Consideration
38 This is an interlocutory application for discovery in relation to an application for judicial review.
39 The principles relevant to the consideration of such an application are well established.
40 The Court will not order discovery as a matter of course unless discovery is necessary for the determination of issues in the proceeding, and an applicant for an order for discovery bears the onus of satisfying the Court that the documents sought are necessary: Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044 at [33] per Mansfield J citing Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) [1995] FCA 1418; (1995) 58 FCR 426 at 436 per Lindgren J.
41 The principles that are relevant to an order for discovery in an application for judicial review are as summarised in Carmody v MacKellar [1996] FCA 791; (1996) 68 FCR 265 (Carmody) at 280 per Merkel J, as follows:
The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38:
1. the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision;
2. the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought;
3. if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise;
4. the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case;
5. if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.
42 These principles were accepted by the Full Court (Dowsett, Jacobson and Greenwood JJ) in Jilani v Wilhelm [2005] FCAFC 269; (2005) 148 FCR 255 at [108].
43 Against that background I turn to the application.
44 The applicant submitted that one basis for her challenge in the judicial review proceedings is that the extradition request was made in breach of the "Treaty and the Extradition (Republic of Chile) Regulations dated 12 December 1995 that commenced 13 January 1996". The applicant relies on Article XVI of the Treaty on extradition between Australia and the Republic of Chile [1996] ATS 7; [1996] UNTSer 413 (the Treaty) which is in the following terms:
XVI
Non bis in idem
Once the extradition request has been ultimately refused, a new request may not be submitted for the same offence.
45 In essence, the applicant contends that s 11 of the Extradition Act, in conjunction with the Extradition (Republic of Chile) Regulations 1995 (Cth)(the Regulations), has "the effect of giving effect to [an extradition treaty] in Australian Domestic Law"; that the documents sought will establish that the applicant was the subject of an earlier extradition request made by Chile and what happened to that request; that the making of this request enlivened the Attorney-General's power under s 16; that the absence of a s 16 notice in respect of that request indicates that the earlier request was refused within the terms of the Treaty; and consequently the ss 12 and 16 decisions in this case were unlawful.
46 Underlying those propositions are a number of factual and legal contentions: that on the material provided, and on the public record, there was an earlier extradition request made in relation to the applicant; the existence of that request and departmental submissions predating 2 August 2018 is not denied; that on receipt of the request there were only two options available to the then Attorney-General, to issue a s 16 notice or to refuse to do so; if no notice was issued, it must mean that the applicant was not an extraditable person in relation to the extradition country or the decision-maker refused to exercise his discretion for some other reason, and therefore a decision was made with the request being refused; Chile did nothing to review that decision and consequently the extradition request was "abandoned and as such ultimately refused".
47 The respondent opposed the application raising three matters which are, it submitted, each a complete answer to the application. First, it submitted that the applicant's case is that the documents sought are required to prove that there was a refusal to issue a s 16 notice in respect of an alleged earlier extradition request. The evidence however shows that no decision has been made by the Attorney-General or any other Minister or delegate under s 16 of the Extradition Act prior to the issue of the s 16 notice currently challenged. Second, the respondent submitted that in any event, even if there had been a decision not to issue a notice under s 16 of the Extradition Act, that is a decision not to commence the extradition process at all. It could never be an ultimate refusal of an extradition request of a kind that would engage Article XVI. Third, even if a Minister had made a decision ultimately refusing to extradite a person in a way that did engage Article XVI, the Treaty imposes a constraint only on the Requesting State and not on the Requested State. No modification of s 16 is involved. If the applicant has a remedy at all, it would need to be against the Republic of Chile under Chilean domestic law (as any constraint imposed by Article XVI falls only on Chile).
48 As a preliminary matter, the Second Tsintilas Affidavit includes material, in paragraphs [20] and [21] and Exhibits R and S, that contravenes the prohibition in s 16(3) of the Parliamentary Privileges Act 1987 (Cth)(Parliamentary Privileges Act), which is in the following terms:
16 Parliamentary privilege in court proceedings
…
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
…
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
49 The submission advanced by the applicant relies, in part, on parliamentary material to establish facts. In response to the submission that Parliamentary Privileges Act renders reliance on the material unlawful, the applicant merely asserted, without any elaboration, that the Parliamentary Privileges Act, "has no application here". As the applicant advanced no argument in support of this bare assertion, and the applicant's use of the material falls within the prohibition in s 16, I disregard that material. That said, as the respondent recognised, that material did not meaningfully add to the applicant's argument. Given the reasons below, this material could not have affected the outcome.
