Director of Public Prosecutions of the Cth and Anor v Kainhofer

[1995] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 1995

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS OF THE COMMONWEALTH

First Appellant

REPUBLIC OF AUSTRIA

Second Appellant

and

MARIA KAINHOFER

Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
McHUGH
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 20 JUNE 1995, AT 12.26 PM

Copyright in the High Court of Australia

MR J.J. SPIGELMAN, QC:   If the Court pleases, I appear with MR N.J. WILLIAMS, for the appellants. (instructed by the Commonwealth Director of Public Prosecutions)

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friend, MS C.E. HOLMES, for the respondent. (instructed by Boe and Hogan)

MR SPIGELMAN:   Your Honours, I hand up two documents:  one is an outline of our submissions and the other is a chronology.

BRENNAN CJ:   Yes, Mr Spigelman.

MR SPIGELMAN:   Your Honours, we have handed to the Court in the bundle of materials extracts from the Extradition Act and also from the Regulations incorporating the Treaty.  Over the luncheon adjournment I will ensure that the Court has a copy of the whole Act, but the sections that have been excerpted are the relevant sections, although there may be one or two that the Court should refer to at some point.

Could I take your Honours to section 19 of the Act.  The matter arises in the exercise of a power conferred upon magistrates to determine eligibility for surrender under section 19, and the central issue turns on the construction of section 19(3)(a).

GUMMOW J:   But at what stage had the process reached?  There are three or four steps involved in an extradition process.  At what stage had the Federal Court been asked to - - -

MR SPIGELMAN:   That is so, your Honour.  It had gone from the stage of an original arrest by a magistrate, through the notice by the Attorney which triggered the power of the magistrate to make the determination of eligibility for surrender.  It was from the determination by the magistrate that the respondent was eligible for surrender that the appeal was taken first to the Federal Court and then the Full Court.  There was another step, namely a determination by the Attorney to effect the surrender but that has not yet happened.

GUMMOW J:   Yes.

MR SPIGELMAN:   And the section of the Act which makes provision for that appeal process is section 21, which I think is not in the bundles we have excerpted, but I hope that will be adequate.

GUMMOW J:   So what I am getting at is that the route of the Federal Court’s jurisdiction was section 21 -

MR SPIGELMAN:   Yes.

GUMMOW J:   It was not in the AD(JR) Act?

MR SPIGELMAN:   No.

GUMMOW J:   There are some AD(JR) Act cases relating to intervention at the earlier stage?

MR SPIGELMAN:   I do not think since Wiest.

GUMMOW J:   It is a decision of Mr Justice Ryan.

MR SPIGELMAN:   Since then?

GUMMOW J:   I think so.  So long as one is clear that it is section 21.

MR SPIGELMAN:   Yes, that is so.  The case has proceeded on that basis and that would appear, I think, from the notices of appeal to the Federal Court.  There is only one to the Full Court in the appeal book, I am afraid, and that is at pages 73 to 74.  There is no implication as far as we can see of any language appropriate to the AD(JR) Act and as far as I am aware that point has never been made.

GUMMOW J:   Harris v The Attorney-General is one.

MR SPIGELMAN :   That is a 39B case.  The AD(JR) Act is excluded expressly under the Extradition Act, but obviously the 39B route is still available and has been used, for example, for decisions of Attorney.  But the power exercised here is of course an executive power by the magistrate under section 19 and section 19 requires the magistrate - when it is triggered by section 19(1), and that includes the trigger of the Attorney General’s notice, if your Honours see, 19(1)(b) is expressed as a precondition to the conduct of a proceedings for which 19(1) makes provision.  The significant words in section 19(1) are that:

the magistrate shall conduct proceedings to determine whether the person is eligible for surrender -

and the Court will see that this is a distinct phrase.  Elsewhere in the Act, for example, the Attorney-General’s notice referred to in 19(1)(b), is a notice that is given after the Attorney has determined that the person is an extraditable person, and it is a different test, and 19(1) however, and as far as the magistrate is concerned, the crucial phrase is “eligibility for surrender” and it is the kind of eligibility referred to in relation to the extradition offence or extradition offences for which surrender is sought.

Subsection (2) is an exhaustive definition of when a person is eligible for surrender, namely:

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;

“Supporting documents” are defined in subsection (3) and I will come to that presently.  The second provision is:

(b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications -

then any other document - nothing turns on that for present purposes.

There is in this Act section 11, a provision which says that the regulations and a treaty may make provision, as it were, modifying the Act, and it is in that respect that there is a substantial change to the Act.  Your Honours will have the original Act of 1988 and section 11 thereof, but your Honours will also have the Amendment Act of 1990, which makes significant changes to section 11.  Now I do not think anything turns on those changes but if anything does turn on them it is the one respect in which the original Act must be read subject to the Amendment Act, in the form that has been handed to your Honours this morning.

Coming back to section 19, the next paragraph of (c) is of some significance, and that is:

the magistrate is satisfied that, if the conduct of the person constituting the offence in relation -

may I say this the a double-criminality provision often referred to as such.

if the conduct of the person constituting the offence -

and that phrase is defined in section 10(2) to which I will take the Court to in a moment -

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;

Often referred to, as I have said, as the double-criminality provision.

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.

And that is a defined term, but nothing turns on it here.

The “only if” provision of subsection (2)(a) requires “supporting documents” and we get in subsection (3) the definition of “supporting documents”.

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.

These are the crucial words.  The Full Court interpreted the words “for the offence” in the third line of (a), namely:

for the arrest of the person for the offence -

as conferring upon the magistrate as part of his function the making of a determination as to whether or not the offence is an offence of which the person is accused, namely, in a way it said this:  if one looks at the words of (a), the word “offence” occurs in the first line on two occasions.  In the first case it says “if the offence” and then it says “is an offence”.  The words “if the offence” where first appearing are a reference back to the introductory words of subsection (3), namely:

in relation to an extradition offence.

In paragraph (2)(a), “supporting documents”, in relation to an extradition offence, means:

(a)  if the offence -

namely, the extradition offence.

Where appearing in those first two lines, namely:

in relation to an extradition offence -

we believe it is a reference back to, or a reference again, to the same offence as the introductory words of subsection (2), namely:

the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought -

That is the offence, namely an offence for which his extradition is sought.  That is the introductory words of subsection (2).  That is reiterated in the introductory words of subsection (3), “in relation to an extradition offence”.  And then he says:

means:

(b)  if the offence -

reiterates that again.  What the Full Court did was to say that the focus was on:

an offence of which the person is accused -

and that that operates as some separate operative provision empowering the magistrate, indeed requiring the magistrate, to decide whether or not the person is in fact accused.  One of the three ways, or the third way in which we put our case is, as your Honours will have seen from our submission, is that that is not a function for the magistrate; that is a function for the Attorney.

GUMMOW J:   Under which section, at what stage?

MR SPIGELMAN:   It occurs by reason of section 16(2)(a):

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 -

That is defined in section 6.  The definition of “extraditable person” is:

Where:

(a) either:

(i) that 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 -

and the alternative is if:

(ii)  a person has been convicted -

TOOHEY J:   But you have to give the words “of which the person is accused” in paragraph (a) some meaning, some work to do, in the same way that you have to give the words “offence of which the person has been convicted” in paragraph (b) some work to do.

MR SPIGELMAN:   To which section is your Honour referring, 19 or 6?

TOOHEY J:   No, no; to 19(3).

MR SPIGELMAN:   Thank you, your Honour.  Yes, we give it work to do in a sense that it categorises the kinds of documents that are required to be produced.

TOOHEY J:   Except it points you to the type of evidence that is required, I take it ‑ ‑ ‑

MR SPIGELMAN:   Yes, in the two categories.  The person’s allocation, if one likes, to one or the other of the two categories, has been done by the Attorney pursuant to the 6(a).  He has to make a decision that the person is an extraditable person under 6(a)(i) or (ii).  That power is 16(2)(a)(i), but furthermore he has to give documents.  If one looks at section 16(3)(b), he has to provide “a copy of the notice” first, under (a), to the person and he also has to identify which document, namely, whether it is a 19(2)(a) or 19(2)(b).  That is a reference to the supporting documents and further documents, namely, documents under an amendment or a modification by treaty, and that is not relevant for the present purposes.  I was in error in taking your Honours to 19(3), that is just not a relevant provision.

The structure of the Act - and we come to this more specifically in a moment as to why - is that the functions of the magistrate are defined and confined and there are a number of provisions which expressly take away from the magistrate and make clear that he has no particular function in certain areas, and I will take your Honours to those in a moment, but the basic issue on what the magistrate is or is not empowered to do will turn on the construction of 19(3)(a).

From the point of view of this case we say three things:  firstly, if you look at the warrant it is plain as anything that the respondent in this case was accused, and it was open to the magistrate to so find; secondly, we say, one is not limited to the warrant, one can go to the request, and the request in this case says that the person is wanted for prosecution.  So that the Full Court, which did not take that fact into account in making its determination, we say erred in that respect.  Those are matters - the second is of some significance for the administration of the Act.  The third, namely whether or not it is part of the function of a magistrate to embark on an inquiry of this character, is a matter of considerable significance for the administration of the Act because it would involve the possibility in the present case of expert evidence about when it is, in an investigatory system, like a civil law system, that a person passes from the stage of investigation into the stage of what we would call accusation.  That is not always a clear phase.

TOOHEY J:    Does your argument go so far as to say, in respect of paragraph (a), that if you have the dearly authenticated warrant issued by the extradition country before the arrest of the person for the offence, then that is determinative of whether the person is accused?

MR SPIGELMAN:   No, that matter has already been decided by the Attorney that he is accused and that it is determinative what the magistrate has to do is, as it were, have a check-list to make sure that he has a warrant answering that description in front of him.

DAWSON J:   You say the Attorney’s decision binds him as to the fact that the person is accused?

MR SPIGELMAN:   Yes.  It is not a decision, that is - the language - - -

DAWSON J:   But in the steps of the procedure he has to see he has supportive documents for what has happened.

MR SPIGELMAN:   And that is true of the entire structure of the magistrate’s decision-making process.  It is different to the predecessor legislation when there was, for example, and there may still be by reason of treaty a requirement for a prima facie evidence test.  Amongst the supporting documents that the magistrate now has are those found in (c), if your Honours were to go to that.  That is 19(3)(c).  He is required to have:

(i)  a duly authenticated statement in writing setting out a description of, and the penalty -

and then:

(ii)  duly authenticated statement in writing setting out the conduct constituting the offence.

Now, it is a check-list.  He needs a document answering that description and he has to match it up.

BRENNAN CJ:   What does he have to decide?  Whether the warrant that he has answers what description?

MR SPIGELMAN:   The description of a duly authenticated warrant - and there was a definition of due authentication - issued by the extradition country for the arrest of the person for the offence.  That is the offence which is an extradition offence - that is also a defined term, defining terms of level of penalty - for which surrender of the person is sought.  He does not have to decide that the person is in fact accused.

