FEDERAL COURT OF AUSTRALIA

McCrea v Minister for Customs & Justice

[2004] FCA 1273

EXTRADITION — whether Minister had power to surrender applicant to Singapore — undertaking as to death penalty — whether undertaking satisfies s 22(3)(c)(iii) Extradition Act 1988 (Cth) — whether s 22(3) requires an undertaking valid and effective to prevent execution — purposes of extradition law — functions of executive and judiciary in extradition — principle of non-adjudication — role of comity and expediency and nature of judicial process — protection of rights of accused — comparison between 22(3)(c) and s 22(3)(d) — “by virtue of which” — “undertaking” — “assurance” — comparative jurisprudence on the death penalty — fundamental human rights.

Acts Interpretation Act 1901(Cth)

Extradition Act 1988 (Cth) s 22(3), Part II

Judiciary Act 1903 (Cth)

Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) (1988) 165 CLR 30 applied

Aylor (1993) 100 ILR 665 cited

Banco Nacional de Cuba v Sabbatino (1964) 376 US 398 applied

Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 applied

Coco v The Queen (1994) 179 CLR 427 at 437 cited

Fidan (1987) 100 ILR 662 cited

Foster v Minister for Customs and Justice (1999) 164 ALR 357 applied

Hellenic Republic v Tzatzimakis [2003] FCAFC 4 cited

Minister of Justice v Burns and Rafay [2001] 1 SCR 283 discussed

Mohamed v President of Republic of South Africa 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC) cited

R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556 followed

R v Governor of Pentonville Prison [1993] 1 WLR 1294; [1993] 3 All ER 504 followed

R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42 cited

R v Secretary of State for the Home Department; Ex Parte Johnson [1999] QB 1174 applied

Re Bolton; Ex parte Beane (1987) 162 CLR 514 cited

Republic of Argentina v Mellino [1987] 1 SCR 536 applied

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

S v Makwanyane 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) cited

Soering v United Kingdom 161 Eur Ct HR (ser A) (1989); (1989) 11 EHRR 439; 28 ILM 1063 (1989) discussed

Sun Lau v State of Australia [1999] BCJ No 2971 applied

Timar v Republic of Hungary [1999] FCA 1518 cited

Venezia v Ministero di Grazia e Giustizia 79 Rivista di Diritto Internazionale 815 (1996), (1997) 91 American Journal of International Law 727 cited

Wiest v DPP (1988) 23 FCR 472 applied

Zachariassen v Commonwealth (1917) 24 CLR 166 applied

MICHAEL McCREA v MINISTER FOR CUSTOMS & JUSTICE

V851 of 2003

NORTH J

6 OCTOBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1 The application is dismissed.

2. The question of costs is reserved.

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

REASONS FOR JUDGMENT

1                     The question before the Court is whether the Minister for Customs and Justice (the Minister), the respondent, had the power to decide to surrender Michael McCrea, the applicant, to the Republic of Singapore (‘Singapore’) on two counts of murder and one count of criminal intimidation.

The Facts

2                     Singapore alleges that the applicant murdered his driver and his driver’s girlfriend on or about 2 January 2002 in Singapore, and later threatened to kill a third person if she revealed his crimes. After the alleged murders and the alleged criminal intimidation, the applicant left Singapore and travelled to Australia.

3                     On 31 May 2002, the Attorney-General’s Chambers of Singapore made a request to the Attorney-General’s Department of Australia for the provisional arrest of the applicant pending a formal request for his extradition to Singapore on two counts of murder and one count of criminal intimidation.

4                     Under s 302 of the Penal Code (Singapore), a conviction for murder carries a mandatory sentence of death. However, under Article 22P of the Constitution of Singapore, condemned prisoners may petition the President of Singapore to exercise the prerogative of mercy, and the President must act on such petitions on the advice of Cabinet. Consequently, the Attorney-General’s Department of Australia brought to the attention of the Attorney-General’s Chambers of Singapore the requirements of s 22(3)(c)(iii) of the Extradition Act 1988 (Cth) (the Act), which relevantly provides:

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

…

(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:

…

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

5                     On 11 June 2002, the Ministry of Foreign Affairs of Singapore, with the approval of Cabinet, sought to fulfil the requirements of s 22(3)(c)(iii) by providing a diplomatic note stating that, in the event that the applicant was sentenced to death and petitioned for mercy, the Ministry ‘assures the High Commission the President will be advised to accede to the petition.’ However, this form of assurance was not acceptable to the Attorney-General’s Department, which proposed forms of assurance that, in the Department’s opinion, would satisfy the statutory requirement.