50 The respondent's submission in respect to the application for discovery should be accepted.
51 There are a number of factual and legal misconceptions which underpin this application.
52 The evidence establishes that the only decision made by the Attorney-General under the Extradition Act (or by any other Minister with responsibility for administering the Extradition Act) in respect of the applicant was the s 16 decision, which is the s 16 notice challenged in this case.
53 The evidence also establishes that the applicant has been provided with all submissions that have been made in respect of the applicant to the Attorney-General, or any other Minister administering the Extradition Act, for any decision of any kind under the Extradition Act.
54 It follows, without more, that even assuming an earlier extradition request was made, the applicant's contention that the earlier extradition request was made by Chile and was refused by the Attorney-General (or ought to be taken to be deemed to have been refused), has no factual foundation. The applicant's case then is based on a flawed foundation.
55 Before addressing the applicant's submission as to the Treaty and its legal effect, it is appropriate to address some incorrect factual and legal assertions which underpin her submission.
56 First, assuming for the purposes of argument there was an earlier extradition request, the applicant's submission that the Attorney-General has not denied that there are departmental submissions which predate 2 August 2018 is incorrect. Rather, as was submitted by the respondent, the evidence establishes that there was no departmental submission to any Minister in relation to the applicant concerning the exercise of any power under the Extradition Act prior to the submission (which has been provided to the applicant) leading to the currently-challenged s 16 notice.
57 Second, also incorrect is the applicant's assertion that "[a]ll that is stated is there was no section 16 notice and as such there was no section 12 warrant issued. The real question [is], did a section 16 decision arise regardless". As noted above, the evidence establishes the currently challenged s 16 notice was the only decision made under s 16 in relation to the applicant. It is not that no other notice was issued, rather, the evidence is that no Minister or delegate has made any decision of any kind under s 16. The Attorney-General has not delegated any decision-making power (or relevant decision-making power) under the Extradition Act.
58 Third, at the core of the applicant's argument is the assertion that if no s 16 notice was issued in respect to an earlier application, it must mean that the person was not an extraditable person in relation to the extradition country or the Attorney-General or delegate refused to exercise their discretion for some other reason, and therefore a decision was made to refuse that prior extradition request. For the same reason as given above, this is also contrary to the evidence. Factually the submission is without foundation. As the respondent submitted, if the applicant is suggesting that the decision was made by someone without authority, that decision could not be an "ultimate refusal".
59 Fourth, the applicant's submission proceeds on the proposition that when a State sends a request for extradition to Australia only two options arise; to issue a s 16 notice or to refuse to do so. That is incorrect. The applicant does not explain the basis for her approach, rather it is merely asserted to be the position. Certainly, the applicant's reference to the process spoken of in Harris, does not provide a basis for the submission.
60 There are other obvious possibilities that arise on receipt of such a request, including communicating with the Requesting State as to the sufficiency of the request that has been sent. The issues that may arise in making such applications are not without their complexity, with the Extradition Act providing specificity as to what must be provided to enable a request to be considered under the Extradition Act. Further correspondence may be necessary before the Requested State gets to the point of considering whether or not to commence its domestic extradition process, here the s 16 stage.
61 The Extradition Act recognises that communications between officers of the Attorney-General's Department on behalf of Australia, and officers of an extradition country occur in relation to proceedings or contemplated proceedings (see for example, s 50 which provides that there is a solicitor-client relationship in relation to the communications between such officers), and as explained below at [70] the Treaty envisages that there will be situations where the information provided by the Requesting State is insufficient having regard to the requirements imposed on such a request, and if that occurs, even where it means that the extradition request is brought to an end, it does not prevent a further extradition request for the same offence: Article X(2).
62 Fifth, as noted above, the applicant's reasoning is that from the failure to issue a s 16 notice it can be inferred there was a rejection of the prior extradition request and, as Chile did not challenge that decision, the earlier request lapsed or was abandoned. For the reasons above, the inference contended for is not open on the evidence. Added to that, a failure to commence any s 16 process, could not constitute an ultimate refusal of an extradition application. Moreover, the applicant's reasoning is dependent on the earlier request lapsing, or having been abandoned. A request having lapsed or having been abandoned could not be an ultimate refusal of the request. A premise involved in that reasoning, that Chile did not challenge the decision, is also misconceived, as there was no decision to challenge. The reasoning underpinning the applicant's argument is flawed.