TOOHEY J:   Well that is why I put to you the suggestion or the inquiry as to whether your argument went so far as to say that given a duly authenticated warrant answering the description in paragraph (a), whether that in effect determined that the person was an accused or was accused for the purposes of the paragraph, but you baulked at that, no doubt with good reason.

MR SPIGELMAN:   Only because we construe the words, namely, “an offence of which the person is accused” is merely classificatory, and if these are that and the next - namely if it is an offence of which the person has been convicted, are the entirety of the universe to which this Act applies; there are two categories.

McHUGH J:   They reflect section 6(a)(i) and (ii).

MR SPIGELMAN:   The “extraditable person” definition.  And what they say here, in contrast with 6(a)(i), which is the formation of an opinion that the person - just to go back to what - rather, the warrant is in relation to an offence “that the person is accused of having committed”; those words do not appear in (3).  It says “if the offence is an offence of which the person is accused”, not that there is a warrant for an offence that the person is accused of having committed.  Subsection (3)(a) and (b) simply say these are the two classifications and different documents are required for each of them.

TOOHEY J:   But your argument also seems to involve saying that they exhaust the category in respect of what constitutes an extraditable person.

MR SPIGELMAN:   Yes, but the language is different.  The language where it appears in section 6 is consonant with a decision being made rather than simply being a classification of something that had earlier happened.

TOOHEY J:   Yes, I understand that, but that seemed to me to be rather at odds with your argument.  It seemed to push the focus of attention from section 19(3) to section 6.  Take section 6 on its own, it may require a decision as to whether or not a person is accused.

MR SPIGELMAN:   By the Attorney?

TOOHEY J:   Well - - -

MR SPIGELMAN:   See, the test there is “extraditable person”.  It is significant that the magistrate, under section 19, does not make a decision as to whether a person is extraditable.

TOOHEY J:   To make a determination of eligibility.

MR SPIGELMAN:   Yes, whether he is eligible for surrender, and there is a different phrase and there is a purpose in using the different phrase.

GUMMOW J:   And then the Attorney comes back into it under section 22

BRENNAN CJ:   We will continue this discussion at 2.15 pm, Mr Spigelman.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

BRENNAN CJ:   Yes, Mr Spigelman.

MR SPIGELMAN:   Your Honours, I handed to the Court a Federal Court Reports version of the case with the original bundle of materials.  It is just that some of your Honours may find it easier to read in that printed format than in the appeal book format.  The passage in which the crucial reasoning of the court below is set out appears from the middle of page 358D to the whole of 359.  For those of your Honours who would prefer to use the appeal book, it is at ‑ ‑ ‑

BRENNAN CJ:   We will use the Federal Court Reports.

MR SPIGELMAN:   If your Honour pleases.  It is 110 to 113 of the appeal book and the passage is 358 to 359 of the Federl Court Reports.  The reasoning commences in the middle of page 358D.  Before that the court has set out the major provisions of the Act and the Treaty and it is a useful compilation of all of those materials.  There is nothing in it in terms of the setting out of the materials with which we would demur but this is where they come to the reasoning and it ends at the foot of page 359 in that last paragraph on the page just below G:

In the light of those considerations, we are of opinion that, on the material placed before the magistrate on behalf of the Republic of Austria, he could not properly be satisfied -

and that is an appropriate test.  Section 21 jurisdiction of the court is limited to a review and it is a review strictly limited to the materials before the magistrate.  The real question, we say, is:  was it open to the magistrate to make his finding?  They find:

he could not properly be satisfied, in terms of s 19(2)(a) and (3)(a) of the Act -

19(2)(a) says that he has supporting documents; 19(3)(a) says that one of the supporting documents is a warrant.  The conclusion is that:

he could not properly be satisfied.....that -

and this is the important thing -

the duly authenticated warrant that he had before him -

that document, was the conclusion of the court -

provided for the arrest of the appellant as a person “accused” of the offences to which the warrant refers.

That is the conclusion of the court.  In terms it implies - and the preceding analysis confirms that this was the intention - that one looks to the warrant alone to satisfy the description of a warrant for the person in a particular capacity, namely as a person accused.

TOOHEY J:   On the approach taken by the Full Court, Mr Spigelman, for what purpose can the magistrate go to other documents?

MR SPIGELMAN:   In order to determine whether or not the person is accused, and the crucial document is the request.

TOOHEY J:   No, my question was on the reasoning of the Full Court.

MR SPIGELMAN:   Yes, your Honour.  On their reasoning, we say that they can go to other documents to see whether or not the person is a person accused.

TOOHEY J:   Yes, I appreciate that.  Perhaps I put the question badly.  On the approach taken by the members of the Full Court, for what other purpose or purposes are the documents beside the warrant material?

MR SPIGELMAN:   The other documents go to other parts of the matters for which the magistrate needs to be satisfied, but there are other documents which can explain the warrant or elaborate upon the warrant to the magistrate - he was not sitting as a court - and what we say is the request from the country is such a document, namely:  look at the warrant.  Is that a warrant for arrest of a person accused?  If it says on its face he is wanted, for example, for purposes of giving evidence, then one would not go further.  No doubt there are jurisdictions in which there are such warrants, but this was not that sort of warrant.  If you look at the warrant itself, they say there is no difficulty on the face of the warrant and therefore they look no further.

DAWSON J:   Mr Spigelman, I thought you would have answered that the only question is whether the person was categorised by the Attorney.

MR SPIGELMAN:   Yes, that is so.  This is an alternative argument, your Honour, I am sorry.  We have three responses to the reasoning of the Full Court.  The first is that the warrant on its face says if a person is accused.  Secondly, there is an additional document that the reasoning of the Full Court did not encompass, namely the request which shows if there be any ambiguity in the warrant at all that the person is accused.  Thirdly, in any event it is not a function of the magistrate to make that decision.

DAWSON J:   I thought you put the third one in the forefront.

MR SPIGELMAN:   I started off that way because it was convenient to first take the Court to the structure of the legislation.

DAWSON J:   I can understand why you would put it in the forefront.

MR SPIGELMAN:   We do put it in the forefront because it is the one with the most significant implications for the future administration of the Act.  The answer to your Honour Justice Toohey is that if there be any difficulty with the warrant of any character, then one looks at the other evidence properly before the magistrate.  Amongst that evidence was the request for extradition which appears at page 20 of the appeal book.  That is a document which in its second paragraph at about point 6 says that the:

Austrian Authorities request the arrest and subsequent extradition of the Austrian national Maria KAINHOFER for prosecution in Austria -

and those words appear at lines 6 and 7.  We say that is determinative of what the situation is here.  It was, in the words of the Full Court, open for the magistrate to be properly satisfied that the warrant was a warrant for the arrest of a person accused.  If you do not get that from the face of the warrant itself, then you get that from the request which says that the purpose of the extradition was for prosecution.

GUMMOW J:   Just going back to what Justice Dawson was asking you, am I right in understanding this?  You say what goes to section 16(2)(a)(i):

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 -

and the definition of “extraditable person” in section 6 brings up on one branch of it warrant for the arrest, and on the other one conviction.

MR SPIGELMAN:   Warrant of arrest, for offences if the person is accused of having committed.

GUMMOW J:   Yes, and that brings in a notion of accusation.  If there is a dispute about that, that is to be tested, if anything, by 39B proceedings at that stage.

MR SPIGELMAN:   That is so or, indeed, it could be at subsequent stages for the ‑ ‑ ‑

GUMMOW J:   Or at a surrender stage perhaps.

MR SPIGELMAN:   At a surrender stage, but even before that, your Honour.  If your Honour were to go to the provisional arrest warrant point, which is section 12 - we have handed your Honours the full Act, but section 12, the magistrate who makes the arresting order also has to be satisfied:

that the person is an extraditable person -

that is 12(1)(b).  That formula appears twice in the Act.

McHUGH J:   Mr Spigelman, page 359 in the FCR, there is a sentence which does not seem to make much sense.

MR SPIGELMAN:   Yes, there is one, your Honour.  It is just below E.

McHUGH J:   Yes, a sentence, “The author of the document”.

MR SPIGELMAN:   There is a verb missing, but it is the same in the appeal book.

McHUGH J:   I know; I checked it.

GUMMOW J:   What is the verb?

MR SPIGELMAN:   We do not know.

GUMMOW J:   It is more than a verb, I think.

MR SPIGELMAN:   Your Honour, that, if I might say so, is the least of the inexplicable sections on this page.  There are a number of others I would wish to take the Court to.  In particular, there is, at the bottom of page 358 and over to the top of page 359, the invitation of Australian criminal procedure which is referred to as the jurisprudence of this country.  We say that that is quite inappropriate in a context where one has an extradition Treaty.  The word “accused” is used in a context of extradition legislation and of a Treaty without reference to particular steps in Australian criminal procedure, because it is intended to apply more broadly.  That is one of the reasons why we say that reference to the request is a matter which it is appropriate for the magistrate to have in circumstances where, for example, there is an ambiguity in the warrant.  One of the difficulties we are dealing with here is that we are talking about foreign warrants.  The permissible, let alone the required, content of such warrants for arrest will vary quite widely, one would imagine, from one jurisdiction to another.

Your Honours will see that there are specific features of this warrant that turn on very particular aspects of the Austrian Code.  The matter that features very strongly in the reasoning of the Full Court at page 359B downwards is the use of the words “strong suspicion” in the warrant.  The words “suspect” and “suspicion”, as your Honours will see, is the essential precondition for the issue of a warrant under the Austrian Code.  You can issue a warrant if you suspect someone.

DAWSON J:   A warrant for what?

MR SPIGELMAN:   For arrest.  The word “suspicion” on the face of a warrant comes from the statutory provision.  It is a word which, at least in English in its translation - we must remember we are dealing with a translated document - is itself ambiguous.  One can suspect someone in a manner which is merely investigatory or preliminary or one can suspect someone in a manner which is more conclusive.  The court below regarded the word “suspicion” as virtually determinative of the question that there was some sort of preliminary investigation going on here and it had never reached the stage in the civil system of accusation.

Could I show why that is wrong by taking your Honours through the warrant itself.  The warrant commences at page 1 of the appeal book.

BRENNAN CJ:   Before you go to that warrant, could I ask you this.  On your argument which is based on section 16(2)(a)(i) and section 6, the question for the magistrate to determine would be whether the document before him is duly authenticated.

MR SPIGELMAN:   Yes.

BRENNAN CJ:   And whether on the face of that document it is a warrant for arrest.

MR SPIGELMAN:   Yes, of the person.

BRENNAN CJ:   Of the person for any of the offences named in the Attorney’s certificate.

MR SPIGELMAN:   The offence or offences ‑ ‑ ‑

BRENNAN CJ:   Named in the Attorney’s certificate.

MR SPIGELMAN:   ‑ ‑ ‑ for which surrender is sought, yes, and named in the Attorney’s certificate.

BRENNAN CJ:   So that in this case, for example, if your argument be right, the magistrate should have made a determination in respect of all offences that were in the Attorney’s certificate.

