Foster v Senator Amanda Vanstone

Federal Court of Australia|1999-10-22|Before: Kiefel JJ, Carr J

Introduction 1 This is an appeal from a decision of a Judge of this Court who, on 24 June 1999, dismissed the appellant's application for a declaration that a warrant issued by the respondent under s 23 of the Extradition Act 1988 (Cth) ("the Act") was a nullity. That application was brought under s 39B of the Judiciary Act 1903 (Cth). Consequential injunctive relief was also sought. To assist anyone reading these reasons, I should point out that, to my regret, I am in dissent about the outcome of the appeal.

Factual Background 2 As the learned primary judge observed in his reasons for judgment, much of the background of this matter and details of the history of the Commonwealth's efforts to extradite the appellant to the United Kingdom can be found in the reasons of the Full Court in Attorney-General v Foster (1999) 84 FCR 582. In that decision the Full Court affirmed the validity of the respondent's decision under s 22(2) of the Act to issue a warrant, dated 24 July 1998, for the applicant's surrender. I incorporate by reference (as did the primary judge) paragraphs 10, 11 and 47 to 59 of the Full Court's reasons as a summary of the factual background. However, I think that it is necessary to recite in these reasons some of that factual background and events which have taken place since the Full Court's decision. 3 On 15 April 1997 the appellant was arrested pursuant to a provisional warrant issued under s 12 of the Act. On 22 May 1997 the United Kingdom formally requested the appellant's extradition and gave, by its High Commissioner, a speciality assurance in accordance with s 22(4). The United Kingdom requested the appellant's extradition in respect of six alleged offences. On 27 May 1997 the Attorney-General of the Commonwealth issued a notice under s 16(1) of the Act which enabled the matter of whether the appellant was eligible for surrender to be heard by a magistrate. On 4 March 1998 a Stipendiary Magistrate determined that the appellant was eligible for surrender to the United Kingdom in respect of five of the six alleged offences. The five charges comprised two charges of conspiring with one Williams to defraud certain creditors and three charges of using an instrument known to be false. In respect of those three charges the appellant was jointly charged with Williams. The appellant applied to the Supreme Court of Queensland for a review of the Magistrate's order. That application was dismissed on 7 April 1998. On 7 May 1998 the appellant's solicitor forwarded to the Attorney-General written submissions which, with annexures, ran to some 274 pages. The submissions were directed to the question whether the Attorney-General should, pursuant to s 22(2), determine that the appellant was to be surrendered in relation to the offences. On 24 July 1998 the respondent, acting for and on behalf of the Attorney-General, so determined and issued a warrant, under s 22 of the Act, for the surrender of the appellant to the United Kingdom. On 29 July 1998 the appellant applied, under s 39B of the Judiciary Act, to this Court for a declaration that the warrant dated 24 July 1998 was a nullity. The appellant's primary challenge was that the discretion referred to in s 22 of the Act could only be lawfully exercised by the Attorney-General and not by the respondent. The appellant also challenged the validity of the exercise of that discretion on grounds of denial of natural justice and procedural fairness. That application was heard by Spender J on 29 September 1998. On 12 October 1998 Spender J declared the warrant to be a nullity on the basis of the appellant's primary argument. However, his Honour held that there had been no denial of procedural fairness in the manner in which the respondent had reached her conclusions and issued the warrant; Foster v Attorney-General (1998) 158 ALR 394. 4 In the meantime, on 21 September 1998, the appellant's solicitors learned that the United Kingdom's prosecuting authorities (the Serious Fraud Office) had offered no evidence against Williams, the appellant's co-accused, when he was brought to trial on 14 September 1998 and that the charges against him had been dismissed. The appellant's solicitors then wrote to the Attorney-General asking that he re-consider the exercise of the respondent's discretion to issue the warrant of 24 July 1998. On 23 September 1998, the Serious Fraud Office wrote to the Attorney-General's Department advising that it would no longer be proceeding with the prosecution against Williams. It also advised that after re-examination of the documents upon which the five extradition charges were based, its experts had changed their original opinion that the handwriting on those documents was that of Williams, to the opinion that it was the handwriting of the appellant. In those circumstances the Serious Fraud Office had decided that there was no basis for prosecuting Williams and so no basis for the conspiracy charges against the appellant or Williams. However, the Serious Fraud Office confirmed its intention to prosecute the appellant by himself on the third, fourth and fifth charges to which I have referred above i.e. using an instrument which he knew to be false. 5 The respondent appealed from Spender J's decision to a Full Court. The appellant, by way of a cross-appeal rather than a notice of contention (as to which there was no objection) contended that his Honour had erred in his conclusions on the matters of procedural fairness. The Full Court allowed the appeal and held that the respondent had lawfully exercised the power of the Attorney-General at the time when she issued the warrant. The Full Court also held (in relation to the appellant's contentions by way of cross-appeal) that there had been no procedural unfairness on the respondent's part. 6 On 16 February 1999 (the same day upon which the Full Court delivered its judgment on appeal from Spender J) the respondent's Department wrote to the appellant's solicitor acceding to his earlier request that he be allowed to make further submissions on behalf of the appellant, directed principally to the changes in relevant circumstances that had occurred after the issue of the warrant. The appellant's solicitors made submissions on 2 March 1999, 12 March 1999 and 19 March 1999. The various matters raised in those submissions are summarised in paragraphs 21-25 of the primary judge's reasons for judgment. In the first of his submissions the appellant recognised that it was not for the respondent to re-visit the question of his eligibility for surrender, but invited her to exercise her discretion to decline to surrender the appellant. In later submissions the appellant asked the Minister to refuse surrender on grounds which included those provided by ss 22(3)(e) and (f) of the Act. Those provisions are concerned, so far as applicable in this matter, to the speciality assurance given by the United Kingdom and the provisions of Regulation 7 of the Extradition Regulations. Extracts from those provisions are set out later in these reasons. On 30 March 1999 the appellant's solicitor sent a letter to the respondent referring to certain questions which had been asked in the Australian Parliament about the proposed extradition of the appellant, and asked the respondent to give consideration (in the context of Regulation 7) to the punishment which the appellant could expect to receive if convicted on the three extradition charges. 7 On 26 March 1999, an officer of the respondent, Mr Shiel, after receipt of the applicant's submissions of 2, 12 and 19 March 1999 prepared a memorandum containing recommendations that:

· the respondent make a new determination under s 22(2) of the Act that the appellant be surrendered to the United Kingdom for the three extradition offences; and

· the respondent execute a new warrant under s 23, revoking the earlier warrant of 24 July 1998 and authorising the appellant's surrender for those three offences.

