Tervonen v Minister for Justice and Customs (No 2)
[2007] FCA 1684
•6 November 2007
FEDERAL COURT OF AUSTRALIA
Tervonen v Minister for Justice and Customs (No 2)
[2007] FCA 1684EXTRADITION – Extradition request – notice of receipt of – where two notices have been issued – where second notice has been issued as a notice amending the first – where second notice has been issued by a different Minister to the first
EXTRADITION – first notice – whether discretion to issue notice was validly exercised – whether the statement of the conduct or acts or omissions of the person the subject of the request was sufficient to allow the Minister to form the opinion which s 16(2)(a)(ii) of the Extradition Act 1988 (Cth) required – dual criminality principle – whether the Minister needed to receive all the material provided by the extradition country in order validly to exercise his function in accordance with law – relief to be granted in circumstances where notice has been found to be invalid
EXTRADITION – second notice – where first notice has been found to be invalid – where detention of the person the subject of the request has become unlawful under ss 15 and 17 of the Extradition Act – whether Minister had power to issue amended notice – whether the Minister for Justice and Customs can exercise powers of Attorney-General under s 16 of the Extradition Act – whether the statement of the conduct or acts or omissions of the person the subject of the request was sufficient to allow the Minister to form the opinion which s 16(2)(a)(ii) of the Extradition Act required
EXTRADITION – where notice of receipt of extradition request has been found to be deficient in respect of certain paragraphs – whether the notice is wholly or partly invalid – possibility of severance of notice under s 46(2) of the Acts Interpretation Act 1901 (Cth)
ADMINISTRATIVE LAW – division of portfolio responsibilities between two Ministers – effect of division – whether one Minister authorised to exercise powers conferred by statute on the other – whether s 16 of the Extradition Act evinces a contrary intention for the purposes of s 19A(1) of the Acts Interpretation Act
HELD – both notices deficient – severance of portions of either notice not possible – both notices wholly invalid
Acts Interpretation Act 1901 (Cth), ss 19A(1), 46(2)
Constitution, ss 64, 65
Extradition Act 1988 (Cth), ss 6(a)(i), 16(2)(a)(ii), 17
Extradition (Finland) Regulations 1988 (Cth) Schs 1, 2Ainsworth v Criminal Justice Commission (1992) 175 CLR 56 cited
Andrews v Howell (1941) 65 CLR 255 applied
Bank of New South Wales v The Commonwealth (The Bank Nationalisation Case) (1948) 76 CLR 1 applied
Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 considered
Briginshaw v Briginshaw (1938) 60 CLR 336 considered
Buck v Bavone (1976) 135 CLR 110 considered
Coco v The Queen (1994) 179 CLR 427 cited
Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 cited
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 cited
Dutton v Republic of South Africa (1999) 92 FCR 575 cited
Foster v Attorney-General (Cth) (1997) 97 A Crim R 560; 158 ALR 394 not followed
George v Rockett (1990) 170 CLR 104 referred to
Giorgianni v The Queen (1985) 156 CLR 473 applied
Johnson v Miller (1937) 59 CLR 467 applied
Jones v Dunkel (1959) 101 CLR 298 cited
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 applied
Liversidge v Anderson [1942] AC 206 cited
Love v Attorney-General (NSW) (1990) 169 CLR 307 discussed
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 considered
Minister for Immigration v Bhardwaj (2002) 209 CLR 59 cited
Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 distinguished
Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 47 cited
Re Patterson; Ex parte Taylor (2001) 207 CLR 39 cited
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 applied
The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 applied
Truong v The Queen (2004) 223 CLR 122 applied
Vasiljkovic v The Commonwealth (2006) 227 CLR 614 applied
Vetter v Lake Macquarie CC (2001) 202 CLR 439 cited
Weissensteiner v The Queen (1993) 178 CLR 217 cited
Williams v Keelty (2001) 111 FCR 175 distinguished
Williams v Minister for Justice and Customs (2007) 157 FCR 28 applied
Yorke v Lucas (1985) 158 CLR 661 citedZoeller v Attorney-General (Cth) (1987) 16 FCR 153 cited
JAN TERVONEN v MINISTER FOR JUSTICE AND CUSTOMS
NSD 168 OF 2007RARES J
6 NOVEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 168 OF 2007
BETWEEN:
JAN TERVONEN
ApplicantAND:
MINISTER FOR JUSTICE AND CUSTOMS
Respondent
JUDGE:
RARES J
DATE OF ORDER:
6 NOVEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The matter be stood over to 4.15pm on 7 November 2007 for argument on the appropriate relief to give effect to these reasons.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 168 OF 2007
BETWEEN:
JAN TERVONEN
ApplicantAND:
MINISTER FOR JUSTICE AND CUSTOMS
Respondent
JUDGE:
RARES J
DATE:
6 NOVEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION [1] LEGISLATIVE SCHEME [8] THE TREATY [20] SENATOR ELLISON'S s 16 NOTICE [24] BACKGROUND [24] MUST THE MINISTER RECEIVE ALL OF THE DOCUMENTS PROVIDED BY FINLAND IN ORDER TO PERFORM THE STATUTORY FUNCTION UNDER s 16? [27] DID THE FINNISH WARRANTS SATISFY THE CRITERIA IN s 6(a)(i)? [33] FURTHER MATERIAL BEFORE SENATOR JOHNSTON AS TO s 6(a)(i) [43] VALIDITY OF SENATOR ELLISON'S s 16 NOTICE [45] EXAMPLES OF THE MATERIAL BEFORE SENATOR ELLISON [49] SUFFICIENCY OF MATERIAL BEFORE SENATOR ELLISON [80] IS SEVERANCE OF SENATOR ELLISON'S s 16 NOTICE POSSIBLE? [82] SHOULD RELIEF BE GRANTED IN RESPECT OF SENATOR ELLISON'S s 16 NOTICE? [107] POWER OF THE MINISTER FOR JUSTICE AND CUSTOMS TO ISSUE A NOTICE UNDER s 16 OF THE EXTRADITION ACT [122] WERE THERE DEFICIENCIES IN THE MATERIAL RELATING TO MR TERVONEN'S ACTS OR OMISSIONS ON WHICH SENATOR JOHNSTON'S s 16 NOTICE WAS BASED? [131] MR TERVONEN'S FIRST ARGUMENT: ATTACK ON PARS (24)-(27), (30)-(32), (34), (37)-(39), (41), (42), (44), (45), (49), (50), (57) AND (58) [136] MR TERVONEN'S SECOND ARGUMENT: ATTACK ON PARS (24)-(52), (57) AND (58) [140] THE SUFFICIENCY OF THE MATERIAL IN RELATION TO WARRANT 5 [158] PARS (57) AND (58) OF SENATOR JOHNSTON'S NOTICE [174] WHAT DID SENATOR JOHNSTON DO AND DID HE HAVE POWER TO GIVE THE s 16 NOTICE? [181] CAN SENATOR JOHNSTON'S NOTICE BE SEVERED? [209] CONCLUSION [214] INTRODUCTION
In August 2006 Finland applied to the Attorney-General of the Commonwealth to extradite Jan Tervonen, one of its nationals, in respect of eight warrants for his arrest. The warrants had been issued by the Helsinki and the Tuusula District Courts between 2004 and 2006. The request was considered by the then Minister for Justice and Customs, Senator the Honourable Christopher Ellison. He gave a notice in writing under s 16(1) of the Extradition Act 1988 (Cth) on 18 August 2006 that he had received an extradition request from Finland for a considerable number, but not all, of the offences specified in the eight warrants. Senator Ellison’s notice contained 56 numbered paragraphs which referred to 77 separate offences.
Later in 2006, Mr Tervonen commenced these proceedings, challenging Senator Ellison’s notice. I refused interlocutory relief on the basis of Mr Tervonen’s challenges, as then formulated by him when he was self-represented: Tervonen v Minister for Justice and Customs [2007] FCA 464. Shortly after I delivered my judgment, the Full Court of this Court handed down its decision in Williams v Minister for Justice and Customs (2007) 157 FCR 286. I then appointed counsel under O 80 of the Federal Court Rules 2001 (Cth) to represent Mr Tervonen on the final hearing. His counsel has reformulated Mr Tervonen’s claims.
On 30 April 2007, before the date of the final hearing, Senator Ellison’s successor in the office of Minister for Justice and Customs, Senator the Honourable David Johnston, signed what was intituled ‘Amended Notice of Receipt of Extradition Request’ under s 16(1) of the Act. That second s 16 notice was given in respect of all of the original offences in Senator Ellison’s notice together with seven further ones identified in its paragraphs (57) and (58).
Mr Tervonen has challenged the validity of each s 16 notice. He argued that Senator Ellison’s s 16 notice was invalid because:
(1)the Minister did not have before him any statement of Mr Tervonen’s conduct or his acts or omissions and so Senator Ellison could not form the opinion which s 16(2)(a)(ii) required, viz, that the same, or equivalent conduct, acts or omissions, if committed in Australia, would have constituted an extradition offence in relation to Australia. The material before Senator Ellison was thus said to be so deficient (relying on Williams 157 FCR at 297 [45]) that the Minister could not have formed the opinion which s 16(2)(a)(ii) required;
(2)the language of the Finnish warrants on their face was incapable of satisfying the definition of ‘extraditable person’ in s 6(a)(i) of the Act because they did not, in terms, seek his arrest as a person actually charged or accused of an offence. Rather, they sought his arrest on the basis that they alleged that he was ‘suspected with probable cause’ of having committed one or a number of offences. Mr Tervonen said that the Minister could not have formed the opinion required under s 16(2)(a)(ii) in the absence of any material before him to establish that the formulation used in each of the Finnish warrants was in fact a warrant within s 6(a)(i);
(3)Article 7(2) of the Treaty between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 as amended by Article 3 of the Protocol between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985 contained in Schedule 2 of the Extradition (Finland) Regulations 1988 (Cth) required Finland to accompany its request for his extradition with a statement of each offence for which extradition was sought together with a statement of the acts or omissions which were alleged against Mr Tervonen in respect of each offence. Mr Tervonen argued that because in August 2006 Senator Ellison personally did not have before him all of this material, as required by the treaty, he could not issue the notice.