MR SPIGELMAN:   Yes, your Honour.  I do not know if the certificate is in the appeal papers.

BRENNAN CJ:   Page 21, I think.

MR SPIGELMAN:   Yes it is.  He had to make a determination with respect to each of them, and he did.  There were certain that he found were - the person was not eligible for surrender.  He in fact struck out, as it were, a number of the - - -

BRENNAN CJ:   But on what ground?

MR SPIGELMAN:   On various grounds, but I think dual criminality in a couple of cases.  I am sorry, I did not do the case.  It was very much a question of construing the warrant and he restricted himself to particular passages and looked to see if he could find the relevant statement of facts and matters of that character within the charge or within the statement of the count.

BRENNAN CJ:   That is why I wonder why it is, if your argument is right, your argument is not then that under 19(3)(a) the sole question for the magistrate is:  is this an authenticated warrant and does it seek the arrest of the person for the offences nominated by the Attorney?

DAWSON J:   In other words, the phrase “if the offence is an offence of which the person is accused” is merely to categorise the person for the purpose of seeing whether you apply (a) or (b).

TOOHEY J:   And in fact you run into problems, I think, if you do not follow that path, Mr Spigelman, because under section 19(2) a person is only eligible for surrender if the requirements of paragraphs (a), (b), (c) and (d) are met.  One of those requirements is that the supporting documents have been produced.  Then “supporting documents” in subsection (3) is defined to mean only, in this particular case, “the duly authenticated warrant”.  So what entitles you to roam outside that warrant for the specific purpose of determining whether section 19(2) has been met?

MR SPIGELMAN:   Our basic submission is nothing but, if I am wrong about that, then one can look at the request.  Our basic submission is if that be the proper construction - that is, as it were, our third point, although I realise I started on it - then one does not look because it is not part of the magistrate’s function to determine the question of whether someone is accused if that works.

TOOHEY J:   I understand.  That is a different argument.

MR SPIGELMAN:   The question is if the magistrate has a jurisdiction to decide whether or not the person is accused, then it would be our submission that he has an ability to look at the whole of the materials before him to determine that question.

TOOHEY J:   I thought the question that the Chief Justice just put to you was one that you declined to pick up, as it were, this morning.  That is to say that really the reference to an offence of which the person is accused in subsection (3), as it were, by way of categorising and the real or perhaps..... question is whether there is a newly authenticated way of answering the description in paragraph.

MR SPIGELMAN:   If I gave the impression I was not embracing that, then I withdraw that impression.

TOOHEY J:   You gave me the impression you were rejecting it.

MR SPIGELMAN:   No, I am sorry.  I had not thought of it in the way the Chief Justice had put to me, but I think it is consistent with what we have in our written submissions to say that the essential decision is one for the Attorney and then the introductory words become classificatory only.  Then it is a question of - it is a check‑list and may I say it is consistent that that be so with the subsection (b) material which is quite clearly of a check‑list character:  evidence of the conviction and of the sentence.

GUMMOW J:   Subsection (5) supports that too.

MR SPIGELMAN:   Yes, “not entitled to receive” any other information.  The other matter that I think the Court ought to be aware of in terms of construing (a) and (b) is the provision of section 10(1) which says that if you are convicted of an offence in absentia, then for the purposes of the Act you are deemed to be an accused.

Where a person has been convicted in the person’s absence.....then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.

So one has an element of artificiality, as deeming provisions tend to be, when one comes to 19(3)(a).  When you come to do the check‑list you have someone who is convicted but what the magistrate has to be satisfied of is that there is a warrant issued for his arrest.  That can be so in cases where the person is no longer accused in the overseas jurisdiction.  He is in fact convicted in the overseas jurisdiction but, because that happened in absentia for our purposes, he is deemed to be accused.  So 19(3)(a) applies to some people who have been convicted.

One would have found it odd if the magistrate had to make a decision in such cases about whether the warrant alone referred to his status of accusation.  It is an important factor to understand in the construction of the Act that 19(3)(a) does in fact apply to some persons who have been convicted.  There is a warrant for their arrest but it is to serve a sentence.  For our purposes, because of the element of having been convicted in absentia, one goes through a different stage of consideration, although it may have been that in days when evidence was required rather than a statement of conduct, that that may have been a more significant distinction than it is today.

DAWSON J:   What happens if there is an extradition objection in relation to the offence?

MR SPIGELMAN:   There are two tests.  It arises at three stages.  First with the Attorney, he has to deal with extradition objections in the terms found in 16(2)(b).  He forms an opinion.  This is one element in which the test for the Attorney is a little different to the test for the magistrate.  He has to form the positive opinion that there is an extradition objection.  That is before issuing his notice.  If he forms that opinion, then he does not issue the notice.  The test for the magistrate is a little different.  Under 19(2)(d) the person has to:

satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection -

If he satisfies him of that, then he cannot make the finding that the person is eligible for surrender.  The issue arises again at 22(3)(a).  This is after the order of the magistrate and it is the determination of the act of surrender which is the final step by the Attorney.  The Attorney at this stage has to have the positive satisfied that there is no extradition.

DAWSON J:   Did anyone ever determine the objection itself?

MR SPIGELMAN:   No, but, if he is satisfied there is none, that is really an effective determination.

GUMMOW J:   Would that be something that could be tested under 39B at the stage of section 22?

MR SPIGELMAN:   At 22, yes, one would expect so, or any one of the sorts of the grounds one could have under 39B, that “he failed to take into account  relevant considerations” et cetera, but there is an element of discretion in these matters.  The definition of “extradition objections”, your Honours will see is in section 7.

GUMMOW J:   Section 7?

MR SPIGELMAN:   Yes, section 7:  political offences and the like, matters of that character.  No one actually does determine it but it is subject to review, although administrative law basis of review, but eventually if the Attorney finds that there is no extradition objection that is, as it were - - ‑

DAWSON J:   Objection really does not mean objection, it means something like defence, does it not?

MR SPIGELMAN:    Yes, it is a defence and it is so described, I think, in the - there is a text about to come out on this book of which page proofs are available.  It will be out within a month as I understand it and it is quite  a good treatment of the legislation and its history.  I think that is the way to describe it.  Aughterson is the text, your Honours.  The Law Book Company will be issuing it within the month as I understand it.

DAWSON J:   You are not going to give us copies of it?

MR SPIGELMAN:   I do not think your Honours need the whole text, no.  That is one copy, but for those of your Honours who wish to see the rest of the material on this sort of thing, it really is quite a good text and the first of its kind in Australia.

I was taking your Honours to the warrant for arrest which commences at 1 and this is on the point that it was open to the magistrate even if the Full Court’s construction of 19(3)(a) is correct, even if a power and assumption that one cannot look beyond the warrant is correct, so even if I am wrong on those two submissions, we say the face of the warrant shows that this went well beyond mere investigation or suspicion, it had reached the stage of accusation.

The warrant commences at 1 and it describes at line 10 that the person:

is to be taken into

C u s t o d y

on the strong suspicion of having attempted to commit -

a number of offences.  At the foot of that is an important reference, your Honours:

Her apprehension is sought due to the risk of escape and the perpetration of further crimes pursuant to s 175, Section 1, Subparagraphs 2 and 4 of the Austrian Code of Criminal Procedure.

I will take your Honours to those subparagraphs in a moment but they establish, we say, that it had gone beyond the stage of mere suspicion.  The structure of the document is then to lay out, as it were, under the heading “Grounds” the various charges or counts.

Based on previous investigations, Maria KAINHOFER is strongly suspected of having committed the following offences:

And then there is offence number 1.) which goes over the page to 3.).  Now that is not one of those on which she was extradited.  So, in a sense, it is not relevant to these proceedings other than for purposes of construction.

BRENNAN CJ:   How do you mean it is not one in which she was extradited?

MR SPIGELMAN:   No, that was one that the magistrate found that she was not eligible to surrender.

BRENNAN CJ:   What order do we make if your basic argument on 16(2)(a)(i) and 6 is upheld?

MR SPIGELMAN:   At the end of the day, because the Federal Court did not deal with all the matters of appeal before it and specifically there was argument as to whether the dual criminology provisions had been complied with, the Court will have to remit the matter.

BRENNAN CJ:   I see.

MR SPIGELMAN:   So, there will be no technical difficulty in terms of orders, I do not think.

TOOHEY J:   That is not the order you seek - - -

MR SPIGELMAN:    No, it is not, your Honour.

TOOHEY J:    - - - on the notice of appeal, is it?

MR SPIGELMAN:   No,  it is not and that was an oversight at the time that the notice of appeal was drafted.  We did not realise that there were outstanding matters with the Full Court.  When we came to prepare for the hearing we realised that there were such matters and that is probably the only order that can be made.

BRENNAN CJ:   What was the state of custody of the respondent prior to the making of the Federal Court’s order?

MR SPIGELMAN:   She was on conditions of bail, your Honour, and in effect, the same kinds of conditions are being continued by order of your Honour Justice Toohey. 

TOOHEY J:   Well, not strictly.

MR SPIGELMAN:   The substance of the orders was the same.  Your Honour exercised - - -

TOOHEY J:   I made no order for her arrest.

MR SPIGELMAN:   No, the regime in place, your Honour, is what I was referring to.  The regime in place was the same.  She handed up her passport and - - -

BRENNAN CJ:   I m sorry, I am not understanding this.  Did the Federal Court not order her release?

MR SPIGELMAN:   She was not in custody at the time.  She was on conditions of bail from the magistrate and the Supreme Court of Queensland which dealt with the matter at first instance and during the course of the appeal, a single judge of the Federal Court exercising jurisdiction of that court - there is a further step in the Act.  At each step there are references to bail-type applications and a single judge released her on bail-type conditions.  When it came to this Court - - -

BRENNAN CJ:   But before it came to this Court, there was an order made by the Full Court that the order of the Supreme Court be set aside and in lieu thereof it be ordered that the magistrate be directed to order the release of the appellant.

MR SPIGELMAN:   Yes, but she was out on appeal pending the hearing.

BRENNAN CJ:   Be it so.  What I do not understand is why she is not at this moment in the state that was directed by the order of the Full Court.

MR SPIGELMAN:   Because there was an application to this Court heard by a single Judge of this Court - - -

BRENNAN CJ:   To stay that order.

MR SPIGELMAN:   - - - to require certain steps be taken.

TOOHEY J:   That is not right, I do not think, Mr Spigelman. 

MR SPIGELMAN:   There was an application to this Court under section 21 of the Act for an order for her arrest but your Honour Justice Toohey refused to make that order but, in the exercise of the Court’s inherent jurisdiction, what became a consent order was made in terms of handing up her passport and the like.

BRENNAN CJ:    If she is at liberty at present, subject to the surrender of her passport and so forth, if your appeal succeeds and your order that you seek were to be effective to remit these matters to the Federal Court, what then would be the situation with regard to the respondent’s custody?