8 Mr Shiel's memorandum was considered and approved without any material change by two of his senior officers that same day. It was then put before the respondent for her consideration. On 30 March 1999, the respondent, by her endorsement on the memorandum, expressly approved Mr Shiel's two recommendations, determined that the appellant should be surrendered, but only in relation to the three offences and issued the new warrant which revoked the warrant of 24 July 1998. 9 On 7 April 1999 the appellant applied to this Court, again under s 39B of the Judiciary Act, seeking orders which included an order setting aside the warrant of 30 March 1999. The applicant complained that "in purporting to exercise her discretion under s 22(2)" of the Act the respondent: · failed to give proper consideration to all of the appellant's submissions in the context of changed circumstances; · failed to take into account all of the changed circumstances; · failed to consider all of the matters raised by the provisions of Regulation 7; · failed to consider all of the matters raised by the provisions of s 22(3); · relied upon submissions and assertions of her departmental officers which did not adequately and fairly address the appellant's submissions in the light of the changed circumstances; · allowed herself to be misled by submissions and assertions made by her departmental officers which were inherently and manifestly unreliable; · denied the appellant natural justice in failing adequately to enquire into "manifestly unreliable submissions and assertions made to [her] by her departmental staff in respect of matters relevant to the exercise of her discretion"; · failed to give proper consideration to the effect of the proposal by the United Kingdom to lay new charges against the appellant on the matters raised in s 22(3) of the Act and Regulation 7; · failed to make any or any adequate assessment of the evidence admissible against the appellant in light of the changed circumstances in respect of the remaining charges; · failed to make any or any adequate assessment of what penalty was likely to be imposed on the appellant if he were convicted of the remaining charges and in the light of the changed circumstances; and · relied upon submissions by her departmental staff which failed to address each of the issues which she was required to address for the purpose of exercising her discretion, thereby failing to give any or any adequate consideration to each of those issues.

The decision at first instance 10 At the hearing of the application, the appellant's attack on the respondent's decision of 30 March 1999 was based on her alleged failure to take into account relevant considerations, and unreasonableness in the administrative law sense. 11 The first such failure was said to be failing to take into account evidence which the appellant contended showed that the United Kingdom authorities would breach the undertaking constituted by the speciality assurance of 22 May 1997. That evidence included answers given by the Lord Chancellor to questions on notice in the House of Lords on 22 February 1999 and 10 March 1999. Those answers indicated that the United Kingdom proposes to bring some 16 charges against the appellant and would seek waiver of the speciality rule. His Honour found that the evidence did not show that the United Kingdom authorities would breach the undertaking given in the speciality assurance. Furthermore, so his Honour held, it was quite plain that the considerations raised by the changed intentions of the United Kingdom authorities for the appellant's prosecution were the subject of full analysis by Mr Shiel in an attachment (Attachment 'G') to his submission to the respondent of 26 March 1999 and there was no basis to think that the respondent did not in fact advert to those considerations when she made her decision. His Honour also dismissed that part of the appellant's challenge which was based on the submission that the respondent had ignored a relevant consideration because she had made her decision without having received any response from the United Kingdom to enquiries made raised by her Department on 26 February 1999. Those enquiries were as to whether the United Kingdom intended to bring new extradition proceedings against the appellant in respect of the additional charges, or whether they would seek waiver of the speciality in respect of those additional charges. His Honour held that there was no obligation on the Minister to wait until the United Kingdom responded to those inquiries. She was entitled to rely on the speciality assurance given, in the knowledge that the United Kingdom authorities had indicated that of the original five extradition offences, they now only intended to prosecute the appellant in respect of three of them even though they intended to request waiver of speciality. 12 His Honour then turned to two further submissions made on behalf of the appellant. The first was that the changed circumstances resulting from the dropping of the prosecution of Williams required the respondent to consider whether the three remaining extradition offences were of a trivial nature, but that she had failed to do that. The second was that the respondent had failed to advert to whether, in the circumstances which existed on 30 March 1999, surrender would involve too severe a punishment of the appellant for the surrender offences. Both the submissions relied upon Regulation 7 of the Extradition Regulations. That Regulation applies to the present matter by virtue of the interaction of the provisions of s 22(2) and 11 of the Act. Section 22 relevantly provides: "22(1) . . . (2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. (3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (a) . . . (b) . . . (c) . . . (d) the extradition country concerned has given a speciality assurance in relation to the person; (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney-General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and (f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence. 13 Regulation 7 relevantly provides: "(1) … for the purposes of subsection 22(2) of the Act, …, such a person shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of: (a) the trivial nature of the offence; (b) the accusation against the person not having been made in good faith or in the interests of justice; or (c) any other sufficient cause; it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person." 14 His Honour (in paragraph 13 of his reasons) said this about Regulation 7: "This regulation, made pursuant to s 11(1)(b), establishes a limitation on the Minister's discretionary power under s 22(2) to order surrender, which by force of s 22(3)(e)(i) and (iii) prohibits the Minister ordering surrender unless the Minister first considers each of the circumstances referred to in reg 7 and then reaches the state of mind of being satisfied that none of those circumstances exist. It follows that, if the Minister is satisfied that one or more of these particular circumstances exist, the Minister is bound to refuse surrender." 15 His Honour construed Regulation 7 as requiring the respondent to form an opinion on what is likely to happen to the particular fugitive if extradited. His Honour said (at par 47 of his reasons): "It is only if the Minister has information indicating what the particular fugitive's situation is then likely to be that the Minister will be in a position to form a view on whether, having regard to all the circumstances, including whether the offence is trivial in nature, surrender would expose the fugitive to injustice, oppression or too severe a punishment."

Triviality 16 His Honour referred to Attachment 'G' and found that Mr Shiel had dealt at length with the changed circumstances (the dropping of the prosecutions against Williams) and specifically with whether the remaining three extradition offences could be said to be trivial in nature. His Honour identified only three matters upon which Mr Shiel relied in suggesting to the Minister that the offences were not trivial or minor in nature. The first was the determination of the Serious Fraud Office to proceed, that Office having, in writing, stated that it was only concerned with investigating and prosecuting allegations of serious or complex fraud, less serious frauds being the province of the Crown Prosecution Service and the police. The second was the fact that each offence carried a maximum punishment of ten years imprisonment. The third was that "the alleged conduct involved substantial amounts of money". His Honour said that the third of these considerations was: "… unfortunately erroneous or at least cannot be said, by reference to any of the material before the Court, to be an accurate comment with respect to any of the three extradition offences (although it would have been perfectly accurate in relation to the original five extradition offences)". [A reference to the fact that one of the original conspiracy charges involved the sum of Ł25,000]. 17 As to the maximum imposable penalty, his Honour noted that this was relevant to the issue of whether the offences were trivial in nature. He said that the respondent could not properly form a view on that issue without knowing, in addition, something of the actual circumstances of the three offences. His Honour then made the following observations: "57. That the Serious Fraud Office only prosecutes the more significant frauds, the first consideration upon which Mr Shiel relied in expressing his view to the Minister about the non-trivial nature of these three offences, is a matter relevant to that issue. It was the only material that entitled the Minister to reach a conclusion to that effect and it was of only slender significance. 58. If, as I think likely, the Minister also had regard to Mr Shiel's erroneous statement about the offences involving substantial amounts of money in considering the matters she was required by reg 7 to advert to when she made her surrender decision, the only result is that, while the Minister did consider whether the offences were trivial in nature, she may have reached a wrong conclusion on that matter. But, as the Full Court in Foster pointed out at par [66], there is no reviewable error simply because the decision-maker makes a wrong finding of fact. 59. Even if the Minister's surrender decision can be said to be made in circumstances in which she did not merely make an error of fact by relying on what Mr Shiel had to say about the money involved in the offences, but instead took into account an irrelevant consideration in concluding that the offences were serious, rather than trivial ones, such a flawed approach to the making of the decision does not mean that the surrender decision itself is necessarily flawed with reviewable error because it is not by itself determinative of anything for or against surrender. The Minister still has to make a discretionary judgment on all the circumstances of the case and form the opinion that they show that surrender for the offence would impose too severe a punishment on the person before being required to refuse surrender."

