Barton v The Commonwealth

[1974] HCA 20

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Mason and Jacobs JJ.

BARTON v. THE COMMONWEALTH

(1974) 131 CLR 477

20 May 1974

Constitutional Law (Cth)—Extradition

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 from Australia." (at p482)

3. The plaintiff by his statement of claim seeks a declaration that this Australian request was invalid and beyond any power of the Exucutive Government. (at p482)

4. Upon an application for interim relief, my brother Mason, using the powers granted by s. 18 of the Judiciary Act, 1903-1969, stated a case for the opinion of the Full Court. From this case I have extracted the above-mentioned facts. The following questions are asked:

"1. Is the Australian Government entitled under the provisions of Pt. IV of the Extradition (Foreign States) Act 1966-1973 to request the extradition of an Australian citizen to Australia from a foreign State as to which the requirements of ss. 9 and 10 of the said Act are not satisfied?

2. If not, is the Australian Government entitled to request the extradition of an Australian citizen from a foreign State to Australia in circumstances in which the provisions of the Extradition (Foreign States) Act 1966-1973 do not apply? 3. Does the executive power of the Commonwealth of Australia enable the Australian Government to make a request to the Government of Brazil in the terms set out in par. 6 of this case?" (at p482)

5. I should observe at the outset that though the plaintiff seeks to base some part of his case upon the fact that he is an Australian citizen, a circumstance which in consequence is reflected in the terms of the questions asked by the stated case, the plaintiff's citizenship is, in my opinion, irrelevant to the application in this case of the relevant principles. If the Australian Government's request is for action by the Government of Brazil in the process of extradition it matters not, in my opinion, in deciding whether such a request was lawful according to Australian law whether the person whose surrender was sought was or was not an Australian citizen. The assumtion is that he is either a convicted person or a person charged with a crime of a particular kind. However, answers given to the questions asked by the case, whether positive or negative, which are in general terms without differentiation as to the citizenship or nationality of the person sought to be extradited, will answer the narrower questions asked. (at p482)

6. In my opinion, the resolution of the matters raised by the stated case turns on the proper construction of the Act. But, before turning to the Act and its relationship to the instant circumstances, I should say something as to the significance of extradition and its contrast with expulsion under other powers. (at p482)

7. The co-operation of nations in the surrender of fugitives from justice is a most important aspect of international life. With ease of travel and greater facility in communication, offenders against the law of a country can readily remove themselves from that country and not only escape the consequences of their own wrong-doing but, by that escape, weaken the administration of justice in that place. Important features of international co-operation in the surrender of fugitives have developed over the years, but perhaps mostly during and since the nineteenth century. Reciprocity in extradition has become central to the surrender of fugitives. Some definitions of extradition include reciprocity as a necessary element of its description. The exclusion of political offenders and of a country's nationals from the reach of extradition has become a usual feature. But, perhaps most importantly, the limitation of the area of extradition to the more serious crimes has developed and, as well, what has come to be termed "the speciality", namely, the assurance to the country surrendering the fugitive that the surrendered person will only be dealt with in the requesting country for the crime in respect of which his surrender was sought and given. (at p483)

8. Progressively, international co-operation in the surrender of fugitives has taken the form of extradition treaties, sometimes bilateral but also, and particularly with European countries, multilateral. The treaties nominate the nature of the crimes to which they will apply, provide the machinery for requesting and effecting surrender and ensure the speciality as well as the exclusions to which I have referred. (at p483)

9. In the common law countries, statutory authority is necessary for the surrender of a person to another country and to provide for custody and conveyance. A treaty in these places not having the effect of law, it is only lawful to surrender a person to another country for trial or punishment in another country if there is statutory authority for the course to be pursued. (at p483)

10. Also in those countries without statutory provisions in that behalf, the conveyance of a fugitive and other acts in relation to him and his surrender by another country may possibly involve tortious acts for which actions may be brought at the instance of the fugitive. But, more importantly, the observance of speciality in respect of the surrendered person can only be enforced in those countries under appropriate legislation. (at p483)

11. In contrast to extradition as a means of surrender, most countries exercise a right of expulsion of persons whose continued presence in the country is considered undesirable. Where this right of expulsion is the subject of statutory regulation, as it usually is in common law countries, there are limitations upon its exercise, often involving and limiting the purpose which may prompt the expulsion. At times, questions may arise as to whether the actual purpose of the expulsion is impermissible and whether in truth an unauthorized, or what a writer has called "disguised extradition" (see O'Higgins, Modern Law Review, vol. 27, p. 521), is on foot. Clearly, a power of expulsion, as for example under migration or immigration laws, is no equivalent of a power to extradite. It is an unsatisfactory practice, from an international as well as a domestic point of view, to employ a power of expulsion as such a substitute. Further, an executive, being bound by statute as to the occasions for and purposes of expulsion, cannot validly agree to employ that power as a general equivalent to a power to extradite, however much on occasions the expulsion may serve as an extradition in an individual case because of its circumstances. There are obvious objections to the use of immigration or expulsive powers as a substitute for extradition: see Shearer, Extradition in International Law (1971) pp. 19, 87-90; see also O'Higgins "Disguised Extradition", Modern Law Review, vol. 27, pp. 521-539; Hackworth's Digest of International Law, vol. 4, p. 30. (at p484)

12. Where in such countries statutory authority exists to permit and regulate the surrender of a person on the request of another country, and the right to do so is limited to states with which extradition treaties exist, the power of the executive government, in monarchical systems expressed as a prerogative of the Crown, to accede to a request for surrender of a fugitive, if it existed before such legislation, has clearly been superseded. Indeed, whether or not an extradition treaty relevantly exists, a person may only be surrendered if statutory authority so exists. (at p484)

13. The Extradition Act, 1870 (Imp.) (33 &34 Vict. c. 52) was the first such statute to be passed in the United Kingdom. Clearly, thereafter a person could not be surrendered to a non-treaty state or for a non-extraditable crime, as defined in that Act, or without compliance with the statute in the case of surrender to a treaty state. But the Extradition Act, 1870 did not deal with the request for and acceptance of the surrender of a fugitive by another country, though by s. 19 it did provide speciality for the surrendered fugitive. The word "arrangement" in that section was not, in my opinion, limited to the case of a treaty but included an arrangement evidenced by the surrender in response to a request. (at p484)

14. Unlike the case of the surrender of a fugitive by such a country there would appear to be no necessity, even in common law countries, for requests to another country for surrender and for the capacity to receive the fugitive when surrendered to be authorized or regulated by statute. Whether since the Extradition Act, 1870 an executive government may ask for and accept the surrender of a person from a country with which it has no extradition treaty has not been the subject of precise decision in England or in Australia. Doubtless prior to the Extradition Act, 1870 a Crown prerogative to request and accept surrender was claimed to exist. But since that Act opinions have differed whether a surrender could be asked and accepted of a state with which no extradition treaty existed. The British practice seems to have been not to request surrender of a non-treaty state, though voluntary surrender by such a state of a fugitive has been accepted, in some instances where the fugitive has been expelled under expulsive powers. (at p485)

