Mokbel v Attorney-General for the Commonwealth of Australia and Anor

[2007] HCATrans 813

[2007] HCATrans 813

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M126 of 2007

B e t w e e n -

ANTONIOS SAJIH MOKBEL

Applicant

and

ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

First Respondent

MINISTER FOR JUSTICE AND CUSTOMS

Second Respondent

Application for special leave to appeal

KIRBY J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 2.02 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If the Court pleases, I appear for the applicant.  (instructed by Mirko Bagaric Lawyers)

MR P.J. HANKS, QC:   Your Honours, I appear with MR D.J. BATT for the respondents.  (instructed by Australian Government Solicitor)

KIRBY J:   Yes, Mr Nash.

MR NASH:   If the Court pleases, the Full Court, in effect, adopted and endorsed the views of the learned trial judge and the learned trial judge’s basic analysis of the case is found at paragraph 16 of her reasons.  It appears at pages 9 to 10 of the application book.  Her Honour, in effect, relies on three points.  She says that:

The Applicant’s construction of s 40 . . . proceeds from a misunderstanding about the source of power to request extradition of a fugitive –

We say it is not questioned by us that the power extends from the prerogative but the manner of exercise of the power is laid down by section 40. She says:

Secondly, it ignores the relevant executive and administrative arrangements made by the Governor‑General pursuant to ss 61, 64 and 65 of the Constitution.

With respect, if the Court pleases, this is correct. We say that the administrative arrangements made by the Governor‑General cannot override the precise words of the Act. Section 40 specifies by whom the request is to be made. It:

shall only be made by or with the authority of the Attorney-General.

That section specifies by whom the provision is to be administered. Section 19A talks about administrative arrangements in which “2 or more Ministers administer the [one] provision”. It does not talk of the administration of an Act but of the administration of a provision. The word “only” is to be given some meaning. The reasoning of the learned trial judge and of the Full Court leaves no room for the operation of that word.

If I may adapt the words used by Justice Gummow in David Grant v Westpac Banking Corporation which is at tab 6 of our materials.  At 277:

it is impossible to identify the function or utility of the word “only” in s 459G(2) if it does not mean what it says, which is that the –

request is made by the authority of the Attorney-General and not by or with the authority of any other person.  A similar statement or a parallel statement is made by Justice of Appeal Sheller in Re J & E Holdings which is at tab 11 at page 546 of his judgment dealing with the same issue.

KIRBY J:   But these are in the context of laws of a very different character.

MR NASH:   In a different context, your Honour.  Yes, I concede that.

KIRBY J:   We are dealing in the present case with the nomination of a particular Minister in a law that is presumably intended by Parliament to operate in the whole complex of federal administrative arrangements.  Now, why, given that we now have a Minister of Justice in Australia and given that that Minister has functions to administer the Extradition Act, would one not apply the Acts Interpretation Act importing the Minister of Justice in the place of the Attorney-General?

MR NASH:   Because of the use of the word “only”.  Justice Heerey, your Honour, said he could see no rational basis for limiting it to the Attorney.

KIRBY J:   Yes.  What is your answer to that?

MR NASH:   Our answer to that, your Honour, is the Attorney-General occupies two functions.  He is the First Law Officer as well as a member of Cabinet.  If I can put it this way, your Honour.  If the Minister for Justice under the old conventions, before we had DPP, were to lay an indictment one would ask, what is going on?  The Attorney-General is the person vested with the power, or was the person traditionally vested with the power, to initiate prosecutions on behalf of the Crown.

There was for some time, your Honour, debate as to whether that was the exercise of an independent discretion or whether it was to be exercised on the advice or in consultation with his cabinet colleagues.  Since, I think it is, 1924 it has been accepted that the Attorney-General in exercising that power exercises an independent discretion.  The rational basis for inserting the word “only” there is that the making of a request for the return of a person from overseas normally in custody is in fact equivalent to or akin to the laying of an indictment.  It is a serious step in the criminal process which should be initiated by the exercise of an independent discretion not by a cabinet decision, not by a Minister who is not a law officer, not by a Minister who does not have legal qualifications.

KIRBY J:   I understand that submission and weight has to be given to it but, on the other hand, I am pretty sure that this Court in a case – I think it might have been the Catholic Bishops’ Case or some other case – has said that the role of the Attorney-General has evolved over time and that the conventions and expectations that once existed in relation to Attorneys‑General cannot always now be expected.

