitted that an aid to the construction of s 27(b) was its place in the sequence of administrative powers conferred by the Act. He submitted that logic suggested that the power to direct that the property or thing seized be sent to the extradition country would be exercised only at the conclusion of the extradition proceedings, and not at any earlier stage. Mr Hanks asked rhetorically:
· Why would the Attorney-General direct the property to be sent to an extradition country, pursuant to s 27 where the relevant person had been found, under s 19(10), not to be eligible for surrender?
· Why would the Attorney-General make such a direction, pursuant to s 27, where the Attorney-General decided, under s 22, that the person should not be surrendered because, for example, prosecution of the offence was time barred?
30 Mr Hanks acknowledged that under s 27 of the Act the power to direct that the property or thing seized be sent to the extradition country may be exercised “whether or not a surrender warrant or a temporary surrender warrant is issued in respect of the person”. That modifying clause might be read as pointing to the power being exercised at an early stage of the proceedings. He submitted, however, that the clause had been included merely to ensure that the power could be exercised where the person whose extradition was sought had died or absconded. It did not, of itself, point to the power being exercised at any stage before a final determination was made as to whether a person whose extradition was sought should be surrendered.
31 It was next submitted by Mr Hanks that if the power under s 27 of the Act were to be exercised at the conclusion of the extradition proceedings, it would necessarily be exercised by reference to such information as was available to the respondent at that time, and not information available at some earlier stage. The information to be taken into account would include material relating to the relevant offences for which surrender was sought, material supplied by the Requesting Party on evidentiary issues (for a decision under s 27(b)(i) of the Act) and material relating to the circumstances leading to the acquisition of the property (for a decision under s 27(b)(ii) of the Act). The information to be taken into account would also include any submissions made, and any information supplied, by any person with an interest in the property, including the person whose extradition was sought.
Relevance of s 19(5) of the Act
32 Mr Hanks next submitted that, having regard to s 19(5) of the Act, it was no part of the process of extradition to inquire into whether the relevant person had committed the offence(s) for which surrender was sought. He submitted that it would be extraordinary if that issue could be raised for judicial determination indirectly, in what is sometimes described as a “collateral proceeding”. He submitted that this consideration was particularly telling in a proceeding such as the present which sought, in effect, to pre-empt the exercise by the respondent of the power under s 27.
Policy
33 Mr Hanks turned finally to the argument upon which he relied most strongly, namely that to construe s 27 in the manner for which the applicants contended, as creating “jurisdictional facts”, might lead to fragmentation of the extradition process and would open the way to serious abuse and delay.
34 Mr Hanks argued in this regard that if s 27(b)(i) were to be construed as prescribing a “jurisdictional fact”, the respondent’s power to direct the relevant property to be sent to the Requesting Party would only arise where that property might be “material as evidence” in proving a relevant offence. If the exercise of that power were challenged (either pre-emptively, as in the present proceeding, or ex post facto) this Court would have to determine, as issues of fact, the elements of each relevant offence under Mexican law together with the relevant aspects of Mexican rules of evidence. The Court would also have to consider what other evidence was available to the Mexican prosecuting authorities to prove the relevant offences. Any trial in this Court involving all of these issues would almost certainly be both complex and protracted.
35 In the same vein, Mr Hanks argued that if s 27(b)(ii) were to be construed as prescribing a “jurisdictional fact”, a challenge to the exercise of that power by the respondent (such as that brought by the applicants) would require the Court to receive evidence, not only as to the circumstances in which the property was obtained, but also evidence bearing upon whether the relevant offences had been committed. The Court would have to consider whether there was a sufficient causal link between the commission of those offences, and the obtaining of the property. The Court would therefore be required to determine, as a question of fact, whether the person whose surrender was sought had committed those offences, and whether the obtaining of the property was “as a result of” the commission of a relevant offence. In short, the Court would be required not merely to determine the provenance of the property seized, but also to try the relevant offence. Worse still, it would have to do so according to Mexican law, and not Australian law. Mr Hanks submitted that it would be remarkable to think that this task would be undertaken against the background of an Act which expressly excludes from consideration, when dealing with an application for extradition, whether “the person has engaged in conduct constituting an extradition offence …” (see s 19(5)).
