Pauga v Chief Executive of Queensland Corrective Services (No 6)
[2022] FCA 1096
•16 September 2022
FEDERAL COURT OF AUSTRALIA
Pauga v Chief Executive of Queensland Corrective Services (No 6) [2022] FCA 1096
File numbers: SAD 135 of 2021 Judgment of: COLVIN J Date of judgment: 16 September 2022 Catchwords: EXTRADITION - application for issue of a writ of habeas corpus or orders in the nature of habeas corpus - application to quash various allegedly invalid instruments recording remand of applicant in custody - where applicant remanded in custody under s 15 of the Extradition Act 1988 (Cth) - where applicant subsequently committed to prison after warrant of committal issued by magistrate under s 19(9) of the Extradition Act - whether magistrates acted judicially when required to carry out functions as personae designata - whether magistrate erred in conducting s 19 proceedings - application of principles of res judicata, issue estoppel and abuse of process - whether applicant afforded procedural fairness in conduct of s 19 proceedings - whether appropriate to order release of applicant from custody on finding of procedural unfairness - order made to set aside warrant of committal and remit matter to magistrate - order remanding applicant in custody pending remittal - application otherwise dismissed
STATUTORY INTERPRETATION - general principles of construction - construction of s 15, s 16, s 17, s 18, and s 19(1) of the Extradition Act 1988 (Cth) - whether 'brought as soon as practicable before' requires physical attendance of person arrested - whether remand 'for such period or periods as may be necessary for proceedings … to be conducted' contemplates a single remand or remand from time to time - whether 'to appear' requires physical attendance of remanded person - whether provisions that apply where person is on remand under s 15 require remand as a matter of fact or require lawful remand - character of pre-conditions in s 19(1)
EXTRADITION - bail - consideration of nature of test to be applied where applicant challenges validity of detention - consideration of 'care and caution' test in common law bail applications for extradition cases - bail refused
Legislation: Extradition Act 1988 (Cth) ss 3, 5, 7, 12, 15, 16, 17, 18, 19, 21, 21A, 22, 45B
Extradition (Foreign States) Act 1966 (Cth) s 15
Judiciary Act 1903 (Cth) s 78B
Service and Execution of Process Act 1992 (Cth)
Extradition Regulations 1988 (Cth)
Corrective Services Act 2006 (Qld) s 6
Human Rights Act 2019 (Qld)
Justices Act 1886 (Qld) s 178C
Cases cited: AKW22 v Commonwealth of Australia [2022] FCA 869
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 727
BRF038 v The Republic of Nauru [2017] HCA 44
Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121
Chan v Minister for Justice and Customs [2001] FCA 170; (2001) 108 FCR 65
Coco v The Queen (1994) 179 CLR 427
Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Commonwealth of Australia v AJL20 [2021] HCA 21
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Dutton v O'Shane [2003] FCAFC 195; (2003) 132 FCR 352
EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409
Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309
Formica & Forni v Victoria Police [2020] VSC 719
Holt v Hogan (No 1) (1993) 44 FCR 572
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Knauder v Moore [2002] FCAFC 404; (2002) 127 FCR 327
Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251
Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50
Matson v Attorney-General (Cth) [2021] FCA 161
Matson v Attorney-General [2022] FCA 790
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169
Nathanson v Minister for Home Affairs [2022] HCA 26
North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569
Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2
Pauga v Chief Executive of Queensland Corrective Services [2022] FCA 244
Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684
Peniche v Vanstone [1999] FCA 1688; (1999) 96 FCR 38
Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; (2015) 255 CLR 231
R v A2 [2019] HCA 35; (2019) 269 CLR 507
R v Bolton; Ex parte Beane (1987) 162 CLR 514
R v Phillips [1922] All ER Rep 275
R v Secretary of State for the Home Department; Ex parte Turkoglu [1988] QB 398
R v Spilsbury [1898] 2 QB 615
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52; (2016) 260 CLR 340
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Tian Zhen Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507
Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225
Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105
United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246
von Arnim v Federal Republic of Germany [1999] FCA 1747
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Walton v Gardiner (1993) 177 CLR 378
Williams v The Queen (1986) 161 CLR 278
Winkler v Director of Public Prosecutions (1990) 25 FCR 79
Zentai v Honourable Brendan O'Connor [2009] FCA 1597
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
Division: General Division Registry: South Australia National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 440 Date of hearing: 22-23, 27-28 June and 7 July 2022 Counsel for the Applicant: Mr G Mancini with Mr GJ Finlayson Solicitor for the Applicant: Diaspora Legal Counsel for the First Respondent: Ms R Berry Solicitor for the First Respondent: Crown Law Counsel for the Third to Respondents: The Third to Seventh Respondents did not appear Counsel for the Eighth Respondent: Mr M McKechnie with Ms G Devereaux Solicitor for the Eighth Respondent: Commonwealth Attorney-General's Department Counsel for the First Intervener: Mr M McKechnie with Ms G Devereaux Solicitor for the First Intervener: Commonwealth Attorney-General's Department Counsel for the Second Intervener: The Second Intervener did not appear ORDERS
SAD 135 of 2021 BETWEEN: TALALELEI PAUGA
Applicant
AND: CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES
First Respondent
TINA PREVITERA
Third Respondent
PAUL BYRNE
Fourth RespondentANTONY GETT
Fifth RespondentROSEMARY GILBERT
Sixth RespondentBELINDA MERRIN
Seventh RespondentSAMOA
Eighth RespondentATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
First Intervener
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Second Intervener
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
11 JULY 2022
THE COURT ORDERS THAT:
1.The application for bail is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
SAD 135 of 2021 BETWEEN: TALALELEI PAUGA
Applicant
AND: CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES
First Respondent
TINA PREVITERA
Third Respondent
PAUL BYRNE
Fourth RespondentANTONY GETT
Fifth RespondentROSEMARY GILBERT
Sixth RespondentBELINDA MERRIN
Seventh RespondentSAMOA
Eighth RespondentATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
First Intervener
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
Second Intervener
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
16 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The determination by the third respondent that the applicant is eligible for extradition be quashed.
2.The warrant of committal of the applicant dated 9 July 2021 and signed by the third respondent be quashed.
3.The proceedings under the Extradition Act 1988 (Cth) in respect of which a warrant dated 14 July 2020 was issued for the arrest of the applicant and in respect of which he was arrested be remitted to a magistrate who has accepted the function and power to conduct proceedings under s 19 of the Extradition Act for such proceedings to be determined according to law.
4.The applicant be remanded in custody until 7 October 2022 or such further date as may be ordered by a judge of this Court.
5.There be liberty to apply as to the remand of the applicant.
6.Otherwise, the further remand of the applicant as required by s 15(2) of the Extradition Act shall be determined by a magistrate who has accepted the function and power to remand a person under s 15(2) of the Extradition Act.
7.Save as ordered herein, the application is dismissed.
8.The question of any order as to costs of the proceedings be reserved for determination on a date to be fixed.
