Papazoglou v Republic of the Philippines
[1997] FCA 254
•17 APRIL 1997
No. VG 756 of 1996
FED No. 254/97
Number of pages - 41
Abuse of Process - Extradition - Jurisdiction of Courts
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION WILCOX, TAMBERLIN AND SACKVILLE JJ
Abuse Of Process - claim by appellant that, if extradited, he would be exposed to 15 years of imprisonment in the Philippines in respect of conduct for which he would have received only a few months imprisonment in Australia - whether extradition proceedings can be stayed as an abuse of process.
Extradition - proceedings under s.19 of the Extradition Act 1988 (Cth) to determine whether applicant is "eligible for surrender" - whether magistrate has implied power to terminate the proceedings as an abuse of process - whether implication is compatible with the language and structure of the Act.
Jurisdiction Of Courts - whether the Supreme Court of Victoria has jurisdiction to terminate proceedings under the Extradition Act as an abuse of process - scope of the inherent jurisdiction of the Supreme Court - whether Full Federal Court has jurisdiction to entertain an appeal from a refusal of the Supreme Court to declare extradition proceedings to be an abuse of process - what constitutes a "matter" on the appeal.
Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 9, Schedule 1. Extradition Act 1988 (Cth), ss. 7, 11, 12, 16(1),(2), 17(1), 19, 21, 22. Federal Court of Australia Act 1976 (Cth), s. 24(1). Judiciary Act 1903 (Cth), ss. 38(e), 39B. Extradition (Republic of the Philippines) Regulations Treaty on Extradition Between Australia and the Republic of the Philippines, Manila, 7 March 1988, Articles 1, 2, 4.
Ah Yick v Lehmert (1905) 2 CLR 593 Coco v The Queen (1994) 179 CLR 427 Cockle v Isaksen (1957) 99 CLR 155 Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 Grassby v The Queen (1989) 168 CLR 1 Fencott v Muller (1983) 152 CLR 570 Forrest v Kelly (1992) 34 FCR 74 Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 Ex parte Hicks (1991) 65 ALJR 398 In re Judiciary and Navigation Acts (1921) 29 CLR 257 Jago v The District Court of New South Wales (1989) 168 CLR 23 Langer v Australian Electoral Commission (No 2) (1996) 59 FCR 463 Moevao v Department of Labour [1980] 1 NZLR 464 Moorgate Tobacco Ltd v Philip Morris Ltd (1980) 145 CLR 457 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Rogers v The Queen (1994) 181 CLR 251 Todhunter v United States of America (1995) 57 FCR 70 Walton v Gardiner (1993) 177 CLR 378 Wiest v Director of Public Prosecutions (1988) 23 FCR 472 Zoeller v Federal Republic of Germany (1989) 23 FCR 282 Zoeller v Federal Republic of Germany (1989) 90 ALR 161
MELBOURNE, 6-7 March 1997 Written submission completed on 24 March 1997 #DATE 17:4:1997, SYDNEY #ADD 22:4:1997
Counsel for the Appellant: Mr M.W. Weinberg QC, Mr R. van de Wiel and Mr O.P. Holdenson
Solicitors for the Appellant: Goulopoulos, Shields & Mangopoulos
Counsel for the Respondent: Miss B.J. King QC and Mr G. Thomas
Solicitors for Respondent: Commonwealth Director of Public Prosecutions
THE COURT ORDERS THAT:
1. The appeal be dismissed, with costs (including reserved costs).NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. JUDGE
WILCOX, TAMBERLIN, SACKVILLE JJ INDEX I. INTRODUCTION 2 II. THE LEGISLATION AND THE TREATY 5 A. The Extradition Act and the Extradition (Philippines) Regulations 5 B. The Treaty 17 III. THE COURSE OF EVENTS 18 A. The Facts 18 B. The Extradition Proceedings 23 C. The Primary Judge's Reasons 25 IV. THE MAGISTRATE'S POWER TO STAY THE PROCEEDINGS AS AN ABUSE OF PROCESS 27 A. The Appellant's Contentions 27 B. Abuse of Process 29 C. The Nature of the Magistrate's Jurisdiction 32 D. Grassby v The Queen 35 E. Does a Magistrate Have Implied Power to Prevent an Abuse of Process? 38 F. Other Australian Authorities 48 G. The UK Position 50 V. DECLARATORY RELIEF: JURISDICTIONAL ISSUES 51 A. Common Ground 51 B. The Point of Divergence 57 VI. THE SUPREME COURT'S INHERENT JURISDICTION 58 VII. THE ORIGINAL JURISDICTION OF THE FEDERAL COURT 65 VIII. ADDITIONAL ARGUMENTS 66 A. Extradition Objection 66 B. Effect of the Treaty 67 IX. CONCLUSION 68
I. INTRODUCTION
This is an appeal from orders made by Beach J of the Supreme Court of Victoria relating to a request by the Republic of the Philippines ("the Philippines") for the extradition of the appellant to that country. Two applications were before his Honour:
- first, an application by the present appellant, pursuant to s.21(1) of the Extradition Act 1988 (Cth) (the "Extradition Act"), seeking review of a determination by a magistrate, Mr Bernard Coburn M., under s.19 of the Extradition Act that the appellant was "eligible for surrender"; - secondly, an application by the appellant for a declaration that the proceedings brought by the Philippines for the extradition of the appellant constituted an abuse of process.
Although the originating process in the Supreme Court of Victoria did not say so, the appellant sought the declaration in the exercise of what was said to be the inherent jurisdiction of the Supreme Court of Victoria to supervise proceedings conducted by magistrates under the Extradition Act.
On the application for review, Beach J confirmed the order made by the magistrate. That order required the appellant to be committed to prison to await either surrender to the Philippines under a surrender warrant or an order for his release made by the Attorney-General under s.22(5) of the Extradition Act. Beach J also dismissed the application for declaratory relief.
The present appeal is brought against both orders made by Beach J. The jurisdiction to hear the appeal against confirmation of the magistrate's order is conferred by s.21(3) of the Extradition Act. Section 21(3) provides, inter alia, that where the Supreme Court, on an application to review the magistrate's order, confirms that order, an appeal lies to the Full Court of the Federal Court. Section 21(3) must be read together with s.24(1) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"), which confers jurisdiction on the court to hear and determine, in such cases as are provided by any other Act, appeals from judgments of a court of a State exercising federal jurisdiction.
The notice of appeal as filed does not identify the source of the Court's power to hear and determine the appeal from Beach J's dismissal of the application for a declaration. This omission led to discussion on the appeal, as to whether the Court had jurisdiction to entertain an appeal from a decision of a Judge of the Supreme Court of Victoria, dismissing a claim for declaratory relief that was sought as an exercise of the inherent jurisdiction of that Court. This issue had not been addressed in the appellant's written or oral submissions. Accordingly, the parties were given the opportunity to prepare written submissions on the jurisdictional issue and on the associated question of whether, assuming the Court had jurisdiction to entertain the appeal, the inherent jurisdiction of the Supreme Court of Victoria extended to staying proceedings conducted by a magistrate under the Extradition Act. The parties provided detailed written submissions on those issues. We address them later in these reasons.
II. THE LEGISLATION AND THE TREAT
A. The Extradition Act and the Extradition (Philippines) Regulations
The principal objects of the Extradition Act are stated in s.3 as follows:
"(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties."
It is to be noted that s.3(a) contemplates that a person (including an Australian citizen) may be extradited from Australia without the need for the extraditing country to provide evidence of guilt. Curiously, most treaties applicable to non-Commonwealth countries require no evidence of guilt to be produced by the requesting party, whereas the scheme applicable to Commonwealth countries requires that a prima facie case be established: I A Shearer, "Extradition and Human Rights" (1994) 68 ALJ 451, at 451, n.5.
In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 (FCA/FC), a Full Court of this Court said this about the operation of the Extradition Act (at 389):
"The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s.12(1) or by the giving of a notice under s.16(1). Once arrested, the person is required by s.15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s.19. Where a person is on remand under s.15 and the Attorney-General has given a notice under s.16(1), provision is made under s.19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s.22 for the Attorney-General to decide whether the person is to be surrendered."
A brief conspectus of the operation of the Extradition Act is provided by the judgment of Brennan CJ, Dawson and McHugh JJ (with whom Toohey J agreed) in Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528, at 533-538.
Section 11(1) of the Extradition Act provides that the regulations may
"(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or (b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications."
Section 11(1C), which was introduced by the Extradition Amendment Act 1990, s.4, states that for the purposes, inter alia, of s.11(1), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty "may be expressed in the form that this Act applies to the country concerned subject to the treaty". An "extradition country" is defined to mean, relevantly, "any country...that is declared by the regulations to be an extradition country".
The Extradition (Republic of the Philippines) Regulations (the "Extradition (Philippines) Regulations"), which commenced on 18 January 1991, declare the Philippines to be an extradition country: reg.4. The Extradition (Philippines) Regulations also apply the Extradition Act to the Philippines, subject to the Treaty on Extradition Between Australia and the Republic of Philippines done at Manila on 7 March 1988 (the "Treaty"): reg.5. The terms of the Treaty are set out in the Schedule to the Extradition (Philippines) Regulations and some provisions will be referred to later. The effect of the Extradition (Philippines) Regulations is to draw into municipal law the terms of the Treaty: Todhunter v United States of America (1995) 57 FCR 70 (FCA/FC), at 76. However, as the Full Court there pointed out, the adoption of the Treaty by municipal law is qualified by s.11(6) to which reference will also be made later. There is no requirement in the Extradition (Philippines) Regulations that the Philippines provide evidence of the guilt of the person whose extradition is sought.