36 Mr Hanks then dealt specifically with preliminary question (d). He noted that this question had been formulated in order to allow for the possibility that, by reason of s 11(1) of the Act and reg 5 of the Regulations, Art 23 of the Treaty “limited or qualified” the respondent’s power under s 27, and therefore governed the applicants’ rights in relation to the delivery of property to Mexico. He noted too that if the section were so “limited or qualified” by the Treaty, and if the applicants’ contentions regarding the proper construction of the section were to be accepted, the effect might be not merely to import as “jurisdictional facts” the general requirements of Art 23, but also the requirement that no third party had rights over the relevant property. He submitted that, on the assumption that Art 23 and not s 27 governed the respondent’s power to direct delivery of property seized to Mexico, whether any third party had rights over that property was a matter which was solely for the respondent to consider, and no business of the Court.
the applicants’ submissions ON THE PRELIMINARY QUESTIONS
37 Mr Gray, who appeared on behalf of the applicants, submitted that s 27, upon its proper construction, prescribes “jurisdictional facts”, the existence of which can be challenged in an application for judicial review. He submitted that no other construction of the section was realistically open.
38 In support of that submission Mr Gray drew attention to other provisions in the Act which demonstrated that where the legislature sought to confer upon the respondent a statutory power the exercise of which depended for its validity upon his being satisfied of certain matters, or forming a particular view, it was perfectly capable of saying so in clear and unambiguous language.
39 Mr Gray referred specifically to s 16(2)(a) of the Act which provides that the Attorney-General shall not give notice to a magistrate stating that an extradition request has been received unless he “is of the opinion” that certain conditions are met. That section was considered in Bertran v Vanstone (2000) 173 ALR 63 at 81 per Kenny J; and by a Full Court of this Court in Peniche v Vanstone (2000) 101 FCR 112 at 132. He submitted that it was plain, from what was said about that section in those cases, that the conditions set out therein were not “jurisdictional facts”.
40 Mr Gray referred also to s 22(3) of the Act which provides that an eligible person may only be surrendered if the Attorney-General “is satisfied” of certain matters. He submitted that a section which is drafted in these terms is plainly contingent upon the Attorney-General’s own view of those matters, and does not specify “jurisdictional facts”.
41 Mr Gray submitted that the language employed in s 27 of the Act stands in stark contrast to these provisions. He submitted that s 27 requires the existence of objective facts to be established, and not merely a belief that those facts exist.
42 Mr Gray submitted that the conditions which must be met before the respondent can exercise the power under s 27 are analogous, in certain respects, to the requirements imposed upon magistrates who issue search warrants. The conditions upon which search warrants may be issued have always been regarded as giving rise to “jurisdictional facts”, and the validity of such warrants is routinely subject to judicial review. Moreover, the conditions set out in ss 27(b)(i) and 27(b)(ii) are of a kind which courts are particularly well qualified to assess.
43 It should be noted here that Mr Hanks accepted, tacitly at least, that s 27(a) of the Act creates a “jurisdictional fact” which is amenable to judicial review. He contended, however, that notwithstanding the absence of any textual support for his submission, s 27(b) must, for various reasons, be construed differently. As I have already indicated, he relied heavily upon considerations of policy in support of his argument.
44 Returning to Mr Gray’s submissions, he contended that the language of ss 27(b)(i) and 27(b)(ii) of the Act was plainly linked to ss 13(1) and 14(1). Those sections deal with the power of a police officer to seize property upon arrest, and the power of a magistrate to issue a search warrant. He submitted that the powers conferred by those sections are plainly amenable to judicial review. He referred in that regard to a large number of reported cases involving challenges to the seizure of property under search warrants. He submitted that it was not now, and had never been the law, that whether or not property was validly seized under a search warrant would depend solely upon the state of mind of the police officer responsible for executing the warrant. He submitted that in any society which professed to be governed by the rule of law, the issue of whether property had been lawfully seized by the police was not only justiciable, but an issue which had to be resolved, in the final analysis by the courts. See generally Liversidge v Anderson [1942] AC 206 at 225ff per Lord Atkin dissenting.