9.On or before 7 October 2022 any party seeking an order for costs of the proceedings shall file a minute of proposed orders stating precisely the terms of the cost order sought together with submissions of no more than 5 pages and any affidavit in support.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
In July 2020, a warrant for the arrest of Mr Talalelei Pauga was issued under s 12 of the Extradition Act 1988 (Cth). It was issued following a request from the Independent State of Samoa. Thereafter, Mr Pauga was arrested and taken to the Brisbane Watch House. Four days later, he was transferred from the Brisbane Watch House to the Arthur Gorrie Correctional Centre (Correctional Centre). He claims that his detention has been and continues to be unlawful. Numerous grounds are advanced to support that claim. They are based upon alleged failures to conform to the requirements of the Extradition Act by various Queensland magistrates.
Speaking generally, the claims made concern the way in which Mr Pauga was purportedly remanded as well as the conduct of a hearing on 8 and 9 July 2021 (July Hearing) concerning whether Mr Pauga was eligible for surrender under the Extradition Act. The July Hearing was conducted by Magistrate Previtera, a Queensland magistrate (Primary Magistrate). At the conclusion of the July Hearing, her Honour signed a form of warrant ordering the committal to prison of Mr Pauga to await his surrender under the Extradition Act (Warrant of Committal).
By proceedings commenced in this Court in July 2021, Mr Pauga seeks an order that he be released from custody or that a writ of habeas corpus issue 'to show cause as to the lawfulness of [his] custody' (First Application). The First Application also seeks orders quashing various documents produced at or after the hearings before various Queensland magistrates in the period leading up to the July Hearing. All parties accept that the relevant authority conferred upon magistrates under the Extradition Act is administrative in character and is to be exercised as a persona designata.
The administrative character of the power exercised by magistrates under the Extradition Act has significance for the extent to which an attack may be raised in the context of proceedings in which a writ of habeas corpus or an order in the nature of habeas is sought. Where a warrant that is on its face valid and is sustained by orders made by a court then the warrant itself will sufficiently answer the application: Vasiljkovic v Honourable Brendan O'Connor [2010] FCA 1246 at [61]. In such a case, it would be necessary to seek to challenge the order by way of appeal or by way of prerogative relief having regard to the nature of judicial power. However, where, as here, the authority for the warrant is the exercise of executive power then it is possible to raise an issue as to the lawfulness of that exercise as a basis for relief in the nature of habeas corpus.
The contentions advanced to support the relief sought include claims that (a) Mr Pauga was not remanded as required by the Extradition Act; (b) the magistrates involved purported to exercise judicial power when the only authority they had was administrative power as personae designata; (c) some of the documents that have provided the basis for the detention of Mr Pauga were issued by court officers and not by the decision of any magistrate acting administratively; (d) there was a failure to accord procedural fairness in relation to the conduct of the July Hearing; and (e) the form of the Warrant of Committal does not conform to the requirements of the Extradition Act. In short, it is claimed that actions have been taken that are beyond the statutory authority conferred by the Extradition Act and, in consequence, the ongoing detention of Mr Pauga lacks lawful justification. A claim of apprehended bias on the part of the Primary Magistrate was not pressed (although it was a matter that was raised before her Honour on a number of occasions).
The proceedings were brought against Samoa, each of the Queensland magistrates who conducted hearings in the extradition proceedings concerning Mr Pauga and the Chief Executive of Queensland Corrective Services (Chief Executive). The Attorney-General for the Commonwealth intervened. In the course of interlocutory steps there were appearances for the Queensland magistrates in relation to disclosure orders sought against them. However, the Queensland magistrates submitted to any final order and did not appear at the final hearing.
The Chief Executive took a limited part in the final hearing. The position of the Chief Executive was that Mr Pauga was detained initially on the basis of documents that were issued after each appearance before a Queensland magistrate that stated that he had been remanded in custody (referred to in the proceedings as Form 44s) and thereafter on the basis of the Warrant of Committal. The Chief Executive maintained that the Form 44s and the Warrant of Committal were sufficient authority to detain Mr Pauga and it was not for the Chief Executive to go behind those instruments. Otherwise, the Chief Executive did not seek to be heard on any issue as to the validity of those instruments and whether they could or should be set aside as contended for by Mr Pauga. Rather, those aspects of the case advanced by Mr Pauga were addressed by Samoa and the Attorney-General as intervenor.
The Extradition Act also confers a statutory right to seek review of the making of an order that a person be committed to prison to await surrender: see s 21(1). By separate application, Mr Pauga has exercised the statutory right to seek judicial review of the order made at the July Hearing that Mr Pauga was eligible for extradition (Second Application). The Second Application assumed the validity of the Warrant of Committal and sought statutory review of the making of the order that led to its issue. The merits of the Second Application (which was heard immediately after the First Application) are considered in separate reasons to be published at the same time as these reasons.
Shortly prior to the scheduled hearing of the two substantive applications, those acting for Mr Pauga indicated that they were ready to proceed with applications by Mr Pauga for bail. Those applications had been flagged from the outset but there was considerable delay by those acting for Mr Pauga in identifying the basis for the applications. Shortly after hearing the two substantive applications, I heard the bail applications. After reserving my decision on those applications for a short time, I refused the applications and indicated that reasons for doing so would be published at the same time as the reasons on the substantive applications. Therefore, these reasons (and the separate reasons in respect of the Second Application) also deal with the question of bail.
Outcome
For the reasons which follow, the First Application should be allowed on the sole basis that Mr Pauga was not afforded procedural fairness at the July Hearing because of the pre-emptory refusal of his application to adduce oral evidence. All other claims and contentions should not be upheld. The Warrant of Committal should be set aside and the matter remitted for determination according to law. Mr Pauga shall be remanded in custody by order of this Court until the supervision of his remand is resumed by a Queensland magistrate.
I will reserve the question of any order for costs for later determination if the parties are unable to agree cost orders.
The contentions advanced by Mr Pauga expressed as propositions
The case advanced by Mr Pauga complains about the events that occurred on various dates in 2020 and 2021 when hearings were conducted before Queensland magistrates in Brisbane. Throughout that period, Mr Pauga was held in custody, initially on the basis that he had been arrested pursuant to an extradition arrest warrant and thereafter on the basis that he had been remanded in custody under s 15 of the Extradition Act.
The case advanced for Mr Pauga on the present application raised many separate contentions as to why his detention is unlawful. Ultimately, they came to be set out in a statement of grounds that was filed shortly prior to the final hearing. The statement of grounds was received on the basis that it was a submission setting out a comprehensive list of each contention advanced on the First Application. I explained the history of the circumstances in relation to the identification of the grounds of the First Application in Pauga v Chief Executive of Queensland Corrective Services (No 5) [2022] FCA 684. The statement of grounds was filed after those reasons were published. As the case for Mr Pauga at the final hearing was put on the basis that the only grounds that were pressed were those set out in the statement of grounds, I will confine myself to the contentions raised in that document. To be clear, evidence and submissions to be found in the materials that are not relevant to the matters listed in the statement of grounds will not be considered.
