Oates v Minister for Foreign Affairs
[1999] FCA 1825
•23 DECEMBER 1999
FEDERAL COURT OF AUSTRALIA
Oates v Minister for Foreign Affairs [1999] FCA 1825
ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal decision affirming decision to cancel appellant’s passport – whether errors of law in Tribunal’s decision – whether misconstrued s 8 of the Passports Act 1938 (Cth) – whether exercised power for ulterior or improper purposes – whether Tribunal’s decision involved a fresh exercise of discretion as required by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) – where appellant is charged with serious criminal offences and the Australian government as seeking his extradition from the Republic of Poland
International Convenant on Civil and Political Rights 1966 Art 12
Administrative Appeals Tribunal Act 1975 (Cth) ss 43 & 44
Passports Act 1938 (Cth) ss 4A, 7A, 7B, 7C, 7D, 7E & 8Robtelmes v Brenan (1906) 4 CLR 395 discussed
R v Secretary of States for Home Affairs; Ex parte Duke of Chateau Thierry [1917] 1 KB 922 cited
R v Superintendent of Chiswick Police Station; Ex parte Sacksteder [1918] 1 KB 578 cited
Ferrando v Pearce (1918) 25 CLR 241 cited
Znaty v Minister of State for Immigration (1972) 126 CLR 1 cited
Barton v Commonwealth (1974) 131 CLR 477 cited
Salemi v MacKellar (No 2) (1977) 137 CLR 396 cited
Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 cited
The Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 discussed
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 appliedO’Higgins J “Disguised Extradition: The Soblen Case” (1964) 27 Mod L Rev 521
de Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed 1995
I A Shearer Extradition and Human Rights (1994) 68 ALJ 451ANTONY GORDON OATES v
C LAMB AS THE DELEGATE OF THE MINISTER FOR FOREIGN AFFAIRSNG 718 OF 1998
MATHEWS, TAMBERLIN AND MANSFIELD JJ
SYDNEY
23 DECEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 718 OF 1998
BETWEEN:
ANTONY GORDON OATES
APPELLANTAND:
C LAMB AS DELEGATE OF THE MINISTER
FOR FOREIGN AFFAIRS
RESPONDENTJUDGE:
MATHEWS, TAMBERLIN & MANSFIELD JJ
DATE OF ORDER:
23 DECEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 718 OF 1998
BETWEEN:
ANTONY GORDON OATES
APPELLANTAND:
C LAMB AS DELEGATE OF THE MINISTER
FOR FOREIGN AFFAIRS
RESPONDENT
JUDGE:
MATHEWS, TAMBERLIN & MANSFIELD JJ
DATE:
23 DECEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT:
Mr Oates (“the appellant”) appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from a decision of the Administrative Appeals Tribunal (“the AAT”) constituted by Deputy President B J McMahon. That decision, delivered on 18 June 1999, affirmed a decision to cancel the appellant’s passport under s 8 of the Passports Act 1938 (Cth) (“the Act”). The appellant submits that the reasons for decision of the AAT disclose three errors of law. They are said to be:
(a) The AAT misconstrued s 8 of the Act.
(b)The AAT erred in finding that the Minister did not exercise his power for an ulterior or improper purpose, namely:
(i)to facilitate the extradition of the appellant from Poland; and
(ii)in order to avoid public criticism if the passport were not cancelled.
(c)The AAT misunderstood its function as being “to justify” the cancellation decision rather than to exercise its powers in accordance with the AAT Act.
Factual background
The appellant is a former director of Bond Corporation Holdings Ltd (“Bond”) which acquired a company known as Bell Group Limited which in turn controlled a company known as Bell Resources Limited (“Bell Resources”). After the takeover the appellant resigned as director of Bond and became a director of both Bell companies.
During 1988-1989 assets were transferred from Bell Resources to various other companies within the Bell group. In 1995 charges were laid against Alan Bond, Peter Mitchell and the appellant in relation to those transactions. Messrs Bond and Mitchell pleaded guilty to those charges and they were sentenced respectively to seven years and four years imprisonment.
The charges laid against the appellant are for alleged offences under the Criminal Code of Western Australia and the Companies (Western Australia) Code. In substance it is alleged that the appellant conspired with others to defraud Bell Resources, its subsidiaries and shareholders contrary to s 41 of the Criminal Code; and made improper use of his position as an officer of Bell Resources, and failed to act honestly in the exercise of his powers and in the discharge of his duties as a director of Bell Resources contrary to s 229(4) of the Companies Code.
It is common ground that at the time of the cancellation of the appellant’s passport on 24 April 1997 there was in force a warrant issued in Australia for his arrest within the meaning of s 7B(a) of the Act.
At all material times before and after the charges were laid the appellant has been living in the Republic of Poland.
On 2 February 1995 the appellant was informed that warrants had been issued against him and he was invited to return to Australia voluntarily. He did not do so. Negotiations to this end were commenced in February 1995 and continued up to 22 May 1998 when the Attorney-General advised the appellant’s solicitors that no further negotiations would be entertained concerning the appellant’s voluntary return to Australia.
