FEDERAL COURT OF AUSTRALIA
Mokbel v Attorney-General for the Commonwealth of Australia
[2007] FCA 1536
EXTRADITION – validity of request for extradition to Australia issued by the Minister for Justice and Customs – whether s 40 of the Extradition Act 1988 (Cth) evinces a “contrary intention” for the purpose of s 19A of the Acts Interpretation Act 1901 (Cth) – source of power to request the extradition of an Australian citizen from a foreign State – operation of ss 19 and 19A of the Acts Interpretation Act 1901 (Cth) in relation to the exercise of executive power by two ministers.
INTERNATIONAL LAW - whether an Australian Court can comment on or intervene in the manner in which the Greek Ministry of Justice dealt with communications from an Australian diplomat – principle of non-adjudication.
ADMINISTRATIVE LAW – whether the Minister acted in bad faith, for an improper purpose or in breach of the requirements of natural justice.
Acts Interpretation Act 1901 (Cth) ss 19 and 19A
Evidence Act 1995 (Cth) ss 143(1)(c), 150, 153
Extradition (Foreign States) Act 1966 (Cth) s 21
Extradition Act 1988 (Cth) ss 3, 5, 22(2), 23, 40, 41
Judiciary Act 1903 (Cth) s 39B
Constitution ss 61, 62, 64, 65
Extradition (Hellenic Republic) Regulations 1991 (Cth)
Explanatory Memorandum, Acts Interpretation Amendment Bill 1998 (Cth)
Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth)
Attorney-General v Foster (1999) 84 FCR 582 cited and applied
Bartonv Commonwealth (1974) 131 CLR 477 cited and applied
Cabal v United Mexican States (No. 3) (2000) 186 ALR 188cited and applied
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560cited
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 cited
Foster v Attorney-General (1998) 158 ALR 394 considered
Gamogab v Akiba (2007) 159 FCR 578cited
McCrea v Minister for Customs and Justice (2004) 212 ALR 297cited
Oates v Attorney-General (Cth) (2003) 214 CLR 496 cited and applied
O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 cited
R v Burgess; ex parte Henry (1936) 55 CLR 608cited
R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157cited
R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 cited
R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 cited
R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 cited
Re Patterson; ex parte Taylor (2001) 207 CLR 391cited and considered
Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86cited
Republic of Argentina v Mellino [1987] 1 SCR 536 cited
Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 cited
Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.) cited
Sun Lau v Australia [1999] BCJ No 2971 cited
Todhunter v Attorney-General (Cth) (1994) 52 FCR 228cited
Truong v R (2004) 223 CLR 122 cited
United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) cited
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538cited
Zoeller v Attorney-General for the Commonwealth & Ors (1987) 16 FCR 153cited
VID 824 OF 2007
GORDON J
5 OCTOBER 2007
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 824 OF 2007 |
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BETWEEN: |
ANTONIOS SAJIH MOKBEL Applicant
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AND: |
ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA First Respondent
THE MINISTER FOR JUSTICE AND CUSTOMS Second Respondent
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GORDON J |
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DATE OF ORDER: |
5 OCTOBER 2007 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The Applicant is to pay the Respondents’ costs of the application, including reserved costs.
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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VICTORIA DISTRICT REGISTRY |
VID 824 OF 2007 |
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BETWEEN: |
ANTONIOS SAJIH MOKBEL Applicant
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AND: |
ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA First Respondent
THE MINISTER FOR JUSTICE AND CUSTOMS Second Respondent
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JUDGE: |
GORDON J |
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DATE: |
5 OCTOBER 2007 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
Introduction
1 Antonios Sajih Mokbel (“the Applicant”) is an Australian citizen who was arrested in Athens in the Hellenic Republic on 5 June 2007.
2 The Hellenic Republic is an extradition country under the Extradition Act 1988 (Cth) (“the Extradition Act”): see s 5 of the Extradition Act and reg 4 of the Extradition (Hellenic Republic) Regulations 1991 (Cth) (“the Regulations”). The Extradition Act applies to the Hellenic Republic subject to the Treaty on Extradition between Australia and the Hellenic Republic signed on 13 April 1987 (“the Treaty”), a copy of which is a schedule to the Regulations: see reg 5.
3 On 21 June 2007, as provided for by the Treaty, a request was made to the Hellenic Republic for the Applicant to be returned to Australia “to be dealt with according to law” (“the Request”): s 41 of the Extradition Act. The Request was signed in Canberra by the Minister for Justice and Customs, Senator The Honourable David Albert Lloyd Johnston (“the Justice Minister”), not the Attorney-General for the Commonwealth (“the Attorney-General”).