In due course, it will be necessary to consider in some detail the history of the appearances before various Queensland magistrates consequent upon Mr Pauga's arrest and then to address the contentions raised for Mr Pauga in that context. However, at this stage, it is possible to divide the contentions advanced in support of the First Application into the following propositions, namely:
(1)Contrary to the terms of s 15(1) of the Extradition Act, Mr Pauga was not brought before a magistrate as soon as reasonably practicable after his arrest with the consequence that he has never been lawfully detained.
(2)In making orders to remand Mr Pauga and the directions and orders as to the conduct of the July Hearing, the Queensland magistrates purported to exercise judicial power and thereby acted without any lawful authority.
(3)Certain of the instruments purporting to authorise the continuing detention of Mr Pauga in the period from his arrest until the July Hearing (being the Charge Sheet and Form 44s) were not valid because (a) their contents meant they were not valid and therefore did not authorise any remand under the Extradition Act; and (b) they were prepared and issued by persons other than the Queensland magistrates with the consequence that Mr Pauga was not lawfully detained.
(4)There was no remand ordered by the Primary Magistrate at the hearing on 30 October 2020 with the consequence that thereafter he was not lawfully detained.
(5)There was no jurisdiction to conduct the July Hearing unless Mr Pauga had been lawfully remanded and by reason of each of the matters stated in (1) to (4) he had not been lawfully remanded.
(6)There was no jurisdiction to conduct the July Hearing unless an application had been made to the Primary Magistrate for proceedings to be conducted under s 19 of the Extradition Act in relation to Mr Pauga and no such application had been made, with the consequence that the Primary Magistrate had no jurisdiction to issue the Warrant of Committal.
(7)There was no jurisdiction to conduct the July Hearing unless the Primary Magistrate considered that Mr Pauga had been allowed reasonable time in which to prepare for the conduct of the proceedings under s 19 of the Extradition Act and as the Primary Magistrate did not form that view before proceeding with the July Hearing the Primary Magistrate had no jurisdiction to issue the Warrant of Committal.
(8)Alternatively to (7), the consideration by the Primary Magistrate as to whether the applicant had been allowed a reasonable time in which to prepare for the conduct of the proceedings under s 19 of the Extradition Act was undertaken without affording procedural fairness to Mr Pauga.
(9)Alternatively to (7) and (8), the view of the Primary Magistrate that s 19(1)(d) of the Extradition Act had been met was formed in a manner that was arbitrary and capricious because the Primary Magistrate did not investigate the facts.
(10)The July Hearing was conducted without opportunity for Mr Pauga to make submissions or adduce evidence with the consequence that the Primary Magistrate did not consider whether there were any extradition objections.
(11)The Warrant of Committal was invalid by reason of the form in which it was issued.
(12)Section 15 of the Extradition Act does not authorise the remand of a person in prison.
The statement of grounds also includes claims in relation to the detention of Mr Pauga in the Brisbane Watch House after his arrest. It is alleged that he was held in the Brisbane Watch House from 20 August 2021 to 24 August 2021 without authority and was transferred from there to the Correctional Centre without authority. No oral submissions were advanced to explain the purport of those claims. In those circumstances, I treat them as alleged conclusions that are said to follow from the propositions. As best I can tell, that is mostly the nature of what is stated in paragraphs 16 and following of the statement of grounds.
An important premise for much of Mr Pauga's case
In order to support the issue of a writ of habeas corpus or an order in the nature of habeas corpus, an applicant must establish matters that bear upon the validity of the applicant's current detention. Past unlawful detention may give rise to a claim for damages for unlawful imprisonment but it is not relevant to the present application unless it can be said to infect the validity of Mr Pauga's current detention. I referred to the relevant authorities in AKW22 v Commonwealth of Australia [2022] FCA 869 at [14]‑[16]. As there explained, a person who was once detained without authority may subsequently become detained with authority. Accordingly:
… if the lawfulness of the current detention of a person depends solely upon current circumstances then it is only those circumstances that are to be examined. … If the lawfulness of the current detention depends wholly or partly on past circumstances then those circumstances must be evaluated. All of which is to expose the importance of considering the nature and extent of the particular power relied upon to justify detention. Whether past actions affect the lawfulness of the current detention depends upon the nature of the authority relied upon to detain the person.
Mr Pauga is not currently being detained on the basis that he is remanded under the provisions of the Extradition Act. Rather, his current detention is only sought to be justified by the Warrant of Committal. Therefore, it is necessary for Mr Pauga to advance a basis upon which the Warrant of Committal is unlawful or that some aspect of the past events means that his current detention is unlawful.
Structure of these reasons
There was no real factual dispute as to the course of events. Rather, the dispute concerned the proper legal characterisation of those events or the legal significance to be given to them. Therefore, I will begin the main part of my reasons by describing the chronology. I should be taken to have made findings in the terms set out in the parts of these reasons that describe the chronology (being the section describing the chronology of events from arrest to the July Hearing and the section concerning what occurred at the July Hearing before the Primary Magistrate).
I will then deal with each of the propositions advanced by Mr Pauga. In the course of doing so, I will address contentions advanced by Samoa and the Attorney-General for the Commonwealth as intervener (supported in some respects by the Chief Executive) to the effect that the application of principles of res judicata, issue estoppel or abuse of process (either separately or together) mean that Mr Pauga is unable to raise propositions (1), (2), (3) and (4) in these proceedings.
Finally, I will provide my reasons for refusing the bail application.
However, before addressing the propositions advanced by Mr Pauga, I will begin with a brief explanation of the statutory provisions and my consideration of the issues of statutory construction that arise concerning s 15 and s 19 of the Extradition Act. I will then turn to some general findings concerning the claim that the way in which the Queensland magistrates conducted hearings supports the claim that they acted judicially. I will also summarise the relevant principles concerning res judicata, issue estoppel and abuse of process.
The relevant provisions of the Extradition Act
General principles of construction
'The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose': SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), see also at [37]‑[39] (Gageler J). However, a very general purpose will not provide much context and the nature of the task, which requires the interpretation of the language of the statute, must be adhered to throughout: R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [32]‑[37] (Kiefel CJ and Keane J). The process should not be guided by making an a priori assumption about the purpose of the provision: Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 at [21]. It is the words of the statute that have constitutional effect and the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed: Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619 at [16]; and Tian Zhen Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446 at [28].
In the present case, no party sought to advance any purpose that should guide the proper construction of the provisions of the Extradition Act. Plainly, the broad purpose of the legislation is to provide for the manner in which persons may be extradited to and from Australia (see long title). The principal objects of the legislation are expressed in s 3 in the following terms:
The principal objects of this Act are:
(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.
In addition to due regard to context and purpose, where, as here, the legislative provision is concerned with a fundamental common law right or freedom such as the right to personal liberty then that right will not be abrogated, curtailed or overridden without unmistakable and unambiguous language: Coco v The Queen (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); and Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at [21] (Gleeson CJ) quoted with approval in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [15]; and North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41; (2015) 256 CLR 569 at [11] (French CJ, Kiefel and Bell JJ), see also R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 (Brennan J); and Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [20] (Gleeson CJ).