15. However, though perhaps in disuse, I think the better opinion is thatafter 1870 the Crown retained a prerogative to seek and accept from a non-treaty state the surrender of a fugitive, subject only to the limitation of speciality imposed by s. 19 of the Extradition Act, 1870. In respect of that prerogative there would be no limitation as to the nature of the offence in respect of which the request was made. But, of course, the law of the requested country may impose its own limitations on the course that country may lawfully take in response to any such request. (at p485)

16. The existence of reciprocity is seen as indispensable by many, if not all, countries when asked to surrender a fugitive. As reciprocity requires the undertaking of the requesting country itself to respond to a request for surrender, the requesting state must be in a position to pledge itself to afford such surrender on request. In common law countries, as I have pointed out, surrender of a person can only be effected under and within the limitations of statutory provisions. Thus, where the power to surrender does not exist apart from statute, as is the case in Australia, the requesting country cannot with propriety offer reciprocity in respect of persons or crimes falling outside the scope of the relevant legislation or with states to which the legislation does not apply. Nor could a country pledge itself to use its power of expulsion as a power to extradite so as to satisfy the need of reciprocity. For reasons to which I have briefly adverted, the limited purpose for which the power of expulsion may properly be used renders it quite inadequate to support an assurance of extradition of any fugitive on request. Thus, in the case of Australia, the Migration Act 1958-1966 (Cth) could not serve as an equivalent of the power of extradition, nor could that Act's existence warrant an assurance of reciprocal treatment in extradition. But, of course, it is for the requested state to decide for itself whether or not it is satisfied with an assurance of reciprocity. The fact that the Australian Government could not, in my opinion, with propriety offer to Brazil an assurance of reciprocity would afford no reason, in my opinion, to conclude that the request it has made to Brazil was unlawful. But these considerations to which I have adverted very much circumscribe the exercise of the prerogative to seek and accept surrender from a non-treaty state. (at p486)

17. It is said that an assurance of reciprocity when given has the same effect as a treaty: but in the case of Australia not only is such a treaty inoperative in the domestic law, but the operation of the Act in relation to any state is dependent on the making of a regulation under s. 10(1)(b). (at p486)

18. Having said so much in general as to extradition, I turn to the substantive questions which the stated case, in my opinion, raises. They are as follows: (a) Was the letter of the Australian Government, which I have quoted, a request seeking extradition? (b) Upon its proper construction, does Pt IV of the Act only apply to foreign states to which the Act is made applicable by the provisions of Pt II? (c) Does Pt IV displace and render inoperative the prerogative of the Crown to seek and accept surrender of a person from a foreign state, not being a foreign state to which Pt IV applies? (at p486)

19. It is quite clear, in my opinion, that the letter of the Australian Government was a request seeking the surrender of the plaintiff. It was a request for the exercise by Brazil of the power accorded by legislation to its executive in urgent cases to impose "preventative imprisonment" on the plaintiff as "the person to be extradited". No more, it seems to me, need be said on that matter except to observe that there is a distinction between a mere request in the absence of a treaty and a requisition made in pursuance of rights conferred by treaty. The request in this case, no matter by whom authorized, whether Cabinet or the Attorney-General, was made through diplomatic channels which is an appropriate mode of communication. (at p486)

20. I turn now to the second question, which turns wholly upon the construction of Pt II of the Act. That Part is concerned, as its caption says, with the "Application of the Act". Its structure is to provide for those states to which the Act shall apply. Sections 10 and 11 which, with s. 9, comprise Pt II, require a regulation to be made under the Act if it is to apply at all to a foreign state where the Act is not applicable to that state by virtue of s. 9. Such a regulation can only be made if an extradition treaty has come into force. Thus, in s. 13 "a foreign state" of necessity means a state either within the provision of s. 9 or a state to which the Act has been applied by regulation pursuant to s. 10. As to a state in the last-mentioned category, it is quite plain that it must be a state with which an extradition treaty with Australia has come into force. When in s. 12 provision was being made for the apprehension and surrender of a fugitive, it seemed necessary to identify the state to which he might be surrendered as a state to which the Act applies. But elsewhere through Pt III references are made to a foreign state, as in s. 13, without any qualification as to the application of the Act. Part II supplied the necessary definition of a foreign state for that Part. (at p486)

21. In my opinion, the foreign state to which ss. 21, 22 and 23 in Pt IV apply is a foreign state to which the Act as a whole applies; that is to say, a foreign state the subject of a regulation in pursuance of Pt II. Such a foreign state must of necessity be a state with which an extradition treaty is in force. (at p487)

22. Two small matters are noticeable in this connexion. First, the extraditable crime to which Pt IV relates is of the same nature as an extradition crime to which Pt III relates, though in the latter case committed against the law of the foreign state. Both are described in identical terms, namely, as in the 1st Sch. to the Act. Having regard to the operation of the definition of extradition crime in s. 4, it is clear that the Parliament has controlled the executive in the use of the extradition treaties. They are capable of containing within their provisions crimes not listed in that schedule. But if they do, the Act will limit the extent to which the treaty may be observed. Thus, because of the need for Australia to be able to perform the treaty, the presence of the definition of extradition crime will control the content of the treaty in its specification of the crimes to which it will apply. Also a regulation made under s. 10 is within the operation of Pt XII of the Acts Interpretation Act, 1901-1966 (Cth) and thus liable to disallowance. Through the power of disallowance and the definition of extradition crime the Parliament has control of the effectiveness of the terms of an extradition treaty. (at p487)

23. The second matter to be noted is that in s. 21 the authority of the Attorney-General is to make a requisition - a word which appropriately describes a demand as a right pursuant to treaty and which is in contrast with the word request when properly used, which indicates a resort to discretion or grace rather than concession of a right. (at p487)

24. The limitation of the authority to requisition to crimes of the identical kind in respect of which extradition treaties may be made and the use of language in s. 21 appropriate to a demand pursuant to treaty assists, though perhaps not in a major way, to fortify the view I have formed of the meaning of foreign state in Pt IV. In my opinion, such states are states which fall within Pt II and, apart from those falling within s. 9, must be states with which Australia has an extradition treaty. (at p487)

25. The third of my three questions remains. How, if at all, has the Act impinged upon the prerogative of the Crown to seek and accept the surrender of a fugitive? Doubtless, the prerogative to do so from a foreign state to which the Act applies has been wholly displaced. The Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined. The only power is that of the Attorney-General to requisition of such a state the surrender of a fugitive who is charged with or has committed an extraditable crime. This requisition will be communicated through diplomatic channels, as is international usage. (at p488)

26. But what of the prerogative to seek and accept from a non-treaty state the surrender of a fugitive? I may say that I have entertained a strong suspicion that the draftsman of the Act intended it to be all embracing and to displace all prerogative power to seek the surrender of fugitives. If it does not, there would remain no limitation on the nature of the crimes with which the fugitive is charged or convicted; there would be no provision such as s. 22 to protect those conveying the fugitive to this country and there would be no speciality to protect the fugitive when he had been brought here. (at p488)

27. These consequences are all potent circumstances favouring the view that a fugitive cannot be sought of a non-treaty state. Of course, there is the further circumstance that, if such a state, acting as one would expect according to international custom, demanded reciprocity, Australia, as I have pointed out, could not with propriety give an assurance or reciprocity in such a case. (at p488)

