Heslehurst v Government of New Zealand

the statutory scheme 3 According to s 3 of the Act, one of its principal objects, among others, is to codify the law relating to the extradition of persons from Australia to New Zealand. Part 3 of the Act is concerned specifically with extradition from Australia to New Zealand. Section 28, which is in Part 3, provides for an endorsed New Zealand warrant as follows: "Where: (a) an application is made…on behalf of New Zealand to a magistrate for the endorsement of a New Zealand warrant…; and (b) the magistrate is informed…that the person for whose arrest the warrant is in force is…in Australia; the magistrate shall make an endorsement on the warrant…authorising the execution of the warrant in Australia by any police officer." 4 Section 34(1) of the Act provides for the issue of a surrender warrant as follows: "(1) Where: (a)…… (i) a person has been remanded after being arrested under an endorsed New Zealand warrant;… (b) a request is made to a magistrate by…New Zealand for proceedings to be conducted under [s 34 of the Act]; the magistrate shall, unless the magistrate makes an order under [s 34(2)]… (c) by warrant [in accordance with s 38(1)], order that the person be surrendered to New Zealand; and (d)…order that, pending the execution of [such a warrant], the person be committed to prison. (2) If the magistrate is satisfied by the person that,… for any … reason it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released." 5 Section 35 of the Act relevantly deals with review of a magistrate's order under s 34 as follows: "(1) Where a magistrate…makes an order under s 34(1)(c) in relation to a person…the person…may…apply to the Federal Court…for review of the order. (2) The court may…confirm the order of the magistrate…or quash the order and direct the magistrate to…order the release of the person… ……………………… (6) Where [the] person…applies under [s 35(1)] for a review of an order;…the court…shall review the order by way of rehearing, and may have regard to evidence in addition to or in substitution for the evidence that was before the magistrate". 6 Section 38 of the Act deals with the form and execution of surrender warrants in the following terms: "(1) A surrender warrant… in relation to a person (in this subsection called the eligible person) shall: (a) authorise a police officer to take the eligible person into custody, to transport the eligible person in custody and…to detain the eligible person in custody, for the purpose of enabling the eligible person to be placed in the custody of a specified person (in this subsection called the New Zealand escort officer) and transported out of Australia; (b) authorise the New Zealand escort officer to transport the eligible person in custody out of Australia to a place in New Zealand for the purpose of surrendering the eligible person to a person appointed by New Zealand to receive the eligible person; and (c) be in writing in the statutory form. (2)…a surrender warrant…shall be executed according to its tenor. (3) A surrender warrant…shall not be executed while any proceedings under s 35 in relation to the order of the magistrate…are being conducted or are available. ……………………… (7) Where…a surrender warrant…is issued in relation to a person…the person is in custody in Australia under the warrant…for more than 1 month after the day in which the warrant was first liable to be executed…[and]…the person applies to the Federal Court…the Court shall, subject to [s 38(8)], order that the person be released from that custody. (8) Where the Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 1 month…for any…reasonable cause…the Court shall not order that the person be released from custody."

