Winkler v Director of Public Prosecutions
147 The Minister submitted that construing the Act in this way would be contrary to what the Full Court decided in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 (Winkler). It was said that Winkler supported the proposition that if Australia becomes obliged to discharge a person from custody in the course of extradition proceedings under the Act and yet does not carry out the obligation, a subsequent determination pursuant to s 22 to surrender the person to a requesting State is not invalidated. In order to deal with that submission it is necessary to give some consideration to the legal and factual context in which Winkler was decided.
148 Winkler was decided under the now-repealed Extradition (Foreign States) Act 1966 (Cth) (Old Act) which contained similar provisions to those now contained in the Act. Although the Treaty was in force at the relevant time, the case was decided on its terms unamended by the Protocol. Article XI(1) of the unamended Treaty required all requests for extradition to be made through the diplomatic channel. Articles XI(2) and (3) specified the information and documents that must accompany a request for the extradition of a person. The mandated documents included a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the extradition offence: Article XI(3)(a).
149 Article XII of the Treaty, as it then stood, provided that, in cases of urgency, a party to the Treaty may request the provisional arrest of a person pending the presentation of a request for extradition. Such a request was to be accompanied by a more limited range of documents than those specified in Article XI. Articles XII(4) and (5) assumed some importance in Mr Winkler's case. They provided:
(4) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received.
(5) Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.
150 The United States District Court issued a warrant for Mr Winkler's arrest on 11 June 1987. I will refer to that warrant as the first USA warrant. The USA then made a request through diplomatic channels for Mr Winkler's provisional arrest pursuant to Article XII of the Treaty. I will refer to that request as the first extradition request.
151 On the application of the USA, Mr Winkler was arrested on 12 September 1987 pursuant to a warrant issued by a magistrate under s 16 of the Old Act. Upon being apprehended under the s 16 warrant, Mr Winkler was brought before a magistrate and remanded on bail pursuant to s 17(2) of the Old Act. The USA then made a formal request for Mr Winkler's extradition on 20 October 1987, supported by the first USA warrant. On the same day, the Attorney-General issued a notice under s 15(1)(b) of the Old Act, which is relevantly equivalent to s 16 of the Act. I will refer to that notice as the first s 15 notice.
152 The application for extradition was heard by the magistrate on 15 and 16 February 1988. At that hearing, it became apparent to the magistrate that the first USA warrant did not comply with the requirements of Article XI(3) of the Treaty, although he made no determination about that issue at that stage of the hearing. The hearing was adjourned to 9 March 1988. In the period of the adjournment, the United States District Court issued a fresh warrant which did comply with the Treaty. I will refer to that warrant as the second USA warrant. The second USA warrant was received by Australian authorities on 8 March 1988. On the same day, the USA made a second request, based on the second USA warrant, for Mr Winkler's extradition. The documents accompanying the second extradition request fulfilled the requirements of Article XI(3) in that they included the second USA warrant. It is to be noted, however, that the documents fulfilling the requirements of Article XI(3) were received by Australia nearly six months after Mr Winkler was first apprehended.
153 When the matter came back before the magistrate on 9 March 1988, he ordered a one week adjournment. On 16 March 1988 the matter was argued before the magistrate by reference to the first USA warrant, the first extradition request and the first s 15 notice. The magistrate held that the first USA warrant did not comply with the Treaty and that the first s 15 notice was therefore invalid. As a consequence, the magistrate held, correctly, that he had no jurisdiction to proceed further. Counsel for the USA then tendered the second USA warrant.
154 The consequence of the delay between the date of Mr Winkler's apprehension and the provision to Australia of the second USA warrant was that Australia was obliged, under Article XII(4) of the Treaty to discharge Mr Winkler from custody. However, rather than discharging the recognizances upon which Mr Winkler was admitted to bail, the magistrate held that he had the discretion pursuant to s 17(5) of the Old Act to extend the time in which a new s 15 notice could be issued, based upon the second extradition request, and that he had the power to continue Mr Winkler's bail. A second s 15 notice was then issued by the Attorney-General on 22 March 1988. The extradition proceedings continued in relation to the second USA warrant, the second extradition request and the second s 15 notice, culminating in a determination by the magistrate to surrender Mr Winkler to the USA.