45 Mr Gray relied upon a passage in the judgment of the High Court in George v Rockett (1990) 170 CLR 104 where, in a joint judgment, it was said at 110:
“A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s. 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions …”
46 Mr Gray submitted that Mr Hanks had somewhat overstated the inconvenience which was likely to flow from treating ss 27(b)(i) and 27(b)(ii) of the Act as giving rise to justiciable issues on judicial review. He submitted that it was always possible to conjure up abuses which might flow from recognition that the powers of the executive were not unlimited, and were subject to judicial scrutiny. The courts were well able to ensure that their processes were not abused.
47 Mr Gray submitted that the extent of any possible fragmentation or inconvenience would depend, in any given case, upon matters such as the quantity of the property seized, and the nature of the challenge made to the continued retention of that property. Some cases might be relatively simple to resolve. Others might be more complex. He submitted that whether the issues which might be raised in any given case were complex, or whether they were straightforward, could hardly be relevant to the proper construction of s 27.
48 Mr Gray submitted that even if Mr Hanks’ “in terrorem” argument had some superficial attraction, and even if the construction for which the applicants contended had the potential to result in “inconvenience”, it was the Court’s responsibility to give effect to the intent of the legislature, as manifested in the language of s 27(b).
THE “DOCTRINE” OF REVIEW FOR “JURISDICTIONAL FACT”
49 The standard grounds of judicial review disclaim review on the merits, or review simply for factual error. The principles which govern the correction by superior courts of errors of fact made by administrative bodies have always been contentious. All branches of government routinely go about the task of ascertaining facts. Generally speaking, judicial review is not available to correct factual error save in those rare cases where findings are made which are so irrational as to warrant the conclusion that the impugned decision-maker has misunderstood the nature of the task to be performed.
50 The so-called doctrine of “jurisdictional fact” (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. “Jurisdictional fact” enables such review whenever the Court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person’s determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist. This “doctrine” which is sometimes described as “jurisdictional fact” is regarded by some as one which ought to be kept within strict boundaries. It is thought to involve an unwarranted intrusion on the part of the judiciary into matters which are properly the province of the executive. Others, however, take the view that “jurisdictional fact” provides an important corrective, in favour of the rights of the individual, to arbitrary and capricious decision-making.
51 In Aronson & Dyer, Judicial Review of Administrative Action 2nd ed (2000) the learned authors say (at 194):
“The most overtly intense scrutiny for factual error in judicial review operates under the heading of review for jurisdictional fact.
A jurisdictional fact is said to be a fact which must “in truth” exist before the decision-maker or official can validly act. That is, its existence is to be determined finally by the superior court, which decides whether it thinks the fact existed at the relevant time. The court’s decision necessarily prevails in the event of a difference between the court’s opinion and that of the impugned decision-maker. The Federal Court in particular sometimes distinguishes between a subjective fact (being one which exists in the impugned decision-maker’s opinion) and an objective fact (being one which the superior court finds to exist). The High Court also regards it as significant if the Act talks of an administrator’s opinion, satisfaction or finding as to a certain fact, but it prefers to avoid the shorthand of objective and subjective facts. Rather, the issue is whether the administrator must be right as to the fact in question.” (footnotes omitted)
52 Professor Aronson is a critic of some aspects of the manner in which the “doctrine” has expanded in recent years: The Resurgence of Jurisdictional Facts (2001) 12 Public Law Review 17.
53 The authorities which deal with “jurisdictional fact” are not always easy to reconcile. Some of them reflect a belief that the “doctrine” is a myth, and that the issue to be determined in any case in which it is invoked is purely one of statutory interpretation. Others reflect a broader view in which “jurisdictional fact” plays an important role in adjusting the rights of the parties, whether by reason of the effects it has upon the onus of proof, or substantively.