the dispute between the applicant and New Zealand. 7 On 1 September 1999 the Applicant was arrested in New South Wales pursuant to an endorsed New Zealand warrant. On 9 and 23 March 2000 an application was made to the Magistrate for the extradition of the Applicant to New Zealand pursuant to s 34 of the Act. On 23 March 2000 the Magistrate ordered the surrender of the Applicant to New Zealand. On that day a warrant in the form specified in s 38(1) of the Act was signed and issued by the Magistrate. In accordance with the requirements of s 38(1) of the Act, a specified person, namely Detective Joel Carson, was named in the warrant as New Zealand escort officer,. 8 On 15 September 2000, the Applicant appealed to the Federal Court from the order of the Magistrate that he be surrendered to New Zealand. That application was dismissed. On 12 March 2001, the Applicant appealed to the Full Court of this Court. The Full Court dismissed the appeal. On 26 March 2001 the Applicant applied for special leave to appeal to the High Court of Australia. That application was deemed to be abandoned on 4 October 2001. 9 On 7 November 2001, a solicitor with the Commonwealth Director of Public Prosecutions ("the DPP Solicitor") was informed that Detective Joel Carson had resigned from the New Zealand Police Force. Subsequently the DPP Solicitor was informed that an alternative New Zealand escort officer was available in the character of Constable Gregory Brand of the New Zealand Police Force. Accordingly, on 16 November 2001 the DPP Solicitor attended before the Magistrate in order to apply for amendment of the surrender warrant issued on23 March 2000. The Magistrate directed that the matter be listed for hearing on 21 November 2001 to enable the Applicant to be present. 10 On that day the Applicant appeared in person without any representation. The matter was therefore adjourned to 28 November 2001 to allow the Applicant to seek legal advice and arrange for representation. On 28 November 2001 the Applicant was represented by a solicitor and the Government of New Zealand was represented by the DPP Solicitor. The matter was stood over again, to 4 December 2001. On that day, written submissions were given to the Magistrate on behalf of the Applicant. The Magistrate gave directions for further submissions to be filed and listed the matter for decision on 15 February 2002. 11 In the meantime, on 14 December 2001, the Applicant applied to the Federal Court for an order that he be released from custody pursuant to s 38(7) of the Act. On 20 December 2001, Lindgren J dismissed that application. After submissions were filed on behalf of the Government of New Zealand, the Magistrate gave reasons on 15 February for her conclusion that she had power to amend the warrant. The Magistrate then amended the original warrant by ruling through the words "Detective Joel Carson" and substituting in handwriting the words "Detective Gregory Mark Brand" and initialled and dated that amendment.

the issue for decision 12 The Government of New Zealand relies on the provisions of s 33(3) of the Acts Interpretation Act 1901 (Cth) as conferring power to make the amendment in question. Section 33(3) provides that: "Where an Act confers a power to make, grant or issue any instrument, (including rules, regulations or by laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument." The Magistrate expressly relied upon the provisions of s 33(3) as the source of her power to make the amendment that I have described. The question before me is whether the Magistrate had power to make the amendment to the warrant that I have just described. The question turns on whether a warrant issued under Part 3 of the Act is an "instrument" within the meaning of that word when used in s 33(3) of the Acts Interpretation Act. 13 The question of the application of s 33(3) of the Acts Interpretation Act to a warrant issued under Part 3 of the Act has not been the subject of any decision. Ordinarily an instrument is a writing of some kind importing a document of a formal, legal kind. The word is usually applied to a document under which some right or liability arises. A document that authorises the seizure of an individual and the surrender of that individual to a foreign government would satisfy the description of a formal legal document under which some right arises. It is clearly an instrument. However, I have been referred to a number of authorities that are said to said to support the contentions of the Applicant that a surrender warrant is not an instrument to which s 33(3) applies, because it is not of a legislative character. 14 The Applicant's contention begins with the decision of this Court in Australian Capital Equity v Beale (1993) 41 FCR 242 ("Beale's Case"). The question in Beale's Case concerned an invitation to tender for licences under the Radio Communications Act 1983 (Cth). Lee J considered the legislative history of s 33(3) of the Acts Interpretation Act and observed that in 1941 the subsection was amended. Before amendment the subsection referred to a power "to make any rules, regulations or by-laws". In 1941, the subsection was amended by omitting the words, "any rules, regulations or by-laws", and replacing them with, "grant or issue any instrument (including rules, regulations or by-laws)". His Honour observed that the provisions of the Acts Interpretation Act were based on the Interpretation Act 1889 (UK), where a definition of the word "instrument" appeared as being "any Order in Council, order, warrant, scheme, letters patent, rules, regulations or by-laws" (my emphasis). After referring to a number of other decisions, to which I shall also refer shortly, Lee J. concluded that, in order to fall within s 33(3) of the Acts Interpretation Act, an instrument "must be a document of legislative character". 