155 Mr Winkler challenged the validity of the surrender determination on the grounds that he was entitled to have been set at liberty no later than 16 March 1988 by reason of operation of Article XII(4) of the Treaty.
156 The magistrate's power to make the surrender determination was conditioned by these opening words of s 17(6) of the Old Act:
(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under s 15(1)(b).
157 Section 15(1)(b) applied only "if a warrant for the apprehension of the fugitive has been issued under s 16 and a person has been apprehended under the warrant". Mr Winkler contended that the warrant issued by the magistrate under s 16 of the Old Act pursuant to which he had been originally apprehended had no "continuing effect" after 16 March 1988. On Mr Winkler's submission, it followed that the second s 15 notice was not a valid notice issued by the Attorney-General under s 15(1)(b) and that the essential preconditions in s 17(6) of the Old Act did not exist.
158 The Full Court (Wilcox and O'Loughlin JJ) held that Mr Winkler was entitled to be set at liberty on 16 March 1988 by virtue of Article XII(4) of the Treaty. Although s 17(5) of the Old Act conferred a discretion on the magistrate to extend the time in which the Attorney-General could provide the magistrate with a notice pursuant to s 15 of the Old Act, nothing in the Old Act made provision for the extension of time specified in Article XII(4) of the Treaty in which the USA could furnish information to Australia following Mr Winker's provisional arrest. On that issue, Wilcox and O'Loughlin JJ said (at 90):
It is not difficult to see how Mr Williams was misled into thinking that s 17(5) of the Act authorised him to extend the time during which Mr Winkler might be held on bail. If the terms of Art XII( 4) of the Treaty conflicted with those of s 17(5) a nice question of construction would arise. As a general proposition it is correct to say that, wherever there is a conflict between the terms of the Act and that of the Treaty, the Treaty is to prevail. This is the effect of reg 3 making the application of the Act to the United States subject to the Treaty. Although the notion that the operation of an Act may be limited by the terms of a regulation would normally be heretical, it was a notion specifically countenanced by s 10 of the Extradition (Foreign States) Act. And this course was often taken in relation to extradition treaties, so that it was commonplace for an extradition treaty to prevail over this Act. Section 17(5)(b) was directed only to time limits fixed by a treaty. If it had dealt with a procedural requirement identical to that contained in Art XII(4), a question would arise as to whether the general rule that the Act applied subject to the provisions of the Treaty was not itself subject to the exception that, notwithstanding the mandatory nature of Art XII(4), the magistrate had a discretion to extend time. The argument would be that, otherwise, s 17(5)(b) would be otiose and that, to this limited extent, the Australian Parliament had reserved for itself the final word.
However, although they were likely to be in practice closely connected, the procedures referred to in Art XII(4) and s 17(5)(b) were not identical. Article XII(4) is concerned with the delivery of documents by the requesting State.
159 Notwithstanding Mr Winkler's entitlement to be released from bail, the Full Court identified two fallacies in Mr Winkler's argument that the surrender determination ultimately made in response to the second extradition request was thereby invalidated (at 97- 98):
… The first is to treat a warrant as something which may have a continuing life after its execution. The form of a warrant of apprehension under s 16 of the Extradition (Foreign States) Act was prescribed by the regulations made under that Act. The warrant issued by Mr Gilbert followed that form. The command of the warrant, which was addressed to all members and special members of the Australian Federal Police and all members of the Police Force of each State and Territory, was 'to apprehend [Mr Winkler] and bring him, as soon as practicable before a Magistrate in the State or Territory in which he is apprehended to be dealt with according to law'. Such a warrant continues in force until the person named therein is apprehended and brought before a magistrate. It constitutes the authority by which the person is detained. But, once the person is brought before the magistrate, the warrant has no continuing effect. Its work is done. Thereafter, the person is under the control of the magistrate, who derives his power not from the warrant but from the statute; in particular, from s 17.