63 It is necessary to address how the applicant submitted the documents sought (the extradition file) relate to the judicial review proceedings.
64 As noted above, the applicant's submission on the substantive judicial review application, in part, is based on the assertion that the extradition request is made in breach of the Treaty and the Regulations. The applicant's reply submissions contend that "the [f]irst [t]hing on receiving [an extradition] request that needs to be done is to determine if it's in fact a valid request," and that a "request that is expressly prohibited by the Treaty, cannot be a valid request" and "as such section 16 is so modified by Article XVI".
65 Given that the applicant contends that this aspect of her judicial review proceedings is the basis of her entitlement to the documents sought, it is necessary to address those contentions, which in turn, involves a consideration of the Treaty.
66 The Treaty is "given effect to" in Australian domestic law by operation of the Extradition Act and the regulations made pursuant to s 11 of the Extradition Act. Contrary to the applicant's contention, reg 4 of the Regulations does not give the terms of the Treaty legislative force or incorporate them into Australian law: Oates v Attorney-General (Cth) [2001] FCA 84; (2001) 181 ALR 559 (Oates No 1) at [16] per Lindgren J citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-287 per Mason CJ and Deane J, 304 per Gaudron J and 315 per McHugh J; Winkler v Director of Public Prosecutions [1990] FCA 194; (1990) 25 FCR 79 at 90 per Wilcox and O'Loughlin JJ; Bollag v Attorney-General [1997] FCA 1146; (1997) 79 FCR 198 at 214-216 per Merkel J, affirmed in Oates v Attorney-General of the Commonwealth [2002] FCAFC 80; (2002) 118 FCR 544 at [20]-[22] per O'Loughlin and Whitlam JJ; Hempel v Attorney-General (Cth) (1987) 29 A Crim R 133; (1987) 77 ALR 641 (Hempel) at 652 per French J; Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 (Barton) at 507 per Jacobs J.
67 Based on the applicant's contention, the question arising on the substantive application is whether Article XVI of the Treaty, by operation of s 11 of the Extradition Act and reg 4 of the Regulations, modifies (by way of limitation, condition, qualification or exception) the powers conferred by s 16 of the Extradition Act on the Attorney-General to give notice of receipt of an extradition request: see Minister for Home Affairs v Zentai [2012] HCA 28; (2012) 246 CLR 213 (Zentai)at [17] per French CJ.
68 In Zentai French CJ described the way in which regulations made pursuant to s 11 of the Extradition Act may apply in relation to a specified extradition country at [14]-[17] (footnotes omitted):
14. The duty and power of the Minister to make a determination pursuant to s 22(2) is qualified. By regulation made under s 11, the Act may apply in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to that country. Regulation 4 of the Regulations so applies the Act in relation to the Republic of Hungary. That application does not involve any broadening of the powers conferred by the Act.
15. The scheme of s 11 has its ancestry in the Extradition Act 1870 (UK). That Act empowered the Queen in Council to make Orders in Council that the Act applied to a particular foreign state. The Queen in Council was also empowered to limit the operation of that Act or make it subject to such conditions, exceptions and qualifications as might be deemed expedient. That flexibility was reflected in Australian extradition legislation. As this Court observed in Oates v Attorney-General (Cth):
"the legislation has always allowed for extradition arrangements with particular states to be subject to limitations, conditions, exceptions or qualifications seen as appropriate to the particular circumstances."
16. A limitation, condition, exception or qualification applied by operation of a regulation made under s 11 may have the effect that the surrender of the person in relation to the offence must be refused in certain circumstances. Section 22(3)(e) provides that in such a case the person is not to be surrendered in relation to the offence unless the Minister is satisfied that the circumstances do not exist. The disempowering circumstance said, by the respondent, to exist in this case is that the offence of "war crime" for which his extradition was sought was not an offence in Hungary at the time of the acts or omissions said to give rise to it.
17. The primary question in this appeal is whether the Minister committed a jurisdictional error by purporting to determine that the respondent is to be surrendered in circumstances in which a necessary condition for surrender, derived from Art 2.5 of the Treaty and, by operation of s 11 of the Act and reg 4 of the Regulations read with s 22(3)(e) of the Act, qualifying the powers conferred by the Act, had not been satisfied. It is necessary to consider the relevant terms of the Treaty and to do so in light of the rules of interpretation in the Vienna Convention on the Law of Treaties ("the Vienna Convention").