4 The Request for surrender of the Applicant was made on two bases. First, surrender was sought in relation to an offence against a law of Australia of which the Applicant had been convicted in the Supreme Court of Victoria on 28 March 2006. The offence of which the Applicant was convicted was of being knowingly concerned in the importation of a traffickable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The Applicant had absconded during the course of the trial. On 31 March 2006, the Applicant was sentenced, in absentia, to 12 years imprisonment with a non-parole period of nine years. Secondly, surrender was sought in relation to twenty offences against the law of Australia of which the Applicant had been accused but not convicted. The offences are alleged to have occurred between 2000 and 2007 and included two offences of murder, offences of drug trafficking and conspiracy to traffick drugs of dependence, and an offence of conspiracy with intent to pervert the course of public justice.
5 On 24 July 2007, a hearing in relation to the Request commenced before the Council of Appeals Court of Athens comprised of three judges – Efstathios Tsoukalas (President of the Court of Appeals) with Erietta Chalevidou and Theodoros Spiliadis (Judges) (“the Athens Court of Appeals”). At the conclusion of argument on 24 July 2007, the Athens Court of Appeals reserved its decision until 10 am on 26 July 2007, at which time the Athens Court of Appeals ordered the surrender of the Applicant to Australia.
Application
6 By an Application dated 6 September 2007 pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), the Applicant seeks to impugn the Request and seeks the following relief against the Attorney-General and the Justice Minister (collectively “the Respondents”):
(1) a writ of prohibition restraining the Respondents from taking further action to extradite the Applicant to Australia;
(2) an order of certiorari, quashing the Request;
(3) a declaration that the Request was invalid;
(4) an order in the form of mandamus directing the Respondents to notify the Hellenic Republic not to further prosecute the Request.
7 The Applicant seeks to impugn the Request on two “broad” grounds: first, that contrary to s 40 of the Extradition Act, the Request was not made by the Attorney-General (“Ground A”); and, secondly, that there had been certain email communications sent by the Australian Embassy in Athens to the Athens Court of Appeals while the matter stood reserved for decision before that Court (“Ground B”).
Ground A
8 Section 40 in Part IV of the Extradition Act, entitled “Extradition to Australia from Other Countries”, provides:
“A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General.”
(Emphasis added.)
9 The immediate point of issue between the parties on Ground A is whether, as the Applicant submitted, the words “shall only be made by or with the authority of the Attorney-General” in s 40 of the Extradition Act limit the identity of the person entitled to make the Request to the Attorney-General so that the Request could not be signed by the Justice Minister. For the reasons that follow, I would refuse relief on this basis.
Ground B
10 The second ground on which the Applicant seeks to impugn the Request relies upon two emails which were:
(a) not provided to the Applicant or his legal advisers until after the decision of the Athens Court of Appeals; and
(b) provided by the Deputy Head of Mission, Athens to an official in the Ministry of Justice in Greece in a form purportedly contrary to the Treaty.
The conduct outlined above is said by the Applicant to constitute bad faith, an improper purpose, or a breach of natural justice, on the part of one or more of the Respondents. For the reasons that follow, I would also refuse the relief sought on that basis. The Applicant’s contention is not supported by the facts and is contrary to law.
Ground A: Request to be made by the Attorney-General
Applicant’s contentions
11 The Applicant contends that s 40 of the Extradition Act required the Request to be made by the Attorney-General, not the Justice Minister. As a result, the Applicant contends that, contrary to s 40, the Request was not made “by or with the authority of the Attorney-General” and was therefore made in “excess of jurisdiction”.
12 In support of his construction of s 40 of the Extradition Act, the Applicant placed considerable emphasis on the words “shall”, “only” and “Attorney-General” in s 40 together with what was described as the “origin, purpose and function” of s 40.
13 The argument proceeded as follows:
(1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) (“the 1966 Act”) which provided that “the Attorney-General may make a requisition to [a foreign state] for the surrender of the person.” Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the “only power” to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487;
(2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be:
“(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;
(b) to facilitate the making of requests for extradition by Australia to other countries; and
(c) to enable Australia to carry out its obligations under extradition treaties.”
(3) consistent with the language adopted by Barwick CJ in Barton, s 40 of the Extradition Act states that:
“A request by Australia for the surrender of a person from a country … in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General.”
(Emphasis added.)
(4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act, the Explanatory Memorandum states at 41:
“This clause makes it clear that the only way in which extradition can be requested by Australia …is by or with the authority of the Attorney-General ....”
(5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 305 (per Gibbs CJ);
(6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134];
(7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General:
“Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision.”
(Emphasis added.)
14 Finally, the Applicant submitted that although s 19A of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) provides that a reference to a particular Minister in a provision of an Act is, unless the contrary intention appears, a reference to any one of the two or more Ministers that administer the provision, s 19A of the AI Act does not apply because s 40 of the Extradition Act evinces a contrary intention.
15 Consistent with that view, the Applicant does not dispute that the High Court in Re Patterson; ex parte Taylor (2001) 207 CLR 391 established, in the context of s 501 of the Migration Act 1958 (Cth) (“the Migration Act”) read with s 19A of the AI Act, that the combined use of the words “only” with the word “personally” in referring to one minister did not prevent one of two ministers administering the Act exercising the power in question. However, the Applicant sought to distinguish Re Patterson on the grounds that it was concerned with the Migration Act, not the Extradition Act, and s 40 of the Extradition Act was in wholly different terms to s 501 of the Migration Act.
