FEDERAL COURT OF AUSTRALIA
Marku v Republic of Albania [2012] FCA 804
| IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
| AND: | First Respondent DEPUTY CHIEF MAGISTRATE OF VICTORIA Second Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The further hearing of the proceeding be adjourned to 13 August 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1242 of 2011 |
| BETWEEN: | VALENTIN MARKU Applicant |
| AND: | REPUBLIC OF ALBANIA Respondent |
| JUDGE: | DODDS-STREETON J |
| DATE OF ORDER: | 31 JUly 2012 |
| WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The further hearing of the proceeding be adjourned to 13 August 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | vid 1241 of 2011 |
| BETWEEN: | VALENTIN MARKU Applicant |
| AND: | REPUBLIC OF ALBANIA First Respondent DEPUTY CHIEF MAGISTRATE OF VICTORIA Second Respondent |
| JUDGE: | DODDS-STREETON J |
| DATE: | 31 JULY 2012 |
| PLACE: | MELBOURNE |
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 1242 OF 2011 |
| BETWEEN: | VALENTIN MARKU Applicant |
| AND: | REPUBLIC OF ALBANIA First Respondent DEPUTY CHIEF MAGISTRATE OF VICTORIA Second Respondent |
| JUDGE: | DODDS-STREETON J |
| DATE: | 31 JULY 2012 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
INtroduction
1 The principal issues for determination in these applications are:
(a) whether, in proceedings under s 19 of the Extradition Act 1988 (Cth) (“the Act”), a magistrate (“s 19 magistrate”) may determine a claim by the person on remand that he or she is a victim of mistaken identity and is not the person convicted of extradition offences evidenced in the authenticated documents referred to in s 19(3) of the Act, who is sought by the extradition country; and
(b) whether, if the s 19 magistrate may determine identity, identity is a jurisdictional fact.
2 For the reasons that follow, in my opinion, the s 19 magistrate may not determine whether the person on remand is the person convicted of the relevant offences, and identity is not a jurisdictional fact.
3 The applicant, Valentin Marku, was arrested pursuant to a provisional arrest warrant dated 3 March 2009 issued under s 12(1) of the Act. The warrant, applied for on behalf of the respondent, the Republic of Albania, was for the arrest of “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)”.
4 On 11 March 2009, the applicant was arrested, brought before a magistrate and remanded in custody under s 15 of the Act. On 28 May 2010, a magistrate, pursuant to s 19(9) of the Act, issued a warrant committing “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” to prison to await surrender. The applicant contends that although his name is Valentin Marku, he is not Agostin Lleshaj, the person whose extradition is sought by the Republic of Albania, and that as a victim of mistaken identity, he has been deprived of the opportunity afforded by s 19 of the Act, if properly construed, to lead evidence of his identity.
5 The Republic of Albania (which is the first respondent in proceeding VID 1241 of 2011 and the respondent in proceeding VID 1242 of 2011 hereafter referred to as “the respondent”) submits that a s 19 magistrate is not empowered to determine the question of identity.
6 The applicant is, and has been for some time, in custody in Victoria serving a sentence for certain local offences. He is not due for release until February 2013.
7 Before the court are two separate questions which are to be determined prior to the other issues that arise in two related proceedings. The first separate question requires the court to determine whether it is the function of a s 19 magistrate to determine whether the person on remand referred to in s 19(1)(a) of the Act is the person convicted of the offences evidenced in the authenticated documents referred to in s 19(3) of the Act (“the identity question”).
8 The first separate question is potentially dispositive of the second separate question, which is whether the identity question is a jurisdictional fact for the purposes of s 19. If the answer to the first question is “no”, then it necessarily follows that the identity question is not a jurisdictional fact under s 19 of the Act.
9 If, however, the answer to the first question is “yes”, it will be necessary to determine, as a second separate question, whether the identity question is a jurisdictional fact or merely a matter for assessment by the magistrate. The significance of the second separate question relates to whether the applicant, if successful in relation to the first separate question, could obtain a merits review of the decision of the s 19 magistrate based on unrestricted material. The s 19 magistrate held that it was not his function to determine the identity question, although the applicant denied that he was the person convicted of the offences evidenced in the relevant authenticated documents.
10 If identity is properly a matter for determination by the s 19 magistrate, but not a jurisdictional fact, the court reviewing the decision under s 21 of the Act, would be confined to the material before the magistrate.
11 If, however, the identity question is a jurisdictional fact that the magistrate failed to consider, this court could, in a concurrent common law judicial review, consider the question on the merits, without being confined to the material before the s 19 magistrate.
12 The applicant initially filed a notice of appeal under s 21 of the Act in the Supreme Court of Victoria (“the appeal proceeding”) from the order of the Magistrates’ Court of Victoria made on 29 May 2010 under s 19(9) of the Act, that the applicant, being eligible for surrender to Albania, be committed to prison to await either surrender under a surrender warrant, or release.
13 The notice of appeal stated the following questions of law and grounds of appeal:
QUESTIONS OF LAW
1. Was the learned Magistrate entitled to consider the issue of identity of the individual sought to be extradited by the Respondent / Applicant?
2. What was the correct test to be applied by the learned Magistrate in assessing that the prisoner “was the identical person” sought by the State making the requisition?
3. Was there sufficient admissible evidence or material to entitle the learned Magistrate to be “satisfied” that the Respondent / Appellant was Agostin Lleshaj?
GROUNDS OF APPEAL
1. The learned Magistrate erred in determining that it was not part of his function during a hearing pursuant to s.19 of the Extradition Act 1988, to determine the identity of the person sought to be extradited.
2. The learned Magistrate erred by applying the wrong standard in order to determine the Appellant / Respondent’s eligibility for extradition.
3. The learned Magistrate erred by failing to apply the identification requirements of the relevant treaty.
4. The learned Magistrate erred in determining that Valentin Marku was an extraditable person.
5. The learned Magistrate erred in his treatment of uncontradicted evidence disputing the identification of Valentin Marku as Agostin Lleshaj.
6. The learned Magistrate erred by relying upon materials produced by the Republic of Albania in the extradition proceedings when the veracity of those materials had not been accepted by the Australian Government.
7. The learned Magistrate erred in the manner by which he dealt with the evidence disputing the identification asserted by the Republic of Albania.
8. That the learned Magistrate’s “views” and his being “satisfied” that the Respondent was Agostin Lleshaj was against the weight of the evidence and materials presented.
14 On 9 August 2011, the applicant issued a related common law proceeding in the Supreme Court of Victoria by originating motion (“the common law proceeding”) in order to address the limitations of an appeal under s 21 of the Act.
15 The originating motion in the common law proceeding sought the following relief:
THE PLAINTIFF SEEKS the following relief or remedy:
A. Orders setting aside the order by warrant purportedly made on 28 May 2010 by the Second Defendant (Peter Henry LAURITSEN, Deputy Chief Magistrate of the State of Victoria) (the magistrate) under section 19(9) of the Extradition Act 1988 (Cth), and directing the making of an order under section 19(10) instead.
B. A direction under section 11(1)(c) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) that rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2005 is not to be applied to this proceeding.
C. Alternatively to B, an order under rule 3.02 of the Supreme Court (General Civil Procedure) Rules 2005, extending the time fixed by rule 56.02 for the commencement of this proceeding.
D. Such further or other orders as the Court sees fit.
16 The following grounds were stated:
1. As at 28 May 2010:
(1) the First Defendant (Albania) was an "extradition country" seeking the surrender of the Plaintiff in relation to two "extradition offences" (the extradition offences), in both cases within the meaning of the Extradition Act 1988 (Cth) (the Act);
Particulars
The two extradition offences were (1) intentional homicide and (2) attempted homicide, in both cases contrary to the law of Albania. On 16 December 1994, a man named Lleshaj was convicted of the extradition offences in Albania. He was sentenced to life imprisonment. On appeal, his sentence was reduced to 25 years imprisonment. Lleshaj escaped from Albanian custody in about 1997.
(2) the magistrate was conducting proceedings under section 19 of the Act (the section 19 proceedings) to determine whether the Plaintiff was eligible for surrender in respect of those extradition offences: and
(3) the Plaintiff was:
(a) a person on remand under section 15 of the Act, within the meaning of section 19(1)(a) of the Act; and therefore:
(b) for the purposes of section 19 of the Act, "the person" within the meaning of that expression used elsewhere throughout the section.
2. The Plaintiff is not the man who was convicted of the extradition offences.
3. In consequence:
(a) neither of the extradition offences is or ever has been an offence of which the Plaintiff has been convicted, within the meaning of section 19(3)(b) of the Act; and therefore:
(b) no "supporting documents", within the meaning of sections 19(3)(b) and therefore 19(2)(a) of the Act, were (or could possibly have been) produced to the magistrate at the section 19 proceedings in relation to the extradition offences; and therefore:
(c) by virtue of section 19(2) of the Act, the Plaintiff was not (and could not possibly have been) eligible for surrender in relation to the extradition offences; and therefore:
(d) the magistrate had no jurisdiction under section 19 of the Act to determine that the Plaintiff was eligible for surrender in relation to the extradition offences; and therefore:
(e) the magistrate had no jurisdiction to make orders or take any steps under section 19(9) o f the Act.