54 In recent years, the High Court has twice considered the operation of this “doctrine”. In Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, the Court held that a decision by the Australian Heritage Commission to record a place in the Register of the National Estate was not open to judicial review for want of “jurisdictional fact”. It reversed the decision of the Full Court of this Court in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 in which the Full Court had held, by majority, that the decision in question was open to judicial review.
55 As the High Court, in effect, endorsed the reasoning of Black CJ who dissented in the Full Court, it is instructive to set out some of the passages dealing with the principles governing “jurisdictional fact” from his Honour’s judgment at 465-6:
“Subject to constitutional limitations (and none were suggested in the present case) an Act may commit to an administrative body the power to investigate and conclusively to determine the existence of certain facts upon which the exercise of the power to proceed further, such as the power to enter a place in the Register of the National Estate, may depend. In such circumstances, the capacity of a court to review a decision by an administrative body that the facts do exist will be limited, in accordance with the ordinary principles of judicial review, and there will be no question of the court making its own decision as to the true facts. On the other hand, the legislature may make the power to do such an act contingent upon the actual existence of a state of facts: see, for example, the discussion by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. Where the legislature has made the existence of power contingent upon the actual existence of a state of facts the existence or non-existence of those facts may be determined by a court having jurisdiction to review the decision. Although in some cases it may be very difficult to decide upon which side of the line a particular provision falls, the question is one of construction …
In considering the present question it is appropriate to examine first the nature of the task committed to the Commission under the Act. Reference to the definition of the national estate in s 4 of the Act reveals that the task of determining whether a place is part of the national estate may be a difficult and complicated one, involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially very wide range of matters. Questions of science, history and aesthetics may well need to be considered. Many branches of science, from biology to geology, may be involved. A wide range of historical and cultural issues might need to be considered …
In such circumstances the very nature of the task of identifying places that are part of the national estate is suggestive of an intention that the body established by the Parliament with the function of identification is to have the power to make a conclusive determination of that matter. What the respondent argues is “a jurisdictional fact”, namely the identity of a place as part of the national estate, is a conclusion of fact and one that must often rest on a range of potentially difficult and complicated facts, assessments and value judgments. If the conclusion that a place is part of the national estate were to be seen as a jurisdictional fact, one of the Commission’s most important functions, and a key function in the overall scheme of the Act, would be performed only provisionally …
The inconvenience of such a result, an inconvenience that would be of a large dimension having regard to the subject matter of the “jurisdictional fact”, is a powerful indication that it was not the intention of the Parliament that the finding should, in effect, be only provisional. Rather it suggests that it was the Parliament’s intention that the power of the Commission to enter a place in the Register of the National Estate was to be contingent upon the Commission’s own view of the matter. Inconvenience is a matter to be considered in ascertaining the intention of the Parliament in this area: Parisienne Basket Shoes Pty Ltd v Whyte at 393 per Dixon J …”
56 Black CJ went on to contrast the position in relation to the Australian Heritage Commissionwith the approach taken in other cases in which the “doctrine” of “jurisdictional fact” had been held applicable. He referred to Minister for Immigration and Ethnic Affairs v Naumovska (1989) 88 ALR 589 where Lockhart J had held (at 601-602) that it was for the courts, and not the executive, to determine whether it had been established as an objective fact that a passenger card produced to an immigration officer had contained false or misleading information. Lockhart J observed that there were strong policy considerations in favour of that conclusion, based upon the importance of ensuring that fair and humane treatment was accorded to those who sought entry into this country. These policy considerations added weight to a construction which his Honour was in any event disposed to accept.
57 Black CJ commented in relation to Naumovska at 467:
“An inquiry as to the truth of a fact stated on a passenger card is of quite a different character and arises in quite a different context from the inquiry that would often need to precede a decision about whether a place is part of the national estate.”