As to context, the meaning of particular provisions is to be considered within the scheme and framework of the legislation rather than read in isolation: Comcare v Banerji [2019] HCA 23; (2019) 267 CLR 373 at [136]‑[138].
Section 15(1)
Section 15(1) of the Extradition Act provides that:
A person who is arrested under an extradition arrest warrant shall be brought as soon as practicable before a magistrate or eligible Judge in the State or Territory in which the person is arrested.
Mr Pauga submits that s 15 requires a person to be brought physically before a magistrate or eligible Judge. The terminology 'brought before' is a time honoured phrase used in provisions that are designed to protect from arbitrary detention by ensuring that the ongoing detention of a person must be justified to a judicial officer, albeit in the present case a magistrate or judge exercising administrative power as a persona designata. It is language that is used to express the common law requirement that a person who is arrested must be brought before a justice of the peace or a court as soon as practicable: North Australian Aboriginal Justice Agency Limited v Northern Territory at [28] (French CJ, Kiefel and Bell JJ), [97] (Gageler J); and Williams v The Queen (1986) 161 CLR 278. The substantive significance of the words lies in the fact that they require prompt judicial scrutiny of the basis for ongoing detention (usually by the bringing of a charge). However, in the case of executive detention it requires that there be prompt regard to the source of any power to detain and whether there is any basis for the exercise of the power in respect of the person brought before the person entrusted with the relevant authority. It ensures conformity with fundamental limitations upon the extent to which there may be executive detention by requiring prompt consideration as to whether detention is justified by the limited circumstances in which such detention is constitutionally lawful.
It was submitted for Mr Pauga that the terminology 'brought before' also facilitated the examination of the person under arrest in order to ensure a correspondence between the identity of the arrested person and the identity of the person the subject of the charge (or whose ongoing detention was to be otherwise justified) and this could not occur without the person being physically present before the magistrate. It was further submitted that if a person is not brought before a magistrate as required then the consequence would be that the lawfulness of the arrest pursuant to the extradition arrest warrant would come to an end and the authority of the arrest warrant could not be relied upon thereafter as the lawful justification for Mr Pauga to be detained or re-arrested.
Under previous legislation dealing with extradition there was a reference to any magistrate before whom a person 'may be brought': s 15(1)(b) of the Extradition (Foreign States) Act 1966 (Cth). In Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 98, Wilcox and O'Loughlin JJ said of that provision:
If a person arrested under a warrant was remanded in custody to appear at a later date, it would be a natural use of language to describe him as being 'brought' before the magistrate on the remand day. Perhaps the phrase 'may be brought' less literally describes the position of a person remanded on bail. But such a person is required, by the terms of the remand and his bail, physically to appear before the magistrate on the remand day. In that sense he is 'brought' to the court. Although Mr Winkler was entitled to a discharge from his bail on 16 March 1988, he was not in fact discharged. He remained subject to the direction of the court and was required by the terms of his remand and bail to appear before the magistrate on subsequent occasions.
(emphasis added)
It may be accepted that a requirement for there to be a physical appearance before a judicial officer (or in the present case a judicial officer acting as a persona designata) affords a substantial protection for the arrested or detained person. It enables the judicial officer to question the person directly in circumstances where it is possible by direct observation not only to identify the person but also to hear any complaint concerning the lawfulness of the arrest. It is also possible to see whether answers are being given free from threat, intimidation or other oppressive conduct arising from the circumstances in which the person is being held (noting that there limits on the role of a magistrate in relation to identification for the purposes of extradition proceedings: Marku v Republic of Albania [2013] FCAFC 51; (2013) 212 FCR 50 at [74]). In the context of that aspect of the subject matter, it is significant that s 15 of the Extradition Act uses the phrase, well known to the common law, of 'brought before'. It is terminology which, in the context of arrest and detention, usually means 'physically brought before'.
The effectiveness of the protection afforded by the common law requirement would be substantially undermined if it could be met by some form of appearance that was not a physical appearance. Significantly, the circumstances in which an arrested or remanded person facing criminal charges may make a court appearance remotely are addressed by statute: see, for example, in Queensland, s 178C of the Justices Act 1886 (Qld). There is no such provision under the Extradition Act.
For those reasons, I conclude that s 15(1) requires a person arrested under an extradition arrest warrant to be physically brought before a magistrate or eligible Judge. As will emerge, that conclusion as to the meaning of the statute accords with views expressed by Crow J of the Supreme Court of Queensland when dealing with an application brought by Mr Pauga for relief in the nature of habeas corpus on the basis of claims that his arrest in August 2020 under the terms of the extradition arrest warrant and his subsequent detention were unlawful. His Honour also made findings to the effect that Mr Pauga had been physically brought before a magistrate 'as soon as practicable'. The significance of those findings is addressed below.
Section 15(2)
Section 15(2) provides that a person 'shall be remanded by a magistrate or eligible Judge in custody, or … on bail, for such period or periods as may be necessary for proceedings [required by the Act] to be conducted'. The requirement for remand ensures that the duration of the person's ongoing detention until hearing is subject to supervision. The remand is only to be for so long as is necessary for the extradition proceedings to be conducted, a matter to be adjudged by the magistrate or eligible Judge.
There is an issue between the parties as to whether s 15(2) contemplates a single remand for so long as is necessary for the required proceedings to be conducted (with the possibility that the remand may be in custody or on bail) or whether it contemplates that there may be a remand from time to time. The divergence in views concerns the meaning of the words 'for such period or periods as may be necessary for proceedings … to be conducted'.
Plainly, there is a statutory requirement for a person who has been arrested and brought before a magistrate as required by s 15(1) to then be remanded until the relevant proceedings have been conducted. In my view, the use of the words 'period or periods' indicates that the magistrate or judge has a discretion whether to remand to a nominated time or until the time of the proceedings (if known) and that the exercise of the discretion is to be informed by what may be necessary for the required proceedings to be conducted. The proceedings themselves may be divided up. For example, there may be an initial remand until a date when an application for bail is to be heard. There may be a remand until a hearing at which some preliminary argument as to the validity of the extradition arrest warrant is to be considered. There may be remand until a date when the steps that might be taken before the proceedings are conducted or are expected to be completed. In each case, such a remand would be for a period that was necessary for the proceedings to be conducted even though it was not a remand until a known date when the proceedings were to be concluded. The use of the word 'period' supports the conclusion that the remand must be to an identifiable date so that the duration of the detention (from one point in time to another) is known at the time of the remand. The importance of supervising the duration of the remand also supports such a construction.
If such a course were not possible then the person concerned would be required to be remanded in custody until the proceedings were concluded (which is a date that is unlikely to be known when the person is first arrested and brought before a magistrate as required) and therefore would not appear before the magistrate for any intermediate step in the proceedings, or alternatively there could be no intermediate step. Either of those alternatives would be impractical. As to the first alternative, it would be inconsistent with fundamental rights if part of the proceedings could occur without the person concerned being able to appear. As to the second alternative, there is no reason why the conduct of the proceedings must occur at a single hearing. It follows that I do not accept the contention advanced for Samoa that there must be a single remand for the proceedings or that there could be a remand of unspecified duration (being until the relevant proceedings were completed).