MR SPIGELMAN:   I know Mr Walker was intending to make an application of some character to this Court about that and we would anticipate making an order which would continue the present regime until further order of the Federal Court.

BRENNAN CJ:   Leaving it to the Federal Court to attend to any question of bringing her into custody once more.

MR SPIGELMAN:   That is so.  I have no instructions that any such application is likely to be made because at the time it was before the Federal Court she was not in custody - the Full Court.

BRENNAN CJ:    She was on bail.

MR SPIGELMAN:   She was on bail.

BRENNAN CJ:   Yes.  She is not on bail at the moment.

MR SPIGELMAN:   No.

BRENNAN CJ:   So be it.   I am reminded by Justice Toohey that it may be useful in the event of your success for us to have a draft order provided for us before the end of these proceedings, if possible by agreement between the parties, that in the event of success on basis A, B or C, then the appropriate orders would be, so that we will know exactly what is sought and the respondent will have an opportunity of addressing the form of order which ought, in that event, to be made.

MR SPIGELMAN:   We have had a discussion about this and we have not reduced it to writing.  Your Honours, I was taking your Honours to the structure of the warrant and I indicated at the bottom of page 1, the first page of the warrant, that there was a reference to subparagraph 2 and 4 of section 175 and then there is the first count, then there is count 2.)  beginning at the bottom of page 3 which is a matter on which extradition was ordered.  That continues on page 4.  At the foot of page 3 and the first half of page 5 there is 3.)a).  That is a matter on which extradition was ordered but from page 5, 6 and 7 there is b), c), d), e), and  f).  They are matters that were not ordered for extradition.

Then one has 3.)g) at pages 7 to 8 for which extradition was ordered.  Then one has h) which appears at page 8 and extradition was not ordered for that.  Then the last paragraph on pages 8 and 9 and up to the point of 10 are a series of references to various paragraphs:  a), b), c), f) and h) are dealt with together then g) is dealt with on page 9 and h) on 10.

Then there is count number 4.) for which extradition was ordered.  That is at pages 10 and 11.  Then one has count number 5.) for which extradition was not ordered at pages 11 and 12.  Then one comes back to - your Honours will see where the indenting stops the counts have finished and there is a passage that refers to other matters and that is the grounds for arrest.  Again there is the invocation of subparagraph 2 of section 175.  That is at lines 9 through to 17, and then 18 through to 24 there is the invocation of subparagraph 4.

Your Honours will see there that subparagraph 4 of section 175(1), there is a reference with the following character, the:

perpetration of further crimes pursuant to s 175, Section 1, Subparagraph 4 of the Austrian Penal Code apply since the defendant  party is charged with having committed numerous crimes against property -

and that is one of the references and there is a:

danger of committing further tortious acts.

That is one of the references on which we rely for the conclusion that the matter had gone beyond the stage of suspicion to that of accusation.  The terms of 175 are set out at page 18 of the appeal book.  This is section 175 of the Code of Criminal Procedure:

The examining magistrate may order a person suspected of having committed a felony -

Your Honours will recall the emphasis that the Full Court gave to the use of the word “suspicion”.  This is where it comes from in the form of the warrant.  That is a precondition to the issue of a warrant, namely a state of suspicion.  Paragraph 1 which is not invoked but indicates the flavour of the sense in which the word “suspect” is used, bearing in mind this is a translation from the German:

if the suspect is caught in the very act of committing the crime or is credibly charged with having perpetrated a felony or misdemeanour immediately after its commission -

here are words that may not be quite the right word but it is the word in the translation, but here are references to a person being a suspect who is charged with having perpetrated a felony and is caught in the very act of committing the crime.  Paragraph 1 was not invoked for purposes of the arrest.  The first such paragraph was 2 and the other is 4.

Paragraph 2, again we say, is inconsistent with any suggestion that there is a mere suspicion rather than accusation:

if the suspect is at large or hiding or if, due to certain facts, there is a risk that he will flee or hide to avoid the impending putative punishment -

they are words we say are significant.  Perhaps even more so is 4.  Remember, both these subsections were invoked for purposes of the warrant with respect to all counts:

if, due to certain facts, it can be assumed that he would commit an offence directed at the same object of legal protection as the crime with which he is charged -

that, we say, is language consistent with accusation rather than mere suspicion and it is language which qualifies each of the counts in the warrant.  Coming back to the first of the charges for which extradition was ordered, that is count 2.), that appears at pages 3 to 4.  The paragraph in the middle of page 4 at line 9 starts off with this:

The defendant admits that the record is false, however maintains that she made no false statement.  The witness, the honourable Dr Peter Masser, was heard in this regard and confirms the charges.

Again, they are referred to as “charges”.

Preliminary investigations.....were also initiated on August 4, 1988.  The false oath of disclosure took place on January 20, 1988.

And the next is important:

The offence is not subject to limitation (s 58, Section 3, Subparagraph 2, APC).

Your Honours, each of the charges has the same qualification, namely a reference to 58 3 2 and to questions of limitation and that again shows that the matter had proceeded beyond mere suspicion.  That section is set out at page 15 of the appeal book.  It is section 58 of the Austrian Penal Code, the heading of which is set out at page 14, line 30, “EXTENSION OF THE TERM OF LIMITATION”.  section 3 subsection 2. is the section relied upon and that reads as follows:

Not included in the term of limitation are:

2.  The time during which legal proceedings for the offence are still pending against the defendant at Court.

Again, we say that was material on which it was open to the magistrate to find that the person was a person accused, not merely a suspect in the narrow sense of the subject of an investigation, because what you have is legal proceedings, with respect to each charge, legal proceedings are still pending against the defendant and they are legal proceedings for the offence.

With respect to count 3 g) which appears at page 7 and over to 8, - 3:  7 to 8 it is referred to and, your Honours, if one goes down the page at 8 at about line 16 there are a series of references:

The defendant admits her guilt regarding the facts and circumstances ad a), b), c), f) and h) -

that is not including g) your Honours will see.  The only other one of these paragraph 3 counts on which she was extradited is a).  And then said:

however pleads not guilty to the intention to defraud -

So with respect to 3 a) there is something described as a plea of not guilty.  Over the page there is a reference or a plea of not guilty to d) and e) and I say whilst paragraphs d) and e) are not relevant, the references to pleading not guilty, they are relevant to the characterisation of what this document means by suspicion because that qualifies every one of the various charge counts even those on which she was not extradited.

One then has the following, with respect to paragraph g) which is one of the subjects on which she was extradited, at point 5:

The defendant pleads guilty of having forged the documents ad g) to obtain a turnover tax refund.  The court has the false invoices in hand.  The year was forged in several cases.  This was confirmed by copies of the invoices provided by the firms issuing the invoices.  Maria KAINHOFER is charged with having fraudulently obtained a refund for taxes, although she was not even taxable. 

Again, we say the language of charge is inconsistent with a conclusion that all that was in prospect was a mere investigation rather than an accusation.

If your Honours please, we have summarised these matters at paragraph 3 of our outline of submissions and they are all there except for two references, if I could just add these, your Honours.  In (iv) we say her arrest was sought on each count and I have given an appeal book reference, 12.9 to .23.  Could I add to that, 7.20.  Similarly in (v), the offences  described in the first line, I gave the reference of appeal book 12.18 to .20.  Could I add 7.20 to that.  Other than that, the references are as we put them.

On the basis of the face of the document we say it was open to the magistrate to conclude from the contents of the warrant, if he were limited to the contents of the warrant, that it was a warrant for a person accused of those charges.  The court erred in finding there was no proper basis or he could not “properly be satisfied”, was the language they used, of that matter.

GUMMOW J:   Mr Spigelman, why is the first appellant on the record? Why is not the only relevant appellate party the Republic of Austria in terms of section 21 of the Act? 

MR SPIGELMAN:   I was once able to appear in the Federal Court and I announced my appearance for the United States of America and I regret the change of practice in this respect but the ‑ ‑ ‑

GUMMOW J:   It is the extradition country that comes under section 21.

MR SPIGELMAN:   I am sure it has something to do with the DPP Act.  Perhaps I could just - if your Honour bears with me for a moment, I am not quite sure why the practice has developed the way it has because it seems to be the universal practice now.

GUMMOW J:   I tried to put a stop to it at one stage but it seemed to be unsuccessful.

MR SPIGELMAN:   Perhaps your Honour will have more success now.  Perhaps if we could bear with that because my junior does not know either and he has been in more of these cases than I have.

GUMMOW J:   I think it just started in the way the applicant on Mr Walker’s side started the proceedings in the Supreme Court of Queensland at page 42.  I think now though, the coin turned around the other way.  You went along with that. 

MR SPIGELMAN:   Well, it would have had to be, your Honour.  Presumably no application was made to strike out the DPP at that stage in which case he would have stayed in for the whole of the proceedings.

GUMMOW J:   Yes.

MR SPIGELMAN:   If your Honour pleases, if I might get some instructions on that.  I have addressed your Honours on the question of the content of the warrant.  The content of the request, if it is permissible to be looked at, really is determinative.  It is a request for the purposes of prosecution.  One cannot say, in the light of that document, that the person was other than a person accused and that, of course, reflects the Treaty.  One goes to the Treaty - your Honours have a separate copy of the regulations with the Treaty annexed.  Your Honours will see the Extradition (Republic of Austria) Regulations, and the Treaty is Schedule 1

The form of the Treaty is of some significance because of the alteration that has happened.  I am not suggesting that your Honours have to determine how significant it is but your Honours have to be aware of it.  Article 1 which is in the form of Schedule 1 has been changed.  Its original version referred to “persons accused”.  Your Honours will see:

Each Contracting Party undertakes to extradite to the other Contracting Party, subject to the provisions of this Treaty, any person found in its territory who is accused, or has been convicted, of an offence -

et cetera.  One goes to Schedule 2 of the regulations.  Your Honours will see that appears at, I think, page 8 of the print.  The last line on that page says:

The text of Article 1 of the Treaty shall be replaced by the following:

Each Contracting Party agrees to extradite to the other, in accordance with the provisions of this Treaty, any persons who are wanted for prosecution of the imposition or enforcement of a sentence -

So the treaty obligation has altered and, may I say, this is the new standard form Australian Treaty.  It is the Treaty which we have negotiated with some dozen or so countries and Article 1 is usually in this form.  There is also in Schedule 2 a new Article 11 which picks up the various requirements of section 19 by requiring the requesting country to provide documents in the form that is required for purposes of the Act.

I am taking your Honours to this in order to say to your Honours that admissibility of the request and reference of the request is something which would serve the object and purpose of the Act in terms of the object in particular - that is set out (3)(c) - “to enable Australia to carry out its obligations under extradition treaties”.  So, whilst one may find nothing in section 19 itself that refers in any way to the request of the requesting country, we say it would serve the scope and purpose of the Act for it to be permissible for the magistrate to have reference to such documents, there being a request in all cases and there being, really, a statutory regime requiring request but, of course, traditionally that is the way extradition has always worked, that there is a request by a requesting country.