58 In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 the High Court took what might be thought to be a significantly broader view of the scope of the doctrine of “jurisdictional fact” than it had in Australian Heritage Commission. The issue was whether a certain land use permit process was triggered by a “jurisdictional fact”, namely whether what was proposed was a “non-complying” development. At stake was whether the local council could veto a waste dump. This in turn depended upon whether what was proposed would fit within a statutory definition of “special industry”. It was held that this question raised an issue of “jurisdictional fact”, and was not for the Development Assessment Commission (“DAC”) itself to finally determine.
59 Gleeson CJ, Gummow, Kirby and Hayne JJ, in a joint judgment explained why, as a matter of construction, the doctrine of “jurisdictional fact” was applicable to the legislation there under consideration. They held that the criterion of “special industry” was a matter of fact which did not depend upon the satisfaction or opinion of the DAC. They observed that if there was any doubt about a particular factual matter it would have been open to the court to resolve that matter by giving weight to the views of the DAC in relation to it but, in the final analysis, the question whether the fact existed was for the court to determine. Their Honours referred, in this context, to the doctrine of “judicial deference” as that doctrine had developed in the United States. They distinguished the position in this country, noting that where the question is whether the tribunal acted within jurisdiction, it must be for the court to determine independently for itself whether that is the case.
60 Gaudron J, in a helpful passage, said at 158:
“Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of "judicial deference" with respect to findings by an administrative body of jurisdictional facts. Of course, other considerations apply with respect to non-jurisdictional facts for there is no legal error involved if an administrative body simply makes a wrong finding of fact. And, again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision-maker to form the opinion in question.
Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility…” (footnotes omitted)
61 The New South Wales Court of Appeal has recently considered the principles relating to “jurisdictional fact” in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. The issue in that case was whether a particular decision (as to whether a species impact statement was required in accordance with Div 2 Pt 6 of the Threatened Species Conservation Act 1995 (NSW) pursuant to s 77(3)(d1) of the Environmental Planning and Assessment Act 1979 (NSW)) was to be construed as a “jurisdictional fact” which the Land and Environment Court must determine for itself, in circumstances where the validity of a development application was challenged for the lack of such a statement.
62 Spigelman CJ, with whom Mason P and Meagher JA agreed, concluded that a species impact statement, when required, played a critical role in the quality of the decision-making process. That made it likely that the legislature intended that the circumstances leading to the requirement to prepare such a statement were to be objectively ascertained. Importantly, his Honour observed that a “jurisdictional fact” may involve the exercise of judgment, in the determination of whether a development “is likely to significantly affect” a species.
63 Spigelman CJ said (at 64):
“Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue of whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes “jurisdictional fact” as some kind of “doctrine” is, in my opinion, misconceived. The appellation “jurisdictional fact” is a convenient way of expressing a conclusion – the result of a process of statutory construction.
Where the process of statutory construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law require a court with a juridical review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power – it is not necessary to determine which, for present purposes – a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.
Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker – “opinion”, “belief”, “satisfaction” – the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact … Where such words do not appear, the construction is more difficult.”
64 Not all commentators would accept as correct the approach taken in Timbarra to the issue of “jurisdictional fact”. Some would regard the “doctrine” as little more than an insidious intrusion into effective decision-making.
