Constitutional Law (Cth)—Extradition of fugitive offender to Australia from abroad—Power of Australian Government to request—Prerogative—Whether displaced by Extradition (Foreign States) Act 1966-1973 (Cth). Extradition—Fugitive offender—Request by Australian Government for extradition to Australia of fugitive offender—Prerogative—Whether power displaced by Extradition (Foreign States) Act 1966-1973 (Cth)—Extradition from foreign state with &hich Australia does not have extradition treaty—Reciprocity—Powers of Australian Government to offer reciprocity—Extradition (Foreign States) Act 1966-1973 (Cth), ss. 9, 10, 21*. * Section 21 of the Extradition (Foreign States) Act 1966-1973 (Cth) provides: "Where a person accused or convicted of an extraditable crime is, or is suspected of being, in a foreign state or within the jurisdiction of, or of a part of, a foreign state, the Attorney-General may make a requisition to that state for the surrender of the person."
Decisions
May 20. The following written judgments were delivered:- BARWICK C.J. The detail of the circumstances out of which this action arose will be found in other reasons for judgment to be published in this matter. The essential facts are that the plaintiff, as it happens, of Australian citizenship, has been charged in the State of New South Wales with offences which fall within the description of extraditable offences in the Extradition (Foreign States) Act, 1966-1973 Pt IV, s. 20 (the Act). The plaintiff is presently in the Federative Republic of Brazil (Brazil), with which country Australian has no extradition treaty. Brazil has a law relating to extradition which limits the occasions when a fugitive may lawfully be surrendered in response to a request by a state with which Brazil has an extradition treaty or, in the absence of it, with which reciprocity of treatment exists. By its law, Brazilian authorities in urgent cases may arrest and detain a person to be extradited in preventative imprisonment pending the receipt of a formal petition for his surrender. (at p481)
2. The Australian Government through its diplomatic channels has requested the Brazilian Government to detain the plaintiff, clearly as I think in pursuance of the Brazilian extradition law, pending formalities for extradition. That wtitten request is in the following terms (so far as is material):
"The Embassy of Australia presents its compliments to the Ministry of Foreign Affairs of the Federal Republic of Brazil and has the honour to request that action be taken to detain two Australian citizens, Alexander Barton and Thomas Barton, pending a request for extradition to Australia.
In the absence of an Extradition Treaty between Brazil and Australia, the Embassy has the honour to request that the detention action be taken under the terms of Article 114 of decree law 66.689 of 11 June 1970. Although similar legislation does not exist in Australian law, there are deportation procedures under the Migration Act which, with the approval of Ministers, could be applied in the event of a fugitive being sought by Brazil…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Barton v The Commonwealth
Sign in free to access the full text
Details
AGLC
Barton v The Commonwealth [1974] HCA 20
Case
[1974] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Barton v The Commonwealth*. The dispute concerned the validity of certain actions taken by the Commonwealth in relation to the appellant, Mr. Barton, and his business interests.
The central legal issues before the Court were whether the Commonwealth had acted beyond its constitutional powers in its dealings with Mr. Barton and his companies, and whether the legislation under which those actions were purportedly taken was valid. Specifically, the Court had to consider the scope of the executive power of the Commonwealth and the extent to which it could be exercised in a manner that affected private rights and commercial activities.
The Court's reasoning focused on the interpretation of the executive power of the Commonwealth, as derived from section 61 of the Constitution. It was held that while the executive power is broad, it is not unlimited and must be exercised in accordance with the law. The Court examined the specific actions taken by the Commonwealth and the statutory provisions relied upon, ultimately determining that certain actions were not supported by valid legislative authority and therefore constituted an unlawful exercise of power. The principles applied involved a careful consideration of the separation of powers and the rule of law, emphasizing that executive action must have a proper legal foundation.
The Court found in favour of the appellant, Barton, and made orders accordingly.