FEDERAL COURT OF AUSTRALIA

Tervonen v Minister for Justice and Customs (No 3)

[2007] FCA 1898

JAN TERVONEN v MINISTER FOR JUSTICE AND CUSTOMS

NSD 168 OF 2007

RARES J

8 NOVEMBER 2007

SYDNEY

THE COURT:

1.                  Declares that the document entitled ‘Notice of Receipt of Extradition Request’ relating to the applicant dated 18 August 2006 and signed by Senator the Honourable Christopher Ellison (the 2006 notice) is not a valid notice under s 16(1) of the Extradition Act 1988 (Cth).

2.                  Declares that the document entitled ‘Amended Notice of Receipt of Extradition Request’ relating to the applicant dated 30 April 2007 and signed by Senator the Honourable David Johnston (the 2007 notice) is not a valid notice under s 16(1) of the Extradition Act.

3.                  Orders in the nature of an order absolute in the first instance for a writ of certiorari to quash the 2006 notice.

4.                  Orders in the nature of an order absolute in the first instance for a writ of certiorari to quash the 2007 notice.

5.                  Orders the respondent to pay the applicant’s costs.

6.                  Grants liberty to the parties to apply.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     In this matter I published reasons for judgment on 6 November 2007 and ordered that the matter stand over to the next day, for argument on the appropriate relief to give effect to my reasons.  This was as a result of discussion during the trial as to what might flow were I to decide as ultimately I did.  The parties have now agreed that I should make orders declaring each of Senator Ellison’s and Senator Johnston’s s 16 notices invalid and quashing them.  They also agreed that Mr Tervonen is entitled to an order for costs.  It is appropriate to make those orders.

2                     Mr Tervonen seeks an order that he be released from custody.  In Knauder v Moore (2002) 127 FCR 327, the Full Court held that a failure to afford a person whose extradition is sought a reasonable time in which to prepare for the conduct of proceedings under s 19 of the Extradition Act 1988 (Cth) in the circumstances of that case entitled the person to orders quashing the warrant issued by the magistrate under s 19(9)(a) and requiring his release.  Mr Tervonen argued that I was bound to follow the result in Knauder 127 FCR 327 and order his immediate release.

3                     In Williams v Minister for Justice and Customs (2007) 157 FCR 286 at 298 [53], Gyles, Allsop and Buchanan JJ held that where a s 16 notice had been declared invalid and set aside, it was unnecessary to make a further declaration that s 19 of the Act did not authorise the commencement of proceedings under that section against Mr Williams or to direct the Attorney-General, pursuant to s 17 of the Act, to direct a relevant magistrate to order the discharge of the recognizances on which bail had been granted to him.  They said:

‘The absence of a valid notice under section 16(1) is obviously fatal to the proceedings before the magistrate.  The discharge of recognisances would necessarily follow. It would be unusual to make an order directed to the Attorney-General such as that sought.  It can be expected that the Attorney-General will abide by the law.  It will be sufficient if liberty is granted to the appellant to apply for any further or other relief that may be necessary to give effect to this judgment.’ 

4                     As I understand it, the Minister formally challenges the correctness of that view, but acknowledges that to the extent that it is relevant it binds me in this matter. 

5                     I am of the opinion that the existence of a notice under s 16(1) is a jurisdictional fact for the purposes of s 19(1)(b).  Any further proceedings, based upon the efficacy of a s 16 notice that a court has found to be invalid, will be based on something that is ‘[a]n administrative decision which involves jurisdictional error [and] is regarded, in law, as no decision at all.’:  Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

6                     Apparently Mr Tervonen is now held in custody pursuant to the order made under s 19(9)(a).  That order is the subject of proceedings in which Gyles J has currently reserved his judgment.  In the circumstances, the s 19(9)(a) order can be regarded as a decision in the category of ‘no decision at all’ because it is based on Senator Johnston’s invalid notice.  The s 19(9)(a) order thus is now no longer a lawful  basis to authorise Mr Tervonen’s continuing detention.  In Attorney-General (Commonwealth) v Breckler (1999) 197 CLR 83 at 108 [36] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed that if the determination of a complaint by an administrative body may be characterised as an activity of an administrative nature, then in the absence of a legislative prescription to the contrary, the determination would be open to collateral review by a court in the course of dealing with an issue properly arising as an element of a justiciable controversy of which the court was seized.  A decision of a magistrate under s 19(9) is an administrative, not judicial, determination:  Pasini v United Mexican States (2002) 209 CLR 246 at 255 [18] per Gleeson CJ, Gaudron, McHugh and Gummow JJ.