We say that it would serve the purpose of the legislation for the magistrate to be permitted, in an appropriate case - it may not be necessary in many cases, but be permitted to look at the request for purposes of determining those matters that are to be placed before him.  In saying that, of course, the purposive construction of legislation needs no authority in this Court.  However, there was a reference, and I have referred your Honours to what your Honour Justice McHugh said in Saraswati in paragraph 8 of our submissions.  I did, however, reinvoke something said by Lord Denning in Buchanan v Babco  and the reason I gave your Honours that reference is because before purposive construction became, perhaps, more widely accepted than it is now, his Lordship indicated that it was particularly appropriate for the construction of treaties.  However, I should give your Honours a reference to what Lord Wilberforce said about that in the House of Lords in that case of Buchanan v Babco (1978) AC, at pages 151 to 154, because he was not entirely in accord with Lord Denning’s evangelical tone about this matter but did not, I do not think, disagree in substance.

GUMMOW J:   Mr Spigelman, do you seek to have us go to Schedule 2 of the Extradition Regulations to pick up the new Article 1 which talks about “want of prosecution”?  Then, do you seek us to pick up section 11?

MR SPIGELMAN:   Article 11 is something ‑ ‑ ‑

GUMMOW J:   No, no, section 11 of the statute.

MR SPIGELMAN:   Although this was referred to during the course of the submissions in the special leave application, it is not our submission for your Honours that there is a modification of the requirements under section 19 by reason of this Treaty.  Something of that character was referred to as possible during the special leave application but it is not our submission now.  However, the Full Court dealt with the Treaty in its reasons.  We do not think your Honours need deal with it for purposes of these proceedings but the Full Court dealt with the question of treaty interpretation in the passage of the reasons and basically said, “This is what section 19 means and despite the fact that Article 1 has a different test in it, namely, wanted for prosecution ‑ ‑ ‑

GUMMOW J:   The Full Court did not get into section 11, did it?

MR SPIGELMAN:   Not really.

GUMMOW J:   No.

MR SPIGELMAN:   No, but what they did say is, “We say the Treaty means the same thing as the Act,” and Article 11 of the Treaty means the same thing as section 19 of the Act.  That is despite the fact that Article 1 has a quite different test to it.  The bargain and the obligation between nations is persons wanted for prosecution.  One would have thought that that is really a subset of persons accused, but everyone who is wanted for prosecution is accused but not everyone who is accused is wanted for prosecution.

GUMMOW J:   But the problem is, is not it, that these regulations do not have the statement that section 11 of the Act requires in order to  ‑ ‑ ‑

MR SPIGELMAN:   Yes, they do.  You can have that statement by simply saying that it operates subject to the Act.  If one looks at Regulation 4, that is enough.  I do not think anything turns on this, your Honours, but it is something dealt with in the Full Court judgment.

GUMMOW J:   I would just like to know so I have it clear in my mind.

MR SPIGELMAN:   I have handed to your Honours two Acts.  The first is the original Act and then the Amendment Act and I indicated to your Honours that the most significant thing  ‑ ‑ ‑

GUMMOW J:   The change is in the Amendment Act is it?

MR SPIGELMAN:   Yes, the Amendment Act inserted 11(1C)

GUMMOW J:   Yes, thank you.

MR SPIGELMAN: 

This Act applies to the country concerned subject to that Treaty ‑

and regulation 4 is in that form.

GUMMOW J:   The Amendment Act is 1990.

MR SPIGELMAN:   Yes.  We say that (1C), if there was any doubt about what the effect of regulation 4 was when originally promulgated, the insertion of (1C) in the Act cures that doubt.  We say that regulation 4 as originally promulgated was sufficient for the old and original version of section 11 but that (1C) cured any doubt about that, namely that subsection 1 which I do not think did change ‑ if one looks at 11(1A), it said:

The regulations may provide that this Act applies in relation to a specified extradition country subject to such limitations, conditions -

et cetera.  We say the original regulation 4 was such a statement.  It said, “subject to the Treaty which was scheduled”.  In order to cure any difficulty about that form of words, (1C) was inserted.  I do not think anything turns on it for the purposes of this case, your Honour.

GUMMOW J:   You have said that several times.

MR SPIGELMAN:   Your Honours, we have put in references to construction of treaties and matters of that character because we say the Full Court erred but we do not think that its reasoning in this respect was either essential there ‑ ‑ ‑

GUMMOW J:   But that is why the Act is there.  You do not get into the construction of the Treaty, you get into it through the regulations.

MR SPIGELMAN:   That is so.

GUMMOW J:   But you say do not worry about the regulations.

MR SPIGELMAN:   That is right, your Honour, but there is, in the middle of the passage which is the reasoning of the Full Court in this case, an excursus on the Treaty which we say is wrong and if there is such error we would not want it to be continued.  Finally, your Honours, if I could come back to the question with which I commenced, namely whether or not it is any part of the magistrate’s function to make a determination of the person accused, could I take your Honours to some particular sections of the Act which show the extent to which the magistrate is confined.

Your Honour Justice Gummow has already referred to section 19(5) which says he is not entitled to receive evidence about the commission of the offence.  Could I take your Honours specifically to section 11(6).  Section 11 is about modifications of the Act by treaties, but subsection (6) is interestingly restrictive in this respect because what it ends up with, it says that even if there is such a modification, no such modification can require:

a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).

And it says that:

For the purpose of determining under subsection 19(1) whether a person is eligible for surrender ‑

and goes on to refer to limitations, conditions, qualifications or exceptions which are the combined group of modifications permitted by 11(1).  None of those has the effect of either requiring or permitting a magistrate to be satisfied of any matter other than the matter set out in 19(2)(a), (b), (c) or (d).  This, we say, indicates and confirms that the functions of the magistrate in going through the steps he has to check off are steps of a particular character and of a limited character and his role is confined and restricted.  All other matters other than those with which he hears are charged in a check‑list matter with the use of the words “only if” in 19(2).  All other matters are for the Attorney.

We have given your Honours some references to the difficulties involved in permitting proceedings to encompass an inquiry into when an investigatory process of a civil rort country can have reached the stage of accusation and we have handed up extracts from that volume in the materials we have given to the Court today.  We say that the legislature had in mind the variety of foreign systems to which this Act had to apply and for that reason, maximised the amount that the Attorney does, as it were, in

terms of his inquiries prior to reaching the various opinions that he has to reach, in a manner that does not involve full proceedings.

Obviously, there are many restrictions on the application of the legislation and they would not extend to circumstances in which nations seek extradition merely for the purposes of investigation.  It starts off right at the beginning.  A country is only an extradition country if the Commonwealth has agreed to it being on the list of countries to which the Treaty applies.  So there is even a preliminary position before the determination by the Attorney in the first instance of a person being an extraditable person which is itself a further ground of, as it were, protection against the idea if it seemed to concern the Full Court that persons could be extradited on mere suspicion rather than any formal process of accusation.

My instructions are that the DPP was joined in as a respondent below and has continued in that way.  It does have a statutory role as your Honour is aware and it has never sought to disentangle itself from the proceedings.

GUMMOW J:   What is the statutory ruling?

MR SPIGELMAN:   It conducts extradition cases on behalf of the requesting countries.

GUMMOW J:   That just means they have a client, that is all.

MR SPIGELMAN:   Yes.  There is a reference in the DPP Act which we can get for your Honour to the appearance in extradition cases, but it is true ‑ ‑ ‑

GUMMOW J:   There is also section 50 of the Act as well.  That contemplates the Attorney‑General being involved really.

MR SPIGELMAN:   That gives various forms of privileged communication.  I was not aware of the practice but it appears that the DPP was joined and has never thought it improper that it be joined and has continued and obviously when the appeal came, it was inverted.  We just became appellants having been respondents.  If the Court pleases, they are our submissions.

BRENNAN CJ:   Thank you Mr Spigelman.  Mr Walker?

MR WALKER:   May it please your Honours.  Your Honours, we put it generally that the way in which the Republic of Austria expressed itself by its request and in the documents which came to be the supporting documents breaks this case into two elements.  The outline of submission, your Honours, addresses it in two halves.  The first is an argument I wish to put second orally.  The first argument I wish to put orally is the second.

BRENNAN CJ:   Perhaps we ought to have a look at your outline first, Mr Walker.

MR WALKER:   May it please, your Honours.

BRENNAN CJ:   Yes, Mr Walker.

MR WALKER:   May it please, your Honour.  There are two halves, as it were, to the argument we wish to make good.  If we persuade your Honours that the Attorney‑General does not have the primacy of his or her opinion which my learned friend’s argument would accord to it, then we still fail, if we cannot also persuade your Honours that, in this case our client could be shown to be an accused person.  So that, even if we win the statutory interpretation argument about the Attorney‑General’s role, we still must go on to persuade your Honours that the Full Court was correct in their decision about accused.

If, of course, we fail on the primacy provisions, then it does not matter the fate of the argument on the question of whether or not my client was shown to be accused. Before then moving to the question of the adequacy of the Republic of Austria’s material which was before the magistrate, could I simply deal with the procedural question about the Director of Public Prosecutions. The statutory mandate, as we understand it, for the Director to be involved not merely as a legal representative but arguably also as a party who is represented, comes from paragraph 6(1)(k) of the Director of Public Prosecutions Act which reads that the functions of the Director are to appear in proceedings and I assume, your Honours, that that is a provision that has now been amended to include this Act.

Section 15 of the Director of Public Prosecutions Act refers to the possibility of the Director appearing in person or being represented by a solicitor or counsel.  Those provisions, at least in the form they appeared in 1987 were discussed by Mr Justice French in Hempel and Etheredge v Moore 13 FCR 480, the particular passage at 482 and following and it would appear that it is probably in accordance with that practice that the Director ‑ ‑ ‑

GUMMOW J:   But that predates the 1988 Act.

MR WALKER:   It does, your Honour.  It does predate that Act.

GUMMOW J:   Section 21 is drawn very clearly.

MR WALKER:   Yes, it is your Honour and it is requesting a state.  It is to be observed that the same was true, in effect, under the old Act as well.  It is also true that the Attorney‑General plays the role that the Attorney‑General obviously has in light of section 50 and that, according to Justice White’s reasons, the proceedings before the magistrate were to be described as having been commenced by the Attorney‑General by someone with the surname “Moore”.  So, beyond that, we cannot take it any further.  The Republic, being a party, ought to be treated as having fulfilled the requirements of section 21 in that regard. 

Your Honours, in our submission, the statutory scheme is one which forms a funnel, widest at the beginning of the narrative of any proposed extradition and narrowing as it approaches to the final surrender decision under section 22.
The stages of that funnel, the width of the catch of people who may eventually be surrendered is reflected in some of the change of terminology:  “extraditable person” in the provision to which my learned friend has drawn your Honours’ attention, then “a person eligible to be surrendered” which, of course, is not the same as “who must be surrendered” and, finally, “a person with respect to whom a decision of actual surrender is made by the Attorney”.