6                     In response, on 12 June 2002, the Singapore Cabinet sent another diplomatic note, the terms of which were drawn from the forms of assurance sent by the Attorney-General’s Department. This note relevantly stated:

‘The Ministry wishes to inform the High Commission that the Government of Singapore assures the Government of Australia that if the death penalty is imposed on Michael McCrea upon conviction of the offence(s) on which his extradition is sought, the death penalty will not be carried out.’

7                     On 13 June 2002, the applicant was taken into custody following the issue of the requisite warrant by a Victorian magistrate. On 12 July 2002, Singapore submitted its formal request for the extradition of the applicant.

8                     On 15 November 2002, a Victorian magistrate determined that the applicant was eligible for surrender under s 19 of the Act. Then, on 8 September 2003, the respondent, acting as the delegate of the Attorney-General, determined that the applicant was to be surrendered to Singapore pursuant to s 22(2) of the Act. As a result of his determination to surrender, the respondent executed a surrender warrant pursuant to s 23, which 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.’

The Application

9                     On 8 September 2003, the applicant filed the present application and obtained interlocutory orders restraining the respondent, until the determination of the proceedings or further order, from implementing the decision, executing the warrant, or taking action to remove the applicant from Australia.

10                  The application was brought under s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). The applicant seeks declarations that the determination by the Minister that the applicant be surrendered to Singapore, and the consequent warrant issued by the Minister, are null and void and of no effect. He also seeks writs of prohibition, or alternatively injunctions, prohibiting the Minister, his officers, servants and agents from taking, or causing to be taken, any action to implement the determination or to execute the warrant. Finally, he seeks writs of certiorari quashing the determination and the warrant or, alternatively, orders setting aside the determination and the warrant.

11                  The grounds of the application are stated as follows:

‘1. The determination was beyond jurisdiction in that by reason of the terms of section 22(3)(c) of the Act the Minister’s power to determine that the applicant be surrendered to the Republic of Singapore is conditional upon the existence of a valid and enforceable undertaking given by the Republic of Singapore by virtue of which it is objectively established that, if the death penalty is imposed on the applicant, it will not be carried out.

2. No such undertaking has been given by the Republic of Singapore and no such undertaking can be given by the Republic of Singapore.

3. Consequently the determination is beyond power and of no effect.

4. The validity of the warrant is dependent upon the validity of the determination and the warrant is consequently a nullity.’

12                  The application therefore fundamentally raises two questions:

1.      Does the Act, specifically s 22(3)(c)(iii), require that, as an objective fact, the death penalty will not be carried out, or only that an undertaking be given in the required terms?

2.      If the Act does require that, as an objective fact, the death penalty will not be carried out, does the undertaking in this case satisfy that requirement?

In light of the view that I have taken, it is not necessary to consider the second of these questions and the submissions made with respect to it.

Competing Interpretations of s 22(3)

13                  The central controversy raised by this application concerns the meaning of s 22(3)(c)(iii) of the Act. It is useful to set out the whole of s 22(3) as follows:

‘(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.’

(emphasis added)

14                  The applicant argues that it is not sufficient for a requesting country simply to provide a document containing a form of words corresponding with the statutory verbiage. Rather, the Act requires that, as an objective fact, the death penalty will not be carried out. The applicant, in essence, contends that the undertaking must be effective to prevent the execution of the applicant if he is sentenced to death, that is to say, by virtue of the undertaking, the requesting State must be rendered incapable of carrying out the death penalty.

