Brackenridge v New Zealand [1998] QCA 301

"Where it appears that the only matters for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory are matters other than matters arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by, the Full Court of the Supreme Court of that State or Territory".

The list of Acts in the schedule does not include the Extradition Act 1988; of course, that is not surprising, having regard to the dates of passage of the two Acts. The effect of s. 7(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 was considered by the Full Court of the Federal Court in NEC Information Systems Australia Pty Ltd v. Iveson (1992) 36 F.C.R. 258 at 265, but it does not appear to me that the discussion to be found there can affect the outcome of the present case.

3 By reason of the provisions of s. 39 of the Judiciary Act 1903, it is not enough, in order to support the proposition that this Court has jurisdiction to hear an appeal from the Magistrate's decision in the present case, to point to s. 254 of the Supreme Court Act 1995 (Q) which provides so far as relevant that an appeal shall lie to this Court "from every order made by a judge in court or chambers". The State provision indicates the effect to be given to the expression "within the limits of their several jurisdictions" in s. 39(2) of the Judiciary Act 1903, which means of course jurisdiction given by State legislation.

4 The result is, as it appears to me, that the combined operation of State and Federal legislation (the latter being s. 39(2) of the Judiciary Act 1903) confers jurisdiction on this Court to hear the present appeal, unless it has been taken away by subsequent Federal legislation. Ward (above) was a case in which such a question arose - i.e. as to whether the grant of jurisdiction made by s. 39 of the Judiciary Act 1903 had been affected by a subsequent federal statute. There it was argued (587) that the Bankruptcy Act 1966 (C'th) contained a code of jurisdiction in proceedings under the Act; it seems unnecessary here to analyse the relevant provision (s. 273 of the Bankruptcy Act 1966). In Ward the court said of the grant of jurisdiction made by s. 39(2) of the Judiciary Act 1903 that it -

". . . will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s. 39".

5 Reading s. 35(3) in conjunction with s. 35(5) of the Extradition Act 1988, it appears to me sufficiently indicated that the general grant of appellate jurisdiction, by s. 39(2) of the Judiciary Act 1903, is overridden. Section 35(3) says that the relevant appeal lies "to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court" and that language seems inconsistent with an intention that, under the general grant of Federal jurisdiction, an appeal will also lie to this Court from an order of the Supreme Court. Then, s. 35(5) even imposes a special restriction on applications for a grant of special leave from the High Court and that reinforces the notion that rights of appeal were intended to be strictly confined. I have noted that in Tse Chu-Fai v. Governor of the Metropolitan Reception Centre (1997) 150 A.L.R. 566 it was assumed that a State provision enabled an attack on a magistrate's decision made under the Extradition Act 1988, by means not specified in that Act; the case went to the High Court, where the procedure adopted attracted no comment: [1998] HCA 36; (1998) 72 A.L.J.R. 782, (1998) 154 A.L.R. 414. The decision does not, in my opinion, help the applicant here.

6 I therefore conclude that the jurisdiction which this Court would otherwise have had (whether the extradition proceedings are properly characterised as civil or criminal) under s. 39(2) of the Judiciary Act 1903 has been implicitly excluded by the Extradition Act 1988. And if the proceedings are in truth civil, for similar reasons any jurisdiction which might otherwise have arisen pursuant to s. 7(3) of the Jurisdiction of Courts (Cross-Vesting Act) 1987 is also excluded.

7 As to the latter provision, I would add only that reference to the explanatory note to the Jurisdiction of Courts (Cross-Vesting) Bill 1986, which in somewhat altered form became the Jurisdiction of Courts (Cross-Vesting) Act 1987, gives rise to doubt whether s. 7 has been so drawn as to carry out what was truly intended; that appears to have been merely to deal with appellate jurisdiction in respect of cross-vested matters.

8 The only remaining question with which it is necessary to deal is whether for the purpose of the Jurisdiction of Courts (Cross-Vesting) Act 1987 the present proceedings should be treated as criminal. On that aspect of the case, I agree with the reasons of Thomas J.A. I also agree with the order his Honour proposes.

1 There is pending in this Court an appeal from a decision of Moynihan SJA confirming a decision of a magistrate ordering extradition of the appellant to New Zealand. The present application is for the transfer of this appeal to the Full Court of the Federal Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

2 Counsel for the appellant submitted that the only right of appeal existing in favour of his client is one to the Federal Court, and that therefore the present appeal has been brought to the wrong court. The regime of review and appeal provided for under the Extradition Act 1988 (Cth) in relation to extradition from Australia to New Zealand, is set out in Part III of that Act. It includes special provisions enabling a magistrate to issue a warrant ordering that a person be surrendered to New Zealand.[1] There is an express provision permitting a person against whom such an order is made to apply (within fifteen days) for a review of the order, either to the Federal Court or to the Supreme Court of a State or Territory.[2] There is then provision for an appeal against an order made on such a review.[3] In this subsection however the only appeal provided is one to the Full Court of the Federal Court. It is provided that either party "may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court".[4] Further provisions are made concerning the nature of the initial review (at which evidence may be received in addition to or in substitution for the evidence before the Magistrate) and in the case of an appeal in which case regard is to be had only to the material that was before the court that conducted the review.[5]

3 Prima facie an appeal would lie to this Court from the decision[6] of Moynihan SJA under s 29 of the Supreme Court of Queensland Act 1991.[7] Although such an appeal is not expressly excluded by s 35(3) of the Extradition Act, Part III of that Act appears to comprise a code intended to cover the field with respect to process following a magistrate's order under that Part. As the subject matter is within Commonwealth power, this would seem to be legislation which evinces an intention to cover the whole field, and as a result there is an inconsistency with State legislation which purports to set up a different system.[8] It follows that counsel's concession that the appeal has been brought to the wrong court would appear to be correct.