On 7 July 1996 the Attorney-General signed a request for the extradition of the appellant to Australia from Poland. This was sent to the Polish Ministry of Foreign Affairs on 8 August 1996 and on 22 October the appellant was arrested by Polish authorities and confined to prison in Gdansk.
In May 1996 the Australian Embassy in Warsaw had renewed the passport of the appellant but after initiation of the extradition proceedings his passport was confiscated by the court. He was granted bail on conditions. These extradition proceedings are still continuing. The passport document which had been confiscated is now in the possession of the Australian Department of Foreign Affairs.
On 30 December 1996 the Federal Attorney-General wrote to the Australian Minister for Foreign Affairs. The contents of that letter are of importance to the submissions as to improper purpose and they are therefore set out in full below. As can be seen, this letter formulates a proposed general policy with respect to cancellation of passports of persons who are overseas, for consideration by the Minister for Foreign Affairs. It also requests cancellation of the passports of six nominated individuals, including the appellant.
The letter reads:
“Dear Minister
I am writing to propose a policy regarding the cancellation and non-issue of passports of Australian citizens overseas who are wanted in Australia to be dealt with for serious criminal offences.
It is already common practice that persons charged with serious offences in Australia and allowed bail are required to surrender their passport as a precaution against their departure from Australia. Also, the Passports Act 1938 envisages that the fact that a person is wanted in Australia for a criminal offence might be a ground for refusal to issue a passport to that person (s. 7B) or for the cancellation of an existing passport (s.8(1A)). Your Department has advised that there is an established practice of cancellation of the passports of Australian citizens outside Australia who are wanted for prosecution in Australia by State law enforcement agencies on request of such agencies. I am proposing that this practice be extended to persons wanted for prosecution by Commonwealth law enforcement agencies and that a clear policy on the matter be agreed at Ministerial level.
There are practical consequences that flow from depriving an Australian citizen of an Australian passport while the person is outside Australia. First, it is likely that the lack of an Australian passport will be at least a serious inconvenience and possibly an effective bar to travel by the person between countries outside Australia. Second, although it will depend on the law and practice of the foreign country concerned, the person is likely to experience difficulty, even perhaps find it impossible, to get or maintain permission from a particular foreign country to remain there. This follows from a common practice of associating entry or residence permits with a passport or equivalent documents of a non-national or making such permits conditional on the continued holding of the valid passport.
Where an Australian fugitive is wanted for prosecution for a serious offence in Australia it seems to me that the Government could well be open to criticism if it in effect it facilitates travel outside Australia by such a person, or stay in a single foreign country by the person, by either the issue of a passport that has that effect or the failure to withdraw a passport when it has the power to do so.
Where a passport is cancelled or not renewed in such a situation it would obviously be self-defeating if the person would thereupon be stranded and unable to travel even to Australia. That result could be overcome by making available a travel document which stated that the person was an Australian citizen who was wanted in Australia for prosecution for a specified offence and stated that the document had been issued solely to facilitate the travel of the person to Australia for the purpose of being dealt with for the offence. (This might be referred to as a “single purpose travel document”.)
Accordingly, I propose the following general policy.
First, each case of passport cancellation or non-issue should be considered on its merits. As passport CANCELLATION can be seen as a more serious action than non-issue, it is proposed that cancellation would be requested by the Attorney-General and be the subject of a decision by the Minister of Foreign Affairs (or delegate) on the basis of representations made by the Attorney-General. The Attorney-General would request cancellation where this seems appropriate as a means of helping bring a fugitive before an Australian court. NON-ISSUE, on the other hand, would be the subject of a request by the Attorney-General’s Department to the Department of Foreign Affairs and Trade. This policy of requesting passport cancellation or non-issue is not intended to conflict with State law enforcement agencies about cancellation of the passports of persons overseas sought by these agencies.
Second, NON-ISSUE of a passport under section 7B would normally only be requested where a charge of indictable offence had been laid against the person in Australia, an arrest warrant issued for the person’s arrest and the person’s extradition requested. My Department has advised that where a decision maker proposes not to issue a passport in such circumstances, there is no requirement to give the affected person prior notification of the proposed action. Non-issue would be requested by the Attorney-General’s Department unless special circumstances existed. Where non-issue was requested notwithstanding special circumstances, the Department of Foreign Affairs and Trade could be requested to issue the affected person with a special purpose travel document.
Third, CANCELLATION of a passport would only be requested where a charge of an indictable offence had been laid against the person in Australia, an arrest warrant issued for the person’s arrest and a request for extradition to a foreign Government had been made in respect of the person OR the Attorney-General had determined that an extradition request would serve no purpose because the person was unlikely to be surrendered by their country of current residence. Whether this last condition was met would entail a personal decision in each case by the Attorney-General. When writing to the Minister for Foreign Affairs to request passport cancellation, the Attorney-General would also request that the holder be advised of the contemplated action and the reasons for it and be afforded an opportunity of making any such representations to the decision maker within an appropriate time limit, noting that any such representations should be taken into account for the purposes of the final decision.
Fourth, in any case of non-renewal or cancellation of a passport a single purpose travel document would be made available to the person.