15                  It is said by the applicant that the undertaking given by Singapore is not effective and cannot be effective because, under Article 22P of the Constitution of Singapore, the President may not act to prevent the death penalty being carried out prior to conviction and also may not act unless certain preconditions have been met. Further, it is argued that the giving of the undertaking is an unlawful attempt to fetter future executive action, involves an improper interference with the judicial process, and unlawfully attempts to exempt the applicant from the ordinary operation of the law. Consequently, the applicant contends, the undertaking was constitutionally invalid and was unenforceable under either domestic or international law, and was therefore incapable of satisfying the requisite objective fact that “by virtue of the undertaking … the death penalty will not be carried out”.

16                  The respondent, on the other hand, contends that the sole fact which may attract the Court’s jurisdiction under s 22(3)(c)(iii) is whether an undertaking containing the necessary statutory statement has been given. This is a matter of fact upon which the Court can readily adjudicate. The respondent argues that the Court need not look beyond the words of the undertaking and need not determine whether the undertaking is valid according to the law of the requesting country, or whether it is enforceable under that law, or under international law. These latter are matters which the Minister may consider in the exercise of the discretion to surrender under s 22(3)(f).

consideration

17                  For the reasons given below, s 22(3)(c) only requires the requesting state to provide an undertaking in terms set out in the section. There is no additional requirement that the undertaking be effective to prevent the execution of the fugitive offender. Consequently, the question which may arise before the Court is whether the undertaking conforms with the section. The Court cannot investigate whether the undertaking is effective to prevent the execution of the fugitive offender.

18                  This construction derives principally from a reading of the section in the context of the Act as a whole and, in particular, in the context of Part II of the Act. This interpretation also takes account of two related contextual factors. The first is that extradition involves international relations because it requires cooperation between sovereign states for the purpose of arranging for the return of fugitive offenders to face justice. The second is that the conduct of international relations in Australia is a function undertaken by the executive arm of government. The constitutional separation of powers means that the judiciary has no direct function in the conduct of international relations. It is therefore to be expected that Parliament would commit questions of policy or political judgment relating to the surrender of fugitive offenders to the executive. This expectation also informs the approach to the construction of s 22(3)(c).

Part II

19                  In Part II of the Act the executive is given authority at each stage of the extradition process to determine whether the process should proceed or not. In contrast, the courts are given limited and specific functions at various points during the process. Thus, a magistrate is given power to issue a provisional arrest warrant, but must report the fact to the Attorney-General. If the Attorney-General considers for any reason that the warrant should be cancelled, the Attorney-General may direct the magistrate to cancel the warrant (s 12). Then, a person arrested under a provisional arrest warrant is remanded by a magistrate so that further proceedings can be conducted to determine the person’s eligibility for surrender (s 15). But the Attorney-General may determine that the remand should cease, and direct a magistrate to order the release of the person (s 17). The next step is for the magistrate to conduct proceedings to determine whether the person is eligible for surrender (s 19). The function of the Court is strictly defined. It is required to determine, for instance, whether certain documents listed in the section have been produced in support of the application (s 19(2)). The final stage of the process requires the Attorney-General to determine whether an eligible person should be surrendered (s 22(2)). A review of Part II of the Act therefore highlights the extent to which reliance is placed on the judgment of the Attorney-General.

Section 22(3)

20                  More specifically, section 22(3) (which is within Part II) also places reliance on the judgment of the Attorney-General. Section 22(3) sets out certain circumstances which must exist before the Attorney-General may determine that a person is to be surrendered.

21                  Section 22(3)(a), (b) and (c) are each expressed to depend on the Attorney-General’s satisfaction. Section 22(3)(c) and (d) both relate to the giving of an undertaking by the requesting State. There is no reference to the Attorney-General’s satisfaction on that issue. The contrast with s 22(3)(a), (b) and (c) is clear. The change in expression indicates that s 22(3)(c) and (d) require the fact of the undertaking to be established. No question of judgment or opinion is contemplated.

