Application of the principles
57 As to the complaints about alleged errors in the first informal request and indeed about supposedly erroneous or even conflicting information given to and ostensibly relied upon by the respondent in support of the request, this is not the time for that analysis. See the discussion below (at [68]-[70]).
58 As to the absence of proof of guilt, it is important to recognise that the extradition process does not involve in any way the determination of the guilt or innocence of the person wanted for extradition: see, for example, Vasiljkovic v Commonwealth (2006) 227 CLR 614. In Vasiljkovic, Gleeson CJ (at [34]) and Gummow and Hayne JJ (at [105]) and [113]-[115]) relevantly noted:
34 Plainly, extradition has serious implications for the human rights, and in particular for the personal liberty, of the person who is the subject of a request for surrender. Those implications are not limited to the case of a person who is an Australian citizen. The interference with personal liberty involved in detention during the extradition process (if that occurs), and in involuntary delivery to another country and its justice system is not undertaken as a form of punishment. No doubt, to the person involved, some of its practical consequences may be no different from punishment, but the purpose is not punitive. To repeat, the process involves no adjudication of guilt or innocence. It is undertaken for the purpose of enabling such an adjudication to be made in a foreign place, according to foreign law, in circumstances where Australia has no intention itself of bringing the person to trial for the conduct of which the person is accused.
…
105 But the scheme of Pt II of the Act stamps the procedures with which it deals with a different character. The ultimate determination is not a trial by Australian judicial process. The procedures provided by Pt II are employed with a view to the rendition of the person in question to a foreign State, to suffer the consequences of an existing conviction there or to undergo trial there but, in either case, with no determination in Australia of guilt or innocence.
…
113 The detention here is in aid of determination of guilt or innocence not in a domestic forum, but in the requesting State. This circumstance does not deny the exceptional nature, in the relevant sense, of that detention. The long history of extradition before the adoption of the separation of judicial power by Ch III of the Constitution is a weighty consideration. The legislatively based surrender, even of citizens, to foreign States for determination there of criminal guilt or innocence, or for suffering of punishment there upon earlier conviction, is an instance where the general subjection to Ch III of the legislative powers of the Parliament does not necessarily constrain law-making.
114 In R v Cox; Ex parte Smith, when speaking of military justice and the reposing by Ch III of the judicial power of the Commonwealth exclusively to courts of justice, Dixon J said that any "exception" here was not "real". The necessity and occasions for the imposition of military discipline stood that system outside Ch III. The same is true of extradition processes but to a more limited degree.
115 Extradition processes, to be effective and reciprocal, must provide, as a general proposition, for determination in the requesting State of issues of criminal guilt or innocence, and for detention by the requested State pending its determination of surrender. The reasons why this is so are recounted earlier in these reasons and were developed in Cabal.
(Citations omitted and emphasis added.)
59 While the comments in Vasiljkovic are made in respect of the context of answering requests from foreign states, they apply equally in respect of a request made by Australia of a foreign state.
60 As to the alleged errors in the warrants, it is clear then that a request to a foreign state for the surrender of a person convicted of, or alleged to have committed, an office against the laws of Australia is within the prerogative or executive power of the Commonwealth as explained above by the High Court in Oates (see also Barton v Commonwealth (1974) 131 CLR 477 per Barwick CJ (at 484-485), per McTiernan and Menzies JJ (at 491), per Mason J (at 498) and per Jacobs J (at 505)).
61 The same point of principle applies directly to a request for the provisional arrest and detention of a person by a foreign state pending the making of an formal request for extradition: see Oates above and Barton per McTiernan and Menzies JJ (at 489-491), per Mason J (at 498-499) and per Jacobs J (at 505).
62 The contention advanced for the applicant that s 40 of the Extradition Act is the power under which the respondent is entitled to seek extradition is incorrect. The executive power of the Commonwealth is not displaced by s 40 of the Extradition Act as explained in Oates (at [29]). Section 40 is not a source of power, but assumes the power is vested in the Executive as noted in Oates (at [29]):
When s 40 of the 1988 Act is compared with s 21 of the 1966 Act, the following differences appear. First, s 40, evidently drafted with an eye to the problem that arose in Barton, refers generally to "an offence" rather than an "extraditable crime", or an "extradition offence". The latter is an expression with a defined meaning used in other parts of the Act and, in particular, Pt II, which deals with extradition from Australia. Secondly, and apparently for the same reason, s 40 refers to a "request" rather than a "requisition". Thirdly, whereas s 21 of the 1966 Act empowered the Attorney-General to make a requisition, s 40 of the 1988 Act is expressed in terms which assume the existence of a power in the Executive Government to make a request, and restrict the exercise of the power to the Attorney-General or a person acting with the authority of the Attorney-General. This assumption is reinforced by the language of s 3(b).