Analysis
16 The Applicant’s construction of s 40 of the Extradition Act should be rejected. First, it proceeds from a misunderstanding about the source of power to request extradition of a fugitive from a foreign State to Australia. Secondly, it ignores the relevant executive and administrative arrangements made by the Governor-General pursuant to ss 61, 64 and 65 of the Constitution. Thirdly, it is contrary to the express words and history of s 19A of the AI Act, is contrary to authority and, if adopted, would not facilitate “efficient and effective government administration”: see Re Patterson at [15].
(1) Source of power to request extradition from a foreign state
17 The object of Part IV of the Extradition Act entitled “Extradition to Australia from Other Countries” (of which s 40 forms part) is “to facilitate the making of requests for extradition by Australia to other countries”: s 3(b) of the Extradition Act. It is not a code: Oates v Attorney-General (Cth) (2003) 214 CLR 496 at [38] (per Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ). A request to a foreign state for the return of a fugitive to Australia remains an exercise of executive power.
18 The Executive Government is established by Ch 2 of the Constitution. By virtue of s 61 of the Constitution, the executive power of the Commonwealth extends to the “execution and maintenance of [the] Constitution, and of the laws of the Commonwealth.” As Latham CJ said in R v Burgess; ex parte Henry (1936) 55 CLR 608 at 643 – 644 cited by Mason J in Barton v Commonwealth (1974) 131 CLR 477 at 498:
“The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves … the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane.”
19 A request to a foreign state for the surrender of a person convicted of, or alleged to have committed, an offence against the laws of Australia is within the sphere of executive power: Barton at 484 - 485 (Barwick CJ), at 491 (McTiernan and Menzies JJ), at 498 (Mason J) and at 505 (Jacobs J). While it is now accepted that legislative power has abrogated executive power in respect of the extradition of persons from Australia (see s 3(a) of the Extradition Act which purports to “codify the law relating to the extradition of persons from Australia…”), requests for the return of fugitives to Australia remains an exercise of executive power. This power cannot be displaced except by a clear and unambiguous legislative provision to the contrary. Part IV of the Extradition Act does not displace or even attempt to displace the executive power to seek the return of fugitives to Australia: Oates at [32] to [35], [38] and [39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) and Barton at 491 (McTiernan and Menzies JJ), at 501 (Mason J) and at 508 (Jacobs J); cf Barton at 488 (Barwick CJ).
20 Consistent with that principle, s 40 of the Extradition Act is not expressed as a source of power. It properly assumes that the power to make a request to a foreign state is vested in the executive: see Truong v R (2004) 223 CLR 122 at [80]; Oates at [29] and [39]; Barton at 484 (Barwick CJ), 490 – 491 (McTiernan and Menzies JJ), 498 – 499 (Mason J), 505 – 508 (Jacobs J); see also Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth) at 41.
21 While not the source of executive power to make an extradition request, s 40 of the Extradition Act is a machinery provision which regulates the exercise of that power by providing that a request “shall only be made by or with the authority of the Attorney-General.” Why is a machinery provision necessary and how does it operate? There are at least two answers to each question. They are to be found first, in the nature and second, the manner of exercise of executive power.
(2) Executive and administrative arrangements
22 Chapter 2 of the Constitution not only establishes the executive government, it determines the manner of its exercise. First, the executive power is exercisable by the Governor-General: s 61 of the Constitution. Secondly, there is a Federal Executive Council to advise the Governor-General: s 62. As a consequence, absent s 40 of the Extradition Act, it would be possible for any member of the Federal Executive Council to advise the Governor-General to request a foreign state to surrender a person to Australia.
23 Thirdly, members of the Federal Executive Council are chosen by the Governor-General (s 62 of the Constitution) and it is those members (described as Ministers of State for the Commonwealth) that the Governor-General may appoint to “administer such departments of State ... as the Governor-General in Council may establish” (s 64 of the Constitution). In the present case, the relevant department of State is the Attorney-General’s department.
24 By an Administrative Arrangements Order dated 21 September 2006 signed by the Administrator of the Commonwealth, sealed with the Great Seal of Australia and counter-signed by the Prime Minister of Australia (“the AAO”), the Administrator ordered that the legislation administered by a Minister of State administering a Department is the legislation referred to in the Part of the Schedule attached to the AAO relating to that Department: cl 2(a). The AAO was published in the Commonwealth of Australia Gazette, No.S178. The Gazette is admissible and its contents proven under ss 153(1) and (2) and s 150(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”). The Extradition Act is one of the items of legislation listed in the Schedule to the AAO as legislation administered by the Minister administering the Attorney-General’s Department.
25 Accordingly, it becomes necessary to identify which Minister has, or Ministers have, responsibility for administering the Attorney-General’s Department. There are two: the Attorney-General and the Justice Minister.
