McCrea v Minister for Customs and Justice

the decision at first instance 9 The appellant immediately challenged the validity of the Minister's determination and the surrender warrant in proceedings by way of judicial review brought in this Court in reliance upon s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). The ground of the application was that the determination was beyond jurisdiction in that, by reason of the terms of s 22(3)(c) of the Act, the Minister's power to determine that the appellant be surrendered was conditional upon the existence of a valid and enforceable undertaking given by the Republic of Singapore by virtue of which it was objectively established that, if the death penalty was imposed on the appellant, it would not be carried out. It was said that no such undertaking had been given by the Republic of Singapore and that no such undertaking could be given. Consequently, it was said, the determination was beyond power and of no effect and the warrant, being dependent upon the validity of the determination, was a nullity. 10 The learned primary judge saw the central issue as being whether the Act, and specifically s 22(3)(c)(iii), required that, as an objective fact, the death penalty would not be carried out or, as his Honour put it, only that an undertaking be given in the required terms. His Honour found that s 22(3)(c) only required the requesting state to provide an undertaking in the terms set out in the section, and that there was no additional requirement that the undertaking be effective to prevent the execution of the fugitive offender. His Honour considered that the conferral by s 22(3)(f) of a broad overriding discretion upon the Attorney-General pointed to the conclusion that the undertaking need only be in the terms specified and that the efficacy of such an undertaking was a matter that the Attorney-General might consider in exercising the discretion conferred upon him by s 22(3)(f). 11 His Honour considered that the construction that he favoured was indicated by the language of the section, read in the context of the Act as a whole, and in particular, read in the context of Part II of the Act, which concerns extradition from Australia. The judge also took into account related contextual factors, namely that extradition involved international relations, the conduct of which was a function of the executive branch, and that it was to be expected that the Parliament would commit questions of policy and political judgment relating to the surrender of fugitive offenders to the executive branch. 12 In these circumstances the judge considered it unnecessary and undesirable to determine whether the undertaking given by Singapore was valid and enforceable according to the law of Singapore. His Honour went on to note, however, that the contention that the undertaking was not effective did not involve the suggestion that Singapore intended to renege on its promises. Rather, he observed: "The facts placed before the Court leave no doubt that Singapore intends to honour its undertaking."

the appeal 13 It will be convenient at this point to set out s 22, omitting the provisions not presently relevant: … (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) the Attorney-General is satisfied that there is no extradition objection in relation to the offence; (b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture; (c) where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable: (i) the person will not be tried for the offence; (ii) if the person is tried for the offence, the death penalty will not be imposed on the person; (iii) if the death penalty is imposed on the person, it will not be carried out; (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. (4) For the purposes of paragraph (3) (d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of: (a) a provision of the law of the country; (b) a provision of an extradition treaty in relation to the country; or (c) an undertaking given by the country to Australia; the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country: (d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than: (i) any surrender offence; … (e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered. (5)Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person. 14 Senior counsel for the appellant did not contend that the Republic of Singapore did not presently intend to honour the assurance given to Australia, nor did he challenge the primary judge's observation about Singapore's intention to honour it. That, he said, was not the point. The assurance was not an undertaking having the characteristics required by s 22(3)(c) since, for various reasons, it was not enforceable under Singapore law. It was put that the Government of Singapore had no power to offer such an undertaking and could not, in any event, bind itself or the President of Singapore to grant a reprieve or a respite of execution. The effect of the assurance given was, in substance, no more than a promise to pardon by following the procedure provided for by Article 22P(2) of the Constitution of Singapore and, in any case, that procedure was not, or might not be, compatible with the assurance given. 15 Counsel argued that there was a substantial difference between an undertaking that a person will not be executed and an undertaking "by virtue of which" a person will not be executed. The choice of the latter expression pointed to an undertaking that will in fact be effective to prevent the penalty of death from being carried out, by reason of its legal effect. 16 Counsel also argued that the authorities did not support the proposition that the courts should not trespass into this area by examining foreign law and the validity of the acts of foreign governments. It was submitted that while legislation should be construed in conformity with the principles of international comity, this was so only to the extent that the language of the statute permitted, and that it was proper for a court in one jurisdiction to look at the effectiveness of an undertaking or assurance given by the government of another jurisdiction in determining whether a prerequisite to the exercise of the surrender power by the Minister under domestic law had been satisfied. 17 The learned Solicitor-General, appearing for the respondent, argued that there were three possible meanings of the expression "by virtue of" in s 22(3)(c), namely a document that is legally enforceable, a document that will in fact be honoured, and a document that complies with the statutory terms. He argued for the third of these meanings. The statutory terms, he said, did not require an undertaking that was enforceable.

