FEDERAL COURT OF AUSTRALIA

Williams v Minister for Justice and Customs [2006] FCA 1782

EXTRADITION – judicial review of Minister’s notice under s 16 of the Extradition Act – statutory preconditions to issue of notice – whether material before the Minister identified the conduct that the Minister was required to consider under s 16(2)(a)(ii) – whether the material before the Minister was so inadequate that his opinion as to dual criminality was perverse in the Wednesbury sense

Extradition Act 1988 (Cth) s 5, 16

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 followed

Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 cited

Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 referred to

Foster v Attorney-General of the Commonwealth of Australia (1997) 97 A Crim R 560 applied

Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 referred to

Holt v Hogan (No 2) (1993) 46 FCR 145 followed

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 referred to

Vasiljkovic v Commonwealth (2006) 228 ALR 447 referred to

von Arnim v Ellison (2006) 150 FCR 282 referred to

LARRY RICHARD WILLIAMS v MINISTER FOR JUSTICE AND CUSTOMS OF THE COMMONWEALTH OF AUSTRALIA AND ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

NSD1684 OF 2006

STONE J

20 December 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

1                     This is an application for judicial review of the first respondent’s decision to issue a Notice of Receipt of Extradition Request, pursuant to s 16(1) of the Extradition Act 1988 (Cth) (‘the Act’) concerning the applicant. 

2                     Section 16(1) provides that where the Attorney-General has received an extradition request from an extradition country, he may, in his discretion, give notice to any magistrate that the extradition request has been received.  The s 16 notice is a prerequisite to the conduct of proceedings before the Magistrate to determine whether the person who is the subject of the s 16 notice is eligible for extradition, pursuant to s 19 of the Act. 

3                     In so far as it is relevant to this application, s 16(2) provides:

‘(2)      The Attorney-General shall not give the notice:

(a)          unless the Attorney-General is of the opinion:

(i)            that the person is an extraditable person in relation to the extradition country; and

(ii)          that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia…’

4                     For present purposes the meaning of “extradition offence” is to be found in s 5 of the Act:

‘“extradition offence” means:

(a)               in relation to a country other than Australia – an offence against a law of the country:

(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months;

…

(b)               in relation to Australia or a part of Australia – an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.’

The requirement in s 16(2)(a)(ii) that the relevant conduct be an extradition offence in Australia is referred to as the ‘dual criminality’ requirement. 

5                     The Minister for Justice and Customs, who is the first respondent in this proceeding has portfolio responsibility for extradition and, pursuant to s 19A of the Acts Interpretation Act 1901 (Cth), has the power to issue s 16 notices, notwithstanding that the section refers only to the Attorney-General.

Material before the Minister

6                     At the time the Minister issued the notice, the only material before him that was germane to the formation of the opinions referred to in s 16(2) was a nine page advice entitled “Extradition to the United States – Larry Williams” and dated 14 July 2006.  The advice, on the letterhead of the Attorney-General’s Department, is signed by an Acting Assistant Secretary of the International Crime Cooperation Branch.  Broadly speaking, it provides some background information concerning the applicant, the circumstances surrounding the United States’ request for his extradition and the statutory framework relevant to the issuing of the notice.  It recommends that the Minister issue the notice pursuant to s 16 of the Act.  It is not in contention that this advice was the only material that the Minister relied upon in making his decision and therefore its specific terms are of critical importance to this appeal.

7                     According to the advice, the applicant, who is a citizen of the United States of America, was arrested in Australia on 20 May 2006, at the request of the United States government.  On 13 July 2006, the Australian government received a request from the United States for the extradition of the applicant.  The advice states:

‘He [the applicant] is wanted in the United States for prosecution for the following offences:

(i)            wilful attempt to evade federal income tax for tax year 1999, in violation of 26 United States Code § 7201 (one count)

(ii)          wilful attempt to evade federal income tax for tax year 2000, in violation of 26 United States Code § 7201 (one count), and

(iii)        wilful attempt to evade federal income tax for tax year 2001, in violation of 26 United States Code § 7201 (one count).’

8                     After setting out the statutory requirements for the issuing of a notice under s 16, the advice to the Minister states:

‘8.  The Department submits that the criteria in paragraphs 16(2)(a)-(b) have been met and we are not aware of any circumstances that would justify the exercise of your general discretion to decline to issue a notice.’

9                     Attached to the advice is a more detailed analysis directed to showing how the applicant satisfied the statutory preconditions contained in s 16 of the Act.  This detailed analysis notes:

‘Subsection 16(1)…

The United States is declared to be an extradition country by Regulation 3 of the Extradition (United States of America) Regulations 2004.  You may therefore be satisfied that the United States is an extradition country.

