the court's power to grant the interlocutory relief now sought
10 Bearing these principles in mind, does the Court have power to grant the interlocutory relief now sought by the applicant? The applicant submits that:
The validity of the Applicant's extradition proceedings, and his continued custody for that purpose, derive from the s 16 Notice. If the Notice is invalid, then the extradition proceedings fail. So too does the legal justification for his continued detention. (emphasis original)
The existence of a valid s 16 notice is, so the applicant submits, "the sole basis for the continuation of [his] custody". If this were accepted, then (subject to any other statutory provision to the contrary) it could not properly be said that the Court lacked the power to make an order for the applicant's release as part of the final relief which might be granted. The first ground of the first respondent's opposition would, therefore, fail. There are, however, difficulties in the applicant's case at this point.
11 As already noted, the applicant was arrested on 10 November 1998 pursuant to a PAW issued under s 16 of the Act. He was then brought before a magistrate, as required by s 15(1) of the Act, and remanded in custody pursuant to s 15(2). By virtue of s 15(2), the magistrate before whom the applicant was brought was required to remand the applicant
in custody, or, subject to subsection (6), on bail, for such period or periods as may be necessary for proceedings under section 18 or 19, or both, to be conducted.
Subsection 15(6) provides that a magistrate shall not remand a person on bail "unless there are special circumstances justifying such remand". Subsection 15(3) provides that, if a person is remanded into custody after making a bail application, then that person may make no further bail application during the remand "unless there is evidence of a change of circumstances that might justify bail being granted".
12 In the present case, by operation of s 15(2) of the Act, the applicant will remain on remand in custody until the proceedings presently being conducted under s 19 of the Act are completed (unless the applicant succeeds on a bail application before a magistrate, or he secures his release under s 17 of the Act (discussed below)). The effect of s 19(10) of the Act is that, if the magistrate determines at the end of the s 19 proceedings that the applicant is not eligible for surrender, then the magistrate will order his release. If the magistrate does not so conclude, then the applicant "will be committed to prison" to await one of the events specified in s 19(9)(a) of the Act.
13 The applicant does not, in these proceedings, challenge any exercise of power in respect of him under s 12 or s 15 of the Act. That is, neither the relevant magistrate's decision to issue a PAW nor to remand him in custody is under challenge. Instead, the applicant challenges the validity of the first respondent's decision to give a notice under s 16 of the Act.
14 A s 16 notice is relevant at at least two stages of the extradition procedure contemplated by the Act. So far as the present application is concerned, the s 16 notices under challenge were relevant in connection with any release from remand contemplated by s 17 and in connection with the conduct of proceedings under s 19 of the Act.
15 If the Attorney-General decides not to issue a s 16 notice, then the Attorney-General must direct a magistrate to order the release of any detainee: s 17(1)(a)(c). The Attorney-General must also so order if the Attorney-General "considers for any reason that the remand should cease": s 17(1)(b)(c). Subsections 17(2) and (3) further provide:
(2) Where:
(a) a person is, under section 15, on remand 45 days (or such greater or lesser number of days as may be applicable, by virtue of subsection 11(2), under the regulations) after the day on which the person was arrested; and
(b) a notice has not been given under subsection 16(1) in relation to the person;
the person shall be brought before a magistrate who shall, unless the magistrate is satisfied that such a notice is likely to be given within a particular period that is reasonable in all the circumstances, order the release of the person from custody, or the discharge of the recognizances on which bail was granted to the person, as the case requires.
(3) Where:
(a) a magistrate was satisfied under subsection (2) that a notice under subsection 16(1) was likely to be given in relation to the person within a particular period; and
(b) the notice is not given within the period;
the person shall be brought before a magistrate who shall order the release of the person from custody, or the discharge of the recognizances on which bail was granted to the person, as the case requires.
In the event that the applicant were to establish that the s 16 notices given in respect of him were of no force and effect, then s 17(2) of the Act would operate so as to require the applicant to be brought before a magistrate who would order his release unless the magistrate was satisfied that a notice was likely to be given within the relevant period. Alternatively, the Attorney-General might be moved to exercise the power conferred by s 17(1)(b)(c).
16 The applicant's written submission prior to the hearing was that:
In essence, if the notices issued by the First Respondent were invalid, then the Applicant must be brought before a Magistrate who is to order the release of the Applicant pursuant to s 17(2) of the Extradition Act. Thus, if the applications are successful at trial, they will result in the release of the Applicant from custody. Accordingly, the Court has power to grant interlocutory relief restraining the further detention of the Applicant in custody pending the determination whether his detention in custody is in fact lawful.
This pays scant regard to the fact that a magistrate is prevented from ordering release if he or she is satisfied that a notice is likely to be given within the relevant period. Bearing that in mind, I do not think it can be said that the applicant's release from custody will necessarily follow upon any decision by the Court that the present s 16 notices are invalid. There would remain the possibility that a magistrate will be satisfied that "a notice is likely to be given within a particular period that is reasonable in all the circumstances"; and that the Attorney-General will not consider it appropriate to exercise the power conferred by s 17(1)(b)(c) of the Act.