65 Aronson and Dyer, in Judicial Review of Administrative Action (supra), note that a distinction appears to be drawn in the cases between “procedural questions” (which they say do not usually reflect “transcendent” values, and are usually treated as non-jurisdictional) and facts whose presence is constitutionally required before power can be exercised. Constitutional facts are said to be “special”, and are generally characterised as “jurisdictional facts”. Outside the ambit of constitutional facts the position is less clear. The learned authors say (at 199):
“The government’s powers to detain, exclude and deport migrants, and some associated powers, have also been said on occasions to be conditioned on the existence of jurisdictional facts. Whether, for example, a migrant was indeed an illegal entrant, or had indeed lied, entered a sham marriage, or otherwise engaged in deception or made misleading statements when gaining entry or a permit, used to be treated as a question involving jurisdictional facts, until the [Migration] Act was amended. This was said to be consistent with the principle of maximising judicial control over executive interference with personal liberty. It has been said that at least in cases involving personal liberty one of the consequences of deploying the jurisdictional fact doctrine is to place the legal burden of proof upon the government, whereas the normal rule is that that person challenging the validity of executive action bears the legal burden on all issues.” (footnotes omitted)
66 It is fair to say that there are some cases in which the “jurisdictional fact” principle appears to have been invoked in unexpected ways. These cases cannot be said to involve “transcendent” values, but do raise issues which are important, affecting as they do the rights of individuals. Aronson & Dyer draw attention to Buck v Comcare (1996) 137 ALR 335 where the issue was whether a worker had refused to submit to a government medical examination “without reasonable cause”. If she had, the relevant legislation automatically required her workers’ compensation payments to be suspended. This led Finn J to conclude that whether or not “reasonable cause” existed was a “jurisdictional fact”. His Honour observed that although workers’ compensation was a statutory entitlement, and not a fundamental common law right, it was an entitlement which was sufficiently important to warrant the extra protection to the individual which would flow from characterising “the reasonable cause issue” as jurisdictional. Finn J also observed that the courts were particularly well suited to determine issues of that type.
67 There are, on the other hand, several recent cases in this Court where judges at first instance have declined to interpret particular statutory requirements as creating “jurisdictional facts”. In Karalis v Australian Community Pharmacy Authority (1998) 90 FCR 473 Goldberg J concluded that a decision made by the Australian Community Pharmacy Authority to approve particular premises as a pharmacy was not contingent on the objective fact of the distance between two premises. Rather it was contingent on the Australian Community Pharmacy Authority having formed the opinion that the relevant distance specified in the legislation had not been exceeded.
68 In arriving at this conclusion Goldberg J expressly followed the reasoning of Black CJ in Australian Heritage Commission v Mount Isa Mines Limited (supra). His Honour referred also to Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462 where Branson J noted that the provisions there under consideration drew a distinction between matters of fact, and matters in respect of which the Authority had to be “satisfied”. Her Honour said (at 476):
“In my view, this distinction does not reflect an intention that the Authority’s power is contingent upon the actual existence of those matters of fact. Rather, the distinction between matters of fact and matters in respect of which the Authority is required to be satisfied reflects a distinction between matters capable of objective determination and those which involve an exercise of judgment …”
69 Goldberg J considered in Karalis that the appropriate course for him to take was to follow the decision of Branson J unless he thought that decision was clearly wrong. His Honour said that he was not of that opinion. He declined therefore to hold that the doctrine of “jurisdictional fact” was applicable in the particular circumstances of the case before him.
70 It may fairly be said that the authorities which deal with “jurisdictional facts” are difficult to reconcile, and that some reflect a broader and more generous view of that “doctrine” than others. Professor Aronson perceives a “resurgence” in the “doctrine” and expresses reservations about the trend of recent authority. The decisions of the High Court in Corporation of the City of Enfield and of the New South Wales Court of Appeal in Timbarra certainly qualify as manifesting that resurgence, albeit under the ambit of ordinary principles of statutory construction.
CONCLUSION
71 The issues raised for determination by the preliminary questions are not easy to resolve.
72 I consider that I am bound to follow the approach taken by the High Court in Corporation of the City of Enfield (supra) to the “doctrine” of “jurisdictional fact”. That approach seems to me to be somewhat broader than that which has found favour in earlier decisions, including Australian Heritage Commission (supra). I also consider that there is nothing special about the task of statutory construction with regard to the determination of whether a factual reference in a statutory formulation is a “jurisdictional fact” and that all the normal rules of statutory construction apply: Timbarra (supra).
73 The starting point must be the language in which the statutory formulation is expressed. It is obviously significant that the factual references which appear in ss 27(b)(i) and 27(b)(ii) of the Act do not contain words involving the mental state of the primary decision-maker – “opinion”, “belief”, or “satisfaction”. Those words, or words like them, are present in ss 16 and 22 of the Act. That makes their omission from s 27 a matter of particular significance, and I accept the applicants’ submissions in that regard.