Finally, action would be taken to notify relevant foreign authorities of any passport cancellation and, if appropriate, to obtain their cooperation in securing the cancelled passport – at least if it came into official hands. This could be put on the basis that the passport was not a valid one as a matter of Australian law, could not be relied on as valid for any official purposes, and was the property of the Australian Government. (Many authorities would no doubt cooperate but the efficacy of the cancellation would not depend on this. Notification of the cancellation could also be given through INTERPOL if that channel was being used in the particular case.)
I believe that such a policy would be not only justifiable but consistent with proper passports administration considerations, criminal justice considerations and all relevant public interest considerations. Moreover, it would promote consistency of practice, for example, regarding the reissue of passports to Australians abroad who are or might be wanted for criminal offences.
I consider that the policy is consistent with the provisions of the Passports Act as it now stands. Decisions made under the policy would be subject to the notice and review provisions in the Act.
As I have suggested above, I think each decision should be made on a case by case basis. There might well be considerations of a compassionate nature in relation to a particular fugitive. There might also be considerations relating to effective law enforcement, such as where non-renewal or cancellation of a passport might prevent the movement of a person from a country where his or her residence status is secure and there is no possibility of an extradition, to a country from which extradition might be possible.
While there would not be a great many cases affected by this policy, which would of course only apply to Australian citizens outside Australia, cases where it would be relevant are likely to be those where there is a strong public interest in securing the return of a fugitive and it is important that the Government take whatever action is legally and reasonably available to it to secure that end. An example of this kind of case is where systematic business crime involving very large amounts of money is alleged to have been committed by a person who is apparently happy to live abroad in comfort with the benefit of the proceeds of crime either indefinitely or until such time as prosecution is no longer feasible. I believe we have an obligation to address that situation.
In anticipation of your agreement to the policy, I enclose a first list of Australian citizens who are wanted for prosecution for serious offences in Australia and in respect of whom a request for extradition has been made to a foreign Government or where an extradition request would serve no purpose. I request that the passports of the persons listed be cancelled, subject, of course, to them being advised of the proposed course of action and consideration of any representations received from them on the matter. I note that my Department will be requesting the Department of Foreign Affairs and Trade not to issue the persons listed with new passports.
Yours sincerely
[Signature]
Daryl Williams.”
(Bold emphasis added; capitalized words excluding “INTERPOL” emphasised in original document)On 4 March 1997 the Minister for Foreign Affairs, Mr Downer wrote to the Attorney-General, Mr Williams, confirming that he agreed with the general policy proposed and acceded to the request from the Attorney-General for the cancellation of the passport of the appellant. This letter reads:
“Dear Daryl
Thank you for your letter of 30 December 1996 requesting the establishment of a policy for the cancellation of, and the non-issue, of passports to Australian citizens resident overseas who are wanted in Australia to be dealt with for serious criminal offences.
I agree with the policy approach you suggest, and would only wish at this stage to offer a few notes on the way it might be implemented.
Although my power to cancel passports is unfettered, Section 7(4) of the Passports Act 1938 (the Act) makes it clear that I cannot refuse to permit the issue of a passport to an applicant except in special circumstances. I do, however, note that Section 7(B)[sic] of the Act makes it possible to refuse the issue of a passport where a warrant has been issued for the arrest of a person. The policy approach we would implement for non-issue would, therefore, require that a warrant has been issued before my officers could refuse to issue a passport to an applicant who met the other criteria.
You have suggested that the power to cancel (as well as to refuse issue) should be used in respect of persons wanted in Australia for serious criminal offences. I would only note here that I would see the power exercised when a warrant has been issued for the arrest of the person for an indictable offence. I also agree that my department should take action after receiving notification from an appropriate source – in the case of non-issue this would follow a request from a competent official in your Department (or, when appropriate, from a competent official in a State or Territory Government). Cancellation is an action of a different character, and I agree that it is appropriate for requests for such action to come through Ministerial channels. Accordingly, I agree that it is appropriate for cancellation action to be taken only after a request is received from the Attorney-General or an appropriate State or Territory Minister.
I also agree that natural justice considerations apply to cancellation action. In my view this should require notification of the intended action to the passport holder, allowing 48 hours for the person to make representations to the decision-maker. I recognise, however, that there may be occasions when it is not possible to locate the person, in which case notification would be made to the person’s last-known address or to the person’s legal representative (if known). I would also note that there may be cases when 48 hours notice would be impractical, and I would reserve the right to take immediate cancellation action where public policy reasons dictate swift action.
Accordingly, I suggest that we implement the following policy guidelines which broadly accord with your proposal;
• Each case for passport cancellation or non-issue is to be considered on its merits. As passport cancellation can be seen as a more serious action than non-issue, it is proposed that cancellation would be requested by the Attorney-General or an appropriate State or Territory Minister and be the subject of a decision by the Minister for Foreign Affairs (or delegate) on the basis of representations made by the Attorney-General. Cancellation action would be taken only after the issue of a warrant for the arrest of the person for an indictable offence.
• Non-issue of a passport under section 7B of the Act will be requested only where a charge of an indictable offence has been laid against the person in Australia and an arrest warrant issued for the person’s arrest. Non-issue would be requested by the Attorney-General’s Department or an appropriate State or Territory Government agency except where it is considered that because of certain circumstances, non-issue would be self-defeating by, for example, leaving a person stranded and unable to be returned to Australia. Where non-issue is requested notwithstanding special circumstances, the Department of Foreign Affairs and Trade may be requested to issue the affected person with a Document of Identity for single Journey travel to Australia.
