The Constitutional Argument
73 Both at first instance and on appeal the parties proceeded on the basis that the review required to be heard by the Court or the Supreme Court of a State or Territory was in the nature of a rehearing, but subject to the provisions of s 21(6)(d) of the Act which confine the Court hearing the review to the material which was before the magistrate. Likewise the parties agreed that when s 21(6)(d) referred to the material "that was before the magistrate" that included not only material which the magistrate had admitted into evidence, but also material tendered by either the extradition country or the person in respect of whom the extradition application was made, which, for whatever reasons, was rejected by the magistrate and accordingly not taken into account by her. At least the latter of these propositions is not self-evident, if only because it would permit the Judge conducting the review to consider material not capable of being tested by cross examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross examination on that evidence to take place or further evidence to be considered. However, as the parties proceeded on that basis before us we are content to accept for the purposes of the appeal the correctness of this construction of s 21(6)(d).
74 The submission that s 21 of the Act involves an impermissible conferral of administrative power upon the Court depends upon two basic premises. The first is that because the Attorney-General is given a discretion under s 22 of the Act whether or not a person who has been found eligible for surrender should in fact be surrendered, the decision on the review is not a binding determination of existing rights and thus an exercise of judicial power. It is said to bring about the result that the decision of the Court on the review is but another administrative step in what is said to be a continuous administrative process. The second (and the two premises are related) is that what is done by the magistrate is an exercise of administrative power and when that power is exercised again by the Court it is not thereby converted to an exercise of judicial power. It is said that the function of determining whether a person is eligible for extradition is inherently administrative and not innominate so that it may not be regarded as being either judicial or administrative, depending upon whether or not it is conferred upon a Court: cf The Queen v Quinn; Ex Parte Consolidated Food Corporation (supra) at 6.
75 It may be accepted, for present purposes, that, whatever the difficulty of delineating precisely the nature of judicial power, it is a defining characteristic of that power that it involves the binding and authoritative ascertainment or determination of existing rights: Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ, The Queen v Davison (1954) 90 CLR 353 at 366 per Dixon CJ and McTiernan J. Commonly, although not invariably, judicial power may be described in the words of Gaudron J in Nicholas v The Queen (1998) 193 CLR 173 at 207 as:
"that power which is brought to bear … in making binding determinations as to the rights, liabilities, powers, duties or status put in issue in justiciable controversies and, in making binding adjustments of rights and interests in accordance with legal standards."
76 In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 360-361:
"A power to adjudicate "a dispute about rights and obligations arising solely from the operation of the law on past events or conduct" is one that is essentially and exclusively judicial. On the other hand, a power to bring a new set of rights and obligations into existence is generally non-judicial, although it may take its character from the tribunal involved. Thus, a power to create new rights and obligations, if it is conferred on a court and "is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to [unspecified] policy considerations", will be characterised as judicial power involving the determination of rights and obligations for which the law provides. As least that is so if the subject matter and prescribed procedures are consistent with the nature and functions of a court.
However, if power to bring a new set of rights and obligations into existence is vested in a tribunal which is not a court and policy considerations have a part to play in the tribunal's determination, the power is not judicial. And that is so even if it is necessary for the tribunal to decide disputed facts or to form an opinion as to existing rights and obligations as a step in arriving at its ultimate determination." (footnotes omitted)
77 The difficulty of characterising a particular exercise of power as administrative or judicial and thus of defining exhaustively the boundaries of judicial power stems from the fact that there is not a true dichotomy between powers as such which may be said to be judicial and those which may be said to be administrative. As Kitto J observed in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373, citing Labour Relations Board of Saskatchewan v John East Iron Works Ltd [1949] AC 134 at 148, the uncertainties that exist in framing an exhaustive definition of judicial power turn upon the fact that there is "a borderland in which judicial and administrative functions overlap".
78 In Re Dingjan Gaudron J said at 360:
"It is well settled that some powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch III of the Constitution, while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses."
79 See also Bachrach (HA) Pty Ltd v The State of Queensland (1998) 195 CLR 547 at 562. We will return to this question later.
80 It has been determined in a number of cases in this Court, for example Narain v Parnell (1986) 9 FCR 479, Schlieske v Federal Republic of Germany (No 2) (1987) 76 ALR 417 at 422, Todhunter v United States of America (1995) 57 FCR 70 at 80, Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 485-6 per Burchett J and at 521-522 per Gummow J, Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290, Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 129 and Federal Republic of Germany v Parker (1988) 84 FCR 323 at 341-2 that the proceedings before a magistrate under the current legislation and its predecessor the Extradition (Foreign States) Act 1966(Cth) are administrative proceedings in which the magistrate acts as a persona designata. That the proceedings before the magistrate are administrative in nature was accepted by the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 where Brennan CJ, Dawson and McHugh JJ said at 538:
"The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature." (emphasis added)
81 Their Honours were not, in the passage cited, addressing an argument that the Court, acting under s 21 of the Act, was exercising administrative rather than judicial power. However, it can at least be said that this passage is difficult to reconcile with that contention.