CRENNAN J:   I think also in the field of trade practices there is a case in the Full Court of the Federal Court, I think reported under the names of Barton v Croner, which dealt with the issue of how you construe the independent discretion of an Attorney-General to initiate a prosecution under that Act – admittedly different, perhaps, from the indictment situation – and there was no problem about delegation in relation to that because that was the point at issue in Barton v Croner.  Although, Mr Nash, leaving that aside, where do you point to error in paragraph 29 of the primary judge’s decision which is to be found on page 13 of the application book where her Honour says that of the two instruments:

As a result, [both] the Attorney-General and the Justice Minister are each Ministers of State, members of the Federal Executive Council and directed and appointed by the Governor‑General to administer the Attorney-General’s Department.

In the context of your present argument, do you point to any error in that?

MR NASH:   No, we do not quarrel with that statement as it stands, your Honour. What we quarrel with is the interpretation given to section 40. We say that if the word “only” in section 40 does mean only, then the Minister of Justice is not validly appointed to administer ‑ ‑ ‑

KIRBY J:   Yes, but the problem that is presented to us by the Acts Interpretation Act is that you pick up the name of the other Minister and you put it into the word Attorney-General and then it does not solve the problem we have of reading the two Acts together and facing the fact that since 1924, with the expansion of federal administration and of prosecutions under federal laws, the need has been recognised of having two Ministers who have this responsibility for administering the Attorney-General’s Department and with responsibility for the Extradition Act.

MR NASH:   With respect, your Honour, we do not take issue with anything that your Honour has put. What we are saying is that the word “only” is there for a reason, that the word “only” has a rational explanation and that the word “only” makes this the provision which can only be administered by the Attorney-General as a matter of statutory interpretation of section 40.

KIRBY J:   Yes, we do understand that the strength of your argument is the specification of a particular Minister, the specification of a particular Minister who, by tradition, has had special responsibilities, and the use of the word “only” and that is why you are here, otherwise you would not be here.  We understand that but it does not rise higher by repeating it.  But you have to answer the argument that by reason of the developments in administration, the large number of statutes that now provide for prosecutions, federal offences, the expansion of the public service in this nation, the passage of the Acts Interpretation Act, recognising these phenomena of expanded administration and the provision that is there enacted by the Parliament that you read one Minister as interchangeable with another where that other Minister has the administration of the Act and of the department.  Your theory would be very inconvenient.  You just have to wait until the Attorney-General got around to it.

MR NASH:   With respect, your Honour, if I can make two points, one of which is in answer to your Honour Justice Crennan’s question, that is, the delegation power in section 17 of the Law Officers Act 1964 does permit delegation, specific delegation, to other law officers. We do not quarrel with that and that is consistent, we say, with our argument that only by or with the authority of the Attorney-General. I am sorry, I have half answered your Honour Justice Crennan. I have not answered the other half. We say, as we point out in our arguments, that there are 10 extradition requests a year and more fundamentally – and I think this is a matter that was canvassed by I think a seven member Court in Oates v Attorney-General in which your Honour Justice Kirby was a party.

KIRBY J:   Yes, I was, indeed.

MR NASH:   If there is an ambiguity and there is a conflict between administrative or governmental convenience and the rights of the individual, the need for government to comply strictly with its obligations, we say this Court should take a stand in favour of individual rights.

KIRBY J:   What, in practice, is the difference between a Minister who administers the Attorney-General’s Department and this Act and is called the Minister of Customs and Justice of the Commonwealth of Australia and the Attorney-General? 

Both of them are politicians, though in this case from different houses, both of them are Ministers of the Crown in right of the Commonwealth and both of them have responsibilities, heavy responsibilities, for the administration of criminal justice in this country, so that really poses Justice Heerey’s question, what rational reason would there be to put a barrier up to the Acts Interpretation Act and say you cannot

import its beneficent balm into the operation of section 40 of the Extradition Act?

MR NASH:   If the Court does not accept the interpretation we place on section 40 itself, then section 19A comes into play and then we have the question as to whether section 40 indicates a contrary intention. I remember on one occasion, your Honour, arguing for a drunk driver in the Court of Appeal ‑ ‑ ‑

KIRBY J:   Good I am glad to hear this in this Court.  We never get anything practical like that.

MR NASH:   The Court of Appeal was very concerned that technical defences should not be taken on behalf of drunk drivers.

KIRBY J: You can take it from me that that is not the approach that I take. Extradition is a matter between nations and by the conventions of the law it is applied strictly and I will approach the statute with strictness, but I will approach it also, obedient not only to the language in section 40 of the Extradition Act but to the language in section 19A of the Acts Interpretation Act.  That is where your problem arises, as far as I am concerned.