DISCUSSION 18 The appellant's contention that the assurance offered by the Government of Singapore was not an "undertaking" of the character required by s 22(3)(c) must be rejected. 19 As noted, it was no part of the appellant's case that the assurance was not in fact given by the Government of Singapore or that it would not in fact be honoured. The appellant's case ultimately comes down to the simple proposition that unless the undertaking is legally enforceable either domestically or internationally (the argument focused upon the legal effect of the undertaking under the law of Singapore) it cannot be an undertaking " by virtue of which" the penalty of death would not be carried out. Absent such a requirement the undertaking in question here can readily be seen as one "by virtue of which" the penalty would not be carried out; that is its evident purpose and the primary judge had no doubt that it would be effective for that purpose. 20 The difficulty with the appellant's argument is that the undertaking provided for by s 22(3)(c) is to be given by one country to another in the context of reciprocal international obligations. Undertakings of such a character are not ordinarily (if at all) enforceable in a domestic court or internationally. No mechanism for enforcement is provided or even suggested in the Act. Moreover, the very concept of an "undertaking" involves an obligation that is deliberate and serious but not necessarily legally enforceable. 21 The subject matter points to the same conclusion. When s 22(3)(c) speaks of an offence "punishable by a penalty of death" and of "the death penalty [being] imposed on the person" it must be taken to be referring to a penalty provided for and imposed by law. Whilst in common law countries following broadly either the Westminster or United States models of representative government, the exercise of the prerogative of mercy or executive clemency may lawfully result in a penalty imposed by law not being carried out, that is not (at least ordinarily) attributable to any legally enforceable obligation to exercise clemency. An "undertaking" by the executive government of such a country "by virtue of which" if the death penalty is imposed upon a person it will not be carried out, is a concept that can readily be understood as having practical content, notwithstanding that it involves no legally enforceable obligation. Specifically, an undertaking by Australia that a death penalty imposed under a Commonwealth law at a time when such a penalty was provided for, could readily be understood as being an undertaking "by virtue of which" the penalty would not be carried out, notwithstanding that such an undertaking to another country would not (conventionally) involve any legally enforceable obligation. Such an undertaking is no less understandable when it is given now to Australia by a country that is an extradition country for the purposes of the Act. 22 The language and scheme of the other provisions of the Act also point to a distinction between an undertaking as something that is not of its nature necessarily legally enforceable and obligations that are. By reason of s 22(3)(d) the giving of a speciality assurance is a prerequisite for extradition but in defining the circumstances in which such an assurance shall be taken to have been given, s 22(4) refers separately and sequentially to circumstances existing by virtue of "a provision of the law of a country", "a provision of an extradition treaty in relation to the country" and "an undertaking given by the country to Australia." The expression "by virtue of" introduces all three paragraphs, notwithstanding their quite different content. When the provision refers to a state of affairs existing "by virtue of…a provision in an extradition treaty" it should not be taken to refer to domestically enforceable rights since this would greatly reduce its effectiveness for, in many extradition countries, provisions of treaties do not give rise to domestically enforceable rights. There is no reason to suppose that when the same introductory expression "by virtue of" is used in relation to an undertaking it bears a meaning that embraces domestically enforceable rights or that the use of "undertaking" in that context embraces such rights. 23 It was argued that s 22(4) should be put to one side, since it is in truth a definition provision. We disagree that its character deprives it of value for present purposes, but in any event precisely the same approach is adopted in the substantive provisions of s 25(2)(a) which concern the issue of a surrender warrant after temporary surrender under s 24 (and see also s 25(2)(b) in relation to the death penalty). 24 This is sufficient to dispose of the appeal since the only ground of challenge to the Minister's decision concerned the enforceability of the undertaking: see [6] above. Given the importance of the provision considered in this appeal, however, we should nevertheless indicate that we do not presently accept as necessarily correct one aspect of the learned primary judge's decision or the submissions of the Solicitor-General in supporting that aspect. 25 It does not follow from the conclusion that a legally enforceable undertaking is not needed that the requirements of s 22(3)(c) will be satisfied merely by the giving of an undertaking that follows the language of the provision and which has been made by a person with appropriate authority. An evident object of s 22(3)(c) is to provide a safeguard against the carrying out of the death penalty upon a person extradited from Australia under the Act. Whilst the object of the provision can be variously stated, the seriousness of the subject matter suggests that it is very unlikely that nothing more than compliance with a verbal formula was intended. Consistently with the object of the provision, there is much to be said for the view that the expression "by virtue of an undertaking" requires that the decision-maker consider whether the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the penalty of death would not be carried out. It would seem unlikely that the object of the provision was intended to be achieved only by the favourable (to the person accused) exercise of the discretion conferred by s 22(3)(f).