However, Mr Tervonen’s principal challenge was against Senator Johnston’s s 16 notice. He argued that:
(1) Senator Johnston as Minister for Justice and Customs was not able to exercise the statutory powers and functions specifically conferred on the Attorney-General by s 16 of the Act;
(2) under the Act it is not open for the Attorney-General, or the Minister administering the Act, to issue a second notice in respect of the same request;
(3) the particularisation of his acts and omissions in the material before Senator Johnston relating to pars (24)-(52), (57) and (58) of the second s 16 notice was insufficient to enable the Minister to form the opinion required under s 16(2)(a)(ii), so that the whole notice was invalid or those paragraphs were;
(4) the language of the Finnish warrants was incapable of satisfying the statutory definition of ‘extraditable person’ on the same basis as ground (2) in respect of Senator Ellison’s s 16 notice.
The Minister argued that Mr Tervonen’s challenges should fail and that:
·each notice was valid;
·Senator Ellison’s notice was not acted on by the magistrate, and so it was of no present relevance;
·if any deficiency were established in respect of the material before either Minister in relation to particular paragraphs in their s 16 notices, those paragraphs should be severed and the balance of notice(s) would be valid;
·Senator Johnston’s s 16 notice was either a validly amended version of his predecessor’s notice or a valid, newly made, s 16 notice.
On 6 June 2007 Mr Tervonen was committed to prison pursuant to s 19(9) of the Act by a magistrate at Central Local Court. Finland did not rely on Senator Ellison’s s 16 notice before the magistrate who acted on the basis that only Senator Johnston’s s 16 notice was before him under s 19(1)(b) of the Act. Mr Tervonen has sought review of that order under s 21 of the Act and those proceedings are pending before Gyles J.
LEGISLATIVE SCHEME
A principal object of the Act is to codify the law in relation to the extradition of persons from Australia to extradition countries without determining the guilt or innocence of a person whose extradition is sought. A second object is to enable Australia to carry out its obligations under extradition treaties (s 3(a) and (c)). The Act is structured in a way that permits decisions to be taken at a number of points in the extradition process which may halt that process, either in part or entirely. The Act contemplates four stages in the extradition process, namely: commencement, remand, determination by a magistrate of eligibility for surrender and executive determination that the person be surrendered: Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 628 [29] per Gleeson CJ, 635-636 [55] per Gummow and Hayne JJ (with whom Heydon J agreed on this issue at 676 [222]), 657 [144] per Kirby J applying Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. Mr Tervonen’s applications in the present case arise at an early point in the process.
Initially an extradition country, here Finland, must make an application to a magistrate, sitting as persona designata, for the issue of a warrant for the arrest of a person under s 12(1) of the Act. If the magistrate is satisfied, on the basis of the information given by affidavit, that the person is an extraditable person in relation to the extradition country, the magistrate must issue the warrant in statutory form for the arrest of the person (s 12(1)(b)). The magistrate must then send to the Attorney-General a report saying that he or she has issued the warrant together with a copy of the affidavit (s 12(2)). The Attorney-General is then given a discretion, by s 12(3), to cancel the warrant where he or she decides not to issue a notice under s 16(1) in relation to the person or considers for any other reason that the warrant should be cancelled. Cancellation is effected by the Attorney-General directing the magistrate to cancel the warrant (s 12(3)).
If the warrant is not cancelled, the person, when found, is then arrested and must be brought before a magistrate in the State or Territory where the arrest occurs as soon as practicable (s 15(1)). Unless there are special circumstances justifying the remand of a person on bail, the magistrate must remand the person in custody for such period or periods that may be necessary for the proceedings to be brought, relevantly, under s 19 of the Act (s 15(2) and (6)).
The next stage in the process is that where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General is given a discretion by notice in writing in the statutory form expressed to be directed to any magistrate, to state that the request has been received (s 16(1)). But, the Attorney-General can only give the notice if he or she is of the opinion that:
·the person is an extraditable person in relation to the extradition country (s 16(2)(a)(i)); and
·if the conduct of the person constituting the extradition offence or offences for which his or her surrender is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, that conduct or equivalent conduct would have constituted an extradition offence in relation to Australia (s 16(2)(a)(ii)). (This is known as the dual criminality requirement.)
Although I have summarised the effect of the relevant provisions of s 16, above, it is important to set out its terms in full, which are as follows:
‘16(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, state that the request has been received.
(2) The Attorney-General shall not give the notice:
(a) unless the Attorney-General is of the opinion:
(i)that the person is an extraditable person in relation to the extradition country; and
(ii)that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or
(b)if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.
(3)As soon as practicable after the person is remanded under section 15 or the notice is issued, 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.’
The reference to ‘conduct constituting an offence’ in s 16(2)(a)(ii) is by force of s 10(2) a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have been, committed. And, in determining the criminality of the conduct complained of in relation to Australia, s 10(3) permits regard to be had to all, some or only one, of the acts or omissions relied on in the request for extradition and supporting material.
The definition of ‘extraditable person’ is found in s 6 which provides relevantly as follows:
‘6 Where:
(a) either:
(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or …
(b)the offence or any of the offences is an extradition offence in relation to the country; and
(c)the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.’
Contrary to Mr Tervonen’s argument, the Act contemplates that a notice under s 16 can be later amended. For present purposes s 10(4) is important. It provides that a reference in the Act to an extradition offence for which surrender of a person is sought by an extradition country is ‘… in relation to a time after the Attorney-General has given a notice under subsection 16(1) in relation to the person, a reference to any extradition offence to which the notice (including the notice as amended) relates’. It follows that amendment of a notice under s 16(1) is expressly contemplated in the Act, so there is no room for an implication denying the possibility of amendment for which Mr Tervonen contends.
Confirmation of this construction can be found in the explanatory memorandum for the Extradition Bill 1987 (Cth) in respect of cl 10(4). That read:
‘Sub-clause (4) defines the phrase “extradition offence/s for which surrender of a person is ought by an extradition country”. Insofar as this phrase is used in any provision dealing with that part of the extradition process which follows the issue of a notice by the Attorney-General under clause 16, it relates only to those offences specified in the Attorney-General’s notice. The provision also records that an Attorney-General’s notice may be amended, for example, by the addition of new offences notified by the requesting country after the original request is received.’
This material is capable of supporting or confirming the construction at which I have arrived: s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).
Significantly, where a person is on remand under s 15 and the Attorney-General decides not to issue a notice under s 16(1) or considers for any other reason that the person’s remand should cease, he may by notice in writing direct a magistrate to order the person’s release (s 17(1)). Where the person has been remanded under s 15 for 45 days (or such different number of days as may be provided in regulations made under s 11(2)) after the person was arrested and no notice under s 16(1) has been given, s 17(2) of the Act requires the person to be brought before a magistrate. In that situation, the magistrate must order the person’s release from custody unless he or she is satisfied that a notice is likely to be given within a particular period that is reasonable in all the circumstances. If the magistrate acting under s 17(2) is satisfied that a notice under s 16(1) is likely to be given in relation to the person within a particular period and that notice is not given within the period, s 17(3) requires the person to be brought before a magistrate ‘who shall order the release of the person from custody’ (emphasis added).
The next stage of the process arises relevantly under s 19. A magistrate must conduct proceedings to determine whether a person is eligible for surrender in relation to the extradition offence or offences for which his or her surrender is sought by the extradition country once four conditions have been satisfied under s 19(1), namely:
·the person is on remand under s 15;
·the Attorney-General has given a notice under s 16(1) in relation to the person;
·an application is made to the magistrate by or on behalf of the person or the extradition country for proceedings to be conducted in relation to the person under s 19; and
·the magistrate considers that the person and the extradition country had reasonable time in which to prepare for the conduct of those proceedings.
It is apparent from this recital that a notice under s 16(1) has an important role in the statutory scheme. First, a notice is necessary to authorise the remand of the person continuing beyond the 45 days referred to in s 17 (or other period provided in the Extradition Regulations 1988 (Cth)). Secondly, a notice is a precondition to the exercise by a magistrate of jurisdiction under s 19 to determine whether the person is eligible for surrender at all (s 19(1)(b)).
THE TREATY
The Act has been modified, pursuant to s 11, in relation to Finland by reg 4 of the Extradition (Finland) Regulations. Under s 11(1) a regulation may state that the Act applies subject to such limitations, conditions, exceptions or qualifications as are necessary to a bilateral extradition treaty in relation to a specified country, being a treaty a copy of which is set out in the regulations (s 11(1)). And, s 11(1C) provides that the regulations can so provide by being expressed in the form that the Act applies to the country concerned subject to that treaty. Thus, the Treaty between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 and the Protocol between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985, which are set out as Schedules 1 and 2 to the Extradition (Finland) Regulations, have the effect of amending the Act by force of s 11. This requires the Act to be read so that it conforms with the treaty as amended in respect of Finland. (I will refer to this simply as ‘the treaty’.)
The treaty contemplates that only offences punishable under both Finnish and Australian law by imprisonment for more than one year may give rise to extradition obligations between Australia and Finland (Art 2(1)). The treaty expressly provides that extradition shall also be granted for offences of aiding, abetting, counselling or procuring the commission of offences referred to in Art 2(1), or being an accessory before or after the fact or attempting or conspiring to commit any of those offences (Art 2(2)).
Article 2(5) of the treaty provides that in determining whether an offence is an offence against the law of both Australia and Finland, ‘the totality of the Acts or omissions alleged against the person whose surrender is sought shall be taken into account without reference to the elements of the offences prescribed by the law of the Requesting State’. Art 5(2) provides that a requesting State is to be afforded an opportunity to supplement its request before final determination on the request for extradition pursuant to that provision. Art 5 deals also with situations in which extradition may otherwise be refused. Critically, Art 7 provides:
‘1.A request for extradition shall be made in writing. All documents submitted in support of a request for extradition shall be duly authenticated.