4. On 28 May 2010, without jurisdiction to do so, the magistrate:
(a) purported to determine under section 19 of the Act that the Plaintiff was eligible for surrender in respect of the extradition offences; and
(b) purported to make an order by warrant under section 19(9) of the Act, committing the Plaintiff to prison to await surrender.
5. By reason of the matters pleaded in paragraphs 1-3 above, the magistrate was obliged by law to make an order under section 19(10) of the Act, that the Plaintiff be released.
17 The appeal proceeding and the common law proceeding were transferred to the Federal Court on 21 September 2011 by order of Dixon J, on the motion of the applicant, which was unopposed.
18 On 2 December 2011, in the appeal proceeding, I ordered that the following question be decided separately from and before the trial of the remaining questions:
Whether the Magistrate was correct in holding that it was not part of his function in conducting the proceeding under s 19 of the Extradition Act 1988 (Cth) to determine the identity question.
19 The “identity question” was defined as “the question whether the person on remand is the person convicted of the offences evidenced in the authenticated documents”.
20 On 2 December 2011, I ordered that the following question be decided separately from and before the trial of the remaining questions:
Whether in these proceedings for judicial review of the magistrate’s determination made under s 19 of the Extradition Act 1988 (Cth), the identity question is a question of jurisdictional fact determinable by this Court.
21 In the common law proceeding, the identity question was again defined as “whether the person on remand is the person convicted of the offences evidenced in the authenticated documents”.
22 I fixed the hearing of argument in respect of the separate question for 8 May 2012.
23 By notice of motion filed on 3 May 2012, the applicant sought to amend the originating motion in the common law proceeding by inserting new paragraphs 1A and 1B as follows:
1A. At no time had the Attorney-General (Cth) given a notice under section 16(1) of the Act in respect of the Plaintiff, within the meaning of section 19(1)(b) or at all.
Particulars
In 2009, the then Minister for Home Affairs (Robert Debus) gave a notice in respect of the man named Lleshaj. (The notice is dated the 14th day of a month in 2009 - the month is handwritten illegibly). The Plaintiff is not the man named Lleshaj.
1B. In consequence, the magistrate had no jurisdiction to conduct proceedings in relation to the Plaintiff under section 19(1) of the Act, or therefore to make orders or to take any steps under section 19(9).
24 The notice of motion seeking leave to amend was returnable on 8 May 2012. By consent, I ordered the notice of motion to be stood over until the delivery of judgment on the separate questions.
sUBMISSIONS AND MATERIALS
25 The submissions filed were as follows:
(1) the applicant’s outline of submissions dated 7 February 2012 in the appeal proceeding;
(2) the applicant’s outline of submissions dated 7 February 2012 in the common law proceeding;
(3) the respondent’s outline of submissions dated 6 March 2012 in the appeal proceeding; and
(4) the respondent’s outline of submissions dated 6 March 2012 in the common law proceeding.
bACKGROUND
26 On 16 December 1994, in the District Court of Mirdite in Albania, Agostin Lleshaj was convicted of intentional homicide and attempted homicide for shooting and killing one neighbour and shooting and wounding another, contrary to the provisions of the Albanian Penal Code. Agostin Lleshaj was sentenced to life imprisonment. On 5 April 1995, he appealed to the Court of Cassation in Tirana, Albania, which allowed the appeal and substituted a sentence of imprisonment for 25 years.
27 During 1997, Agostin Lleshaj escaped from prison in Albania, having served three years and one month, with 21 years and 11 months of his sentence still to serve.
28 On 18 April 1998, a man entered Australia travelling on a false passport in the name of “Bujar Hasani”. He subsequently advised the relevant Commonwealth department that his name was “Valentin Marku” and was, in due course, granted a Protection Visa and became an Australian citizen.
29 On 3 March 2009, Magistrate Reynolds of the Magistrates’ Court of Victoria issued a warrant for the arrest of “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” under s 12(1) of the Act.
30 The warrant stated that an application had been made in the statutory form on behalf of the Republic of Albania, an extradition country, for the issue of the warrant. The warrant further stated:
I am satisfied on the basis of the information given by the affidavit annexed to that application and marked “A”, that Agostin LlesHaj (also known as Agustin Lleshi and Valentin Marku) is an extraditable person for the purposes of the Extradition Act 1988 in relation to the extradition country;
31 The application for a provisional arrest warrant dated 3 March 2009 made by Detective Senior Constable Gassner of Victoria Police, on behalf of the Republic of Albania under s 12(1) of the Act for the arrest of “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku)” attached an affidavit stated to contain information that he was an extraditable person for the purposes of the Act.
32 Detective Senior Constable Gassner, in his affidavit sworn on 3 March 2009 stated, inter alia, that “(xi) Agostin Lleshaj is also known as Agustin Lleshi and Valentin Marku”. Detective Senior Constable Gassner deposed that he arrested Mr Marku under the name Valentin Marku on 13 March 2007 on certain charges, and took his fingerprints.
33 Detective Senior Constable Gassner deposed that on 11 February 2009, he obtained a set of fingerprints of “Agostin Lleshaj” from Red Interpol Alert provided by the Republic of Albania, and on 13 February 2009 provided the set of fingerprints to a fingerprint expert at Victoria Police who later concluded that, on a comparison of their fingerprints, Valentin Marku and Agostin Lleshaj were the same person and there was no doubt that Valentin Marku was Agostin Lleshaj, the subject of Albania’s extradition request.
34 Detective Senior Constable Gassner also referred to his comparison of photographs of Lleshaj and Marku and opined that they were one and the same person.
Warrant under s 19(9) of the Act
35 On 28 May 2010, Peter Lauritsen, Deputy Chief Magistrate of the State of Victoria, issued a warrant under s 19(9) of the Act ordering committal to prison of “Agostin Lleshaj (also known as Agustin Lleshi and Valentin Marku) to await surrender”.
Reasons of Deputy Chief Magistrate
36 Deputy Chief Magistrate Lauritsen, in his reasons for decision dated 28 May 2010, set out the factual background. His Honour accepted Albania’s submission that it was not the s 19 magistrate’s function to assess or determine whether the respondent to the application was the person requested by the extradition country. His Honour concluded that although the Attorney-General must be satisfied as to identity under s 22, and identity might be relevant at stages of the extradition process under s 12 and s 15 of the Act, it could not be reviewed under s 19.
37 His Honour relied, in that context, on Harris v Attorney General (Cth) (1994) 52 FCR 386 (“Harris”) (at 389) and Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (“Kainhofer”), while acknowledging potentially inconsistent dicta of the Full Federal Court in Federal Republic of Germany v Parker (1998) 84 FCR 323 (“Parker”) and Sundberg J in Von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529 (“Von Arnim”) at [14].
38 His Honour observed that it ran “against the grain” that he could not determine the issue of identity, which in this case had been left by the parties to the s 19 stage and had not been determined on proper materials beforehand. He nevertheless concluded that his task under s 19 was administrative, rather than judicial, and was narrowly confined. Nor could the concept of procedural fairness or natural justice expand the power.
39 His Honour expressed a view about (rather than determining) the identity question. He considered that he could be satisfied that the respondent to the application was Agostin Lleshaj.
Relevant legislation
40 Section 3 of the Act provides:
Principal objects of Act
The principal objects of this Act are:
(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.
41 Section 6 of the Act provides:
Meaning of extraditable person
Where:
(a) either:
(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b) the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.
42 Section 12 of the Act provides:
Provisional arrest warrants
(1) Where:
(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person; and
(b) the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate shall issue a warrant, in the statutory form, for the arrest of the person.
(2) The magistrate shall forthwith send to the Attorney-General a report stating that the magistrate has issued the warrant, together with a copy of the affidavit.
(3) Where:
(a) the Attorney-General has received the report under subsection (2) or has otherwise become aware of the issue of the warrant;
(b) the person has not been arrested under the warrant; and
(c) either:
(i) the Attorney-General decides not to issue a notice under subsection 16(1) in relation to the person; or
(ii) the Attorney-General considers for any other reason that the warrant should be cancelled;
the Attorney-General shall, by notice in writing in the statutory form, direct a magistrate to cancel the warrant.
43 Section 15(1) and (2) of the Act provides:
Remand
(1) A person who is arrested under a provisional arrest warrant shall be brought as soon as practicable before a magistrate in the State or Territory in which the person is arrested.
(2) The person shall be remanded by a magistrate in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.