Severity of Punishment 18 His Honour then turned to the question of "severity of punishment". It will be recalled that the appellant complained that the respondent had failed to advert to whether, in the circumstances which existed at the time the Minister decided to issue the warrant, surrender would involve too severe a punishment of the applicant for the qualifying extradition offences. His Honour found that surrender itself could hardly qualify as a punishment and that it was the consequences that would flow from surrender, and in particular the punishment the person is likely to receive if convicted of the extradition offence, that was to be the focus for consideration when the question is whether surrender would be too severe a punishment. His Honour said (at par 61): "… what is here relevant is not just the theoretical maximum punishment imposable under the law of the extradition country, but also the actual facts and circumstances of the particular extradition offence: it is that which will govern, in large part, what the fugitive's situation will be, if ultimately sentenced for the extradition offence." 19 His Honour further held that the reference to "having regard to all the circumstances" in Regulation 7 did not entitle (by which I take his Honour to mean entitle or require) her to have regard to the punishment which the appellant might receive if convicted of any of the proposed thirteen additional offences. His Honour said that he would read that phrase as being limited to those circumstances which related to the qualifying extradition offences (i.e. the three remaining offences). His Honour found that the respondent had no information before her on the likely punishment which the applicant would receive, if convicted of these three extradition offences and thus could not do what she was required by Regulation 7 to do when she made her decision of 30 March 1999, viz have regard to whether surrender would be too severe a punishment for him. In that regard his Honour focussed on the appellant's submissions that he had spent a quite substantial period in custody awaiting extradition as being a circumstance that would make surrender too severe a punishment for him. His Honour observed that nothing more was relied upon by the appellant than the proposition that the quite substantial period (14˝ months) which he had spent in custody awaiting extradition was such as to make surrender too severe a punishment. His Honour made some factual findings to the effect that all but one month of that time in custody was brought about by the applicant's own deliberate conduct in absconding while on bail granted on 13 May 1997. That circumstance, so his Honour found, meant that the respondent was not under any obligation to consider the period spent in custody awaiting extradition because, had she adverted to it, it could not have affected her decision in favour of surrender. He added: [69] "If I am wrong in thinking that the Minister is not bound to have regard to the quite long period the applicant has spent in custody awaiting extradition, I think that (save in an exceptional situation) the fact that a circumstance that should be adverted to was created by the offender's own deliberate conduct would make it so insignificant a circumstance that failure to take it into account could not be said to have materially affected the decision: see Peko-Wallsend at 40." [70] On the material before me, the only period in custody that the applicant could be entitled to have taken into account by the Minister on the severity of punishment issue in making her surrender decision was the initial period of one month before the applicant was granted bail. But, in the absence of explanation for why the grant of bail was delayed and in the absence of something to show that such a relatively short period of loss of liberty may fall severely on the particular fugitive, that will ordinarily be too insignificant a circumstance to be capable of materially affecting the decision the Minister made. That it may have been overlooked cannot invalidate the decision: see Peko-Wallsend. [71] The time the applicant has spent in custody since his re-arrest in February 1998 has been protracted in considerable parts because he has taken legal action to challenge various of the steps taken in the extradition process. I do not consider that a person should, by doing nothing more than pursue his legal rights in a court system that cannot offer litigants immediate hearings, be said to have inflicted the relevant loss of liberty upon himself, at least where, as is the case here, his conduct of the litigation cannot be said to involve an abuse of the process of the Court. 20 His Honour then considered the appellant's submission that the respondent's decision was unreasonable in the administrative law sense. He held that the submission involved nothing more than that the respondent failed to give proper weight to a range of competing considerations (including those listed at paragraph 8 above). His Honour held, citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, that this did not raise for determination any question of invalidity for Wednesbury unreasonableness.

The grounds of appeal 21 The appellant, although represented by counsel at first instance, was unrepresented at the hearing of the appeal. However, the notice of appeal was prepared by the appellant's former solicitors. The appellant also prepared two documents. One was an outline of submissions, which appeared to draw fairly heavily on his counsel's submissions to the primary judge. The other was a lengthy (110 pages) typewritten document. The appellant read the first ten pages of that document to us. We then received the whole of that document as comprising further written submissions from the appellant. That was on the basis that, if we intended to rely on any material referred to in that document which had not been before the primary judge, we would give the respondent an opportunity to make submissions against our taking that course. I have read that document and do not find it necessary to refer to any materials mentioned in it which were not before the primary judge. The appellant was allowed to make further oral submissions. From all of that material it appears that the appellant's grounds of appeal can be reduced to four points, namely: 1. Having found that the respondent had regard to Mr Shiel's erroneous statement that the offences "involved substantial amounts of money", and that she may have reached a wrong conclusion on that matter, whether his Honour erred in holding that: · there was no reviewable error in making that wrong finding of fact, and · that even if, by making that factual error, the respondent took into account an irrelevant consideration in concluding that the offences were serious rather than of a trivial nature, that did not mean that the surrender decision itself was necessarily flawed because, as his Honour had held, that conclusion (as to whether the offences were of a trivial nature) was not by itself determinative of anything for or against surrender. 2. Having found that the respondent had failed to take into account the likely punishment which the appellant would receive if convicted of the three extradition offences, whether his Honour erred in concluding that her discretion had not miscarried in law. 3. Whether his Honour had erred in calculating the period of time which the appellant spent in custody awaiting extradition as a result of his own deliberate conduct, and thereby concluding that this was not a matter which the respondent was under any obligation to consider, or alternatively, was so insignificant a circumstance that it could not be said to have materially affected the respondent's decision; and 4. Whether his Honour erred in holding that the respondent's decision was not so unreasonable that no reasonable person could have made it.

The respondent's position 22 The respondent's position was that the primary judge had not made any appealable errors. The respondent went further and filed a notice of contention under Order 52 rule 22(3) of the Federal Court Rules. In that document the respondent contended that the following matters were erroneously decided against her by the primary judge: (i) That it was not open to her on the material before her to conclude that the offences concerned were not of a trivial nature in terms of reg. 7(1)(a) of the Extradition (Commonwealth Countries) Regulations; (ii) That she had failed to advert to the question whether it would, in terms of reg. 7(1) of the Extradition (Commonwealth Countries) Regulations, be too severe a punishment to surrender the appellant.