26 By an instrument dated 26 October 2004 entitled “Appointment of Minister of State”, the instrument provides:
“I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, pursuant to sections 64 and 65 of the Constitution, hereby direct and appoint THE HONOURABLE PHILIP MAXWELL RUDDOCK, MP, a member of the Federal Executive Council, to hold the office of ATTORNEY-GENERAL and to administer THE ATTORNEY-GENERAL’S DEPARTMENT.”
27 By a further instrument dated 9 March 2007 entitled “Appointment of Minister of State”, the instrument provides:
“I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, pursuant to sections 64 and 65 of the Constitution, hereby direct and appoint SENATOR THE HONOURABLE DAVID ALBERT LLOYD JOHNSTON, a member of the Federal Executive Council, to hold the office of MINISTER FOR JUSTICE AND CUSTOMS and to administer THE ATTORNEY-GENERAL’S DEPARTMENT.”
On the same day, the Governor-General directed that the appointment of the Justice Minister be notified for general information. The notification was published in the Commonwealth of Australia Gazette, No S45. The Gazette is admissible and its contents proven under ss 153(1) and (2) of the Evidence Act.
28 Section 143(1)(c) of the Evidence Act permits the Court to take judicial notice of each instrument, without proof, as an order of the Governor-General in Council made under ss 64 and 65 of the Constitution: Attorney-General v Foster (1999) 84 FCR 582 at [35]. Each instrument is signed by the Governor-General, sealed with the Great Seal of Australia and counter-signed by the Prime Minister of Australia. In accordance with ss 150(3) and (4) of the Evidence Act, it is to be presumed that each instrument was properly attested and, when read with cl 8 in Pt 2 of the Dictionary of the Evidence Act, it is to be presumed that the reproduction of the instrument before the Court is a true copy of the original. There is no evidence to the contrary. Each instrument is admissible and its contents proven under ss 143(1)(c) and ss 150(3) and (4) of the Evidence Act.
29 As a result, the Attorney-General and the Justice Minister are each Ministers of State, members of the Federal Executive Council and directed and appointed by the Governor-General to administer the Attorney-General’s Department. The legislation administered by that department includes the Extradition Act, including s 40.
(3) Section 19A of the AI Act and efficient and effective government
30 The dual administration of the Attorney-General’s Department (and therefore the Extradition Act) is consistent not only with the exercise of executive power as prescribed by the Constitution but is expressly provided for by s 19A of the AI Act.
31 Section 19A of the AI Act provides that:
(1) If a provision of an Act:
…
(ab) refers to a particular Minister;
then, unless the contrary intention appears, the reference is a reference to:
…
(b) if … for the time being, 2 or more Ministers administer the provision - any one of those Ministers; or
…
(4) For avoidance of doubt, it is declared that where:
(a) a provision of an Act is administered by 2 or more Ministers; and
(b) by virtue of this section, the provision requires or permits anything to be done by or in relation to any one of those Ministers;
the provision shall not be taken to require or permit it to be done in any particular case by or in relation to more than one of those Ministers.”
(Emphasis added.)
32 The Applicant submits that the word “only” in s 40 of the Extradition Act evinces a “contrary intention” for the purposes of s 19A(1) so that the reference to the Attorney-General in s 40 could not be read as a reference to the Justice Minister, being a Minister who administers the provision. I reject that contention.
33 First, the word “only” in s 40 of the Extradition Act cannot be read in isolation. It must be considered in the context of s 40 and the Extradition Act as a whole. As explained above (see [17] to [21] above), s 40 is not the source of power to make an extradition request. It is a machinery provision which regulates the exercise of the power. That is its purpose. The fact that the effect of s 40 of the Extradition Act read with s 19A of the AI Act permits either of the two Ministers who administer the Attorney-General’s department (the Justice Minister and Attorney-General) to sign the Request does not alter the nature or purpose of the provision.
34 Secondly, the executive and administrative arrangements expressly provide that the Justice Minister is one of two Ministers to administer the Extradition Act (including s 40), being arrangements necessary in the interests of efficient government administration: Attorney-General v Foster (1999) 84 FCR 582 at [37] and [42] and Zoeller v Attorney-General for the Commonwealth & Ors (1987) 16 FCR 153 at 165.
35 Thirdly, the history of s 19A(1) of the AI Act does not support the Applicant’s contention. Section 19A(1) of the AI Act, in its current form, was enacted following the decision of Spender J in Foster v Attorney-General (1998) 158 ALR 394. That case concerned s 19 of the AI Act which, at that time, read:
“Where in an Act any Minister is referred to, such reference shall unless the contrary intention appears, be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister.”
Foster sought to challenge a warrant for his surrender which had been issued by the Justice Minister under s 23 of the Extradition Act on the ground, inter alia, that the warrant was a nullity because the discretion in s 22(2) of the Extradition Act could only be lawfully exercised by the Attorney-General and not the Justice Minister.