17 The applicant put his case as to release somewhat differently at the hearing of the application. Referring to the fact that the giving of a notice under s 16 is a prerequisite to the conduct of proceedings under s 19 of the Act, the applicant submitted that those proceedings would be a nullity if it were found by the Court that no notice had been given. Subsection 15(2) made it plain, so the applicant submitted, that the applicant's remand under that provision was "for such period or periods as may be necessary" for the s 19 proceedings. If there were no s 19 proceedings, so the applicant's argument ran, then the purpose of the remand failed and he was entitled to be released.
18 Assuming (without deciding) that the conduct of the s 19 proceedings would be invalid if there were no valid s 16 notice, as required by s 19(1)(b), it does not follow, in my view, that the purpose of remand under s 15(2) of the Act would fail. Proceedings under s 19 might still be had upon a valid notice subsequently given under s 16 of the Act. In the case of a successful challenge to the s 16 notices, the resolution of doubts as to the applicant's status under the Act would depend, at least in the first instance, upon a decision made by the Attorney-General under s 17(1) of the Act or upon a decision made by a magistrate under s 17(2). At this interlocutory stage, the applicant has not succeeded in persuading me that there is a satisfactory basis upon which I might accept the proposition that the applicant's release would necessarily follow upon a declaration as to the invalidity of one or other, or both, of the s 16 notices. That is not to say that an unfavourable decision by, for example, a magistrate under s 17(2) of the Act could not be the subject of judicial review.
msilanga and montero distinguished
19 In support of the submission that the Court did have power to order the applicant's release on this interlocutory application, the applicant relied on decisions of the Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCA 169 ("Msilanga") and Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158 ("Montero"), as well as the numerous authorities in which those two cases have been applied: see, for example, Tuaoi v Minister for Immigration and Multicultural Affairs [1999] FCA 123; Tuiletufaga v Minister for Immigration and Multicultural Affairs [1998] FCA 992; Omar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 607; Pylka v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 483; and Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 658.
20 All of these decisions concern provisions of the Migration Act 1958, as amended, and differ significantly in terms and effect from the provisions of the Extradition Act which are relevant to these proceedings. For present purposes, it suffices to refer to the provisions under consideration in Msilanga. Under s 93(1) of the Migration Act as it then stood, where an order for the deportation of a person was in force, an officer was authorised to arrest that person, without warrant. Subsections 93(2) and (8) provided that a person arrested under s 93(1) might be kept in custody pending deportation. Subsection 93(9) provided that, in spite of everything else in the section, the Minister or the Secretary might at any time order the release of a person who was in custody under the section.
21 In Msilanga, the applicant sought judicial review of the decisions of the Minister to detain him in custody and to continue his detention. By way of interlocutory relief, the applicant sought an order directing the Minister to release him from detention. The Minister opposed the interlocutory application upon the ground, amongst others, that the Court did not have power to grant the interlocutory relief sought. That submission failed. Beaumont J (with whom Black CJ agreed) held that there was such power "by virtue of ss 19 and 23 of the Federal Court of Australia Act 1976, read (if need be) in conjunction with s 15 of the Administrative Decisions (Judicial Review) Act 1977": 34 FCR at 179. Beaumont J acknowledged the limits (to which I have already referred) upon the power in s 23 of the Federal Court of Australia Act, observing at 179:
It is true that an interim order under s 23 of the FCA Act could not travel beyond the jurisdiction or powers conferred by s 16 of the ADJR Act or s 39B of the Judiciary Act by way of final relief - the stream cannot rise higher than its source. But it is plain that final relief by way of release from custody could be ordered in the present type of case. That is to say, as a matter of power or jurisdiction, if release can be ordered at the final hearing, it must also be within the court's competence to make such an order at the interim stage, if this is otherwise appropriate.
His Honour added at 181-182:
I agree with the learned primary judge that the immediate source of his jurisdiction or power was s 23 of the FCA Act, read in conjunction with s 15 of the ADJR Act. There is nothing in the latter provision which is inconsistent with the former. Each provision empowers the court, in an appropriate case, in the exercise of a judicial discretion, to restrain, on an interim basis and pending final determination of the substantive claim, administrative action where a serious question arises as to the validity of that action. The appropriate form of that restraint will depend upon the circumstances of the particular case. Where the administrative actions under challenge are decisions to arrest and to detain in custody, there is no reason, in principle, why it would not be appropriate for the court to order, on an interim footing, that the party be released from custody until the substantive claim is dealt with.
As already noted, the applicant does not, in the present proceedings, challenge the decisions to arrest him and to remand him in custody. The applicant does not seek, by way of interlocutory relief, a stay of those decisions.
22 The applicant sought to derive some support from the decision of Weinberg J in Betkhoshabeh. In that case, however, the applicant sought judicial review of decisions not to release him and to retain him in custody. Weinberg J determined that, in that circumstance, Msilanga applied because "[i]n challenging the Minister's decision not to order [his] relief … the applicant is, in effect, challenging the legality of his continuing detention": 162 ALR at 672. For the reasons set out above, it cannot be said in these proceedings that, in challenging the s 16 notices, Mr Cabal is challenging, in substance if not form, the legality of his detention. The legality of his present detention does not depend upon the s 16 notices. If the invalidity of those notices is established, at best it might be said that there has been a failure to bring Mr Cabal before a magistrate as required by s 17(2) of the Act and to give effect to that provision.