Triviality 23 It is clear that the respondent took into account and considered whether the three remaining charges of using a false instrument were trivial in nature. At paragraph 9 of Attachment G, a document which was headed "Consideration of new matters relevant to the decision to surrender Peter Foster to the UK, pursuant to section 22 of the Extradition Act 1988" Mr Shiel drew the respondent's attention to the fact that the three remaining charges were serious and carried penalties of up to ten years imprisonment for each offence. There is also reference (in paragraph 7 of that document) to the determination of the Serious Fraud Office to proceed with those three charges. There was material before the respondent in the form of a letter dated 23 May 1997 from the Serious Fraud Office to the Attorney-General's Department, that the Serious Fraud Office is only concerned with investigating and prosecuting allegations of serious or complex fraud, less serious frauds being the province of the Crown Prosecution Service and the police. In my view, the references to these matters clearly indicate that the respondent is to be taken to have directed her mind to the question whether the offences were of a trivial nature. Furthermore, these two factors form a sufficient basis for a conclusion that the offences were not of a trivial nature. 24 I turn next to the significance of the reference, again in paragraph 9 of Attachment G, to the alleged conduct involving "substantial amounts of money". His Honour described that statement as being "unfortunately erroneous" or one which could not be said, by reference to any of the material before the Court, to be an accurate comment with respect to any of the three extradition offences. 25 My initial view, before reading Kiefel J's reasons in draft form, was that even if the three remaining charges did not "involve" substantial amounts of money, this would amount only to a wrong finding of fact and not constitute reviewable error: Waterford v Commonwealth (1987) 163 CLR 54 at 77; Attorney-General (Cth) v Foster (1999) 84 FCR 582 at para 67. However, I agree respectfully with Kiefel J's observations that if it could be established that Mr Shiel's statement that "… the alleged conduct involved substantial amounts of money" was erroneous and misleading then there is the potential for reviewable error on the basis of the principles discussed in the cases of Barrett v Minister for Immigration and Multicultural Affairs (1989) 18 ALD 129 at 132-3 and Videto v Minister for Immigration and Ethnic Affairs (19785) 8 FCR 167 and 179. 26 The applicant's submission that he did not actually receive any money does not, as Kiefel J points out, mean that substantial amounts of money were not "involved". That would depend upon what (on the prosecution's case) the appellant was endeavouring to obtain by using the instruments which he knew to be false. The appellant had the onus of proving in these proceedings that Mr Shiel's statement was wrong and that the alleged conduct did not "involve" substantial amounts of money. His case is based on the fact (assuming it to be a fact for the moment) that he did not actually receive any money as a result of the conduct referred to in the three remaining charges and that no amounts are specified in those charges. In my opinion, those facts do not establish that Mr Shiel's statement was erroneous. In those circumstances, there was no reviewable error in the respondent's reliance upon Mr Shiel's statement that substantial amounts of money were involved.

"… unjust or oppressive or too severe a punishment" 27 The primary judge found as a fact that the Minister had no information before her about the likely punishment which the appellant would receive, if convicted of the three extradition offences. I agree, again respectfully, with his Honour's opinion (expressed in paragraphs 61 and following) that Regulation 7 required the respondent to form an opinion about the punishment which the appellant would be likely to receive if convicted of each extradition offence. I agree also with his Honour's views that: · this means not just the theoretical maximum punishment possible under the law of the extradition country, but also something of the actual facts and circumstances of the particular extradition offence; · Mr Shiel's memorandum and attachments prepared in March 1999 did not give any consideration to the issue of the likely severity of punishment, or put any material before the respondent on that issue; and · such material on that issue as was contained in the recommendations of 10 July 1998 (which was also before the respondent as at 30 July 1999) did not provide the requisite information, because the situation had changed and there were only three extraditable offences to be considered. 28 I do not say that there needs to be an attempt at making a precise prediction of the likely punishment. It would have been sufficient for an indication of the range to be given, together with some assessment of whether the time spent by the appellant in custody would be taken into account by the sentencing judge or magistrate. I reject the respondent's submission, in her notice of contention, that she could still be found to have properly adverted to the question of whether it would be too severe a punishment to surrender the appellant, without considering what might be likely to happen to him if convicted in the United Kingdom. I think that that factor was equally relevant to whether it would be unjust or oppressive to do so. 29 The statutory context, always important in identifying relevant considerations, points strongly against the respondent's submission. Section 22 demonstrates the particular relevance, in the decision-making process, of what is likely to happen to the eligible person in the extradition country on return (either after conviction or before). For example: · will he or she be subjected to torture? [s 22(3)(b)]; · if the offence is punishable by a penalty of death, are there undertakings that he or she will not be executed? [s 22(3)(c)]; · has the extradition country given a speciality assurance i.e. that the eligible person will not be detained or tried for offences other than those arising from the conduct constituting the surrender offence without either an opportunity to leave that country or the Attorney-General's consent? [s 22(3)(d)]. 30 The likely range of the sentence in the extradition country can thus be seen as part of a continuum of considerations of varying degrees of seriousness, including the death penalty. In my view, it is not a factor which can be regarded as separable from considerations of unjustness, oppressiveness or severity of punishment. 31 His Honour can be seen to have declined to make an order of review because he found that all but one month of the 14˝ months which the appellant spent in custody were due to his deliberate conduct in absconding while on bail. As the appellant pointed out to us at the hearing of the appeal, this was a misconception. Even if the appellant had not absconded, it was the duty of the magistrate, once he had determined that the appellant was eligible for surrender, to issue a warrant ordering the appellant to be committed to prison: see s 19(9)(a) of the Act. Accordingly, from 4 March 1999 the appellant was in custody pursuant to that provision. It might be said that when he applied to the Supreme Court of Queensland for review of the magistrate's orders, he could have obtained bail under s 21(6)(f)(iv). That may be so, but the appeal was dismissed about one month later. In any event from about July 1998 (when the appeal from Cooper J's decision was abandoned), the appellant submitted that he had no possibility of obtaining bail, as a matter of law. The respondent submitted that the appellant could have applied for bail under s 26 of the Act. I think that such an application would have been met by the submission that there was a reasonable prospect of him absconding. I do not think that it is necessary, for the purposes of the present proceedings, to resolve that issue. I think that it is sufficient to note that at the time when the respondent made her decision on 30 March 1999, the appellant had spent a considerable time in custody awaiting extradition, by operation of law, and not by reason of deliberate illegal conduct on his part. I agree with the primary judge that the time taken by him in exercising his legal rights to challenge the extradition process should not be regarded as self-inflicted loss of liberty, absent any indication of an abuse of processes of this Court or the Supreme Court. 32 The fact that the Minister did not consider what would be the likely range of punishment to be meted out to the appellant if convicted in England is, in my opinion, of considerable significance in the factual context of this particular matter to the question of whether it would be unjust or oppressive or too severe a punishment to surrender the appellant. 33 If it appeared, for example, that the appellant, if convicted in the United Kingdom in respect of the three remaining offences, would be likely to receive a non-custodial sentence or would be tried summarily and receive only a short (say 6 months) custodial sentence, then in my view that circumstance would have a central bearing on whether it would be oppressive (or possibly too harsh a punishment) to surrender him. The elevation of such a consideration from one which is not irrelevant (in administrative law terms) to one which a decision-maker is bound to consider, is made easier, in my opinion, where (as here) the context is one of deprivation of liberty and the disruption of life of an Australian citizen whom the respondent has been asked to surrender to a foreign State. In my view, it is not asking too much of an extradition decision-maker to require him or her to consider the range of likely punishment in the requesting State and whether the pointlessness of the exercise in punishment (if it be pointless), would make surrender oppressive or too harsh a punishment. This might be particularly true in the context of the very long period (well in excess of six months) spent by the appellant in custody. To some extent such a consideration overlaps with considerations of triviality, but they are also of separate relevance in the manner which I have outlined. In not taking this factor (the likely range of punishment) into account I think that the respondent fell into error. The respondent failed to do what was required by Regulation 7. In my opinion, the administrative decision-making process malfunctioned sufficiently to warrant an order of review.

Unreasonableness in the administrative law sense 34 I agree with the conclusion of the primary judge, that the respondent's decision was not unreasonable in the administrative law sense. I agree also with his reasons for reaching that conclusion.