The Extradition Act provides for an extradition country to apply to a magistrate for a provisional arrest warrant in relation to a person: s.12(1)(a). If the magistrate is satisfied, on the basis of information given by affidavit, that the person is an "extraditable person in relation to the extradition country", the magistrate must issue the warrant: s.12(1)(b). When the magistrate does so, he or she must send a report to the Attorney-General: s.12(2).
Where (i) the Attorney-General has received the report (or otherwise has become aware of the issue of the warrant), (ii) the person has not been arrested under the warrant, and (iii) either the Attorney-General decides not to issue a notice under s.16(1) or considers for any other reason the warrant should be cancelled, the Attorney-General must direct a magistrate to cancel the warrant: s.12(3).
Section 16(1) of the Extradition Act provides that, where the Attorney-General receives an extradition request from an extradition country in relation to a person, he or she may give a notice to a magistrate stating that the request has been received. The notice is not to be given unless the Attorney-General is of the opinion that the person is an extraditable person and that, if the conduct constituting the extradition offences had occurred in Australia, the conduct would have constituted an extradition offence in relation to Australia: s.16(2)(a). Moreover, the notice cannot be given if the Attorney- General is satisfied that there is an "extradition objection in relation to the extradition offence": s.16(2)(b).
The expression "extraditable person" is defined in s.6 of the Extradition Act. Relevantly, s.6 provides that where a warrant is in force for the arrest of a person in relation to an offence against the law of a country, the offence is an "extradition offence in relation to the country" and the person is believed to be outside the country, the person is an "extraditable person". An "extradition offence" in relation to a country other than Australia means, inter alia, an offence for which the maximum penalty is imprisonment for not less than 12 months: s.5.
Section 7 specifies the circumstances in which an "extradition objection" exists. These include cases where the extradition offence is a "political offence" (s.7(1)(a)) and the surrender of the person is sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions (s.7(1)(b)). The circumstances also include those specified in s.7(1)(e):
"the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence."
The Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") does not apply to decisions under the Extradition Act: ADJR Act, s.3(1) (definition of "decision") and Schedule 1, para (r). Thus the ADJR Act does not apply to a decision by the Attorney-General to issue a s.16 notice. However, the Federal Court has jurisdiction under s.39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") to review the Attorney-General's decision to issue such a notice (DPP v Kainhofer, at 538-539), although the Court will be wary of premature intervention in the extradition process: Harris v Attorney-General (Cth), at 400-401, 412-413.
A person who is arrested under a provisional arrest warrant must be brought as soon as practicable before a magistrate: s.15(1). The person must be remanded in custody or on bail for such period or periods as are necessary to enable proceedings under s.19 (which deals with determination of eligibility for surrender) to be conducted: s.15(2). Bail is not to be granted pending the s.19 proceedings unless there are special circumstances justifying remand on bail: s.15(6).
If a person is on remand under s.15 and the Attorney-General considers that a s.16 notice should not be issued, or that remand should cease for any other reason, the Attorney-General must direct the magistrate to order the release of the person from custody or the discharge of the recognizances on which bail was granted: s.17(1). Where a person is on remand for 45 days (or such other period as is prescribed) and a s.16 notice has not been given by the Attorney- General, the person on remand must be brought before a magistrate: s.16(2). Unless the magistrate is satisfied that a s.16 notice is likely to be given within a reasonable period, he or she must order the release of the person from custody, or the discharge of the recognizances: s.16(2).
Section 19 deals with determination of eligibility for surrender. Sub-sections 19(1) and (2) are important:
"(1) Where: (a) a person is on remand under section 15; (b) the Attorney-General has given a notice under subsection 16(1) in relation to the person; (c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and (d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings; the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country. (2) For the purposes of subsection (1), 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; (b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate; (c) the magistrate is satisfied that, if the conduct of the person constituting the offence 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; 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."
Section 19(5) provides that the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought. The High Court has also held that it is no part of a magistrate's function under s.19 to determine whether the person is an "extraditable person". That function is entrusted first to the magistrate under s.12 and, secondly, to the Attorney-General under s.16. The magistrate acting under s.19 has no power to review either of the earlier determinations in the "administrative sequence": DPP v Kainhofer, at 538-539.
A magistrate who determines that a person is eligible for surrender to the extradition country in relation to the extradition offence, must order that the person be committed to prison to await surrender, or release pursuant to a determination made by the Attorney-General under s.22 of the Act: s.19(9)(a). Such an order was made in the present case. Where an order is made under s.19(9)(a), the magistrate must prepare a record of the extradition offences in relation to which the person is eligible for surrender and provide a copy of the record to the person and to the Attorney-General: s.19(9)(c). If the magistrate determines that the person is not eligible for surrender to the extradition country, he or she must order that the person be released and notify the Attorney-General accordingly: s.19(10).
Where a magistrate makes an order under s.19(9) or s.19(10), the person or the extradition country (as the case may be) may apply within 15 days to the Federal Court or to the Supreme Court of the relevant State or Territory, for a review of the order: s.21(1). The Court has power (i) to confirm the magistrate's order, (ii) to quash any order under s.19(9) that the person is eligible for surrender and order release of the person, or (iii) to quash any order under s.19(10) that the person be released and order that the person be committed to prison to await either surrender or release pursuant to an order made by the Attorney-General under s.22: s.21(2). An appeal lies to the Full Court of the Federal Court from the court's order on an application for review: s.21(3).
On an application for review under s.21(1), or on an appeal under s.21(3), the court must have regard only to the material before the magistrate: s.21(6)(d). Where the person concerned is in custody because of an order made by the magistrate, the court to whom the application for review is made may grant bail on such terms and conditions as it thinks fit: s.21(6)(f)(iv). The Full Court has similar powers where an appeal is brought by the person under s.21(3) against orders made by a court confirming a magistrate's order under s.19(9).
The task of the Attorney-General under s.22 of the Extradition Act has been described as "quite different from the task of the magistrate under s.19": Todhunter v USA, at 74. Section 22(2) requires the Attorney-General, as soon as is reasonably practicable after a person has become an "eligible person", to determine whether the person is to be surrendered in relation to the extradition offence for which it has been determined that the person is eligible for surrender. The person becomes an "eligible person", inter alia, if a magistrate has made an order under s.19(9) and no proceedings under s.21 are being conducted or are available in relation to that order: s.22(1).
Section 22(3) provides as follows:
"(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence; (b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture; (c) where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable: (i) the person will not be tried for the offence; (ii) if the person is tried for the offence, the death penalty will not be imposed on the person; (iii) if the death penalty is imposed on the person, it will not be carried out; (d) the extradition country concerned has given a speciality assurance in relation to the person; (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney-General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and (f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence."
A "speciality assurance", in substance, is an assurance that the eligible person will not be detained or tried for any offence committed before the surrender other than the surrender offence or a lesser offence arising out of the same conduct: s.22(4).
Where the Attorney-General determines under s.22(2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General must order the release of the person: s.22(5). In contrast, the Attorney-General determines under s.22(2) that a person is to be surrendered to the extradition country, the Attorney-General subject to a presently irrelevant exception, must issue a warrant for the surrender of the person to the extradition country: s.23.
Finally, it should be noted that the Extradition Act provides that the Governor-General may arrange with the Governor of a State for the performance by all or any of the persons who from time to time hold office as magistrates of that State, of the function of a magistrate under the Act: s.46(1)(a). Arrangements between the Governor-General and the Governor of a State must be published in the Gazette: s.46(2). On 30 November 1988, the Gazette published a proclamation giving notification of arrangements made with the Governors of all Australian States under s.46(1)(a). Under these arrangements, "all or any of the persons who from time to time hold office as Magistrates of the State of Victoria may perform the functions of a Magistrate under the [Extradition Act]". "Magistrate" is defined in s.5 of the Extradition Act to mean, inter alia, a "magistrate of a State..., being a magistrate in respect of whom an arrangement is in force under [s]46".
B. The Treaty
Article 1 of the Treaty obliges each of the Contracting States to extradite to the other, in accordance with the Treaty, persons who are wanted, inter alia, for prosecution for an extraditable offence. Article 2 defines extraditable offences to include offences punishable by at least one year's imprisonment.
Article 4 sets out exceptions to extradition. Article 4, para 1, provides that extradition shall not be granted in any of a number of specified circumstances. Some of these correspond, broadly, to portions of the definition of "extradition objection" in s.7 of the Extradition Act. The circumstances specified in Article 4, para.1, include the following:
"(d) if final judgement has been passed in the Requested State or in a third state in respect of the offence for which the person's extradition is requested".
Article 4, para 2, provides that extradition may be refused in any one of a number of specified circumstances. These include:
"(e) if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is requested, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment."
III. THE COURSE OF EVENTS
A. The Facts
As we have noted, s.21(6)(d) of the Extradition Act requires the Court, on an appeal under s.21(3), to have regard only to material before the magistrate. The following account is based on that material and on the helpful summary of events contained in the judgment of Beach J.
The appellant was born in Greece on 6 September 1946. In 1971 he settled in Australia with his mother. In 1974 he obtained Australian citizenship. He married in 1977, but was divorced in 1989.