However, there is a particular significance to the first remand. Once a person has been 'brought as soon as practicable' before the magistrate or eligible Judge and remanded as required then the arrangements for the ongoing remand are a matter for the magistrate or eligible Judge. Further, the statutory imperative thereafter is to continue to remand the person for such period or periods as may be necessary. So, if there were an initial remand and then a failure to remand on some later occasion then the later failure would not provide the foundation for an order requiring the person to be released from custody. Rather, it would produce the consequence that the person must be remanded as necessary for the extradition proceedings to be conducted. The mandatory nature of the provision requiring remand must be given effect. The duty imposed may be enforced by mandamus, but a failure to perform the duty does not mean that a person is entitled to be released. In that respect, the required analysis bears some similarities to that undertaken in Commonwealth of Australia v AJL20 [2021] HCA 21 at [49]‑[53] (Kiefel CJ, Gageler, Keane and Steward JJ). A person who has been remanded is thereafter required to be remanded until the relevant proceedings under the Extradition Act have been conducted.
Therefore, I see no basis upon which some failure, by reason of administrative slip or oversight, to order a further remand at the end of a period of remand might found an application for an order that the person be released from detention. In such a case, unless it be shown that remand was no longer necessary for the extradition proceedings to be conducted, the appropriate order would be to require that the person be remanded for a period as may be necessary for the conduct of the required proceedings.
Section 15(4)
It may be noted that s 15(4) confers power upon the Attorney-General in respect of a person who is on remand under s 15(2) to issue a warrant in the statutory form authorising a police officer to take the person in custody 'to appear' before a magistrate or eligible Judge 'in a specified State or Territory'. It was suggested that the use of the terminology 'to appear' provided context that supported a construction of s 15(1) that required an arrested person to be physically brought before a magistrate or a judge. In my view the difference in language is explained by the fact that any person to whom s 15(4) applies will already have been brought before such a person and remanded. As to such persons who are the subject of a warrant issued by the Attorney-General under s 15(4), they are required by the terms of s 15(5) to be remanded in custody or on bail by a magistrate or judge in the specified State or Territory. They are not required to be brought as soon as practicable before such a magistrate or judge. The use of the terminology 'appear' reflects the fact s 15(4) and s 15(5) are concerned with a person who has been arrested and remanded. In contrast, the terminology used in s 15(1) 'brought as soon as practicable before' a magistrate or judge reflects the fact that it is addressed to a case where a person has been arrested under an extradition arrest warrant but not yet remanded.
Nevertheless, in a case about interstate extradition under the Service and Execution of Process Act 1992 (Cth), it has been determined that personal appearance was required where the legislation required the person '[to] be taken … to a specified place in the place of issue of the warrant': Formica & Forni v Victoria Police [2020] VSC 719 at [29] (Hollingworth J). Despite the use of the different phrases 'the person appear' and 'the person be taken' in the legislation, both were determined to require physical attendance in the jurisdiction to which the person was to be taken under the extradition warrant. The reasoning in that case supports an approach that would require personal appearance after arrest as a basic common law protection, a position which is only to be altered or departed from by the use of clear language.
Section 16, s 17 and s 18
Section 16 then provides for notification to any magistrate or eligible Judge of the receipt of an extradition request from an extradition country in relation to a person. It provides as follows:
(1)Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Judge, state that the request has been received.
Person must be extraditable person in relation to extradition country
(2)The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.
(3)As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:
(a)a copy of the notice; and
(b)copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
(4) A notice given under subsection (1) is not a legislative instrument.
There is provision whereby, in respect of a person who is on remand under s 15, the Attorney‑General may direct a magistrate or eligible Judge by notice to release a person from custody or discharge the recognizances on which bail was granted: s 17. There is also a mechanism by which a person on remand may consent to surrender to the extradition country: s 18. Significantly for present purposes, each of those provisions is expressed to apply where 'a person is on remand under section 15'. I note that it would be strange if the validity of a notice from the Attorney-General to release a person, or the validity of any consent to surrender, might depend upon whether the remand itself was valid. Of course, a person who claimed not to have been validly remanded could raise that claim and thereby challenge the lawfulness of their detention. However, there is no evident reason why the lawfulness of a notice requiring a person to be released would depend upon the lawfulness or otherwise of the remand. The evident purpose of the provision is to provide a mechanism by which a person may be directed to be released on the authority of a notice from the Attorney-General. The fulfilment of that purpose does not depend upon the lawfulness of the remand. Similar reasoning applies where a person consents to surrender to the extradition country. The evident purpose is that the consensual act will operate, not that the consent is only effective if it is the case that the remand was lawful. A contrary construction would frustrate the evident purpose of the provisions.
It follows that the reference in s 17 and in s 18 to the provision applying where the person is on remand under s 15, is referring to a matter of fact not a matter of lawfulness.
Section 19(1)
Then, s 19 provides for a process by which there may be a determination of the eligibility of the person for surrender to the extradition country. It begins with the following provision in s 19(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 or eligible Judge 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 or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate or Judge 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.
It can be seen that the structure of the provision is to describe four requirements and then to provide that where they exist the magistrate or eligible Judge must conduct proceedings to determine whether the relevant person is eligible for surrender in relation to the identified extradition offences to the extradition country. I will refer to those proceedings as Section 19 Proceedings.
The four requirements in s 19(1)(a) to (d), were described in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 537 by Brennan CJ, Dawson and McHugh JJ as 'conditions of jurisdiction' that must be satisfied. It was common ground in the present proceedings that each of the requirements was a 'jurisdictional fact'. For reasons explained below, that common position was correctly adopted. However, as we observed in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [29] (Besanko, Banks‑Smith and Colvin JJ):
The term is perhaps inapt because it may be applied to an opinion or an assessment that must be held or undertaken before a decision making power arises (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [130] (Gummow J)) or a state of satisfaction that must be reached (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] (Gummow and Hayne JJ, Gleeson CJ agreeing)). However, where the opinion or state of satisfaction is to be formed by the same decision-maker who is entrusted with the ultimate power that is to be exercised it may be appropriate to use the term pre‑condition to describe the power for reasons stated by Basten JA in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 at [241].
I note that s 19(1)(d) takes the form identified by Basten JA. It may be accepted that each of the four requirements in s 19(1) is a pre-condition which must be satisfied before a magistrate or judge has the authority and duty to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender of the person is sought by the extradition country. Therefore, I will refer to the four requirements as the Four Pre-Conditions.