MR NASH:   With respect, your Honour, it was not my intention to say your Honour would do otherwise but what I was going to say is that, in our submission, it is vital, particularly in view of what has happened in the last decade, that government comply precisely with its obligations.  More and more one tends to forget that Greeks won the Battle of Salamis.  That government convenience, administrative convenience must, in our submission, give way to the rights of the individual if there is an ambiguity, and, at worst, we say there is an ambiguity, the rights of the individual should prevail.

There is no difference between Ministers except that in the case of the Attorney-General, however his functions have changed and been amended, there is still a fundamental role that the Attorney-General plays and we say that it is only – we do not say that that is binding but it explains why “only” is in the section.  It is there to continue the old role of the Attorney-General.  If the Court pleases, unless there are questions, they are the submissions.

KIRBY J: Mr Hanks, what do you say about the point that is made concerning the specificity of the reference in section 40 to the Attorney‑General and the historical and traditional, independent and rather peculiar office of the Attorney-General within the system of representative government?

MR HANKS: Two things, your Honour. One is that inevitably section 40 must be read with the Acts Interpretation Act and with section 19A unless there is a contrary intention in section 40.

KIRBY J:   But even if that is so, the problem is still there.

MR HANKS: Your Honours understand how it is that we say that there is no contrary intention in section 40. There must be an intention to exclude the operation of the presumption as stated in section 19A and when one understands the function, the work which section 40 was intended to perform when it was enacted, one cannot find in there an intention contrary to the operation of 19A. As your Honours understand, we say that the work that it performs is to ensure that what our friend describes as the prerogative power, what we would call that part of the executive power of the Commonwealth recognised in Barton v The Commonwealth, for example, and in Oates, that that power is not to be exercised by any member of the Executive Council. 

Absent section 40, the power could be exercised, section 40 itself not being the source of the power but a machinery provision, as it has been recognised.  That is its function.  It is to narrow the range of members of the Executive Council who may exercise the power but there is, in our submission, no intention to exclude from the class of persons who may exercise the power another Minister who falls into the description.

KIRBY J:   I understand what you say and of course you are here for the Executive Government of the Commonwealth but someone has to stand for the Parliament and the Court looks at the Act and the Act is the voice of the people in Parliament speaking to the Court and the Parliament used the word “only”.  That is a very unusual thing to see in a statute.

MR HANKS:   With respect, your Honour, that was precisely the terminology used in section 501 of the Migration Act which was considered by the High Court in Re Patterson; Ex parte Taylor and it did not stand in the way of the parliamentary secretary being a person who was appointed to administer the Migration Act also exercising the power under section 501, a power which we would say was potentially as grave in the consequences, if not more grave, in the consequences for the individual.

KIRBY J:   That is Re Patterson, is it?

MR HANKS:   That is right, your Honour.  That is the power to effectively require a person to leave Australia on the basis of bad character.  When your Honour says we must have regard to what the Parliament intended and we must apply the law as the Parliament has laid down, the function of the Court is not to suit the convenience of the Executive but to do the will of Parliament, all of that, of course, is, with respect, not disputed.  Axiomatic, we would say, but, the Parliament has spoken more than once. 

It has spoken in section 40 of the Extradition Act. It has also spoken in section 19A of the Acts Interpretation Act immediately after the judgment of Justice Spender at first instance in the Foster Case, before the Full Court delivered its judgment in that case. It is plain, as the primary judge pointed out, that the amendments made to section 19 and section 19A of the Acts Interpretation Act where Parliament’s response to the problem which it was thought the judgment of Justice Spender had uncovered and the way in which Parliament dealt with that was to provide, but in the absence of contrary intention, we would say, it must be an intention that is plainly contrary to the operation of 19A. In the absence of a contrary intention, another Minister who is appointed, appropriately by the Governor‑General exercising powers under the Constitution to administer the particular provision, is to be encompassed within the specification of a particular Minister.

There is one other point we would make in answer to your Honour’s question and that is that Parliament would also have understood that by nominating the Attorney-General only they were arming the Attorney with the power under section 40 to authorise another person, any person, to exercise the power. They would have understood that under section 17 of the Law Officers Act the Attorney could delegate the power to any office older, any officeholder, not the holder of a legal office but any officeholder.

CRENNAN J:   So “only” is to be construed in that context?

MR HANKS: Yes, your Honour, and they would also have understood that section 19 of the Acts Interpretation Act would allow the Attorney to direct another person to exercise that power.

KIRBY J:   Yes, thank you, Mr Hanks.

MR HANKS:   Thank you, your Honour.