15 In Director of Public Prosecutions Reference No 2 of 1996 (1997) 141 FLR 414, the Victorian Court of Appeal considered the application of the Victorian equivalent of s 33(3) to a notice given under s 13 of the National Crime Authority Act 1984 (Cth). Section 13 empowers the Minister to refer a matter to the Authority by notice in writing to it. The Court of Appeal considered that the relevant provision of the Victorian statute did not apply to such a notice. The Court observed (at pages 426 to 427) that there is "nothing legislative" about a notice under s 13 and that the giving of such a notice is a purely executive act. 16 In Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31, Weinberg J considered whether s 33(3) would apply to the power vested in the Minister for Immigration and Multicultural Affairs to grant visas. His Honour referred to the decision of the Victorian Court of Appeal, and in particular the observation that there was nothing legislative about the act in question, which was a purely executive one. His Honour considered (at [82]) that the same could be said of the grant of a visa. 17 In Dutton v The Republic of South Australia [1999] FCA 498 ("Dutton's case), Branson J considered the possible application of s 33(3) of the Acts Interpretation Act to a notice issued under s 16 of the Extradition Act. Her Honour considered that s 33(3) is limited in its operation to powers concerning instruments of a legislative character and cited Lee J's decision in Beale's case as authority for that proposition. It was unnecessary for Her Honour's decision in that case to form a final view as to whether s 33(3) required an instrument of legislative character. 18 In Schanka v The Employment National (Administration) Pty Limited [2001] FCA 1623, Moore J considered the application of s 33(3) of the Acts Interpretation Act to a direction by the Minister under s 83BC of the Workplace Relations Act. His Honour expressed the view that, before s 33(3) applied, the instrument in question must be of a legislative character. His Honour cited Lee J's decision in Beale's Case, and Branson J's decision in Dutton's Case. His Honour concluded that the approval notice under the Workplace Relations Act 1996 (Cth) that was there under consideration, was executive in character. Once again, the question does not appear to have been critical to the decision made. 19 Against those authorities, one must consider what I regard as powerful contrary expressions of opinion. In Re Brian Lawlor Automotive Pty Ltd and Collector of Customs [1978]1 ALD 167 ("Lawlor's case"), Brennan J, then President of the Administrative Appeals Tribunal, made observations concerning the application of s 33(3) in relation to a licence granted by the Minister for Customs in respect of warehouses. Under the Customs Act 1901 (Cth) there was no form for such a licence that could be granted orally. Brennan J referred to the legislative history mentioned by Lee J but reached a different conclusion as to the significance to be attached to the amendment. 20 His Honour observed (at 172): "There is much to be said for the view that section 33(3), as it was first enacted, was limited in its application to the power to created subordinate legislation...[t]he instruments to which section 33(3) now relates, are instruments which are not necessarily rules, regulations or by-laws, and they are instruments which might be "granted" or "issued" rather than "made". Where, pursuant to a statutory power, an authority grants or issues an instrument other than a rule, regulation or by-law, the exercise of the power may well be an executive or administrative act rather than a legislative act. At all events, the granting or issuing of an instrument other than a rule, regulation or by-law is not necessarily an act of a legislative kind, and the granting or making of an executive or administrative instrument falls within the natural ambit of section 33(3). An effect of the 1941 amendment is to extend the power of repeal, recision [sic], revocation, amendment and variation to statutory powers for the creation of instruments when the power is of an executive or administrative rather than a legislative character. The extension of the application of section 33(3) to executive and administrative powers marked a significant departure from the model in which that subsection and its antecedents…had been constructed. Section 33(3) applies to "a power" not to "any instrument". It operates to add powers of repeal, etc, to the power to which it applies, that is, to a power to make, grant or issue an instrument". 21 There was an appeal from the decision of Brennan J to the Full Court of this Court. The Court was constituted by Bowen CJ, Smithers and Deane JJ. The appeal was dismissed. In the course of giving reasons, their Honours said nothing to indicate that any doubt should be cast upon the observations made by Brennan J. Their Honours were unanimous in concluding that, so far as s 33 was concerned, it would not apply to a power that might be exercised otherwise by the making of an instrument (see Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 341, 354 and 379). 