44 Section 16 of the Act provides:
Notice by Attorney-General
(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(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; or
(b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.
(3) As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later:
(a) a copy of the notice; and
(b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
45 Section 19 of the Act provides:
Determination of eligibility for surrender
(1) Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate;
(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents—those documents have been produced to the magistrate;
(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3) In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused—a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
(b) if the offence is an offence of which the person has been convicted—such duly authenticated documents as provide evidence of:
(i) the conviction;
(ii) the sentence imposed or the intention to impose a sentence; and
(iii) the extent to which a sentence imposed has not been carried out; and
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.
(4) Where, in the proceedings:
(a) a document or documents containing a deficiency or deficiencies of relevance to the proceedings is or are produced; and
(b) the magistrate considers the deficiency or deficiencies to be of a minor nature;
the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies to be remedied.
(5) In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
(6) Subject to subsection (5), any document that is duly authenticated is admissible in the proceedings.
(7) A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if:
(a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and
(b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal:
(i) in any case—of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or
(ii) where the extradition country is a colony, territory or protectorate—of the person administering the Government of that country or of any person administering a Department of the Government of that country.
(7A) Subsection (7) has effect in spite of any limitation, condition, exception or qualification under subsection 11(1), (1A) or (3).
(8) Nothing in subsection (6) prevents the proof of any matter or the admission of any document in the proceedings in accordance with any other law of the Commonwealth or any law of a State or Territory.
(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:
(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5);
(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21(1); and
(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.
(10) Where, in the proceedings, the magistrate determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate shall:
(a) order that the person be released; and
(b) advise the Attorney-General in writing of the order and of the magistrate’s reasons for determining that the person is not eligible for surrender.
46 Section 21 of the Act provides:
Review of magistrate’s order
(1) Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:
(a) in the case of an order under subsection 19(9)—the person; or
(b) in the case of an order under subsection 19(10)—the extradition country;
may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.
(2) The Court may, by order:
(a) confirm the order of the magistrate; or
(b) quash the order and direct a magistrate to:
(i) in the case of an order under subsection 19(9)—order the release of the person; or
(ii) in the case of an order under subsection 19(10)—order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5).
(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.
(4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.
(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.
(6) Where the person or the extradition country:
(a) applies under subsection (1) for a review of an order;
(b) appeals under subsection (3) against an order made on that review; or
(c) appeals to the High Court against an order made on that appeal;
the following provisions have effect:
(d) the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;
(e) if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released—the court to which the application or appeal is made may order the arrest of the person;
(f) if:
(i) because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or
(ii) the person has been arrested under an order made under paragraph (e);
the court to which the application or appeal is made may:
(iii) order that the person be kept in such custody as the court directs; or
(iv) if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;
until the review has been conducted or the appeal has been heard;
(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences—the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.
47 Section 22 of the Act provides:
Surrender determination by Attorney-General
(1) In this section:
eligible person means a person who has been committed to prison:
(a) by order of a magistrate made under section 18; or
(b) by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.
qualifying extradition offence, in relation to an eligible person, means any extradition offence:
(a) if paragraph (a) of the definition of eligible person applies—in relation to which the person consented in accordance with section 18; or
(b) if paragraph (b) of the definition of eligible person applies—in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).
(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence;
(b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;
(c) where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:
(i) the person will not be tried for the offence;
(ii) if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii) if the death penalty is imposed on the person, it will not be carried out;
(d) the extradition country concerned has given a speciality assurance in relation to the person;
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances—the Attorney-General is satisfied:
(iii) where subparagraph (i) applies—that the circumstances do not exist; or
(iv) where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
(4) For the purposes of paragraph (3)(d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of:
(a) a provision of the law of the country;
(b) a provision of an extradition treaty in relation to the country; or
(c) an undertaking given by the country to Australia;
the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country;
(d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender other than:
(i) any surrender offence;
(ii) any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence;
(iii) any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or
(e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person’s surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered.
(5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person.
Relevant authorities
48 In Harris (at 389) the court identified the following four-stage process in extradition proceedings:
(1) commencement by issue of a provisional arrest warrant under s 12(1) or a notice under s 16(1);
(2) the appearance before a magistrate (where the person would be remanded in custody or bailed);
(3) section 19 proceedings; and
(4) an executive determination that the person be surrendered.
49 In Kainhofer, the plurality (Brennan CJ, Dawson and McHugh JJ) set out a “brief conspectus of the Act” (at 533-538) which, given the centrality of Kainhofer to this case, I set out in full as follows:
Section 3 of the Act states its principal objects to be the codification of the law “relating to the extradition of persons from Australia to extradition countries and New Zealand”, the facilitation of the making of requests by Australia to other countries for extradition and the enabling of Australia to carry out its obligations under extradition treaties. The Republic of Austria is an extradition country. In construing the Act in conformity with its declared objects, terms which relate to the criminal procedure of other countries should not be so interpreted as to confine the reach of the Act to cases in which a step in the foreign procedure accords precisely with a step in the procedure of Australian courts.
When an extradition country seeks the extradition of a person from Australia, it must invoke the powers of a magistrate under s 12(1) of the Act and of the Attorney-General under s 16 of the Act. Under s 12(1), an application, in statutory form, must be made to a magistrate for the issue of a warrant for the arrest of that person. The form of application for a warrant of arrest (form 4) prescribes that an affidavit be annexed setting out information showing that the person is "an extraditable person for the purposes of that Act in relation to" the country seeking extradition. The term "extraditable person" is defined by s 6 of the Act:
“Where:
(a) either:
(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b) the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country."
If the magistrate is satisfied, on the basis of information given by the affidavit, that the person is an extraditable person in relation to the extradition country, the magistrate is required to issue a warrant for the arrest of the person and to send forthwith to the Attorney-General a report of the issue of the warrant together with a copy of the affidavit (s 12(1)(b),(2)).
The Attorney-General’s powers are enlivened by the receipt of an extradition request (s 16(1)). The action to be taken by the Attorney-General if extradition is to proceed is the issuing of a written notice directed to a magistrate stating that the request has been received. Section 16(2) prescribes the conditions governing the Attorney-General's power to give the notice (hereafter the "s 16 notice"). That sub-section provides:
"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; or
(b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought."
The Attorney-General may receive an extradition request either before or after the person whose extradition is sought is arrested pursuant to the magistrate's warrant. If the Attorney-General decides before the arrest not to issue a s 16 notice, he directs the magistrate to cancel the warrant (s 12(3)). But if the person has been arrested under the warrant and is remanded in custody or on bail, as provided for by s 15, and the Attorney-General decides not to issue a s 16 notice, he directs the magistrate to release the person from custody or discharge the recognisances on which bail was granted (s 17(1)). Where the Attorney-General issues a s 16 notice and the person has been arrested pursuant to the magistrate's warrant and has been remanded either in custody or on bail, the extradition procedure follows one of two paths: either the person consents to being surrendered under s 18 or proceedings are conducted by a magistrate under s 19.
Where the person consents to being surrendered and the procedure prescribed by s 18 is followed, a warrant is issued committing that person to prison to await surrender or release pursuant to a further determination by the Attorney-General under s 22. Where the person does not consent, he is remanded in custody or on bail pending the conduct of proceedings under s 19. The function of a magistrate who conducts proceedings under s 19 (hereafter a "s 19 magistrate") is in issue in this appeal. Section 19 provides, inter alia, as follows:
"(1) Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate;
(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate;
(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3) In paragraph (2)(a), 'supporting documents', in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
(b) if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of:
(i) the conviction;
(ii) the sentence imposed or the intention to impose a sentence; and
(iii) the extent to which a sentence imposed has not been carried out; and
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence."
Where the s 19 magistrate determines that the person is eligible for surrender to the extradition country in relation to one or more extradition offences, a warrant is issued committing the person to prison "to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5)" (s 19(9)) - that is, surrender or release pursuant to a determination by the Attorney-General under s 22. If the s 19 magistrate determines that the person is not eligible for surrender, the person is released and the Attorney-General is notified (s 19(10)). Provision is made by s 21 for judicial review of the s 19 magistrate's order. This was the provision which conferred the jurisdiction exercised by White J at first instance.
A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied. Then consideration must be given to the compliance of the supporting documents with the requirements of sub-s (2)(a) and (b). The character of "the conduct of the person constituting the offence ... or equivalent conduct" must be ascertained under sub-s (2)(c). And, finally, the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence: sub-s (2)(d). The term "extradition objection" is defined by s 7.
When a person has been committed to prison pursuant to a magistrate's determination under s 19(9), that person becomes an "eligible person" within the definition of that term in s 22(1) and is eligible for surrender. As soon as is reasonably practicable after the eligible person's committal, the Attorney-General is required by s 22(2) to "determine whether the person is to be surrendered". The Attorney-General is authorised to issue a surrender warrant only if the conditions prescribed by s 22(3) are satisfied. These conditions include:
"(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence;"
and
"(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence."