The Attorney appears explicitly at the beginning and end of that process so that, in terms of the executive, a minister is involved at the beginning and end, as one would expect, with respect, in relation to the execution of Treaty obligations.  The persona designata, the magistrate in the middle, under section 19, conducts under that provision a process which is actually called “proceedings” and that is a distinction from the former section 17 of the 1966 Act where the equivalent, which is by no means exact, was not actually called “proceedings”.  They are proceedings to determine whether a person is eligible for surrender.

In the course of those proceedings many substantive matters, no mere clerical check-list, however much of subsection (2)(a), (b), (c) and (d) may be a check‑list, have to be determined including the important question of the sufficient material with respect to an extradition objection.  It is against that background, in our submission, that one comes to construe the Act as we submit it has been modified in a small but important respect by the Treaty as it applies with respect to Austria, to the question “Does the magistrate have the power” - because if he has the power he clearly has the duty - “to determine whether or not the person whose eligibility for surrender is in question before the magistrate is accused or convicted?”.

Can I take your Honours first to section 19 in that regard because in subsection (3)(c) your Honours will see that according to the statute “in any case”, that is, whether the question is accused or whether the question is convicted, “in any case” there must be:

a duly authenticated statement in writing.....
(ii) .....setting out the conduct constituting the offence.

and that, as my learned friend has put it, represents one of the major changes from the 1966 regime where no longer there is a question of evidence sufficient, prima facie or otherwise.

There is, in our submission, the Treaty to be considered notwithstanding what my learned friend has said about the unimportance, for present purposes, of looking at the Treaty.  Section 11 permits modification.  Section 11(1C) permits that to be done by a statement.  What was enacted in place of transitional provisions is to be found in - and I regret we do not have this to hand up, it only  just having arisen - section 4(2)(a) of the Amendment Act whereby the legislative command is to treat subsection (1C) - I should say is to treat regulations as if subsection (1C) “had been in force on the date of commencement of the regulations”.  In this case the request for extradition, as your Honours have seen from the chronology and page 20 of the book, was made in January 1993 which, of course, is well after the commencement of the Extradition Amendment Act in any event, as well as long after the commencement of the regulations, so that regulation 4 to which your Honours’ attention has been drawn was, notwithstanding its appearance, an adequate regulation to fulfil the requirements of section 11(1)(a), to fulfil the requirements of the statement which is set out in some detail in that paragraph.

It is probable that amendment was excited by, I think, a comment, a very short passing comment by Mr Justice Pincus in a case called Unkel which - - -

GUMMOW J:   This is further discussed in the Full Federal Court case of Todhunter handed down on 19 April this year.  It is matter No 624 of 1994.

MR WALKER:   May it please your Honour.  Your Honours, section 11(6) is of real importance for this and a related purpose in our argument.  My learned friend drew your Honours’ attention to it towards the end of his submissions.  It does, relevantly, two things for our present purposes.  The first is that notwithstanding its closing words it is to be construed in light of the section in which it appears including subsection (1) and (1)(a) which actually do empower regulations to be made which will have the effect of limiting, conditioning, qualifying or providing exceptions from the effect of the Act.

Apart from the immaterial, limitations, et cetera, referred to in the parentheses in subsection (6), which do not matter for the present case, the second important thing that it does is to describe the magistrate in his or her functions as that of being “satisfied of” matters “set out in paragraph 19(2) (a), (b), (c) or (d)”.  So that there can be no doubt, whatever else my friend says about the primacy of the Attorney-General’s opinion, that it is a question of whether the magistrate is satisfied of the matters in (a), (b), (c) or (d).  Textually, that is of some significance because in 19(2)(a), (b), (c) and (d), (c) and (d) actually uses the word “satisfied” with respect to what the magistrate is doing:  satisfied or not satisfied; (a) and (b) do not.  But what section 11(6) says is that it is a question of the magistrate’s satisfaction, a familiar quasi judicial expression, in each of those four paragraphs.

The next and perhaps most important matter that subsection (6) does is to prevent any such limitation, et cetera, from having the effect of, as we would paraphrase it, permitting the magistrate’s contribution to the extradition process, because it is not a decision to extradite obviously, permitting that contribution to be adverse to the person on proof of anything other than that set out in (a), (b), (c) or (d).  It could be put the other way as well:  prevents the magistrate’s contribution to the extradition process from requiring proof of anything other than set out in (a), (b), (c) or (d) in order to extradite.

GUMMOW J:   But, Mr Walker, how does this help us because Mr Spigelman said forget about section 11?

MR WALKER:   We are at odds with him on that.  There is a difference between Article 11 of the Treaty and section 19 of the Act.

GUMMOW J:   No, no, Mr Spigelman says forget about section 11 of the statute.

MR WALKER:   And we do not, your Honour.  It is the section which empowers regulation 4 to be made.  Regulation 4, by reason of section 11, is what makes Article 11 and, in this case, provide a limitation with respect to section 19(3) of which this part of the argument commences.  That is important because it shows a difference in the application of this Act for Austria, a difference depending whether the person is convicted or accused, and that then leads to an argument - just jumping ahead in sketch - about section 10 and that leads me back to the argument that I have to put, obviously, about section 19(2) and the magistrate’s role and how it is not capable of determination by an Attorney-General’s opinion.

Now, section 11 has the effect - I have just submitted to your Honours in answer to Justice Gummow’s question, the importance, as we say, is that it prevents something other than 19(2)(a), (b), (c) or (d) from being appropriate for the magistrate’s determination on whether a person is eligible.  If one then goes, as I say, to Article 11 of the Treaty, as amended by the protocol, which is in Schedule 2 of the regulations, and there is a contrast, slight but significant, in our submission, between 19(3)(c) of the Act and Article 11(2)(a) and (b) of the Treaty.  The difference is that in the Act, whether it be accused or convicted, that is, “in any case” - paragraph (c) - there must be a statement of the conduct constituting the offence.  In the Treaty there is a limitation, something less than that;  not other than that, but something less than that is what is to be supplied for a convicted person - Article 11(2)(b):

if the person has been convicted of an offence - by such documents as provide evidence of the conviction and the sentence imposed, the fact that the sentence is immediately enforceable, and the extent to which the sentence has not been carried out -

and (c) is a subclass of conviction which does not matter for present purposes.

Article 11(d) applies to all cases in the Treaty but that does not include the conduct and (e) is an extra.  It may be doubted whether by reason of section 11(6) that is something for the magistrate at all.  But, no doubt it is something very useful for the executive, given that there is no obligation to extradite one’s own national.  So, when one looks at Article 11(2)(a) and (b), it is clear that that is providing not for something other than what is set out in paragraphs 19(2)(a), (b), (c) or (d) of the Act but something less than, classically a limitation or restriction, et cetera.

That is of some importance then because of the distinction introduced by section 10 of the Act between those who, upon conviction, are to be treated as convicted within the meaning of the Act and those who, notwithstanding conviction, are to be treated as accused.  So, construing this Act in its application by reason of this Treaty, there is a difference depending upon the nature of the conviction and your Honours will be familiar with the fact that certain countries have certain procedures with respect to conviction in absentia with differences depending upon local variations of the law.

If a person, notwithstanding proof of conviction being supplied by duly authenticated documents, has, it appears from the face of those documents, been in fact convicted, either in absentia ‑ and that is an expression which, however much we resist localism, must be applied in light of this country’s jurisprudence as a matter of interpreting section 10 ‑ then it will not be a sufficient supply of supporting documents if Austria has supplied for that person only the supporting documents referred to in 11(2)(b) and not also the supporting documents referred to in 11(2)(a).  So that there is a distinction called for which will have a fundamental effect on the ability of the magistrate to be satisfied as to whether or not the supporting documents have been produced.

TOOHEY J:   Well, how do you apply that argument, Mr Walker, to the situation in the present case?

MR WALKER:   Your Honour, it is not, of course, directly applicable in the present case.  It is an argument which is designed, if it has any effect, to illustrate the importance of the categorisation or allocation, to adopt two words that have been used in argument earlier today.  It is an argument which then goes back to section 16, to which I will come in just a moment, but in answer to your Honour’s question, we use it by saying that the schemer of the Act, as modified by this Treaty, necessarily involves the magistrate in satisfying himself or herself that a person is to be categorised as accused or convicted in order that the magistrate determined whether the correct supporting documents have been duly authenticated and supplied.  Were it otherwise, given this modification, there is a real difference because of Article 11 between conviction and accused.

DAWSON J:   Essentially you say that section 16 does not serve to allow the Attorney‑General to categorise it.

MR WALKER:   Quite so.  Yes, your Honour, that is, put at its very briefest, what we say.  Elaborating that slightly, your Honours will be aware that there are prescribed forms.  There have been extradition statutes, including those which were precursors of our legislation, which would provide different warrants, depending on whether one was accused or convicted.  That seems now no longer to be the case.  The concept with the Attorney’s steps is of an extraditable person, et cetera.  Coupled with the provisions of section 16, it then appears that there is nothing on the face of the Act, including the forms which must be used after decisions have been made under the Act, which requires the Attorney definitively to say whether this is a person who is accused, convicted or an important sub‑category, convicted but to be treated as if accused because it is a conviction in the absence of the person.

Nothing in section 16 requires the Attorney to distinguish.  Indeed, when one goes back to section 6 which is the definition guiding the Attorney’s formation of opinion, the question is whether a person is one or the other.  In doubts about whether a conviction had been, for example, in the absence, then if there had been a conviction, the Attorney could very reasonably form the opinion that the person is extraditable.  Either it is a conviction or it is an accusation. 

Section 16 does not require in terms or, indeed, by the forms which thereafter issue, the Attorney to distinguish.  But this Act, as it is modified by Article 11 of the Treaty in section 19, does require the magistrate to distinguish because if the supporting documents provided conviction but not the acts or omissions, which is the limitation intruded by the Treaty on to the notion of conduct, then obviously enough, 19(3)(a) could not have been supplied.

TOOHEY J:   Section 10 does not, as I read it, require the magistrate to make a decision as between one category or another, does it?  It simply operates by its own cause and effect so that the person who has been convicted in the absence of that person, is deemed to be accused, not convicted.

MR WALKER:   There is no decision called for by anybody under that.  It acts, with great respect, as your Honour puts it entirely, but that is an operation which must be read into those expressions “accused” and “convicted” as they appear in, amongst other places, paragraphs 19(3)(a) and (b).

TOOHEY J:   But you might just as well say that section 10 is there so that, in the situation to which it refers, the classification in section 19(3) is answered by the force of section 10.

MR WALKER:   It is, indeed, answered by the force of section 10, your Honour, but there must be material which enables one to know ‑ and this is critical in the case of Austria because of the difference introduced by the article between the material necessary for “accused” and the material necessary for “convicted”, one must know whether it is (a) or (b) of subsection (3) which is the appropriate category for the person.

TOOHEY J:   Why is that?