From 1984 to 1988 the appellant was the principal of Goldair (Aust) Pty Ltd ("Goldair"), a company which carried on business as a "consolidator" and sales agent in Melbourne. A consolidator is generally considered to be an organisation that wholesales airline tickets. While Goldair was not a wholesaler, it was considered to be a consolidator because it entered into a relationship with Philippines Airlines Inc ("PAL") to promote PAL's services through an organised group of travel agents. Special commission arrangements were made in consequence of this relationship. At this time PAL was owned and operated by the Philippines Government.
From about January 1984 to about January 1988 the appellant made claims on PAL for incentive commissions on behalf of Goldair. These claims, which were prepared in Victoria, were presented to PAL each month. The appellant travelled to the Philippines frequently in order to file the claims and collect cheques. Relevant conduct thus took place in both Victoria and the Philippines and, insofar as the claims were deliberately false, involved offences in both jurisdictions.
In June 1988, PAL conducted an audit of Goldair's claims, apparently for the first time. The auditors reported that, during the period 1984 to 1988, Goldair had falsely claimed from PAL and been paid approximately $11 million. The audit found that $342,219 had been falsely claimed during 1984 and $1,182,173 during 1985. The remainder of the false claims were submitted during the period January 1986 to January 1988.
On 14 December 1988, PAL instituted proceedings in the Supreme Court of Victoria against Goldair, the appellant and other companies associated with him. PAL claimed repayment of moneys overpaid during the period 1984 to 1988 and alleged fraudulent conduct on the appellant's part.
On 7 February 1989, PAL made a complaint to the Victoria Police Force about the appellant's allegedly fraudulent conduct. The material supplied by PAL included the audit reports covering the whole period from 1984 until 1988. He was arrested shortly afterwards, charged with a number of offences and released on bail. The appellant was re-arrested in 1990, charged with a further 130 offences and again released on bail. Beach J proceeded on the basis that the appellant was charged only in relation to offences alleged to have occurred in 1986, 1987 and 1988. The parties accepted before us that this was what occurred, even though some of the prosecution's brief of evidence for the committal proceedings included a statement from a PAL auditor, dated 21 September 1989, summarising the fraudulent claims said to have been made on behalf of Goldair in 1984 and 1985.
The reason for the charges being limited to conduct occurring after January 1986 was that the Victoria Police Force investigator, Detective Sergeant Hermit, made a judgment that the volume of material requiring analysis was so great that he should concentrate on the most recent periods of allegedly false invoicing. Detective Sergeant Hermit was aware of the allegations relating to events in 1984 and 1985, as was the solicitor in the office of the Victoria Director of Public Prosecutions ("DPP"). However, both took the view that little was to be gained by expanding the charges to include the earlier periods.
On 30 April 1990, the civil proceedings were settled. Goldair agreed to pay PAL $5,500,000 by instalments. The appellant guaranteed performance of Goldair's obligations under the deed of settlement and PAL withdrew the allegations of fraud made against him. The evidence does not reveal how much, if any, of the amount of $5,500,000 has been paid to PAL.
In August 1991, a committal hearing against the appellant took place in respect of 94 counts of obtaining property by deception and 23 counts of false accounting. The appellant accepted his committal for trial on the hand-up brief and was duly committed to stand trial in the County Court at Melbourne.
Thereafter, negotiations took place between the appellant's legal advisers and the DPP with a view to reducing the number of charges brought against the appellant in return for a plea of guilty. The outcome of those negotiations was that the appellant pleaded guilty to 24 counts of furnishing false and misleading information, contrary to s.831B of the Crimes Act 1900 (Vic), an offence carrying a maximum term of imprisonment of seven years. All counts related to conduct during the period from January 1986 until January 1988.
During these negotiations the appellant's barrister was aware that the hand-up brief originally served on the appellant included references to alleged false invoicing in 1984 and 1985. However, the barrister had no conversation with the representatives of the DPP as to whether charges were to be laid in respect of events occurring in 1984 and 1985. The barrister gave evidence before the magistrate that had he entertained any suspicion that charges or counts might be laid in the future in respect of 1984 and 1985, he would have insisted on the prosecution immediately deciding one way or the other. The barrister said that he was well aware of the principle of totality of sentencing. Accordingly, he would have ensured that the appellant's guilty plea finalised all matters arising out of Goldair's dealings with PAL.
On 20 August 1992, the appellant pleaded guilty before Judge Ross of the County Court of Victoria to 24 counts of furnishing false and misleading information to PAL. On 28 August 1992, his Honour sentenced the appellant on each count, but directed that only one of the sentences be cumulative upon the other. This produced a head sentence of six years. His Honour directed that the appellant serve a minimum of four years before becoming eligible for parole. His Honour noted that the plea of guilty covered offences committed between 31 January 1986 and 31 January 1988 and that the false claims covered by the 24 counts amounted to approximately $3,300,000. Judge Ross referred to February 1986 as being the "first month of this sustained period of deception". He also rejected a submission that the sentence on each court should be concurrent, for the following reason:
"In my opinion 24 separate presentations of fraudulent claims at approximately monthly intervals cannot be categorised as one transaction. The fact that the same method was employed in each case does not concert your crimes into one transaction, such as might warrant concurrent sentencing".
B. The Extradition Proceedings
On 5 August 1995, towards the end of the appellant's minimum term of imprisonment in Victoria, a warrant for his arrest was issued in the Philippines. The arrest warrant was based on a number of informations alleging the falsification of private documents during the period from February 1984 to December 1985. The conduct the subject of the informations was, in substance, identical with the conduct in respect of which the appellant had been sentenced by Judge Ross but, of course, had taken place at an earlier time.
On 8 August 1996 the appellant was released on parole from prison in Victoria. He was immediately arrested by officers of the Federal Police, pursuant to a warrant issued on the application of the Philippines in respect of the 1984 and 1985 alleged offences. He has remained in custody since that time.
On 16 September 1996, the Philippines made an extradition request in respect of the appellant to the Attorney-General. Although no s.16 notice is reproduced in the Appeal Book, it is common ground that on 18 September 1996 the Attorney-General signed a notice under s.16 of the Extradition Act, stating that a request for the extradition of the appellant had been received. All other preconditions for the conduct of the proceedings under s.19 of the Extradition Act were satisfied.
The proceedings under s.19 of the Extradition Act were heard by the magistrate, in October 1996. The appellant was represented by senior counsel who contended, amongst other things, that the proceedings were an abuse of process.
On 11 October 1996, the learned magistrate determined that the appellant was eligible for surrender in relation to 19 counts of falsifying private documents for which his surrender had been sought by the Philippines. He found that the evidence supported the proposition that the proceedings were an abuse of process:
"Professor Ortega's estimate of the likely penalty which would be imposed in the Philippines is 15 years. Reference to the transcript of Professor Ortega's evidence will show that sentencing is a fairly mathematical procedure in the Philippines and his estimate of 15 years is well founded. To my mind, if this proceeding exposed the respondent to an additional 15 years of imprisonment to be served in the less than desirable conditions of a Philippine prison, it would amount to an abuse of process. Especially when the respondent, as I have said, played no part in the decision as to what offences were to be proceeded with in Victoria."
However, the magistrate held that he had no power to stay the proceedings on the ground that they constituted an abuse of process. He took the view that a magistrate's decision under s.19 is not a final one, since it is the Attorney-General who must decide whether a person eligible for surrender is in fact to be extradited. The magistrate's role is confined to making a recommendation to the Attorney-General. He thought that the authorities, notably Grassby v The Queen (1989) 168 CLR 1 and Forrest v Kelly (1992) 34 FCR 74 (FCA/FC), supported the view that such a role did not attract the power to stay proceedings for abuse of process.
C. The Primary Judge's Reasons
The application for review of the magistrate's decision and for declaratory relief was determined by Beach J on 10 December 1996. His Honour reached the following conclusions:
- The magistrate was not required to take account of the provisions of Article 4 of the Treaty in determining whether the appellant was eligible for surrender. In particular, the magistrate was not required to take account of para.2(e) of Article 4, which allows extradition to be refused if the extradition would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment. This consequence flowed from s.11(6) of the Extradition Act. - The magistrate had no power to stay the proceedings on the ground that they constituted an abuse of process. The magistrate was performing an executive or ministerial function, and was not exercising the judicial power of the Commonwealth. Moreover, the magistrate's statutory obligations were couched in mandatory terms, leaving no room for the implication of a discretionary power to stay the proceedings as an abuse of power. - The magistrate had not erred in finding that there were no substantial grounds for believing that there was an extradition objection in relation to the offences. - There was no basis for making a declaration, in the exercise of the Supreme Court's inherent jurisdiction, that the proceedings brought by the Philippines were an abuse of process. The intention of Parliament, manifested in s.22 of the Extradition Act, was that the Attorney-General should have the power to refuse to surrender a person where in his view it could be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment to do so. Assuming there was inherent power to make the declaration, it would be inappropriate for the Court to step in at this stage and "usurp the functions of the Attorney- General". There was no reason to think that the Attorney- General would fail to have regard to the matters he was required to consider. It would only be in the most exceptional circumstances that a court would interfere and those circumstances were not present in this case.
Accordingly, Beach J confirmed the learned magistrate's order and dismissed the application for a declaration.
IV. THE MAGISTRATE'S POWER TO STAY THE PROCEEDINGS AS AN ABUSE OF PROCESS
In this section we deal with the appellant's submission that a magistrate has power, in appropriate circumstances, to stay proceedings under s.19 of the Extradition Act as an abuse of process. There is no question that the Court has jurisdiction to determine this issue, since it arises on the appeal brought under s.21(3) of the Extradition Act.