82 The proposition that a court is necessarily exercising an administrative function where jurisdiction is conferred upon that Court to make a finding on what the submission refers to as the existence or non-existence of a factum upon which an executive discretion is conditioned is supported neither by logic, nor authority. The present is not a case where the matter which the executive is required to decide under s 22 of the Act (ie whether the eligible person should in fact be surrendered in relation to a particular extradition offence) is the same matter as the Court is required to determine, where a different problem might arise. Here the issue for determination by the Court is whether a person is, within the meaning of the legislation "eligible for surrender". If the Court decides that the person is not eligible for surrender, no question of exercise of discretion arises under s 22 of the Act. The Court orders the release of the person and quashes the decision of the magistrate: s 21(2)(b). If the Court confirms the decision of the magistrate under s 21(2)(a) of the Act it is then, but only then, that the discretion conferred upon the Minister arises, a discretion that does not ignore the decision of the Court, but rather which accepts that decision as a necessary prerequisite to the exercise of that discretion.
83 The cases, or at least comments made in them, which are cited by the appellants in support of the proposition are The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (supra), Director of Public Prosecutions (Cth) v Kainhofer (supra) and Wiest v Director of Public Prosecutions (supra).
84 In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (supra)the issue was whether the Trade Practices Tribunal in determining whether an examinable agreement was contrary to the public interest was exercising the judicial power of the Commonwealth. Windeyer J, at 398 discussed an argument whether adjudication (in that case the preliminary adjudication by the Commission that an examinable agreement existed, as a prerequisite to its determination that there was an agreement contrary to the public interest) necessarily involved the exercise of judicial power. Clearly it did not. In making this adjudication the Tribunal was making a decision on a jurisdictional fact, but in so doing was not exercising judicial power. The adjudication it made as a preliminary inquiry took its character from the character of the overall jurisdiction it was exercising which was administrative.
85 By way of example, his Honour gave the illustration of a Customs official determining whether an article was a prohibited import or, if a permissible import, whether it was dutiable and if so the quantum of that duty. The official in such a case was making an adjudication but not exercising judicial power. The adjudication which the Court makes under s 21 of the Act by way of review of the magistrate's decision has no analogy with the adjudication of the Customs official. There is no doubt that when the magistrate exercising his or her administrative function makes a decision whether the person before the Court is eligible for surrender, the magistrate, like the Trade Practices Tribunal is making a decision on a jurisdictional fact as a preliminary to the determination whether the person is to be committed to prison to await surrender or is to be released. The magistrate's adjudication that the person is eligible for surrender takes its character from the jurisdiction of which it is, to use the language of Windeyer J "a phase". But it does not follow from this alone that the Court in reviewing the decision of the magistrate is making an administrative decision any more than it would follow that the Court in reviewing the Tribunal's determination that there is an examinable agreement would necessarily be exercising administrative power.
86 Kitto J, at 378 referred to the determination of the Tribunal that a restriction or practice is contrary to the public interest as "the factum by reference to which the Act operates to alter the law in relation to the particular case" (that is, by rendering the agreement unenforceable). The determination, by contrast, itself had no operative effect. To call the Court's finding that a person is eligible for surrender a factum is but to use a label. It is not determinative one way or the other of the question whether the Court is exercising judicial power. It is to say no more than that it is a necessary prerequisite to the Attorney-General exercising the discretion under s 22 of the Act that the decision of the magistrate that a person is eligible for surrender has been confirmed. The Court's determination has, however, a real legal consequence. If the determination is favourable to the person, the person must be released from custody and cannot be extradited.
87 In the passage cited from the joint judgment of Brennan CJ, Dawson and McHugh JJ in Kainhofer it is said by the appellants that the Attorney-General, acting under s 22 of the Act makes an independent determination of the issue of the existence of an extradition objection just as the magistrate does. One must, however, take care in reading this passage. Strictly, the question which arises for the Attorney-General under s 22 as to whether an extradition objection exists is not the same issue as arises before the magistrate under s 19 or the Court under s 21 of the Act. The magistrate (and thus the Court in a review) considers the question of whether an extradition objection exists as at the time the matter arises before the magistrate. The Attorney-General, on the other hand, considers the matter at a different time, namely when the occasion arises for the making of the determination under s 22 of the Act. It is quite possible that between the time of the hearing before the magistrate and the time the occasion arises for the matter to be considered by the Attorney-General, circumstances have changed.