28. However, the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong. Notwithstanding what I suspect as the draftsman's intention and after a great deal of consideration, I have come to the conclusion that I should hold that Pt IV does not displace the prerogative to seek and accept of a non-treaty state the surrender of a fugitive. As I have pointed out, this prerogative is of little consequence if an assurance of reciprocity is required by the requested state. No assurance of reciprocity could be responsibly given until there was both a treaty and a regulation in respect of which the time for disallowance had expired. (at p488)

29. In a practical sense, through the mechanism to which I have referred,the Act does exercise a control over the whole range of the executive's ability to seek and obtain the surrender of a fugitive, whether from a treaty state or a non-treaty state. (at p488)

30. Having reached the somewhat arid conclusion that the Australian Government's request was not beyond its constitutional power. I have no need to express any view on the difficult question whether if the request had been unlawful the Court should have made an order and, if so, what kind of order. The answer to that question does not lie in any doubt as to the Court's power but in the area of the proper exercise of the Court's discretion in all the circumstances. (at p488)

31. I would answer the questions asked in the stated case as follows: (at p488)
Question 1.
Part IV applies only to foreign states to which the Act has been applied by s. 9 or by regulation pursuant to s. 10 Consequently, Pt IV does not authorize a requisition being made by the Attorney-General of a foreign state to which the Act does not so apply.
Question 2.
Yes.
Question 3. Yes, subject to the comments (i) that such a request cannot properly contain
an assurance of reciprocity and (ii) that a use of the Migration Act could not properly be made as the equivalent of an assurance of reciprocity. (at p489)

MCTIERNAN AND MENZIES JJ. In considering this case we propose to confine our attention to the third question which has been submitted to the Full Court because, in our opinion, there has been no request by the Government of Australia to the Government of Brazil for the extradition of the plaintiffs. The request referred to in the third question - which is the only request that has been made - is not a request for extradition. It is patently a request "to detain" the plaintiffs "pending a request for extradition to Australia". It is the request which has been made, and that request only, which the plaintiffs claim to be invalid and ultra vires the Executive Government of Australia. We do not propose to decide matters falling outside that claim and which would arise for decision only if a request for extradition had been made and challenged. It is to a request for extradition that the first and second questions relate. (at p489)

2. The circumstances in which the matter is before this Court have been stated fully in the judgment of Mason J., which we have had the advantage of reading. We can confine ourselves, therefore, to considering and deciding whether the making of the request was invalid. (at p489)

3. As to this, one argument on behalf of the Commonwealth can be disposed of shortly. Reliance was placed upon s. 21 of the Extradition (Foreign States) Act 1966-1973 as statutory authority for making the request. The request, however, is not a request made pursuant to that section whether or not it covers a requisition to a state to which the Act has not been applied by or in accordance with Pt II thereof. The request is not a requisition for the surrender of the plaintiffs and it was not made by the Attorney-General. (at p489)

4. It is a matter of legitimate concern to the Government of Australia, in common with other governments, that fugitive offenders should not escape trial and punishment. This common concern is the basis for extradition as it has been established for centuries, i.e. the surrender of fugitive offenders by the state in which they have taken refuge to the state from which they have fled, upon the request of that state. That such requests may be made and granted depended upon comity but in Australia it has been regulated by statute. (at p489)

5. Extradition itself, however, is not the only possible manifestation of such common concern. That concern may manifest itself in the seeking and giving of information about the whereabouts of fugitive offenders; it may manifest itself by one state asking another state not to admit a fugitive offender to its territories. That such requests may be made and entertained depends upon comity between states sharing the common concern to which we have referred. (at p490)

6. In the case now before this Court, the manifestations of that concern is that one state has asked another state to detain fugitive offenders pending the taking of extradition proceedings in relation to them. This request in the absence of legislative authority - and there is none - is claimed to be outside the power of the executive. It is the request itself to which objection is made and it seems to us that the validity of the objection cannot depend in any way upon either the power or the willingness of the Government of Brazil to comply with it. Whether or not the municipal law of Brazil authorizes such detention seems to us to be immaterial. The Government of Australia could not comply with a request by the Government of Brazil to detain a fugitive offender from Brazil pending proceedings for extradition. Australian law does not authorize such detention. We see, however no reason why the Australian Government could not receive a request from the Government of Brazil to do what it would have to say is beyond its power. A request is not invalid because it must be refused. In this case it is, in our opinion, immaterial that the Government of Brazil has seen fit to comply with the request and issue an order for the arrest of the plaintiffs. The lawfulness of that response is a matter for Brazil, to be determined in Brazil according to the municipal law of Brazil. With that law this Court is not concerned. (at p490)

7. The very conception of an invalid request is one with which we find some difficulty. We grasp readily enough the idea of an unlawful request, either by making a request which is forbidden by law or requesting an unlawful act, but here what is claimed is simply that the Government of Australia, which has power to treat with the governments of other states about matters of common concern, had no power to make the request which it did to the Government of Brazil. The so-called problem of the invalidity of that request is not unlike that which this Court disposed of in Clough v. Leahy (1905) 2 CLR 139, esp at p 163 . Indeed the problem is one of lawfulness, not of invalidity. In our opinion, short of some statutory prohibition it was not unlawful for the Government of Australia to do what it did, namely to ask another government to do what it considers would contribute to the bringing of the plaintiffs to trial in Australia in accordance with warrants already issued. If the Government cannot make such a request it seems to us that it must follow that, without legislative authority, any request for extradition would have fallen outside executive power. This history contradicts. We are content to rely upon the examination which Mason J. has made of the literature and to agree with him that it is a function of executive power without statutory authority to request extradition. We agree too that, in this respect, the executive power of the Government of Australia matches the executive power of the governments of other states. (at p491)

8. Accordingly we are satisfied that unless statute, either expressly orby necessary implication, has deprived the executive of part of its inherent power, it may make such requests as it considers proper for the assistance of other states in bringing fugitive offenders to justice. The contention that the Act has confined executive power to request extradition to what the Act, if applied, itself authorizes is one of the matters falling outside our consideration of the third question, for however that question may be resolved leaves untouched our conclusion that there is nothing in the Act which prevents the Government of Australia from making a request to the Government of Brazil for detention pending extradition proceedings. We may say, however, that a comparison of s. 21 with s. 12, a consideration of earlier legislation such as the Extradition Act, 1870 (U.K.), and the generality of the provisions to be found in Pt IV of the Act disposes us presently to think that the Attorney-General is authorized by s. 21 to make a requsition to a foreign state for the surrender of a fugitive offender whether or not that state is one to which the Act has not been applied in accordance with Pt II. It is understandable that Parliament should confine executive power in relation to extradition from Australia in a way for which there is no corresponding reason in the case of extradition to Australia. (at p491)

9. In our opinion the Government of Australia had the power to make the request which it did. What would follow from deciding that it did not have that power does not require our consideration. What follows from our decision with regard to extradition itself is also a matter for another day. (at p491)

10. We would, for the foregoing reasons, answer the questions asked as follows: 1. and 2. - Not necessary to answer. 3. - Yes. (at p491)

MASON J. This is a case which I stated pursuant to s. 18 of the Judiciary Act 1903-1972. It was stated in an action commenced by the plaintiffs in the original jurisdiction of this Court in which they seek declaratory and other relief in respect of a request made by the Australian Government to the Government of Brazil that action be taken by that Government to detain the plaintiffs pending a request for their extradition to Australia. The declaration sought is that the request was invalid and ultra vires the Executive Government. (at p491)