A. The Appellant's Contentions
Mr Weinberg QC, who appeared at the hearing with Mr van de Wiel and Mr Holdenson for the appellant, submitted that, in the circumstances of the present case, the proceedings under s.19 of the Extradition Act constituted an abuse of process. In substance, the appellant relied on the proposition that the Philippines was attempting to do what the prosecuting authorities in Victoria would have been prevented from doing, namely, launching a fresh prosecution based on the offences alleged to have been committed in 1984 and 1985. It was said that the Philippines was attempting to undermine an implied representation or undertaking made or given by the Victorian authorities that, if the appellant pleaded guilty to the charges in respect of the period 1986 to 1988, he would not thereafter be prosecuted for offences of the same or a similar character committed during the earlier period. Mr Weinberg pointed out that the magistrate in the present case had expressly stated that, if the appellant were exposed to an additional period of 15 years of imprisonment in the Philippines, the proceedings would amount to an abuse of process. Accordingly, if the magistrate indeed had power to terminate the proceedings as an abuse of process, it was appropriate for this Court in exercising its appellate function under s.21(3) of the Extradition Act, to make an order staying the proceedings.
In relation to the magistrate's power, Mr Weinberg accepted that a magistrate conducting proceedings under s.19 exercises administrative functions as persona designata and does not exercise the judicial power of the Commonwealth. Mr Weinberg also accepted that a magistrate exercising such functions does not have an inherent jurisdiction to stay the proceedings. However, he argued that a magistrate has an implied power to stay the proceedings, stemming from the magistrate's authority to conduct proceedings to determine whether a person is eligible for surrender.
In support of this contention, Mr Weinberg pointed out that proceedings under s.19, despite not being an exercise of the judicial power of the Commonwealth, bear many of the hallmarks of court proceedings. He contended that the Extradition Act, although said to be a code (s.3(a)), was not intended to state exhaustively the powers of a magistrate conducting proceedings under s.19. Moreover, it could be productive of serious injustice if a magistrate did not have power to terminate the proceedings as an abuse of process.
Mr Weinberg recognised that Grassby v The Queen, presented a potential obstacle to his argument on this question. In that case, the High Court held that s.41(6) of the Justices Act 1902 (NSW) ("Justices Act") left no room for an implied power in a magistrate to terminate committal proceedings in any manner other than that provided by the Act itself. Mr Weinberg argued, however, that the position under the Extradition Act was different, because once a magistrate releases a person under s.19(10), the extradition process cannot proceed further, except by means of a review under s.21 of the Extradition Act (or a subsequent appeal) or a fresh application before a magistrate on new material. In the realm of extradition there is no equivalent to an ex officio indictment.
B. Abuse of Process
Before considering whether this reasoning applies to the discharge by a magistrate of the functions conferred by s.19 of the Extradition Act, it is convenient to consider the concept of abuse of process as it has developed in Australia. The concept has been expanded considerably by recent decisions of the High Court. It is not confined to cases where proceedings are brought for an improper purpose or where there is no possibility of a fair hearing: Walton v Gardiner (1993) 177 CLR 378, at 395, per Mason CJ, Deane and Dawson JJ. It is therefore not confined to abuses related to court procedures and processes: see, generally, D M Paciocco, "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept" (1991) 15 Crim LJ 315, esp at 326-327, 331.
In Walton v Gardiner, the joint judgment accepted (at 393) that a majority in Jago v The District Court of New South Wales (1989) 168 CLR 23, had rejected the narrower view that a court's power to protect itself from an abuse of process in criminal proceedings was limited to traditional notions of abuse of process, such as bad faith or oppression. The joint judgment cited (at 394) with approval a passage from the judgment of Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464, at 481. The full passage is as follows:
"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
The joint judgment in Walton also quoted (at 394) a passage from the judgment of Deane J in Jago, at 58, which is relevant to the circumstances of the present case:
"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed."
The joint judgment went on to explain (at 395-396) that the question whether criminal proceedings should be stayed on abuse of process grounds
"falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice."
In Rogers v The Queen (1994) 181 CLR 251, a majority held that the tender of confessional material by the prosecution on a trial for armed robbery was an abuse of process, since the same admissions had been ruled involuntary in an earlier trial: at 255, per Mason CJ; at 279-280, per Deane and Gaudron JJ. See also Williams v Spautz (1992) 174 CLR 509, at 520, per Mason CJ, Dawson, Toohey and McHugh JJ.
While the scope of abuse of process has been expanded, the authorities have emphasised that it is only in exceptional circumstances that a stay of a criminal prosecution will be granted: Jago, at 31, per Mason CJ. In the same case Gaudron J (at 76) referred to the power being exercised "sparingly and with the utmost caution". Her Honour pointed out (at 77) that the
"limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding, as distinct from any broad consideration of the general merits of the case."
It will be necessary to consider whether the proceedings before the magistrate in the present case constituted an abuse of process only if the magistrate or a court has jurisdiction to grant relief on that ground.
C. The Nature of the Magistrate's Jurisdiction
While Mr Weinberg did not dispute that a magistrate conducting proceedings under s.19 of the Extradition Act exercises administrative functions, it is convenient to commence with an examination of the nature of the jurisdiction exercised by a magistrate under s.19. It will be recalled that an arrangement has been made, pursuant to s.46 of the Extradition Act, for all magistrates in Victoria from time to time to perform the functions of a magistrate under that Act.
It is clear that the functions performed by a magistrate pursuant to s.19 of the Extradition Act are administrative functions performed by them as personae designatae. This view was expressed in Wiest v Director of Public Prosecutions (1988) 23 FCR 472, by Burchett J at 486, and by Gummow J (with whom Sheppard J agreed), at 522. (As to the distinction between the judicial powers of the Commonwealth conferred on a court and executive or administrative functions conferred on personae designatae, who may happen to be members of a court, see Hilton v Wells (1985) 157 CLR 57, at 68 ff, per Gibbs CJ, Wilson and Dawson JJ; at 80-81, per Mason and Deane JJ; Grollo v Palmer (1995) 184 CLR 348, at 360-362, per Brennan CJ, Deane, Dawson and Toohey JJ.) The comments in Wiest v DPP were directed to the functions exercised by magistrates under s.17 of the Extradition (Foreign States) Act 1966 (Cth): see also Zoeller v Federal Republic of Germany (1989) 23 FCR 282 (FCA/FC), at 290; Schlieske v Federal Republic of Germany (No.2) (1987) 76 ALR 417 (FCA/Burchett J), at 422. However, that section does not differ in material respects from s.19 of the Extradition Act. In any event, the joint judgment of the High Court in DPP v Kainhofer expressly stated (at 538) that the powers conferred by the Extradition Act, other than those conferred on a court by s.21, are administrative in character. See also Todhunter v USA, at 80.
The characterisation of proceedings under s.19 of the Extradition Act as administrative in character rests, at least in part, on the proposition that the magistrate's determination does not finally determine rights and liabilities: Wiest v DPP, at 523-524, per Gummow J; In re Rees [1986] AC 937, at 961-962, per Lord Mackay; E P Aughterson, Extradition: Australian Law and Procedure (1995), at 207, n.187. The conventional view is that a determination that a person is not eligible for surrender relates only to the circumstances prevailing at the time the determination is made and does not preclude a subsequent determination that the person is so eligible.
The fact that proceedings under s.19 of the Extradition Act are characterised as administrative rather than judicial in character does not necessarily determine the nature and extent of the magistrate's powers. For example, in Zoeller v Republic of Germany, the Court (at 290) saw little reason to doubt
"from the context of the [Extradition Act] and the place the proceedings play in the process of extradition that natural justice or 'procedural fairness' must not be denied to the person the subject of the proceedings".
Indeed, as Gibbs J observed in Ammann v Wegener (1971) 129 CLR 415 (a case involving committal proceedings), at 436, the fact that a magistrate is exercising non-judicial functions may be compatible with the magistrate sitting as a court. The same point was recognised, in relation to a commissioner appointed under the Workers' Compensation Act 1987 (NSW), in New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 (NSW CA), at 184-185, per Kirby P; at 209, per Mahoney JA. See also Grassby v The Queen, at 15, per Dawson J (with whom Mason CJ, Brennan and Toohey JJ agreed). Of course, the present case involves a magistrate acting as persona designata.
D. Grassby v The Queen
As we have noted, the question of whether a magistrate exercising non-judicial functions has power to stay proceedings as an abuse of process was addressed by the High Court in Grassby v The Queen. In that case, the High Court was concerned with the powers of a magistrate hearing committal proceedings under the Justices Act. Dawson J, with whom Mason CJ, Deane and Dawson JJ agreed, held (at 17) that an inferior court has no inherent power to protect itself from abuse. The rationale for this conclusion was said to be that the power to protect courts from abuse derives from "the general responsibility of a superior court of unlimited jurisdiction for the administration of justice": see also Walton v Gardiner, at 392-396, per Mason CJ, Deane and Dawson JJ.
While inferior courts have no inherent power to protect themselves from abuse, Dawson J explicitly recognised in Grassby v The Queen that an inferior court may possess powers by way of necessary implication. His Honour said this (at 168):
"Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'. There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf, R. v Hush; Ex parte Devanny [(1932) 48 CLR 487, at 515]."
His Honour also recognised (at 17) that the
"fact that in the conduct of committal proceedings a magistrate is performing a ministerial or administrative function is, of course, no bar to the existence of implied powers, if such are necessary for the effective exercise of the powers which are expressly conferred on him".