2. The request for extradition shall be accompanied:
(a)if the person is accused of an offence – by warrant for the arrest or a copy of the warrant for the arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the fugitive in respect of each offence;
…
(d)in all cases by documents setting out the relevant provision of the statute, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case a statement of the punishment that can be imposed for the offence;
…
3.To the extent permitted by the law of each Contracting Party extradition may be granted to the person sought pursuant to the provisions of this Treaty notwithstanding that the requirements of paragraph 2 of this Article had not been complied with provided that the person sought consents to an order for his extradition being made.’
If the requested State considers that the evidence or information furnished in support of a request for extradition is not sufficient in law, it may request that additional evidence or information be furnished within such time as it specifies (Art 9(1)). If that material is not furnished or there is insufficient material, the person may be released from custody but that release, by force of Art 9(2), is not to preclude the requesting State from making a fresh request for the person’s extradition.
SENATOR ELLISON’S S 16 NOTICE
BACKGROUND
Mr Tervonen was provisionally arrested on 4 July 2006 pursuant to s 12 of the Extradition Act. The 45 day period of his remand expired on 18 August 2006 (s 17(2)(a)). Senator Ellison was informed by the Assistant Secretary of the International Crime Co-operation Branch of the Attorney-General’s Department on 17 August 2006 of these matters and of the fact that Finland had made a request for Mr Tervonen’s extradition on 2 August 2006. The Minister was told that supplementary information in support of the request had been received only on 17 August 2006. A briefing note to the Minister set out these background matters. It attached each of the 8 warrants for Mr Tervonen’s arrest issued by the Finnish Courts. Mr Tervonen’s extradition was sought in respect of nearly 100 fraud, company, accounting and tax offences.
The Assistant Secretary recommended that the Minister sign the draft s 16 notice attached to the briefing paper. The Minister’s attention was drawn to s 16(2) and the requirements of Art 7 of the treaty. He was advised that the requirements of s 16 of the Act and of the Treaty had been met for the offences listed. The Assistant Secretary’s advice in relation to the questions which the legislation required to be addressed was contained in an attachment to the briefing note. The Assistant Secretary also attached to the briefing note the advice of the Commonwealth Director of Public Prosecutions (‘CDPP’) on dual criminality. Senator Ellison was advised that he could be of the opinion that if Mr Tervonen had engaged in conduct constituting each of the Finnish offences listed in the s 16 notice in New South Wales at the time the extradition requested had been received (August 2006), each of the offences would have constituted an extradition offence in relation to Australia. The Minister was advised that some of the offences listed in Finland’s extradition request had not been included in the draft s 16(1) notice. This was said to be because the CDPP could not establish dual criminality for those offences and so s 16(2)(a)(ii) could not be satisfied in respect of those offences.
On 18 August 2006 Senator Ellison signed the s 16 notice without amending it. It described a total of 77 offences in 56 numbered subparagraphs, some of which related to one offence and others to more than one offence.
MUST THE MINISTER RECEIVE ALL OF THE DOCUMENTS PROVIDED BY FINLAND IN ORDER TO PERFORM THE STATUTORY FUNCTION UNDER S 16?
Mr Tervonen argued that Art 7(2) of the Treaty required that the Minister personally must receive each document which had to accompany the request for extradition. He pointed to the terms of s 16(1) as referring to receipt of a request for extradition of a person and to s 11 and Art 7(2) as requiring a number of documents to accompany a request. He asserted that such a construction followed because s 16 referred to the Attorney-General by name in connection with the performance of the functions and exercise of the powers conferred on that Minister. Mr Tervonen said this led to the inference that the Parliament intended the functions to be performed and the power to be exercised in their entirety by the Attorney-General, or responsible minister.
A full and accurate summary of all material matters and facts ordinarily would enable a minister to discharge a function which legislation required be performed personally by the minister. A minister who acted on such a full and accurate summary would not have delegated any part of the decision-making process to the officials who prepared the summary. If, on the other hand, the summary or other material provided by the department or the minister’s advisers omitted a material fact, then the minister would not make a decision on the basis of what parliament required him or her to take into account. Thus the minister would not perform the very function which parliament intended be performed: cf: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 31 per Gibbs CJ. Indeed, depending on the volume of material, a full and accurate, but succinct, summary of material may assist a minister properly to perform the function of exercising the discretion personally confided upon him or her by the statute.
Where a statute requires a minister to exercise a discretion personally and the material put before him or her by the department fails to draw to his or her attention a relevant fact which is not insignificant or insubstantial, a valid decision cannot be made because the minister will not have before him or her all relevant material: Peko-Wallsend 162 CLR at 30-31 per Gibbs CJ, 37-38 per Mason J, 65-67 per Brennan J, 71 per Dawson J. If a department were to determine which facts or matters are provided to the minister for him or her to take into account to exercise such a discretion, then the decision-making function will be bifurcated impermissibly, because the department will have assumed a delegation of power which the statute did not permit: namely, the power to decide what facts and matters the minister may take into account. That bifurcation is not permitted where the statute requires the minister personally to exercise the discretion, for the reasons explained by Mason J in Peko-Wallsend 162 CLR at 37-38.
Thus, in order to form the opinion that a person is an extraditable person under s 16(2)(a)(i), the Attorney-General must consider whether the requirements of s 6 (which defines ‘extraditable person’) have been met. If the request for extradition is based on one or more warrants for the arrest of the person, the Attorney-General must be of opinion that each warrant has been received and that it satisfies the requirements of s 6 (and here, Art 7(2) of the treaty). The Attorney-General must see what has been provided with the request for extradition as the warrant (or its translation) in order to form the opinion in s 16(2)(a)(i). It would not be sufficient for the Attorney-General merely to be told that such a warrant existed or to have a summary of it and its contents relating to the offence or offences concerned. That is because the Act requires the Attorney-General to form an opinion that a warrant meeting the terms of s 6 actually exists.
Article 7(2)(a) of the Treaty requires the request for extradition to be accompanied by a copy of the warrant together with the statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person whose extradition is sought in respect of each offence. The statement of each offence is a matter which may be capable of accurate summation, as may the statement of the acts or omissions. Much will depend upon the form in which the extradition country presents the material. As became apparent when the brief provided to Senator Johnston was tendered, he was confronted with over 250 pages of material which Finland had furnished in support of its request. The material was by no means easy to follow or digest in the form in which it was presented. As Brennan J said in Peko-Wallsend 162 CLR at 66:
‘The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.’
I am of opinion that the Minister can form the opinion in relation to the conduct of the person for which s 16(2)(a)(ii) provides by use of a full and accurate summary of that conduct. I reject Mr Tervonen’s argument that s 16(2)(a) and or Art 7(2) of the treaty require the Minister to be provided with the full material furnished by Finland as the requesting State.
DID THE FINNISH WARRANTS SATISFY THE CRITERIA IN S 6(A)(I)?
Each of the Finnish warrants recited that Mr Tervonen was ‘suspected on probable cause’ of one or more offences. Mr Tervonen argued that the language of the warrants did not meet the threshold set in s 6(a)(i) of being warrants which were in force for his arrest ‘… in relation to an offence … against the law of [Finland] that the person is accused of having committed …’. He argued that being suspected on probable cause was something less than being accused of having committed an offence.
He pointed to warrant 3 which stated that Mr Tervonen was ‘suspected on probable cause’ of four offences. Under the heading ‘Claims and Answers’ the warrant recorded that a written claim for arrest was ‘… attached to this decision’ and that the prosecutor ‘… said that a European Arrest Warrant and an international wanted notice would be issued against Tervonen in order to get him to respond to the charges against him. The European Arrest Warrant will aim at the extradition of Tervonen for all the suspected offences, for which it will be possible to raise charges’. Warrant 2 contained a similar statement in respect of the offences it recorded.
Each of warrants 2 and 3 is dated 15 October 2004. The material prepared by Finland suggested that Mr Tervonen had left Finland immediately after being released from a sentence of imprisonment in August 2004. Warrant 1, issued on 23 August 2004, recorded that Mr Tervonen had failed to attend the main hearing of his criminal case on that day despite having been summonsed. Warrant 1 recited that he had claimed to have been ill and that this information had been relayed by his female partner to Mr Tervonen’s lawyer. Warrants 2 and 3 referred to warrant 1 as showing that Mr Tervonen had failed to attend a court session without a legal excuse.
I am of opinion that the references to a European Arrest Warrant in warrants 2 and 3 were open to be considered by the Minister as reflecting a process then being considered for the purpose of having Mr Tervonen come before the Finnish Court system. Warrants 2 and 3 stated that the European Arrest Warrant and international wanted notice would be issued ‘in order to get him to respond to the charges against him’. In the absence of any evidence to the contrary, that provided a firm basis for the Minister to consider that those warrants reflected actual charges which had been brought by the Finnish prosecution authorities against Mr Tervonen. The reference to ‘all the suspected offences for which it will be probable to raise charges’ in each of those warrants may be a reference to other charges which were either pending or, at that stage, proposed to be laid (e.g. warrant 4 was issued on 8 April 2005; warrant 5 was issued on 1 September 2005).
Mr Tervonen argued that on their face none of the 8 warrants amounted to an accusation that Mr Tervonen had actually committed an offence or that he was ‘accused’ of having done so within the meaning of s 6(a)(i). He said that a mere statement in the warrants that his arrest was claimed and that he was ‘suspected with probable cause of the following criminal acts’ which were then set out was insufficient to satisfy s 6(a)(i).
In Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word ‘accused’ in s 6(a)(i) of the Act, noting:
‘It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.’
The Attorney-General cannot be expected to be an expert in foreign law: Williams 157 FCR at 298 [49]. Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer 185 CLR 528, illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person.
Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the Court which issued the warrant considered he ought be arrested.
In the context of Australian law, a statement that a person has been arrested by the police and charged with an offence is capable of bearing a meaning that the police suspected him or her of having committed the offence and that the arresting officers had reasonable cause for doing so: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J. That case dealt with defamatory meanings that might be conveyed to ordinary, reasonable Australians by a statement of a police arrest and charge.