22                  Then, in s 22(3)(f) the Attorney-General is given an overriding discretion to surrender a fugitive offender. This discretion is conferred in very wide terms. Therefore, in the context of s 22(3) as a whole, the requirements of s 22(3)(c) and (d) should be narrowly construed. As a consequence, the fact of an undertaking needs to be established to satisfy s 22(3)(c), but the efficacy of that undertaking is a matter which the Attorney-General may consider in the exercise of the overriding discretion contained in s 22(3)(f). Such a reading gives a wider discretionary power to the Attorney-General, and that accords both with the structure of the extradition provisions generally, and with the discretion contemplated in s 22(3)(f) specifically.

The respective roles of the executive and the judiciary

23                  A similar view of the balance between the functions of the courts and the executive was taken in R v Governor of Pentonville Prison [1993] 1 WLR 1294; [1993] 3 All ER 504. The applicant in that case argued that a speciality assurance given by Hong Kong might not bind China after the handover and the applicant might then be in jeopardy of execution. The Divisional Court (Watkins LJ and Ognall J) held that, on a proper interpretation of the statutory provisions, the requirement for a speciality assurance (which was in similar terms to s 22(3)(d)) need only be satisfied at the time of the request for extradition. The Court accepted (at 511) that “all such arrangements are written in sand” and that speciality protection must be seen in the light of the possibility of change in the complexion of the requesting sovereign power, whether democratic or otherwise. The Court said, also at 511:

‘It should be remembered that the magistrate commits the applicant to await the decision of the Secretary of State. It may very well be that the “China point” has a political dimension to it which deserves the attention of the Secretary of State. But the magistrate was correct to treat it as irrelevant to his decision.’

24                  The House of Lords also took this approach to relevantly similar UK legislation in Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 where Lord Morris of Borth-y-Gest said at 281:

‘We are here concerned with a statutory code which becomes operative consequent upon the making of reciprocal arrangements between friendly states. The statutory provisions point with some precision to the functions of the courts and show that those functions are limited. It is for the courts to say whether the statutory conditions have been complied with to the extent that a fugitive criminal could be surrendered: it is for the Secretary of State to decide whether, having regard to all the circumstances, he should be surrendered.’

25                  Then, in R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556, the House of Lords took into account the similar role of the executive under United Kingdom extradition law in construing the terms of the United Kingdom’s extradition treaty with the United States. The question of construction was whether the jurisdiction referred to embraced extraterritorial jurisdiction or was limited to the territorial jurisdiction of the requesting State. The House of Lords adopted the former construction. Against the suggestion that this construction would allow extradition in cases of extravagant jurisdictional claims, Lord Rodger of Earlsferry said, at 608:

‘Ultimately, issues as to the propriety of the jurisdiction claimed by a foreign state depend on judgments as to comity among states in international law. By their nature such judgments involve factors which must primarily be for the consideration of the executive who have responsibility for our relations with foreign states. Provided that the executive exercise their various powers appropriately, I see no reason to fear that persons will in fact be surrendered to states asserting an exorbitant jurisdiction, if the term “jurisdiction” in paragraph 20 has to be interpreted broadly.’

26                  The same approach applies to s 22(3)(c). The only question which may therefore arise for adjudication under the section is the purely factual issue, namely, whether the undertaking has been given in the terms of the section.

The principle of non-adjudication

27                  If the construction of the section raised the possibility that the courts would have to determine whether the undertaking was effective to prevent the execution of the fugitive offender, the courts would be asked to rule upon the validity of the act of a sovereign state. Such a result would be inconsistent with the principle that, in general, courts will not adjudicate upon the validity of acts and transactions of a sovereign state within that sovereign’s own territory. In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) (1988) 165 CLR 30, the High Court stated at 40-41:

‘The statement of Fuller C.J. in Underhill v. Hernandez that “the courts of one country will not sit in judgment on the acts of the government of another done within its own territory” has been repeated with approval in the House of Lords (Buttes Gas v. Hammer) and the Supreme Court of the United States: Banco Nacional de Cuba v. Sabbatino. The principle rests partly on international comity and expediency. So, in Oetjen v. Central Leather Co. the Supreme Court said:

“To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations’.”