Conclusion 35 For the above reasons, in relation to the point arising under Regulation 7, in my view, the appeal should be allowed and the orders made on 24 June 1999 should be set aside. I think that there should be substituted a declaration that the warrant issued by the respondent on 30 March 1999 is a nullity. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: THE MINISTER FOR CUSTOMS AND JUSTICE, SENATOR AMANDA VANSTONE

MOORE J: 36 I have had the benefit of reading the reasons for judgment of Carr J in a draft form. I gratefully adopt his Honour's description of the background to this appeal, the reasons of the primary Judge and the issues in the appeal. I have also had the benefit of reading the reasons for judgment of Kiefel J in a draft form. I agree with the conclusions finally reached by Carr J on all but one matter, namely whether the Minister erred in her consideration of the question of whether it would be unjust or oppressive or too severe a punishment to surrender the appellant. 37 Regulation 7 of the Extradition (Commonwealth Countries) Regulations (Cth) ("the 1988 regulations") provides: "(1) The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that, for the purposes of subsection 22(2) of the Act, in addition to the conditions set out in subsection 22(3) for the surrender of an eligible person in relation to a qualifying extradition offence, such a person shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of: (a) the trivial nature of the offence; (b) the accusation against the eligible person not having been made in good faith or in the interests of justice; or (c) any other sufficient cause; it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person or to surrender the eligible person before the expiry of a period specify the Attorney-General. (2) …." 38 The 1988 regulations were made pursuant to the regulation making power found in s 52 of the Extradition Act 1988 (Cth) ("the Act"). However by operation of s 11 of the Act, reg 7 modifies the operation of the Act itself. That is because reg 7 creates a limitation, condition, qualification or exception to the application of the Act to countries to whom the 1988 regulations relate. It is to be noted that the 1988 regulations also modify the operation of the Act in relation to what is an extradition offence. An extradition offence in relation to a Commonwealth country is an offence for which the maximum penalty was imprisonment or other deprivation of liberty for a period of not less than two years: see reg 5. 39 In my opinion reg 7 was intended to operate in this way. The Attorney-General must consider whether the offence was trivial, whether the proceedings against the person who might be extradited were founded on an accusation that was not made in good faith or not made in the interests of justice and any other matter that might bear upon whether, in all the circumstances, it would be unjust or oppressive or too severe a punishment to surrender the person. It appears the object of reg 7 is to require the Attorney-General ordinarily to balance two sets of considerations. They are the nature of, and reasons for, the criminal proceedings for which the extradition is sought and the consequences of extradition for the person concerned. The words "unjust or oppressive or too severe a punishment" are directed to the effect of extradition. They qualify the verb "to surrender" and raise for consideration the deleterious or adverse effects of the extradition both immediately and upon return to the country in question. It is the surrender of the person that may have the effect of being unjust, of being oppressive or of being too severe a punishment. 40 Regulation 7 requires consideration of both the existing personal circumstances of the person at risk of extradition (including past events leading to the existing personal circumstances of the person) and an assessment of whether extradition with particular consequences for that person is warranted in the circumstances. That consideration must, having regard to reg 7(1)(a), include the nature of the charges to be brought against the person. The consequences of extradition that might, in appropriate cases, be considered include the likelihood of the prosecution succeeding: see Kenneally v New Zealand [1999] FCA 1320 or the procedures to be adopted in a trial: see Bannister v New Zealand [1999] FCA 362. 41 The period of imprisonment that the appellant might suffer if convicted is not a matter that must be considered in the balance with existing circumstances in the way contemplated by the concluding words of reg 7(1). The prospect of excessive or inappropriate punishment on conviction may be relevant. However that is not because the expression "too severe a punishment" is a reference to the punishment that might be imposed on a surrendered person if convicted on the extradition offences. Rather it is because that expression, together with the expression "unjust or oppressive", raises for consideration the general adverse consequences of extradition on a person at risk of extradition. If the charges are not trivial, which is the consideration expressly adverted to in the regulation, then the fact that the person, and in this case the appellant, may not be at risk of lengthy imprisonment is not a matter that must, of itself, be considered when reviewing the effect of extradition. As discussed by Kiefel J in pars 77-79 of her reasons, the likely sentence may be relevant in the present case when considering other matters. 42 Some of the language used in reg 7, and in particular the formulation "unjust or oppressive to return a person" can be traced to the Service and Execution of Process Act 1901 (Cth) as enacted in 1901: see Binge v Bennett (1988) 13 NSWLR 578 at 584. However the expression "too severe a punishment" as part of the expanded formulation "unjust, oppressive or too severe a punishment" appears to have found its way into statutory formulations concerning extradition in Australia more recently though the expression was in the formulation appearing in s 10 of the Fugitive Offenders Act 1881 (UK) ("the 1881 UK Act") which was replaced by s 8(3) of the Fugitive Offenders Act 1967 (UK): see Union of India v Narang [1978] AC 247 at 271. It is comparatively clear from a leading English authority, Re Henderson; Henderson v Secretary of State for Home Affairs [1950] 1 All ER 283 ("Re Henderson"), that the expression "too severe a punishment" in s 10 of the 1881 UK Act concerned the deleterious or adverse effects of extradition and did not necessarily raise for consideration the punishment that might be imposed on conviction, a person is extradited. In issue in Re Henderson were the difficulties which the applicant would experience in presenting his defence as a result of the length of time that had elapsed since the proceedings started. The judgment of the Court of Appeal was given by Tucker LJ who said (at 286-288): "The applicant, Mr. Henderson, was at one time serving in the army in India and is now in this country, having been demobilised from the army. In dealing with the application, counsel for the High Commissioner of India, who is one of the respondents, has taken the same attitude with regard to the proper interpretation of s. 10 of the Act of 1881 as was taken by the Attorney-General in R. v. Governor of Brixton Prison, Ex parte Waite (1), which was heard by the Divisional Court on Feb. 21, 1921. In that case the Attorney-General, dealing with the punctuation of s. 10, and the difficulties which might arise in regard to interpretation, having regard to the use of the words "or otherwise" in the section said: '… upon reflection, one cannot help thinking that the words 'or otherwise' in the fourth line leave it to the discretion of the court to make the order in any case upon any ground where, having regard to the distance, and the facilities for communication, and to all the circumstances of the case, it appears to the court that it would be oppressive, or too severe a punishment, to return the fugitive immediately.' Counsel for the High Commissioner is quite content that the case should be dealt with on that basis, and that we should make an order for the release of the applicant if we were satisfied that in all the circumstances, having regard to the matters referred to, it would be oppressive or too severe a punishment to return him. In the opinion at which I have arrived, and accepting that as the basis for our decision in this case, it does not become necessary for me to express a final view as to whether or not that is the correct interpretation of the section, but, assuming that it is, and applying that test, I pass to the facts relating to this particular application … I think that the kind of matters with regard to which this court would act would be where it appears that the contemplated proceedings, although, perhaps, lawful by the law of the country concerned, are really going to be conducted in a way contrary to natural justice or contrary to our ideas of it. A case of that kind has, in my view, certainly not been made out on the material laid before us. It is not sufficient to say: 'That would not be the procedure in this court. That would appear to entail hardship.' It is, of course, necessary for us to weigh up the nature of the charges when we are considering whether a man should be returned. After all this delay, with this long distance, if it appeared to us that the charges were trivial and that the punishment entailed in being returnedwas in the circumstances out of all proportion to the gravity of the offence (of which, for this purpose, it must be assumed that the applicant is guilty), this court would, no doubt, intervene. The charges against him, however, are very serious. They are numerous, they involve large sums of money, and I think it is quite impossible to say that the applicant would be unduly punished by having to go back to take his trial, nor do I think that it has been made out that the action of the government of India in seeking his extradition is, in all the circumstances, oppressive." (Emphasis added) 43 The expanded formulation in the same general terms as s 10 of the 1881 UK Act was considered by a Full Court in Hicks v Martin (1990) 27 FCR 416 in the following passage which treated the expression "oppressive or too severe a punishment" appearing in s 34 of the Act as comprehending the same notions notwithstanding the use of the disjunctive "or" (at 419): "Section 34(2) of the Act obliged the magistrate to order that the appellant be released if he reached the conclusion that because of one or more of the circumstances referred to in pars (a), (b) and (c) "or for any other reason" it would be unjust, oppressive or too severe a punishment to surrender him to New Zealand. It is to be observed that the words "or for any other reason" did not appear in the legislation at the time of the decision in Bryan v Preston [(1982) 44 ALR 217]. There may well be cases where hardship would be so great as to make it oppressive or too severe a punishment to surrender a person to New Zealand albeit that the hardship is unrelated to the passage of time since the occurrence of the alleged offence. It was well open to his Honour to reach the conclusion that the hardship which would be occasioned to the appellant if he is returned to New Zealand would not be such as to make it oppressive or too severe a punishment that he be returned to that country." 44 The Full Court appears to proceed on the basis that s 34 required consideration of the dislocation or hardship caused by the surrender to the person at risk of extradition having regard to the past and present circumstances of that person. The expression "oppressive or too severe a punishment" was not treated directly raising the penalty that might be imposed on conviction of the extradition offence or offences but rather the hardship occasioned by extradition. 45 For the reasons given by Kiefel J in pars 77-79 of her reasons which I respectfully adopt, I do not accept that the Minister's consideration of the time the appellant has spent in custody discloses reviewable error. 46 I would dismiss the appeal with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

