consideration
17 For the reasons given below, s 22(3)(c) only requires the requesting state to provide an undertaking in terms set out in the section. There is no additional requirement that the undertaking be effective to prevent the execution of the fugitive offender. Consequently, the question which may arise before the Court is whether the undertaking conforms with the section. The Court cannot investigate whether the undertaking is effective to prevent the execution of the fugitive offender.
18 This construction derives principally from a reading of the section in the context of the Act as a whole and, in particular, in the context of Part II of the Act. This interpretation also takes account of two related contextual factors. The first is that extradition involves international relations because it requires cooperation between sovereign states for the purpose of arranging for the return of fugitive offenders to face justice. The second is that the conduct of international relations in Australia is a function undertaken by the executive arm of government. The constitutional separation of powers means that the judiciary has no direct function in the conduct of international relations. It is therefore to be expected that Parliament would commit questions of policy or political judgment relating to the surrender of fugitive offenders to the executive. This expectation also informs the approach to the construction of s 22(3)(c).
Part II
19 In Part II of the Act the executive is given authority at each stage of the extradition process to determine whether the process should proceed or not. In contrast, the courts are given limited and specific functions at various points during the process. Thus, a magistrate is given power to issue a provisional arrest warrant, but must report the fact to the Attorney-General. If the Attorney-General considers for any reason that the warrant should be cancelled, the Attorney-General may direct the magistrate to cancel the warrant (s 12). Then, a person arrested under a provisional arrest warrant is remanded by a magistrate so that further proceedings can be conducted to determine the person's eligibility for surrender (s 15). But the Attorney-General may determine that the remand should cease, and direct a magistrate to order the release of the person (s 17). The next step is for the magistrate to conduct proceedings to determine whether the person is eligible for surrender (s 19). The function of the Court is strictly defined. It is required to determine, for instance, whether certain documents listed in the section have been produced in support of the application (s 19(2)). The final stage of the process requires the Attorney-General to determine whether an eligible person should be surrendered (s 22(2)). A review of Part II of the Act therefore highlights the extent to which reliance is placed on the judgment of the Attorney-General.
Section 22(3)
20 More specifically, section 22(3) (which is within Part II) also places reliance on the judgment of the Attorney-General. Section 22(3) sets out certain circumstances which must exist before the Attorney-General may determine that a person is to be surrendered.
21 Section 22(3)(a), (b) and (c) are each expressed to depend on the Attorney-General's satisfaction. Section 22(3)(c) and (d) both relate to the giving of an undertaking by the requesting State. There is no reference to the Attorney-General's satisfaction on that issue. The contrast with s 22(3)(a), (b) and (c) is clear. The change in expression indicates that s 22(3)(c) and (d) require the fact of the undertaking to be established. No question of judgment or opinion is contemplated.
22 Then, in s 22(3)(f) the Attorney-General is given an overriding discretion to surrender a fugitive offender. This discretion is conferred in very wide terms. Therefore, in the context of s 22(3) as a whole, the requirements of s 22(3)(c) and (d) should be narrowly construed. As a consequence, the fact of an undertaking needs to be established to satisfy s 22(3)(c), but the efficacy of that undertaking is a matter which the Attorney-General may consider in the exercise of the overriding discretion contained in s 22(3)(f). Such a reading gives a wider discretionary power to the Attorney-General, and that accords both with the structure of the extradition provisions generally, and with the discretion contemplated in s 22(3)(f) specifically.
The respective roles of the executive and the judiciary
23 A similar view of the balance between the functions of the courts and the executive was taken in R v Governor of Pentonville Prison [1993] 1 WLR 1294; [1993] 3 All ER 504. The applicant in that case argued that a speciality assurance given by Hong Kong might not bind China after the handover and the applicant might then be in jeopardy of execution. The Divisional Court (Watkins LJ and Ognall J) held that, on a proper interpretation of the statutory provisions, the requirement for a speciality assurance (which was in similar terms to s 22(3)(d)) need only be satisfied at the time of the request for extradition. The Court accepted (at 511) that "all such arrangements are written in sand" and that speciality protection must be seen in the light of the possibility of change in the complexion of the requesting sovereign power, whether democratic or otherwise. The Court said, also at 511:
'It should be remembered that the magistrate commits the applicant to await the decision of the Secretary of State. It may very well be that the "China point" has a political dimension to it which deserves the attention of the Secretary of State. But the magistrate was correct to treat it as irrelevant to his decision.'
24 The House of Lords also took this approach to relevantly similar UK legislation in Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 where Lord Morris of Borth-y-Gest said at 281:
'We are here concerned with a statutory code which becomes operative consequent upon the making of reciprocal arrangements between friendly states. The statutory provisions point with some precision to the functions of the courts and show that those functions are limited. It is for the courts to say whether the statutory conditions have been complied with to the extent that a fugitive criminal could be surrendered: it is for the Secretary of State to decide whether, having regard to all the circumstances, he should be surrendered.'