As Lord Wilberforce observed in Buttes Gas v. Hammer, in the context of considering the United States decisions, the principle is one of “judicial restraint or abstention” and is “inherent in the very nature of the judicial process”.’ (citations omitted)

28                  The High Court identified three bases for the principle — comity, expediency, and the nature of the judicial process. Comity refers to the respect or courtesy accorded by a country to the laws and institutions of another. It derives from a mutual recognition of the sovereign status of nations. Expediency refers to the practical needs of a particular situation.

29                  In Banco Nacional de Cuba v Sabbatino (1964) 376 US 398, the notion of expediency was illustrated thus at 431-432:

‘[Such judicial determinations] would, if the acts involved were declared invalid, often be likely to give offense to the expropriating country; since the concept of territorial sovereignty is so deep seated, any state may resent the refusal of the courts of another sovereign to accord validity to acts within its territorial borders. Piecemeal dispositions of this sort involving the probability of affront to another state could seriously interfere with negotiations being carried on by the Executive Branch and might prevent or render less favorable the terms of an agreement that could otherwise be reached. Relations with third countries which have engaged in similar expropriations would not be immune from effect.’

30                  And, finally, the restraint imposed by the nature of the legal process was explained by Lord Wilberforce in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 (Buttes), at 938:

‘Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are — to follow the Fifth Circuit Court of Appeals — no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were “unlawful” under international law.’

31                  It is not suggested that all three bases must be present in order for the principle of non-adjudication to apply. Nonetheless, each of the bases exists in the present case in relation to Singapore’s undertaking not to execute the applicant. The first two are self-evident. However, the third basis, relating to the nature of judicial process, needs some further explanation. Insofar as the applicant argued that the undertaking is invalid under Singapore law it might be said that there are manageable standards which the Court could apply to determine the question. Nonetheless, the principle of non-adjudication prevents this Court from inquiring into the validity of acts of a sovereign nation, including into the legal validity of Singapore’s undertaking. But in this case the applicant goes further and argues that the undertaking must be effective to prevent the execution of the applicant.

32                  Consideration of this wider question may present the problems referred to by Lord Wilberforce in Buttes. For instance, although an undertaking may be legally enforceable when it is given, the applicant may claim that there is an imminent change of government and the new government intends, and has the ability, to change the domestic law in order to ensure that returned fugitive offenders do not escape the death penalty. In other words, the applicant may challenge the effectiveness of the undertaking by reference to the political situation in the requesting country. The fact that such considerations may be determinative of the question of whether the undertaking is effective indicates that the question may not be suitable for judicial determination.

33                  The principle of non-adjudication has been applied in the context of extradition law. For instance, in R v Secretary of State for the Home Department; Ex Parte Johnson [1999] QB 1174, the fugitive sought to challenge the consent given by Austria required by Article 15 of the European Convention on Extradition, which is of similar effect to the speciality requirement in s 22(3)(d). Bell J said at 1186 that:

‘the court cannot, in my view, inquire into the quality of that consent without transgressing the principle which prevents assessment of the validity of the act of a sovereign state done abroad by sovereign authority.’

34                  In extradition law, the notion of comity has been utilized in another way. It has been an important consideration in cases even where issues other than the act of a sovereign power have been in question. This follows from the foundation of extradition law, namely the need for cooperation between nations to ensure the return of fugitive offenders to justice. For that purpose each nation must be prepared to accept the internal arrangements of the other as the proper means of dealing with the fugitive offender on return. In this aspect, comity refers to the recognition of the legal system of the requesting country as an acceptable method for bringing the fugitive offender to justice. Thus, in Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 the House of Lords accepted that the applicant was convicted in Greece for the purpose of United Kingdom extradition legislation, even though the conviction was obtained in breach of the requirements of natural justice and would have been a nullity under United Kingdom law. Lord Morris of Borth-y-Gest said at 280:

‘Once it was proved that there was a conviction in Greece I cannot think that it was open to a magistrate or to the court in habeas corpus proceedings to go behind the conviction and to treat it as no conviction for any such reason as that the law and practice in Greece is not the same as the law and practice elsewhere.’

35                  The same approach was taken in the Supreme Court of Canada in Republic of Argentina v Mellino [1987] 1 SCR 536, where La Forest J said at 554:

‘[I]t is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing. This would seem to me to be in breach of the most elementary dictates of comity between sovereign states. A foreign state obviously has jurisdiction over the actions of its officials, although, no doubt, the executive of this country must, on occasion, consider such matters in exercising its discretion to surrender a fugitive.’

36                  In Sun Lau v State of Australia [1999] BCJ No 2971, La Forest J said at [75]:

‘The approach the courts have taken is to assume that the signing of an Extradition Treaty signals that the executive feels that the justice system in the foreign country sufficiently corresponds to our own. The courts are to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. The effectiveness of the international system is key.’

37                  It is now necessary to return to the construction of s 22(3)(c) in light of the discussion of the principle of non-adjudication, and the wider application of the concept of comity. Both approaches support the preferred construction. However, it should be noted that the concept of comity in extradition law does not prevent a state imposing limitations on the circumstances in which extradition will be permitted. Indeed, the requirement for the death penalty undertaking is such a limitation. But there is a role for the concept of comity in applying such a limitation, and the section should be read so far as possible as not to conflict with that concept: Zachariassen v Commonwealth (1917) 24 CLR 166 at 181. This approach has been applied to extradition legislation in Australia: Wiest v DPP (1988) 23 FCR 472 at 524; Hellenic Republic v Tzatzimakis [2003] FCAFC 4 at [49], although this approach was not determinative in those cases.

38                  Further, there is authority in Australia which supports the preferred construction. In Foster v Minister for Customs and Justice (1999) 164 ALR 357 (Foster), Drummond J considered whether s 22(3)(d) contemplated that the Court could investigate whether a requesting state would honour a speciality assurance given under the section. His Honour held that the question for the Court was the limited factual question, namely, whether an assurance in conformity with the section had been given. The Court was not authorised to examine whether the requesting state would honour the undertaking, that is to say, whether the undertaking was effective. In answer to the Minister’s contention that the whole issue relating to the assurance was not justiciable, his Honour went on to explain the scope of the Court’s function, and, further, how this limited function related to the demands of comity between nations.

39                  In a passage with which I agree, his Honour said at 368:

‘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. 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 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).’ (citation omitted)

40                  There has been no suggestion that, in the exercise of his discretion under s 22(3)(f), the Minister failed to take into account evidence of the alleged ineffectiveness of the undertaking. It follows from the foregoing discussion that, for the reasons outlined, the applicant’s construction of s 22(3)(c) is not accepted. It remains necessary to address several arguments raised by the applicant which have not been dealt with in the course of the earlier discussion.

consideration of the applicant’s REMAINING ARGUMENTS

Language of the Act

41                  The language of the Act is said to support the applicant’s construction of s 22(3)(c)(iii) for two reasons. First, s 22(3)(c), like s 22(3)(d), does not merely require that the Minister be satisfied that an undertaking was given. This is by way of contrast to subsections (a), (b) and (e). In Foster, Drummond J observed at 367, by way of obiter, that the section thus “draws a precise distinction between matters upon which the minister must be satisfied … and matters which must be shown to exist as objective facts”. The applicant contends that the subsection is therefore concerned with the objective facts being both whether an undertaking has been given by the extradition country and whether, by virtue of the undertaking, if the death penalty is imposed on the person, it will not be carried out. For the reasons explained above, that distinction does not have the result contended for by the applicant. The subsection is concerned only with the objective fact of the existence of the undertaking.

42                  Next, the applicant argues that there is significance in the requirement that the undertaking be one “by virtue of which” the applicant will not be executed. The applicant argues that the phrase is included to ensure that the effect of the undertaking is to prevent the person being executed. The undertaking cannot have that effect unless it is valid and enforceable. The argument rests on the assertion that the phrase “by virtue of” appears in s 22(3)(c) but not in s 22(3)(d).

43                  This argument has two flaws. First, s 22(4) provides that for the purpose of s 22(3)(d) a country will be taken to have given a speciality assurance if “by virtue of” a law of the requesting country, a treaty with the requesting country, or an undertaking by the requesting country, the fugitive will not be detained in the requesting country for, for instance, an offence other than a surrender offence. Consequently, the conclusion for which the applicant contends is not supported by any contrast in the wording of subsections (c) and (d).

44                  Second, the phrase “by virtue of” must be read in the context of its application to an undertaking. It does not point to a requirement that the undertaking itself need be effective to ensure that the fugitive offender is not executed. The very nature of an undertaking is that of an assurance, pledge or promise to do something or ensure something happens. An undertaking can never be the final link in the chain of causation resulting in the death penalty not being carried out. A requesting country will ordinarily need to invoke domestic laws to give effect to an undertaking. If the country’s domestic laws are unable to give effect to the undertaking, new laws might be passed for this purpose. Therefore, in the context of s 22(3)(c), the phrase “by virtue of an undertaking” means “upon carrying out or implementing or honouring the undertaking” the fugitive offender will not be executed.

45                  The applicant also argued that no “undertaking” was provided by the terms of Singapore’s diplomatic note and that only an “assurance” was given. It was argued that there was a relevant difference between an undertaking and an assurance for the purposes of the Act. A contrast was drawn with s 22(3)(d), which requires the giving of a speciality assurance. However, reference to s 22(4) reveals that there is no such distinction. That subsection provides that a requesting country is taken to have been given a speciality assurance if by virtue of, inter alia, an “undertaking” the fugitive will not be detained or tried for an offence other than, for instance, a surrender offence. Further, in ordinary usage the two terms are used interchangeably simply to mean a promise.

General Principles of Statutory Construction

46                  The applicant also referred to several overarching principles which he contended should influence the construction of s 22(3)(c), and which favour the interpretation that the undertaking must be both valid and effective. One principle is that extradition procedures are, in part, directed to protecting the rights of those accused of crimes by the requesting country: Foster at 367 and R v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42. The respondent did not challenge this principle, but rather emphasised another purpose of extradition law, namely that fugitive offenders should not be able to escape liability for serious crimes by flight to a safe haven.

47                  The terms of s 22(3)(c) provide a substantial protection to the fugitive offender. Further, as explained by Drummond J in Foster, the supervisory role of the Court, albeit limited, provides additional protection. The legislative provisions thus strike a balance between the two aims of extradition law.

48                  It was also said by the applicant that extradition law should be strictly construed in favour of the liberty of the individual: Timar v Republic of Hungary [1999] FCA 1518 at [62], and that Parliament would express any contrary intention with clarity: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 521-522; Coco v The Queen (1994) 179 CLR 427 at 437. As already explained, the intention of Parliament is clear and there is no derogation from these principles.

Extrinsic Materials

49                  Both the applicant and the respondent sought to rely upon extrinsic materials. However, I do not find the material referred to “capable of assisting in the ascertainment of the meaning of the provision” within the meaning of s 15AB of the Acts Interpretation Act 1901 (Cth). None of the materials exhibits a clear picture on the precise meaning of s 22(3)(c).

Domestic Policy

50                  The applicant argued that s 22(3)(c) should be construed so as to reflect Australia’s commitment to the abolition of the death penalty, as demonstrated by the abolition of the death penalty in all States, Territories and the Commonwealth. The last State to abolish the death penalty was Western Australia in 1984, before s 22(3)(c) entered into force on 9 March 1988. However, this policy is expressly given effect by the terms of s 22(3)(c).

Comparative Jurisprudence

51                  The applicant placed particular emphasis on comparative jurisprudence which deals with the question of death penalty assurances in the context of extradition. Two cases in particular were said to support the view that a party to the International Covenant on Civil and Political Rights, 1966 and the Second Protocol thereto should not surrender a person where the requesting state is unable to give a binding undertaking that the death penalty will not be carried out, and that a mere assurance that the requesting state will try, or will take such steps as it can, to avoid the execution of the person being surrendered is insufficient.

52                  In Soering v United Kingdom 161 Eur Ct HR (ser A) (1989); (1989) 11 EHRR 439; 28 ILM 1063 (1989) (Soering) the European Court of Human Rights decided that the decision to surrender the applicant to the United States infringed Article 3 of the European Convention on Human Rights, which prohibits “inhuman or degrading treatment or punishment”. The Court considered that the circumstances of the surrender and the detention of the applicant, in combination with the applicant’s personal circumstances, would amount to inhuman or degrading treatment. The nature of the assurance was merely a background factor, which in part gave rise to the central issue to be determined. The case throws no light on the proper construction of s 22(3)(c).

53                  The applicant also relied on the judgment of the Supreme Court of Canada in Minister of Justice v Burns and Rafay [2001] 1 SCR 283 (Burns). In that case, the Court concluded that it would breach the Canadian Charter of Rights and Freedoms to extradite the respondents to the United States without assurances that the death penalty would not be imposed. The decision in Burns includes an interesting discussion of the contending views in the capital punishment debate, but it provides no assistance in resolving the present case. Unlike in Burns, there is no doubt that in Australia the law requires the Attorney-General to seek a death penalty undertaking before Australia surrenders a fugitive offender.

54                  While the cases of Soering and Burns are of little assistance in determining the construction of s 22(3)(c), they indicate a recent international trend of opposition to the death penalty. Burns in particular canvasses the issue in detail (see also S v Makwanyane 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC)).

55                  This trend in the context of extradition is confirmed by an interesting overview of international developments produced by Amnesty International (‘United States of America: No return to execution — The US death penalty as a barrier to extradition’, November 2001). Other cases also demonstrate the weight judges have placed on the importance of protecting the fugitive in the context of the death penalty. These include a French case that held a non-binding unilateral condition in the order for extradition was not sufficient to satisfy the requirements of French public policy (Fidan (1987) 100 ILR 662); a South African case which held that an extradition disguised as deportation without assurances as to the death penalty was unconstitutional (Mohamed v President of Republic of South Africa 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC)); and an Italian case that held that constitutional guarantees prevented extradition even with satisfactory assurances (Venezia v Ministero di Grazia e Giustizia; 79 Rivista di Diritto Internazionale 815 (1996); (1997) 91 American Journal of International Law 727).

56                  The reluctance of courts in some jurisdictions such as Australia to adjudicate upon decisions of sovereign states concerning extradition is not universal. For instance, in some European countries it has been held to be legitimate for adjudicative bodies to enquire into the sufficiency and effectiveness of assurances: Aylor (1993) 100 ILR 665; see especially the submission of Commissionaire du Gouvernement Vigouroux which sets out the practice of a number of European nations. In due course, the law in Australia may take account of such jurisprudence and move to an acceptance that the doctrine of non-adjudication has less of a place in cases involving questions of fundamental human rights, such as cases involving the death penalty.

some remaining matters

57                  Ordinarily, it would be appropriate at this point to consider the case on the alternative basis that the conclusions so far reached are wrong. In this case, that exercise would involve determining whether the undertaking given by Singapore is valid and enforceable under Singapore law. However, in light of the decision that this issue is not justiciable, partly because of the demands of international comity, it is not desirable to address the question further at this stage. If there is a successful appeal against this decision, the question can be considered in due course.

58                  It is appropriate to mention in this context that the applicant’s contention that the undertaking is not effective does not suggest that Singapore intends to renege on its promise. Rather, the applicant argues that the undertaking is not valid and enforceable as a matter of law. The facts placed before the Court leave no doubt that Singapore intends to honour its undertaking. In an affidavit sworn on 18 November 2003, Mr Lee, the second Solicitor-General of Singapore, stated:

‘I have been authorised by the Minister for Law and Foreign Affairs to confirm that the Government of Singapore will perform the Undertaking in the event that the Applicant is extradited from Australia.’

Mr Lee also gave oral evidence in which he reiterated the intention of Singapore to adhere to its undertaking.

conclusion

59                  It follows from these reasons that the application must be dismissed.

60                  As the question of costs has not been addressed by the parties, that matter is reserved for further consideration.

Associate:

Dated: 6 October 2004