AND: THE MINISTER FOR CUSTOMS AND JUSTICE SENATOR AMANDA VANSTONE

KIEFEL J: 47 I have had the benefit of the summary of the background to this appeal and of relevant aspects of the reasons of his Honour the primary Judge, prepared by Carr J.

The Legislation 48 Subsection 22(2) of the Extradition Act 1988 (Cth) ('the Act") requires the Attorney-General (or, in this case, the Minister) to determine, promptly where practicable, whether a person is to be surrendered to the country seeking extradition for a qualifying extradition offence. An offence against the law of the requesting country qualifies under s 5 if it carries a minimum sentence of imprisonment or other deprivation of liberty of not less than twelve months (or in the case of a Commonwealth country, two years (see reg 5 of the Extradition (Commonwealth Countries) Regulations) ("the Commonwealth regulations")). Subsection (3) of s 22 then imposes limitations or conditions upon surrender. Unless they are met, surrender is not to occur. They require that the Attorney-General be satisfied that there is no extradition objection in relation to the offence (par (a)); and that the person will not be subjected to torture (par (b)). Objections to extradition may arise where political or military offences or wrongful discriminatory practices are involved, or where the person had been acquitted, a pardon had been given or they had already been punished for the offence, or another offence constituted by the same conduct (s 7). When the death penalty might be imposed, undertakings from the requesting country are to be required, so as to ensure that it would not be carried out (par (c)) sub 22(3)). Speciality assurances, by which the country undertakes not to try the person for offences committed prior to surrender, other than the extradition offence, or an offence arising from the same conduct, are to be provided unless the Attorney-General consents to the prosecution (subpar (3)(d) and (4)). 49 Paragraph (e) of sub 22(3) imports additional "limitations, conditions, qualifications or exceptions" to surrender in the case of certain countries, by the operation of s 11. It provides that they are to be effected by regulation. Reg 7 of the Commonwealth regulations ("Modification of Act in relation to surrender determination") contains conditions with respect to each Commonwealth country. It is in these terms: "7. Modification of Act in relation to surrender determination (1) The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that, for the purposes of subsection 22(2) of the Act, in addition to the conditions set out in subsection 22(3) for the surrender of an eligible person in relation to a qualifying extradition offence, such a person shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of: (a) the trivial nature of the offence; (b) the accusation against the eligible person not having been made in good faith or in the interests of justice; or (c) any other sufficient cause; it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person or to surrender the eligible person before the expiry of a period specified by the Attorney-General. (2) In subregulation (1), "eligible person" and a "qualifying extradition offence" have the same meanings respectively as in section 22 of the Act." In addition to these express limitations or conditions placed upon surrender, para (f) of sub 22(3) requires that the Attorney-General consider, in his or her discretion, the appropriateness of surrender in relation to the offence. The Material before the Minister 50 The material and advices before the Minister, when the surrender of the appellant was determined, were in the form of a ministerial submission with a recommendation, which the Minister approved and signed. The submission directed the Minister to an earlier submission, which dealt with the request relating to all five original charges (conspiracy to defraud (two counts) and using a false instrument (three counts) (attachment "A")). It contained a separate annexure dealing with the "new matters" relevant to a decision to surrender the appellant on only the three lastmentioned charges ("G"), and it attached four letters from the appellant's solicitors with respect to those matters. 51 The earlier submission, found in attachment "A", contained the arguments put forward by the appellant and his advisers that all of the offences were "trivial". They took two forms. It was argued that the nature of the offences were trivial because the appellant did not intend to cause loss and that actual loss was not sustained. At this time however the charges included conspiracy to defraud, in respect of which it was alleged money was actually obtained by the appellant and his co-conspirator. Those relating to the use of the false documents did not. The second argument addressed sentencing, although the departmental adviser expressed some doubt about whether the offence could be "trivialised" by this means. It was asserted that a sentencing Judge in the United Kingdom would take account of the amount of time the appellant had been in custody since 1995, together with certain other mitigating factors, and that a non-custodial sentence would result. The adviser discounted the lastmentioned argument, and advised that a Judge would not necessarily take into account the time already spent in custody having regard, in particular, to the fact that much of it followed upon the appellant absconding from lawful custody. 52 In Attachment "G" the question of the triviality or otherwise of the remaining charges was addressed. The following advices were given to the Minister in conclusion: "The three remaining charges of using a false instrument are serious charges, and carry penalties of up to ten years imprisonment for each offence. The alleged conduct involved substantial amounts of money, and it could not be said that the offences are trivial or minor in nature. There is nothing to suggest that it would be unjust or oppressive to surrender Foster for them on this basis." 53 It had earlier been said that the Serious Fraud Office in the United Kingdom had confirmed its intention to prosecute the appellant on the remaining charges and explained how the charges were not considered to be weakened by the circumstances associated with the decision not to proceed with the conspiracy charges. 54 A letter dated 13 October 1998 from the appellant's then solicitors, which was included in the submission to the Minister, is of relevance on the appeal. It followed the United Kingdom authorities' decision not to proceed with what were said to be the more serious counts. It said, with respect to the remaining charges: "The result is that Mr Foster now faces three counts of using a forged document. Those charges arise from allegations that Mr Foster used a forged document in an unsuccessful attempt to obtain credit from suppliers. It is not alleged that credit was ultimately supplied to him as a result. None of the charges alleges any receipt by Mr Foster of any money, goods or benefit of any kind, nor is it alleged that any person suffered any financial or other detriment as a result of the alleged offences".