If any of the conditions prescribed by s 22(3) is not satisfied, the Attorney-General orders the release of the person.
(footnotes omitted)
50 In Kainhofer, the High Court allowed an appeal from the decision of the Full Federal Court. The Full Court quashed the order of a s 19 magistrate, who found that the respondent, Ms Kainhofer, was eligible for surrender to Austria, the extradition country, in relation to four alleged offences and committed her to prison to await the Attorney-General’s decision whether to surrender or release her. Ms Kainhofer contended that she was not “accused” of any of the four offences.
51 The Full Court found that the overriding impression was that the case against Ms Kainhofer in Austria had not proceeded beyond the investigation stage. It held that the magistrate’s decision could not have been properly made unless he were satisfied, in accordance with s 19(2)(a) and (3)(a) of the Act, that the supporting documents provided for Ms Kainhofer’s arrest as a person accused of the offences to which the warrant referred (at 533).
52 On appeal, the High Court unanimously held that the approach of the Full Court was based on an erroneous construction of s 19 in the context of the Act.
53 The plurality (Brennan CJ, Dawson and McHugh JJ) set out the “brief conspectus of the Act” set out above.
54 The plurality then stated (at 538):
No person is liable to be taken into custody under the Act unless a magistrate is satisfied, on the basis of the information contained in the affidavit supporting the application for the arrest of that person, that the person is an extraditable person. But the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person. The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature. They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.
55 The plurality (at 538) acknowledged that the same or similar issues could arise for independent determination by the respective repositories of powers where the same or similar issue conditions applied to the exercise of their powers (eg, whether there is an extradition objection is considered by the Attorney-General in relation to a s 16 notice, the s 19 magistrate and again by the Attorney-General under s 22(3)). Their Honours made clear that such bodies always considered the relevant issue independently, rather than reviewing the decision made by another repository of power.
56 The plurality stated (at 538-540):
The question whether a person is accused of having committed an offence in relation to which a warrant for the person's arrest has been issued by an extradition country is addressed by a magistrate under s 12(1) and by the Attorney-General under s 16 in considering whether the person is an extraditable person. The state of mind which is formed on that issue by those officers is not reviewable by a s 19 magistrate. Of course, prohibition or mandamus may go to an officer of the Commonwealth who exercises power under the Act but the amenability of decisions under ss 12(1) and 16 to judicial review does not expose those decisions to review by a magistrate who conducts administrative proceedings under s 19. Nor does sub-s (2)(a) in conjunction with sub-s (3)(a) of s 19 make the accusation of the person whose surrender is sought a condition affecting any power conferred by that section. The s 19 magistrate is neither required nor authorised to determine the issue whether that person is an extraditable person.
The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16.
The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the "supporting documents in relation to the offence" produced to the magistrate and the description of "supporting documents" in sub-s (3). The "offence" referred to in sub-s (2)(a) is the offence referred to in sub-s (1), namely, "the extradition offence or extradition offences for which surrender of the person is sought by the extradition country". Given that the person is an extraditable person, "the offence" in s 19(2)(a) must be taken to be either an offence "that the person is accused of having committed" or an offence of which the "person has been convicted". The introductory words of sub-s (3)(a) and (b) merely direct the s 19 magistrate to the relevant description to be applied to the supporting documents in the case of the particular extraditable person who is the subject of the s 19 proceedings. The relevant direction is obtained by the s 19 magistrate by reference to whatever material is produced. If that material does not include supporting documents that answer one of the categories of documents described in sub-s (3), the requirement of sub-s (2)(a) is not satisfied; if there be supporting documents that answer the description in one of those categories, the requirement of sub-s (2)(a) is satisfied.
In the present case, the only issue for determination under s 19(2)(a) was whether the document produced was a duly authenticated warrant or copy warrant issued by the Republic of Austria for the arrest of the respondent for an extradition offence for which the surrender of the respondent was sought by the Republic of Austria. That issue did not require a finding as to whether the respondent was a person "accused".
It follows that the Federal Court was in error in considering whether the s 19 magistrate could properly have found that the respondent had been "accused" of any of the four offences in relation to which the magistrate held the respondent to be eligible for surrender. It is unnecessary to decide whether the Federal Court was itself in error in the meaning which it attributed to "accused" or in the effect which it attributed to the warrant for the arrest of the respondent issued by the Salzburg State Court in the Republic of Austria. It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.
57 Toohey J agreed with the plurality but delivered a separate judgment in which he stated (at 541):
As their Honours conclude, in reaching a decision as to a person's eligibility for surrender under s 19 of the Act, a magistrate is not required to determine whether the person is an "extraditable person" within s 6 of the Act. A determination of that question only arises when, as a first step in the extradition process, a magistrate is called upon to issue a provisional arrest warrant under s 12 and when the Attorney-General has given notice pursuant to s 16 that an extradition request from an extradition country has been received.
58 Toohey J noted that the scope for challenging a decision of the s 19 magistrate was very limited and (at 541) stated that:
The respondent argued that only if she was "accused" could the magistrate determine that the requirements of s 19(3)(a) had been met and that therefore whether she was "accused" was necessarily a matter to be determined by the magistrate. But, as their Honours show, this is to read too much into s 19. The introductory words in s 19(3)(a) and (b) are classificatory rather than having an operative effect. The requirement that a person is an extraditable person, involving as it does a conclusion that the person is "accused" of having committed an offence against the law of a country, is spelled out in ss 12 and 16 but not in s 19. In those former sections no provision is made for judicial review and as already noted the AD(JR) Act has no application to a decision made under those sections. The magistrate's function under s 12 is limited in so far as he or she is required to be satisfied "on the basis of information given by affidavit" that the person is an extraditable person.
It has been said that a feature of the Act is "a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion". The comment has force.
59 Gummow J also allowed the appeal. His Honour stated (at 552):
Both the Attorney-General and the magistrate, when respectively giving notice under s 16 and issuing a provisional arrest warrant under s 12, were obliged to consider whether the person was an extraditable person in relation to the extradition country. That requirement, spelled out in the text of ss 12 and 16, is not repeated in s 19(2).
There must also be produced to the magistrate "supporting documents in relation to the offence" (s 19(2)(a)) and such other documents as required to satisfy any limitation, condition, exception or qualification subject to which the Act applies in relation to the extradition country (s 19(2)(b)); nothing turns upon par (b) for the purposes of this appeal. The term used in s 19(2)(a), "supporting documents", has the meaning spelled out in s 19(3). This identifies in pars (a), (b) and (c) respectively three classes of documents which were "duly authenticated". A document which is sought by and on behalf of the extradition country to be admitted in the proceedings will be "duly authenticated" if it complies with s 19(7). The magistrate may adjourn the proceedings in the circumstances prescribed in s 19(4) to allow remedy of deficiency in documents produced.
60 In Parker, the Full Court allowed the appeal of the extradition country from the decision of a judge, who, in a review under s 21 of the Act, quashed the s 19 magistrate’s decision that the person on remand was eligible for surrender, on the ground that the extradition request had not complied with the terms of the applicable treaty. The Full Court referred at length to Kainhofer and Papazoglou v Republic of Philippines (1997) 74 FCR 108; 144 ALR 42. The Full Court held that as the s 19 magistrate had no jurisdiction to consider whether all available information had accompanied the extradition request as required by the treaty, his finding on that issue was not subject to review under s 21 of the Act.
61 The Full Court in Parker rejected Mr Parker’s contention that a s 19 magistrate was not entitled to infer that he was the person referred to in the extradition request. The Full Court stated (at 344):
It is our view, as already stated, that Kainhofer must be taken to have decided that it is not for the s 19 magistrate to determine this question but for the Attorney-General when he determines that the respondent is an extraditable person (see 538-539). Furthermore, the respondent's counsel conceded before the primary judge that "the applicant admits he is called George Parker. The applicant also acknowledges that he has lawfully changed his name in Australia on three occasions and has lawfully obtained Australian passports in those names and to an extent those concessions of course coincide with the information contained in the documents in the extradition request". In any event the magistrate had photographs of the respondent in his papers and was well able to assess for himself whether the person sought by those photographs was or was likely to be the respondent.
62 The Full Court in Parker acknowledged that the respondent’s identification as the person named in the overseas warrant and the s 12 warrant was a matter for the s 15 magistrate. It stated that Kainhofer precluded the s 19 magistrate from determining whether the respondent was the person referred to in the extradition request.
63 The Full Court observed, that late in the proceedings, the question arose whether the s 19 magistrate was obliged to determine whether the respondent was, in fact, the person named in the warrant pursuant to which he was arrested, remanded and brought before the magistrate.