74 At the same time I recognise that the language in which the relevant provision is expressed is not necessarily determinative of whether “jurisdictional facts” are stipulated. Among the matters which are relevant to that issue are:
· the nature of the task committed to the respondent under the Act and, in particular, whether that task involves the assessment of complex facts and the formation of opinions on a potentially wide range of matters. Were that to be the case it would be suggestive of an intention that the respondent have the power to make a conclusive determination of the matter.
· the inconvenience which would arise if the facts to be determined were regarded as “jurisdictional facts” rather than simply facts to be found by the decision-maker.
· whether “transcendent” or “important” values are at stake.
75 Having taken all of these matters into account I have concluded that ss 27(b)(i) and 27(b)(ii) of the Act contain statutory requirements which should be regarded as “jurisdictional facts”. I have arrived at that conclusion principally because of the structure of the Act taken as a whole, and the text of the relevant provisions. I have also had regard to the importance of the interests which are protected at common law and which are affected by the operation of those provisions.
76 The language of s 27 suggests that the statutory requirements set out therein are to be construed as “jurisdictional facts” rather than facts which are to be found, finally and definitively, by the respondent. If s 27(a) creates a “jurisdictional fact”, as it seems to do, it is difficult to see why ss 27(b)(i) and 27(b)(ii) should be construed differently. If the applicants are able to prove, as they claim they can, that some of the jewellery seized from them pursuant to s 14 of the Act was, in fact, acquired before 1993, that is before any of the offences for which Mr Cabal’s extradition is sought had been committed, it is difficult to see how that jewellery could possibly be material as evidence in proving any of those offences. Self-evidently, the jewellery could not have been acquired “as a result of” those offences. The same is true of any items of jewellery for which a wholly legitimate provenance can be established.
77 In my opinion, the applicants ought to be permitted to adduce before this Court such evidence as they can to prove that there is no basis in law for the continued retention of these items of jewellery. I note that there is nothing in the material before me at this stage to suggest that the respondent is not genuinely satisfied that the conditions set out in ss 27(b)(i) and 27(b)(ii) have been, or will be, met. Nor is there anything in that material to suggest that the respondent has acted improperly, or unreasonably, in arriving at that conclusion. That is not, however, the end of the matter. The fact that the respondent holds a particular belief about the existence of certain facts does not mean that those facts exist. It is open to the applicants, if they are able to do so, to demonstrate to the Court that the respondent's beliefs are mistaken, and that the continued retention of their property is no longer justified.
78 The construction of ss 27(b)(i) and 27(b)(ii) which I consider to be correct may, of course, give rise to consequences which might be viewed as inconvenient. That is because an avenue of review not hitherto available, based on factual error, may now be invoked. It is always possible, in any given case, that that avenue of review may give rise to fragmentation and delay.
79 However, when “inconvenience” is balanced against the importance of the values which the law has long recognised and protected, it seems to me that those values must ordinarily prevail: George v Rockett (supra). Unless the legislature clearly and unambiguously provides to the contrary, a person whose home is entered, and whose property is seized, ought to have available avenues of legal redress. These may include judicial review of the decision to issue the warrant, and of the decision by the police to seize particular property under that warrant. They ought also to include avenues of challenge to the continued retention of the goods.
80 In Coco v The Queen (1994) 179 CLR 427 Mason CJ, Brennan, Gaudron and McHugh JJ said at 435-6:
“Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law. Statutory authority to engage in what would otherwise be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorise what would otherwise have been tortious conduct. But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon (1991)171 CLR at 654:
“[I]nconvenience in carrying out an object authorised by legislation is not a ground for eroding fundamental common law rights.”” (emphasis added)
81 There is no doubt that Parliament is capable of excluding the application of traditional principles of judicial review when it determines, unambiguously, that it should do so. Part 8 of the Migration Act 1958 (Cth) provides a perfect example of such legislation. By contrast, extradition proceedings are not subject to any significant restrictions upon judicial review, although review of certain decisions under the Act takes place by way of “rehearing”, on the papers. There is nothing in s 27 to suggest that it was the intention of Parliament to confer upon the respondent a discretion to deliver property seized under a warrant to an overseas country, against the wishes of the true owner of that property, which discretion is, for practical purposes, unreviewable.