Each warrant, on its face, was termed a ‘warrant’. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer 185 CLR at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i).
FURTHER MATERIAL BEFORE SENATOR JOHNSTON AS TO S 6(A)(I)
Senator Johnston had Finland’s request for extradition before him. Finland stated there that it sought Mr Tervonen’s extradition ‘on the basis of the offences detailed in the appended warrants for arrest, for pre-trial investigation and prosecution’. Finland provided supplementary information dated 14 August 2006 in support of the request for extradition. That was also before Senator Johnston. It stated that ‘Tervonen’s offences are white-collar crime of which it is very hard to get unambiguous evidence and for which trials many times take weeks. At this stage of the procedure and investigations the information provided is as detailed as possible’.
This material provided an additional basis why it was open to Senator Johnston to form the opinion that Mr Tervonen was an extraditable person under s 16(2)(a)(i). I am of opinion that it was open to him to have formed that opinion.
VALIDITY OF SENATOR ELLISON’S S 16 NOTICE
In submissions, the Minister pointed out that the material presented to Senator Ellison for his consideration accorded with what, in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560; 158 ALR 394, Cooper J had outlined was appropriate to be before him to form the opinions required by s 16.
However, in Williams at 157 FCR at 296 [42], the Full Court held that Cooper J’s approach was incorrect. They held that s 16(2)(a)(ii) of the Act required the Minister to have before him or her a statement of what was alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition was sought: Williams 157 FCR at 297 [45], 298 [49]. In that case the material before the Minister had not included a statement of the elements of the offence in the extradition country. Gyles, Allsop and Buchanan JJ said (Williams 157 FCR at 298 [50]):
‘The opinion which must be held by the Attorney General (or the responsible Minister) under s 16(2)(a)(ii) must relate to, and be based on, actual conduct said to constitute, in a factual sense, the commission of an identified offence. In the present case there was no information before the Minister to furnish that knowledge. Accordingly, the Minister was not in a position to form an opinion about Mr Williams’ conduct, whether in reliance on advice or personally, so as to conclude that the requirements of s 16(2)(a)(ii) were met. As a result the opinion was not validly formed.’
The CDPP’s advice on dual criminality which was before Senator Elllison discussed each of the sets of charges in the 8 warrants separately, some with greater, and some with lesser, detail. That advice was the only source of information before Senator Ellison as to the conduct of Mr Tervonen for the purpose of his forming an opinion under s 16(2)(a)(ii) whether, if equivalent conduct had occurred in Australia at the time at which the extradition request was received, that conduct or equivalent conduct would have constituted an extradition offence in relation to Australia.
Articles 7(2)(a) and (d) of the treaty required that the request for extradition should be accompanied by the warrant, a statement of the offence for which extradition was sought and ‘a statement of the acts or omissions which are alleged against the fugitive in respect of each offence’, together with a statement of the relevant Finnish enactment creating the offence. Finland had provided all this material to the department. References to Finnish statutory provisions were set out in the CDPP’s advice, but none of the text of the relevant legislation was included in the material provided to Senator Ellison. So, apart from the warrants, the Minister did not have before him any of the material concerning Mr Tervonen’s conduct which Finland had provided under Art 7 of the treaty.
EXAMPLES OF THE MATERIAL BEFORE SENATOR ELLISON
Warrant 1 was issued by Helsinki District Court on 23 August 2004. The first offence which it identified was in the following terms:
‘The offences of which Tervonen is suspected on probable cause and for which the Prosecutor demands punishment for Tervonen.
1) Aggravated fraud between 22 May and 01 October 2002, Helsinki.’
The information in the CDPP’s advice before Senator Ellison concerning offence 1 in Warrant 1, and Mr Tervonen’s conduct, was as follows:
‘WARRANT 1 – 23/8/04 – HELSINKI DISTRICT COURT
Offence 1 – Aggravated Fraud – Chapter 36, section 2(1) Penal Code
1.The allegation is that Tervonen and others misled a number of parties to deliver goods or services to them on credit or against invoices with no intention or financial ability to pay for the orders, thereby causing a loss to the injured parties. They gained control of, and used a company, Teemun Purku, the board member and managing director of which was Teemu Liukkonen. Liukkonen in reality did not have control over the company. Accounts were opened with an overdraft facility with several suppliers and service providers. The goods and services were ordered from those companies using the name Teemu Liukkonen.
2.Each of the companies which delivered goods and services is specified. However, it is not stated in each case whether the particular company actually lost money. In some cases it is stated that there was a loss to the company.
3.If it is accepted that at the time the orders were placed, there was no intention or ability to pay for the goods, the conduct would amount to obtaining a valuable thing or a financial advantage by deception contrary to section 178BA of the Crimes Act 1900 (NSW). The maximum penalty for an offence against section 178BA is imprisonment for 5 years.’
This offence became the subject of par (1) in Senator Ellison’s s 16 notice. The elements of Chapter 36, section 2(1) of the Penal Code were not before the Minister. As the Full Court recognised in Williams 157 FCR at 298 [49], the Attorney-General or responsible Minister cannot be taken to be an expert in the foreign law. Rather, the Minister must be expected to form a view about whether identified acts or omissions (or equivalent conduct) would have constituted an extradition offence in relation to Australia.
The allegations concerning Mr Tervonen were set out in the CDPP’s advice at a level of generality which did not identify any precise act or omission which Mr Tervonen himself was alleged to have done or omitted to do. Rather, Mr Tervonen and others were alleged to have misled a number of parties. This allegation did not identify what Mr Tervonen, or the others for that matter, did to mislead any person. Next, the CDPP’s summary asserted that Mr Tervonen and the others gained control of a company in circumstances where its managing director was said not to have control over it.
The CDPP’s advice did not put before Senator Ellison any act or omission of Mr Tervonen relating to:
·his or ‘the others’ gaining control over the company or overriding its director;
·why the director ‘in reality did not have control over the company’;
·the opening of accounts ‘with an overdraft facility with several suppliers and service providers’;
·what an ‘overdraft facility’ was or how it was operated on for that purpose;
·how the goods and services were ordered from the supplier companies ‘using the name’ of the director.
Next, the CDPP noted that while each company which delivered goods or services had been specified, the Finnish authorities had not stated whether each company concerned had suffered any loss.
There may be differences between Finnish law and Australian law as to duplicity in bringing criminal charges: see Johnson v Miller (1937) 59 CLR 467. However, in relation to an equivalent Australian offence for the purposes of s 16(2)(a)(ii) it was essential for the material before Senator Ellison to identify particular conduct of Mr Tervonen or its equivalent, which would have constituted, without duplicity, an offence here. The particular acts or omissions of Mr Tervonen in placing an order needed to be identified, together with the basis on which that conduct could have amounted to the obtaining of a valuable or financial advantage by deception contrary to s 178BA of the Crimes Act 1900 (NSW).
However, there was a lack of any particularity in the material on which Senator Ellison was asked to form an opinion that s 178BA of the Crimes Act would have been contravened had Mr Tervonen engaged in the same or equivalent conduct in New South Wales. In a broad way, the CDPP’s summary suggested a connection between Mr Tervonen and others in misleading third parties. But, the CDPP did not set out who lacked an intention or ability to pay for the goods, or what Mr Tervonen’s role was in relation to the formation of that intention. Given that it is implicit in the CDPP’s summary that some goods were either actually paid for or no loss was suffered as a result of the order, there may have been a real issue about the proof of any preliminary intention not to pay in a particular instance and whether a particular company or companies was deceived into supplying goods. A company that was ultimately paid in full for goods it sold or which never delivered goods would hardly have conferred a financial advantage on the recipient by means of the deception. As Dixon J said in Johnson v Miller 59 CLR at 487:
‘Prima facie, but one offence can be proved under one charge. For, except to prove intent or system and to exclude accident or mistake, evidence that accused persons committed other like offences is seldom relevant to the issue of guilt. But, if the present case fell within the prima facie rule, plainly to admit evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule.’
This passage highlights the necessity that the facts must be stated in such a way that the Minister can be satisfied that the particular conduct, being acts or omissions of the person whose extradition is sought, would have been sufficient to constitute an extradition offence in relation to Australia. Dixon J explained that a prosecutor must identify not only the legal nature of the offence with which a defendant is charged, but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller 59 CLR at 489-490; see too John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ; see Williams 157 FCR at 298 [50]. The position is similar in respect of European arrest warrants: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at 52 [48] per Lord Hope of Craighead with whom the rest of the House agreed on this issue: see at 39 [2], 58-59 [71], 59 [72], 61 [82].
The global summary contained in the CDPP’s advice stated a conclusion drawn from primary material which was not separately stated. The conclusion was embarrassing in terms of identifying what offence was committed. It left the reader to guess or speculate about what the acts or omissions of Mr Tervonen were which led to the stated conclusion. Nor was it clear whether Mr Tervonen obtained the advantage alleged as a principal or whether he aided and abetted others to obtain it.
No doubt the Minister often would be assisted by advice from the CDPP in forming an opinion for the purposes of s 16(2)(a)(ii). Such advice can distil or summarise material, but the Minister must still be provided with all of the conduct (acts or omissions) of the person whose extradition is sought on which he or she must form an opinion. Since all that was before Senator Ellison was the CDPP’s unspecific summary of the conclusions he drew from fuller material there was no basis on which the Minister could form an opinion about what Mr Tervonen did or omitted to do. Nor was the person identified who obtained any financial advantage by deception.
For these reasons, I am of opinion that the statement in the CDPP’s advice of the basis for offence 1 in warrant 1 is so deficient in detail and particularity that the Minister could not reasonably have been satisfied on that material that any acts or omissions of Mr Tervonen, or equivalent if committed in New South Wales, could have established a contravention of s 178BA of the Crimes Act. There was, therefore, no basis on which Senator Ellison could have formed the opinion required under s 16(2)(a)(ii) in respect of offence 1 in warrant 1.