The first of the Four Pre-Conditions is that the person is on remand under s 15. It takes the same form as s 17 and s 18. In my view, the use of the same words in s 19 as those found in earlier provisions is intended to express the same requirement. For reasons already given, the requirement is met if, as a matter of fact, a decision has been made to remand the person under s 15(2) and an order to that effect is produced. There would be practical difficulties if each of those provisions, including s 19(1)(a), required an investigation of the circumstances of the remand and a conclusion that the remand is lawful before the statutory provision operated. A person in respect of whom the lawfulness of their remand had not been demonstrated would face practical difficulties in the sequence of steps contemplated by the Extradition Act to be undertaken. Those steps are explained below.
As to s 19 in particular, there is no suggestion that the person conducting the Section 19 Proceedings would have any authority to finally determine the lawfulness of the remand. A decision of that kind could only be made by a court. In circumstances where a magistrate or eligible Judge had in fact made a determination to remand a person and the person was consequently in custody or released on bail but there was some reason to doubt the lawfulness of the determination, the person would be required to abide by the terms of the remand but could not require the Section 19 Proceedings to be undertaken. An example is suggested by the present case where an issue was raised for Mr Pauga as to whether a decision by an acting magistrate would be valid for the purposes of the Extradition Act. Until a point of that kind had been resolved, there would be uncertainty as to whether the pre-condition in s 19(1)(a) was satisfied and therefore uncertainty as to whether there could be Section 19 Proceedings.
Further, a person who is brought before a magistrate must be remanded, either in custody or on bail: see s 15(2). Therefore, under the sequence that follows the issue of an arrest warrant, the Extradition Act requires a person to be remanded. If there is an invalid remand then the statutory command must still be met. The necessary result of invalidity would be mandamus requiring the statute to be carried into effect by remanding the person who has been arrested and brought before a magistrate or eligible Judge as soon as practicable. In consequence, unless some other event intervenes (such as a notice by the Attorney-General under s 17 or a consent to surrender by the person under s 18) such a person must be the subject of Section 19 Proceedings. The evident purpose of the remand is to enable the extradition process. Save for events of the kind that have been described that bring the remand to an end in some other way, it is the Section 19 Proceedings themselves that bring the remand to an end. Section 19(1)(a) is not dealing with an event which may not occur. It is required to occur once a person is arrested pursuant to an extradition arrest warrant. These are further matters that support the conclusion that s 19(1)(a) is describing a matter which has occurred in fact.
Finally, I observe that none of the above analysis would prevent a person from claiming that an arrest is unlawful or that the person who has been arrested has not been brought before a magistrate or eligible Judge as soon as practicable. Such matters precede remand: see s 15(1). If there is a failure to comply with s 15(1) then it is the completion of the process of arrest that is invalid. Remand occurs thereafter under s 15(2). So, a claim of invalid arrest could be raised at any point. Section 19 says nothing substantive about arrest. It is concerned only with whether a person is 'on remand under section 15': s 19(1)(a). I take that to refer to the requirement in s 15(2). It assumes that the person has been arrested and brought before the magistrate or eligible Judge as soon as practicable and requires such a person to be remanded.
Therefore, in my view, considered in context, s 19(1)(a) is simply reinforcing the sequential nature of the extradition process. It makes clear that the Section 19 Proceedings are only to be undertaken in respect of a person who is in fact on remand under s 15. The sequence commences when an extradition arrest warrant is issued. The circumstances in which an arrest warrant may be obtained are dealt with by s 12. It requires application to a magistrate or eligible Judge. Thereafter, the legislative scheme requires a specified sequence of steps.
The above approach is reflected in the reasons of Brennan CJ, Dawson and McHugh JJ in Director of Public Prosecutions (Cth) v Kainhofer at 539 where their Honours said:
The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16.
The significance of the decision in Kainhofer for a claim that subsequent steps in the extradition process under the Extradition Act depend upon the demonstrated validity of earlier steps was noted, albeit in a different context, in Liem v Republic of Indonesia [2018] FCAFC 135; (2018) 265 FCR 251 at [62]‑[65] (Mortimer, Wigney and Lee JJ).
Even if it be accepted that there has been a failure to remand in a manner that is lawful, it does not mean that the remand that has occurred in fact is a nullity for all purposes. As was emphasised by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]:
A decision made outside jurisdiction is not necessarily to be regarded as a 'nullity', in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as 'no decision at all'.
The possibility that a decision in fact (the remand of Mr Pauga) may be sufficient to satisfy a particular statutory criteria for a subsequent decision is implicit in the analysis undertaken in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [41]‑[66] (Kiefel CJ, Bell, Gageler and Keane JJ), noting that the possibility was not accepted as applying in that case. See also, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 at [16]‑[19], [21]‑[24] (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ); Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3; (2015) 255 CLR 231 at [29]‑[33] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ); and Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105 at [28], [36]‑[48] (Le Miere J).
The issue is to be answered by considering the proper construction of the provision. For reasons I have given, in my view s 19(1)(a) only requires that there to have been a remand in fact.
The next of the Four Pre-Conditions is s 19(1)(b) which requires that the Attorney-General must have given a notice under s 16(1). It is the mechanism by which the request from the extradition country is communicated to the magistrate or eligible Judge. It is not contentious in the present case.
Then there is the pre-condition in s 19(1)(c). It requires an application to be made to the magistrate or eligible Judge by the person on remand or the extradition country for the proceedings to be conducted. This is the mechanism by which the purpose of the extradition arrest warrant and the arrest is advanced. It enables either party to press for the proceedings to be conducted. It also ensures that there is an ongoing justification for the remand. Without the ongoing prospect of such an application and its ongoing pendency, the remand would be no longer justified.
For Mr Pauga, various points were made concerning this requirement. It was said that the application could not be made orally and there needed to be some form of written application. I do not accept that submission. No doubt it is likely that some form of written material will be provided. However, unlike other provisions in the Extradition Act where there is an express requirement for a specific form to be used, there is no form of application specified here. In those circumstances, it will be a question of fact as to whether there has been an application.
It was also suggested that there needed to be an application made to the particular magistrate who was to conduct the Section 19 Proceedings and that an earlier application to a different magistrate could not continue to have effect if the carriage of the process passed to a different magistrate. I see no merit in this point. Once an application is made to a magistrate, if the performance of the duty to conduct the Section 19 Proceedings is passed to another magistrate then, in the usual case, as a matter of fact, the matter will pass with the application pending. Significantly, there is no suggestion that the conduct of the Section 19 Proceedings in the present case was divided between magistrates. The Primary Magistrate dealt with the making of directions as to the conduct of the Section 19 Proceedings and also conducted those proceedings. There was no evidential basis to suggest that the statutory matters required to be addressed were considered by any person other than the Primary Magistrate or that some part of the statutory task required by s 19 was undertaken by a different magistrate. The submission in the present case was to the effect that the application was made to a different magistrate at an earlier stage in the chronology. Even accepting that there needed to be an application to the Primary Magistrate as the particular person conducting the Section 19 Proceedings, it will be a question of fact as to whether there was such an application. The fact that there was an application formulated and presented to a different magistrate at an earlier point in time does not mean that there was no such application. Nor does it mean that the Primary Magistrate could not treat that application as, in effect, being made to the Primary Magistrate when her Honour was allocated the task of conducting the Section 19 Proceedings. I deal below with what occurred in fact.