88 The passage cited from Wiest likewise is of no assistance to the appellants. It does no more than affirm that the magistrate in extradition proceedings, as in committal proceedings, exercises an administrative function.
89 If the submission made by the appellants in its bald form were to be accepted it would mean that every time a Court was empowered to decide a matter which was a condition precedent to the exercise of an administrative discretion, the Court would necessarily exercise administrative power. Such a result would be, to say the least, extraordinary. It would mean, for example, that a Court could not in an income tax appeal determine whether any of the prerequisites for the exercise of discretion by the Commissioner under s 99A(2) of the Income Tax Assessment Act 1936 (Cth) were satisfied, merely because a consequence of the determination would be that the Commissioner had a discretion to determine that it would be unreasonable for s 99A of that Act to apply to the trust estate cf Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365. Similarly if a law with respect to migration were to require that a person not lawfully in Australia was to be deported but confer upon the Minister a power not to deport such a person, it would, if the submission be accepted be an exercise of administrative power for a Court to determine whether a person was lawfully in Australia just because that was a prerequisite (a factum) to the exercise by the executive of an administrative power.
90 The more difficult question is not whether the existence of the discretion conferred upon the Attorney-General under s 22 of the Act leads to the earlier determination by the Court being administrative in nature, but rather whether because the jurisdiction when exercised by the magistrate is administrative it continues to be administrative when exercised by the Court in a review under s 21 of the Act.
91 As we have already noted there will be many occasions where the exercise of a power may be administrative or judicial depending upon whether the power is conferred upon an administrative functionary or a Court. The judgments in The Queen v Davison (supra) contain illustrations of this. In that case the question was whether the making of a sequestration order by the Registrar of the Federal Court of Bankruptcy involved the exercise of judicial power. It was held that it did and in the result the legislation conferring upon the Registrar that power was invalid. The case makes it clear that where there are functions or powers which are not necessarily of a judicial or administrative character regard may be had to how such functions or duties have been exercised historically (ie whether as incidental to the exercise of judicial power) as well as to how the particular function or power is treated by the legislation conferring it. Put another way, the functions may, as Aickin J observed in The Queen v Quinn; Ex parte Consolidated Food Corporation (supra) at 18 "chameleon like, take their colour from their legislative surroundings or their recipient".
92 It may be true, as the appellants say, that extradition itself is traditionally a matter for the Executive. It may also be true that historically extradition has been, at least in the United Kingdom and in Australia, a proceeding before a magistrate rather analogous to a committal proceeding, which is, of course, administrative in nature - Grassby v The Queen (1989) 168 CLR 1. It does not follow that the process on review by a Court is necessarily administrative in nature as well.
93 The first extradition law in the United Kingdom, enacted in 1843 gave legislative sanction to an Extradition Treaty between France and the United Kingdom. There was provision for the person accused of an extradition offence to be brought before a justice of the peace or person having power to commit for trial persons accused of crimes against the laws of the United Kingdom. Later acts dealt separately with extradition treaties with other countries, such as the United States. In general the justice of the peace was empowered:
"to examine upon Oath any Person or Persons touching the Truth of such Charge, and, upon such Evidence as according to the Laws of that Part of Her Majesty's Dominions would justify the Apprehension and Committal for Trial of the Person so accused if the Crime of which he or she shall be so accused had been there committed…"
94 The first general extradition law in the United Kingdom (it extended to the colonies) was passed in 1870, the Extradition Act 1870 (UK). In pursuance of that Act treaties were entered into by the United Kingdom with a large number of foreign countries and those treaties were made applicable to Australia. The Extradition Act 1903 (Cth) vested the powers exercisable under the Imperial Act in appropriate persons in Australia. The Imperial Act required that the issue of a warrant be:
"on such evidence or after such proceedings as would in the opinion of the person issuing the warrant justify the issue of a warrant if the crime had been committed or the criminal convicted in that part of the United Kingdom in which he exercises jurisdiction."
95 The hearing contemplated was rather like a committal proceeding. Access to the Court could be by way of a writ of habeas corpus although there was a limited statutory right to approach a Court where the fugitive criminal was not surrendered and extradited within two months of committal. Although the procedure before a justice of the peace was no doubt administrative there is no reason to think that the procedure in a Court involved other than the exercise of judicial power.
96 The Fugitive Offenders Act 1881 (UK)amended the law with respect to fugitive offenders in the Dominions. It provided for a Court on review of a justice of the peace's decision to have regard to various matters including whether it would be unjust or oppressive to return a fugitive. If so, the Court could discharge that person. Again the power of the Court was clearly judicial, albeit that the procedure before a justice of the peace was administrative.