The First Question: Triviality of the Offence 55 The starting point in his Honour the primary Judge's reasoning was an assumption that the statement by the Minister's advisors in the submission to her that the offences "involved substantial amounts of money" was wrong or inaccurate. The Minister challenges this approach which, it submits, was not raised as an issue in the particulars of the application for relief under s 39B of the Judiciary Act 1903 (Cth) and was not raised during the hearing either in cross-examination of Mr Sheil, the author of the submission, or in addresses. 56 His Honour listed three factors as having been drawn to the Minister's attention: the determination of the Serious Fraud Office to continue with prosecutions on the remaining charges, which his Honour did not think of much assistance on this question; the maximum term of imprisonment which might be imposed on conviction on each of the offences; and the fact that "the alleged conduct involves substantial amounts of money". There was, in my view, another opinion conveyed in the passage set out above, namely that the charges, of using a false instrument, were themselves serious. 57 His Honour clearly considered that it was necessary in this case, if not in all cases, for the Minister to have regard to the circumstances of the offence, in addition to the charges as stated, in order to determine whether the offences were "trivial". In that process the Minister had had regard to an erroneous or inaccurate statement regarding monies being "involved". In fact no monies were obtained by the use of the false documents. The charges related to attempts to obtain benefits. A wrong conclusion reached by that means would however, in his Honour's view, amount only to a wrong finding of fact, which was not a reviewable error (Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582, 602; Waterford v Commonwealth (1987) 163 CLR 54, 77). 58 It will not be necessary in every case for particulars of the conduct giving rise to a charge, and the circumstances surrounding it, to be considered in determining whether it is trivial, such that surrender of the person would be oppressive. In some cases, where the charge contains little by way of particulars, a reference to the theoretical nature of the offence will suffice. Murder is an obvious example (see Narain v DPP (1987) 15 FCR 411, 413). In other cases the question could not be answered without the further information, for example conspiracy (see Edmonds v Andrews (1987) 85 FLR 419, 421 and also Re Maher [1983] 2 Qd R 695). In such a case the obligation to come to a view on the question as to the seriousness, or lack of seriousness, of the offences will not have been fulfilled and a ground for review will be made out. 59 In the present case the three charges involved an offence akin to either forgery or fraud. That limited description, absent any further details of the circumstances surrounding the alleged commission of them by the appellant, in my view provided a basis for a conclusion in the ministerial submission, that the offences were not "trivial or minor in nature". At the commencement of that paragraph the advisor had gone further, and described them as "serious charges". 60 On one view of the advices to the Minister, in the passage set out above, there were two basis for the conclusion that the offences could not be said to be trivial: the nature of the offences involved and the amount of money involved. Either of them support the conclusion reached regarding triviality. Even if one were to remove reference to the money involved as a possible consideration, on the basis that there was no evidence to support it, it could not be said that a different conclusion as to the triviality of the offence might be reached (as to which approach see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; R v Chief Registrar of Friendly Societies; ex parte New Cross Building Society [1984] QB 227, 260; McPhee v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 77, 80). I shall, nevertheless, deal with this ground, the subject of his Honour's concerns, on the basis that it may have been influential. 61 The first matter to consider is the assumption that the statement is erroneous, and conveys wrong information to the Minister. If it were wrong, and there were not substantial amounts of money involved, the "no-evidence" ground for review might apply, as I have adverted to above. In my view, however, what was conveyed was not wrong in fact, but incomplete, for it is not explained what is meant by the word "involved". 62 The appellant's point was that the charges were not of offences involving the actual receipt of money by him. If the contrary were conveyed, the proper enquiry, in my view, would then be whether the Minister was under a misapprehension as to the true facts. A decision made on the basis of an erroneous statement of fact may, in some circumstances, amount to an error of law: see Barrett v Minister for Immigration, Local Government and Ethnic Affairs (1989) 18 ALD 129, 132-3 (Full Court) and see also Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167, 179 at least where it could be shown to have an impact on the decision made (see Peko-Wallsend and the other cases mentioned above). The possibility of error of law then attending the decision making is not answered by attributing some mistake in factual finding on the part of the ministerial adviser, to the Minister. That is not what I understand cases such as Videto and Peko-Wallsend to say. Rather, in their application to the present case, they would hold that if the fact that no monies had been received as a result of the offences was a material fact which the Minister was bound to take into account, and the Minister has not, it cannot be said that she has reached her decision on the matter arising under the regulations according to law. The present case is, I think, closer to the situation which prevailed in Barrett's case. There the Full Court held that the decision was affected by legal error because it was made on the basis of a submission that was, in an important respect, misleading (133). For the reasons which follow I do not, however, think that it could be said here that the Minister, or her adviser, was unaware of the true position relating to the charges. 63 If one were to assume that considerations of the monies involved could be said to be critical to the conclusion, I do not think the appellant is able to show that the Minister is likely to have been misled. The word "involved" is neutral. A fair reading, but not a close examination, of the ministerial submission would have conveyed that, in some way, substantial amounts of money were connected with the offences, which is to say, that was what was sought to be gained. It was not said that they were actually received and it was not necessary for the Minister to know whether this was so. 64 In this case however it may also be concluded that the fact that unsuccessful attempts to obtain credit were involved, was made apparent to the Minister. That information was contained in the letter from the appellant's solicitors dated 13 October 1998, the relevant part of which is set out above, and which was included as attachment "F" to the submission to the Minister. Attention was directed to it and the other three letters. The material before the Minister was not extensive. There is no reason to believe that the letter was not read. 65 I have reached the same conclusion as his Honour, although by a different process of reasoning. There is no basis for concluding otherwise that the Minister's decision, on this ground of limitation upon surrender, was not one open to her.