25 Then, in R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556, the House of Lords took into account the similar role of the executive under United Kingdom extradition law in construing the terms of the United Kingdom's extradition treaty with the United States. The question of construction was whether the jurisdiction referred to embraced extraterritorial jurisdiction or was limited to the territorial jurisdiction of the requesting State. The House of Lords adopted the former construction. Against the suggestion that this construction would allow extradition in cases of extravagant jurisdictional claims, Lord Rodger of Earlsferry said, at 608:
'Ultimately, issues as to the propriety of the jurisdiction claimed by a foreign state depend on judgments as to comity among states in international law. By their nature such judgments involve factors which must primarily be for the consideration of the executive who have responsibility for our relations with foreign states. Provided that the executive exercise their various powers appropriately, I see no reason to fear that persons will in fact be surrendered to states asserting an exorbitant jurisdiction, if the term "jurisdiction" in paragraph 20 has to be interpreted broadly.'
26 The same approach applies to s 22(3)(c). The only question which may therefore arise for adjudication under the section is the purely factual issue, namely, whether the undertaking has been given in the terms of the section.
The principle of non-adjudication
27 If the construction of the section raised the possibility that the courts would have to determine whether the undertaking was effective to prevent the execution of the fugitive offender, the courts would be asked to rule upon the validity of the act of a sovereign state. Such a result would be inconsistent with the principle that, in general, courts will not adjudicate upon the validity of acts and transactions of a sovereign state within that sovereign's own territory. In Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) (1988) 165 CLR 30, the High Court stated at 40-41:
'The statement of Fuller C.J. in Underhill v. Hernandez that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords (Buttes Gas v. Hammer) and the Supreme Court of the United States: Banco Nacional de Cuba v. Sabbatino. The principle rests partly on international comity and expediency. So, in Oetjen v. Central Leather Co. the Supreme Court said:
"To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'."
As Lord Wilberforce observed in Buttes Gas v. Hammer, in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process".' (citations omitted)
28 The High Court identified three bases for the principle - comity, expediency, and the nature of the judicial process. Comity refers to the respect or courtesy accorded by a country to the laws and institutions of another. It derives from a mutual recognition of the sovereign status of nations. Expediency refers to the practical needs of a particular situation.
29 In Banco Nacional de Cuba v Sabbatino (1964) 376 US 398, the notion of expediency was illustrated thus at 431-432:
'[Such judicial determinations] would, if the acts involved were declared invalid, often be likely to give offense to the expropriating country; since the concept of territorial sovereignty is so deep seated, any state may resent the refusal of the courts of another sovereign to accord validity to acts within its territorial borders. Piecemeal dispositions of this sort involving the probability of affront to another state could seriously interfere with negotiations being carried on by the Executive Branch and might prevent or render less favorable the terms of an agreement that could otherwise be reached. Relations with third countries which have engaged in similar expropriations would not be immune from effect.'
30 And, finally, the restraint imposed by the nature of the legal process was explained by Lord Wilberforce in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 (Buttes), at 938:
'Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are - to follow the Fifth Circuit Court of Appeals - no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were "unlawful" under international law.'
31 It is not suggested that all three bases must be present in order for the principle of non-adjudication to apply. Nonetheless, each of the bases exists in the present case in relation to Singapore's undertaking not to execute the applicant. The first two are self-evident. However, the third basis, relating to the nature of judicial process, needs some further explanation. Insofar as the applicant argued that the undertaking is invalid under Singapore law it might be said that there are manageable standards which the Court could apply to determine the question. Nonetheless, the principle of non-adjudication prevents this Court from inquiring into the validity of acts of a sovereign nation, including into the legal validity of Singapore's undertaking. But in this case the applicant goes further and argues that the undertaking must be effective to prevent the execution of the applicant.
32 Consideration of this wider question may present the problems referred to by Lord Wilberforce in Buttes. For instance, although an undertaking may be legally enforceable when it is given, the applicant may claim that there is an imminent change of government and the new government intends, and has the ability, to change the domestic law in order to ensure that returned fugitive offenders do not escape the death penalty. In other words, the applicant may challenge the effectiveness of the undertaking by reference to the political situation in the requesting country. The fact that such considerations may be determinative of the question of whether the undertaking is effective indicates that the question may not be suitable for judicial determination.
33 The principle of non-adjudication has been applied in the context of extradition law. For instance, in R v Secretary of State for the Home Department; Ex Parte Johnson [1999] QB 1174, the fugitive sought to challenge the consent given by Austria required by Article 15 of the European Convention on Extradition, which is of similar effect to the speciality requirement in s 22(3)(d). Bell J said at 1186 that:
'the court cannot, in my view, inquire into the quality of that consent without transgressing the principle which prevents assessment of the validity of the act of a sovereign state done abroad by sovereign authority.'
34 In extradition law, the notion of comity has been utilized in another way. It has been an important consideration in cases even where issues other than the act of a sovereign power have been in question. This follows from the foundation of extradition law, namely the need for cooperation between nations to ensure the return of fugitive offenders to justice. For that purpose each nation must be prepared to accept the internal arrangements of the other as the proper means of dealing with the fugitive offender on return. In this aspect, comity refers to the recognition of the legal system of the requesting country as an acceptable method for bringing the fugitive offender to justice. Thus, in Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 the House of Lords accepted that the applicant was convicted in Greece for the purpose of United Kingdom extradition legislation, even though the conviction was obtained in breach of the requirements of natural justice and would have been a nullity under United Kingdom law. Lord Morris of Borth-y-Gest said at 280:
'Once it was proved that there was a conviction in Greece I cannot think that it was open to a magistrate or to the court in habeas corpus proceedings to go behind the conviction and to treat it as no conviction for any such reason as that the law and practice in Greece is not the same as the law and practice elsewhere.'
35 The same approach was taken in the Supreme Court of Canada in Republic of Argentina v Mellino [1987] 1 SCR 536, where La Forest J said at 554:
'[I]t is not the business of an extradition judge to assume responsibility for reviewing the actions of foreign officials in preparing the evidence for an extradition hearing. This would seem to me to be in breach of the most elementary dictates of comity between sovereign states. A foreign state obviously has jurisdiction over the actions of its officials, although, no doubt, the executive of this country must, on occasion, consider such matters in exercising its discretion to surrender a fugitive.'
36 In Sun Lau v State of Australia [1999] BCJ No 2971, La Forest J said at [75]:
'The approach the courts have taken is to assume that the signing of an Extradition Treaty signals that the executive feels that the justice system in the foreign country sufficiently corresponds to our own. The courts are to avoid interfering unduly in decisions that involve the good faith and honour of this country in its relations with other states. The effectiveness of the international system is key.'
37 It is now necessary to return to the construction of s 22(3)(c) in light of the discussion of the principle of non-adjudication, and the wider application of the concept of comity. Both approaches support the preferred construction. However, it should be noted that the concept of comity in extradition law does not prevent a state imposing limitations on the circumstances in which extradition will be permitted. Indeed, the requirement for the death penalty undertaking is such a limitation. But there is a role for the concept of comity in applying such a limitation, and the section should be read so far as possible as not to conflict with that concept: Zachariassen v Commonwealth (1917) 24 CLR 166 at 181. This approach has been applied to extradition legislation in Australia: Wiest v DPP (1988) 23 FCR 472 at 524; Hellenic Republic v Tzatzimakis [2003] FCAFC 4 at [49], although this approach was not determinative in those cases.
38 Further, there is authority in Australia which supports the preferred construction. In Foster v Minister for Customs and Justice (1999) 164 ALR 357 (Foster), Drummond J considered whether s 22(3)(d) contemplated that the Court could investigate whether a requesting state would honour a speciality assurance given under the section. His Honour held that the question for the Court was the limited factual question, namely, whether an assurance in conformity with the section had been given. The Court was not authorised to examine whether the requesting state would honour the undertaking, that is to say, whether the undertaking was effective. In answer to the Minister's contention that the whole issue relating to the assurance was not justiciable, his Honour went on to explain the scope of the Court's function, and, further, how this limited function related to the demands of comity between nations.
39 In a passage with which I agree, his Honour said at 368:
'The justification for restraint by an Australian court in pronouncing upon the actions of a foreign sovereign is absent if the Australian Parliament invests the court with authority to do just that: see Heinemann Publishers. And since the court has only powers of judicial review in respect of extradition decisions, it could not, irrespective of how strong it thought the evidence to be of bad faith with respect to the assurance given (and subject only to whether an extradition decision is reviewable for unreasonableness), deprive the minister of the final say in whether, after he or she had identified and considered all relevant considerations, the person should nevertheless be surrendered. That s 22(3)(d) is not concerned only with matters affecting Australia's national interests but also with protection of the fugitive from injustice in the extradition country also tells against the submission. Given all this, it is not apparent why the court should not insist that the minister advert to such evidence where it exists, while necessarily leaving it to the minister to determine where the balance lies in the particular case, in exercising the discretionary power conferred by s 22(2).' (citation omitted)
40 There has been no suggestion that, in the exercise of his discretion under s 22(3)(f), the Minister failed to take into account evidence of the alleged ineffectiveness of the undertaking. It follows from the foregoing discussion that, for the reasons outlined, the applicant's construction of s 22(3)(c) is not accepted. It remains necessary to address several arguments raised by the applicant which have not been dealt with in the course of the earlier discussion.