64 The Full Court stated (at 343-344):
In our view, this was not a matter that the magistrate was required to determine. As appears from the authorities cited, it had already been determined at earlier stages in the procedures that the respondent was an "extraditable person". This would necessarily have involved a finding that he was the person named in the warrant. Although the s 12 warrant was issued on affidavit evidence only, the respondent, as a result of his arrest on that warrant, was brought before a magistrate for the purpose of his being dealt with under s 15 of the Act, that is by being remanded on bail or in custody pending the hearing under s 19 or his otherwise being dealt with as a result of the exercise of discretion by the Attorney-General pursuant to ss 16 and 17 of the Act. The identity of the respondent with the person named in the overseas warrant and the s 12 warrant would necessarily have been a matter for the magistrate exercising powers under s 15. In our view, there was no requirement imposed upon the s 19 magistrate to consider that question afresh. That is not to say that he would not have been obliged to consider that question if the respondent had specifically stated that he denied that he was the person whose extradition was sought. In such circumstances, the requirements of natural justice might well have necessitated a determination by the magistrate of that issue. However, this did not arise in the present case and we say no more about it.
65 In Von Arnim, Sundberg J stated that the s 19 magistrate had to be satisfied that the person before him was the person named in the warrant, but observed that in the case before him, there was ample evidence of that fact (at [14]).
66 The applicant relied on the submission by the Attorney-General’s Department to the Joint Standing Committee on Treaties Inquiry into Australia’s Extradition Law, Policy and Practice, which addressed the s 19 magistrate’s role under the Act. The submission relevantly stated:
6.4 The Australian position
6.4.1 The magistrate’s role
6.4.1.1 The 1985 amendments to the Australian Acts (corresponding to s. 19(5) of the 1988 Act) ensured that magistrates acted in accordance with the United States and Canadian common law position outlined above. They represent a move away from the United Kingdom position, but because both positions stem from the same underlying concept of the role of the extradition hearing the practical difference is not great.
6.4.1.2 The role of the magistrate is to determine whether the documents that are produced to him or her are sufficient to satisfy him or her that the fugitive is liable to be surrendered. This does not mean that the fugitive cannot produce any evidence to the magistrate. The magistrate must receive evidence from the fugitive going to the issues raised by certain of the provisions of the legislation which relate to liability to surrender. These include evidence that:
(a) the person is not the person named in the foreign warrants and request (by this means evidence in the nature of an alibi, which would not be admissible for the purpose of contradicting the allegations by the requesting country, can be introduced in some circumstances);
(b) the offence alleged, or the conviction recorded, was not in respect of an extraditable offence;
(c) the documents tendered in support of the request are not in proper form or are incomplete;
(d) the offence alleged, or the conviction recorded, is in respect of an offence of a political character or that the requisition for surrender was in fact made with a view to try to punish the person for an offence of a political character;
(e) the speciality requirements are not satisfied;
(f) the person has been acquitted or pardoned or has already undergone the punishment provided for the offence alleged in the request;
(g) there are substantial grounds for believing that the request for extradition was in fact made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions or that, if surrendered, the person may be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
6.4.1.3 Other matters may be the subject of evidence properly adduced by a fugitive. These matters fundamentally fall within the category of additional mandatory safeguards contained in Australia’s modern extradition treaties and include for example:
(a) that the intended prosecution is statute barred;
(b) that the offence alleged, or conviction recorded, is in respect of a purely military offence not known to the ordinary criminal law; and
(c) that, if surrendered, the person would be liable to be tried by, or liable to serve a sentence already imposed by, an extraordinary or ad hoc tribunal.
6.4.1.4 None of the above matters “controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person is requested”.
6.4.2 The Minister’s role
6.4.2.1 Despite the limitations applicable to the extradition hearing, the Minister is required under Australian law to take into account any representations made by or on behalf of the fugitive. If, for example, a person were able to demonstrate that the allegations were completely false or that the prosecution was not instituted in good faith (the sorts of situation where defence evidence would be given significant weight in the United Kingdom), the Minister would take this into account. Australian extradition treaties generally require the Minister to consider whether, in the circumstances of the case, the extradition of the person would be unjust. The surrender determination is potentially subject to judicial review in an Australian court, which could overturn a capricious decision or one which failed to take account of relevant factors.
67 In Tervonen v Finland [2008] FCA 1133, the applicant, in an application under s 39B of the Judiciary Act 1903 (Cth), contended that an extradition request made by Finland was invalid because it did not comply with the extradition treaty between Australia and Finland. The Attorney-General had issued several notices pursuant to s 16 of the Act in respect of the request, the challenges to which were either unsuccessful or resolved.
68 The applicant contended that the extradition request and supporting material revealed that some of the warrants relied on by Finland were for his arrest for pre-trial investigation purposes, rather than for trial for offences.
69 Flick J dismissed the application. His Honour found that it was not open to the applicant to contend that Finland’s request was not in respect of an offence or offences against the law of Finland within the meaning of, and for the purposes of, s 6(a)(i) of the Act. His Honour referred to Tervonen v Finland [2008] FCA 781, in which Gyles J stated, in reference to Kainhofer, at [24]:
It is not at all clear to me what meaning is to be given to the words “for the offence” in s 19(3)(a) in the light of the decision of the High Court. The submission for Finland reduces the content of s 19(3)(a) (and so s 19(2)(a)) to mere authentication of the warrant. So far as the substance of the warrant is concerned, all that is necessary is to tick off the offences against those in relation to which extradition is sought. It is difficult to discern any reason in principle why the opinion of the Attorney-General in relation to s 16(2)(a)(i) should not be examinable by the Magistrate where appropriate and yet the opinion in relation to s 16(2)(a)(ii) and s 16(2)(b) can be dealt with on the merits by the Magistrate notwithstanding the earlier opinion of the Attorney-General. It is even more difficult to understand why a magistrate’s satisfaction in relation to a provisional arrest warrant pursuant to s 12 should decide the relevant issue to the exclusion of a magistrate pursuant to s 19 where appropriate. Neither the Attorney-General nor the first Magistrate has any better means of deciding the point than would be available to a properly instructed magistrate acting pursuant to s 19. However, I can see no escape from the conclusion that the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer 185 CLR 528 does have the effect as submitted on behalf of Finland.
70 Flick J at [12] concurred with Gyles J’s analysis of Kainhofer and his Honour’s conclusions.
The parties’ principal submissions
The applicant’s submissions
71 The applicant submitted that three interrelated factors (the primacy of the language, the scheme of the Act and the absence of any sensible alternative forum) established that the s 19 magistrate must, in an appropriate case, determine the identity question as defined. Most importantly, the language of s 19(3)(a) and (b) explicitly directed the s 19 magistrate to do so. The centrality of the identity question to the essentially paper-based extradition scheme of the Act, the absence of any other effective forum to determine, on a fair and proper basis, the disputed identity of a person sought for extradition and the prejudice to fundamental liberties if a person alleging mistaken identity could be extradited without a full hearing, also supported the conclusion that the s 19 magistrate is both empowered and obliged to determine disputed identity.
72 The applicant acknowledged that Kainhofer, in stating that the s 19 magistrate must assume that the person on remand is an extraditable person, appeared to deny the magistrate jurisdiction to determine the identity question, because unless the person on remand is either the person accused or convicted of the extradition offences within the meaning of s 6(a)(i) or s 6(a)(ii), he or she is not an extraditable person.
73 The applicant nevertheless submitted that, on close analysis, any impediment to his construction of s 19 apparently posed by Kainhofer, fell away.
74 The applicant emphasised that Kainhofer decided an entirely different question from that in the present case. The question whether the s 19 magistrate is empowered to determine the identity question did not arise, and was not considered in Kainhofer, which held that the s 19 magistrate could not determine whether the person on remand was “accused” (as opposed to being investigated) within the meaning of s 19(3)(a). That question was essentially a matter of degree.
75 The applicant submitted that therefore, Kainhofer only precluded the s 19 magistrate from considering the question of accusation, and neither expressly nor implicitly precluded a determination of identity by the s 19 magistrate.
76 The applicant further submitted that while the reasoning in Kainhofer was broadly expressed, it exceeded what was necessary for the determination of the discrete issue before the High Court. Its application to the issue in this case would be an unjustified extension. It would deprive the plain words of s 19(3)(a) and (b) of any effective meaning and would deny the existence of an adequate forum for testing disputed identity. The applicant submitted that Kainhofer did not, on a fair reading, inevitably foreclose the s 19 magistrate’s determination of the identity question, which was necessary to protect fundamental liberties. Rather, Kainhofer contained contradictory impulses, because it precluded revisitation of the extraditable person question, while holding to be operative language which effectively directed the s 19 magistrate to determine identity, which was an aspect of the concept of an extraditable person. The applicant’s construction would resolve those tensions.