The CDPP’s advice in relation to offence 1 in Warrant 1 was more detailed than in respect of some other offences. That advice was the sole source before Senator Ellison from which he could inform himself of Mr Tervonen’s conduct in forming an opinion for the purposes of s 16(2)(a)(ii). Of course, the CDPP had other material before him on which he based his advice. But the deficiency of the CDPP’s advice as the basis for Senator Ellison to form an opinion under s 16(2)(a)(ii) is illustrated by the above example and those which follow below.
The CDPP’s advice in relation to offence 2 in warrant 1, which became the subject of par (2) in the notice, was similar in its failure to identify any act or omission of Mr Tervonen. Thus, the concrete exercise described by Gleeson CJ, McHugh and Heydon JJ in Truong v The Queen (2004) 223 CLR 122 at 142 [29], 143 [33] (and see too per Hayne J at 185 [189], 187 [196]-[197]) could not be performed because the description of the factual elements failed to identify acts or omissions of Mr Tervonen.
Similarly the CDPP’s advice in relation to offence 4 in warrant 1, which became the subject of par (3) in the notice, asserted that Mr Tervonen acted in concert with one Seppala and ‘ordered, hired or otherwise intentionally persuaded three persons to order goods from various suppliers’ (emphasis added). Once again, this description is too general. If the case were based on circumstantial evidence, the acts or omissions of Mr Tervonen from which the inference of his complicity could be drawn needed to be stated. Did Mr Tervonen order one of the three people to do something? Did he hire one of them to do it? Did he ‘otherwise intentionally persuade’ someone? Or, did he direct Seppala to do one or more of those things? As Gleeson CJ, McHugh and Heydon JJ observed in Truong 223 CLR at 143 [33] (in relation to whether a person extradited to Australia on charges of conspiracy to kidnap and murder a man could be convicted of the substantive offences of the kidnap and murder by procuring them to occur):
‘Agreement (here, agreement to commit a crime) is the essence of conspiracy, but the nature and scope of the alleged agreement is important when performing the exercise, required by the statute, of identifying the acts or omissions by virtue of which the particular offence of conspiracy in question has, or is alleged to have, been committed.’
The generality and abstraction of the CDPP’s description of offence 4 in warrant 1 was such that Senator Ellison could not have formed the opinion required by s 16(2)(a)(ii) in respect of par (3) of his s 16 notice. There was a similar absence of acts or omissions of Mr Tervonen in the material before Senator Ellison in respect of the following:
Warrant
Offence number in warrant
Paragraph number in Senator Ellison’s s 16 notice
1
5
4
1
8
6
1
9
7
1
10
8
1
11
9
2
1 and 2
10
2
5
12
(see below)
4
1
17
(see below)
4
2
18
4
4
19
4
5
20
4
6
21
4
7
22
4
10
23
5
1-8, 10-14, 16-19, 21, 22,
24-28, 30-33, 35-39, 41-43,
45-56
24-52
(see below)
7
1
55
8
1
56
(see below)
Offence 5 in warrant 2 was described as a registration offence under Chapter 16, section 7(1) of the Finnish Penal Code. This became the subject of par (12) in Senator Ellison’s s 16 notice. The CDPP described it in these terms:
‘The allegation is that [Mr] Tervonen, together with others, provided false information to the National Board of Patents and Registration of Finland by providing information to be entered in the register …’
that three named persons had taken up particular positions in respect of a company when none of them had consented to do so. The CDPP continued:
‘Whilst it is not directly stated in the acts and omissions, there is a reference under the heading Evidence to the fact that the signatures of [two of the persons] have not been made by the persons themselves. If the magistrate accepts that this information forms part of the statement of acts and omissions, the conduct may amount to an offence of using a false instrument contrary to s 300(2) of the Crimes Act 1900 (NSW).’
The question for Senator Ellison was not whether the magistrate could accept whether the information formed part of the statement of the acts or omissions. Rather the Minister’s statutory duty was to form an opinion under s 16(2)(a)(ii) whether Mr Tervonen’s conduct, acts and omissions before him, had they or equivalent conduct occurred in New South Wales, would have constituted an extradition offence. The way in which Mr Tervonen was alleged to have provided false information was not stated in the material before Senator Ellison.
Moreover, s 300(2) of the Crimes Act 1900 (NSW) provided that the person who used the instrument had to know it to be false and to use it with the intention of inducing another person to accept that it was genuine and, because of that acceptance, to do or not do some act to that person’s or another’s detriment. The CDPP’s advice did not identify what Mr Tervonen’s conduct was beyond the conclusion that he provided false information. The role of the ‘others’ with whom he was alleged to have acted was not explained. Nor did the CDPP’s advice address his knowledge of the falsity or his intention in providing the information.
Since the Minister did not have any more detail than that above, he could not have formed the opinion that he did in relation to offence 5 in warrant 2.
Similarly, the discussion of warrant 4 in the CDPP’s advice contained no acts or omissions of Mr Tervonen from which Senator Ellison could form any opinion under s 16(2)(a)(ii). For example, the CDPP described offence 1 in warrant 4, which became the subject of par (17) in Senator Ellison’s s 16 notice, in totality, as follows:
‘Offence 1 – Aggravated Tax Fraud – Chapter 29, Section 2 Penal Code
53.If it is accepted that Tervonen is an officer of Creative Builders Oy, within the meaning in the Corporations Act, his conduct may amount to an offence of dishonest use of position contrary to section 184(1) or section 184(2) of the Corporations Act 2001 (Cth).
54.The maximum penalty for an offence against section 184(1) and section 184(2) is imprisonment for 5 years (Schedule 3, Item 30).’
Senator Ellison did not have before him any description of any act or omission of Mr Tervonen which the CDPP referred to as ‘his conduct’. Senator Ellison could not have formed an opinion under s 16(2)(a)(ii) as to how Mr Tervonen used any position as an officer of the company or, indeed, if he could be found to be an officer of it. The opening words ‘If it is accepted that Tervonen is an officer’ begged the question as to what basis there was for considering that he could have been an officer of the company. No conduct at all was discussed. There was no basis on which Senator Ellison could form any opinion in relation to Mr Tervonen’s conduct referred to, whatever it was, under Australian law.
Warrant 5 claimed that Mr Tervonen was:
‘… suspected with probable cause of the following criminal acts:
1)Aggravated fraud, attempted aggravated fraud, five counts of aggravated forgery and two registration offences committed between 1 January and 2 August 2004 in Helsinki and in the territory of Finland.
2)Aggravated fraud, attempted aggravated fraud, two counts of aggravated forgery and two registration offences committed between 1 January and 27 May 2004 in Helsinki and in the territory of Finland.
3)Aggravated fraud, five counts of aggravated forgery and two registration offences committed between 1 January and 19 May 2004 in Helsinki and in the territory of Finland.
4)Aggravated fraud, three counts of aggravated forgery and two registration offences committed between 1 January and 1 July 2004 in Espoo and Helsinki and in the territory of Finland.
5)Aggravated fraud, two counts of aggravated forgery and two registration offences committed between 1 January and 9 July 2004 in Vantaa and Helsinki and in the territory of Finland.
6)Aggravated fraud, three counts of aggravated forgery and two registration offences committed between 1 January and 3 June 2004 in Vantaa and Helsinki and in the territory of Finland.
7)Three counts of aggravated forgery and a registration offence committed between 1 January and 28 June 2004 in Helsinki and in the territory of Finland.
8)Two counts of aggravated forgery and an attempted registration offence committed between 1 January and 12 July 2004 in Espoo and in the territory of Finland.
9)Three registration offences and six counts of forgery committed between 1 January and 17 March 2004 in Helsinki and in the territory of Finland.
Grounds
The grounds are detailed in the appended claim for arrest.’
There was no appended claim for arrest included in the material before Senator Ellison. The CDPP commenced his consideration of warrant 5 by stating:
‘It is alleged that Tervonen was involved in a scheme with a number of other persons in which they hired persons by the name Soderqvist and Raappana to make application for loans using false documentation and thereby have the real estate registered.
75.The advice in relation to these offences is premised on the fact that if a Magistrate accepts that the acts and omissions are sufficient, offences would be found for dual criminality purposes based upon aiding, abetting, counselling or procuring the commission of those offences.
Offences 1 and 2 – Aggravated Forgery – Chapter 33, section 2 Penal Code
Offence 3 – Registration Offence – Chapter 16, section Penal Code
76.The offences relate to the registration of title to real estate acquired by Flamelle Oy. The application was accompanied by a forged sales contract and a forged bank receipt of transfer of tax payments. The documents were delivered to the Helsinki District Court, resulting in the entering of false information on the National Land Information System.
77.The conduct in relation to each of these offences would amount to offences of using a false instrument contrary to s.300(2) of the Crimes Act 1900 (NSW). The maximum penalty for the offence against s.300(2) is imprisonment for 10 years.
78.The conduct in relation to offences 1 and 2 may also amount to an offence of making a false instrument contrary to s.300(1) of the Crimes Act 1900 (NSW). The maximum penalty for the offence against s.300(1) is imprisonment for 10 years.’ (emphasis added)
The CDPP’s description of offences 1, 2 and 3 in warrant 5 became the subject of pars (24) and (25) in Senator Ellison’s s 16 notice. The only act or omission referred to by the CDPP explaining Mr Tervonen’s alleged conduct in relation to all of the offences in warrant 5 was his involvement in a scheme with a number of other persons. There was no identification of what he did to be ‘involved in a scheme’. Nor was there any statement of what Mr Tervonen did or omitted to do from which a judgment could be made as to the sufficiency of those acts or omissions or equivalent conduct to establish an offence under ss 300(1) or (2) of the Crimes Act by him. As the CDPP said, his advice was premised on a magistrate accepting that the (unspecified) acts and omissions of Mr Tervonen were sufficient on which to find dual criminality. The CPDD’s further discussion of the basis upon which the large number of charges under warrant 5 could be established did not provide or identify any acts or omissions of Mr Tervonen.