MR WALKER:   Because by reason of the modification introduced by Article 11 of the Treaty, your Honour, in the case of an accused, there must be a statement of the acts or omissions but there need not be that statement, indeed, bearing in mind what the statute says, such a statement is inappropriate in the case of a conviction.  And one gets that from a contrast between Article 11(2)(a) and (b) in the second Schedule, compared with paragraph 19(3)(c)(ii) of the Act.  So that the importance of categorisation is not a mere matter of intellectual taxonomy;  it really affects the ability of the magistrate to perform the check‑list task, as my learned friend puts it, as if to sleight the importance of it, the check‑list task in subsection (2).

This is a very important check‑list task because this is only the magistrate’s contribution to an extradition process.  It only determines eligibility.  The Attorney then makes a discretionary, executive decision as to surrender and your Honours may well contemplate, particularly when limitation periods are said not to be running and the like, that armed with a statement of acts or omissions and with long lapse, there may be an enormous difference between a conviction not in the absence where the Attorney may well make a policy decision that that is enough for the surrender decision, and conviction in the absence of the person so that there may need to be a trial under the system of the law, depending upon what kind of provisions might result, where there would then be a trial, perhaps many, many years after the acts or omissions. 

He will be able to judge that because the statement, if the person is an accused person, the conviction having been in the absence, is supplied.  He will not be able to do that otherwise.  So, that there is a real importance beyond the mere check‑list process to be performed by the magistrate of having that categorisation performed properly.

BRENNAN CJ:   I do not quite follow, I am afraid, Mr Walker.  I can understand that the argument advanced by Mr Spigelman in relation to section 16 can assist his argument in relation to the construction of 19(3), but if section 16 for reasons of Article 11 is no longer to be regarded as definitive of the construction of 19(3) or to be of assistance in the construction of 19(3), why does not one simply look at 19(3) and Article 11 and say, well, the magistrate must determine whether the case that is then before him is one of conviction or otherwise and if it is “or otherwise”, his sole task is to determine whether there is a warrant for arrest as for an offence.

MR WALKER:   Yes.  Your Honour, the two‑stage exercise your Honour has just put to us is one which we embrace.  Having determined whether this is conviction or otherwise, and I may have to qualify that, but it serves my present purpose, is the first stage.  Then, he performs simply the task of observing whether the supporting documentation required by the Act, as modified by the Treaty, is in order for that category.  We accept that.  That is precisely what we say.  We are not, of course, arguing that there is some challenge to any merit involved in the first stage which is the categorisation stage.  That is simply an inquiry from the material which the requesting country, or requesting party, sees fit to place before the magistrate as to whether this person is in category A or B. 

Now, it so happens that, under this statute, that inquiry involves consideration of the way in which the conviction was achieved if it is a conviction case and that is because of the force in its own right of section 10.  It also so happens that for this Act as modified by this Treaty, that matters for the check‑list process because, whereas in the unmodified Act in any case there will be a statement of conduct ‑ ‑ ‑

GUMMOW J:   What is this check‑list process?

MR WALKER:   I am adopting, perhaps excessively, my learned friend’s ‑ ‑ ‑

GUMMOW J:   I know you are, but it may have been poisoned chalice.

MR WALKER:   The check‑list I understood to be his description, your Honour, of the run‑down (a), (b), (c) and (d) of section 19(2).

TOOHEY J:   It is more than a run‑down.

MR WALKER:   I am sorry, your Honour?

TOOHEY J:   Subsection (2) is more than a run‑down.

MR WALKER:   Yes.  I am going to elaborate on our answer in a bit more detail.  In our submission, this is deliberately called a proceeding;  it is a matter which involves judgments by the magistrate and they involve some very important substantive judgments, for example, (c) and (d).

TOOHEY J:   Well, yes, but judgments in a popular sense.

MR WALKER:   Judgments only in the popular sense, of the intellectual application of a test to material before the persona designata, not in a judicial sense, no.  But it is emphatically not a glorified clerical task, an examination of whether seals appear in order and the like.  It is emphatically not that.

BRENNAN CJ:   But, if the magistrate, looking at Article 11 on the piece of paper in front of him, sees that there is a warrant for the arrest of the person who is alleged to be an extraditable person and sees that there is no suggestion in the document in front of him that that person has been convicted, what more so far as (2)(a) and 19(3) is concerned is there for him to do?

MR WALKER:   If the issue of a warrant were enough to indicate the person were accused, nothing, your Honour, however, the issue of a warrant of arrest - and that is of course an expression using our nomenclature for the variety that my learned friend has referred to - that expression could embrace requirements backed up by State imprimatur for the arrest or taking into custody of somebody who has not yet been accused.  Now, that is a speculation which is permitted in terms of construing this Act as it must apply to multifariously different legal systems, but I repeat our main answer:  if it indeed were enough to prove that a warrant for arrest had been issued because that equated to the fact of the person being accused then my argument goes no further because there is clearly evidence here, copious evidence, of the issue of a warrant of arrest and if that equates to demonstration that this lady falls into category A because by that fact the magistrate could have been satisfied she was accused then that is the end of it and we lose on that point and the other point becomes moot.

BRENNAN CJ:   Let me approach this from another way.  Article 11 can affect the substantive provisions of the Act.

MR WALKER:   In, if I might use the expression, a limited way only.

BRENNAN CJ:   In a limited way.  But if one looks at section 16 and section 10 one sees that there are there three categories or perhaps two categories of accused or convicted and convicted has a subcategory of convicted in absentia and convicted in praesentia.  Now, if one looks at Article 11, 2(a) and (b), one has precisely the same three categories.

MR WALKER:   Yes.

BRENNAN CJ:   Why is it that Article 11 does anything to amend the effect and operation of section 16?

MR WALKER:   It does not.  We do not say it does.

BRENNAN CJ:   Then does it affect in any way the operation of section 10?

MR WALKER:   No, it does not.  In fact it faithfully reproduces the dichotomy plus the deemed membership of a subclass to one of the classes which is set out in section 10.

BRENNAN CJ:   Then when one comes to 19(3) why is it said that it affects the categorisation of (a) and (b) that would otherwise have been made if there had been no amendment?

MR WALKER:   It does not affect the categorisation.  It renders the categorisation critical because paragraph 19(3)(c)(ii) provided that in any case, accused or convicted, statement of conduct had to be supplied, but Article 11, 2(a) and (b) differentiates because the statement of acts or omissions need be supplied only in the case of accused or convicted in absence and not in the case of convicted.  So that whether or not the supporting documents are indeed in order, are the proper supporting documents, depends critically in this case upon the proper categorisation and that, as section 10 and Article 11 points out, does not depend on opinion, does not depend upon anything other than the fact.       Now, the fact is going to be proved by the material before the magistrate.

TOOHEY J:   That is a very big step to take, is it not, because what it really amounts to is to inflate section 19(2) to add to the matters which go to make up eligibility to surrender a determination by the magistrate whether or not a person is a person accused?

MR WALKER:   No and yes, your Honour.  It is not, in our submission, a big step but certainly it involves saying that in order to answer the questions in 19(2)(a) that the supporting documents in relation to the offence have been produced to the magistrate, the magistrate must be able to answer the appropriate questions raised by 19(3)(a) and (b) and that is because the Act requires that.  That is where one finds the meaning of supporting documents.  The magistrate looks at that provision and looks for what it is worth at Article 11 as well and asks, “Do the documents which have been supplied for somebody hitherto called merely extraditable not being called in any official document emanating from Australia accused or convicted, is this category A or B?”.

TOOHEY J:   But you give it higher status, do you not?  In one sense you give that determination a higher status than the matters referred to in subsection (2) because they require the magistrate to be satisfied, but you seem to put the argument in terms of some decision which is susceptible of challenge on an objective footing.

MR WALKER:   No, with respect, I fear my language has suggested that there is such a distinction.  I do not intend that at all, your Honour.  It is only one of the matters upon which the magistrate must be satisfied as a matter of fact.  I distinguished that from the opinion question, which is the Attorney’s role under section 16, and I apologise for having introduced that confusion.  Subsection (2) is the substantive provision which lays out what the magistrate must address in  what is described as proceedings in subsection (1), proceedings to determine whether the person is eligible for surrender.  Subsection (3) is adjectival, as it were, to that substantive provision.  It supplies a definition of one of the concepts which must be addressed by the magistrate, namely, the concept of supporting documents in paragraph 19(2)(a) and in order to faithfully apply those provisions of 19(3), which he is commanded to apply because of the expression in 19(2)(a), the magistrate must know - and my point about Article 11 is that it matters in this case - whether it is category A or B.

Now, my learned friend says, no, that allocation, again, to use one of his expressions, has been performed previously by the Attorney, but my submission is that the Attorney has never done that and that when looks, for example, at Form 9, which is the section 16 form, it is clear that the Attorney makes no such distinction.  Item (a)(i) is an essential recital that must be filled out, “I am of the opinion that so‑and‑so is an extraditable person”.

TOOHEY J:   I doubt that Mr Spigelman confined his argument in that way.  Whether he did or not, your argument still involves giving to what on one view is a categorisation in subsection (3) the status of one of those matters referred to in subsection (2).

MR WALKER:   No, I cannot give it the status because it does not appear in subsection (2), your Honour, and I need to make my argument appear to do something other than give it the status of an unuttered paragraph of subsection (2).  Rather, it is a matter which is implicit in the judgment required or the decision required by 19(2)(a).  It is implicit in that because it is called up in terms by (3)(a) and (b), because (3) is where one finds this definition of supporting documents and we embrace the proposition that this is a categorisation or allocation exercise.  We simply say of that exercise that in order to apply it one must be able to see from the material which set of requirements, in this case of Article 11, is to be applied.

GUMMOW J:   The actual determination is made under subsection (9) or (10), is it not, of section 19?

MR WALKER:   That is the upshot.  The substance of the description of the person as a person eligible is provided by subsection (2) exhaustively, as my learned friend, with respect, correctly said and the proceedings are described after all as proceedings to determine whether the person is eligible for surrender.  Subsection (2) says, “Well, your inquiry, the scope of your inquiry, is bounded by subsection (2).”  Subsection (3) says, “As to an important term of that inquiry, this is what must be met according to category,” and it is because it must be met according to category that one must know in which category the person falls.

GUMMOW J:   Yes, but (a) and (b) go together in a way.  It is only (c) and (d) that require an element of satisfaction.

MR WALKER:   Your Honour is referring to subsection (2).

GUMMOW J:   Yes.

MR WALKER:   Yes, we accept that.  That does not mean that (a) and (b) are not matters of which the magistrate is to be satisfied and that is why I referred, as your Honour will recall, to section 11(6) at the outset because that shows that the legislators regarded the exercise upon which the magistrate embarked in the proceedings to determine whether the person was eligible, et cetera, as being one where the magistrate asked whether he or she was satisfied of the matters in 19(2)(a), (b), (c) and (d).

GUMMOW J:   Then what is the content of the review by the court in section 21?

MR WALKER:   May I say so I was hoping I would not be asked precisely what that was.