There may be a question as to whether a magistrate discharging administrative functions as persona designata can ever possess and exercise an implied power to terminate proceedings as an abuse of process. Putting that issue to one side, the critical question for present purposes is whether a magistrate, exercising the functions conferred by s.19 of the Extradition Act, has an implied power to stay the proceedings on the ground that they constitute an abuse of the court's process.
Ms King QC, who appeared at the hearing with Mr Thomas on behalf of the respondent, contended that Grassby v The Queen required that question to be decided adversely to the appellant. Dawson J held in that case that the scheme of s.41 of the Justices Act, which specified the circumstances in which a magistrate was to commit an accused person for trial on an indictable offence, was inconsistent with an implied power to stay the proceedings as an abuse of the court's process. His Honour's reasoning on this point was as follows (at 17- 18):
"But the scheme of [s.41], far from requiring the implication of a general power to stay proceedings, is such as to impose an obligation upon the magistrate to dispose of the information which brings the defendant before him by discharging the defendant as to it or by committing him for trial. If the defendant is committed for trial and subsequently indicted, the charge contained in the indictment will take the place of the charge upon the information. Section 41 of the Justices Act commences with sub-s.(1) which provides that: 'Whenever a person charged with an offence upon an information...appears or is brought before a Justice or Justices...the Justice or Justices shall, if the person so charged has been provided with a written copy of the charges against him, take the evidence for the prosecution in [the] manner hereinbefore provided.' The section goes on in sub-s.(2) to provide that after all evidence for the prosecution has been taken, the magistrate shall, after considering it, discharge the defendant as to the information if he is not of the opinion that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence and otherwise proceed. The section concludes the procedure with sub-s.(6) which requires the magistrate, after considering the evidence for the prosecution and any evidence for the defence, to order the defendant to be discharged as to the information if he is of the opinion that a jury would not be likely to convict the defendant of an indictable offence and otherwise to commit him for trial. There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform. Having regard to the exceptional nature of the occasions upon which the prosecution of an offence will amount to an abuse of the process of the court trying that offence, oppression arising from, and confined to, the committal process itself is difficult to conceive. Indeed, having regard to the inability of a magistrate to stay the trial, it is not possible for him to know conclusively whether the person charged may, having regard to the interests of justice, safely be deprived of the advantage of committal proceedings. No doubt it is possible to conceive of committal proceedings being allowed to be conducted in an oppressive manner. But that is something within the control of the magistrate.... [T]he fact remains that in committal proceedings a magistrate is performing an administrative or ministerial function which is governed by statute and the terms of the statute afford no basis for the implication of any power to dispose of those proceedings by the imposition of a permanent stay."
E. Does a Magistrate Have Implied Power to Prevent an Abuse of Process?
As Mr Weinberg pointed out in argument, unless a magistrate (or a superior court exercising a supervisory jurisdiction) has power to stay proceedings commenced under s.19 of the Extradition Act as an abuse of process, grievous injustice might result. In the present case the appellant, an Australian citizen, claims that he will be exposed to a term of imprisonment of 15 years in the Philippines as a consequence of charges he says could not be brought against him in Australia. More extreme cases can readily be imagined, for example if the appellant had been acquitted of the charges relating to conduct in 1986 to 1988 and was now facing extradition on the charges concerning 1984 and 1985. If the respondent's argument is correct, the magistrate is powerless to terminate proceedings as an abuse of process, however gross that abuse might appear to be, and is equally powerless to consider the strength of the evidence in support of the allegations. The person whose extradition is sought must run the risk that the Attorney-General will decide to surrender him or her. A decision by the Attorney-General to surrender the person cannot be challenged on the merits. At the very least, the person must await the Attorney-General's decision under s.22 of the Extradition Act while in custody, since the Extradition Act makes no provision for bail after the review and appellate processes provided for in s.21 have been exhausted.
These are powerful considerations. The High Court has accepted that
"the presence of general words in a statute is insufficient to authorise interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required".
Coco v The Queen (1994) 179 CLR 427, at 436, per Mason CJ, Brennan, Gaudron and McHugh JJ, adopting the observations of Lord Browne-Wilkinson in Wheeley v Leicester City Council [1985] AC 1054, at 1065. The joint judgment in Coco v The Queen added these comments (at 437):
"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. ... In Bropho v Western Australia [(1990) 171 CLR 1, at 18], Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale [sic] against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is: 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' [Potter v Minahan (1908), 7 CLR 277, at 304]. At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."
It is difficult to resist the notion that Australians have a fundamental right not to be detained in custody without an opportunity to assert before a court that the proceedings against them should be regarded as an abuse of process. If legislation is to abrogate or curtail that right, it must contain a clear expression of an unmistakable and unambiguous intention to do so.
A further powerful consideration is that two decisions of single Justices of the High Court acknowledge that the Extradition Act does not state exhaustively the powers of courts in relation to extradition matters. In Ex Parte Hicks (1991) 65 ALJR 398, a case involving an extradition request by New Zealand, Toohey J held that the Full Federal Court, on an appeal from a single Judge under s.35(3) of the Extradition Act, had power to direct that the application for review be reheard by a single Judge. Although the Extradition Act was intended to be a code, it was not exhaustive of the procedures to be followed on appeal. Similarly, in Zoeller v Federal Republic of Germany (1989) 90 ALR 161, Mason CJ held that the Extradition Act does not preclude the inherent jurisdiction of the High Court to grant bail pending the hearing of an application for special leave to appeal, although his Honour declined to exercise the jurisdiction in the particular case. These cases concern the implied powers or inherent jurisdiction of superior courts, but they suggest that the Extradition Act does not necessarily exhaustively specify all powers that are available to a magistrate performing the functions conferred by s.19 of the Extradition Act.
Indeed, a magistrate performing the functions conferred by s.19 of the Extradition Act, even though acting as persona designata, must have some implied powers. For example, precisely because a magistrate exercises power under s.19 as persona designata, it seems that s.79 of the Judiciary Act (which provides that the laws of each State relating, inter alia, to procedure shall, except as otherwise provided, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable) does not apply to proceedings under s.19. While some procedural provisions are contained in the Extradition Act (see, for example, s.19(1)(d)) and in the Extradition Regulations 1988 (Cth), plainly the magistrate must have implied powers to take the measures necessary to conduct the proceedings in an orderly fashion and in accordance with the dictates of procedural fairness. In The Queen v Kelly; Ex parte Harvey (1985) 75 FLR 411 (S Ct SA/FC), for example, it was held that a magistrate exercising ministerial functions under s.18 of the Service and Execution Process Act 1901 (Cth) (although not as persona designata) had an implied power to adjourn proceedings for a reasonable time and upon reasonable grounds. Compare the limited terms of s.19(4) of the Extradition Act.
Yet in the end, as Grassby v The Queen makes clear, the question whether the magistrate has an implied power to stay or otherwise terminate the proceedings as an abuse of process must depend on the construction of the legislation. Despite the considerations to which we have referred, the Extradition Act contains provisions which suggest that there is no room for an implication that a magistrate performing the functions specified by s.19 has power to stay the proceedings on the ground that they constitute an abuse of process.
The objects of the Extradition Act include the codification of the law relating to the extradition of persons from Australia (s.3(a)). While Ex Parte Hicks and Zoeller v Federal Republic of Germany show that the Extradition Act does not exclude all implied powers from the courts, s.3(a) suggests that the Act is intended to be an exhaustive statement of the circumstances in which proceedings under s.19 can be terminated. This view of the legislation receives support from the circumscribed role to be performed by a magistrate under the Extradition Act.
It is clear that certain issues relating to extradition applications are reserved exclusively for the consideration of the Attorney-General, rather than a magistrate acting under s.19 (or, for that matter, a court reviewing the magistrate's order under s.21). For example, in proceedings under s.19 of the Extradition Act, s.11(6) provides that no "limitation, condition, qualification or exception" contained in a bilateral extradition treaty has the effect of requiring or permitting a magistrate to be satisfied of any matter other than those set out in s.19(2). Thus, should a bilateral treaty create an additional exception to the circumstances in which extradition is required, it is the Attorney-General who is to determine whether the exception applies: see s.22(3)(e).
Similarly, the Attorney-General has power to terminate the extradition process at a number of points. As DPP v Kainhofer recognises, the Attorney-General's functions are independent of functions performed by magistrates under ss.12 and 19 of the Extradition Act. Proceedings under s.19 cannot take place unless the Attorney-General issues a s.16 notice. The Attorney-General is not to issue a notice unless of the opinion (inter alia) that the person is an "extraditable person" (ss.6, 16(2)(a)(i)) and must not issue the notice if of the opinion that there is an "extradition objection" (ss.7, 16(2)(b)). The issue of the notice is a matter ultimately for the Attorney-General's discretion (s.16(1)), subject to the opportunity to seek judicial review under s.39B of the Judiciary Act. Section 17(1) specifically contemplates that a person on remand and in custody under s.15 must be released if the Attorney-General decides not to issue a s.16 notice or if the Attorney-General "considers for any other reason that the remand should cease" (s.17(1)(b)).
Where a magistrate has determined that a person is eligible for surrender (and the opportunities for review or further appeal under s.21 are exhausted), it is the Attorney-General who determines whether the person is to be surrendered (s.22(2)). In other words, the role of the magistrate (and the court on review or subsequent appeal) is limited to determining the person's eligibility for surrender; neither the magistrate nor the court is the final decision-maker. Section 22(3) provides that the eligible person is only to be surrendered if a number of conditions are satisfied. One condition is that the Attorney-General, in his or her discretion, considers that the person should be surrendered: s.22(3)(f). It is therefore a matter for the Attorney-General's discretion, assuming all other criteria are satisfied, as to whether the person eligible for surrender is actually extradited to the country seeking that person's extradition.
