Oates v Attorney-General [2002] FCAFC 80
Oates v Attorney-General [2002] FCA 347
NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.
The transitional arrangements are as follows:
- All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
- All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.
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FEDERAL COURT OF AUSTRALIA
Oates v Attorney-General [2002] FCA 347
EXTRADITION – request by Australia for surrender of a person in Poland to answer criminal charges in Australia – relief sought under s 39B of Judiciary Act 1903 (Cth) in respect of request – whether making of request an exercise of the executive power of the Commonwealth or of a statutory power conferred by s 40 of Extradition Act 1988 (Cth) – whether power to make request circumscribed by operation of 1934 Imperial Order in Council – effect of such an Order under s 2 of Extradition Act 1870 (Imp).
Extradition Act 1870 (Imp) ss 2, 18
Extradition Act 1903 (Cth) s 6
Extradition Act 1988 (Cth) ss 11(3), 40, 41, 43(1)
Extradition (Foreign States) Act 1966 (Cth) ss 9, 10, 11, 20 and 21
Judiciary Act 1903 (Cth) s 39B
Companies (WA) Code ss 229(1), 229(4), 570
Criminal Code (WA) s 412Barton v Commonwealth (1974) 131 CLR 477 considered
Bollag & Anor v Attorney-General of the Commonwealth (1997) 79 FCR 198 considered
Commonwealth v Riley (1984) 5 FCR 8 considered
De Bruyn v Republic of South Africa (1999) 96 FCR 290 referred to
The King v Weaver (1931) 45 CLR 321 referred to
In re Nielsen [1984] AC 606 applied
Oates v Attorney-General (Cth) (2001) 181 ALR 559 considered
Regina (Al-Fawwaz) & Others v Governor of Brixton Prison & Another [2002] 2 WLR 101 considered
Riley v The Commonwealth (1985) 159 CLR 1 considered
Winkler v Director of Public Prosecutions (1990) 25 FCR 79 distinguishedANTONY GORDON OATES v ATTORNEY-GENERAL & COMMONWEALTH OF AUSTRALIA
N 370 of 2001
O’LOUGHLIN, WHITLAM and CONTI JJ
28 MARCH 2002
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 370 of 2001
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ANTONY GORDON OATES
APPELLANTAND:
ATTORNEY-GENERAL FOR THE
COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENTCOMMONWEALTH OF AUSTRALIA
SECOND RESPONDENTJUDGES:
O’LOUGHLIN, WHITLAM and CONTI JJ
DATE OF ORDER:
28 MARCH 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The respondents’ application to receive further evidence on the appeal is refused.
2.The appeal is dismissed.
3.The appellant is to pay the respondents’ costs of the appeal.
Note: Settlement and entry of orders is dealt with…
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- AGLC
- Oates v Attorney-General of the Commonwealth [2002] FCAFC 80
- Case
- [2002] FCAFC 80
- Decision Date
CaseChat Overview and Summary
The Court examined the historical context of the relevant sections in the Extradition Acts and found no necessary implication that section 21 of the 1966 Act displaced the prerogative power. The Court held that section 40 of the Act only prescribed the method for making extradition requests, and thus, Mr Oates’s challenge to this aspect of the judgment had to fail. Regarding the effect of the Treaty, the Court concluded that section 11(3) of the Act meant that the Act applies subject to any limitations in the Treaty that are inconsistent with the Act. Since the Treaty did not impose requirements for making extradition requests beyond formal compliance, the executive power of the Commonwealth to request extradition was not limited by the Treaty.
In conclusion, the High Court dismissed Mr Oates’s appeal, ruling that the executive power to request extradition was not subject to the limitations set out in the Treaty. The Court further found that section 40 of the Extradition Act 1988 (Cth) did not displace the prerogative power to request extradition from a foreign state. The respondents’ application for further evidence was refused, and Mr Oates was ordered to pay the respondents’ costs of the appeal.
Orders
Orders of the court
1. The respondents’ application to receive further evidence on the appeal is refused.
2. The appeal is dismissed.
3. The appellant is to pay the respondents’ costs of the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: CONTI J
Section 21 of the 1966 Act was the direct successor of s 6 of the 1903 Act, the history of which recounted above hardly gives rise to any necessary implication that s 21 displaced the prerogative power to request extradition from a foreign state where the 1966 Act applied. Now the wording in s 40 of the Act is radically different, yet it only prescribes how a request for extradition is to be made. Mr Oates’s challenge to this aspect of the judgment below must, in our view, fail.The Operation of the 1934 Order in Council The nub of Mr Oates’s case in the Court below was that, even if the request for his extradition was not made in the exercise of a power granted by s 40 of the Act, the exercise of the executive power to make such a request was nonetheless circumscribed by the operation of s 11(3) of the Act. Lindgren J rejected that submission and said (at 569):“[38] I address the Treaty below, but it is convenient to note now that in my opinion, there is no scope for saying that by s 11(3) of the Act, ‘limitations, conditions, exceptions or qualifications’ contained in the Treaty somehow affect the application of the Act so that the circumstances, in which the executive power of the Commonwealth to request extradition may be exercised, are confined. As I observe below, apart from stipulating formal requirements with which a request must comply if it is to activate the requested state’s Treaty obligation to surrender a person, the Treaty does not impose requirements in relation to the making of requests for extradition.[39] In the absence of statutory constraints then, … the executive power of the Commonwealth referred to in s 61 of the Constitution is at large so that the Attorney may lawfully request extradition of a person to answer any criminal charges in Australia where the Attorney perceives it to be in Australia’s interests to make such a request.”His Honour had earlier observed (at 564-565):“[15] … It is common ground that subs 11(3) of the Act has the effect that in the case of Poland the Act applies, subject to any limitations, conditions, exceptions and qualifications to which the [1966] Act was subject by virtue of s 9 of that Act. Accordingly, I proceed on the basis that the Act applies in relation to Poland subject to any limitations, conditions, exceptions or qualifications found in the Treaty.[16] The Treaty is not incorporated into Australian law and subs 11(3) means only that the Act ‘applies’ ‘subject to’ any limitations, conditions, exceptions, or qualifications found in the Treaty that are inconsistent with the Act; cf Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287, 304, 315; Winkler v Director of Public Prosecutions (1990) 25 FCR 79 (FC) at 90 (Wilcox and O’Loughlin JJ); Bollag v Attorney-General (Cth) (1997) 79 FCR 198 (Merkel J) at 214-216. I will refer later to the relationship between the Act and the Treaty in more detail but it is worthy of emphasis now that the application of the Act is not affected by it unless the Act would ‘apply’ in some manner that is inconsistent with it.”