THE MINISTER's cross appeal against the no costs order 26 The primary judge reserved the question of costs and after hearing argument on that question declined to the make an order for costs in favour of the successful party. He ordered instead that each party bear his own costs. The Minister cross appeals against the no costs order contending that the judge's discretion miscarried and that this Court should substitute an order that the appellant pay the costs of the application. 27 The primary judge published reasons for his decision about costs. Noting that the Court had an unfettered discretion in relation to costs but that the discretion must be exercised judicially, his Honour observed that the circumstance that the proceeding was a challenge to the Minister's decision to surrender the appellant for extradition could not alone be determinative of the question of costs. He considered however that there were policy considerations attending such applications that deserved careful consideration. The policy considerations were those referred to by Goldberg J in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [21] and [22] in the context of bail applications in an extradition case. They included the view that a person detained by authority of the State should not be deterred by a potential costs order from seeking his liberty. 28 His Honour concluded that the arguments raised by the appellant did not lack substance and were deserving of careful consideration and that both the nature of the case and the arguments raised made it appropriate to make no order as to costs. 29 The respondent contended that in approaching the matter in this way the primary judge sought to apply a supposed general principle that persons detained against their will should not have any impediment put in their way, such as would inhibit their seeking their liberty. As the Solicitor-General contended, there is no such general principle in cases of this nature. This was made clear by the observations of the Full Court in Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497 at 515-516 where it was held that a judge had erred in the exercise of his discretion by applying the "principle" referred to by Goldberg J in Cabal as though it were a rule rather than a factor relevant to the exercise of the discretion: see too Ruddock v Vardarlis (No 2) (2001) 115 FCR 229 at 234; 188 ALR 143 at 147 per Black CJ and French J, cited in Te at 515. 30 Whilst the judge evidently placed substantial emphasis upon the considerations referred to in the costs decision in Cabal, we are not persuaded that he relied upon them otherwise than as factors to be taken into account in the exercise of his discretion. Having recognised that costs should ordinarily follow the event the judge was persuaded that there were factors in the present case that pointed to a different result. The circumstance that the penalty for two of the crimes for which extradition is sought is death, even though it is not suggested that Singapore would not honour its undertaking, was no doubt encompassed by his Honour's reference in his reasons to "the nature of the case." 31 Views may differ about whether the costs order in the present case was justified, but that is not the point. What is in question is the exercise of a judicial discretion and we are not persuaded that it miscarried. The cross appeal should be dismissed.

costs OF THE APPEAL 32 The costs of the appeal should follow the event. The cross appeal added very little to the time or cost of the hearing or of the appellate proceedings generally and we would make no order for costs on the cross appeal. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Finkelstein and Finn.

Solicitor for the Appellant: Grundy Maitland & Co

Solicitor for the Respondent: Australian Government Solicitor