• Where cancellation of a person’s passport has been recommended by the Attorney-General, the Department of Foreign Affairs and Trade (DFAT) is to be advised of the person’s last known overseas address and that of their last known legal representative. DFAT will request its appropriate overseas Mission to send to the affected person’s last known address advice that consideration is being given to the cancellation of their passport and that the affected person has 48 hours in which to notify of an objection to the proposed cancellation. Concurrently DFAT will send a copy of this notification to the affected person’s last known legal representative. There may be cases where the 48 hours notice would be impractical, in which case immediate action will be taken when public policy reasons dictate the need for a swift response.
• In the case of cancellation or non-issue, DFAT is to advise the affected person’s rights of review in accordance with sections 11A or 11B(1) of the Act as appropriate.
• In the case of non-renewal or cancellation of a passport, the affected person shall be issued gratis, a single journey Document of Identity for travel to Australia.
• In any case of cancellation of a person’s passport, DFAT will notify the authorities of the country where the fugitive is residing of the passport’s cancellation and seek their co-operation in having the bearer deliver up the passport in accordance with section 9 of the Act, to the relevant Australian consular representative.
• A request for cancellation will be regarded as a request for non-issue, for it should obviously not be possible for a person whose passport has been cancelled to obtain a fresh one while a warrant is outstanding.
Your letter requests the cancellation of the passports of six persons, and provides details of the charges laid against them. I agree that their passports should be cancelled, and my Department will take that action subject to Departmental confirmation that warrants for arrest are currently in force. Action will also be taken to notify the persons concerned as well as notifying the appropriate foreign government as outlined above.
Yours sincerely
[Signature]
Alexander Downer”
The AAT took the view that the two documents when read together should be accepted as representing current Government policy with respect to cancellation.
Relevant legislation
Section 8 of the Act relevantly provides:
“8(1) An Australian passport, whether in the possession or custody of the person to whom it was issued or otherwise, may be cancelled by the Minister, an approved representative or the approved senior officer, and a passport on being cancelled under this sub-section becomes void.
(1A) Without limiting the generality of sub-section (1), the Minister, an approved representative or the approved senior officer may cancel an Australian passport if –
(a)the Minister, the approved representative or the approved senior officer, as the case may be, becomes aware of circumstances which, if they had existed immediately before the passport was issued (whether or not they did exist at that time), may have or would have prevented the issue of the passport by an authorized officer by virtue of the operation of section 7A, 7B, 7C or 7D; or …”
Section 7B which was relied on a basis for the decision is in these terms:
“7B An authorised officer shall not, unless otherwise directed by the Minister, the approved senior officer or the approved officer, issue an Australian passport to a person if –
(a)the authorised officer has reason to believe that there is in force a warrant issued in Australia for the arrest of the person; or
(b)the authorised officer has reason to believe that the person is required to remain in Australia or to refrain from applying for, or obtaining an Australian passport-
(i) by order of a court made under a law of the Commonwealth or
of a State or Territory; or(ii) under a condition of parole or of a recognizance, surety or bail
bond; or(iii) under a condition specified in a licence granted under section
19AP of the Crimes Act 1914 or in any similar instrument of
early release granted or issued under a law of a State or
Territory.”With that brief introduction we now turn to consider the specific submissions made in relation to the three matters enumerated above.
(1) Interpretation of s 8 – Does it apply to passport holders outside Australia?
The appellant urges that a consideration of the legislative history of the Act makes it clear that the power to cancel passports conferred by subs 8(1A) is intended to be exercised only in relation to passport holders within Australia. It is conceded that under s 4A, the Act extends, except so far as the contrary intention appears, to “acts, matters and things” outside Australia. The “contrary intention” is said to be found in the terms of s 7 and s 8 of the Act.
In order to understand this submission, it is necessary to refer, albeit briefly, to the legislative history of s 7 and s 8.
Before 1979 there was no express power under the Act to refuse to issue passports. Accordingly there was no legislative counterpart to s 7B, or to the other sections of which it forms a part, namely ss 7A, 7C, 7D or 7E. Subsection 8(1) was, as now, couched in general terms and permitted the Minister or an authorized officer to cancel an Australian passport without specifying the circumstances in which this might occur.
In 1979 a number of amendments were made to s 7 and s 8. In particular, ss 7A to 7E were inserted into the Act. In general terms, these sections required that passports not be issued to the following persons:
·To a minor, unless written consent is given by all persons with custody, guardianship or access entitlements (s 7A)
·To a person against whom an arrest warrant has been issued (s 7B)
·To a person who owes money to the Commonwealth (s 7C)
·To a person who already holds a valid Australian passport (s 7D)
·To a person whom the Minister considers would be likely to engage in conduct outside Australia which might prejudice the security of a country other than Australia or endanger the health or welfare of its citizens (s 7E).