KIRBY J:   What do you say in reply, Mr Nash?

MR NASH:   Two things, if the Court pleases.  One, Foster was concerned with sections 22 and 23 of the Act which do not contain the word “only”.  Patterson was concerned with a phrase, “only be exercised by the Minister personally”.  All of the reasoning of the Court turned on the word “personally” not on the word “only”.  There is in fact no canvassing that we can find of the ‑ ‑ ‑

KIRBY J:   In one way, that is a stronger provision than this provision.

MR NASH:   The phrase, your Honour, was “only be exercised by the Minister personally” which means that it must be exercised personally.  There was no limitation.  There was no provision such as – I am sorry, the phrase was different and we say clearly distinguishable and we would say that the Attorney-General, when section 40 says the request may be made by or with the authority of the Attorney-General only it means by or with the authority of the Attorney-General in respect of the particular request.

It is not a section authorising delegation.  It is a section authorising the delegation, generally.  It is a section authorising the Attorney-General to say to the Solicitor‑General, for example, “Issue a request in the case of X”.  If the Court pleases, they are the matters in reply.

KIRBY J:   Yes, thank you for your assistance, Mr Nash.

The applicant Antonios Mokbel is an Australian citizen who was arrested in Athens, Greece (the Hellenic Republic) on 5 June 2007.  He is the subject of an application for extradition to Australia to face criminal charges.  He is resisting that application.

Originally the applicant had two bases for the application.  However, now, the only basis on which he relies is the validity of the extradition request made by Australia to the Hellenic Republic.  That request was purportedly made by Senator the Honourable David Johnston then exercising the office of Minister for Justice and Customs of the Commonwealth of Australia.

The exercise of the prerogative powers of the Crown in right of Australia or the executive power of the Commonwealth to make such a request is now regulated by the Extradition Act 1988 (Cth). In accordance with that Act and regulations made under it, the Hellenic Republic is an extradition country and so much is not in dispute. By section 40 of the Act it is provided that:

A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney‑General.

The applicant submits that the extradition request made in his case was made by the incorrect Minister, that the language in the Act is clear and specific, that the words should be given their natural meaning, that the office of the Attorney‑General is a special one with a distinct history and tradition and that there is no proof that the Attorney‑General had given his authority for the request to be made by another Minister.  At the relevant time the office of the Attorney‑General of the Commonwealth was held by the Honourable Philip Ruddock.

The argument advanced for the applicant, turning mainly on the use of the word “only” in section 40 of the Extradition Act, does not, in our view, withstand the response given by the Commonwealth and the Minister. By section 19A of the Acts Interpretation Act 1901 (Cth) it is provided that if a provision of an Act refers to a particular Minister, then, unless the contrary intention appears, where for the time being two or more Ministers administer the provision, the reference is to any one of those Ministers. The Minister had at the relevant time been directed to administer the Act including section 40. If the two statutory provisions are read together, the explicit reference to the Attorney‑General and the use of the word “only” are modified so as to include also reference to the Minister within the designation of the member of the Federal Executive Council with authority under the Act to make the extradition request on behalf of Australia.

Given the functions and responsibilities the Minister in Australia for matters involving the administration of justice, including criminal justice and including in relation to the Act, there is, as Justice Heerey observed in the Full Court of the Federal Court of Australia:

“no rational reason for Parliament to have intended to exclude from the exercise of the s 40 power a Minister who, equally with the Attorney‑General, is responsible to Parliament for the administration of the Extradition Act.”

The Full Court was therefore plainly correct to affirm the decision of the primary judge, Justice Gordon, rejecting this ground of challenge.  An appeal to this Court would not enjoy reasonable prospects of success.  The interests of justice do not require a grant of special leave.  Special leave is therefore refused.

Do the Minister and the Commonwealth ask for costs?

MR HANKS:   Including reserved costs, your Honour, we do.

KIRBY J:   What were the reserved costs?

MR HANKS:   Costs were reserved on the application to expedite the special leave hearing, your Honour, dealt with by Justice Crennan.

KIRBY J:   Can you say anything in resistance to that, Mr Hanks?

MR HANKS:   No, your Honour.

KIRBY J:   Costs are granted.  The applicant must pay the costs of the respondents including the reserved costs, but there would only be one set of costs, that is to say, the Minister would not have a separate order for costs from that of the Attorney‑General.

MR HANKS:   I am sure that is correct.

KIRBY J:   In this respect the two Ministers are, as it were, seen as one.

MR HANKS:   Thank you.

MR NASH:   If the Court pleases.

AT 2.34 PM THE MATTER WAS CONCLUDED