36 Spender J held that s 22(2) of the Extradition Act required the surrender of a person be determined by the Attorney-General or, by application of s 19 of the AI Act, by a Minister or member of the Executive Council validly authorized to act for the time being on behalf of the Attorney-General. At a practical level, Spender J held that s 19 of the AI Act was an interpretation section which was confined in its operation to cases of temporary absence, for example when a Minister was on holiday or was sick, and that the authorisation for another Minister to perform had to be by the Prime Minister or Cabinet rather than by the authorising Minister: Foster v Attorney-General (1998) 158 ALR 394 at 408.
37 As noted earlier, ss 19 and 19A of the AI Act were amended after the decision of Spender J and before the decision on appeal: Attorney-General v Foster (1999) 84 FCR 582. Parliament amended ss 19 and 19A of the AI Act in 1998 (see Acts Interpretation Amendment Act 1998 (Cth)), because of the “serious implications for government administration” which resulted from the decision of Spender J: Explanatory Memorandum, Acts Interpretation Amendment Bill 1998 (Cth) at 1.
38 By the 1998 amendments ss 19 and 19A of the AI Act were amended as follows:
(1) the phrase “unless the contrary intention appears” was deleted from s 19; and
(2) s 19A(1) was amended to provide that a reference to a Minister, whether specific or generic, was taken to be a reference to all Ministers appointed to administer a particular department.
39 The amendments were explained in the Explanatory Memorandum, Acts Interpretation Amendment Bill 1998 (Cth) in the following terms:
“Item 3 – Section 19
13. The phrase ‘unless the contrary intention appears’ has created problems in relation to Acts that provide for a Minister to delegate his or her powers, one view being that the existence of a power to delegate may evince a relevant contrary intention. Item 3 amends section 19 by deleting the reference to contrary intention to ensure that these problems are not perpetuated.
14. In the Foster decision Spender J recognised that both Cabinet and the Prime Minister have traditionally been able to appoint a Minister or member of the Executive Council to exercise a statutory power vested in another Minister for and on behalf of that other Minister. In particular, His Honour noted that Cabinet or the Prime Minister may make an appointment of that kind where the other Minister is unable to exercise the relevant power through illness, absence or more generally. Section 19 of the Act is being retained to ensure that Cabinet and the Prime Minister retain the powers of appointment recognised in the Foster decision.
Item 4 – Subsection 19A(1)
15. Item 4 amends subsection 19A(1) to provide that a reference to a Minister, whether specific or generic, is taken to be a reference to all Ministers appointed to administer a particular department, that is, all Ministers within the one portfolio. This will allow all Ministers within a portfolio to exercise relevant statutory powers of the portfolio Minister, where appropriate.
16. The reference to ‘contrary intention’ has been retained in section 19A as there is no question of a power of delegation giving rise to a contrary intention for the purposes of that provision.”
40 Against that background, it is apparent that s 19A of the AI Act was amended to ensure that the reference in a provision to a Minister (specific or generic) is taken to be a reference to “all Ministers appointed to administer a particular department, that is, all Ministers within the one portfolio.” Section 19A(1) of the AI Act expressly acknowledges not only that the joint administration of the Attorney-General’s department is possible but, as the Explanatory Memorandum makes clear, the “serious implications for government administration” if such a situation were not permitted.
41 After ss 19 and 19A of the AI Act were amended, the decision of Spender J went on appeal and was overturned: Attorney-General v Foster (1999) 84 FCR 582. The Full Court dealt with s 19 of the AI Act before it was amended and held that:
(1) s 19 of the AI Act was not merely one in aid of interpretation of legislation but had a substantive effect: at [36];
(2) efficient government administration requires that in many circumstances a Minister act through another, and not personally discharge all powers and functions bestowed on the office by statutes: at [37] citing Staughton LJ in R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 at 194 (adopted on appeal in the House of Lords: ([1994] 1 AC 531 at 566) and O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11;
(3) the appointment of two Ministers to administer the Department of State of the Attorney-General, and the Administrative Arrangements Order that the Extradition Act be administered by “a Minister of State administering” that Department, is itself a sufficient indication that the Executive Council contemplated that the exercise of powers vested in the Attorney-General by the Act would devolve to the Minister for Justice: at [40];
(4) ss 22(2) and 23 of the Extradition Act do not indicate a contrary intention which excludes the operation of s 19 of the AI Act in respect of the exercise of power vested in the Attorney-General: at [42];
(5) in determining whether a statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case: at [42] citing Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 at 93 and O'Reilly at 11.
42 In addressing the appeal, the Full Court at [42] made a number of observations about the Extradition Act and its operation. Those observations are applicable as much today as they were eight years ago. First, at different stages of the international extradition procedure, the Extradition Act vests important roles in the Attorney-General. Secondly, there is no express provision in the Extradition Act which either prohibits the delegation of the power or prohibits the appointment by the Attorney-General of another to exercise those powers on the Attorney’s behalf. Accordingly, there is no provision of the Extradition Act which, consistent with s 19A of the AI Act, prohibits the Governor-General making the administrative and executive arrangements set out above.
