Trimbole v The Commonwealth

[1984] HCA 83

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan and Dawson JJ.

TRIMBOLE v. THE COMMONWEALTH

(1984) 155 CLR 186

6 December 1984

Constitutional Law (Cth)—Extradition—Statutes

Constitutional Law (Cth)—Extradition of fugitive offender to Australia from abroad—Reciprocity—Extradition (Foreign States) Act 1966 (Cth), s. 10(4)—Extradition (Republic of Ireland) Regulations, regs. 3,4. Extradition—Fugitive offender—Request to Republic of Ireland—Extradition (Foreign States) Act 1966 (Cth), s. 10(4)—Of what and at what time Governor-General required to be satisfied when making regulation under that Act. Statutes—Subordinate legislation—Regulations required to be laid before each House of Parliament within fifteen days of making—Dissolution of House of Representatives—The Constitution (63 &64 Vict. c. 12), s. 28—Acts Interpretation Act 1901 (Cth), s. 48(1)(c), (3).

Decision

December 6.
THE COURT delivered the following judgment:-
This matter is one of some urgency and we must therefore give judgment immediately. The plaintiff, Robert Trimbole, is an Australian citizen presently residing in the Republic of Ireland. Warrants have been issued in Australia for his arrest on a number of very serious charges. On 26 October 1984, the Australian Embassy requested the Department of Foreign Affairs of Ireland that Trimbole be provisionally arrested and advised that it intended to make a formal request for his extradition to Australia. A requisition or request was made on 4 November 1984. Trimbole was arrested and legal proceedings in connexion with the matter are pending in Ireland. Trimbole has commenced the present proceedings in this Court against the Commonwealth and the Attorney-General claiming declaratory relief and an order restraining the defendants from proceeding further on the request and has issued a summons seeking that relief. The defendants have moved to strike out the statement of claim. (at p188)

2. The request for the surrender of Trimbole is made under the Extradition (Foreign States) Act 1966 (Cth), as amended ("the Act"). There is no extradition treaty between Ireland and Australia. Therefore, authority to make the request for the surrender of Trimbole has to be found in s. 10(4) of the Act and in regulations made under that section. Section 10(4) provides as follows:

"Where the Governor-General is satisfied that, if this Act applied in relation to a foreign state, the law of that foreign state would, with or without any limitations, conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV who are found in that foreign state, or within the jurisdiction of, or of a part of, that foreign state, the regulations may provide that this Act applies in relation to that foreign state or that this Act applies in relation to that foreign state subject to limitations, conditions, exceptions or qualifications specified in the regulations." (at p189)

3. On 26 October 1984, the Governor-General made the Extradition (Republic of Ireland) Regulations. By reg. 3 of those regulations, the Act is applied to the Republic of Ireland subject to the limitations, conditions, exceptions or qualifications specified in reg. 4. The provisions of reg. 4 are immaterial for present purposes. (at p189)

4. A number of submissions have been made in support of the summons. First it is said that the regulations are invalid in that they are not based on "equivalent reciprocity", i.e., on the footing that the law of Ireland and that of Australia allow extradition on broadly the same terms and conditions. In Barton v. The Commonwealth (1974) 131 CLR 477, at pp 485-486 Sir Garfield Barwick C.J. said that the existence of reciprocity is Sir Garfield Barwick C.J. said that the existence of reciprocity is seen as indispensable by many if not all, countries when asked to surrender a fugitive. He recognized that it is for the requested state to decide for itself whether or not it is satisfied with an assurance of reciprocity, but that these considerations circumscribe the exercise of the prerogative to seek and accept surrender from a non-treaty state. Since the decision in that case, the Act has been amended by inserting s. 10(4). That sub-section and the regulations thereunder apply to the present case. The submission is that the Act permits a requisition for extradition to be made to another country only if there is equivalent reciprocity between the two countries, and it was submitted that this does not exist because under the Irish law (so it is said) the plaintiff will be surrendered without evidence whereas under the Australian law an Irish fugitive would be surrendered only on the basis of evidence sufficient to justify trial if the offence were committed in Australia. However, s. 10(4) does not require that the Governor-General should be satisfied that the law of the foreign state provides a reciprocity which corresponds in every detail with the Australian law. It recognizes that the law of the foreign state may impose limitations, conditions, exceptions or qualifications which are not necessarily the same as those of the Australian law. (at p189)