2. The facts recited in the stated case are that the plaintiffs are Australian citizens who presently reside in the Federative Republic of Brazil (hereinafter called "Brazil"). During the month of November 1973 various charges of offences against the law of New South Wales were laid against the plaintiffs and warrants for their arrest were issued in that State. Each plaintiff was charged with offences against s. 73 of the Securities Industry Act, 1970, s. 176 of the Crimes Act, 1900 (as amended) and s. 124 of the Companies Act 1961 (as amended), all being Acts of the New South Wales legislature. (at p492)

3. There is no extradition treaty in existence between Australia and Brazil. Nor, at the commencement of the Extradition (Foreign States) Act 1966-1973 ("the Commonwealth Act") was there any extradition treaty in force between the United Kingdom and Brazil. The requirements of the provisions of Pt II of the Commonwealth Act respecting the application of the Act in relation to a foreign state have not been satisfied in relation to Brazil. (at p492)

4. Notwithstanding this circumstance, in the month of February 1974 the defendant communicated with the Government of Brazil and presented a request in the following terms:

"The Embassy of Australia presents its compliments to the Ministry of Foreign Affairs of the Federative 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 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 from Australia." (at p492)

5. So far as they are material to the questions which arise, the terms of arts. 114 to 120 of Decree Law 66.689 of 11th June 1970 of Brazil are as follows:

"114. The extradition of a foreigner may be granted when the Government of the other country asks for it invoking a convention or treaty signed with Brazil and, in the absence of it, the existence of reciprocity of treatment." "116. The following are conditions for the granting of extradition - I. The crime must have been committed in the Territory of the petitioning State or the penal law of that State are applicable to the extraditee. II. There exists a final judgment for the deprivation of liberty, or the imprisonment of the extraditee has been authorized by a judge, court or competent authority of the petitioning State, with the exception of what is laid down in Article 120." "118. Extradition will be solicited through diplomatic channels or, in the absence of diplomatic agents from the petitioning State directly from Government to Government, the request having to be accompanied by a copy or authentic translation of the condemnatory judgment, or of the decisions of the indictment or preventive imprisonment, preferred by a judge or competent authority. In this document or others which are specifically related to it, there must be recorded precise indication of the place, date, nature and circumstances of the criminal act, identity of the person to be extradited and also a copy of the legal text covering the crime, the punishment and its description. Special Paragraph - The delivery of the request through diplomatic channels confers authenticity on the documents presented." "120. In urgent cases, preventative imprisonment of the person to be extradited can be conceded, by means of a legally competent petition, made through any method of communication by a competent authority, diplomatic or consular agent of the petitioning State. 1. The petition, to which this Article refers will indicate what is the crime committed and will be founded on a condemnatory sentence, a document pertaining to current imprisonment, warrant for arrest or, even the escape of the accused. 2. Within 90 days of the date on which imprisonment has been requested, the petitioning State must present the formal request for extradition accompanied by the documents listed in Article 118.

3. Imprisonment, based on this Article, will not be maintained beyond the period referred to in the previous paragraph, not event if a new request for the same act (crime) is admitted, unless extradition has been formally presented." (at p493)

6. Following the making of the request, the Government of Brazil issued an order for the arrest of the plaintiffs. They were presently hiding in that country and have not yet been arrested. (at p493)

7. The questions asked in the stated case are as follows:

1. Is the Australian Government entitled under the provisions of Pt IV of the Extradition (Foreign States) Act 1966-1973 to request the extradition of an Australian citizen to Australia from a foreign state as to which the requirements of ss. 9 and 10 of the said Act are not satisfied? 2. If not, is the Australian Government entitled to request the extradition of an Australian citizen from a foreign state to Australia in circumstances in which the provisions of the Extradition (Foreign States) Act 1966-1973 do not apply?

3. Does the executive power of the Commonwealth of Australia enable the Australian Government to make a request to the Government of Brazil in the terms set out in part. 6 of this case? (at p493)

8. Before I turn to the questions which relate to the effect of the Commonwealth Act, it is necessary to consider the function of the Executive Government in relation to the extradition of fugitive offenders. At one time it was widely thought by international lawyers that the comity of nations imposed upon a state harbouring a fugitive accused of having committed an offence in another state a duty to surrender the fugitive to the State in which the offence was alleged to have been committed. This view was not accepted in English law, and it is firmly established in the United Kingdom and in Australia that a fugitive offender cannot be arrested for extradition overseas in the absence of a warrant issued under the authority of a statute (see Brown v. Lizars (1905) 2 CLR 837 ; Reg. v. Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at pp 299-300 ). (at p494)

9. In Brown v. Lizars (1905) 2 CLR, at pp 852, 859, 861 , it was acknowledged that initially the extradition of fugitive offenders was an exercise of the executive or prerogative power of the Crown. The correctness of this statement is borne out by reference to Crown practice in earlier times. Contrary to previous thinking, it seems that from the late twelfth century onwards England became a party to a large number of treaties with various European states which contained provision for the mutual non-reception, or the mutual surrender, of fugitive criminals and rebels. It was not until the seventeeth and eighteenth centuries that the number of treaties providing for extradition or surrender of fugitive offenders, to which Great Britain was a party, sharply diminished, no doubt partly as a result of the Habeas Corpus Amendment Act of 1679, for one of the consequences of this statute was that statutory authority became necessary for the extradition from Great Britain of a fugitive offender who was a British subject. This, however, was for a long time a matter of debate. Indeed, it seems that it was not until the nineteenth century that it was finally settled that extradition from Great Britain could not take place in the absence of statutory authority for the issue of a warrant. Even then there was some judicial authority to support a contrary view (East India Co. v. Campbell (1749) 1 Ves Sen 246 (27 ER 1010) ; Mure v. Kaye (1811) 4 Taunt (128 ER 239) ). (at p494)

10. Before the passing of the Habeas Corpus Amendment Act of 1679 it seems generally to have been thought that the extradition of fugitive offenders was an exercise of the executive or prerogative power of the Crown, although Coke considered that statutory authority was necessary for exile or banishment beyond the realm (Inst. 2, p. 47). There is no doubt that in the making of treaties containing provision for mutual non-reception, or the mutual extradition, of fugitive offenders, in seeking and obtaining the surrender of fugitive criminals from other countries, whether pursuant to treaty or not, and in granting extradition of fugitive offenders at the request of foreign states the Crown exercised its executive or prerogative power, without benefit of statutory authority. (at p495)

11. Some attempt was made by the plaintiffs' counsel to suggest that extradition of a fugitive offender from a foreign state to Great Britain never was a matter falling within the executive power, but I have been unable to find any support for this view, unless the observations of Coke are to be so regarded, Indeed, there are a number of recorded instances, referred to by P. O'Higgins in his article "The History of Extradition in British Practice 1174 to 1794", Indian Year Book of International Affairs, vol 13, (1964), p. 78 et seq., in which the Crown sought, sometimes with success, at other times without success, the surrender by a foreign state of a fugitive criminal in the absence of a treaty providing for non-reception of fugitive criminals and rebels. Notable examples which are given were the surrender of Thomas de Gourney, one of the assassins of Edward II, by the King of Castile in 1331, and the request by Henry VII for the surrender by Archduke Philip of Austria of Perkin Warbeck who was in Flanders, then part of the Austrian dominions. (at p495)