The absence of any detail as to Mr Tervonen’s conduct was even more pronounced in the offences the subject of pars (35)-(40) and (45)-(52) in Senator Ellison’s notice. These were included without any conduct at all being identified. For example, the 9 offences described in par 9 of warrant 5, as ‘three registration offences and six counts of forgery’, were discussed by the CDPP in the following cursory way:
‘Offences 48, 49 and 50 – Registration Offence – Chapter 16, section 2 Penal Code
Offences 51, 52, 53, 54, 55, 56 – Forgery – Chapter 33 section 1 Penal Code
113.Offences 48, 49 and 50 – using a false instrument contrary to s.300(2) of the Crimes Act 1900 (NSW) – maximum penalty imprisonment for 10 year.
114.Offences 51, 52, 53, 54, 55, 56 – using a false instrument contrary to s.300(2) of the Crimes Act 1900 (NSW) – maximum penalty imprisonment for 10 year.’
These offences became the subject of pars (51) and (52) of Senator Ellison’s notice which read as follows:
‘(51)Three counts of Registration Offence between 1 January 2004 and 17 March 2004, contrary to Finland’s Penal Code, Chapter 16, section 2.
(52)Six counts of Forgery between 1 January 2004 and 17 March 2004, contrary to Finland’s Penal Code, Chapter 33, section 1.’
The CDPP’s consideration of offences 48, 49 and 50 in warrant 5 was confined simply to setting out a number for each of the offences, describing it in a general way and referring to the section of the Finnish statute to which the numbered offence related. There was no information whatsoever provided about the registration offences, let alone the conduct of Mr Tervonen alleged to give rise to them. The Minister had no information about any conduct of Mr Tervonen in respect of offences 48, 49 and 50 on which to form the opinion required in s 16(2)(a)(ii) to justify him signing the s 16 notice based on this material: Williams 157 FCR at 296-297 [45], 298 [50]. Other offences were included in Senator Ellison’s notice, such as aggravated fraud and aggravated forgery (pars (46) and (47)) without any discussion about what the conduct was. The Minister formally conceded that pars (34)-(52) of Senator Ellison’s s 16 notice should be severed from his notice. This concession was said to be made because the Minister did not have sufficient material before him to enable him to form the opinion required by s 16(2)(a)(ii) in respect of pars (34)-(52). It was correctly made.
Warrant 8 asserted that Mr Tervonen was suspected ‘with probable cause’ of the following criminal act:
‘Aggravated dishonesty by a debtor, 25 June 2001 to 5 July 2001, Helsinki.’
Warrant 8 stated that the grounds on which that charge was based were detailed in an appended claim for arrest, but no such claim for arrest was included in the material before Senator Ellison.
The CDPP’s advice discussed this count, which became the subject of par (56) of Senator Ellison’s notice, as follows:
‘Offence 1 – Aggravated Dishonesty by a Debtor – Chapter 39, section 1a, Penal Code
125.If it is accepted that Tervonen was an officer of the company within the meaning of the Corporations Act 2001 (Cth), his conduct may amount to an offence of an officer dishonestly using his position with the intention of directly or indirectly gaining an advantage for themselves or someone else, or causing a detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.
126.The maximum penalty for an offence against section 184(1) or section 184(2) the Corporations Act 2001 (Cth), is imprisonment for 5 years (Schedule 3, Item 30).’ (emphasis added)
Once again, the CDPP’s advice did not identify the acts or omissions of Mr Tervonen or the basis on which he could be found to have been an officer of whatever company it was. Because no conduct of Mr Tervonen was identified in the material before Senator Ellison in relation to this charge, he could not have formed the opinion that s 16(2)(a)(ii) required.
SUFFICIENCY OF MATERIAL BEFORE SENATOR ELLISON
In some sections of the advice of the CDPP which were before Senator Ellison, there was material which could amount to a sufficient description of Mr Tervonen’s alleged acts or omissions to enable the Minister to form an opinion under s 16(2)(a)(ii). However, in respect of pars (1)-(4), (6)-(10), (12), (17)-(22), (24)-(52) and (56) of the s 16 notice there was such a dearth of material before the Minister describing Mr Tervonen’s acts or omissions that it would not be possible to form the opinion required by s 16(2)(a)(ii) as to the criminality of Mr Tervonen had he been charged in New South Wales with like offences.
The s 16 notice which Senator Ellison gave was deficient, at least in respect of the paragraphs I have indicated above, because he had no material before him on which he could have formed the opinion s 16(2)(a)(ii) required before he gave the s 16 notice.
IS SEVERANCE OF SENATOR ELLISON’S S 16 NOTICE POSSIBLE?
That raises the question as to whether Senator Ellison’s notice was wholly invalid or only partly so. The Minister argued that I should sever those paragraphs which he conceded, or I have found, to be incapable of being supported.
The Minister relied on authorities on severance of portions of search warrants in support of his argument that the invalid portions should be severed from Senator Ellison’s s 16 notice. There, courts have held that it is possible to sever those parts of a warrant which were issued in excess of power: see per McHugh JA in Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 41D-42B and per Hely J in Williams v Keelty (2001) 111 FCR 175 at 210-211 [151].
The principle upon which those decisions proceeded was an application of provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth). These evince a legislative intention to preserve the validity of so much of an enactment, action or instrument authorised by law as would be supported by use of the power relied upon, notwithstanding that some other part of the enactment, action or instrument in question has been found to be beyond the power relied upon for its making. Thus, s 46(2) provides that if any instrument, such as a notice under s 16(1) of the Extradition Act, made pursuant to an enactment would be construed as being in excess of the authority’s power, ‘… it is to be taken to be a valid instrument to the extent to which it is not in excess of that power’. A search warrant has been held to be such an instrument, as McHugh JA pointed out in Peters 16 NSWLR at 41E. Accordingly, he held that the search warrants in that case were to be read and construed, to the extent that they could be read, as valid instruments. He applied what Dixon J had said in Andrews v Howell (1941) 65 CLR 255 at 281 in relation to ss 15A and 46 of the Acts Interpretation Act. A notice under s 16 of the Act is also such an instrument.
In Andrews 65 CLR at 281 Dixon J said such provisions imposed a burden upon those attacking an entire regulation, part of which was bad, to establish that if the regulation were confined within the limits of the power, the result would be, not a partial application of the law, but a different provision. Alternatively, the attacker had to establish that it was the intention of the Act or Regulation which authorised the making of an instrument, that unless the instrument received its full intended operation, it should not operate at all.
Later, in Bank of New South Wales v The Commonwealth (The Bank Nationalisation Case) (1948) 76 CLR 1 at 370-371 Dixon J expanded upon the principles applicable to the construction of legislation or actions done under the authority of legislation where provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth) displaced the common law doctrine of severance. He explained that there was a common law presumption that the legislature intended its will on any particular matter as expressed in a statute to operate in its entirety and had no intention that something less should be the law (76 CLR at 371; see too The King v Poole; Ex parte Henry [No 2] (1939) 61 CLR 634 at 651 per Dixon J; Victoria v The Commonwealth (The Industrial Relations Act Case) (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; Harrington v Lowe (1996) 190 CLR 311 at 326 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). In the Bank Nationalisation Case 76 CLR at 371 Dixon J discussed ss 15A and the then form of s 46(b) (cp now: s 46(2)) of the Acts Interpretation Act. He said that in applying those provisions:
‘… the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s. 15A and it is important in using s. 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.
Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law.’
When Peters 16 NSWLR 24 was affirmed in Love v Attorney-General (NSW) (1990) 169 CLR 307 the issue of severance of the warrants was put to one side. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that it was clear that a warrant could, and had, to be construed so as not to do what the statute under which it was authorised itself did not purport to do. They held a State statute did not purport to authorise a breach of a federal law, s 219B of the Customs Act 1901 (Cth). They found that the warrants in that case were wholly valid (Love 169 CLR at 323).
It is important to bear in mind that in determining whether a notice given by the Attorney-General or Minister is wholly or partly valid for the purposes of s 16 of the Extradition Act, one of the significant effects of the notice is that it will authorise the detention in custody of the person who is its subject: Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ. In George v Rockett (1990) 170 CLR 104 at 110, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ noted that a search warrant authorised an invasion of premises without the consent of the persons in lawful possession or occupation. They said that the validity of such a warrant was necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the Court noted that the legislature had sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions to his privacy and property. They noted that in enacting the section authorising the issue of search warrants, the Queensland legislature had given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. However, the Court pointed out that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions. They then discussed the exceptions which many State and Commonwealth statutes had made to the common law position. They said (George 170 CLR at 110-111):
‘Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.’
In Williams 157 FCR at 296 [40] the Full Court observed that cases such a Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276, Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J identified two relevant principles upon which the Court may examine, on judicial review, the validity of a notice under s 16 of the Extradition Act. They said that the Court could examine whether the decision-maker had or had not taken relevant, and only relevant, matters into account. If that examination resulted in a conclusion that the material relied on by the Minister was open to be considered, ‘… there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process’. That basis involved whether the decision-maker acted in good faith and had not acted merely arbitrarily or capriciously: Buck 135 CLR at 118-119 per Gibbs J.
There is no suggestion here that the Minister acted otherwise than in good faith. The question is whether, on the evidence, Senator Ellison can be found simply to have relied upon the advice of the CDPP without himself forming independently an opinion on any of the material before him. This is relevant to the application of s 46(2) of the Acts Interpretation Act to save some parts of the s 16 notice when, had the correct test been applied by the Minister, he would have see the patent deficiency of the material to support a great number of the matters included in the draft s 16 notice which he gave. That is to say, the material indicates that the Minister simply accepted the CDPP’s advice or opinion without himself independently forming his own opinion or examining the basis of that advice either at all or with the correct test in mind.
In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120 per Dixon CJ, Williams, Webb and Fullagar JJ referred to the important distinction between a mere insufficiency of evidence or other materials to support a conclusion of fact when the function of finding the fact has been committed to a person or body by the Parliament and, on the other hand, the absence of any foundation in fact for the fulfilment of the conditions upon which, in point of law, the existence of the power depends. They said that it was not enough if the repository of the power, properly interpreting the section of the Act under which it was conferred and applying the correct test:
‘… nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.’
In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 223-224 [39], Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 663-664).