43 Thirdly, it could not have been expected by Parliament that the Attorney-General personally would exercise each of the powers reposed in the Attorney-General under the Extradition Act in each and every case where extradition is sought from Australia or to Australia: see Lord Greene MR in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563.
44 Finally, the fact that the Law Officers Act 1964 (Cth) gives to the Attorney-General a general power to delegate to the Solicitor-General (s 17(1)) or to the Secretary of the Attorney-General’s Department or “to the person for the time being holding or performing the duties of the office specified in the instrument of delegation” (s 17(2)) all or any of his or her powers and functions under all or any of the laws of the Commonwealth, is further evidence that s 40 of the Extradition Act did not evince a contrary intention. As the Full Court said in Attorney-General v Foster (1999) 84 FCR 582 at [43]:
“That the laws of the Commonwealth permit the delegation of the powers reposed in the Attorney-General under the Extradition Act to others who are not directly answerable to Parliament, lends weight to the conclusion that the nature of the powers reposed in the Attorney-General under the Act need not be exercised personally by the holder of that office.”
45 Although Attorney-General v Foster (1999) 84 FCR 582 was concerned with ss 22(2) and 23 of the Extradition Act and the language of s 40 of the Extradition Act is different, the decision of the Full Court and the principles established by it are directly contrary to the Applicant’s contentions. As explained above, there is nothing to suggest that s 40 of the Extradition Act evinces a contrary intention for the purposes of s 19A of the AI Act. To adopt the Applicant’s construction of the two sections read together would require me to ignore the history and express words of s 19A of the AI Act and the observations of the Full Court in Attorney-General v Foster (1999) 84 FCR 582. There is no occasion to do so.
46 Finally, the Applicant’s contentions are contrary to the decision of the High Court in Re Patterson; ex parte Taylor (2001) 207 CLR 391. In that case, the combined use of the words “only” with the word “personally” in referring to one Minister in s 501 of the Migration Act, read with s 19A of the AI Act, did not prevent the other of the two Ministers administering the Act exercising the power in question. Although that case was concerned with the Migration Act, not the Extradition Act, and s 40 of the Extradition Act was in wholly different terms to s 501 of the Migration Act, having regard to the nature and express words of each provision, a generally similar analysis should be made leading to the same result.
47 As noted earlier, after the decision of Spender J in Foster, s 19 of the AI Act was also amended. The Respondents contend that s 19 of the AI Act is an alternative to s 40 of the Extradition Act which provides an independent and separate justification for the Justice Minister to sign the Request because the administrative arrangements are sufficient to constitute an authorisation of the Justice Minister to act for the Attorney-General.
48 Given the conclusions I have reached about s 19A of the AI Act, it is unnecessary to resolve the application of s 19 of the AI Act. Sections 19 and 19A of the AI Act overlap. Where and how they overlap is neither necessary nor appropriate to resolve in this case. It is sufficient to note that, consistent with the decision of the Full Court in Foster, if for the purposes of s 19 of the AI Act (in its pre-amended form) the Attorney-General can write out an authorisation for another Minister authorising that Minister to exercise the power under ss 22(2) and 23 of the Extradition Act, there can be no doubt that the Governor-General, in this case on the advice of the Prime Minister, can provide such an authorisation exercising his power under s 64 of the Constitution.
49 This ground of review should be dismissed.
Ground B: Bad faith, improper purpose or a breach of natural justice
50 The Applicant’s contention in relation to this ground is not supported by the facts and is contrary to fundamental principles of public international law.
Contention not supported by the facts
51 It is necessary to set out in chronological order the facts as disclosed by the evidence tendered before the Court. The Request was dated 21 June 2007. On 24 July 2007, the Request was heard by the Athens Court of Appeals. Argument concluded on 24 July 2007. The Athens Court of Appeals reserved its decision until 10.00 am on 26 July 2007.
52 The Applicant complains about two communications. He submitted that each communication:
(1) constituted a communication from Australia, through its diplomatic representative in Athens, directly to the Athens Court of Appeals;
(2) was made in bad faith with the intention of influencing the outcome of proceedings in Greece.
The evidence did not support these conclusions.
53 The first communication about which the Applicant complains is an email from the Deputy Head of Mission, Australian Embassy, Athens to “Ms Koletta” whose email address bears the domain name “@justice.gov.gr” (“the First Email”). Counsel for the Respondents submitted that it is open to me to assume that Ms Koletta was part of the Justice Department in Greece. The terms of the First Email are important. It stated:
“…
Sent: Tuesday, July 24, 2007 12:01 PM
Subject: FW: Mokbel – Supplementary Affidavit from Victoria [SEC=CASEWORK-IN-CONFIDENCE]
[SEC=IN-CONFIDENCE:LEGAL]
Dear Ms Koletta
As per our discussion. Please find attached advice from Australian Attorney-General’s concerning dispatch of a supplementary affidavit – which will be forwarded through the diplomatic channel as soon as it is received – which the Council of Judges may wish to consider in their determination of the exercise of their discretion to extradite Mr Mokbel for offences included in the original Extradition Request which may be considered to have been committed in part in Greece.