23 In Montero, the same Full Court (as in Msilanga) held that the Court had power to restrain "executive action which flowed from the purported cancellation [of a visa], specifically the taking of Mr Montero into custody", upon the basis that the latter action was "a step taken consequent upon the cancellation". For the reasons set out earlier, however, if the applicant were to establish the s 16 notices were invalid, it does not, so it seems to me upon the basis of the matters presently before me, follow as a necessary consequence that the applicant will secure his release.
24 As the first respondent submitted, under the relevant provisions of the Migration Act 1958, the authority to decide to take into custody, or not to release, depended upon the existence of other facts and circumstances. If those facts and circumstances were found to be absent, then so too was the authority to hold in custody, and the detainee was entitled to an order for release. The relevant provisions of the Extradition Act give rise to a different situation. The applicant's detention was consequential upon his remand in custody under s 15(2) which was in turn consequential upon the issue of a PAW under s 12 of the Act. The giving of the s 16 notices did no more than remove the necessity to bring Mr Cabal before a magistrate in accordance with s 17(2) of the Act, and the need for the magistrate to decide whether he or she was satisfied that such a notice was likely to be given "within a particular period that is reasonable in all the circumstances".
25 It follows from what I have already said that I do not regard Msilanga, Montero and the other cases applying them as establishing that the Court has the power for which the applicant contends on this application.
26 In addition to those authorities, however, the applicant relied on the decision of Burchett J in Wu v Attorney-General of the Commonwealth (1997) 79 FCR 303. In that case, the applicant, Mrs Wu, made application, pursuant to s 39B of the Judiciary Act 1903, in respect of a proceeding against her upon an extradition request which, so Mrs Wu claimed, was invalid. She sought her release from custody by way of interlocutory relief. Burchett J
accepted, at 306, that Msilanga and Montero:
provide support for the proposition that this Court, before which an application has been brought under s 39B of the Judiciary Act, has conferred on it, pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), a jurisdiction to make an interlocutory order granting bail as may be appropriate.
There is nothing, however, in his Honour's reasons for judgment to show that there was any real argument to the contrary. His Honour had, it seems, no occasion to consider, by reference to the relevant authorities, the scope of the power conferred by s 23 of the Federal Court of Australia Act. Further, his Honour's reasons do not disclose the basis upon which it may have been said that Mrs Wu would be entitled to her release from custody in the event that she established the relevant extradition request was invalid. For present purposes, it is sufficient to assume that her contingent entitlement to release was established to his Honour's satisfaction. As already noted, in these proceedings, a successful challenge to the s 16 notices would not necessarily secure Mr Cabal's release. The decisions pursuant to which he is detained are not the decisions under direct or consequential challenge. The decision in Wu may, therefore, be distinguished from the present case. Wu is not to be followed in relation to the present application.
27 For the reasons stated, I accept the first respondent's submission that the grant of interlocutory relief sought by the applicant in these proceedings is not capable of being seen as appropriate, in the sense referred to by the majority in Sterling. Having regard to the matters put before me at this interlocutory stage, I am not satisfied that the Court would have power to grant, by way of final relief, Mr Cabal's release from detention. Nor am I satisfied that the proposed interlocutory orders can be considered relevantly appropriate, in that they would, if made, provide for the protection and enforcement of the rights and subject-matter in issue.
28 Subject to what counsel may say, it seems to me that I must dismiss the motion.
29 It is, in the circumstances, unnecessary to decide whether the first respondent's alternative submission should be accepted. That was to the effect that the Act has excluded any power that the Court would otherwise have to grant relief in the nature of bail. The first respondent submitted that the regime established under the Act provided exhaustively for the occasions, from the time of his arrest under s 12 until the conclusion of any review and appeal under s 21 of the Act, upon which an extraditee might apply for release on bail. The Act denied, by implication, so the first respondent submitted, any power which the Court might otherwise have to make an order effecting release from custody imposed pursuant to s 15(2) of the Act. The applicant submitted in response that an application for bail in extradition proceedings is separate and distinct from an application for interlocutory relief under s 23 of the Federal Court of Australia Act, in respect of proceedings under s 39B of the Judiciary Act challenging the validity of steps taken in extradition proceedings. I accept that proposition. Without deciding the point, there is, I think, much to be said for the view that the provisions for remand on bail in the Act do not preclude the power of the Court to entertain an application for an interlocutory injunction restraining a proper respondent from detaining an extraditee in custody in cases where the validity of decisions to arrest, or to remand in custody, or like decisions are the subject of challenge in judicial review proceedings: see, e.g., Hempel v Moore (1987) 70 ALR 714, Prevato v The Governor, Metropolitan Remand Centre (1986) 8 FCR 358, and Elmi v Minister for Immigration and Ethnic Affairs (1988) 17 ALD 471 at 472-473. As I have sought to show, that is not the situation in these proceedings.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.