The most important consideration, in determining whether a magistrate performing functions under s.19 of the Extradition Act has an implied power to stay the proceedings as an abuse of process, is the language used in that section. The terms of s.19 are very difficult indeed to reconcile with any such implied power. Section 19(1) provides that, where the four specified preconditions are satisfied, the magistrate "shall conduct proceedings to determine whether the person is eligible for surrender". The mandatory language is significant. Moreover, the magistrate is required to conduct the proceedings for the specified purpose and only for that purpose. Section 19(9) provides that, where the magistrate determines that the person is eligible for surrender to the extradition country, the magistrate "shall...order" that the person be committed to prison to await surrender or, alternatively, release pursuant to an order made by the Attorney-General. Section 19(10) provides that where the magistrate determines that the person is not eligible for surrender the magistrate must order that the person be released. Clearly, s.19 contemplates only two possible outcomes of the proceedings the magistrate is required to conduct. The first is a determination that the person is eligible for surrender; the second is that the person is not eligible for surrender. This construction of s.19 is confirmed by s.15(2), which requires a person to be remanded by a magistrate in custody or on bail "for such period or periods as may be necessary for proceedings under section 18 [which deals with consent to surrender] or 19, or both, to be conducted".
It is true, as was pointed out in argument, that s.19(2) of the Extradition Act says that, for the purposes of s.19(1), a person is "only eligible for surrender...if" four specified conditions are satisfied. Section 19(2) does not use the formula "if and only if". The language of s.19(2) is arguably consistent with factors other than the four specified matters being taken into account in determining whether a person is eligible for surrender, although this does not seem to have been the view taken in DPP v Kainhofer, at 537, 539. Indeed, the carefully defined administrative sequence referred to in DPP v Kainhofer, at 538, whereby different repositories exercise discrete powers, supports the view that the function of a magistrate under s.19 is intended to be self-contained and limited. However, it is not necessary to decide whether s.19(2) permits a magistrate to consider whether factors other than the four specified matters should be taken into account. Even if it does, s.19(2) does not empower the magistrate to refuse to make a decision that a person is or is not eligible for surrender, on the ground that the proceedings constitute an abuse of process. Section 19 contemplates that the magistrate will proceed to make a determination as to whether the person is eligible for surrender. It does not contemplate that the proceedings will be terminated in some other way.
The effect of a decision by a magistrate exercising functions conferred by s.19 of the Extradition Act is very similar, although not identical, to the effect of a decision by a magistrate conducting proceedings under s.41 of the Justices Act. The decision of the magistrate under s.19, that a person is eligible for surrender, does not determine whether the person will be surrendered to the requesting country; that is a matter for the Attorney-General. In that respect, s.19 proceedings are like committal proceedings, since a decision to commit for trial does not mean that the accused will in fact stand trial; that decision rests with the prosecuting authorities. However, a determination by a magistrate that a person is eligible for surrender is a necessary preliminary to a person being surrendered for extradition. By contrast, a person can be required to stand trial for an indictable offence even though a magistrate has decided that the evidence is insufficient to put the person on trial since the prosecuting authorities may file an ex officio indictment. The differences between the two processes are somewhat narrowed by the fact that, as Wiest v DPP decides, a determination that a person is not eligible for surrender does not finally decide that issue and a fresh application can be brought. Nonetheless, some differences remain.
It is not enough, however, to distinguish Grassby v The Queen from the present case to point out that these differences exist. Whether the magistrate has an implied power to terminate the proceedings for an abuse of process must depend on the legislative intention, as revealed by the language and structure of the Extradition Act. To adopt what was said by Dawson J in Grassby v The Queen, there is no room in the face of the statutory obligations contained in s.19, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided in the section itself.
F. Other Australian Authorities
We were referred to two decisions of the Full Court in which the question of abuse of process in relation to extradition proceedings was considered. In Forrest v Kelly, the Full Court rejected a submission that the magistrate, acting under s.19 of the Extradition Act, should have entertained an argument that the proceedings should be dismissed as an abuse of process. The abuse of process was said to be the delay by the United States authorities in requesting the surrender of the appellant. The Court stated (at 79), that the
"provisions of the Extradition Act which apply to this case confer no power on a magistrate to dismiss an application for the surrender of a person on the ground that it represents an abuse of process or that delay would cause any trial in the requesting country to be unfair."
After referring to a Canadian authority and to some dicta in Wiest v DPP, the Court concluded that the magistrate had no power to stay extradition proceedings by reason of delay. The Court also pointed out that delay could be taken into account by the Attorney- General in making the determination required by s.22(3) of the Extradition Act. Although the Court did not refer to Grassby v The Queen, its conclusion is consistent with our own.
In Wiest v DPP, a case which pre-dated Grassby v The Queen, a claim was made that proceedings under the Extradition (Foreign States) Act 1966 (Cth) were an abuse of process because a prior unsuccessful application had been made. It was held that the second application did not constitute an abuse of process. All members of the Court, obiter, expressed the view that a remedy would be available for an abuse of process. Burchett J (at 486-487) said that the reason why repeated applications for extradition might be an abuse of process was that they could be characterised as having been brought for an improper purpose. His Honour saw the principle as being closely analogous to the ordinary principle of administrative law by which an excess of power is restrained. His Honour did not direct attention to whether the language of the 1966 Act was compatible with the exercise of such a power; this was the issue subsequently considered by the High Court in Grassby v The Queen.
Gummow J (at 527-528) thought that judicial review was the remedy for the institution of repetitious procedures. His Honour accepted that the ADJR Act did not apply to decisions by a magistrate under the 1966 Act, but he observed that s.39B of the Judiciary Act provides a means of judicial review of administrative action. His Honour did not deal with the difficulty that a magistrate exercising powers under the 1966 Act, as in the case of the Extradition Act itself, is not an officer of the Commonwealth: DPP v Kainhofer, at 591-592, per Toohey J. Nor did his Honour consider whether the terms of the 1966 Act were compatible with the exercise of a jurisdiction to terminate proceedings as an abuse of process. See also at 483, per Sheppard J.
We do not think that the dicta in Wiest v DPP warrant a conclusion other than the one we have reached on the basis of the reasoning in Grassby v The Queen.
G. The UK Position
We were referred to English authorities on the scope of the power to terminate extradition proceedings as an abuse of process. The House of Lords has repeatedly held, both in relation to the Extradition Act 1870 (UK) and the Extradition Act 1989 (UK), that a magistrate's court has no power to refuse to commit a fugitive if the statutory requirements are satisfied: Atkinson v United States of America Government [1971] AC 197; Reg v Governor of Pentonville Prison; Ex parte Sinclair [1991] 2 AC 64, at 75-81; In re Schmidt [1995] 1 AC 339, at 373-380. However, the United Kingdom legislation was and is in different terms to the Extradition Act. While the conclusion we have reached is similar to the position adopted in the United Kingdom, the authorities are of little assistance because the respective statutory schemes are different.
V. DECLARATORY RELIEF: JURISDICTIONAL ISSUES
A. Common Ground
The appellant filed written submissions to support the contention that this Court had jurisdiction to determine an appeal from the refusal of Beach J to grant declaratory relief in the exercise of the inherent jurisdiction of the Supreme Court. In addition to counsel already appearing for the appellant, Dr Jessup QC participated in the preparation of these submissions. The respondent's written submissions in reply were prepared by Ms King QC and Mr Hanks.
There was a good deal of common ground in the submissions. The respondent accepted the appellant's contention that the jurisdiction of this Court on the appeal from the orders of Beach J embraces three elements:
(i) First, the jurisdiction to hear and determine the appeal from the order of Beach J confirming the order of the magistrate made under s.19(9) of the Extradition Act. This jurisdiction is conferred by s.21(3) of the Extradition Act read together with s.24(1)(e) of the Federal Court Act. These provisions constitute an exercise of the powers conferred by s.77(i) of the Constitution to define the jurisdiction of any federal court with respect to any of the matters mentioned in ss.75 and 76 of the Constitution. The "matters" include those arising under any laws made by the Parliament: Constitution, s.76(ii); compare Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, at 506-507; Fencott v Muller (1983) 152 CLR 570, at 602. It is well established that the power conferred by s.77(i) of the Constitution extends to defining the appellate jurisdiction of federal courts, in addition to their original jurisdiction: Ah Yick v Lehmert (1905) 2 CLR 593; Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, at 559-563, per Taylor J; Cockle v Isaksen (1957) 99 CLR 155, at 163-165, per Dixon CJ, McTiernan and Kitto JJ. (ii) Secondly, such accrued jurisdiction as is necessary to resolve the "matter" - that is, the "subject matter for determination in a legal proceeding": In re Judiciary and Navigation Acts (1921) 29 CLR 257, at 265; Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557, at 586-587; Moorgate Tobacco Ltd v Philip Morris Ltd (1980) 145 CLR 457, at 480. The accrued jurisdiction extends to the resolution of the whole matter between the parties, unless it can be shown that there is some distinct and unrelated non-federal claim: Moorgate v Philip Morris, at 481-482; Philip Morris Inc v Adam Brown at 475; Fencott v Muller, at 606-608. A claim is ordinarily inseverable from the federal claim if they "so depend on common transactions and facts that they arise out of a common substratum of facts": Philip Morris Inc v Adam Brown, at 512. It has been said that it is "a matter of impression and of practical judgment whether a non- federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter": Fencott v Muller, at 608. In making that judgment, it is necessary to bear in mind that a "judicial power which is not exercised to determine the whole of a controversy is, generally speaking, not appropriately and conveniently exercised": ibid. (iii) Thirdly, the jurisdiction conferred on the Court by s.32 of the Federal Court Act in respect of matters, not otherwise within its jurisdiction, that are associated with matters in which the jurisdiction of the Court is invoked.