77 The High Court in Kainhofer held that the introductory parts of s 19(3)(a) and (b) were merely classificatory, but the remaining parts of the sub-paragraphs were operative. The applicant submitted that the operative words of s 19(3)(a) describing the supporting documents to be produced to the s 19 magistrate under s 19(2)(a) in the case of an offence of which the person was accused, positively directed the s 19 magistrate to determine that the person on remand was the person in respect of whom a duly authenticated arrest warrant for the offences had been issued.
78 Similarly, while the operative part of s 19(3)(b) (which described the supporting documents to be produced to the s 19 magistrate in the case of an offence of which the person has been convicted) did not, in contrast to s 19(3)(a), expressly refer to “the person”, it implicitly referred to the conviction “of the person on remand”. As such, it also directed the s 19 magistrate to determine whether the person on remand was the person convicted of the offence evidenced in the authenticated documents.
79 The applicant submitted that if the broad reasoning expressed in Kainhofer were applied indiscriminately and in unforeseen circumstances, (thereby depriving the s 19 magistrate of jurisdiction to determine the identity question) those parts of s 19(3)(a) and (b) which Kainhofer held to be operative would effectively be rendered nugatory. The s 19 magistrate’s task under s 19(2)(a) would be limited to the question of authentication.
80 The applicant submitted that a s 19 magistrate’s jurisdiction to determine the identity question was not, in any event, at odds with the High Court’s statements in Kainhofer that the s 19 magistrate could not revisit the question whether the person on remand is an extraditable person. Although Kainhofer held that the s 19 magistrate must assume that the person on remand was an extraditable person, it did not prohibit reconsideration of any issue that fed into the definition of an extraditable person. To the contrary, the High Court in Kainhofer expressly recognised that different repositories of power within the statutory scheme may be required to consider or determine the same question, without reviewing one another’s determinations.
81 The applicant submitted that as there was clearly a permissible overlap of relevant concepts, the s 19 magistrate’s reconsideration of the identity question (although it was an aspect of the concept of an extraditable person) was not inconsistent with the operation of the scheme or the reasoning in Kainhofer.
82 The applicant submitted that his construction supported a rational operation of the Act, as unless the s 19 magistrate is empowered to determine whether the person on remand is the person named in the foreign warrant or certificate of conviction, the s 12 magistrate’s determination of that fundamentally important question (although reached on the basis of affidavits at an ex parte hearing) would be reviewable only if the high hurdle of irrationality were satisfied. Nor would any of the other hearings or determinations either within or outside the statutory extradition scheme (such as the s 15 hearing or the Attorney-General’s determination under s 16) provide an adequate opportunity for a respondent to contest effectively, on a proper footing and full materials, the allegation that he or she is the person sought by the extradition country.
83 The applicant submitted that a person’s vulnerability to extradition without an entitlement to a full hearing on the question of disputed identity was inconsistent with the transcendent value of liberty, which both supported his construction of s 19 and the status of identity as a jurisdictional fact.
The respondent’s submissions
84 The respondent submitted that s 19, when construed in accordance with a natural understanding of Kainhofer, did not require or empower the s 19 magistrate to determine the identity question, as that question was incorporated in the recognition that the person on remand is an extraditable person, which the s 19 magistrate must assume. Further, although s 19(3)(a) and (b) did not permit determination of the identity question, the subparagraphs were not otiose and implicitly required the magistrate to be satisfied that there was an authenticated warrant or certificate of conviction which pertained to the person on remand.
85 The respondent submitted that the s 19 magistrate’s incapacity to determine identity did not mean that there is no adequate forum or effective means for a person to challenge the assertion that he or she is the person convicted of the extradition offence. To the contrary, the respondent submitted that although there was no specific provision in the statutory extradition scheme for a hearing on disputed identity, an overwhelming number of fora existed within and outside the Act.
86 Identity was relevant at various stages of the extradition process, including proceedings under s 12 or s 16 of the Act, which require satisfaction that the person is an extraditable person. The respondent submitted that although a person could not challenge the application and affidavits in support at the hearing of an application for a provisional arrest warrant under s 12, the determinations under both s 12 and s 16 could nevertheless be challenged. The respondent acknowledged that a merits review was not available and that, based on Brock v Minister for Home Affairs (2008) 170 FCR 434 at [77], it may be necessary for any challenge to a s 16 notice to precede the s 19 proceedings.
87 The respondent submitted that at the s 15 hearing, the magistrate (if persuaded that the arrested person was not the person named in the s 12 warrant) could, and indeed must, release that person, who, in such circumstances, would not be “arrested under a provisional arrest warrant”.
88 The respondent ultimately did not, however, press the suggestion in its written submissions that the remand hearing under s 15 of the Act constituted an obvious and effective forum for a challenge on the question of identity. It conceded that, in practice, a s 15 magistrate could rarely be immediately persuaded at the hearing that the wrong person had been arrested, and would otherwise be obliged to remand the person, either in custody or on bail. The s 15 magistrate, acting administratively, would lack jurisdiction to grant relief under habeas corpus.
89 The respondent submitted that nevertheless, the remanded person could ordinarily, at that stage, apply for a writ of habeas corpus seeking judicial determination of whether he or she were lawfully held. Further, while habeas corpus may not be available if a person were already in custody for other offences, there would be analogous declaratory or other relief under the law of the Commonwealth.
90 The respondent identified s 17 of the Act as another potential avenue of relief, as the Attorney-General, if satisfied that the wrong person had been remanded, could terminate the remand and the extradition process.
91 The respondent submitted that ultimately effective protection lay in the Attorney-General’s discretionary power under s 22(3)(f) not to release the person for extradition, which could be exercised if the Attorney-General were satisfied that he or she were not the person sought by the extradition country.
92 Most importantly, the respondent submitted that many statutes mandate arrest in a wide variety of circumstances without including specific reference to such remedies. As with all arrests and wrongful detentions, the writ of habeas corpus and analogous avenues for declaratory relief provided sufficient protection, despite the absence of any specific provision for disputing identity in the Act.
Consideration of identity question
93 As the applicant submitted, Kainhofer did not involve the question of disputed identity which has arisen in this case. The respondent in Kainhofer did not deny that she was the person named in the warrant issued by the extradition country. The High Court in Kainhofer did not confront the question of disputed identity, and, perforce, did not expressly hold that a s 19 magistrate was not obliged or empowered to determine whether a person on remand under s 15 is the person accused or convicted (as the case may be) of the extradition offences evidenced in the authenticated documents.
94 The High Court nevertheless clearly recognised that the s 19 magistrate must assume that the s 15 order of remand and the s 16 notice are valid, and must proceed on the footing that the person on remand is an extraditable person. It also clearly articulated the limited function of the s 19 magistrate under s 19(2)(a). In my opinion, the reasoning in Kainhofer precludes a s 19 magistrate from determining the identity question.
95 Although a hearing under s 15 can (but need not necessarily) precede the giving of a s 16 notice, it can only occur after a provisional arrest warrant has been issued under s 12. Thus, by the time of the s 15 hearing, at least one, and possibly both, of the two relevant repositories of power have already determined that a given person is an extraditable person.
96 It does not follow from the satisfaction of the s 12 magistrate or the Attorney-General under s 16 that a given person, “AB”, is an extraditable person, that a particular person who is identified as “AB”, arrested and brought before the s 15 magistrate, is in fact “AB” who is the subject of the s 12 warrant and also, perhaps, a s 16 notice. The s 15 magistrate must nevertheless be satisfied that the person he or she remands is “AB”, the person named in the s 12 warrant, because, as the respondent submitted, “AB” would not otherwise be the person arrested under a provisional warrant.
97 While the s 15 magistrate might therefore order the release of an arrested person who established that he or she is not the person the subject of the s 12 warrant, such an outcome is likely to be extremely rare, and the s 15 hearing would not constitute an effective forum for a contested hearing on the identity question.
98 Significantly to the present case, it is implicit that the s 15 magistrate, in remanding a person in custody or on bail, accepts that the person thus remanded is the person arrested under the s 12 warrant and thus the extraditable person accused or convicted of the extradition offences.
99 In Kainhofer, the High Court stated that the s 19 magistrate must not only proceed on the basis that the person on remand is an extraditable person, but must also (except where there is ex facie invalidity) assume that the s 15 remand order and s 16 notice are valid.
100 If the s 19 magistrate were not required to assume the validity of the remand order, but only that a particular person, “AB”, is an extraditable person, there would be more scope for the applicant’s construction of s 19. It could then be argued that the s 19 magistrate (although prohibited from determining whether the person named in the s 12 warrant were an extraditable person) could consider whether the person remanded was in fact that nominated person. However, the confluence of the multiple, interrelated assumptions that the s 19 magistrate is, according to Kainhofer, required to make, in my view forecloses that argument.
101 The assumptions that the person on remand has been validly remanded under s 15 and is an extraditable person, necessarily incorporate the underlying assumption that the person who is on remand is, in accordance with s 6, either a person accused or convicted of an extradition offence.