7                     Under the Act, a notice under s 16 becomes an indispensable requirement for the continuing detention of a person who has been remanded under s 15 beyond 45 days after his or her remand in custody or on bail.  It is ‘indispensable’ in the sense that even though a notice under s 16(1) may not have issued or been given, the Act clearly provides that a person held on remand under s 15 must be brought before a magistrate in those circumstances to determine whether the remand should continue.  The criterion to which the magistrate is directed to have regard under s 17(2) is whether he or she is satisfied that a notice under s 16(1) is likely to be given within a particular period that is reasonable in all the circumstances.  And if he or she is not so satisfied, the magistrate must order the release of the person from custody or the discharge of recognizances on which bail was granted to him or her, as appropriate.

8                     In my opinion, once I make orders which have the effect of declaring the notices under s 16(1) the subject of the proceedings to be invalid, as a matter of law it will be the case that those notices will no longer provide a basis to support continuing reliance on administrative decisions under the Act made on the assumption of their validity.

9                     However, the power to order release exercised in Knauder 127 FCR 327 arose under s 21(2)(b)(i) of the Act.  In my opinion, I have no equivalent power in the proceedings as constituted before me.  These proceedings were brought pursuant to s 39B(1A) of the Judiciary Act 1903 (Cth).  Mr Tervonen sought, in effect, the exercise of the judicial power of the Commonwealth deriving from 75(v) of the Constitution with respect to the conduct of two ministers in issuing notices pursuant to s 16 of the Extradition Act.  The proceedings do not concern any questions that may arise under a review pursuant to s 21 of that Act.  Nor do they involve directly the proceedings under s 19, save to the extent that my decision has determined that there is no currently valid notice under s 16 which would justify any proceedings under s 19, or Mr Tervonen’s continuing detention pursuant to a decision under s 19(9) that he be committed to prison to await surrender or release in accordance with the Act.

10                  I reject Mr Tervonen’s submission that I have power to order his release in these proceedings pursuant to Knauder 127 FCR 327.  Moreover, there are further difficulties which immediately present themselves to taking that course.  First, his gaoler or the person in whose custody he is, has not been served with notice of this application.  Secondly, the instrument (e.g. the warrant under s 19(9)) under which his detention purportedly has been authorised is not before the Court.  Thirdly, other persons who may be affected, including Finland as the country seeking his extradition, have not been served.  Nor has Mr Tervonen identified any source of power in the proceedings as presently constituted, equivalent to s 21(2)(b)(i) of the Act, by which I could order his release.

11                  In those circumstances I am not satisfied that it is appropriate to make an order directly that Mr Tervonen be released in the same way as s 21(2)(b)(i) of the Act contemplates may be ordered by a court hearing a review from a decision under s 19.

12                  Following argument over the course of yesterday and today, Mr Tervonen does not now seek to pursue the suggestion raised at the hearing that an order in the form of a writ of mandamus or prohibition issue to provide consequential relief in addition to the other orders proposed.  I referred to this in my primary reasons:  Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 at [214(c)].  Instead, Mr Tervonen now relies on the statement of the Full Court in Williams 157 FCR at 298 [53] which I have quoted above.  He does not seek any further order against the Attorney-General or the Minister at this time except liberty to apply for any further or other relief that might be necessary to give effect to my judgment. 

13                  I am satisfied that it is appropriate that I should grant liberty to the parties to apply for that purpose. 

14                  After I published my reasons for judgment on 6 November 2007 indicating that an order for costs should be made in favour of Mr Tervonen, Mr Ash, who appeared pursuant to O 80 of the Federal Court Rules 2001 (Cth), indicated that he had not charged any fee and would not receive any benefit from such an order.  I should record that the assistance Mr Ash provided for and at the hearing and subsequently has been substantial, without in any way wishing to diminish the assistance which I received from counsel for the Minister (Ms Morgan at the hearing and Mr Beech-Jones SC during the argument on the form of relief).

15                  Without members of the bar being willing to accept the conduct of matters pursuant to O 80 or otherwise acting pro bono, the courts would be deprived of a very significant means of assistance in the proper administration of justice.  I am confident these proceedings could not have been conducted with the high level of efficiency and intellectual application that they have been without the assistance of counsel for both parties. 

Associate:

Dated:         5 December 2007