12. It seems that few requests made by the Crown for extradition were successful in circumstances where there was no treaty obligation to surrender and that the vast majority of cases in which there was extradition of fugitive criminals to England from foreign countries were cases where the foreign state was under a treaty obligation to surrender. Nevertheless it is beyond dispute that the Crown exercised its power to request extradition, notwithstanding the absence of a treaty, and that in some instances these requests were successful. (at p495)

13. The plaintiffs' counsel endeavoured to establish that the executive power to request extradition otherwise than pursuant to a treaty, if it formerly existed, had fallen into desuetude. Reliance was placed on instances recorded in the British Digest of International Law (1965), vol. 6, pp. 462-469, in which the British Government declined to make applications to foreign states for the extradition to Great Britian of fugitive offenders. However, it is to be noted that the authors commence their discussion of the topic "Liberty to Request Surrender" with the following statement:

"Early Procedure" - The denial of the existence of any right to demand the surrender of fugitive offenders in the absence of expressed stipulation need not be taken to imply that a State is not a liberty to request such surrender." (p. 462)

The authors then gave a number of instances of requests made by the British Government to the United States in the first half of the nineteenth century for the surrender of fugitive offenders at a time when there was no extradition treaty in force with the United States. In one instance the request led to the extradition to lower Canada of one Neilson under a New York state which made provision for unilateral extradition (p. 462). (at p496)

14. When the instances relied on by counsel for the plaintiffs are examined it is seen that they turn for the most part, not on the view that an application for extradition was beyond the executive power, but on persuasive policy considerations. In part they reflect a view that the government should not as matter of propriety participate in the detention and custody of a fugitive offender outside Great Britain when legal authority for that detention and custody might by wanting. They reflect also the view that the necessity for statutory authority for extradition in Great Britian makes it difficult, if not impossible, for the Crown to satisfy the requirement of a foreign government that reciprocal extradition of fugitive offenders will be granted to it. In several cases the language of the Foreign Office memoranda states that a request for extradition "could not be made in the absence of an extradition treaty" or "would be a departure from the practice followed by the Crown. However, I do not regard these memoranda as being necessarily inconsistent with other statements in which the disinclination of the Government to request extradition in the absence of a treaty is based upon policy considerations. (at p496)

15. The plaintiffs also placed reliance on the evidence given by the Permanent Under-Secretary of State to a Select Committee of the House of Commons (British Digest of International Law, vol. 6. pp. 463-465) in support of the proposition that the Crown had abandoned its right to seek extradition otherwise than pursuant to a treaty. In my view the evidence is not susceptible of this interpretation. The Permanent Under Secretary rightly drew attention to the distinction which obtains between extradition pursuant to a treaty and extradition in other circumstances. In the case of extradition falling within a bilateral treaty the Crown has a right to demand the extradition of a fugitive offender and the foreign government to which the request is made has an obligation to grant extradition. But where no treaty exists there can be no right to demand extradition or obligation to grant it. It is a then a matter for the Crown to request extradition of a fugitive offender and for the government requested to decide whether as matter of discretion it will accede to the request. (at p496)

16. The Extradition Act of 1870 was the first English statute having a general application to extradition of fugitive pursuant to treaty. I provided a general procedure for the surrender of fugitive offenders to a foreign state. Its purpose was quite plainly to provide a procedure for the surrender of fugitive offenders which would ensure compliance with the Crown's treaty obligations and incidentally provide the necessary statutory authority for the detention and custody of those offenders. With the exception of s. 19, to which I shall refer later, it contained no provision touching the surrender by a foreign state of a fugitive offender who was alleged to have committed an offence against the laws of Great Britain. (at p497)

17. Following the passage of the Extradition Act of 1870 the Crown entered into bilateral treaties with many countries providing for the reciprocal extradition of fugitive offenders. The consequence was that the extradition of fugitive offenders to Great Britian was in large measure governed by treaty and by the provisions of the Act of 1870. However, this consequence provides no ground for saying that, in some unexplained fashion, the Crown abandoned, or must be taken to have abandoned, its long-standing power to seek and make ad hoc arrangements for the surrender to it of fugitive offenders resident in foreign countries with whom no treaty relationship exists. On the contrary, the Crown has asserted the power in right of the United Kingdom in recent times (Shearer, Extradition in International Law, p. 26). I should mention that many of the instances of non-exercise of the power recorded in the British Digest of International Law, vol. 6, pp. 462-469, took place after the Extradition Act of 1870 came into force, but, as I have said, they do not support the view that the power has been abandoned. (at p497)

18. The effect of the Act of 1870 in its application to extradition pursuant to treaty was to put beyond doubt the abrogation of the executive power formerly enjoyed by the Crown of surrendering fugitive offenders who were alleged to have committed offences against the law of a foreign state, a power which had already been diminished by the Habeas Corpus Amendment Act of 1679, but there is nothing in the statute to support the view that it abrogated or abolished the Crown's power to request the extradition from a foreign state of a fugitive offender to have committed an offence against the laws of England. As I have already observed, the only provision in the Act of 1870 which touched the surrender by a foreign state of a fugitive offender alleged to have committed an offence against the laws of England was s. 19. It provided that where, in pursuance of any arrangement with a foreign state, a person accused or convicted of any crime which, if committed in England, would be one of the crimes described in the 1st Sch. to the Act, was surrendered by a foreign state that person should not be tried for any offence committed prior to the surrender other than such of the crimes as may be proved by the facts upon which the surrender was grounded. The section provided an important protection to a fugitive offender who had been extradited pursuant to an arrangement with a foreign state, but it left entirely untouched the executive power of the Crown to request and to negotiate the surrender by a foreign state of a fugitive offender. This executive power therefore remained unaffected and undiminished by the statute. (at p498)

19. I approach the questions, therefore, on the footing that the making of a request to a foreign state for extradition of a fugitive offender wanted for trial in Great Britian in circumstances where there was no treaty between Great Britian and the foreign state was something which at the end of the nineteenth century fell within the executive power of the Crown. It is necessary then to examine the executive power of the Commonwealth. (at p498)

20. The Constitution established the Commonwealth of Australia as a political entity and brought it into existence as a member of the community of nations. The Constitution conferred upon the Commonwealth power with respect to external affairs and, subject perhaps to the Statute of Westminster 1931 and the Balfour Declaration, entrusted to it the responsibility for the conduct of the relationships between Australia and other members of the community of nations, including the conduct of diplomatic negotiations between Australia and other countries. By s. 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law. (at p498)

21. As Latham C.J., said in R. v Burgess: Ex parte Henry (1936) 55 CLR 608, at pp 643-644 :
"This view is, I think, supported by a consideration of the object which must have been in contemplation when the Constitution was enacted. Australia was established as a new political entity and Australia was to be given control of her own external affairs. Under s. 61 of the Constitution the Executive Government of the Commonwealth can deal administratively with the external affairs of the Commonwealth . . . The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves . . . the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane. The most obvious example of such action is to be found in the negotiation and making of treaties with foreign countries." (at p498)