97 By 1966 it was recognised that it was clearly inappropriate for Britain to negotiate further extradition treaties on behalf of this country. The first Australian legislation dealing specifically with extradition, apart from the 1903 Act, was the Extradition (Commonwealth Countries) Act 1966 (Cth) which replaced the Fugitive Offenders Act 1881 (UK). Under the Extradition (Commonwealth Countries) Act 1996 (Cth) there was a statutory obligation to extradite persons whose surrender was sought to declared Commonwealth countries if all conditions were fulfilled. The procedure was that application was to be made to a magistrate to issue a warrant. In essence the magistrate had to determine whether a prima facie case existed. The fugitive could apply under s 17(1) of that Act to the Court for "a review of the validity of the decision" of the magistrate. That procedure was clearly an exercise of judicial power. There was also a right of "review" contained in s 28 of that Act (dealing with extradition to New Zealand) which was directed by s 28(3) to be "by way of rehearing". Evidence in addition to, or in substitution for, the evidence given on the making of the order could, pursuant to s 28(3) of that Act, be given before the Court. The Court on the review was empowered to confirm or vary the order, or quash it and substitute a new order in its stead. Similar provisions were enacted in the Extradition (Foreign States) Act 1966 (Cth). That Act replaced the Imperial Extradition Acts passed between 1870 and 1935 although it did not exclude the operation of the Fugitive Offenders Act 1881 (UK). The fugitive could apply under s 18 of that Act for a review of the magistrate's decision. That too was clearly an exercise of judicial power.
98 It was the Extradition (Foreign States) Act 1966 (Cth) that was considered in the High Court in Riley v The Commonwealth (1985) 159 CLR 1 at 15 where Deane J outlined the principles of international law relating to extradition and observed that historically the writ of habeas corpus was available to an offender where nothing more than an extradition treaty requiring that person's extradition, without mandate of Parliament, existed. There can be no doubt that the decision whether or not to grant the writ involved an exercise of judicial power.
99 The legislation in its present form followed a meeting of Commonwealth Law Ministers held in London from 26 April to 3 May 1966 to review extradition arrangements operating within the Commonwealth. This resulted in amendments being made to the Extradition (Foreign States) Act 1966 (Cth) by Act No 171 of 1973 and to the Extradition (Commonwealth Countries) Act 1966 (Cth) by Act No 172 of 1973. The final legislative step was the enactment of the Act in 1988. Subject to the terms of particular treaties it was no longer necessary for there to be a procedure analogous to a committal to determine whether there was a prima facie case. Theproceedings which are required under the Act before the magistrate are described in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 which sets out the history of the legislation in greater detail than here. What is of present significance is that the magistrate in the ordinary case could not go outside the extradition documents submitted, although as here, evidence could be taken as to the existence of an extradition objection. This being the case it would be strange if the right of review which was conferred upon the Court would permit the review to go outside the material which the magistrate had to consider. This no doubt explains why the present review is so limited.
100 It appears to be accepted by the appellants that if the review under s 21 of the Act is judicial review in the strict sense (as for example by a writ of habeas corpus) the Court would clearly be exercising judicial power. What is sought to be argued, however, is that because (as the parties agree) the proceedings in this Court are by way of rehearing, albeit a rehearing limited to the material before the magistrate, the Court becomes merely part of the administrative framework commencing with the magistrate and concluding with the Attorney-General. It is said to follow that the Court, like the magistrate, is exercising administrative rather than judicial power.
101 Given the history of appeals in one form or another to Courts clearly exercising judicial power in the field of extradition law generally it is difficult to resist the conclusion that the right of review under s 21 of the Act was intended by Parliament to be conferred upon a Court as an exercise of judicial power. There is no reason to conclude that the right of review is other than innominate in the sense that it is capable of assignment by Parliament in its discretion to more than one branch of government: cf per Isaacs J in Shell Co Australian Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, cited by Jacobs J in The Queen v Quinn; Ex parte Consolidated Foods Corporation (supra) at 8.
102 The decision made by the Court is final and binding on the parties at least as regards the issue before the Court, namely whether the person whose extradition is sought is eligible for surrender. The fact that the Court's jurisdiction is limited to the material before the magistrate does not convert that jurisdiction to the exercise of an administrative power. It is within the power of the Commonwealth Parliament to limit that jurisdiction: Abebe v The Commonwealth of Australia (1999) 197 CLR 510. As the learned primary judge observed the restriction of the Court to the material before the magistrate is procedural and does not affect the nature of the appeal itself: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107 per Dixon J.
103 The Court is obliged to ascertain the facts in a way that is final and binding between the parties: an indication of judicial power. The Court is obliged to apply the facts found to the terms of the statute, again an indication of the exercise of judicial power. The fact that the same functions are conferred upon the magistrate is not determinative of the question.
104 In our view the appellants' submission is misconceived. The Court on review is exercising the judicial power of the Commonwealth and not merely an administrative function.