69 It is necessary to consider other aspects of the Treaty, apart from that relied on by the applicant, as a Treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty with a consideration of the text, object and purpose consistent with Article 31 of the Vienna Convention on the Laws of Treaties: Zentai at [18]-[19]; Oates at [43]; Commonwealth Minister for Justice v Adamas [2013] HCA 59; (2013) 253 CLR 43 at [32] per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.
70 The Treaty outlines extradition processes with a view to the surrender of accused or convicted persons. Article IV specifies the circumstances when "extradition shall not be granted". To the extent that the same considerations are reflected in the terms of the Extradition Act, the article has no effect on domestic law. To the extent that it adds new constraints on extradition, these new constraints are considered by the Attorney-General at the s 22 stage of the process: see s 22(3)(e) of the Extradition Act. Article V identifies circumstances where extradition may be refused on a discretionary basis, which are also matters for the Attorney-General when exercising his statutory discretion under s 22(3)(e). Article IX states requirements for the form and content of extradition requests for the purposes of the Treaty. Article X addresses additional information. Relevantly, the Treaty recognises that there may be instances where a request or information provided in support of such request is inadequate, with the result that a person who has become the subject of an extradition process is released and the request is brought to an end. In such cases, release will not prevent further extradition for the same offence, and the Requesting State may submit a further request for the same offence and start the extradition process again: Article X(2). Article XV obliges the Requested State to inform the Requesting State of the decision on the extradition request, including reasons for the decision for the grant or refusal of the request. It is in that context that Article XVI addresses the circumstance where a Requested State has "ultimately refused" the extradition request.
71 A regulation made under s 11 applies the Extradition Act "subject to" the Treaty in the sense that it embodies only consequential modifications to the Extradition Act's operation: Hempel at 143 per French J; Barton at 507 per Jacobs J.
72 The Treaty conferred no rights on the applicant. As Lindgren J observed in Oates No 1at [49]:
The first thing to be said about the Treaty is that it does not purport to give rights to [the person whose extradition was being sought], and, not being incorporated into Australian municipal law, it cannot do so.
73 A number of matters arise from that.
74 First, the applicant's submission that s16 of the Extradition Act is modified by Article XVI so as to require that the first question to be addressed by the Attorney-General is whether the extradition request is a valid one, is not supported by the Treaty. Article XVI imposes a constraint only upon a Requesting State. Moreover, in so far as it appears to be suggested that the Treaty has modified the definition of "extradition request" in the Extradition Act so as to exclude requests that do not comply with the Treaty, that submission also has no foundation.
75 Section 16 is engaged "where the Attorney-General receives an extradition request" which is defined to mean "a request in writing by an extradition country for surrender of a person to the country": s 5. As the respondent submitted, a request either meets this description, in which case it is an "extradition request" or it does not, in which case it is not an "extradition request" under the Extradition Act. It follows that s 16 is engaged by any request that meets the statutory definition and does not turn on any notion of a "valid" request or a request that complies with the Treaty. The statutory approach does not envisage any notion of "invalid requests". Article XVI does not modify or limit the operation of s 16. It does not make it a mandatory consideration for the Attorney-General to inquire into and determine whether there had been an earlier ultimate refusal of a request in relation to the same individual and offence.
76 As referred to above at [32], Matson No 2 determined the limited ambit of mandatory considerations in s 16. As the respondent submitted, whether Chile complied with Article XVI is not a mandatory consideration at the s 16 stage.
77 Second, given that the evidence on this application is that no decision has ever been made under the Extradition Act in respect of any alleged earlier extradition request, it necessarily follows, as the respondent contended, there has never been the communication of any refusal under Article XV. I note that the respondent said that, while it was not necessary, he would not oppose the grant of leave for the applicant to issue a notice to produce limited to any document informing Chile of the decision on the alleged earlier extradition request as would have been required under Article XV (although such a notice to produce will, on the information before me, result in a nil response).
78 Third, aligned with that, it is unnecessary to decide whether the extradition process must run its course (that is, at the completion of the s 22 stage) before an extradition application could be "ultimately refused" within Article XVI, because on the evidence on this application, that issue simply does not arise. As the respondent contends, prior to the issue of this s 16 notice, the evidence is that no decision had been made by any authorised person at any of the four stages in respect to an alleged earlier request.
79 The applicant bears the onus of satisfying the Court that the documents sought by the order for discovery are necessary. The applicant's submissions must be rejected. This application proceeded on a flawed factual and legal foundation. The evidence establishes that no decision has been made to refuse any earlier request because no ministerial decision has ever been made under the Extradition Act in respect of any such request. The application for discovery of the extradition file at best, is fishing.