102 The person the subject of proceedings under s 19 is necessarily the person remanded under s 15 who, in turn, is necessarily the person who has been arrested under the s 12 warrant (which required the s 12 magistrate’s satisfaction that the person was an extraditable person). The person the subject of the s 19 proceedings is also necessarily a person in respect of whom the Attorney-General has given a notice under s 16, which depends, inter alia, on the Attorney-General’s satisfaction that the person is an extraditable person. The nexus between the person on remand and the extraditable person incorporates a nexus between the person on remand and the person who has been either accused or convicted of the extradition offences.
103 While Kainhofer concerned a different question from that arising in this case, I do not consider that this court is free to depart from its essential reasoning and fundamental statements. The High Court’s decision was underpinned by a comprehensive analysis of the statutory extradition scheme as a coherent whole, including the legitimate function and powers of the s 19 magistrate in that context. Its unambiguous description of the s 19 magistrate’s restricted role applies beyond the particular issue in Kainhofer.
104 As the applicant submitted, some statements in Parker and Von Arnim suggest that a s 19 magistrate could determine the identity question. The Attorney-General’s Department Submission to the Joint Standing Committee on Treaties (reviewing the Act) contemplates that the s 19 magistrate could determine identity in relation to the accusation and, by parity of reasoning, in relation to conviction. On examination, however, the statements do not much assist the applicant. The central analysis in Parker was predicated on the limitations identified in Kainhofer. The Full Court merely raised in dicta the question whether natural justice would in some circumstances require a determination of disputed identity. The Full Court did not address the apparent inconsistency of such a requirement with its substantive analysis. The observations in Von Arnim were scant and, as in Parker, dicta, which were not based on reasoned analysis of the legislation in the light of Kainhofer. The assumption in the Submission is neither authoritative nor supported by reasoning.
105 The applicant submitted that the respondent’s construction of s 19, based on the reasoning in Kainhofer, created difficulties, uncertainties and unfair outcomes in cases of alleged mistaken identity, which the applicant’s construction would avoid. The distinctions and refinements on which the applicant’s approach depended were, however, overly subtle and ultimately unpersuasive. In my opinion, the application of the reasoning and strictures in Kainhofer to the separate questions in this case cannot be excluded. At its kernel, Kainhofer requires the s 19 magistrate to assume that the person on remand is validly remanded and an extraditable person, and expressly excludes from the s 19 magistrate’s function the determination of those issues. In the words of the plurality, the s 19 magistrate:
must proceed on the footing that the order [of remand under s 15] and the notice [given under s 16], if not invalid ex facie were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6.
106 The plurality stated that the magistrate’s authority depended on the hypothesis that the person is an extraditable person and, inimically to the applicant’s construction, reasoned that to find otherwise was inconsistent with the magistrate’s power.
107 The analysis in Kainhofer cannot, in my opinion, be reconciled with a power or obligation in the s 19 magistrate to determine whether the person on remand is, inter alia, the person who has been convicted (or accused) of the extradition offence, as to find to the contrary would be inconsistent with the assumptions that the s 19 magistrate must make and, on the plurality’s analysis, would undercut the very basis of the s 19 magistrate’s jurisdiction.
108 On the applicant’s construction, the s 19 magistrate could, inconsistently with the fundamental reasoning and many explicit and unqualified statements in Kainhofer, conclude that the person on remand has not been validly remanded and is not an extraditable person.
109 The application of Kainhofer to the questions in this case is, in my view, not an unwarranted extension but logically inescapable. This court must apply the fundamental reasoning unanimously expressed in Kainhofer, although, as recognised by Gyles and Flick JJ, there are consequent uncertainties and no obvious rationale for the limitations on the role of the s 19 magistrate.
110 The questions in this case, in my view, expose the further limitation that, consistently with the reasoning in Kainhofer, the s 19 magistrate cannot conduct a full hearing of, and determine, the identity question on the merits, although there is no other satisfactory designated forum for such a hearing under the Act.
111 The s 12 magistrate’s determination is made at an ex parte hearing based on affidavits which the person sought for extradition cannot test. Subject to the unlikely prospect that a person arrested under the s 12 warrant could establish at the s 15 hearing that he or she was not the person named in the s 12 warrant (perhaps even in a case, such as the present, where the s 12 warrant identified the person by reference to aliases) the s 15 hearing would not provide a forum for testing disputed identity, and the dispositions available are very limited.
112 The person alleging that he or she is a victim of mistaken identity, may, however, seek the favourable exercise of the Attorney-General’s discretion at various junctures under the Act and could seek relief outside the Act by a writ of habeas corpus or an analogous declaration.
113 There are thus various opportunities at different stages of the extradition process to put a case on mistaken identity, both under and outside the Act. It may be, as the applicant submitted, that a clear entitlement to a hearing on full materials under the Act would most effectively address the problem of mistaken identity, but consistently with Kainhofer, s 19 does not provide for such a hearing.
114 The applicant asserted that on the respondent’s construction, the s 19 magistrate must accept that a person on remand who lacks any apparent connection to the conviction or accusation for offences in the extradition country is eligible for extradition. Although some aspects of the s 19 magistrate’s task under s 19(2)(a) remain unclear, the plurality in Kainhofer stated that the s 19 magistrate’s function under subs 2(a) (and hence under subs 2(b)) of s 19) is concerned with the correspondence between the supporting documents in relation to the offence produced to the magistrate and the description of the supporting documents in subs (3). It may be that, as the respondent submitted, if the warrant or other materials produced did not appear to appertain to the authenticated documents, the s 19 magistrate would not be satisfied of the correspondence with which he or she is properly concerned.
115 While it is unnecessary to resolve that question, in the present case, the s 12 warrant identified the applicant by three names, including the name of the person convicted in Albania and the applicant’s only acknowledged name. It thus connected the applicant, as the person on remand, with the conviction for the extradition offences.
Whether identity jurisdictional Fact
116 The applicant submitted that (on the assumption that the determination of identity is properly a matter for the s 19 magistrate) identity was a jurisdictional fact and accordingly, in the common law proceeding, this court could consider the question of his identity without being restricted to the material before the s 19 magistrate.
117 As I have found that the determination of the identity question is not a valid function of the s 19 magistrate, it follows that identity is not a jurisdictional fact. While it is somewhat artificial to do so, on the assumption that the applicant’s construction is correct, for completeness, I briefly consider on that basis the arguments advanced on jurisdictional fact.
118 In Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at [43], the High Court stated that the expression “jurisdictional fact” is generally used:
to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
119 In Cabal v Attorney-General (Cth) (2001) 113 FCR 154 at [50], Weinberg J elaborated on the consequences of identifying a “jurisdictional fact”. His Honour stated:
The so-called doctrine of “jurisdictional fact” (assuming that it is correct to so describe it) represents an exception to the principles of restraint which normally govern judicial review. “Jurisdictional fact” enables such review whenever the court determines for itself that a statutorily required fact does not exist. Parliament can stipulate that any action which it authorises depends upon the existence of various preconditions. The legislation may require the existence of those preconditions to be established in the mind of the person or body exercising the power, or in the mind of the reviewing court. Where the power depends upon factual requirements being demonstrated to the satisfaction of the person in whom it is reposed, it is that person's determination of the facts which is decisive. The validity of the exercise of the power is unaffected if the person, acting in good faith and otherwise according to law, considers the facts, and reaches an opinion about them, albeit one which a court would not share. Where the power depends upon the existence of objective facts, the court on judicial review is given the final say as to whether the required facts exist.
120 Whether a statutory criterion involves a jurisdictional fact depends principally on statutory interpretation. In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (“Timbarra”), Spigelman CJ stated at [40] to [41]:
Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense — Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.
121 In Timbarra, Spigelman CJ at [38] recognised that discerning a jurisdictional fact involves inter-related elements of “objectivity” and “essentiality”.
122 Factors recognised to be indicative of a jurisdictional fact include the language of the relevant statutory provision, the scope and purpose of the legislative scheme, whether the statutory criterion involves matters of judgment or degree and whether the consequences of invalidity would result in inconvenience (Timbarra at [89] and [91] and Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [30], [32], [56], [58], [63]).
123 Spigelman CJ in Timbarra at [44] also observed:
The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.
124 In Shalom v Health Services Commissioner [2009] VSC 514 (“Shalom”) at [28], Kaye J summarised, albeit not exhaustively, significant factors relevant to the existence of a jurisdictional fact. His Honour stated:
Notwithstanding that the issue is, essentially, one of statutory construction, nevertheless assistance may be gained from a number of recent authorities as to some of the factors which inform the construction of the statute in question. Those principles have been helpfully compiled in the judgments of the Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL, of Weinberg J in Cabal v A-G (Cth), and of Chesterman J in Chancellor Park Retirement Village Pty Ltd v Retirement Villages Tribunal. The factors identified in the authorities include the following:
(1) As usual, the logical starting point is the actual language of the legislative provision. Where the power, contained in the statute, is not expressed to be dependent on the formulation by a decision maker of a particular opinion or judgment, it is more likely that the existence of the particular fact in question was intended, by Parliament, to be a “jurisdictional fact”.