Subparagraph 16(2)(a)(i)

…

3.           Mr Williams is an ‘extraditable person’ for the purposes of section 6 because:

(i)      a warrant is in force in the United States for his arrest in relation to offences he is accused of having committed against the law of the United States

(ii)     the United States offences for which Mr Williams’ extradition is sought are punishable by a maximum penalty of five years, and accordingly each offence is an extradition offence in relation to the United States, and

(iii)    Mr Williams is in Sydney and is therefore outside the United States.’

10                  Further, the detailed analysis states, in respect of the requirement in s 16(2)(a)(ii):

‘5.       The Office of Commonwealth Director of Public Prosecutions has advised that if Mr Williams had committed the conduct comprising the United States criminal offences in New South Wales at the time the request for his extradition was received, he would have committed the following offences against Commonwealth law:

(i)        In relation to the offence wilful attempt to evade federal income tax for tax year 1999 – general dishonesty, contrary to 135.1(3) of the Criminal Code (Cth)(Criminal Code) which attracts a maximum penalty of five years imprisonment.  The conduct may also constitute an offence of general dishonesty contrary to subsection 135.1(1) of the Criminal Code, which attracts a maximum penalty of five years imprisonment.’

11                  This advice is repeated with reference to each of the tax years 2000 and 2001 and concludes:

‘You may therefore be of the opinion that if Mr Williams committed the conduct comprising each of the United States offences in Sydney at the time the extradition request was received, each of the offences for which the United States has requested his extradition would have constituted an extradition offence in relation to Australia.’

The extradition process

12                  The steps involved in the extradition process under Part II of the Actwere considered by the Full Federal Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389.  The Full Court described four stages in the extradition process: commencement, remand, determination by a magistrate of eligibility for surrender and executive determination that the person is to be surrendered; see also Vasiljkovic v Commonwealth (2006) 228 ALR 447 at [55].  The issue of a notice under s 16(1) of the Actformally commences the process and, as noted above, is a condition precedent to a magistrate considering the person’s eligibility for surrender.  The Minister’s decision to issue a s 16 notice may be subjected to judicial review; von Arnim v Ellison (2006) 150 FCR 282 at 298, Harris at 400-401.

13                  The applicant’s written submissions put the following argument:

‘However, the formation of the Minister’s opinion is flawed and the decision is invalid if the deficiencies in the material before the Minister are such that the material does not provide a factual basis for, and prevents the reasonable formation of, the requisite opinion in section 16(2) of the Act: Harris v Attorney General (1993) 45 FCR 11 at 25 (Ryan J). Alternatively, the formation of the Minister’s opinion is flawed and the decision is invalid if the Minister has not properly construed and applied the statutory criteria to the facts before him: Harris v Attorney General (1993) 45 FCR 11 at 27 (Ryan J).  Nothing said by the Full Court in Harris v Attorney General (Cth) (1994) 52 FCR 386 controverts either of those propositions.’

14                  Whilst this submission may be accepted as far as it goes, it does little to advance the applicant’s case.  The comments of Ryan J to which the applicant refers were directed to preconditions to the Minister issuing a notice under s 16(1) that are not the subject of challenge here.  His Honour’s comments were directed to whether a valid extradition request had in fact been received and whether there was an extradition objection in relation to the offence.  No challenge has been made to the extradition request in this case and there is no extradition objection.  The complaints made by the applicant in this case have all been directed to the reasonability of the opinion expressed by the Minister, given the alleged deficiencies in the material on which that opinion was based.  I note, however, the statement of the Full Court in Harris at 403:

‘It is difficult to imagine a case where, on the one hand, there is a document which is sufficiently certain so that it can properly be described as an “extradition request”, while, on the other, does not contain sufficient information to enable the Attorney to consider the matters specified in s 16(2).’

15                  Although this Court does not have jurisdiction to consider the merits of the Minister’s decision, there is a reviewable error if the only material on which the Minister’s decision is based does not provide a factual basis for, and prevents the reasonable formation of, the requisite opinion.  Such a decision would be perverse in the Wednesbury sense; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230.  The point was made by Cooper J in Foster v Attorney-General of the Commonwealth of Australia (1997) 97 A Crim R 560 at 573-4 where his Honour, in expressing the view that the Actdid not, either expressly or by implication, exclude the rules of natural justice or the requirement of procedural fairness in relation to the exercise of the power under s 16, said:

‘The nature of the decision under s 16 does not of itself indicate an intention to exclude the rules.  The decision to issue a notice under s 16 is not reviewable by a magistrate under s 19, and, subject to the limited avenues available for control by the courts, is final … The decision operates as a necessary precondition to allow the next stage of the extradition process to occur.  Although the extradition process involves a number of steps or stages before a final decision to surrender the person for extradition is made, each step is self-contained.  The decision at each stage takes effect to either terminate the process or constitute the condition precedent required for the next stage to occur.  Further, the issues at each stage are not the same, although there may be some overlap, eg, the existence or possible existence of extradition objections.’