GUMMOW J:   It is an expression that is given no further content, is it?

MR WALKER:   It is an expression given no further content.  It is given an important restriction, however ‑ ‑ ‑

GUMMOW J:   Because the question is, “What is the court doing when it is reviewing in relation to 19(2)(a) or (b)?”.

MR WALKER:   Yes.  It is given an important negative restriction, which is not a very wholehearted answer to your Honour’s question, by section 21(6)(d), which applies in terms, not only to Justice White in the Supreme Court, the Full Court of the Federal Court, but also to your Honours, but it does apply to the reviewing court.  As to the distinction between a review by the Supreme or Federal Court at first instance and what might be called an appeal, I confess I am at a loss to make any submission which advances overall my client’s position one way or the other.  I am tempted to adopt one of my learned friend’s expressions that that does not matter in this case.  What is clear is that the first instance judge is confined to the magistrate’s material.

The word “review”, if anything, suggests that the “go over again” or the “look at again” process conjured up by the word “review” literally is one which is not bounded by any notions of errors of law, any house in the King exercise - mind you there is no discretion of course - and that it is a “look again” at all the material but only the material which was before the magistrate in accordance with law but not bounded by any distinction between errors of fact and law.  That is the best I can offer as why the word “review” was given.  Of course the word “appeal”, it is readily understandable, would be a most undesirable word to use of a non‑judicial function, which is of course the function by the persona designata.      Having said that, of course, it is in quite a few statutes used regularly to describe review of purely administrative decisions.

DAWSON J:   You mentioned a Form 9 I think it was, Mr Walker.

MR WALKER:   Form 9.

DAWSON J:   Where do we find that?

MR WALKER:   I am sorry, your Honours do not have - I apologise, your Honours.  I will have that made available.  I was under the impression that that was with your Honours and I am wrong.  Your Honours, there are Forms 4, 5 and 9 to which I wish to make reference and I will have copies made available.  Your Honours, if I can then go back to the question of the primacy of the Attorney‑General for which my learned friend contends.  The argument, as we understand it, is that section 16 is the one and only time, subject to 39B challenges, to which we will come back, that a distinction between being accused or convicted is attended to.  For the reasons we have already put there is nothing whatever in section 16 or, for that matter, in section 6 itself that positively requires or, indeed, contemplates that there will be any such distinction, thus the portmanteau expression “extraditable person”.  A portmanteau expression which means one does not need to explore the distinction talked about in section 10(1).  That is a distinction, however, which is open for the reasons we put in section 19.

Another reason why section 16 does not do the work for which my learned friend contends, is that it is avowedly a matter of opinion rather than the formulation in section 19, “proceedings to determine whether the person is eligible”, followed by a description in subsection (2) in terms referring twice to magistrate’s satisfaction and twice to matters upon which it is known the magistrate has to be satisfied.

GUMMOW J:   You are not saying that section 16(2) is a Liversidge v Anderson matter?

MR WALKER:   No.

GUMMOW J:   You are emphasising the word “opinion”?  Heavy emphasis, I thought.

MR WALKER:   Yes, I do not entirely retract the emphasis, your Honours, for this reason:  a not absurd extension of my learned friend’s argument is that upon the Attorney stating in a document, which happens to be a statutory form, something which any lawyer or perhaps layman, looking at the material upon which the attorney did that, would regard as being wrong, for example, a conviction in absence, declared as such; treated as a conviction; would treat that as beyond correction by the magistrate under section 19 and requiring section 39 proceedings.  Requiring section 39B proceedings, in our submission, is scarcely a way to favour requesting parties’ interests, because requesting parties’ interests can be dealt with in section 19 proceedings beneficially to international co‑operation, for example, under 19(4), a provision to which your Honours’ attention has not been directed hitherto, but which illustrates the extent to which the documents and supposed deficiencies in them are matters which are within the ambit of the magistrate’s power under subsection(2) because ‑ ‑ ‑

McHUGH J:   Do you concede the magistrate cannot determine whether a person is an extraditable person?

MR WALKER:   That is not the function at all.  Not only do I concede that, we would assert that.

McHUGH J:   Once you concede that, you are in serious trouble, are you not?

MR WALKER:   No, your Honour, because ‑ ‑ ‑

McHUGH J:   The definition is either/or, under section 6, and then the Attorney is given an opinion that the person is an extraditable person, so is either in one category or the other, and then ‑ ‑ ‑

MR WALKER:   Or is one or the other, yes.

McHUGH J:   Then you have a warrant.  Does that not indicate that the sole purpose of subsection(3) is to identify one of the supporting documents but without the magistrate having any role in the part?  You have a piece of paper; it is a warrant.

MR WALKER:   Your Honour, whether that is a supporting document as required by the Act and the Treaty, in particular the Treaty, will depend whether the person is accused or convicted.

TOOHEY J:   It may be one thing to say that the question under section 19(3) is not answered by the notice given under section 16, but it is quite a different thing to say that subsection (3) requires a determination by the magistrate of whether the person is a person accused or a person convicted.  After all, section 19(1) speaks of the Attorney‑General having “given a notice under subsection 16(1)”.  That is really as to fact which has to be before the magistrate.  It does not require the magistrate to pass judgment or, indeed, in the terms precluding from passing judgment upon the notice, I imagine.

MR WALKER:   Yes, the Attorney’s notice is not a matter upon which the magistrate passes notice except in the sense that the duty of the magistrate to conduct proceedings is conditioned upon it being true that, (a) a person is on remand, (b) the Attorney‑General has given notice; does not pass upon the merits of the notice, just the fact of the notice, (c) an application is made and, (d) reasonable time has been had by the parties to prepare for the conduct of the proceedings.  Once those matters are fulfilled, and only when they are fulfilled, the magistrate must conduct these proceedings to determine and we ‑ ‑ ‑

TOOHEY J:   What I am suggesting, Mr Walker, is that to mount an argument against Mr Spigelman’s argument in relation to section 16, does not, even if successful, really answer the primary question which is whether or not the determination has to be made under section 19(3) as to the status of the person, namely, whether that person is accused or a person convicted, or whether those are merely - I will adopt the expression that has been used during the appeal - classifications.

MR WALKER:   We accept, your Honour, that section 16 is not the be‑all and end‑all by any means of the argument about section 19.

TOOHEY J:   I am going further than that:  I am saying, put it to one side altogether.  You still have to persuade the Court, do you not, that in terms of subsection (3) a determination must be made by the magistrate as to the status of the person, that is, whether the person is accused or convicted, and that it is not enough merely to have before the magistrate a duly authenticated warrant for the arrest of that person, or duly authenticated documents evidencing conviction.

MR WALKER:   Yes, that is our task.  If we cannot discharge that then that is the end of the question.

McHUGH J:   That means the substance of matter is that the Full Court, standing in the place of the magistrate, has held this woman is not an extraditable person.  That is the very question you concede they cannot ‑ ‑ ‑

MR WALKER:   No, your Honour.

McHUGH J:   That is the substance of it, is it not?

MR WALKER:   No.  There is no expression in their reasons which amounts to that.

McHUGH J:   I appreciate that, but that tells us that she is not an accused person.

MR WALKER:   It is a logical consequence of holding that there is no evidence, as everyone knows, of conviction; and holding that there is insufficient evidence, if I can put it that way, of accused.  It so happens, though it is not a consequence which the Full Court needed to observe because it was an irrelevant one, that that means that the integers in section 6 are all absent:  she is not an extraditable person.

BRENNAN CJ:   Why is it that the function under 19(2) and 19(3), having regard to the terms of Article 11, is not to see whether, in the document in front of the magistrate, there is a document which answers either the description of a warrant within Article 11(2)(a) or such documents as provide evidence within Article 11(2)(b) and provided one or the other is there, then the magistrate’s function under (2)(a) is set aside?

MR WALKER:   The answer, your Honour, is because the duly authenticated warrant plus the material otherwise supplied under the Treaty, for example, may reveal on its face that the person has not been accused but is required to assist in investigations.

BRENNAN CJ:   That may or may not be so, but if it is right to say that the question of extraditable or non‑extraditable person is not for the magistrate, is it not then the situation that the person, in respect of whom the magistrate’s function is performed, must be taken to be, for the purposes of 19(2), either a person who has been accused or a person who has been convicted?

MR WALKER:   No, for this reason -  that certainly is how we understand the primary argument by my learned friends - but no, for this reason:  it cannot be that the prefatory words of (3)(a) and (b), that is, “if the offence is an offence of which the person is accused” and, “if the offence is an offence of which the person has been convicted” are to be read as if it does not matter which is true because the person is already deemed to be one or other of those, it matters not which.  The words literally refer to a condition which depends upon a status, “accused” and “convicted”, a status which is actually reproduced in the very terms in the Treaty.

McHUGH J:   But section 19 operates upon an hypothesis that the person is an extraditable person.

MR WALKER:   No, it operates upon the hypothesis that the Attorney has formed that opinion and is then - - -

McHUGH J:   Be it so, the magistrate has to act on that basis.

MR WALKER:   Your Honour, if that were the answer, then that would be the end of my argument; but that is the inquiry, in our submission, as to

whether it is enough for the Attorney’s opinion to foreclose all requirements to decide which category, (3)(a) or (b), is the one which provides the description of the relevant supporting documents.  The Attorney forms an opinion - the funnel begins to get narrower.  The Attorney gives opinion, and by appropriate notices the matter is then referred to a magistrate who must, himself or herself, “conduct proceedings to determine whether”, et cetera.  None of that ‑ ‑ ‑

McHUGH J:   He determines whether this extraditable person is eligible for surrender.  It is a change of language.

MR WALKER:   He determines whether the person whom the Attorney was of the opinion was an extraditable person, was eligible, and does so by means which includes satisfying himself under (2)(a) that the appropriate supporting documents have been supplied, a state of satisfaction which can only be reached if the appropriate answer to the proper category is reached, because (a) and (b) do not amount to conditions which abolish the necessity to choose between one category or the other.

McHUGH J:   But you make (2)(a) do a lot of work.

MR WALKER:   Yes.

McHUGH J:   On its face, all the magistrate has to be satisfied about is that the supporting documents have been produced.  You want to bring in a term which identifies those documents and then say that is a fact that the magistrate himself can consider.

MR WALKER:   I do not need to bring it in, your Honour.  Parliament has brought it in by (3) because it says what the expression means, and that commands the magistrate to have regard to those and those only terms, as modified by the Treaty.  We are not bringing that in; we are not reading anything into (2)(a).  We accept it is a big matter but then it is a big matter, on the basis of documents, to bring somebody into custody and forcibly return them to another country to be tried or imprisoned.  Yes, (2)(a) is a large matter.  It far transcends a clerical check.

BRENNAN CJ:   Mr Walker, how much longer do you expect your argument to take?

MR WALKER:   Your Honours, at least half and hour, perhaps 45 minutes.

BRENNAN CJ:   The case will adjourn until 10.15 tomorrow morning.

AT 4.23 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 21 JUNE 1995