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39], [60] where I applied this principle. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047D-E Lord Wilberforce construed a statutory power in the ‘subjective form’ - ‘if the Secretary of State is satisfied’ - as raising two matters capable of review by the Court. First, where a judgment is to be made by the repository of a power, if the statute requires there to be some facts upon which the judgment is to be exercised, the Court may enquire into whether those facts exist. The evaluation of the facts is for the repository of the power alone, but his Lordship continued:
‘… the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge …’
(See too Attorney-General v Reynolds [1980] AC 637 at 657G-659C per Lord Salmon giving the advice of the Judicial Committee.)
Next, the Minister submitted (in MFI 2) that Finland had proceeded before the magistrate in support of par (58) on a registration offence occurring on 2 June 2004. That was the date that the Vantaa District Court ruled as the effective date for registration of mortgages for a loan to Mr Söderqvist of 208,200 euros. It is significant that the conduct relating to this offence was alleged to have commenced in the beginning of May 2004 when Mr Söderqvist discussed a loan at a bank office in Helsinki. He was alleged to have given misleading information to the bank relating to the grant of the loan. He sent email messages in his name to the bank and provided a forged pay slip to it. On 14 May 2004 the bank granted Mr Söderqvist a loan of 208,200 euros for the acquisition of real estate. And, on the same occasion, at the bank a sales contract for the purchase was signed between Flamelle Oy/Raappana and Mr Söderqvist. Mr Söderqvist was alleged to have allowed the bank to obtain mortgages on the property and to register the title and that the Court, having received those applications on 2 June 2004, the next day decided that they would be effective from the date of their receipt.
All of the activity in relation to pars (57) and (58) occurred while Mr Tervonen was in prison. No explanation in the material appeared to indicate any conduct of the Finnish prisoner, Mr Tervonen, in the commission of the offences in pars (57) and (58). There was no further material before Senator Johnston connecting any conduct of Mr Tervonen to the conduct of Mr Söderqvist in relation to either loan set out above.
I am of opinion that it was not open to Senator Johnston to form an opinion on this material that Mr Tervonen’s conduct would have constituted an extradition offence in respect of either par (57) or (58).
WHAT DID SENATOR JOHNSTON DO AND DID HE HAVE POWER TO GIVE THE S 16 NOTICE?
The purpose of Mr Tervonen’s original remand, after he had been arrested under the provisional arrest warrant, was so that he could be kept in custody for such period or periods as might be necessary for, first, a notice under s 16(1) to be given by the Attorney-General, and then for proceedings to be taken relevantly, under s 19, seeking his extradition (s 15(2)).
One basis of Mr Tervonen’s attack on Senator Johnston’s notice was that that Minister lacked power to make it. There were two prongs to this attack. First, Mr Tervonen argued that two different decision-makers, Senators Ellison and Johnston, could not issue or make a single, amended, s 16 notice. Secondly, he argued that if the whole of Senator Ellison’s s 16 notice were invalid, Senator Johnston could not ‘amend’ it.
The first argument cannot be correct. The Act refers to the Attorney-General, which is a designation of the holder of an office of a Minister of State, as opposed to referring to the individual for the time being appointed to that office. The Parliament must have contemplated that different individuals would hold the office of Attorney-General from time to time because of changes of government, resignation or ministerial reshuffling. Administrative and practical inconvenience would flow from a construction of the Act which required only the same individual to exercise the functions of Attorney-General either in relation to s 16 or other provisions of the act. Moreover, as I have held, two Ministers can administer s 16 of the Act and s 19A of the Acts Interpretation Act allows Ministers other than the Attorney-General to do so. I reject this argument as unsound.
The second argument is more substantial. The Minister argued initially that Senator Johnston’s s 16 notice was a new notice and that his predecessor’s one had no legal status. But, Senator Johnston did not issue a ‘new’ notice, he issued, in terms, an ‘amended notice’.
Mere proof of the absence of power to make part of a notice would not necessarily result in the balance being invalid. This is because s 46(2) of the Acts Interpretation Act deems the balance to be valid unless, as Dixon J explained in Andrews v Howell 65 CLR at 281, Mr Tervonen showed that the balance was not intended to operate in the absence of the invalid portions.
But the problem here is different. It is clear that Senator Johnston intended to make an amendment to the number of offences for which Mr Tervonen could be eligible for extradition to Finland by adding the 7 offences the subject of pars (57) and (58). However, the selective revelation of his legal advice leaves an open question as to what power Senator Johnston actually exercised. I infer that Senator Johnston did not intend wholly to replace Senator Ellison’s s 16 notice. Had that been his intention he would have not have headed the notice as ‘Amended Notice of Receipt of Extradition Request’. Rather he would have had to state that a new notice was being given because the old one was wholly invalid. That would reflect the result of the decision of the Full Court of this Court in Dutton 92 FCR at 578 [12]-[13], that once a (valid) s 16 notice has been issued, it cannot be withdrawn.
In these proceedings, the civil onus of proof on the balance of probabilities applies under s 140 of the Evidence Act 1995 (Cth). That requires the Court to be satisfied on the balance of probabilities of the occurrence or existence of a fact. The Court makes such a finding based on its reasonable satisfaction that the allegation has been established by the evidence, as Dixon J explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; see too Cassell 201 CLR at 193 [18] per Gleeson CJ, Gaudron, McHugh and Gummow JJ.
While Mr Tervonen has the onus of establishing his case, the Minister has gone into evidence by adducing part, and withholding part, of the material before him. The Minister consciously waived privilege on portions of that material on a number of occasions during the hearing. Mr Tervonen could not lead evidence of what remained in the privileged material which the Minister chose not to put before the Court. However, that material which the Minister did choose to put before the Court leaves uncertain whether he addressed the correct question, namely whether the whole of the material enabled him to form the opinion required by s 16(2)(a)(ii) on the paragraph in the notice, or at least so many of them as might have been valid, had he turned his mind to them.
In Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 Lord Mansfield CJ observed, in a passage approved in Weissensteiner v The Queen (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and in Vetter v Lake Macquarie CC (2001) 202 CLR 439 at 454 [36] per Gleeson CJ, Gummow and Callinan JJ with whom Hayne J generally agreed at 477 [107]:
‘It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’
Senator Johnston was asked to issue a notice or amended notice under s 16(1) which would conduce to enabling proceedings to be taken under s 19 for the extradition of Mr Tervonen. Senator Johnston was given all the material which had been provided by Finland to the Attorney-General in support of its request. On the evidence before me (that is, the still partly redacted briefing material given to him by the First Assistant Secretary of the International Crime Co-operation Division of the Attorney-General’s Department) his attention was not directed to which part or parts of Senator Ellison’s s 16 notice might have been invalid. He was not asked to proceed on the basis that Senator Ellison’s s 16 notice was wholly invalid. That raises the question as to what Senator Johnston asked himself in forming whatever opinion he formed in relation to the s 16 notice which he signed.
While, as I have indicated, there were serious deficiencies with respect to the material before Senator Johnston in support of warrant 5, Mr Tervonen has not impugned the adequacy of the balance of the material before Senator Johnston in relation to any of the other warrants so far as that material would support him forming the opinions required under s 16(2)(a)(ii) had Senator Johnston used all or some of that material for that purpose. Mr Tervonen, in fact, conceded that the material before Senator Johnston was sufficient to support the formation of the opinions required under s 16(2)(a) in respect of all of the paragraphs in his notice other than pars (24)-(52) and (57)-(58).
The First Assistant Secretary suggested, at one point, to Senator Johnston that he issue an amended s 16 notice. The Minister was told that, having regard to the decision in Williams 157 FCR 286, the CDPP provided further advice adding an additional 7 offences set out in pars (57) and (58). And, the First Assistant Secretary’s advice also informed Senator Johnston that he had to consider each of the offences in the draft notice and determine whether he was of the opinions in s 16(2)(a)(i) and (ii). The First Assistant Secretary’s briefing note then discussed some matters covering almost a page which were redacted for reasons of legal professional privilege and continued by recommending that he:
‘… issue a new section 16 notice … [redactions made] …
·[redaction made]
·to ensure that the additional (seven) extradition offences [redaction made] are put before the Magistrate for the purposes of his determination under section 19 Extradition Act …’
The Minister was then informed that the Department considered the requirements of s 16 of the Extradition Act and Article 7 of the treaty had ‘… been met for the offences listed in the attached fresh section 16 notice’ (emphasis added).
During the hearing, the parties’ arguments changed from the positions taken in written submissions because more material was revealed from portions of the briefing material given to Senator Johnston after legal professional privilege was partially waived. Ultimately, Senator Johnston’s attention was directed to the CDPP’s fresh advice and he was informed:
‘Taking into account the CDPP advice in relation to the conduct set out in the extradition request from Finland (including the supplementary documentation provided in support of the request), you may be of the opinion that if Mr Tervonen had engaged in conduct constituting the Finnish offences listed in the section 16 notice in New South Wales at the time the extradition request was received (August 2006), that conduct would have constituted extradition offences in relation to Australia.’
From the above, Senator Johnston was asked to consider giving an ‘amended’, a ‘new’ and a ‘fresh’ notice. No distinction was drawn in the briefing material in evidence between these descriptions. The First Assistant Secretary’s briefing note also drew his attention to the fact that Mr Tervonen’s then grounds for his challenge to Senator Ellison’s s 16 notice included a contention that the previous Minister could not have formed the requisite opinion under s 16(2)(a)(ii) and that matter had been listed at that time for hearing on 21 May 2007. The notice which Senator Johnston was asked to sign, and ultimately did sign, was headed ‘Amended Notice of Receipt of Extradition Request’ (emphasis added).
It is not clear from the First Assistant Secretary’s briefing material whether Senator Johnston was asked to consider the whole of the material afresh for the purpose of making amendments, only some of it including that in respect of the new pars (57) and (58), or just those new paragraphs. However, he was not told that it was possible that the whole of Senator Ellison’s s 16 notice was invalid, and that he could issue a completely new one.