The second fallacy in the appellant's argument flows from the first. If a s 16 warrant expires when the fugitive is brought before the magistrate, there can be no question of it still being in force when the Attorney-General issues a notice under s 15(1)(b). That paragraph applies only to cases where the person has already been apprehended under a s 16 warrant. Contrary to the appellant's submission, the condition contained in the opening words of s 15(1)(b) involves merely a matter of history: has the person been apprehended under s 16? By this we mean, relevantly apprehended. To take up an illustration given by counsel, it would not be enough that the person was apprehended under s 16 some years before, was extradited and subsequently released, returned to Australia, and is now in custody for some unrelated reason
160 On the basis of these statements in Winkler, the Minister in the present case submitted that Mr Lobban's committal to prison pursuant to s 19(9) of the Act was to be treated as an unchangeable historical fact. Mr Lobban was an "eligible person" as that phrase is defined in s 22(1) of the Act, because he had, as a matter of incontrovertible fact, "been committed to prison … by order made under subsection 19(9)". The jurisdictional fact preconditioning the exercise of the Minister's powers under s 22 of the Act was unaffected, so it was submitted, by any subsequent obligation Australia may have had under Article XIII of the Treaty to discharge Mr Lobban from custody.
161 The Minister's submission ignores critical differences between Mr Lobban's circumstances and those arising in Winkler. More importantly, the submission also ignores the operation and effect of Regulation 4.
162 In Winkler it was not within the power of the magistrate to make any surrender determination in response to the first extradition request. However, Article XII(5) of the Treaty as it then stood enabled the USA to make a second request for Mr Winkler's extradition notwithstanding the termination of the first request. The second request fulfilled the requirements of the Treaty and the Act and the surrender determination was made in response to that request. The original means by which Mr Winkler had been brought before the magistrate did not affect the magistrate's powers to exercise powers under the Old Act in respect of the second s 15 notice issued in response to the second extradition request. Howsoever Mr Winkler originally came before the magistrate in the first instance, the magistrate had jurisdiction to make a surrender determination in respect of the second request.
163 In Mr Lobban's case, the surrender determination made by the Minister on 29 October 2014 was in respect of the same extradition request affected by the USA's failure to provide information requested by Australia in the time specified in the September letter. The Minister's jurisdiction to determine that request depended upon the request and its associated proceedings not having been terminated. As I have said, on the proper construction of the Treaty, that request must be taken to have terminated upon Australia becoming obliged to discharge Mr Lobban from custody. Whilst it is true to say that the fact of Mr Lobban's committal to prison was "historical" there was nothing "historical" about Australia's continuing obligation to discharge him from custody at the time that the Minister made the surrender determination. The obligation was ongoing at that time and, in my opinion, it remains ongoing. The Act must be read subject to such limitations, conditions, qualifications and exceptions as are necessary to give effect to that ongoing obligation.
164 Article XIII(3) provides that Mr Lobban's release from custody would not bar the USA from submitting another request in respect of the same extradition offences. Had that been done, the factual and legal context of Mr Lobban's case would have aligned more closely with those in Winkler.
165 I would uphold the ground of appeal expressed in paragraph 3 of the Supplementary Notice of Appeal, that is, "in order to give effect to Art XIII of the Treaty, subs 22(2) of the Act was necessarily subject to a limitation, condition, exception or qualification that upon the appellant becoming entitled to be discharged from custody in the circumstances identified in Art XIII of the Treaty, the extradition request from the US was terminated that the Minister no longer had jurisdiction to determine whether the appellant was to be surrendered".
166 Before concluding, it is necessary to briefly address the grounds stated in paragraphs 4 and 5 of the Supplementary Notice of Appeal. Those grounds should be rejected. They presuppose the conferral of power on the Minister under s 22(2) of the Act, but contend that the existence of Australia's obligations arising under Article XIII conditions the manner in which the power is to be exercised. The approaches to statutory construction advanced in those grounds do not give adequate effect to Article XIII of the Treaty which, I have found, contemplates that the extradition proceedings against a person terminate all together and that the person be discharged from custody in circumstances where Article XIII(2) of the Treaty has been enlivened. The better approach is to read the definition of "eligible person" as being subject to the qualification I have identified, such that the jurisdictional fact preconditioning the existence of the power conferred by s 22 of the Act is absent in those circumstances.