The affidavit apparently sets out evidence which provides with greater certainty the dates when Mr Mokbel was still in Australia – later than originally thought.
I would be grateful if you brief the Public Prosecutor to petition the Council of Judges for sufficient time for them to receive this affidavit through the diplomatic channel – and their deferral of consideration of this matter until the affidavit is available. The affidavit is set to arrive at the Embassy on 26 July.
Thank you.
…”
(Emphasis added.)
54 The next documentary record relevant to the First Email is an email purportedly sent by a person described as the “Deputy Public Prosecutor of the Court of Appeals from The Public Prosecutor of the Athens Court of Appeals” to “Mr. President of the Athens Court of Appeals” on 24 July 2007 entitled “Forwarding of documents by the Australian Embassy regarding the case of extradition of the Australian citizen {SURNAME} MOKBEL {NAME} ANTONIOS SAJIH” (“the First Supplementary Email”). The First Supplementary Email read:
“REF.: Our document A.P. EKD 1692 FE 5829 dated 12-07-2007
Following our abovementioned relevant document, we are conveying to you the e-mail dated 24-07-2007 which was forwarded to our Service from the Ministry of Justice and we request your actions.”
(Emphasis added).
55 The Applicant contends that the First Email and the First Supplementary Email provide evidence of a communication from the Deputy Head of Mission, Australian Embassy, Athens to the Athens Court of Appeals which was direct and in bad faith. Further, the Applicant contends that the communications are of further significance because they were not in the form prescribed by the Treaty and were not communicated to him prior to the decision of the Athens Court of Appeals in circumstances where the contents “seek … to rebut a possible defence which could have been raised about Mr Mokbel being in a particular place and at a particular time …”.
56 None of those contentions is made out. The First Email from the Deputy Head of Mission, Australian Embassy, Athens did go to an official in the Ministry of Justice in Greece. That was not in dispute. However, the Deputy Head of Mission, Athens did not send the First Email to the Athens Court of Appeals. What happened to it next was a decision for the official in the Greek Ministry of Justice. There is no evidence to determine how or why the First Email went from the official in the Greek Ministry of Justice to the Deputy Public Prosecutor of the Court of Appeals. It could have gone directly or indirectly.
57 Moreover, the express terms of the First Email cannot be ignored. It refers to the fact that a supplementary affidavit is yet to arrive in Greece and when it does it will be forwarded through the diplomatic channels. There was no evidence that any supplementary affidavit did arrive. The second paragraph predicts that when the affidavit arrives it will provide greater certainty about dates. As Counsel for the Respondents submitted, what those dates might be was not identified. Contrary to the Applicant’s submissions, that paragraph did not “rebut a possible defence in the extradition proceeding as to the Applicant being in a particular place at a particular time.” Even if, contrary to the position in Australia, Greek law would take account of a possible defence to the crime or crimes in respect of which extradition is sought, the Applicant knows the relevant facts without the assistance of the Australian Government. The judgment of the hearing before the Athens Court of Appeals records that the Applicant was present at the hearing and led evidence. There was no evidence of a direct communication by the Deputy Head of Mission, Athens to the Athens Court of Appeals. What the recipient of the email did with it was a matter for that recipient.
58 The only evidence of a communication to the Athens Court of Appeals is found in the First Supplementary email – being an email from the Deputy Public Prosecutor of the Court of Appeals which requested the actions of the Athens Court of Appeals. The description of the sender of this email is important. It is a communication which, on its face, is a communication from an officer of the Court itself and there is no basis upon which it can be said that according to Greek law this communication was in any way inappropriate. And it remains important to recognise that what the Athens Court of Appeals did in response to the request made in the email was a matter for it. But while either of these considerations would be sufficient reason to put this aspect of the matter to one side, there is a more fundamental principle that requires that conclusion. That principle is that for an Australian Court to comment on, or intervene in, the manner in which the Greek Ministry of Justice Official dealt with the First Email, or for that matter, how the Athens Court of Appeals conducted the Request hearing, would run directly counter to fundamental principles of public international law.
59 The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41:
“The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign’s own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] 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 [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co. [(1918) 246 U.S. 297, at 304] 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 [[1982] A.C., at 931-932], 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”.
See also Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] – [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J).
60 French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]:
“[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General”: Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts.”
(Emphasis added.)
See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 – 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] –[77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] – [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.
61 The Applicant correctly contended that the First Email was not in a form prescribed by the Treaty but that does not assist him. The First Email was not part of the Request, was not a “supporting document” as prescribed by Art 5 of the Treaty and therefore was not required to be in the form prescribed by Art 6 of the Treaty.