The 1979 amendments left s 8(1) generally unaltered but inserted subs 8(1A) immediately afterwards. This new sub-section was (subject to one matter which we shall mention later) in essentially the same terms as now. It empowered the Minister or an authorized officer to cancel an Australian passport in circumstances which would have justified the refusal to issue a passport under s 7A, 7B, 7C or 7D. No express power to cancel was conferred in the circumstances set out in s 7E. This was regarded as a significant factor in the submissions before us, and we shall return to it shortly.
The final amendments of significance were made in 1984. Various minor changes were made to ss 7A to 7D. The previous s 7E was replaced by a new provision, which relevantly provides:
“7E. (1) Where the Minister –
(a) has formed an opinion that, if an Australian passport were issued to a person, that person would be likely to engage in conduct that –
(i) might prejudice the security of Australia or of a foreign country;
(ii) might endanger the health or physical safety of other persons, whether in Australia or in a foreign country; or
(iii) might interfere with the rights and freedoms of other persons, as set out in the International Covenant on Civil and Political Rights, whether in Australia or in a foreign country; and
(b) considers that, in the circumstances, action to prevent that person engaging in that conduct should be taken by way of not issuing an Australian passport to that person,
the Minister may notify an authorized officer or authorized officers that, by virtue of this section, an Australian passport is not to be issued to that person.
(1A) An authorized officer shall not issue an Australian passport to a person if the Minister has notified him under sub-section (1) that an Australian passport is not to be issued to that person.”The 1984 amendments also inserted s 8(1) in its present form. The only difference of significance between the new section and its predecessor is that, since 1984, the power to cancel a passport can be exercised by “an approved representative”. Subs 8(1A) was similarly amended so as to include “an approved representative” as a person entitled to cancel an Australian passport in the circumstances set out in ss 7A to 7D. The significance of this amendment will be referred to later.
The 1984 amendments also inserted subs 8(1B) which provides as follows:
“(1B) Without limiting the generality of sub-section (1), where the Minister –
(a) has formed an opinion that a person to whom an Australian passport has been issued is likely to engage in conduct that –
(i) might prejudice the security of Australia or of a foreign country;
(ii) might endanger the health or physical safety of other persons, whether in Australia or in a foreign country; or(iii) might interfere with the rights and freedoms of other persons, as set out in the International Covenant on Civil and Political Rights, whether in Australia or in a foreign country; and
(b)considers that, in the circumstances, action to prevent that person engaging in that conduct should be taken by way of cancelling that passport,
the Minister may cancel that passport.”
The final amendment to be mentioned took place in 1991. The previous subs 7B(b) was omitted and the present subsection, quoted earlier, was inserted. There is little difference in substance between the present subs 7B(b) and its predecessor. Both appear on their face to relate only to persons seeking passports within Australia. The same, however, cannot be said in relation to subs 7B(a), as the circumstances of this case illustrate.
The appellant’s submission is that the statutory scheme shows a different legislative intention in relation to the cancellation of passports under subs 8(1A) on the one hand and subs 8(1B) on the other. Subsection 8(1A) (which refers back to ss 7A, 7B, 7C and 7D) is intended to cover situations in which it is sought to keep a person in Australia by cancelling a passport. Subsection 8(1B), which refers to a person who might engage in terrorist activity, is clearly intended to have extra-territorial operation. The appellant points out that, before subs 8(1B) was inserted in the Act in 1984, subs 8(1), which is couched in general terms, clearly had work to do. This was because, there being no express provision for the cancellation of a suspected terrorist’s passport, this situation fell within the general terms of subs 8(1). However since the 1984 amendment, the argument proceeds, subs 8(1) has had no work to do. Subsections 8(1A) and 8(1B) now cover the field. Of these, subs 8(1A) is restricted to passport holders within Australia, leaving only subs 8(1B) which is intended to have extra-territorial operation.
In support of his submission that subs 8(1A) applies only to passport holders in Australia, the appellant’s counsel points to the fact that the cancellation of passports in situations falling under ss 7A to 7D (through the vehicle of subs 8(1A)) is treated quite differently from the cancellation of a suspected terrorist’s passport under subs 8(1B). He urges that the statutory scheme displays an intention that the extra-territoriality of the latter provisions should not extend to the former.
In our view these submissions cannot succeed. There is good reason why the “terrorist” situation is dealt with separately under subs 8(1B). To accuse a person of potential terrorism and cancel his or her passport on that ground is a very serious matter, and under subs 8(1B) must be the subject of a Ministerial decision. The situations referred to in ss 7A to 7D are not of the same order of seriousness, and cancellation decisions can be made by the Minister, an approved representative or an approved departmental officer.
Moreover the addition, in 1984, of “an approved representative” as a person who can cancel a passport under subs 8(1A) indicates a clear intention that this power is to be exercisable outside Australia. It is interesting to contrast the persons who are directed not to issue passports under s 7B from those who are entitled, under subs 8(1A), to cancel passports upon s 7B grounds. Under s 7B, an “authorized officer” is directed not to issue a passport to a person against whom an arrest warrant has been issued. An “authorized officer” is defined in s 5 as a person authorized by the Minister to issue passports under subs 7(1). Under s 7B, this legislative prohibition on the issue of a passport can be waived by direction of the Minister, the approved senior officer or the approved officer. The latter two are departmental officers appointed by the Minister to that position for the purposes of the Act. When one turns to subs 8(1A), we find that the power to cancel a passport upon a s 7B ground is exercisable by the Minister, the approved senior officer or an approved representative. An “approved representative” is defined in subs 5(1) of the Act as a person performing the duties, in a country outside Australia, of Ambassador, High Commissioner, Minister, Head of a Mission, Consul-General or Consul. This provides a clear indication that the power conferred by subs 8(1A) to cancel passports on, inter alia, s 7B grounds is intended to be exercisable outside Australia.