The appellant submitted that this Court had accrued jurisdiction to hear the whole of the controversy between the parties, including the appeal from Beach J's refusal to grant declaratory relief. There was no reason in logic or principle why the principles governing the scope of the accrued jurisdiction in relation to the Court's original jurisdiction should not apply to the exercise of the Court's appellate jurisdiction.
According to the appellant, the appeal involved a single matter, which had a federal aspect (the appeal pursuant to s.21(3) of the Extradition Act) and a related non-federal aspect (the appeal from Beach J's refusal to grant declaratory relief). While the claim at first instance for declaratory relief invoked the Supreme Court's inherent jurisdiction, that claim arose out of the same sub-stratum of facts as was involved in the application for review of the magistrate's order made under s.19(10) of the Extradition Act. The position was the same on appeal, since the question of whether declaratory relief should have been granted was related to the issues presented by the appeal under s.21(3) and arose out of the same facts.
The appellant relied on the reasoning of the Court in Langer v Australian Electoral Commission (No.2) (1996) 59 FCR 463 (FCA/FC). In that case, the Supreme Court, as a "prescribed court" for the purposes of the Commonwealth Electoral Act 1918 (Cth) (the "Electoral Act"), granted an injunction to restrain the appellant from certain conduct prohibited by the Act. The Supreme Court was invested with federal jurisdiction with respect to all matters arising under s.383 of the Electoral Act (which empowered the Court to grant an injunction to restrain a contravention of the Act): s.383(8). Following breaches of the injunction, the Supreme Court sentenced the appellant to a term of imprisonment for contempt.
Appellate jurisdiction was conferred on the Federal Court "from a judgment or order of a prescribed court exercising jurisdiction under [s.383]": s.383(9).
An appeal against the orders granting the injunction was dismissed: Langer v Australian Electoral Commission (No.1) (1996) 59 FCR 450. A further appeal was brought from the sentence imposed by the trial Judge in the contempt proceedings. This Court held that there was jurisdiction to hear the further appeal (at 466-467):
"In our opinion, it follows from a consideration of the circumstances in which the order was made by Beach J on 14 February and from its mixed object, that important elements in the decision to make that order were the validity and correctness of the decision to grant the injunction made on 8 February, and consequently, upholding the injunction as an exercise of judicial power. It further follows, in our view, that the presence of these elements may be seen as sufficiently close to the application for the injunction itself to warrant the characterisation of the proceedings for contempt as part of the same 'matter'. That is to say, we are of the opinion that the investment of federal jurisdiction under s.383, both at first instance and on appeal, carries with it, not only the jurisdiction to hear and determine the application for injunction, but also, as an incident of that grant of jurisdiction, and as part of the same 'matter', the power to deal with a charge of contempt for breach of an order made in that connection. This conclusion flows, we think, from the settled principles which establish the existence of this Court's accrued jurisdiction, notwithstanding the dismissal of the appeal from the grant of the injunction (see, eg, Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219). Put differently, we are of the view that the decision at first instance both to grant the injunction and to enforce it by the sentence imposed were, in truth, part of the same 'matter'. It must follow, we think, that the position on any appeal, in terms of jurisdiction, must be the same, and that absent a frivolous or colourable claim, accrued or pendent jurisdiction on the appeal does not depend upon the success of the federal claim (see also s.22 of the Federal Court of Australia Act; cf Pitfield v Franki (1970) 123 CLR 448 at 459; R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 29. See further the discussion of the analogous American cases in Wright, Law of Federal Courts (5th ed), pp.98-99, 113). If it be needed, we are also of the view that the 'associated' jurisdiction conferred by s.32 of the Federal Court of Australia Act would be available to entertain the present aspect of the appeal. To borrow the language of Davies J in International Currency Trading Corporation Pty Ltd v Deutsche Bank AG (1994) 94 ATC 4,475 at 4,483, the claims being the appeal against the injunction and the appeal against the order of sentence enforcing the injunction are 'intermingled' so as to attract the Court's associated jurisdiction for present purposes."
Up to this point, it is fair to say that the respondent accepted the appellant's argument. We think that the respondent was correct to do so. The application for declaratory relief in the Supreme Court and the application for review of the magistrate's decision under s.21(1) of the Extradition Act, rested on essentially the same grounds. While the former invoked the inherent jurisdiction of the Supreme Court, the applications relied on the same circumstances to demonstrate that the proceedings conducted by the magistrate were an abuse of process. The decision of the Supreme Court to refuse declaratory relief was made in the same "matter" as the decision to confirm the magistrate's order. As was said in Langer v AEC (No.2), we think that the position must be the same on appeal.
B. The Point of Divergence
While accepting the appellant's argument to this point, the respondent resisted the conclusion that this Court's accrued jurisdiction extended to determining the appeal from Beach J's refusal to grant declaratory relief. The respondent did so on the ground that the Supreme Court lacked jurisdiction to declare the proceedings before the magistrate an abuse of process. This was because (so it was said) the inherent jurisdiction of the Supreme Court does not extend to administrative proceedings conducted under Commonwealth law, or at least not to proceedings under the Extradition Act.
It will, of course, be necessary to consider the respondent's argument about the scope of the Supreme Court's inherent jurisdiction. However, the mere fact that that argument ultimately may prove to be well-founded does not mean that this Court lacks jurisdiction to determine whether the argument should be accepted. The question whether the Supreme Court had jurisdiction to declare that the proceedings under s.19 constituted an abuse of process formed part of the "matter" which Beach J decided. The appeal from Beach J raises the same question. That question and the other questions raised on the appeal arise out of a common substratum of facts. To adopt the language used in Langer v AEC (No.2), unless the appellant's reliance on the inherent jurisdiction of the Supreme Court can be characterised as "frivolous or colourable" - which the respondent did not suggest - that aspect of the appeal falls to be determined in the accrued jurisdiction of the Court. A claim can form part of a matter even if it ultimately does not succeed.
VI. THE SUPREME COURT'S INHERENT JURISDICTION
The respondent accepted that the Supreme Court of Victoria, as the "superior Court of Victoria with unlimited jurisdiction" (Constitution Act 1975 (Vic), s.85(1)), has inherent jurisdiction to make orders protecting inferior courts and tribunals against any abuse of their processes: Herron v McGregor (1986) 6 NSWLR 246, at 250-252; John Fairfax and Sons Pty Ltd v McRae (1955) 93 CLR 351, at 363. The jurisdiction extends to both civil and criminal proceedings: Williams v Spautz (1992) 174 CLR 509, at 518-521. In Walton v Gardiner, the joint judgment of Mason CJ, Deane and Dawson JJ (at 391-392) regarded it as settled that the supervisory jurisdiction of the New South Wales Court of Appeal extends, in the absence of legislative intervention, to making orders staying proceedings of a disciplinary tribunal on the ground that they constitute an abuse of the tribunal's process.
The respondent argued that the inherent jurisdiction of the Supreme Court of Victoria does not extend to an exercise of administrative power by a magistrate as persona designata pursuant to Commonwealth law. The magistrate exercising powers under s.19 of the Extradition Act does so, so it was said, outside the State's judicial or administrative system. This followed from two propositions, to which reference has already been made:
- a magistrate performing functions under s.19 of the Extradition Act acts as persona designata; and - the magistrate does not exercise the judicial power of the Commonwealth, but makes an administrative decision, the effect of which is to fulfil one of the conditions precedent to a consideration by the Attorney-General, under s.22 of the Extradition Act, whether the person is to be surrendered to the requesting country.
Alternatively, the respondent contended that the legislative structure is intended to ensure that the only jurisdiction available to the Supreme Court is that conferred by s.21(1) of the Extradition Act.
We do not think it is necessary to decide whether the first, more sweeping argument relied on by the respondent is correct. In our view, the second submission is well-founded. We are prepared to assume that, in the absence of legislation to the contrary, the Supreme Court's inherent jurisdiction might allow it to stay proceedings conducted by an administrative decision-maker acting persona designata under Commonwealth law, on the ground that the proceedings constitute an abuse of process. Even so, in our view, the Supreme Court in the present case did not have power to terminate the proceedings conducted by the magistrate under s.19 of the Extradition Act. In our view, the powers of the Supreme Court in relation to those proceedings were limited to the power of review conferred by s.21(1) of the Extradition Act.
It is useful to start with the restrictions on the jurisdiction of the Supreme Court of a State to grant relief in respect of an administrative decision made under Commonwealth legislation. The most important for present purposes are to be found in s.9 of the ADJR Act:
"9(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review - (a) a decision to which this section applies...; (b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies; (c) a failure to make a decision to which this section applies; or (d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power. (2) In this section- "decision to which this section applies" means - (a) a decision that is a decision to which this Act applies; or (b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1...; "officer of the Commonwealth" has the same meaning as in paragraph 75(v) of the Constitution; "review" means review by way of (a) the grant of an injunction; (b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or (c) the making of a declaratory order."
Schedule 1, which sets out the classes of decisions to which the ADJR Act does not apply, specifies "decisions under the Extradition Act" (para (r)). See also s.3(1) of the ADJR Act, which defines "decisions to which this Act applies".