4 The question then arises whether this Court has jurisdiction to transfer the present "proceeding" to the Federal Court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). It is to be noted that a "proceeding" under that Act does not include a criminal proceeding.[9] It is also to be noted that the necessary investing of jurisdiction in the Supreme Court of Queensland[10] which in turn permits a transfer[11] to be made to the Federal Court is that the Federal Court "has jurisdiction with respect to a civil matter".[12] If the Federal Court has jurisdiction (as it plainly does here) and the State Court lacks jurisdiction (as also is plainly the case here) the Act invests the State Court with jurisdiction in the matter that enables a transfer to be made to the "appropriate court",[13] provided of course that the matter is a "civil matter".

5 There are some recent authorities suggesting that extradition proceedings, at least in the context of particular legislative provisions, are criminal rather than civil.[14] Indeed as a general proposition

"If the matter is one the direct outcome of which may be the trial of the applicant, and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."[15]

In that case the House of Lords confirmed that a Divisional Court judgment in a habeas corpus application was a "criminal cause or matter". Lord Wright remarked:

". . . If the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged, yielding a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter' . . . The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter . . .."[16]

More recently the House of Lords in Ex parte Levin[17] in a case involving extradition of a Russian citizen to the United States characterised the proceedings as criminal.

6 Counsel for the applicant sought to distinguish these decisions on the footing that the provisions in the Extradition Act (Cth) concerning extradition from Australia to New Zealand are less elaborate than those in relation to most other foreign nationals. It is true that these provisions are considerably simplified and that they might, as counsel for the applicant suggested, be regarded as essentially administrative. But then proceedings before a magistrate for committal for trial might also be similarly regarded[18] but they are still obviously part of the criminal process. The attempt to distinguish the reasoning in Ex parte Levin was based upon the legislative requirement in that case that the proceedings be conducted "as nearly as may be" as if they were committal proceedings. It is true that committal proceedings require the court to make a determination on the sufficiency of the evidence while the proceedings for extradition of a person to New Zealand are essentially for the extension of a previously endorsed New Zealand warrant, but there is a discretion to refuse to do so for which various criteria are specified.[19] This is not a persuasive basis for distinguishing Ex parte Levin.

7 Although the relevant extradition proceedings may be essentially administrative in nature[20] that does not prevent them from retaining an essentially criminal character. In Hempel v Moore[21] French J considered that an appeal arising out of extradition proceedings under s.16 of the Extradition (Foreign States) Act 1966 was itself a criminal proceeding. Counsel for the applicant did not seek to distinguish that decision, and submitted instead that it was wrongly decided and ought not to be followed. In my view his Honour's decision was in accordance with the authorities and bespeaks no error. It may be noted that it seems always to have been recognised that extradition, which is the formal surrender of a person by one country to another based on reciprocal arrangements, is "partly judicial and partly administrative".[22]

8 Although the extradition process between Australia and New Zealand is simpler than that between Australia and other foreign countries, the essential character of the proceedings remains the same. In my view it is not possible to regard the present proceedings as other than a criminal proceeding, and it follows that the present matter cannot satisfy the definition of "proceeding" in s.3 of the Jurisdiction of Courts (Cross-Vesting) Act 1987. This Court therefore has no jurisdiction to make the order that has been sought.

1 I agree with the reasons of Thomas J.A. and the order proposed by His Honour.

[1] Extradition Act ss 34, 38.

[2] Section 35(1).

[3] Section 35(3).

[5] Section 35(6).

[6] In the exercise of federal jurisdiction invested in state courts by s.39(2) of the Judiciary Act.

[7] Having regard to s 254 of the Supreme Court Act 1995 which incorporates the former s 10 of the Judicature Act 1876.

[8] Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472 at 483.

[9] Jurisdiction of Courts (Cross-Vesting) Act 1987 s 3.

[10] Ibid, s 4(1)(a), (b) and (c).

[11] Ibid, s 5(1).

[12] Section 4(1)(a).

[13] Sections 4(1)(a), 4(1)(b), 4(1)(c) and 5(1)(b)(ii). Compare para (c) of the preamble to the Act.

[14] R v Governor of Brixton Prison ex parte Levin [1997] AC 741; Hempel v Moore (1987) 70 ALR 714.

[15] Amand v Home Secretary [1943] AC 147 per Viscount Simon LC at 156.

[18] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1.

[20] DPP of the Commonwealth v Kainhofer (1995) 185 CLR 528, 538.

[22] Halsbury's Laws of England, 4th ed Vol 18, para 201.