22. I conclude, therefore, that, subject to a consideration of the effect of the Commonwealth Act, the making of a request to a foreign state for the surrender of a fugitive offender alleged to have committed an offence against the laws of Australia is an act which falls within the executive power of the Commonwealth. Likewise, I am of opinion that the making of a request for the detention of a fugitive offender as a preliminary to his extradition to Australia is an act that falls within the executive power of the Commonwealth. (at p499)

23. The Solicitor-General submitted that authority for the making of the request in February 1974 by the defendant to the Government of Brazil relating to the plaintiffs was given by s. 21 of the Commonwealth Act which enables the Attorney-General to make a requisition to a foreign state for the surrender of a person accused or convicted of an extraditable crime. The section is contained in Pt IV of the Act, which bears the heading "Extradition from Foreign States". (at p499)

24. The problem is that Pt II of the Act, which is headed "Application of Act", contains three sections which provide that the Act applies in relation to (a) a foreign state to which, immediately before the commencement of the Act, the Act of 1870 applied by virtue of an Order in Council then in force; and (b) a foreign state to which the Act is made applicable by regulation, where after the commencement of the Act an extradition treaty comes into force between Australia and that foreign state. (See ss. 9. to 11.) (at p499)

25. The expression "Where this Act applies in relation to a foreign state" appears only in s. 12 of the Act. It is the first provision in "Part III - Extradition to Foreign States", and it was suggested, therefore, that Pt II is of limited scope and that its purpose is merely to define the expression which appears in s. 12, thereby limiting that section and, it seems, the remaining provisions of Pt III in accordance with the operation for which Pt II makes provision, thus enabling Pt IV to have a general applicaton independently of Pt II. In support of this view it may be said that none of the provisions contained in Pt IV is so expressed as to be necessarily limited to extradition from a foreign state pursuant to a treaty. Nor does the content of these provisions render their application to extradition from a non-treaty country in any way inappropriate. Indeed, each of the provisions contained in Pt IV is well suited to apply to extradition from foreign states, whether pursuant to treaty or not. (at p499)

26. Nevertheless, I am unable to read Pt II otherwise than as a declaration and description of the circumstances in which the Act in its entirety is intended to operate. This, so it seems to me, is the natural sense in which the heading of Pt II and the provisions of ss. 9 to 11 should be read. It is difficult to read such expressions as "this Act applies in relation to that state" (ss. 9(1) and (2), 10(1)(a) and (2), 11(1) and (2)) and "this Act ceases to apply in relation to a foreign state" (s. 9(3)) as referring to anything but the Act in its totality. Had it been intended to limit the operation of Pt III only, it would have been an easy task to have expressed that limitation with precision and for that matter to place it in a context in which the exclusive connexion of Pt II with Pt III is more readily discernible. (at p499)

27. Counsel for the plaintiffs was not content to rest on the proposition that s. 21 conferred no authority for the making of the request. He went further and submitted that the Act constitutes an exclusive and comprehensive code governing extradition to and from foreign states, with the consequence that it makes unlawful the extradition of a fugitive offender from a foreign state to which the Act does not apply. In support of the contention, attention was called to the title of the Act and the comprehensive nature of its provisions. It was pointed out, correctly, that the Act constitutes the sole source of legal authority for extradition of fugitive offenders from Australia to foreign states (excluding Commonwealth countries - as to which see the Extradition (Commonwealth Countries) Act 1966-1973). This, it was submitted, suggests that correspondingly the Act is intended to constitute the sole source of authority for extradition to Australia from foreign states. (at p500)

28. The argument finds some support in Pt III which confers important protection on fugitive offenders whose extradition from foreign states is sought by Australia. First, extradition is permitted only in those cases in which the fugitive offender has been convicted or accused of an "extraditable crime" listed in the 1st Sch. to the Act as qualified by the provisions of s. 20(b). Secondly, a fugitive offender surrendered by a foreign state shall not be detained or tried in Australia without the consent of that foreign state for any offence other than the offence or offences on which the requisition for extradition was based and he shall not be detained in Australia without such consent for extradition to another country for trial for any offence committed before his surrender to Australia other than an offence which could be proved on the facts on which the requisition was based (s. 23). The point was made that it is unlikely that Parliament, having insisted on these protections in the case of extradition pursuant to treaty, would have contemplated the continued existence of extradition from foreign states in circumstances where no similar protection would apply. It was also submitted that s. 19 of the 1870 Act had conferred a protection, similar to that conferred by s. 23 of the Commonwealth Act, on fugitive offenders extradited to the United Kingdom and that unless the Commonwealth Act is held to be a comprehensive and exclusive code governing the extradition of fugitive offenders to and from Australia, by repealing s. 19 of the 1870 Act, it denies the protection formerly accorded to a fugitive offender of immunity from trial for any offence other than the offence for which he was extradited, without replacing that immunity with a provision of the same general character. (at p500)

29. The argument based on the supposed intention of Parliament, although it has some attraction, is speculative and loses much of its force once it is accepted, in accordance with the view which I have expressed, that the application of the Commonwealth Act is limited to circumstances in which Australia is bound by an extradition treaty with a foreign state. Further, it is not a sufficiently cogent consideration to justify the conclusion that the statute should be held to have abrogated the Crown's executive or prerogative power to seek and obtain the surrender by a foreign state not party to an extradition treaty with Australia of a fugitive offender. It is well accepted that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by implication, that is, necessary implication (see Attorney-General v. De Keyser's Royal Hotel Ltd. (1920) AC 508, at p 576 ). Here, not only is there a conspicuous absence of express words, but the area of operation of the statute, limited as it is to extradition pursuant to treaty, does not extend to the whole of the area covered by the exercise of the prerogative or executive power; moreover, there is no inconsistency between the provisions of the statute and the exercise of that power so far as it relates to the extradition of fugitive offenders from foreign states which are not party to an extradition treaty with Australia. (at p501)

30. Finally, and this in my view is the decisive consideration, the power to seek and obtain the surrender by a foreign state of a fugitive offender is an important power essential to a proper vindication and an effective enforcement of Australian municipal law. It is not to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect. The arguments advanced by the plaintiffs do not provide any solid ground for concluding that the Act manifests such an intention. (at p501)

31. The submission based on s. 19 of the 1870 Act proceeds on the view that the protection which the section afforded applied whenever a fugitive offender was extradited from a foreign state to Great Britain. The soundness of this view depends on the meaning to be assigned to the words "any arrangement", for the protection which the section gave was expressed to apply "Where, in pursuance of any arrangement with a foreign state, any person accused or convicted of any crime . . . is surrendered by that foreign state . . ." As a matter of first impression it might be thought that the words "any arrangement" were sufficiently wide to include an ad hoc agreement between Great Britain and a foreign state for the surrender by that state of a particular fugitive offender. However, the use of the word "arrangement" in s. 2 of the 1870 Act throws considerable doubt on the accuracy of this view. Section 2 provides:

"Where arrangement for surrender of criminals made, Order in Council to apply Act. - Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by Order in Council, direct that such Act shall apply in the case of such foreign state. Her Majesty may, by the same or any subsequent order, limit the operation of the order, and restrict the same to fugitive criminals who are in or suspected of being in the part of Her Majesty's dominions specified in the order, and render the operation thereof subject to such conditions, exceptions, and qualifications as may be deemed expedient.