The final one of the Four Pre-Conditions is expressed in s 19(1)(d). Unlike the other provisions, it requires a state of mind to be formed by the magistrate or eligible Judge conducting the Section 19 Proceedings, namely that the magistrate or Judge considers that the arrested person and the extradition country have had reasonable time in which to prepare for the conduct of the Section 19 Proceedings. I deal below with whether the final requirement was met in the circumstances of the present case when addressing propositions (7) to (10).
Balance of s 19
Otherwise, the terms of s 19 were not in issue on the First Application. Under s 19(9), if the magistrate or eligible Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offences or one of them, then the magistrate or Judge shall order that the person be committed to prison or released on bail to await surrender (or release as provided for in s 22(5)) and also inform the person of the statutory right to seek a review under s 21(1). Section 19(10) deals with the case where there is a determination that the person is not eligible for surrender in which case the magistrate or Judge shall order the release of the person.
Therefore, both from the terms of the concluding words in s 19(1) (after the list of the Four Pre-Conditions) and the terms of s 19(9) and (10) it is evident that the statutory task for a magistrate or eligible Judge in conducting the Section 19 Proceedings is to determine whether the person is eligible for surrender to the extradition country in relation to an identified extradition offence. Further, in a case like the present where a determination is made under s 19(9) it is the order that the person be committed to prison that may be the subject of the statutory review.
Section 21
At the time of the decision in Knauder v Moore, s 21(6)(d) provided that this Court on review 'shall only have regard to the material that was before the magistrate'. Since the decision in Knauder v Moore, an amendment has been made to allow for a party to adduce evidence in the review proceedings under s 19 where the party was 'prevented from adducing evidence' in the proceedings before the magistrate of eligible Judge: see s 21(6)(d) and s 21A. Plainly, the availability of that course is directly relevant to the approach by Mansfield and Allsop JJ.
In Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121, the issue was once again whether the jurisdictional precondition in s 19(1)(d) had been satisfied. Black CJ posed the question for consideration in terms of whether a review for the purposes of s 19(1)(d) had a different character to a review for the purposes of s 19(2): at [25]. In that regard, it may be noted that the review procedure invoked (like that in Knauder v Moore) was an application under s 21. However, there is a certain incongruity in claiming that there was an absence of the jurisdictional foundation for the making of the decision that was sought to be the subject of the statutory right of review. Put another way, if the pre-condition expressed in s 19(1)(d) is not established, then there can be no decision under s 19(2) that a person is eligible for extradition and, consequently, no decision to be reviewed under s 21.
In any event, the claim failed because it was not demonstrated that there was reviewable error in the finding by the magistrate that Mr Brock had reasonable time to prepare: at [32]‑[35] (Black CJ), [41], [48]‑[58] (Jacobson J).
Rares J dissented. His Honour found jurisdictional error and would have remitted the matter on the basis that Mr Brock was required to remain in custody pending the hearing and determination of the proceedings as required by s 19: at [115].
However, these cases must be distinguished from the present circumstances because I have made no finding to the effect that the pre-condition in s 19(1)(d) was not satisfied. Rather, I have found procedural unfairness in the making of a determination that could have been the subject of an application for a rehearing in this Court on the merits. Further, the rehearing would be required to be conducted on the basis that evidence that Mr Pauga was prevented from adducing and which he should have been permitted to adduce formed part of the evidence. Mr Pauga chose not to pursue that course. As is explained in the separate reasons on the Second Application, rather than pursue that course he confined his application for review under s 21 to matters concerned with the admissibility of the documents produced by Samoa.
Nevertheless, it may be noted that during the interlocutory steps in both proceedings, Samoa made plain its position that it objected to this Court receiving any materials that might support extradition objections. Had Mr Pauga sought to adduce materials of that kind real issues would have arisen as to whether they fell within the terms of s 21A. Therefore, there must be real doubt as to whether Mr Pauga would have been able to adduce evidence as to the extradition objections for the purposes of the Second Application. No submission was advanced for Samoa to the effect that the availability of the statutory right of review under s 21 of the Extradition Act was a reason why any of the relief sought by Mr Pauga should be refused.
In those circumstances, Mr Pauga has demonstrated that the determination by the Primary Magistrate that Mr Pauga was eligible for extradition and the issue of the Warrant of Committal were infected with jurisdictional error by reason of the failure to afford procedural fairness to Mr Pauga at the July Hearing. However, he has not demonstrated that the Primary Magistrate lacked jurisdiction. Therefore, the appropriate relief is to set aside the determination and the Warrant of Committal and remit the matter for determination according to law. The matter will return before the Primary Magistrate or such other Queensland magistrate as may be allocated the matter on the basis that Mr Pauga is required to be on remand by reason of the terms of s 15(2). In the exercise of this Court's jurisdiction to grant appropriate relief upon the demonstration of jurisdictional error, there will be an order of this Court remanding Mr Pauga in custody so as to enable the making of orders thereafter by a magistrate or eligible Judge pursuant to s 15(2) of the Extradition Act in respect of Mr Pauga.
The First Application must otherwise be dismissed.
As to costs, the appropriate course is to reserve liberty to any party to apply for costs. Any such liberty shall be exercised by filing a minute of proposed orders stating precisely the terms of the cost order sought together with submissions and any affidavit in support.
Mr Pauga's application for bail
As I have noted, shortly prior to the final hearing of both applications, Mr Pauga filed the papers for a bail application in each of the proceedings. I determined that the application for bail should be refused. I did so for the following reasons.
In the case of an application for bail brought within the statutory application for judicial review, s 21(6)(f)(iv) provides that such an order may be made 'if there are special circumstances justifying such a course'. The content of what is required for special circumstances was explained in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165; see also Tsvetnenko v United States of America at [16]. The application for bail brought in these proceedings sought to invoke the common law jurisdiction to grant bail in circumstances where the Court's jurisdiction to grant relief in the nature of habeas corpus was invoked.
For Mr Pauga it was contended that where bail is sought pending the hearing and determination of an application for a writ of habeas corpus, it is not necessary to show that there have been special or exceptional circumstances. Rather, it was said that the approach to bail requires the application of common law principles which are informed by the Court's understanding that the right to personal liberty protected by the writ of habeas corpus is an essential part of the rule of law. In effect, the submission advanced was that, whereas a valid exercise of administrative power conferred by the Extradition Act means that the statutory requirement for exceptional circumstances applies when seeking bail pending the outcome of the exercise of the statutory right to judicial review, that is not a reason why the exceptional circumstances standard applies if a person claims that there has been no valid exercise of power under the Act and invokes the court's supervisory jurisdiction to protect that person's right to liberty from detention without lawful authority.
The issue was whether a test for bail that applies where there has been a valid decision that a person is eligible for surrender can affect the test for bail that applies if the claim made is that the decision was not valid (and therefore is unauthorised by the statutory provisions that establish the requirement for exceptional circumstances).