22 In Re Chittick v Ackland (1984) 1 FCR 254 the Full Court, comprising Lockhart, Morling and Jenkinson JJ, considered whether a particular instrument was an "enactment" within the meaning of s 3(1) of the Administrative Decisions (Judicial Review) Act 1975 (Cth). The definition of enactment in s 3(1)(c) of that Act includes: "an instrument (including rules, regulations or by-laws) made under an Act or under an Ordinance". The Court considered whether the document in question was an instrument made under the relevant Act. Lockhart and Morling JJ observed that the word "instrument" is a word of wide import and that its meaning in s 3(1) must be ascertained having regard to its context. Counsel for appellants in that case submitted that the context in which it appeared required that its meaning be confined to instruments of a legislative character. That submission was based on the reference to the inclusion of rules, regulations or by-laws and the use of the word "made". Reference was made to s 33(3) by way of analogy, indicating that the use in s 33(3) of the words "make, grant or issue" supported the proposition that the words grant or issue were words typically associated with instruments in the broader sense. Their Honours rejected the proposition that only instruments of a legislative character are contemplated by paragraph c of the definition of enactment. A fortiori, where s 33 uses the expression, "grant or issue" in addition to "make", the word instrument should not be construed as being limited to instruments of a legislative character. Their Honours referred with approval to the observations made by Brennan J in Lawlor's case. 23 In Barton v Croner Trading Pty Ltd (1984) 3 FCR 1995 the Full Court of this Court, comprising Bowen CJ and Beaumont and Wilcox JJ, considered the application of s 33(3) to an authorisation pursuant to s 163(4)(b) of the Trade Practices Act 1974 (Cth). Section 163(4)(b) relevantly provided that proceedings before the Court in accordance with that section could not be instituted except with the consent in writing of the Minister, or of a person authorised by the Minister by writing under his hand to give such consents. The relevant minister, the Attorney General, gave an authority for "the Minister for Home Affairs and Environment" to give such consents. Their Honours observed that the word "instrument" is of wide import and concluded that in the Acts Interpretation Act the word is used to include at least any writing designed to carry into effect a statute. Their Honours concluded that the authorisation of the Attorney General in that case was an instrument within s 46(b) of the Acts Interpretation Act, which uses language similar to s 33(3). 24 In Edenmead Pty Ltd v The Commonwealth (1984) 4 FCR 348, Spender J considered the application of s 33(3) of the Acts Interpretation Act to a power conferred by the Fisheries Act 1952 (Cth) to prohibit fishing in certain circumstances by notice published in the Gazette. The central question before his Honour was whether the provisions of s 33(3) of the Acts Interpretation Act applied to the power conferred on the minister by s 8(1) of the Fisheries Act. His Honour was referred to Lawlor's case, which his Honour considered was distinguishable. The power under the Customs Act 1901 with which Lawlor's Case was concerned conferred a power that may or may not be exercised in writing. The existence of a document in writing was not a necessary condition to the exercise of a power conferred by the relevant section of the Customs Act. The existence of any writing was a possible incident to the exercise of the power but was by no means a necessary condition. It followed therefore, that the conferral of such a power could not, on a proper characterisation be construed as a power to grant, issue or make an instrument. That was, of course, the basis upon which the Full Court confirmed the decision of Brennan J (at page 354). His Honour went on to observe, in relation to the argument that a contrary intention appeared, that if there were no power to amend or revoke, there would be "quite startling consequences" (at 354). 25 In the light of what I regard as powerful decisions of the Full Court and of Sir Gerard Brennan and Spender J, albeit on questions that are not directly in point, I consider that s 33(3) should not be limited to instruments of a "legislative character" whatever that expression may mean. I consider that s 33(3) extends also to powers to make instruments of an executive character. The only question, therefore, is whether it could be said that a contrary intention appears in the Extradition Act. 26 Counsel for the Applicant points to two matters as constituting a contrary intention. The first is the provision of s 38(2) to the effect that a surrender warrant must be executed according to its tenor. As I understood it, the Applicant's argument is that the warrant is required to be executed in its original form and in no other form. That, in my opinion, rather begs the question. If there is no power to amend a warrant, then it must follow that the warrant can only be executed in the form in which it was originally issued. On the other hand, if the warrant can be validly amended, then it will still be executed according to its tenor as amended. I do not consider that s 38(2) indicates a contrary intention to the application of s 33(3). 