The Second Question: Severity of Punishment 66 The particulars of the application before his Honour the primary Judge referred, generally, to the Minister's failure to take into account the change of circumstances and all the matters referred to in subs 22(3). In connexion with this question it was said: "10. In purporting to exercise her discretion under Section 22(2) of the Extradition Act 1988, the Respondent failed to make any or any adequate assessment of what penalty was likely to be imposed upon the Applicant if the Applicant was convicted of the remaining charges and in the light of the changed circumstances, which was a matter which the Respondent should have considered for the purposes of section 22(3) of the Extradition Act 1988 and Regulation 7 of the Extradition (Commonwealth Countries) Regulations." 67 What the particular does not address was which conclusion in reg 7 the likely penalty was relevant to (whether surrender would be unjust, oppressive, or too severe a punishment). His Honour the primary Judge dealt with it in connexion with the possible severity of punishment. 68 His Honour considered that the words "having regard to all the circumstances" in Reg 7 meant that it was not just the theoretical maximum punishment which might be imposed under the law of the extradition country which was necessary to be considered, but also the actual facts and circumstances relating to the particular extradition offence. His Honour considered that the Minister did not address what was required by the regulation which was: "…the comparison that is required to be made by reg 7, viz, a comparison between the actual sentence the United Kingdom court is likely to impose and the circumstances of present relevance - the punishment the applicant had already suffered by way of loss of liberty while awaiting extradition." His Honour considered that the information before the Minister prevented such an assessment, although the material emphasised the importance of her considering the severity of punishment by reference to these factors. The fact that the appellant's "own deliberate conduct" had led to his being incarcerated however suggested to his Honour that the Minister was not obliged to take the time already spent in custody into account or it reduced the importance of it. Because of the view I have reached upon the matters to which the Minister was directed by the regulation, in the circumstances of this case, it is not necessary for me to deal with that aspect of the reasons. 69 The word "unjust" has been taken to refer, in its primary meaning, to the process, including the trial, to which the person sought might be exposed and any risk of prejudice to them; and "oppressive" to the change in the person's circumstances in the intervening period, which may include considerations such as delay and hardship: Kakis v Government of Cyprus [1978] 1 WLR 779, 782-783, although the terms are sometimes treated as overlapping or as interchangeable: Perry v Lean & Fry (1985) 39 SASR 515, 535; Binge v Bennett (1988) 13 NSWLR 578; R v Secretary of State for the Home Department; Ex parte Launder [1997] 1 WLR 839, 857 and Re Henderson; Henderson v Secretary of State for Home Affairs (1950) 1 All ER 283, 284B and 287H; Zacharia v Republic of Cyprus [1963] AC 634, 663, 681. As I shortly observe, whether to surrender would be "too severe a punishment" has been found to be satisfied by conditions which appear to me relevant to an enquiry as to whether it would be "oppressive" to do so. 70 As Moore J has pointed out, the expression "too severe a punishment" is a relatively recent addition to the Commonwealth regulations, although it appeared in the Fugitive Offenders Act 1881 (UK). It also appears in the Canadian Fugitive Offenders Act RSC 1985. There is no discussion, of which I am aware, which throws light upon the reason for its inclusion and, as I have said, it has been approached in a similar way to the question of oppression: see Hicks v Martin (1990) 27 FCR 416. I take it that the Full Court in that case considered that, where oppression might result, surrender might itself be considered as a form of punishment. In my respectful view, however, that suggests that it was not intended that any enquiry as to severity of punishment was to have its own field of operation. Whilst I acknowledge that some of the cases to date have not differentiated between the three concepts, the preferable approach in my view is to accept that they were likely to have been intended to apply to different factors and circumstances and to pose three different questions; an approach which seems to have been accepted as correct in In Re Gorman [1963] NZLR 17, 19. 71 The expression "too severe a punishment to surrender" might, on that view, suggest that there is a negative implication in the act of surrender itself. 72 The expression "too severe a punishment to surrender" might, on one view, be answered by having regard to all that has gone before and then determining whether, in that background, the surrender itself satisfies the enquiry. The severity of punishment is simply connected with the act of surrender and regard is not had to the consequences which might follow upon surrender and later conviction. It may be observed that the enquiry as to whether it would be "unjust to surrender" has been held to apply to the pre-trial and trial process to which the person to be surrendered might be exposed. In my view, the connexion of the conclusions "unjust", "oppressive" or "too severe a punishment" to "to surrender" should not be taken as limited to an enquiry as to the effect of the surrender, and past events. It is preferable to have regard to matters to which the three enquiries were directed, in the context of extradition and the Act. 73 The words "too severe a punishment" in Reg 7 could refer to the nature of the punishment itself. This would be consistent with the concerns expressed in s 22(3)(b) and (c) as to what would, in this country, be regarded as inhumane treatment. It might also refer to the extent of the punishment, when the nature of the crime was taken into account. An offence might not qualify as "trivial", but the punishment for its commission may nevertheless be too severe. 74 The words might also be taken to refer to the circumstances of the person. I have adverted to this already. Similar considerations which are relevant to whether surrender would be oppressive would then apply. In this event the punishment is to be seen as a consequence of the surrender itself, and not what the person is exposed to by way of sentence or penalty if convicted following surrender. The same circumstances should already have resulted in a conclusion that to surrender would be oppressive to the person and that enquiry seems more appropriate to them. This suggests to me that the primary area of intended operation for the words "severe punishment", when they were added, was that first-mentioned. This is reinforced by the choice of the word "severe" which tends to convey something in the punishment which would not be considered usual or acceptable. 75 It may be accepted, I think, that in some cases it may be necessary for the Attorney-General, or the Minister in question, to take account of the sentence likely to be imposed, even when considering the punishment in the primary meaning I have attributed to it. It does not however seem to me automatically to arise for consideration because of the reference to the "punishment" which might follow surrender. Indeed in a case where a range of punishments were possible, some inhumane or unusually drastic, but others not, the Minister might decide the question of surrender on the basis of the worst of the possible punishments, unless assurances were given. In any event, in my view, neither the appellant's submissions to the Minister nor the material before the Minister required reference to the sentence which was likely to be imposed. 76 It was not, and in my view could not, be suggested that the nature or extent of the possible punishment, even the maximum penalty, was severe in the sense I have referred to above. There was nothing to suggest that any possible sentence in the available range would be disproportionate to the circumstances of the offence itself. If that were so, the matter would in any event properly fall to be considered as a failure in process of sentencing and therefore an exposure of the person to injustice. 77 The critical factor in the concerns expressed by his Honour was the time the appellant had already spent in custody. The process his Honour considered necessary was a comparison of that with the likely sentence, to determine whether surrender was "too severe a punishment". The proper enquiries, on the factors identified by his Honour are, in my view, whether surrender would work oppression, or whether it would be futile to surrender the appellant. 78 The appellant's submissions, to the Minister in my view, addressed the latter conclusion. It was contended, in effect, that there was no point to the surrender since a sentencing judge would consider that he had already served a term of imprisonment equal to or greater than that which would be imposed by way of sentence upon conviction. It was said there would be unnecessary cost involved for little result. It was considered by the Minister's advisers however, that one could not assume that a sentencing judge would take that course. This was a view open to the Minister. It would follow that extradition could not be said to be a pointless exercise judged by reference to whether the appellant might be required to serve a term of imprisonment. Moreover it was a matter for the Minister to determine whether any weight should be given to the fact that the appellant had had time in custody. In the absence of statutory guidance as to the weight to be given to various factors, what weight is attached is a matter for the Minister: Peko-Wallsend 41. The question raised by the appellant fell to be considered under the discretion provided in s 22(3)(f). It may be one amongst many considerations, including aspects of relations with the requesting country and shared views of the need to bring persons allegedly involved in fraudulent actions, to trial. The discretion is at large: Forrest v Kelly (1992) 34 FCR 74, 81; Attorney-General v Foster, 601. 79 There remains the question whether it would be oppressive, having regard to the time he had already spent in custody, to surrender the appellant. In this context what is under consideration is fairness and perhaps also hardship. This was not a matter put forward by the appellant in his submissions to the Minister. The question, generally, whether it would be unjust or oppressive to surrender him was however addressed in the departmental submission and rejected. The Minister was aware of the time spent in custody, and the view was expressed that, in part, it had been brought about by the appellant having absconded at an early point. There was nothing in my view to require the Minister to further consider the question. What view was taken of the appellant's circumstances was a matter for the Minister. It may be recalled that par (a) of s 22(3), read with reg 7, would require refusal of extradition where a sentence had already been served. This was not such a case.

Conclusion 80 The appellant has not shown that the Minister failed to take into account the matters required by reg 7 of the Commonwealth regulations. The appellant's complaints were, essentially, that his arguments as to the nature of the offences for which extradition is sought and as to the relevance and importance to be given to the time he had already been in custody, were not accepted by the Minister. The principal matters raised by the appellant, as to whether the request for surrender should be acceded to, were matters within the discretion of the Minister. It has not been shown that the discretion has been exercised in a manner contrary to law. 81 The appeal should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Solicitor for the Respondent: Australian Government Solicitor

Extradition Act 1988(Cth)ss 22, 7,11,23,12,16,19,21,52,34

(UK) Service and Execution of Process Act 1901(Cth)

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