In my view, there is merit in the submission to the effect that there is a substantive difference between the two cases. The terms of the Extradition Act contemplate that a person who seeks bail pending an application for judicial review will have been determined to be eligible for surrender by a magistrate acting within the jurisdiction afforded by the Act. Whereas, the application for bail in the present case was to be determined in circumstances where the substantive application for relief was based upon alleged invalidity in the detention of Mr Pauga. Therefore, the application for bail in the present case was to be distinguished from an instance such as that addressed in United Mexican States v Cabal where the provisions of the Extradition Act have been validly invoked and therefore 'illuminate the object of the proceedings that give rise to the application or appeal': at [45] (Gleeson CJ, McHugh and Gummow JJ). Otherwise, the invalid invocation of extradition proceedings would justify subjecting a person to restraints upon their liberty (bail only in special circumstances) that would not otherwise arise.
At common law, the authorities use different language when considering an application for bail. In R v Spilsbury [1898] 2 QB 615, an order had been made under the Fugitive Offenders Act 1881 (Imp), committing the defendant to prison to await his return to the place where the offence was alleged to have been committed. The defendant applied for a writ of habeas corpus to be released from custody, or for an order to admit the defendant to bail, and to vary the magistrate's order for the return of the defendant by directing that he be returned for trial to Gibraltar instead of Tangier.
Lord Russell CJ (other members of the court agreeing) said at 619‑620:
It seems to me not to be necessary, or desirable in the interest of the defendant, to elaborate the matter much at this stage of the proceedings, but, on considering the whole of the materials which were before the magistrate, I am of opinion that there was sufficient evidence to warrant the magistrate in arriving at the conclusion that there was a strong or probable presumption that the defendant had committed the offence charged. For these reasons I am of opinion that the application for a habeas corpus ought to be refused.
The Court then referred to the common law jurisdiction to determine bail at 620:
This Court has, independently of statute, by the common law, jurisdiction to admit to bail. Therefore the case ought to be looked at in this way: does the Act of Parliament, either expressly or by necessary implication, deprive the Court of that power? The law relating to this subject is well stated in 1 Chitty's Criminal Law, 2nd ed. P.97, as follows: 'The Court of King's Bench, or any judge thereof in vacation, not being restrained or affected by the statute 3 Edw. 1, c. 15(1) in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatever.
After discussing the power to admit the defendant to bail, the process if a fugitive is committed to prison from where a writ of habeas corpus is sought, and circumstances where a bailed fugitive declined to surrender, Lord Russell CJ held at 622:
I have come to the conclusion that the provisions of the statute are consistent with the recognition of the power of this Court to admit to bail in such cases as the present. This inherent power to admit to bail is historical, and has long been exercised by the Court, and if the Legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment. But how ought the power to be exercised? Considering the class of cases which are likely to arise under the Fugitive Offenders Act, it is obvious that the power ought to be exercised with extreme care and caution.
It may be noted that the court was there concerned with a case in which it had concluded that habeas corpus should be refused. Therefore, the court was dealing with an application for bail at common law in circumstances where the lawfulness of the extradition proceedings was not at issue.
The 'care and caution' test has been applied to common law bail applications in extradition cases in a similar manner to the special circumstances requirement in the Extradition Act. So, in R v Phillips [1922] All ER Rep 275 (Lord Hewart CJ, other members of the court agreeing) said of the 'care and caution' approach (at 278):
What it means I think is that this country has entered into an agreement with a foreign country under the comity of nations and has deliberately taken upon itself the obligation, upon a charge properly made, to hand over to that foreign country a person in this country who is charged with the commission of an offence in that country. That is an obligation which this country has entered into, and the scrupulousness of conduct with which that obligation is regarded and performed is not measured by any particular tenderness shown to the foreign country, but is measured by the duty which, having entered into an obligation of that kind, we conceive to be owing to ourselves. It becomes a point of honour when a treaty of that kind has been made that special care should be taken to fulfil it. That does not mean, nor did the learned Attorney-General so contend, that in no case under the Extradition Acts is the question of bail to be considered. What it does mean is that where a case is under the Extradition Acts there is, in addition to the normal considerations which apply to a question of bail, an added ingredient due to the fact that a treaty has been made with a foreign country.
…
It is quite true that he said it was not the practice to grant bail in cases of extradition. That does not mean that it is the practice always to refuse bail. I think it meant no more than that which I have indicated already, that in such a case there are special grounds for care and caution.
It has been recognised that an interlocutory order for bail may be made when a person seeks habeas corpus: Al-Kateb v Godwin at [26] (Gleeson CJ); and R v Secretary of State for the Home Department; Ex parte Turkoglu [1988] QB 398 at 399. There are cases in this Court which identify the distinct character of an application for bail pending the hearing of an application for habeas corpus: Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169; von Arnim v Federal Republic of Germany [1999] FCA 1747 at [16]‑[22] (Goldberg J); Peniche v Vanstone [1999] FCA 1688; (1999) 96 FCR 38 at [29] (Kenny J); Chan v Minister for Justice and Customs [2001] FCA 170; (2001) 108 FCR 65 at [20]‑[21] (Stone J); and Zentai v Honourable Brendan O'Connor [2009] FCA 1597 at [23]‑[25] (McKerracher J), but see Holt v Hogan (No 1) (1993) 44 FCR 572 at 579 (Cooper J).
At the time that I heard the bail application, the final hearing had been concluded. All contentions had been fully argued before me and the decision in the matter had been reserved. As to the merits, the only proposition that appeared to have merit was the claim that Mr Pauga had been denied procedural fairness by reason of the way in which he had been denied the opportunity to make submissions as to why he should be able to adduce evidence concerning extradition objections (with the consequence that he was not allowed to adduce any evidence). I formed the view that the claim by Mr Pauga in that regard had reasonable prospects of succeeding. However, it seemed to me that the appropriate relief to be granted if that claim was to be upheld was an order remitting the matter for determination according to law. In other words, I was not persuaded that there were reasonable prospects of Mr Pauga succeeding in his claim to any relief that would result in his release from custody on the basis that his detention had been unlawful.
In those circumstances, I was not persuaded that it would be appropriate to order the release of Mr Pauga on bail in circumstances where the only basis upon which relief was claimed in respect of which he had an arguable claim was relief that would not lead to his release from custody: see Chan v Minister for Justice and Customs. Since refusing bail I have noted that the decision in Chan was applied in Matson v Attorney-General [2022] FCA 790 at [49]‑[51] (Logan J).
Different considerations may apply in a case where habeas corpus relief is sought by an applicant who was released on bail during the conduct of extradition proceedings before a magistrate or eligible Judge or where the application for bail was made on the basis that such an order would be appropriate on remitter. However, the application in the present case was not put in those terms. Indeed, Mr Pauga had not sought bail before the Primary magistrate. Rather, to the extent that it was submitted that there should be bail based on the availability of bail under the statutory provisions in the Extradition Act (which provisions required special circumstances), those submissions were made in the Second Application. They are dealt with in the reasons on the Second Application to be delivered at the same time as these reasons.
I certify that the preceding four hundred and forty (440) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 16 September 2022
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