62 I now turn to the second communication about which the Applicant complains - a further email from the Deputy Head of Mission to an official in the Greek Ministry of Justice (“the Second Email”). It was in the following terms:
“…
25/7/2007 02:56 PM
Subject: Response to claims made in Mokbel court hearing that Extradition Request was not legally done by Australia [SEC=UNCLASSIFIED]
…
Dear Ms Koletta,
Hello. Just a quick few lines – which may not be necessary – to address the frivolous claims made in Mokbel’s hearing by the defence counsel that Australia’s Extradition Request was not legally performed.
Responding to questions from journalists in Australia the federal Justice Minister, David Johnston, responded that the government had followed correct legal procedure in seeking extradition. A spokeswoman for Senator Johnston dismissed the claim that the Attorney-General must sign the Extradition Request noting: “both the Attorney-General and the Minister for Justice and Customs have been appointed to administer the Attorney-General’s Department, as such, the Minister for Justice and Customs may exercise the power given to the Attorney-General in section 40 of the Extradition Act, because of the operation of other sections of the Interpretation Act.”
Our colleagues in Attorney General’s Dept have also noted the following:
“The Australian media today reported heavily about claims that Australia’s extradition request for Mokbel is invalid because the request was not signed by the Attorney-General. This claim is incorrect.
While this is essentially a domestic issue for Australia (the Extradition Treaty between Australia and Hellenic Republic does not require that the extradition request be signed by the Attorney-General – although it does stipulate that the request comes through the diplomatic channel – representing as it does a direct and lawful communication from the Head of State and Australian Government). However should the Prosecutor or the Council require Australia can make available a summary of advice and the relevant instruments of appointment that establish that the Minister for Justice and Customs can exercise powers vested in the Attorney-General under the Extradition Act 1988”.
I would be grateful if you could – if necessary or desirable as you see fit – draw this to the attention of the Prosecutor, although I note in his presentation he submitted to the court that the Request was legally valid.
Cheers and all the best.”
(Emphasis added.)
63 As with the First Email, the next documentary record relevant is an email purportedly sent by a person described as the “Deputy Public Prosecutor of the Court of Appeals from the Public Prosecutor of the Athens Court of Appeals” to “Mr. President of the Athens Court of Appeals” on 26 July 2007 entitled “Forwarding of documents by the Australian Embassy regarding the case of extradition of the Australian citizen {SURNAME} MOKBEL {NAME} ANTONIOS SAJIH born 11-08-1965 in Lebanon” (“the Second Supplementary Email”). The Second Supplementary Email read:
“REF.: Our documents A.P. EKD 1692 FE 5829 dated 12-07-2007
Following our abovementioned relevant document, we are conveying to you the e-mail dated 25-07-2007 of the Australian Embassy and we request your actions.”
(Emphasis added.)
64 This documentary trail suffers from the same defects as the First Email and the First Supplementary Email. It provides no evidence of a direct communication by the Deputy Head of Mission, Athens to the Athens Court of Appeals. Whether the Supplementary Emails were sent and their significance, if any, is a matter for the Greek Judicial System. The Deputy Head of Mission, Athens took no step which was inappropriate.
Relief Sought
65 The foregoing reasons deal with the substance of the arguments advanced by the Applicant. They require the conclusion that the application be dismissed. It is as well, however, to go on to say that it is greatly to be doubted that, even if established, the matters urged by the Applicant would found any claim to relief of the kinds claimed. Not only does the Applicant not identify how relief under s 39B of the Judiciary Act (or any associated relief) could be framed in a way that would achieve the practical result of interrupting the extradition process, the difficulties in framing such relief point to more fundamental difficulties in the Applicant’s case. The practical consequence the Applicant sought to achieve is to have the extradition processes being undertaken in the Hellenic Republic brought to an end. The Applicant seeks a variety of relief intended to compel that ultimate end – injunction, prohibition, and mandamus. In addition he seeks declarations though, of course, that relief would have no directly coercive consequence.
66 The fundamental difficulty presented by these claims is that the Applicant points to no public duty which it seeks to enforce and points to no departure from the lawful performance of what is required under the Extradition Act. Rather, he points to matters extraneous to the operation and execution of the Extradition Act and says that, on that account, the Request should be withdrawn.
67 Mandamus would not lie to compel the result sought. The decision to seek extradition had been made and the Request transmitted to the Hellenic Republic before the events of which the Applicant now complains and it has not been suggested that the decision to seek extradition or the Request was not lawfully made. That being so, certiorari would not lie to quash the Request. There is no further act to be performed by the Australian executive (whether required by the Extradition Act or otherwise) which could be made the subject of prohibition.
68 The Applicant has not made good the bases for his claims to relief.
Conclusion and Orders
69 The application will be dismissed and the Applicant will pay the Respondents’ costs of the application, including reserved costs.
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I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. |
Associate:
Dated: 5 October 2007.
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Counsel for the Applicant: |
Mr J D Wilson |
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Solicitor for the Applicant: |
Mirko Bagaric |
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Counsel for the Respondent: |
Mr P J Hanks QC with Mr D J Batt |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
27 September 2007 |
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Date of Judgment: |
5 October 2007 |