The question was raised at the hearing as to whether subs 8(1) has any independent operation. The opening words of subs (1A) and (1B) would suggest that it does. But it is unnecessary to determine that matter here, as the present situation falls squarely within the terms of subs 8(1A). To return for a moment to s 4A of the Act, it gives the Act extra-territorial operation “except so far as the contrary intention appears”. This contrary intention will be indicated if particular circumstances referred to in some of the provisions of ss 7A to 7D are plainly referable only to passport holders within Australia. Subsection 7B(b) is a likely illustration of this. But the appearance of a contrary intention in relation to one or more of these provisions should not displace the statutory presumption in relation to any of the others. In other words, the fact that subs 7B(b) can only relate to passport holders in Australia should not, in the face of the statutory presumption, restrict the ambit of subs 7B(a). Nor should it restrict the ambit of any of the other provisions of ss 7A to 7D which are capable, on their face, of applying to passport holders outside Australia.
Even without the statutory presumption contained in s 4A, our finding would have been the same. For the terms of subs 8(1A) make it abundantly clear that, in so far as it is appropriate to the circumstances, the power of cancellation is to be exercisable in relation to persons outside Australia.
Accordingly we find that s 8 applies to passport holders outside Australia and was an appropriate source of power in this case.
(2) Improper purpose – “disguised extradition”
In making this submission the appellant refers particularly to the following parts from the letter to the Attorney-General of 30 December 1996 quoted in full above:
“There are practical consequences that flow from depriving an Australian citizen of an Australian passport while the person is outside Australia. First, it is likely that the lack of an Australian passport will be at least a serious inconvenience and possibly an effective bar to travel by the person between countries outside Australia. Second, although it will depend on the law and practice of the foreign country concerned, the person is likely to experience difficulty, even perhaps find it impossible, to get or maintain permission from a particular foreign country to remain there. This follows from a common practice of associating entry or residence permits with a passport or equivalent documents of a non-national or making such permits conditional on the continued holding of the valid passport.
Where an Australian fugitive is wanted for prosecution for a serious offence in Australia it seems to me that the Government could well be open to criticism if it in effect it facilitates travel outside Australia by such a person, or stay in a single foreign country by the person, by either the issue of a passport that has that effect or the failure to withdraw a passport when it has the power to do so.
…
Accordingly, I propose the following general policy.
First, each case of passport cancellation or non-issue could be considered on its merits. As passport CANCELLATION can be seen as a more serious action than non-issue, it is proposed that cancellation would be requested by the Attorney-General and be the subject of a decision by the Minister of Foreign Affairs (or delegate) on the basis of representations made by the Attorney-General. The Attorney-General would request cancellation where this seems appropriate as a means of helping bring a fugitive before an Australian court.
…
While there would not be a great many cases affected by this policy, which would of course only apply to Australian citizens outside Australia, cases where it would be relevant are likely to be those where there is a strong public interest in securing the return of a fugitive and it is important that the Government take whatever action is legally and reasonably available to it to secure that end.” (Bold emphasis added; capitalized word emphasised in original document)
The two improper purposes alleged by the appellant are:
(1)that cancellation is a means of bringing a fugitive before an Australian court; and
(2)that cancellation of a passport is a means to avoid criticism of the Government where it may be perceived to facilitate a fugitive travelling or staying outside Australia when it has the means to “withdraw” the passport.
These purposes are said to be extraneous and improper grounds on which to exercise the discretion to make a decision or formulate a policy relating to cancellation of passports.
It is contended for the appellant that the real purpose for making the decision to cancel the passport was to circumvent the protection inherent in the statutory extradition process by bringing pressure to bear on the passport holder to return to Australia and that this is not permissible. Counsel for the appellant refers to the concept of “Disguised Extradition” which appears to be derived from a Modern Law Review article by O’Higgins J, “Disguised Extradition: The Soblen Case” (1964) 27 Mod L Rev 521 at 522-525. This concept is said to apply in the context of deportation cases where governments use deportation powers not simply to deport undesirable aliens but also to deliver them into the hands of foreign governments for trial on criminal charges or for other reasons which, on their face, have nothing to do with regulating the movement of persons to and from the deporting country. The point sought to be made is that such a use of the deportation power is designed and intended to achieve extradition of the person sought. By parity of reasoning it is said that the statutory power to cancel passports cannot be used to retrieve fugitives to meet charges in an Australian court.