(Emphasis added.)
And expressly (at [39]):
Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision.
63 Section 40 is, as noted, a machinery provision which regulates the exercise of the power by providing that the request 'shall only be made by or with the authority of the Attorney-General'. A similar observation was made in the Mokbel v Attorney-General (Cth) (2007) 162 FCR 278 per Gordon J (at [21]):
While not the source of executive power to make an extradition request, s 40 of the Extradition Act is a machinery provision which regulates the exercise of that power by providing that a request "shall only be made by or with the authority of the Attorney-General". Why is a machinery provision necessary and how does it operate? There are at least two answers to each question. They are to be found first, in the nature and second, the manner of exercise of executive power.
(Emphasis added.)
64 There is no doubt that the request by Australia for the extradition from Singapore of the applicant was made by the respondent. The request was personally signed by the Attorney-General. That satisfies the requirement of s 40 of the Extradition Act. No question of non-compliance can arise.
65 Of course, as noted in Oates (at [35]), the requests for the arrest and for extradition are acts of international intercourse, such that it is for Singapore to determine how it will respond to the request made by the respondent:
Barwick CJ was the only member of the Court in Barton who reached his decision with any apparent hesitation, and it is evident that the reason for his hesitation was the importance which he attributed to reciprocity. However, as the other members of the Court acknowledged, and as the history of extradition legislation shows, the considerations relevant to surrender of a person from the United Kingdom, or Australia, are materially different from those which determine whether a request may be made to a foreign state to surrender a person to the United Kingdom or Australia. Such a request is an act of international intercourse, and it is for the state to which it is made to determine what its response will be. States may invoke comity as well as obligation, and if a requested state, which is not bound to accede to a request, chooses to do so, perhaps on terms as to reciprocity, then that is a matter for it. In the present case, the respondents contend, and the appellant denies, that Poland is under a treaty obligation to surrender the appellant. But the appellant's argument depends, not only upon his contention that Poland is not under such an obligation, but, additionally, upon the proposition that, in those circumstances, it is unlawful for the first respondent to request surrender.
(Citations omitted and emphasis added.)
66 Significantly, in Australia, from a practical perspective, there is nothing more to be done in the sense that there is no public duty owed by the respondent in Australia which the applicant can seek to enforce and no departure from the lawful performance of what is required under the Extradition Act. The matters of which complaint is raised are extraneous to the operation and execution of the Extradition Act. As Gordon J said in Mokbel (at [65]-[66]):
65 The foregoing reasons deal with the substance of the arguments advanced by the Applicant. They require the conclusion that the application be dismissed. It is as well, however, to go on to say that it is greatly to be doubted that, even if established, the matters urged by the Applicant would found any claim to relief of the kinds claimed. Not only does the Applicant not identify how relief under s 39B of the Judiciary Act (or any associated relief) could be framed in a way that would achieve the practical result of interrupting the extradition process, the difficulties in framing such relief point to more fundamental difficulties in the Applicant's case. The practical consequence the Applicant sought to achieve is to have the extradition processes being undertaken in the Hellenic Republic brought to an end. The Applicant seeks a variety of relief intended to compel that ultimate end - injunction, prohibition, and mandamus. In addition he seeks declarations though, of course, that relief would have no directly coercive consequence.
66 The fundamental difficulty presented by these claims is that the Applicant points to no public duty which it seeks to enforce and points to no departure from the lawful performance of what is required under the Extradition Act. Rather, he points to matters extraneous to the operation and execution of the Extradition Act and says that, on that account, the Request should be withdrawn.
(Emphasis added.)
67 Similarly in this instance, the decision to seek extradition has been made and the request has been transmitted to Singapore. No proposition advanced by the applicant can establish that the request was not lawfully made, but from a practical perspective there is no further act to be performed by the respondent which could be restrained. Of course, a declaration as sought in the substantive application would have no coercive consequence. Further, an injunction cannot exist in a vacuum. It can only be granted as an aid to substantive relief. Here, there is no basis for substantive relief.