Every such order shall recite or embody the terms of the arrangement, and shall not remain in force for any longer period than the arrangement." (at p502)

32. The terms of the section indicate that the word "arrangement" is used in the sense of a general arrangement such as that made by treaty or convention which makes provision for the mutual surrender or extradition of a class of fugitive criminal or offenders. The first paragraph makes it clear that an Order in Council may be made making the Act applicable to a foreign state when an arrangement has been made with respect to the surrender to such state of fugitive criminals. The Act contains no provision for an Order in Council giving the Act an operation when an arrangement is made merely for the surrender of fugitive criminals by a foreign state. And the paragraphs of the section plainly contemplate an application, not to an ad hoc arrangement with a foreign state for the surrender by it of a particular fugitive offender, but to a general arrangement. In my view the word "arrangement" is used in a limited sense and, accordingly, s. 19 conferred an immunity only in those cases in which the Act applied to a general agreement of the kind which I have described. The consequence is that the plaintiff's submission based on s. 19 is misconceived. (at p502)

33. On the view which I have expressed neither the 1870 Act nor the Commonwealth Act conferred on a fugitive offender extradited from a foreign state otherwise than pursuant to treaty protection of the kind which s. 19 of the 1870 Act conferred and Pt IV of the Commonwealth Act confers. Each statute directed its provisions to the case of extradition pursuant to treaty and included the protection presumably because it was a characteristic safeguard insisted upon in bilateral extradition treaties, not because it was considered to be a protection to be accorded to every fugitive offender. (at p502)

34. Section 22 of the Commonwealth Act provides lawful authority for the conveyance of a fugitive offender from a foreign state to Australia and it overcomes, to some extent, the long-standing problem of legal authority for the conveyance of a fugitive offender. However, the circumstance that it does not apply to all cases of extradition does not assist the plaintiffs. (at p502)

35. Criticism was made on behalf of the plaintiffs of the form of the request made by the Australian Government to the Government of Brazil. It was urged that it was no more than a request for the imprisonment of the plaintiffs so that the Australian Government might meantime make up its mind whether it would formally apply for their extradition. I do not so read the request. To my mind it is a request for the detention of the plaintiffs as an initial step in the process of their extradition in accordance with the procedure for extradition in urgent cases prescribed by art. 120 of the Brazilian law. Detention inevitably is an incident in the process of extradition. The Brazilian law contemplates that in urgent cases detention may be necessary pending the making of a formal request. Viewed against the provisions of the Brazilian law I think that the request should be regarded as a request for detention as an initial step in the process of extradition on the footing that a formal request for extradition will be made by the Australian Government in accordance with art. 120. (at p503)

36. It was also argued that there could be no valid extradition under Brazilian law because art. 114 requires "the existence of reciprocity of treatment" in the absence of a convention or treaty. It was said that under Australian law a Brazilian subject could not be extradited in like circumstances. This, so it seems to me, is not a question raised by the stated case. Although we have the text of the Brazilian law there is no recital in the case or agreement of the parties as to the legal effect of that law. Whether the reciprocity of which it speaks is a matter to be determined by the Government of Brazil or the courts or Brazil or is a matter which this Court is at liberty to determine for itself we do not know. (at p503)

37. In any event I do not accept the notion that the objective existence or reciprocity of treatment by the requesting state is an essential element in the concept of extradition in cases in which there is no treaty. Historically the surrender of a fugitive offender has been a matter of diplomatic negotiation in which in the absence of any requirement in its municipal law, the state requested has naturally sought a declaration or promise of reciprocal treatment in analogous circumstances. And it has been for the state requested to decide whether it would regard any statement or proffer of reciprocity as a satisfactory answer. If the municipal law of the state requested specifies the existence of reciprocity as a condition of extradition, the nature and character of the reciprocity stipulated for will depend on the interpretation of the municipal law. And in many instances the municipal law will leave to the decision of the executive the question whether the condition is satisfied or whether the diplomatic assurance given by the requesting state is adequate - see Shearer, pp. 31-33; In re Zahabian (1963) 32 Int LR 290 . (at p503)

38. The Australian Government in its request has drawn attention to the provisions of the Migration Act which might be applied in the case of an alien who is a Brazilian subject. This reference should not, in my view, be taken as an indication that the Government regards the powers conferred by that Act as capable of an exercise otherwise than in accordance with what has been said by this Court in Znaty v. Minister of State for Immigration (1972) 126. CLR 1 . A distinction is to be observed between extradition and deportation and powers conferred by the Migration Act can be exercised only for the purposes authorized by that Act. (at p504)

39. In the result I would answer the questions asked as follows: 1 No. 2. Yes. 3. Yes. (at p504)

JACOBS J. The questions asked in the stated case are as follows:
"1. Is the Australian Government entitled under the provisions of Pt IV of the Extradition (Foreign States) Act 1966-1973 to request the extradition of an Australian citizen to Australia from a foreign State as to which the requirements of ss 9 and 10 of the said Act are not satisfied?
2. If not, is the Australian Government entitled to request the extradition of an Australian citizen from a foreign State to Australia in circumstances in which the provisions of the Extradition (Foreign States) Act 1966-1973 do not apply?

3. Does the executive power of the Commonwealth of Australia enable the Australian Government to make a request to the Government of Brazil in the terms set out in par. 6 of this case?"

The last question relates to the constitutional power of the Australian Government in the absence of legislative authority. It arises from the declaration sought in the statement of claim that the request by the Commonwealth of Australia to the Government of Brazil in or about the month of February 1974 for the detention of the plaintiffs in Brazil pending a request for extradition to Australia is beyond any power of the executive government of the Commonwealth in its execution and maintenance of the Constitution and of the laws of the Commonwealth. The first two questions relate to the construction of the Extradition (Foreign States) Act 1966-1973. The first of them raises the question whether Pt IV of that Act (dealing with extradition from foreign states) is limited to extradition from foreign states with whom there is in existence an extradition treaty or whether it applies generally to foreign states. The second raises the question whether, assuming Pt IV of the Act to be so limited, that Part is on its true construction intended to be exhaustive of the circumstances in which the Australian Government may now apply to a foreign state for extradition. (at p504)

2. I find it convenient to deal first with the constitutional power of the executive apart from the statute and then to consider whether in the present case there is power under the statute and whether, if this be not so, the statute has taken away any constitutional power of the executive which would otherwise exist. (at p505)

1. The constitutional power of the Australian Government apart from statute.

3. It is in my opinion within the executive power of the Australian Government as the government of a sovereign state to communicate in such terms as it thinks fit with the Government of Brazil unless by legislation the power of making such a communication is taken away from it. It does not by such a communication make anything lawful which under the municipal law of Australia is unlawful nor does it thereby make anything unlawful which by the municipal law of Australia is lawful. (at p505)

4. In the absence of any legislative prohibition the free right of the Australian Government to communicate at will with a foreign government is an essential attribute of this country as a sovereign nation. "It is a well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer." (Cook v. Sprigg (1899) AC 572, at p 578 ). (at p505)