Section 9 gives rise to some questions of construction. For example, it may be difficult to determine whether a particular claim amounts to an application to "review a decision". In this connection, a distinction has been drawn between "a review of a decision on the one hand and a determination of the correctness or otherwise of a question which has been the subject of a decision on the other":
Delmore Pty Ltd v Commonwealth [1985] 2 NSWLR 179, at 185, per McLelland J.
The written submissions did not analyse whether the application to the Supreme Court in the present case for declaratory relief constituted an application to "review" the magistrate's decision under s.19 of the Extradition Act. A nice question might arise as to whether such an application is for "review" of the magistrate's decision or whether it is an attempt to determine the correctness of a question which the magistrate held that he was unable to deal with. An examination of the scope of s.9(1)(a) of the ADJR Act might also require consideration of the concept of a "decision" for the purposes of that Act, having regard to the principles stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
Leaving these questions to one side, the importance of s.9 of the ADJR Act for present purposes is that it demonstrates that there is no general jurisdiction on the part of State Supreme Courts to review (in any of the ways specified in s.9(2)) decisions of an administrative character made under Commonwealth legislation. On the contrary, the Supreme Courts are excluded from any such role, regardless of whether or not the decisions are amenable to review under the ADJR Act. The exclusion of State Supreme Courts from the field of judicial review of administrative decisions is reinforced by s.38(e) of the Judiciary Act 1903 (Cth), which makes the jurisdiction of the High Court exclusive of the jurisdiction of State courts in matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth. By contrast, the Federal Court has jurisdiction in such matters under s.39B of the Judiciary Act.
This background should be borne in mind in determining whether the terms of the Extradition Act are compatible with the Supreme Court of a State exercising its inherent jurisdiction to terminate proceedings under s.19 of the Extradition Act as an abuse of process. We have already referred to the mandatory language employed in s.19. Just as that language is incompatible with an implied power in the magistrate to terminate the proceedings under s.19 as an abuse of process, in our opinion it is incompatible with the Supreme Court, in the exercise of its inherent jurisdiction, determining that the proceedings are an abuse of process. It will be recalled that s.19(1) provides that if the four conditions specified in the sub-section are satisfied, the magistrate "shall conduct proceedings to determine whether the person is eligible for surrender". The specification of the four preconditions, one of which is the issue of a s.16 notice by the Attorney-General, coupled with the language requiring the magistrate to conduct the proceedings for the nominated purpose, leaves no room for the exercise of a power by a State court to terminate the proceedings.
This conclusion receives support from the holding in DPP v Kainhofer that proceedings under s.19 of the Extradition Act constitute but one step in the administrative sequence leading ultimately (in an appropriate case) to extradition. Section 9(1)(d) of the ADJR Act prevents the Supreme Court from reviewing a decision by the Attorney-General to issue a s.16 notice. It is difficult to see how the Supreme Court could intervene to prevent the Attorney- General issuing such a notice on the ground that the extradition proceedings would constitute an abuse of process. In these circumstances, it would be curious if the Supreme Court could intervene at the point at which a magistrate, acting as persona designata, conducts proceedings to determine whether the relevant person is eligible for surrender.
Federal jurisdiction is conferred on the Supreme Court by s.21(1) of the Extradition Act to review an order made by a magistrate under s.19. The precise scope of the review contemplated by s.21(1) has not yet been authoritatively determined: cf Todhunter v USA, at 80-81. But the powers granted to the Supreme Court (or the Federal Court if the application is made to it) are limited to confirming the magistrate's order or quashing it and (in the latter case) directing the magistrate to make an order under s.19(9) or s.19(10) as may be appropriate: s.21(2). The Court is limited, when conducting its review, to the material that was before the magistrate. These narrowly confined provisions lend no support to the contention that it was intended that the Supreme Court's jurisdiction under the Extradition Act to review a magistrate's determination should co-exist with its inherent jurisdiction to terminate the proceedings before the magistrate as an abuse of process.
VII. THE ORIGINAL JURISDICTION OF THE FEDERAL COURT
The written submissions addressed the question of whether the Federal Court, in the exercise of its original jurisdiction, has power to terminate proceedings under s.19 of the Extradition Act, on the ground that they constitute an abuse of process. There is no need to resolve this question, since the appellant at no stage has sought to invoke the original jurisdiction of the Federal Court. It is enough for us to say that, for similar reasons to those we have already given, we doubt that this Court has jurisdiction to grant declaratory relief of the kind sought by the appellant in the present proceedings. It must be remembered that, although the Court has implied powers, it does not have an "inherent jurisdiction": Parsons v Martin (1984) 5 FCR 235 (FCA/FC), at 240.
VIII. ADDITIONAL ARGUMENTS
A. Extradition Objection
The appellant submitted that both Mr Coburn and Beach J erred in failing to hold that he had demonstrated substantial grounds for believing there was an extradition objection in relation to the offences for which his extradition is sought: see s.19(2)(d) of the Act. It will be recalled that s.7 of the Act states the circumstances under which there is an extradition objection in relation to an extradition offence. One of these circumstances is that the person "has undergone the punishment provided by the law of... Australia, in respect of...another offence constituted by the same conduct as constitutes the extradition offence": see s.7(e). The appellant argued that this provision applied to him. Counsel said he "has undergone the punishment provided by the law of Victoria for the criminality in which he engaged between 1984 and 1988 because he has been punished for that component of the total criminality upon which the Crown elected to proceed".
1201 We think it is incorrect to describe the situation in that way. Whatever its implications in relation to abuse of process, the fact is that the appellant was punished only for his conduct in the period 1986 to 1988, whereas the extradition application relates to offences that are alleged to have occurred in 1984 and 1985. The relevant conduct being different, it is not correct to say this case falls within s.7(e).
B. Effect of the Treaty
As a variant of this argument, the appellant pointed to Article 4 para.1(d) of the Treaty, set out earlier. It will be recalled that this paragraph provides that extradition shall not be granted "if final judgment has been passed in the Requested State or in a third state in respect of the offence for which the person's extradition is requested". He also relied on Article 4 para.(1)(e) which allows the Requested State to take into account the question whether extradition of the person "would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment".
For the same reasons as apply to s.7(e) of the Act, it seems to us that this case does not fall within para.1(d) of Article 4 of the Treaty. We understand the view that it falls within para.1(e), but this was not a matter for the magistrate to determine. The matters that a magistrate has to consider in proceedings to determine eligibility for surrender are those set out in s.19(2) of the Act; whatever the proper construction of s.19(2), those matters do not include restrictions or limitations arising under a treaty. This is made clear by s.11(6) of the Act, which reads:
"(6) For the purposes of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a),(b),(c) or (d)."
We do not see any merit in the arguments based on the Treaty.
IX. CONCLUSION
In summary, the conclusions we have reached are these:
- The magistrate had no implied or inherent power to terminate the proceedings under s.19 of the Extradition as an abuse of process. - This Court has jurisdiction to hear and determine the appeal from the orders made by Beach J, including his Honour's dismissal of the application for a declaration that the proceedings before the magistrate constituted an abuse of process. - The Supreme Court of Victoria had no jurisdiction to declare that the proceedings before the magistrate constituted an abuse of process. - There is no substance in the appellant's arguments based on s.7(e) of the Extradition Act or the terms of the Treaty.
It follows that Beach J correctly confirmed the order made by the magistrate and dismissed the application for declaratory relief. The appeal should therefore be dismissed with costs, including reserved costs.
Before leaving this case we wish to make an additional comment. Professor Shearer has remarked that the Extradition Act is a "substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion": (1994) 68 ALJ 451, at 451. In DPP v Kainhofer, at 541, Toohey J acknowledged that this comment has force. While determinations made by the Attorney-General under ss.16 and 22 of the Extradition Act can be reviewed pursuant to s.39B of the Judiciary Act, that review is limited in scope. Even if the Attorney-General ultimately decides that a person should not be surrendered, that person may be required to spend a considerable time in custody without any court having power to determine whether there is evidence to support the charges and, as this case shows, without a court having power to consider whether the proceedings against the person constitute an abuse of the court's process.
We emphasise that as yet there has been no occasion for the Attorney-General to consider whether the appellant should be surrendered pursuant to s.22 of the Extradition Act. It is for the Attorney-General to make the judgments required by s.22, including whether there are circumstances requiring or permitting surrender of the appellant to be refused. As already pointed out, one of the circumstances in which the Treaty provides that extradition may be refused is where the requested State considers that the extradition of the person would be unjust, oppressive or too severe a punishment: Art. 4, para.2.
We have already referred to the course of events which led to the appellant pleading guilty to offences occurring between February 1986 and January 1988. The effect of what we have held is that, in a case where an application for the surrender of a person institutes what otherwise might be an abuse of process, or where the extradition of the person would be unjust, oppressive or too severe a punishment, only the Attorney-General can prevent that person's surrender for extradition. At all stages of the extradition litigation it has been common ground between the parties that, if the appellant had been charged with and convicted of offences committed in 1984 and 1985, the resultant increase in minimum sentence would have been a matter of months rather than years. The appellant has already spent eight months in custody awaiting the determination of the extradition proceedings. This appears to be at least equal to the additional length of the custodial sentence he would have been required to serve had he been convicted of offences in respect of the period January 1984 to January 1986. The material before us also indicates that, if the appellant is extradited to the Philippines, he is likely to face a further term of imprisonment of 15 years if found guilty of those offences. We have no reason to doubt that the Attorney-General will give the most anxious consideration to these matters before making the determination required by s.22(3)(e) of the Extradition Act.
13
46
0