68 There are allegations of bad faith advanced by the applicant. In my view, even assuming they were made out, they fall far short of the level which would entitle relief of any description. The present evidence in support of any suggestion of bad faith is quite inadequate. But, in any event, those allegations cannot give rise to relief at this stage. If bad faith were established, it could provide possible relief at a subsequent stage in the course of prosecution. Even assuming hypothetically that such proposition could be advanced, it could only be relied upon in the course of the New South Wales court proceedings, for example, in support of a demonstration of serious misconduct so as to stay the domestic prosecution as an abuse of process. This concept was discussed in Bou-Simon v Attorney-General (2000) 96 FCR 325 where the Full Court (Black CJ, Tamberlin and Katz JJ) said (at [36]):
We should mention at this point that neither the Attorney-General nor the DPP challenged the judge's conclusion that if bad faith were established in connection with the extradition process, an Australian court might well intervene by ordering a stay of the prosecution in respect of which extradition was sought. Indeed, counsel for the Attorney-General implicitly accepted the correctness of the judge's approach, submitting that his Honour had been correct in concluding that the intervention of the Court would only be justified if bad faith or deliberate deception on the part of the relevant Australian authority were established. He also submitted that the judge was correct in his conclusion that if intervention by the Court were ever justified, it would normally be by way of stay of the prosecution. Essentially, the Attorney-General's submission was that to make out an abuse of process such as to justify intervention, it was necessary to establish that there had been a serious and deliberate abuse of executive power and that no abuse of that nature had been shown in the present case. In oral argument counsel for the DPP took a similar approach, stressing that before any intervention could be justified there would, at the least, need to be established what he described as "an actionable abuse of process" involving a deliberate attempt to mislead.
(Emphasis added.)
69 In relation to the seizure of phones, a fair reading of the request of Singapore was that any steps taken in Singapore by the authorities in connection with the phones should only be taken if the Singaporean authorities were satisfied it was lawful to do so. That qualification was expressly set out. In any event, as with the extradition request, a request by Australian authorities for a foreign state to assist it in criminal matters falls within the executive power of the Commonwealth. It is a matter for the law and courts of the foreign country to determine the legality of complying with such a request. In this instance, it is a matter for the Singaporean authorities. Again, if the evidence was improperly obtained in Singapore, or if its reception would be, for some other reason, unfair to the applicant, then there is discretion in the criminal trial court to exclude evidence on those grounds: see the discussion in Bollag v Attorney-General (Cth) (1997) 79 FCR 198 by Merkel J (at 211):
… Whether, and if so, to what extent, the Swiss authorities can lawfully use coercive power to comply with their obligations under the Treaty is to be determined in accordance with Swiss law. In these circumstances the fact that coercive investigative power, which might not be able to be exercised in Australia under Australian law, may be exercised in Switzerland in accordance with a request under the Treaty cannot, of itself, make the use of such investigative power unlawful. There may be circumstances where a power, exercised lawfully by a foreign country to obtain evidence as a result of a request for assistance whether under a treaty or otherwise, might offend public policy in Australia. If the evidence was improperly obtained in the foreign country or if its reception would be unfair to the accused then the criminal trial court has ample discretion to exclude such evidence on those grounds, which are not limited to unlawful conduct: see Foster v The Queen (1993) 67 ALJR 550 at 554; Pollard v The Queen (1992) 176 CLR 177 at 196 and Bunning v Cross (1978) 141 CLR 54 at 64, 74-75. In such circumstances the potential accused may have no basis for challenging the investigative power employed in the foreign country but that does not prevent the later objection to the use of its fruits in Australia.
Putting aside the provisions of the Act for the moment, applying the above principles to the present case:
• the requests do not contravene Australian law
• the requests have been accepted by the Swiss authorities as complying with the Treaty with the consequence that those authorities have provided and are continuing to provide the assistance sought in accordance with the Treaty
• insofar as Bond and Bollag have alleged that their rights have been infringed under Swiss law they have had those allegations determined against them by the relevant judicial authorities and processes in Switzerland
• Bond and Bollag have not demonstrated that any right that they might have under Australian law has been infringed by the requests or the requested conduct in Switzerland.
As pointed out above these conclusions cannot be affected by the provisions of the Act, as nothing in the Act forbids or prohibits the requests that have been made to the Swiss authorities. To the contrary, s 6 specifically provided that the Act is not to have such an effect.
(Emphasis added.)
70 There was no Australian law prohibiting the making of this request.
71 Secondly, on the topic of the phones, as noted by both parties, there is of course the Mutual Assistance in Criminal Matters Act 1987 (Cth) which provides a legislative framework for international assistance in criminal matters, but it does not forbid, limit or circumscribe the request for such assistance which may be made by the Commonwealth Executive: Bollag (at 210).
72 There is, therefore, no prima facie case for a challenge to any request made by Australian authorities for Singapore to deliver the applicant's phones or any request for the extradition of the applicant.