5. Any act of the Brazilian Government consequent upon the request of the Australian Government will be governed by the law of Brazil. How far the Australian Government by instigating or participating in such an act on Brazilian territory could make itself liable in tort in the courts of this country is a complex question which is not raised in or by the present proceedings. The lawfulness or unlawfulness in this sense of the communication as an instigation of or participation in acts of the Brazilian Government or of persons in Brazil acting at the behest of the Brazilian Government is not related to power. It is a subject matter concerned with the law relating to foreign torts rather than that relating to Australian constitutional power. Its applicability would depend on a number of particular facts which are not stated in the case and on a number of principles of law which do not arise for consideration without the facts being known. The questions asked in the stated case are not intended to raise the question of the lawfulness of any action taken in Brazil pursuant to the request made by the Australian Government. (at p505)

6. A request to a foreign state for a person's extradition or for his detention is in the absence of a statute a purely executive act, and may therefore be called an exercise of the prerogative. Whether or not that request is efficacious depends upon the law and practice of the country to whom the request is made. A request from a foreign state for the detention or extradition of a person from Australia stands in a quite different position from a request to a foreign state. The former request is not a matter of prerogative at all. It depends upon the relevant law of this country. Therefore, although it is not necessary to give power to the executive to request detention in and extradition from another country, nevertheless, if reciprocity with the other country is sought, it is necessary to provide by Act of Parliament for detention in and extradition from this country. This was recognized in the United Kingdom Extradition Act, 1870. Power was thereby given to extradite from the United Kingdom subject to conditions precedent being fulfilled and prescribed procedures being followed. However, the Act was silent on any power to request extradition because the grant of such power was unnecessary. The Crown already possessed it. The Act did not limit the prerogative. The Crown could still make whatever general or particular arrangement it thought fit with a foreign country but such an arrangement would be futile to obtain reciprocity unless it was one which conformed to the requirements of the Act. If it did not so conform, there could be no extradition from the United Kingdom and therfore no reciprocity. But the prerogative power remained untouched. (at p506)

7. Because a person could only extradited from the United Kingdom for an extradition crime and pursuant to a treaty it became the firm practice of Her Majesty's Government in the United Kingdom not to request extradition from a country with whom there was no treaty or for a crime which was not an extradition crime. This has been much relied upon by the plaintiff but the practice is clearly one designed to secure international comity and is not the application of any principle of municipal law. (at p506)

8. The Extradition Act, 1870 dealt only with the effectuation of extradition treaties in the municipal law. It did so in two main ways. First, it gave power to extradite according to its provisions. Secondly, it provided a limitation on the manner in which a person extradited to the United Kingdom puruant to a treaty could be dealt with by the United Kingdom courts, s. 19. It left unaffected the power or right of the Crown to request the extradition of a person from a foreign country to the United Kingdom. (at p506)

2. The Extradition (Foreign States) Act 1966.

9. Until 1966 substantially the same law was applicable in Australia as in the United Kingdom. The Extradition Acts 1870 to 1935 were made applicable in this country by Order in Council and were supplemented by the Extradition Act 1903-1950 (Cth). Since 1966 the United Kingdom statute and the consequent Australian Legislation has been replaced by the Extradition (Foriegn States) Act 1966 (Cth). Part II of that Act provides for the circumstances in which the Act is to apply. Briefly, by s. 9 the Act will apply where there was an extradition treaty in existence before the commencement of the Act and the provisions of the previous extradition legislation in force in Australia extended to that treaty. It will also apply where pursuant to s. 10 there is a new extradition treaty with a foreign state and the Act is by s. 11 declared by regulation to apply in respect of that extradition treaty. Part III of the Act deals with extradition to foreign states. Part IV deals with extradition from foreign states. The effect of the application of the Act is not directly to give the relevant treaty the force of law within Australia but is at least to bring into operation the provisions of the Act in relation to extradition to the foreign state with whom the extradition treaty exists. So far all are agreed, and there is no doubt that if the Act does not apply by virtue of ss. 9, 10 and 11 there can be no extradition from Australia to a foreign state. But then the question arises whether the Australian Government can request extradition from a foreign state with whom there is no extradition treaty. On behalf of the Australian Government it has been submitted that Pt IV of the Act applies to all extradition from foreign states whether or not there is a treaty within s. 9 or within s. 10 with a consequent regulation under s. 11 making the Act applicable in respect thereof. On the other hand on behalf of the plaintiffs it has been submitted that not only is this not so and that Pt IV applies only where there is a treaty and a consequent regulation under s.11 but that Pt IV is indeed exhaustive of the circumstances in which the Australian Government may request the extradition of a person from a foreign state so that it now has no power unless the Act applies. I shall deal with each of these submissions in turn. (at p507)

10. In my opinion it is quite clear that Pt IV of the Act deals only with extradition from foreign states with whom there is an extradition treaty effective either under the previous legislation (s. 9) or the present legislation (s. 10). It is true that Pt III in s. 12, dealing with extradition to foreign states, commences with the words, "Where this Act applies in relation to a foreign state", while Pt IV has no such introductory words. But this is not a sufficient reason for not giving ss. 9, 10 and 11 their plain effect. A feature of extradition legislation is reciprocity by treaty between states and that feature is preserved by giving Pt IV an application limited to circumstances where such a treaty exists and pursuant to ss. 9 and 10 the Act is thereby expressed to apply. (at p507)

11. Then there is the question whether Pt IV is an exhaustive statement of the circumstances under which the Australian Government may request the extradition of a person from a foreign state. The Act by Pt IV may be exhaustive of the circumstances under which extradition may be requested from a state with which there is a treaty effective under the Act - that is a question which does not need to be determined in this case - but there is nothing in the legislation which would suggest to me that the executive power stemming from the prerogative is intended wholly to be replaced by the statutory power in Pt IV. It has been submitted that the Act read in conjunction with the Extradition (Commonwealth Countries) Act, 1966, which was enacted at the same time, shows an intention to cover the whole field of extradition to and from Australia. But an intention to withdraw or curtail a prerogative power must be clearly shown and, as I have tried to show earlier, the right to communicate freely with a foreign state is an important prerogative power. In my opinion the express grant of the powers conferred in s. 21 is insufficient to take away the prerogative power in circumstances where the Act does not apply. In circumstances where the Act does apply the sections do not diminish the executive power, though possibly s. 21 replaces the prerogative power of the Crown by a legislative authority to the Attorney-General to make the requisition to the foreign state. However, he does so as the appropriate minister of the Crown and I can discern no implied intention to cut down the power of the Crown generally. The power conferred by s.21 on the Attorney-General is to the same effect as that conferred in s. 6 of the Extradition Act 1903-1950. It is in effect a machinery provision. (at p508)

12. I would therefore answer the questions asked in the stated case as follows: 1 No. 2. Yes. 3. Yes. The costs of the stated case should be costs in the action. (at p508)

Orders

Questions asked by the stated case answered as follows:

1. Is the Australian Government entitled under the provisions of Pt IV of the Extradition (Foreign States) Act 1966-1973 to request the extradition of an Australian citizen to Australia from a foreign State as to which the requirements of ss. 9 and 10 of the said Act are not satisfied?
No.
2. If not, is the Australian Government entitled to request the extradition of an Australian citizen from a foreign State to Australia in circumstances in which the provisions of the Extradition (Foreign States) Act 1966-1973 do not apply?
Yes.
3. Does the executive power of the Commonwealth of Australia enable the Australian Government to make a request to the Government of Brazil in the terms set out in par. 6 of this case?
Yes.