5. It is said that the Governor-General could not have been satisfied that the law of Ireland allowed extradition to Australia and that the condition precedent specified in s. 10(4) was not satisfied. This argument takes as its starting point the fact that the regulations were signed by the Governor-General between 10.45 and 11.15 a.m. on 26 October. That was some time during the night of 25 October or the early morning of 26 October in Ireland. The Extradition Act 1965 (Ireland), was applied to Australia by an order (the Extradition Act 1965 (Pt II) (No. 19) Order, 1984) made under that Act and signed on 26 October 1984. It is said, plausibly, that the Australian regulations were signed before the Irish order was made. However, that is no reason why the Governor-General could not have had the requisite satisfaction under s. 10(4). That sub-section does not provide that the Governor-General must be satisfied that the foreign law does permit the surrender. It provides that if the Act applied in relation to the foreign state, the law of the foreign state would permit the surrender. It contemplates that when the Australian law is applied, the foreign law will apply. As it happens, it seems that the effect of s. 9 of the Interpretation Act 1937 (Ireland) is that the order came into effect at the end of 25 October 1984. But, in any case, it is clear that the Governor-General could have been satisfied that when the Act became applicable to Ireland, the law of Ireland would permit the surrender. (at p190)

6. Next it was said that it is a principle, called the principle of speciality, that a surrendered person will be dealt with only for the crime in respect of which surrender was sought or a crime of which he could be convicted on proof of the facts alleged in support of the requisition. It was said that the fact, if it be a fact, that evidence has not been taken and transmitted to Ireland means that Trimbole will not be able to be sure which are the offences to which the requisition for his surrender relates, or any other offences of which he could be convicted upon proof of the facts on which that requisition was based within s. 23(a)(i) of the Act. If that is so, it has nothing to do with the power to request the surrender of an accused person. The provisions of s. 23 will fall for consideration if and when Trimbole is surrendered. They do not require the provisions of s. 10(4) to be read down in any way. (at p190)

7. Next it is submitted that the wording of the proclamation by which the regulations were made was defective. It reads as follows:

"I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive and being satisfied that, if the Extradition (Foreign States) Act 1966 applied in relation to the Republic of Ireland, the law of that State would, with or without any limitations, conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV of that Act who are found in that State, or within the jurisdiction of, or of a part of, that State, hereby make the following Regulations under the Extradition (Foreign States) Act 1966."

Those words follow exactly those of s. 10(4). However, it is submitted that it does not appear whether his Excellency was satisfied that the Irish law allowed extradition absolutely, or whether it did so subject to conditions, exceptions, or qualifications. There is no substance in this technical ground. The Governor-General declared that he was satisfied that the Irish law would permit the surrender to Australia of persons accused, or convicted of extraditable crimes, within the meaning of Pt IV of the Act, who are found in the Republic of Ireland, and that is enough. (at p191)

8. The next argument submitted is an ingenious one. The House of Representatives was dissolved at noon on 26 October 1984, since an election had been announced. Section 48(1) of the Acts Interpretation Act 1901 (Cth.), as amended, provides, inter alia, as follows:

"Where an Act confers power to make regulations, then, unless the contrary intention appears, all regulations made accordingly-

. . . (c) shall be laid before each House of the Parliament within 15 sitting days of that House after the making of the regulations."

Sub-section (3) provides:

"If any regulations are not laid before each House of the Parliament in accordance with the provisions of sub-section (1), they shall be void and of no effect."

The Constitution provides by s. 28 that:

"Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General."

Therefore, it is submitted, after a dissolution there is a new House of Representatives, so that in the present case after the making of the regulations there could not be fifteen sitting days of the House as it was constituted at the time of the making of the regulations. To accept this argument would be to give an altogether unreal effect to s. 48. There have not yet been any sitting days of the House of Representatives since the regulation was made. The provisions of s. 48(1)(c) of the Acts Interpretation Act may still be complied with. The regulation is valid in the meantime. (at p191)

9. The final argument is that under s. 21 of the Act, the Attorney-General may make a requisition to a foreign state for the surrender of a person, and that the Attorney-General in the present case made a request, but not a requisition. The document of 4 November 1984 is headed "Requisition for an Extradition to Australia from the Republic of Ireland of Robert Trimbole", but it commences, "I, Gareth John Evans, the Attorney-General of Australia, on behalf of the Government of Australia, hereby request . . .". It is doubtful whether this point would have been regarded as a good one in the more literalistic days of the eighteenth century, but it certainly is of no validity at the present time when the courts prefer substance to mere form. The document was clearly a requisition. (at p192)

10. The summons will be dismissed, and the motion to strike out the statement of claim will be granted. (at p192)

Orders

1. Plaintiff's summons dismissed.

2. Defendants' motion to strike out statement of claim granted.

3. Judgment for the defendants in the action with costs.