Applicant’s submissions

16                  According to the applicant, the information not included in the advice to the Minister is more significant than the information provided.  The applicant’s principal claim is that, on the basis of the information contained in the advice, the first respondent could not reasonably have formed the opinion required by s 16(2)(a)(ii) of the Act and therefore the s 16 notice was not authorised by the Act.  The applicant claims that the advice did not identify the conduct allegedly constituting the extradition offence with sufficient precision.  Specifically he claims that the advice did not:

(a)                  attach the indictment setting out the offences alleged against him in the United States; or

(b)                 attach any material from the United States in relation to the charges or the conduct alleged to constitute the charges or any other supporting or explanatory material; or

(c)                  attach any supporting or explanatory material from the Office of the Commonwealth Director of Public Prosecutions (DPP) in relation to the charges or the alleged conduct of the applicant.

17                  In oral submissions the applicant’s counsel emphasised that s 16 refers to the alleged conduct of the extradition subject rather than to the charges levelled at that person.  It was submitted that the omission of the matters referred to above amounted to a failure to describe the relevant conduct.  The advice merely names the charges made against the applicant and thus made it impossible for the Minister to form a reasonable opinion that, if the conduct had occurred in Australia, it would have constituted an extradition offence.  In the alternative the applicant claims that insofar as the applicant’s conduct is described in the advice to the Minister it could not reasonably have been considered to constitute an extradition offence in relation to Australia. 

18                  The applicant accepted that the Minister was entitled to rely upon the advice of departmental staff in reaching the requisite opinion per s 16(2)(a)(ii) but submitted that when it comes to signing the s 16 notice the Minister has to do more than rubber stamp the recommendations of the Department.  Clearly this submission must be accepted.  This much is clear from the comments made in von Arnim at 298 by Young J, with whom Madgwick and Siopis JJ agreed:

‘The obvious statutory intention behind s 16 is that the Attorney-General should carefully scrutinise the case for extradition before giving a notice stating that an extradition request has been received.  Speaking of earlier legislation which was in similar form, Burchett J in Schlieske v Federal Republic of Germany (No 2) (1987) 26 ACrimR 341 at 346-347, described the Attorney-General’s notice as the essential document which translates any Australian obligation, under international law, to extradite a fugitive into a right, under municipal law, to have a particular application for extradition proceeded with before a magistrate.  This aptly describes the function of the s 16(1) notice under the Act.  

In Commonwealth v Dutton (2000) 102 FCR 168 at [33], Moore J said that the function of the Attorney-General under s 16 provides an important safeguard against the abuse of the extradition process by the country seeking extradition and involves the Attorney-General scrutinising the request independently of the requesting country and, potentially, against the interests of that country.  In this sense, Moore J said that s 16 involves the Attorney-General acting as a contradictor to the claim of the requesting country.  None of this is controversial.’

19                  The issue remains, however, whether the information contained in the advice put before the Minister was sufficient to allow him to give proper consideration to the request made for the extradition of the applicant.  The fact that, if the notice is issued, the matter goes to a magistrate for consideration according to the same criteria as are considered by the Minister (s 19(2)(c) of the Act), does not in any way relieve the Minister from his obligation to give those criteria independent consideration; Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 at 538.

20                  The submissions made by the applicant are similar to those rejected by this Court in Foster.  The offences alleged in that case and stated in the departmental memorandum given to the Minister for the purpose of his decision, were set out in the judgment given in a related appeal, Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 at [50], namely:

‘… one count of conspiracy to use false instruments, two counts of conspiracy to defraud, and three counts of using a false instrument.’

21                  In Foster, as in this case, it was accepted that the relevant Minister had considered only a departmental minute and its annexures.  From the extract of this minute in Cooper J’s judgment, it appears to have been very similar in form to the advice provided to the Minister in this case.  The applicant in Foster submitted that, in reaching the opinion required by s 16(2)(a)(ii), the Minister was required personally to consider the conduct of the person who was the subject of the extradition request.  It was submitted that, since the conduct of the applicant in Foster was not described in any of the documents provided to him, the Minister could not have given personal consideration to this conduct.  Cooper J rejected this submission and noted at 568:

‘Section 16(2)(a)(ii) only requires that the Attorney-General hold the relevant opinion.  The notice issued by the respondent under s 16 of the Act and signed by him expressly states that he held the requisite opinion.  In order to avoid  the consequence of the respondent in fact holding the opinion, the applicant must demonstrate that no person in the position of the respondent on 27 May 1997, having the material which was available to the respondent, could reasonably have held the opinion.  That is, the applicant must show that the opinion was perverse: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228.’

22                  His Honour found that the Minister was entitled to have the investigation and consideration done by departmental officers and was entitled to rely on departmental submissions in reaching the s 16(2)(a)(ii) opinion.