82 It must be remembered that the applicants in this proceeding do not include Mr Cabal, whose extradition is sought. They have rights in relation to the property seized which they are entitled to seek to vindicate. Those rights cannot be ignored merely because it is said that it may be inconvenient, in various ways, if they are agitated while Mr Cabal’s extradition proceedings are on foot.
83 It is possible that during the future conduct of this proceeding it will become apparent that the applicants’ case raises in an impermissible way questions relating to the guilt or innocence of Mr Cabal. The Court will not permit that to occur. It has available to it a range of powers, including the power to stay proceedings, and the discretion to refuse relief, in order to avoid the risks of fragmentation of the extradition process, or other similar abuses.
84 In Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 a Full Court of this Court gave careful consideration to the circumstances in which the Court should decline to entertain an application under s 39B of the Judiciary Act for review of various decisions relating to the issue of warrants under the Telecommunications (Interception) Act 1979 (Cth). The Full Court considered in particular the general principle against “fragmentation” of criminal proceedings. In the joint judgment of Beaumont, Ryan and Lindgren JJ it was said (at 188), that there was much to be said in favour of the courts, in the exercise of their discretion, hearing and determining claims for relief involving pure questions of law, emerging from a context of undisputed facts. However, the courts were cautioned against entertaining claims based substantially on contentious matters of fact, including questions of mixed fact and law.
85 There is a difficulty associated with the manner in which several of the preliminary questions formulated for the determination of this Court are drafted. That difficulty was raised with counsel during the course of the hearing. In answering these questions, it is my intent to state as unambiguously as I can that I regard the applicants’ claims in this proceeding as being justiciable. I consider that ss 27(b)(i) and 27(b)(ii) of the Act create “jurisdictional facts” which may be challenged on review. Where such a challenge is made, it is not sufficient for the purposes of these provisions that the respondent, acting in good faith and otherwise according to law, concludes that the relevant property or thing meets the requirements set out in them. If the facts upon which the power under consideration is conditioned can be proved not to exist, there is no basis in law for the property to be retained.
86 Although it was agreed by both sides during the course of argument that it was not necessary for the Court to answer questions (a) and (e), I have come to the view that, imperfectly drafted though they are, they should be answered. Question (d) is expressed in a manner which is far from clear, but is designed to elicit the Court’s view of whether Art 23 of the Treaty limits or qualifies the power of the Attorney-General pursuant to s 27(b)(ii) of the Act such that the power under that section only arises where a Court determines that a third party does not have rights over the relevant property. I do not propose to answer that question because it seems to me to lack precision and to be incapable of a simple “Yes” or “No” answer. I should say, however, that in my view Art 23 does, in certain respects, limit or qualify the power of the Attorney-General pursuant to s 27 of the Act. I am not persuaded however that the “third party” component of Art 23 should be construed as creating any additional “jurisdictional fact”.
87 I therefore answer the preliminary questions asked as set out in the orders of the Court.
88 As regards the question of costs, the respondent brought this challenge to the jurisdiction of the Court by formulating the preliminary questions, and inviting the Court to answer them in the manner for which Mr Hanks contended. The respondent has been unsuccessful in that challenge. In my opinion the applicants are entitled to receive their costs in relation to the proceedings leading to the determination of the preliminary questions.
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I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. |
Associate:
Dated: 21 May 2001
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Counsel for the Applicants: |
Mr PRD Gray |
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Solicitor for the Applicants: |
Clive Scott |
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Counsel for the Respondent: |
Mr PJ Hanks QC |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
27 October 2000 |
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Date of Judgment: |
21 May 2001 |