Where an administrative decision-maker realises that he, she or it has made a jurisdictional error in an earlier purported ‘decision’ so that the statutory function was never, in fact, performed, he, she or it can consider the matter afresh, unless the legislative regime prevents that occurring: Bhardwaj 209 CLR at 603-604 [5]-[8] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 619 [67] per McHugh J, 644-645 [149] per Hayne J, 649-650 [163]-[165] per Callinan J.
Senator Johnston did not give a fresh s 16 notice. By its very terms, his was an ‘Amended Notice’. Thus, he may have proceeded on the basis that there was a risk some of Senator Ellison’s s 16 notice was invalid or affected by jurisdictional error of the kind identified in Williams 157 FCR 286. But there is no basis in the evidence before me to suggest that Senator Johnston approached the matter completely afresh. I am not prepared to draw an inference that he did, on the incomplete material in evidence and the failure of the Minister to give any direct evidence of his decision-making.
What task Senator Johnston did undertake? Did he simply consider pars (57) and (58), being the amendments to the notice? Or, did he consider the whole of the notice afresh together with all of the material before him so as to come to the requisite opinion under s 16(2)(a)(i) and (ii) in respect of every single paragraph in the s 16 notice which he signed?
It is not uncommon when an amendment is made for the person making it to review the whole document, as amended, for the purposes of seeing that it then, as a whole, reflects that person’s intentions or objectives. Thus, it is conceivable that Senator Johnston read all the material and satisfied himself that it was appropriate to sign the document in its totality, rather than merely focusing on two additional paragraphs that he had been advised to add. The evidence before me does not disclose what portions of Senator Ellison’s notice Senator Johnston was told may have been susceptible to being found to be invalid. It is not possible for me to assess whether Senator Johnston looked at any particular paragraphs to address that question. There is no doubt that he had all of the material before him which had been provided by Finland and was aware of the risk that some, but not all, of the earlier s 16 notice might be invalid.
Senator Johnston did not give evidence as to what he took into account or what he addressed. He could have done so, notwithstanding that for a Minister to give evidence would have been unusual. Such evidence may have clarified what Senator Johnston did. A busy Minister may have some difficulty, even after only one or two months, in recalling precisely what decision-making process he or she undertook in a portfolio requiring a number of individual decisions on a daily basis. I infer that Senator Johnston could not have clarified the actual question he addressed in signing the s 16 notice by any evidence he may have given: Jones v Dunkel (1959) 101 CLR 298.
The material provided by Finland in support of its extradition request covered over 270 pages. In addition to that material, the CDPP’s advice was a further 22 pages long and the ministerial briefing papers comprised over 20 more pages. It is a difficult task to analyse all of that material and form a view in respect of each of the items in Senator Johnston’s s 16 notice. There was no attempt in the material before the Minister to correlate paragraphs in the then draft s 16 notice with any portion of the vast amount of documentary material before him. That material can be pieced together, with considerable patience, by using the CDPP’s advice, considering each individual warrant, then working out which of the charges the CDPP found could have dual criminality and what portions in the voluminous material supported them. It is difficult to imagine that a busy Minister would have had the time to engage in such a perplexing task with such disordered material, especially when his senior advisers had recommended, and the CDPP had told him it was in order for, him to sign the amended notice. It was a task which counsel for the parties essayed, somewhat summarily, for the purposes of the hearing. Each prepared tables referring to parts of the evidence which were said to relate to particular paragraphs in the s 16 notice. But there was only brief reference in argument to the detail of the material and how it supported or failed to support each paragraph in the s 16 notice based on warrant 5.
The Minister relied on the terms of Senator Johnston’s s 16 notice and, particularly, its preface, which reads:
‘To a magistrate before whom the person named in this notice is brought:
I, David Albert Lloyd Johnston, Minister for Justice and Customs of the Commonwealth of Australia, under subsection 16(1) of the Extradition Act 1988, state that an extradition request has been received from Finland, an extradition country, in relation to Jan Atso Tervonen for the following extradition offences:
…’Because of the prescription of form 9 in the Extradition Regulations 1988 (Cth), there was no indication in that notice itself that the Minister had formed any opinion in respect of any or each of the paragraphs or only those the subject of the amendments. If, for example, Senator Johnston had embarked on a process of simply determining whether the additional two paragraphs should be added to Senator Ellison’s notice, he would be amending a notice that had no legal validity. On the other hand, if he were considering the whole notice afresh he would be giving a new notice.
If Senator Johnston simply addressed the question of adding pars (57) and (58), then, for the reasons that I have given, no valid s 16 notice remains extant. That is because the whole of Senator Ellison’s notice was invalid and there was no proper basis on which Senator Johnston could have added to it pars (57) and (58) because he could not have formed the opinion required by s 16(2)(a)(ii).
Senator Johnston may have addressed some unspecified paragraphs of Senator Ellison’s notice, referred to in the redacted portions of the material in evidence before me. But, because of those redactions, it is not possible to know whether Senator Johnston addressed, and made a specific decision in respect of, the portions of his s 16 notice that I have held to be invalid, or other portions. On that state of the evidence, I am not satisfied that Senator Johnston issued any part of the s 16 notice validly, because I do not have any evidence as to the portion or portions, if any, (other than pars (57) and (58)) which he considered.
The last alternative is that Senator Johnston considered the whole matter afresh, and that it is possible to sever the portions of the notice relating to warrant 5 which I have found to be invalid, leaving the balance of the notice intact. In Peko-Wallsend 162 CLR at 40-41, Mason J said:
‘The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228.’
The Minister chose to tender selected portions of the material before him, while retaining claims for legal professional privilege on other portions. The portions on which privilege claims were maintained could have made clear the question which the Minister may have addressed having regard to the effect of the decision in Williams 157 FCR 286 in respect of some portion or portions of Senator Ellison’s s 16 notice that may have been invalid. However, the Minister has not proved whether he had regard afresh to any particular part or parts of Senator Ellison’s notice for the purposes of overcoming any perception of invalidity. Accordingly, the evidence is silent on whether the Minister directed his attention to any possible problem with respect to the paragraphs in the notice he ultimately signed which replicated paragraphs in Senator Ellison’s notice for which I have held there was material on which he could have formed the opinions required by s 16(2)(a).
CAN SENATOR JOHNSTON’S NOTICE BE SEVERED?
Is it possible, as the Minister contended, to sever the invalid portions of Senator Johnston’s s 16 notice under s 46(2) of the Acts Interpretation Act? That provides, as explained above, that the notice is to be taken to be valid ‘… to the extent to which it is not in excess of …’ the power to make it. However, Dixon J explained in the Bank Nationalisation Case 76 CLR at 371 that the statutory presumption would be displaced if rejection or severance of the invalid part would mean that the otherwise unobjectionable portion would operate differently on Mr Tervonen or in some other way produce a different result.
Here, Senator Johnston could have given a wholly fresh notice under s 16 in the form of the one he did. The provisions of s 46(2) of the Acts Interpretation Act would apply to sever the portions of it relating to warrant 5 which I have found to be invalid, while leaving the balance of the notice valid and operative. But, if in signing the notice he asked himself the wrong question (as his predecessor had recently done in Williams 157 FCR 286) or confined the formation of his opinion under s 16(2)(a)(ii) to pars (57) and (58), then the whole notice would be bad because of jurisdictional error, namely the failure to form the opinions required in accordance with s 16(2)(a)(ii) in respect of any paragraphs other than pars (57) and (58). Nothing in s 46(2) would save it.
The only amendment actually made was the addition of pars (57) and (58) and I have held those to be invalid, as I have held the whole of Senator Ellison’s s 16 notice to be. The Minister has put forward in submissions a variety of possible matters to which he may have directed himself, none of which identifies, beyond the intention to add pars (57) and (58), what he was actually doing.
Senator Johnston addressed whether pars (57) and (58) should be added to the ‘amended notice’. But he came to the incorrect conclusion that they should. I am of opinion that he did not consider the whole of the material afresh in such a way as would justify me in severing portions of the notice to preserve its validity. A considerable part of the notice could not have satisfied Senator Johnston had he correctly considered forming an opinion in accordance with s 16(2)(a)(ii). While s 46(2) of the Acts Interpretation Act enables those portions which I have found to be invalid to be severed from the notice, the material in evidence comfortably satisfies me that the Minister was not addressing himself to the correct question when considering the amended notice. As Dixon J said in Avon Downs 78 CLR at 360:
‘It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.’
I am comfortably satisfied that on the material before me, which it was in the power of the Minister to supplement, had he chosen, by revealing in evidence the redacted portions of the material before him, Senator Johnston failed to discharge the exact function he was required to discharge in accordance with law (Vetter 202 CLR at 454 [36]). In those circumstances, it would be wrong to sever portions of the instrument based on mere speculation that, despite the errors I have found, and the absence of evidence of what he was told could be invalid in Senator Ellison’s notice, the Minister addressed the rest of the amended s 16 notice correctly. He has provided no evidence to support a finding that he did. Rather, I am of opinion that by reason of the jurisdictional and other errors in his failure to address those parts of the amended s 16 notice which I have found to be invalid, and on the evidence before me, Senator Johnston did not form the opinions required by s 16(2)(a)(ii) in respect of any paragraph in the notice.
CONCLUSION
For the reasons that I have given, I am of opinion that Mr Tervonen’s challenges have succeeded in substance. In summary, I have formed the preliminary view that, subject to hearing the parties, I should make orders to the effect of:
(a) declaring each s 16 notice invalid;
(b) quashing each s 16 notice;
(c) directing the Minister to issue a notice in statutory form pursuant to s 17(1)(b) of the Act directing a magistrate to order the release of Mr Tervonen from custody;
(d)requiring the Minister to pay Mr Tervonen’s costs.
The parties asked that I provide them with my reasons and an opportunity to address the precise form of relief. I will therefore order that the proceedings be stood over for argument on the appropriate relief to give effect to these reasons.
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 6 November 2007
Counsel for the Applicant: DPM Ash (pro bono pursuant to O 80 of the Federal Court Rules) Counsel for the Respondent: KC Morgan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23, 24 July 2007 Date of Judgment: 6 November 2007
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