23                  I respectfully agree with his Honour that the applicant in this case must establish that the first respondent’s determination was unreasonable or perverse in the Wednesbury sense.  If the decision was based on factual material which was so materially deficient that it could not reasonably form the basis for the requisite opinion, then it would be unreasonable in the Wednesbury sense. 

24                  The respondents submit that the facts in Foster are indistinguishable from the present facts; that the decision in Foster is correct and should be followed by this Court; and that there is nothing in von Arnim to contradict Cooper J’s analysis in Foster.

25                  At its highest, the respondents’ submission was that it was sufficient for the Minister to adopt the DPP’s conclusion without having any indication from the DPP as to why it came to that conclusion.  It seems to me that this is higher than it is necessary for the respondents to go and, indeed goes beyond the position taken by Cooper J in Foster.  It is not correct to say that in this case the departmental advice gave no indication of the basis of the DPP’s advice.  Although scant, an indication is provided by the description of the offences with which the United States seeks to charge the applicant.  The Minister had before him a list of the US offences that the applicant was charged with, a list of (at least in the DPP’s opinion) equivalent offences under the Australian law and the DPP’s advice that the US offences would be considered offences under the Australian law. 

26                  Further, the respondents referred to two passages from Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 in support of its contention that the first respondent was entitled to rely on the advice prepared for him by departmental staff.  Although in a different context, these extracts bear repeating.  At 30 Gibbs CJ stated:

‘Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter.  It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department.’

27                  In the same case Brennan J said at 65-6:

‘The department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know.  Part of a department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions.  The press of ministerial business necessitates efficient performance of that departmental function… Reliance on the departmental appreciation is not tantamount to an impermissible delegation of the ministerial function.  A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts.’

28                  The applicant attempted to distinguish Foster on the basis that the descriptions of the offences in Foster were instantly recognisable as bearing dual criminality, whereas in the present case it was not possible on the basis of the descriptions given in the advice to form a reasonable opinion as to dual criminality.  As noted above at [7], the charges made against the applicant are ‘wilful attempt to evade Federal income tax’ in each of 1999, 2000 and 2001.  Counsel for the applicant submitted that there is no such offence in Australia.  Further, counsel submitted that such an offence could encompass conduct that was not criminal in Australia, including the failure to lodge an income tax return.  In comparison, counsel for the applicant referred to the departmental submission in Foster, which stated:

‘The Commonwealth DPP has advised that Foster’s alleged conduct would amount to the offences of conspiracy to defraud contrary to section 430(1) of the Criminal Code (Qld); fraudulent inducement of a person to give credit to a company… uttering false document… obtaining goods or credit by false pretence… and falsifying books or accounts by an officer of a corporation.’

29                  I do not accept that the circumstances in Foster were relevantly different from those before me.  It is inevitable that in many cases where extradition is sought there will be no precise equivalent between the offence as specified in the request for extradition and offences in Australia however the Actdoes not require this. It is sufficient if there is dual criminality in substance; Harris at 411; Holt v Hogan (No 2) (1993) 46 FCR 145 at 149-151.  The dual criminality requirement is that the ‘conduct or the equivalent conduct’ to that in respect of which extradition is sought should be an ‘extradition offence’ in relation to Australia. 

30                  It is not to be expected that the Minister would be aware of which offences, if any, in Australia would equate to a wilful attempt to evade federal income tax.  The Minister is entitled to rely on expert advice from his department or another Commonwealth instrumentality on this point.  The applicant says that the statement of the alleged offence under United States law does not describe the conduct of which the applicant stands accused.  In my view, however, it does describe conduct and it describes it sufficiently.  If the United States were to seek the extradition of a person on the basis that he or she had attempted murder it would not be necessary for the Minister to know what form the attempt took to appreciate that there is an allegation of certain conduct.  Similarly, to allege that the applicant wilfully attempted to evade income tax is immediately understandable as a description of conduct without the need to describe how that attempt is said to have been made.  In many, if not most, cases the description of the relevant conduct will be found in the naming of the charge.

31                  I respectfully accept the view expressed by Young J in von Arnim (see [18] above) that the Minister must carefully scrutinise the case for extradition before issuing a s 16 notice.  I do not accept that the advice in this case did not allow such scrutiny.

32                  In this case the DPP has given its opinion that that the conduct alleged by the United States, if committed in New South Wales, would be an offence under the Commonwealth Criminal Code.  The question is not whether the DPP is right or wrong but whether it was perverse of the Minister to accept that advice.  Put that way, the answer can hardly be in doubt.  The DPP has the expertise that the Minister presumably lacks.  There is no reason for the Minister to think other than that their advice was given in good faith.  It was, in my opinion, entirely reasonable for the Minister to accept the advice given.

33                  Accordingly, the application is dismissed with costs.

Associate:

Dated:         20 December 2006