Historically, the courts have tended to lean against reviewing the exercise by governments of powers to expel or deport foreigners. This is based on the concept of the sovereign right of a State to admit or refuse entry into its community. Examples of this approach can be found in older cases such as Robtelmes v Brenan (1906) 4 CLR 395 at 403, where Griffith CJ referred to United States authority which emphasised the absolute and unqualified right of government to enforce migration law. Similar restrictive views on the power to review Ministerial discretion in this context are also to be found in wartime cases such as R v Secretary of States for Home Affairs; Ex parte Duke of Chateau Thierry [1917] 1 KB 922 at 930, 932-3 and 935; R v Superintendent of Chiswick Police Station ; Ex parte Sacksteder [1918] 1 KB 578 at 586-589; Ferrando v Pearce (1918) 25 CLR 241. More recently, in peace-time situations, Australian courts have adopted a broader approach to reviewing executive powers which concern migration and deportation: see Znaty v Minister of State for Immigration (1972) 126 CLR 1 at 12 per Walsh J; Barton v Commonwealth of Australia (1974) 131 CLR 477 at 483, Salemi v MacKellar (No 2) (1977) 137 CLR 396; Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719 at 731. The above authorities relate to the power to review migration and deportation decisions while the present case concerns the cancellation of a passport where extradition proceedings are on foot. We nevertheless consider that they afford useful guidance as to the approach the Court should take on judicial review in the present case
Although the Court may in an appropriate case set aside a decision to cancel a passport, where that power is shown to have been exercised for an improper or extraneous purpose, the onus of proving the existence of such a purpose is not one which can lightly be discharged. The observations of Stephen J in Salemi are apposite in this respect where his Honour said (at 446-7) in relation to the Ministerial power of deportation:
“He need give no reasons for his decision and unless it can be made to appear that he must have arrived at that decision for reasons extraneous to the exercise of the power of deportation his decision will not be examinable in the courts.”
In addition, when considering an application to set aside a Ministerial decision, it is important to bear in mind the remarks of Donovan LJ made in the context of deportation in R v Governor of Brixton Prison; Ex parte Soblen [1963] 2 QB 243 at 307:
“In my opinion, the fact that the present applicant will serve an existing sentence of imprisonment, if he is sent to the Unites States, does not mean that an act which otherwise would be deportation and nothing else becomes instead not deportation but the surrender of a fugitive criminal. To hold otherwise would be to give assent to the proposition that the quality of an act is determined by its consequence, which is obviously untrue; otherwise cause would become the same thing as effect.”
See also Lord Denning M R at 301-302 and Pearson LJ at 312 in Soblen; and de Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed. 1995 at par 6-059 ff.
Counsel for the appellant submitted that he could not be considered to be a “fugitive”. We do not accept this. He has been charged with serious offences; he is outside Australia, and despite negotiations over several years for his return he refuses to return voluntarily.
In dealing with the submission in relation to “disguised extradition” the AAT set out in its reasons a number of considerations which led it to the conclusion that cancellation of the passport should be affirmed.
The first matter referred to by the Tribunal was that there was no evidence that the cancellation of the passport would in fact effect deportation of the appellant from Poland. Counsel for the appellant submits that this submission is not to the point because it is the “purpose” which is significant and not whether that purpose is in fact achieved. While there is some force in this observation, what in substance the Attorney-General is saying is that certain practical consequences will flow from depriving an Australian citizen of a passport while outside Australia. There is nothing in our view inappropriate about engaging in consideration of likely consequences. It is not improper, in our view, to take into account the fact that cancellation may induce, as a practical matter, the return of a fugitive to Australia. To adapt the words of Donovan LJ, in Soblen, the fact that a person may in fact be induced to return to Australia if his passport is cancelled, does not make the cancellation of his passport part of the extradition process.
The next matter to which the AAT reasons refer is that there is no indication that the extradition proceedings and the protections or rights inherent in them will be subverted by cancellation.
These protections or rights, for example, include the requirements imposed by extradition treaties of dual criminality under the laws of both countries; the limitation of available charge against the person extradited when returned, to those included in the extradition order; and the exemption from extradition of persons accused of crimes of a political character. See the discussion by I A Shearer “Extradition and Human Rights” (1994) 68 ALJ 451.
In our view, this is an important consideration. However, the extradition proceedings and the rights conferred by the statutory process will continue to operate notwithstanding cancellation of the passport. The protection afforded to the appellant by the Treaty that exists between Australia and Poland and the legislation enacted pursuant to this and similar treaties with other States are not affected by passport cancellation. The extradition proceedings are continuing in accordance with requirements of that process. This is not a case of the subversion or outflanking of the appellant’s rights.
Another matter referred to in the AAT reasons is the importance of the statutory context in which the power is conferred when deciding whether to exercise the discretion to cancel the passport. Section 7B prohibits, unless otherwise directed, the issue of an Australian passport where the officer has reason to believe there is in force a warrant issued in Australia for the arrest of the appellant. There is on the face of it a tension between the provisions of s 7B and a course of conduct which continues to extend the benefits and assistance of an Australian passport to an overseas fugitive in circumstances in which, if the person had remained in Australia, a passport would not have been issued.
A further matter raised by the AAT is the gravity of the charges. The appellant is faced with serious charges which could, if proved, lead to a substantial period of imprisonment. There can be no doubt that the gravity of the charges is an important matter to take into account when deciding whether a passport should be cancelled and this was conceded by counsel for the appellant. In addition, as the decision points out, the appellant has not in fact returned to Australia voluntarily over the past few years despite an opportunity to do so. Although negotiations continued for some time they proved to be unsuccessful. This, in our view, is a relevant matter to take into account.