(2) If the statute requires an authority to form a judgment based on a number of facts, or to reach a conclusion which is substantially evaluative, it is likely that Parliament intended that the statutory authority have power to make a conclusive determination, based on those facts.
(3) An important indication of Parliamentary intention is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker, or whether it necessarily arises in the course of the consideration by the decision maker of the exercise of the power. A factual reference in a statutory formulation, relating to the instigation of a statutory decision making process, is more likely to turn on the existence of the fact as an objective fact, than is a factual reference arising in, or in relation to, the conduct of the actual decision making process itself.
(4) In the case of an inferior court or tribunal, references as to fact are generally not construed as being jurisdictional, unless an intention to the contrary is clearly expressed. However, no such rule of construction applies to the exercise of a statutory power by an administrative decision maker.
(5) Another relevant factor is the inconvenience, which may arise from classifying a factual reference, in a statutory formulation, as a jurisdictional fact, rather than as a fact, the existence of which is to be determined by the decision maker, rather than the court. It is presumed that Parliament would not intend the legislation to operate in a manner whereby the powers and functions of a particular authority were susceptible to substantial disruption resulting from frequent challenges to the authority’s jurisdiction.
(6) On the other hand, a factor which militates in favour of a fact being a jurisdictional fact is the question whether what has been described as “transcendent” or “important” values are affected by the exercise of the statutory power. In the absence of clear language, a statutory authority, possessing powers which might infringe important rights, is presumed not to have the ability to conclusively determine, for itself, a fact which is critical to the exercise by it of those powers.
(7) Finally, the role and function of the particular fact in the relevant statutory scheme is an important consideration. In Timbarra Protection Coalition Inc v Ross Mining NL, Spigelman CJ considered that, in that case, the particular purpose of the relevant fact in the legislative scheme was of critical importance in determining that that factor was a jurisdictional fact. His Honour concluded that the role of the “species impact statement”, in the statutory scheme then under consideration, was so significant that it was appropriate to consider it an “essential” condition or “jurisdictional fact”, the existence of which must be proven on review.
125 The applicant submitted that on balance, consideration of the factors identified by Kaye J in Shalom favoured a finding that identity under s 19(2)(a) constituted a jurisdictional fact.
126 First, the applicant submitted that the language of s 19(3)(a) and (b) supported that conclusion, as the matters in s 19(3)(a) and (b) were not expressed to depend on the magistrate’s opinion or judgment. That was of greater significance because, in contrast, other criteria in s 19(2) (s 19(2)(c) and (d), which relate to dual criminality and extradition objection respectively) were expressed to turn on the s 19 magistrate’s satisfaction or lack thereof.
127 The respondent submitted that when the language of s 19(3)(a) and (b) was read in the context of the Act as a whole, the absence of a specific requirement for the magistrate’s satisfaction was outweighed by the availability of the merits review in s 21, which empowered the court to determine the relevant fact, thus indicating that a mistaken determination by the magistrate was not intended to be a nullity.
128 The applicant submitted that the second factor referred to by Kaye J (the need for an evaluative judgment) was at least not adverse to a finding of jurisdictional fact. In my view, however, if (as the applicant contended) determination of the identity question were required under s 19(3)(a) and (b), it could be highly evaluative and may involve many different facts and types of evidence. The second factor therefore did not favour a finding of jurisdictional fact.
129 The applicant submitted that the third factor referred to by Kaye J was not adverse to a finding of jurisdictional fact, because the structure of s 19 indicated, on balance, that the fact of identity occurred in the statutory formulation of the power, rather than arising for consideration in its exercise.
130 Section 19 begins with the directive in s 19(1) to conduct proceedings to determine eligibility for surrender and concludes with the prescribed alternative actions in s 19(9) and (10), depending on whether the person is found to be eligible or ineligible. The applicant submitted that subs (2), (which is interposed between the directives) by its inclusion of emphatic words, (“only”…“if”) indicated that identity was not merely a factual reference arising in the course of the decision maker’s investigations.
131 In my view, however, in the context and structure of s 19, the identity question (if incorporated in s 19(3)(a) and (b)) would be more plausibly a consideration in the exercise of the magistrate’s power rather than occurring in the statutory formulation of the power. Section 19(1) specifies a number of matters essential and preliminary to the power (and obligation) to conduct the proceedings. The matters in s 19(2), notwithstanding the lack of a uniform requirement for the magistrate’s satisfaction, appear more in the nature of matters to be considered.
132 That conclusion, which the plurality in Kainhofer appeared to espouse (at 537) is strengthened because, as the respondent submitted, the factors in s 19(2) are apparently the only factors relevant to determination of eligibility and are thus not matters preliminary to other factors to be considered.
133 There are indications that the plurality in Kainhofer assumed that the conditions of the s 19 magistrate’s power were set out in s 19(1) rather than s 19(2). Their Honours stated (at 537):
A s 19 magistrate must be satisfied that the conditions of jurisdiction prescribed by sub-s (1) are satisfied.
134 The plurality further stated (at 539):
The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice.
135 In Parker, the Full Court (at 340) apparently accepted that in Kainhofer, the four specified matters in s 19(2) were seen as exhaustive. The Full Court stated:
…[Section] 19(2) is arguably consistent with factors other than the four specified matters being taken into account in determining whether a person is eligible for surrender, although this does not seem to have been the view taken in Kainhofer at 537, 539. Indeed, the carefully defined administrative sequence referred to in Kainhofer at 538, whereby different repositories exercise discrete powers, supports the view that the function of a magistrate under s 19 is intended to be self-contained and limited.
136 As the s 19 magistrate is not an inferior court or tribunal, the fourth factor referred to by Kaye J does not apply in this case. The respondent submitted, however, that it reflected the inconvenience of classifying facts found by courts as jurisdictional if there is a full right of appeal. On that basis, the right to a merits review in s 21 of the Act (albeit restricted to the material before the magistrate) suggested that identity (even if the applicant’s construction were correct) would not be a jurisdictional fact.
137 The applicant submitted that the fifth factor referred to by Kaye J supported identity as a jurisdictional fact, because no adequate review would otherwise be available. Further, the s 19 magistrate exercised only an ad hoc function in relation to a limited set of questions, rather than an ongoing, complex or extensive role.
138 Moreover, the applicant submitted that although, on its construction, all the criteria in s 19(2) were jurisdictional facts, the limitation of the s 21 review to the materials before the s 19 magistrate would not be wholly undermined. In practice, the restriction would be lifted only in relation to the question of identity, as the jurisdictional fact in other factors in s 19(2) was the magistrate’s satisfaction.
139 While an established forum under the Act for a full contested hearing on disputed identity would be available if identity were a jurisdictional fact, it was not apparent how convenience would be served by a choice to pursue either a full merits review or a s 21 review on limited evidence, particularly if in practice the choice would not apply consistently to all criteria under s 19(2).
140 The applicant contended that the sixth and seventh factors referred to by Kaye J supported the contention that identity was a jurisdictional fact, because under a paper-based extradition scheme identity was a transcendent factor so critically important to the legislative scheme that it outweighed contrary factors, such as the need for evaluative judgment.
141 As the respondent submitted, as both the person sought and applicant for extradition would be entitled to the full merits review available if identity were a jurisdictional fact, the sixth and seventh factors were in that sense neutral. Nevertheless, I accept that if (contrary to my finding above) identity were a matter for determination by the s 19 magistrate, its importance for personal liberty would favour its characterisation as a jurisdictional fact.
Conclusion on jurisdictional fact
142 Some relevant factors tended to support the contention that identity (if a criterion under s 19(3)(a) and (b)) was a jurisdictional fact. However, the determination of identity could be substantially evaluative and involve diverse evidence. The distinct form and sequential placement of s 19(1) and (2) suggest that the matters in subs (1) confer jurisdiction, as the plurality appeared to accept in Kainhofer. The emphatic language in s 19(2) is perhaps, less significant because the subsection appears exhaustively to prescribe the matters to be considered. Further, even if identity is a matter for the s 19 magistrate’s determination, the s 21 review indicates that the legislature intended a review subject to the specified limitations applicable to determinations under s 19 of the Act.
143 On balance, I consider that if, contrary to my conclusion, the s 19 magistrate is directed to determine identity, identity is nevertheless not a jurisdictional fact, but rather, a matter to be considered in the exercise of the power.
Conclusion
144 In my opinion:
(a) the separate question in the appeal proceeding should be answered “yes”; and
(b) the separate question in the common law proceeding should be answered “no”.
| I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton. |
Associate:
