(b) the offence or any of the offences is an extradition offence in relation to the country;
…
the person is, for the purposes of this Act, an extraditable person in relation to the country."
13 An "extradition offence" in relation to a country other than Australia, means, inter alia, an offence against the law of the country for which the maximum penalty is imprisonment for a period of not less than 12 months: see s 5 of the Act.
The decision in Williams
14 In Williams, the Full Court declined to follow an earlier decision of Cooper J in Foster v Attorney-General (Cth) (1997) 97 A Crim R 560. In Foster, his Honour held that s 16(2)(a)(ii) only requires the responsible Minister to hold the relevant opinion; an applicant to set aside a notice must demonstrate that the opinion is unreasonable or perverse in the Wednesbury sense.
15 The Full Court was of the view that the approach taken by Cooper J bypassed the requirements of s 16 under which the first consideration is whether the statutory conditions for the exercise of the power have been satisfied.
16 Their Honours reviewed the authorities in some detail and came to the view that curial intervention is permissible at two separate levels. The first involves an examination of whether the decision-maker has taken relevant, and only relevant, considerations into account. The second, which only arises if the decision satisfies the first enquiry, involves the potentially available ground of Wednesbury unreasonableness.
17 Thus, the error which the Full Court identified in Cooper J's approach was that it dealt only with Wednesbury unreasonableness without first addressing the essential pre-requisite to a consideration of that ground, namely whether the decision-maker had taken into account relevant considerations.
18 Their Honours were of the view that s 16(2)(a)(ii) is to be construed harmoniously with s 19(2)(c). What is required is a statement of that which the person has allegedly done or omitted to do. This is to enable the decision-maker to determine whether the conduct so described satisfies the requirement of dual criminality.
19 As we said above, their Honours observed at [12], that "No statement of Mr Williams' alleged acts or omissions (that is the conduct) was provided to the Minister." The decision of the Court was therefore confined to the first level of curial intervention, failure to take into account relevant considerations. That is plain from what their Honours said at [34], [40] - [43] and [50].
20 Their Honours accepted that it is open to Ministers to rely upon advice and analysis provided to them by their departmental staff. However, they said that where an opinion is required to be formed personally by the Minister, the Minister will not be able to rely upon advice or recommendations that are not accompanied by sufficient disclosure of the factual materials: at [24].
Factual background
21 On 2 August 2006 the Australian government received a request from the State of Finland for the extradition of Mr Tervonen to be prosecuted for a large number of fraud, company, accounting and tax offences.
22 On 18 August 2006 the then Minister for Justice and Customs, Senator Ellison, issued a Notice of Receipt of Extradition Request under s 16(1) of the Act. This was the notice which we have called "the first notice". It specified the extradition offences in respect of Mr Tervonen in 56 numbered paragraphs.
23 On 7 February 2007 Mr Tervonen commenced proceedings seeking judicial review of the first notice. The primary judge refused an application for interlocutory relief brought by Mr Tervonen: see Tervonen v Minister for Justice and Customs [2007] FCA 464. His Honour dismissed the claim for interlocutory relief on 12 March 2007.
24 The decision of the Full Court in Williams was handed down on 22 March 2007.
25 On 30 April 2007 Senator Johnston, who was then the Minister for Justice and Customs, issued the Amended Notice. The extradition offences in respect of Mr Tervonen set out in the Amended Notice consisted of 58 numbered paragraphs. Some of the paragraphs stated the offence as comprising more than one count. Examples of the multiple counts are to be found in [57] and [58] of the Amended Notice as follows:
"(57) Five counts of Registration Offence on 2 August 2004, contrary to Finland's Penal Code, Chapter 16, section 7
(58) Two counts of Registration Offence on 2 June 2004, contrary to Finland's Penal Code, Chapter 16, section 2."
26 The material before Senator Johnston when he issued the Amended Notice consisted of:
· A memorandum from the Attorney-General's Department;
· A briefing memo from the Commonwealth Director of Public Prosecutions ("the CDPP");
· Attachment A to the memo from the Attorney-General's Department consisting of an unsigned form of the Amended Notice;
· Attachment B consisting of the Finnish warrants;
· Attachment C, comprising a large amount of "supplementary documentation" received from Finland in support of the request for Mr Tervonen's extradition;
· Attachment D, an advice on Dual Criminality provided by the CDPP;
· Attachment E, consisting of confidential casework apparently prepared by the Attorney-General's Department.
27 The package of supplementary documentation supplied from Finland included the original eight warrants for Mr Tervonen's request and a "supplementary account" of the offences referred to in the fifth warrant.
28 The fifth warrant was the only one that was attacked by Mr Tervonen.
The memo from the Attorney-General's Department and the CDPP's briefing memo
29 The memorandum to the Minister from the Attorney-General's Department and the CDPP's briefing memorandum were in evidence before the primary judge in redacted form. This was because the Minister claimed privilege for part of the material, though he subsequently waived some of his claims.
30 The memo from the Attorney-General's Department referred to the request from Finland to extradite Mr Tervonen. The memo then indicated that the first notice had been issued on 18 August 2006. The memo continued by stating:
"The Commonwealth Director of Public Prosecutions has now identified an additional seven offences which could have been included in that notice."
31 A number of lines appearing under the paragraph that we have quoted were redacted. The memo concluded with a recommendation that Senator Johnston sign the Amended Notice.
32 The CDPP's briefing memo commenced by stating:
"There is a risk that the existing section 16 notice issued in this matter might be found to be partly invalid. Further, as discussed below, it is desirable that the existing notice be amended to include an additional seven offences which were not included in that notice."
33 The effect of the decision in Williams received special mention in the memorandum as follows:
"Impact of the Willams decision on Mr Tervonen's case
8. … it is arguable, in light of the Full Federal Court judgment in Williams v Minister for Justice and Customs [2007] FCAFC 33, that the submission relating to the existing section 16 notice did not provide a sufficient description of the conduct constituting some of the offences for which Mr Tervonen's extradition was sought, to enable the Minister to form the requisite opinion under subparagraph 16(2)(a)(ii) Extradition Act in respect of those offences. As a result, there is a risk that the existing section 16 notice might be found to be partly invalid."
34 Paragraph 9 of the briefing memo, which appears to have been part of the material under the section dealing with the impact of the Williams decision, was redacted.
35 Paragraph 25 of the briefing memo was partially redacted. We will set out the paragraph in the form in which it was in evidence before the primary judge as follows:
"25.…we recommend that you issue a new section 16 notice
· (redacted)
· to ensure that the additional (seven) extradition offences:
… are put before the Magistrate for the purposes of his determination under section 19 Extradition Act, and thereby to enable the Government to meet its obligations under the Treaty with Finland to the fullest extent possible."
36 Counsel for Mr Tervonen relied upon the redacted form of [25] of the briefing memo in support of a submission that the Minister did not consider the Amended Notice afresh but confined his attention to the additional seven extradition offences. We will deal with this submission later but it is necessary to observe that the briefing memo also stated at [16] that the Minister was required to consider whether he was of the opinion referred to in s 16(2)(a)(i) and (ii) of the Act:
"in respect of each of the offences stated in the Notice at Attachment A, and whether you are of the opinion that there is no extradition objection in respect of those offences."
37 The briefing memo included reference to the dual criminality requirement. It referred to the CDPP's initial advice that dual criminality could be established in respect of 77 of the offences specified in the first notice. It said that the CDPP had reconsidered the dual criminality issue and had provided advice that dual criminality could be established in respect of an additional seven offences, bringing the total to 84.
38 The briefing memo concluded with the following comment:
"26. The Department considers the requirements of section 16 of the Extradition Act and Article 7 of the Treaty have been met for the offences listed in the attached fresh section 16 notice, and we are not aware of any circumstances that would justify the exercise of your discretion to decline to issue a notice in respect of these offences…"
The CDPP's advice on dual criminality
39 The CDPP's advice on dual criminality deals with each of the eight warrants. Under the heading "Warrant 5 - 1 September 2005 - Helsinki District Court", the advice states:
"89. It is alleged that Tervonen was involved in a scheme with a number of other persons in which they hired persons by the name Soderqvist and Raappana to make applications for loans using false documentation."
40 Paragraph 89 of the memo continues by describing the applications to the banks and financial institutions that were made by Söderqvist on the basis of forged sales contracts for real estate located in Finland. Raappana and a company called Flamelle Oy were said to have used forged documents to obtain registration of title to the properties. Söderqvist was said to have presented himself to the bank as buyer of the properties from Flamelle Oy and Raappana.
41 The banks were said to have granted loans totalling approximately EUR1.28 million. The majority of the money was said to have been drawn in cash by Raappana, or against cheques in respect of which orders were made in advance for foreign currency which was withdrawn in cash.
42 Paragraph 90 of the advice states:
"The advice in relation to these offences is premised on the fact that if a Magistrate accepts that the acts and omissions are sufficient, offences would be found for dual criminality purposes based upon aiding, abetting, counselling or procuring the commission of those offences."
The supplementary account of offences in the fifth warrant
43 The supplementary account of the offences in the fifth warrant included a number of statements of the conduct in which Mr Tervonen was said to be involved.
44 The supplementary account referred to information obtained in a pre-trial investigation that Raappana and Söderqvist had no independent role in planning and committing the offences. They were said to have been supervised by a person named Mika Siira.
45 Reference was made in the supplementary account to interviews with Raappana and Söderqvist who said they had been instructed by Siira when carrying out their actions and that Siira had been in telephone contact with other persons whose identity they did not know.
46 The supplementary account then contained a number of descriptions of Mr Tervonen's involvement. They appeared under a sub-heading "probable causes for considering, on the basis of an overall assessment, Jan Tervonen to be a suspect in the series of crimes described below."
47 The relevant statements included the following:
· Mr Tervonen was suspected of having been involved as "one of the central background figures"; his identity was unknown to Raappana and Söderqvist who acted as dummies.
· In November 2004 the Finnish authorities seized EUR59,000 in cash in an apartment of a former woman friend of Mr Tervonen. The occupant of the apartment stated that Mr Tervonen had given her the money and that the money had been given to Mr Tervonen by Siira.
· In forensic examinations, Siira's fingerprint was found on one of the bank notes seized in the apartment. Another bank note contained a fingerprint of the bank employee who had handed cash to Raappana when he withdrew the fraudulently obtained loan funds from the bank.
· When the authorities seized the cash at the apartment, they also obtained possession of a SIM card with an SMS message relating to the password of Raappana's website. The SMS message was said to have been related to the carrying out of the bank frauds and:
"The SIM card is suspected to be connected to Jan Tervonen."
· In April 2004 the authorities conducted a search of premises at which Siira and Mr Tervonen were present. The search revealed forms associated with a Thai company, "Little Pepper House Ltd" which had received funds from Flamelle Oy;
· During the same search a document was found that "was probably drawn up by Jan Tervonen". The document referred to the recruitment of one of two persons from Sweden to get financing. Raappana and Söderqvist lived in Sweden.
The primary judge's reasons
48 The primary judge found that in some sections of an advice from the CDPP that was before Senator Ellison, there was material which could amount to a sufficient description of Mr Tervonen's alleged acts or omissions to enable the Minister to form an opinion under s 16(2)(a)(ii) in respect of the first notice: see Tervonen (No 2) at [50].
49 However, his Honour found that in respect of a large number of the 56 paragraphs contained in the first notice, there was such a dearth of material before Senator Ellison describing Mr Tervonen's acts or omissions that it would not have been possible for the Minister to form the opinion as to dual criminality required by s 16(2)(a)(ii).
50 The paragraphs of the first notice which his Honour considered to be deficient comprised well in excess of 50% of the first notice. His Honour then turned to the question of whether the paragraphs which were not supported by sufficient material could be severed from the first notice, thereby leaving a part of it to stand as a valid notice.
51 His Honour accepted that it was possible to sever those parts of a s 16 notice which were included in the notice in excess of power: Tervonen (No 2) at [83]ff. He referred to the provisions of s 46(2) of the Acts Interpretation Act 1901 (Cth). However, he came to the view that there was no basis to sever the offending portions of the first notice.
52 The reasons why his Honour declined to sever those portions were set out at [90] - [105]. The effect of what he said was that Senator Ellison asked himself the wrong question and:
"[98]… the inference which I am satisfied should be drawn is that Senator Ellison deferred to or accepted the opinion of the CDPP without himself considering any of the conduct alleged against Mr Tervonen for the purposes of s 16(2)(a)(ii). Senator Ellison simply accepted the CDPP's advice as authorising him to sign the s 16(1) notice."
53 The primary judge's reasons for finding that the Amended Notice was invalid followed from his approach to the first notice.
54 After considering at some length the material provided by Finland and the advice from the CDPP, his Honour found at [173] that Senator Johnston could not have formed the opinion required by s 16(2)(a)(ii) in relation to [24] - [50] and parts of [51] - [52] of the Amended Notice. He said this was because there was no sufficient specification of the acts or omissions of Mr Tervonen necessary for the opinion to be formed.
55 His Honour also found at [180] that it was not open to Senator Johnston to form an opinion on the material before him that Mr Tervonen's conduct would have constituted an extradition offence in respect of the new paragraphs, [57] and [58] of the Amended Notice.
56 The essential reason why his Honour considered that the whole of the Amended Notice was invalid and that the offending portions could not be severed was that he came to the view that Senator Johnston did not give a "fresh notice". His reasoning process may be found in the following paragraphs of his judgment:
198 Senator Johnston did not give a fresh s 16 notice. By its very terms, his was an 'Amended Notice'. Thus, he may have proceeded on the basis that there was a risk some of Senator Ellison's s 16 notice was invalid or affected by jurisdictional error of the kind identified in Williams 157 FCR 286. But there is no basis in the evidence before me to suggest that Senator Johnston approached the matter completely afresh. I am not prepared to draw an inference that he did, on the incomplete material in evidence and the failure of the Minister to give any direct evidence of his decision-making.
…
210 Here, Senator Johnston could have given a wholly fresh notice under s 16 in the form of the one he did. The provisions of s 46(2) of the Acts Interpretation Act would apply to sever the portions of it relating to warrant 5 which I have found to be invalid, while leaving the balance of the notice valid and operative. But, if in signing the notice he asked himself the wrong question (as his predecessor had recently done in Williams 157 FCR 286) or confined the formation of his opinion under s 16(2)(a)(ii) to pars (57) and (58), then the whole notice would be bad because of jurisdictional error, namely the failure to form the opinions required in accordance with s 16(2)(a)(ii) in respect of any paragraphs other than pars (57) and (58). Nothing in s 46(2) would save it.
…
212 Senator Johnston addressed whether pars (57) and (58) should be added to the 'amended notice'. But he came to the incorrect conclusion that they should. I am of opinion that he did not consider the whole of the material afresh in such a way as would justify me in severing portions of the notice to preserve its validity. A considerable part of the notice could not have satisfied Senator Johnston had he correctly considered forming an opinion in accordance with s 16(2)(a)(ii). While s 46(2) of the Acts Interpretation Act enables those portions which I have found to be invalid to be severed from the notice, the material in evidence comfortably satisfies me that the Minister was not addressing himself to the correct question when considering the amended notice. As Dixon J said in Avon Downs78 CLR at 360:
'It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.'
Whether Senator Johnston considered afresh the matters in the Amended Notice
57 In our view, the material before the primary judge strongly supported a finding that Senator Johnston did not confine himself to the question of whether [57] and [58] should be added to the notice.
58 There are five reasons why we have come to this view. We will set them out below. They are reinforced by the concession, fairly and properly made by counsel for Mr Tervonen that the purpose of the Amended Notice was to put in place a valid notice under s 16 as to all of the matters which it dealt with.
59 First, the context in which Senator Johnston was requested to sign the Amended Notice made it plain that the first notice might be found to be partly invalid because of the decision of the Court in Williams. Senator Johnston's attention was expressly drawn to this in the briefing memo in the extract we have reproduced at [33] above.
60 In particular, the briefing memo stated that the submission in relation to the first notice did not provide a sufficient description of the conduct constituting some of the offences. Senator Johnston was not told which of the offences were not supported by a sufficient description.
61 The clear inference we draw from this is that Senator Johnston was requested to, and did, consider the Amended Notice without relying on any conclusion reached by his predecessor in relation to the first notice.
62 Second, Senator Johnston was informed in express terms that he was required to consider whether he was of the stipulated opinion "in respect of each of the offences" in the Amended Notice. We have set out the relevant passage from the briefing memo at [36] above.
63 There was nothing in any of the evidence before the primary judge to suggest that Senator Johnston did otherwise than what he was told he must do, as recorded in that paragraph of the briefing memo.
64 Indeed, the Departmental memo, to which the briefing memo was attached, stated the Department's recommendation that the Minister sign and date the Amended Notice "in respect of the extradition offences set out in the notice". This must be taken to have been a recommendation for all of the offences listed in the "attached fresh section 16 notice" as referred to in the passage from the briefing memo set out at [38] above.
65 Third, the briefing memo stated that the CDPP had reconsidered the dual criminality question and that its advice was attached. The CDPP's advice was Attachment D of the material before Senator Johnston. The advice was not confined to the additional offences included in the Amended Notice. Instead, it dealt with each offence contained in each of the eight warrants.
66 In our view, this is inconsistent with any suggestion that Senator Johnston failed to consider the Amended Notice afresh.
67 Fourth, Senator Johnston was supplied with a substantial volume of material provided by Finland in support of the request for Mr Tervonen's extradition. That material comprised more than 270 pages. The briefing memo described it as supplementary documentation in support of the request and said that it:
" … set out the conduct giving rise to the extradition offences…"
68 This was a clear statement to Senator Johnston that the large volume of material addressed all of the offences, not merely those which were added to the Amended Notice. There was no point in providing the additional material to Senator Johnston if he was intended to confine his attention to the additional offences.
69 Fifth, there is a presumption of regularity which applies to the acts of public officials. It is found in the Latin maxim, 'omnia praesumuntur rite esse acta' and is explained in the authorities discussed by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164; see also Guiseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465 at [45].
70 Counsel for Mr Tervonen drew our attention to the redacted portion of the briefing memo set out at [35] above. It is true that the effect of the paragraph as redacted is that the recommendation to Senator Johnston was that he issue a new s 16 notice to ensure that the additional seven extradition offences were put before the magistrate for the purpose of his determination under s 19 of the Act.
71 However, without making any assumption as to what may have been included in the redacted portion, the paragraph which was in evidence must be read in its full context. The other paragraphs of the briefing memo, which we have set out above, made it clear that the purpose of the Amended Notice was not confined to the inclusion of seven additional offences.
72 Accordingly, we are of the view that the primary judge was incorrectto find that Senator Johnston failed to consider the Amended Notice afresh. Further, contrary to the approach taken by the primary judge, no occasion for the application of the principle stated in Jones v Dunkel (1959) 101 CLR 298 arose.