A further matter which was taken into account by the AAT and which is of direct relevance, is that the extradition proceedings could be frustrated if the appellant had Australian travel documents which enabled him to move from Poland to a country with which Australia has no extradition treaty or rights. The existence of the extradition proceeding provides a strong incentive for Oates to seek refuge elsewhere if furnished with an Australian passport. This matter is specifically referred to in the AAT decision. There is a cogent public interest in ensuring that the rights which a state has to extradite an alleged criminal to face charges is not frustrated by transit to a state with which Australia does not have an extradition treaty. The fact that cancellation of a passport may prevent such evasion is obviously relevant and proper consequence for the Minister to take into account when reaching a decision as to cancellation.
Finally, the AAT considered the general policy that was adopted by the Attorney-General and the Minister, as evidenced by the correspondence and decided that it should be followed in this case. In this connection it is also important to note that the letter from the Attorney-General makes it clear that each cancellation must be considered on its own merits and circumstances. When doing so,it is a material and relevant consideration to take into account the general policy.
In submissions before this Court, counsel for the appellant drew attention to Art 12 of the International Covenant on Civil and Political Rights 1966, and in particular to recognition of the right to freedom of movement as articulated in sub-Articles 1 and 2. Article 12 reads as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.”
We are satisfied that in the present case the restrictions on the rights to freedom of movement effected by the cancellation of a person’s passport under the Act, as applied in accordance with the Ministers’ policy in this case, falls within the exception provided by sub-Article 3.
In summary, it is important to keep in mind that the discretion to cancel a passport under the Act is broad and unfettered and is conferred on the responsible Minister. It was foreseen by the AAT that as a general matter, cancellation of a passport might in some circumstances have the practical consequence of preventing frustration of the extradition process by a fugitive’s passage to a state or place where there is no extradition treaty. It was foreseen by the Attorney-General that cancellation might have the practical effect of providing an inducement for a fugitive to return to Australia to face charges. However, it does not follow from this that the substantial purpose underlying the cancellation in the present case is alien to the provisions of the Act. As the reasons for the AAT decision disclose, there were a number of other important considerations taken into account and regarded as important and on which the AAT relied apart from the allegedly extraneous purposes and the so called “speculative” consequences of cancellation. It should be kept in mind that the condition precedent as expressed in the general policy and the legislation for exercise of the discretion was satisfied, namely the existence of the warrant.
Having regard to the above considerations, we do not consider that there is any basis in the present case for the conclusion that the cancellation of the appellant’s passport involved the exercise of power for improper purposes on the alleged ground that it was designed to achieve extradition of the appellant and therefore subvert the extradition protection afforded under the extradition Treaty.
The second matter on which it is said that the discretion was exercised for an improper purpose, which is said to be found in the Attorney-General’s expressed concern that the Government might be “criticised” for failing to withdraw a passport where a fugitive does not return to Australia, in our view, falls far short of establishing any improper purpose. The remarks in the Attorney-General’s letter point to the perceived anomalies in seeking to extradite a person for alleged criminal offences while at the same time facilitating the passage of that person to other countries, and in extending the advantages afforded by Australia to a person who, if in Australia, could not in the normal course be entitled to issue of a passport. In our view, there is nothing inappropriate in referring to this exposure to possible claims of inconsistency in administration. The observation is, in substance, another way of expressing the view that the conduct of the executive arm of government should be consistent.
Accordingly, we consider that the second basis on which it is sought to allege there was improper purpose has not been made out.
(3) Wrong approach – “justify”
Counsel for the appellant also submits that the AAT made an error of law in approaching its task as being to “justify” the cancellation decision on discretionary grounds. His argument is that if this is taken as the starting point of the AAT’s task, the fresh exercise of discretion required by s 43 of the AAT Act is unlikely to occur.
In the course of making the decision the AAT observed that:
“it is not necessary to rely entirely upon policy as articulated by the two Ministers in order to justify the cancellation decision on discretionary grounds.” (Emphasis added)
After this statement the decision-maker proceeded to consider other matters which have been considered immediately above.
We do not accept this submission which, on a fair reading of the reasons for decision, seizes upon a semantic distinction which lacks substance. To accept such a submission would be contrary to the approach recently endorsed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Reading the reasons for decision fairly and in their entirety, it is evident that the decision-maker was not attempting to assist or bolster an executive decision by seeking to retrospectively “justify” a past decision. The words “to justify” are used in the sense of “to form a basis for” or “support”. In other words the AAT makes it clear that the decision was made on the basis of the considerations set out in the decision.
It is therefore evident that the decision-maker both understood and performed his function under the AAT Act as required by the law.
Accordingly, for the above reasons and having regard to the above considerations, we consider that the AAT reasons for decision disclose no error of law. The appeal should be dismissed with costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mathews, Tamberlin and Mansfield.
Associate:
Dated: 23 December 1999
Counsel for the Appellant:
D K Catterns QC
Solicitor for the Appellant:
Michell Sillar
Counsel for the Respondent:
H Burmester QC
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
2 December 1999
Date of Judgment:
23 December 1999
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