27 Second, reliance is placed on the right of review conferred by s 35 of the Act. The contention is that, on a review by the Court pursuant to s 35, the identity of the New Zealand escort officer could be called in question. On the other hand, where a power to amend arising under s 33(3) is exercised, there is no express right of review pursuant to s 35. The right of review under s 35 is a review on the merits. There would be no review of the identity of the substituted escort officer. 28 I am by no means convinced that, on the exercise of the right of review, the identity of the New Zealand escort officer can be called in question. The order that is made under s 34, which would be the subject of review, is an order that a person be surrendered to New Zealand. The manner of that surrender is, of course, by warrant in accordance with s 38(1), but the question that is the subject of review is whether the person should be surrendered. 29 Section 34(1) requires that a magistrate make an order that the person be surrendered unless the magistrate makes an order under s 34(2). The question that arises under s 34(2) is whether it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand. The question is not whether it would be unjust, oppressive or too severe a punishment for a particular person to be named as New Zealand escort officer. 30 Section 34(2) refers expressly to three grounds upon which a conclusion that it would be unjust, oppressive or too severe a punishment might be based. They are as follows: "(a) the offence in relation to which any endorsed New Zealand warrant in relation to the person was issued is of a trivial nature; (b) if that offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or (c) a lengthy period has elapsed since that offence was committed or allegedly committed" Each of those three grounds is concerned with reasons why a person should not be surrendered to New Zealand to be dealt with according to the law of New Zealand. None of them has anything to do with the identity of a New Zealand escort officer or the process whereby the person in question is surrendered to New Zealand and transported to New Zealand out of Australia. Accordingly, I am by no means persuaded that the identity of the New Zealand escort officer could be called into question in a review under s 35. 31 Even if I am wrong in that conclusion, it seems to me that there may well be respectable argument in favour of a conclusion that the same right of review would apply in relation to the exercise of the power to amend. Section 33(3) speaks in terms of the construction of the relevant power. It provides that, where an Act confers a particular power, the power is to be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, amend and so on. If s 35 would permit the identity of a New Zealand escort officer to be called into question in a review under that section, it may well be that the same right of review would apply to any exercise of the power conferred by s 34, construed in accordance with s 33(3). 32 Either way, I do not consider that the presence of s 35 gives rise to an intention sufficient to exclude the operation of s 33(3) in relation to a warrant issued under s 34 of the Act. Further, if the contrary conclusion were reached, there would be, to use the words of Spender J, "startling consequences". Those startling consequences are relevant to the question of whether or not a contrary intention appears. If there were no power to amend the warrant in relation to the identity of the New Zealand escort officer, the Court's order pursuant to s 34(1) could be effectively nullified simply because of the unavailability of the person identified. That could have the effect that extradition is frustrated simply because of the delays that are inherent in the review and appeal processes conferred by the Act. 33 Certainly those processes are constrained. For example, an application under s 35 must be made within fifteen days after a magistrate's order. An application to the Full Court must be made within fifteen days after the decision of the judge at first instance. Nevertheless, there is a necessary delay involved in the hearing and decision making process. It may be arguable that the non-availability of a New Zealand escort officer would constitute a reasonable cause under s 38(8)(b) for the failure to execute the warrant, so that the Court could order that the person in question not be released from custody. Without the power to amend, a person could, on one view, remain in custody indefinitely simply because of the impracticabilities of executing the warrant. Those consequences are another reason why one would not construe the Act as evincing an intention to exclude the operation of s 33(3). 34 It follows, in my view, that the Magistrate made no error in deciding that she had power to amend the surrender warrant that she had issued under s 34 of the Act. Accordingly, the application should be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Solicitor for the Respondent: Commonwealth Director of Public Prosecutions