IS SEVERANCE OF SENATOR ELLISON'S s 16 NOTICE POSSIBLE?
82 That raises the question as to whether Senator Ellison's notice was wholly invalid or only partly so. The Minister argued that I should sever those paragraphs which he conceded, or I have found, to be incapable of being supported.
83 The Minister relied on authorities on severance of portions of search warrants in support of his argument that the invalid portions should be severed from Senator Ellison's s 16 notice. There, courts have held that it is possible to sever those parts of a warrant which were issued in excess of power: see per McHugh JA in Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 41D-42B and per Hely J in Williams v Keelty (2001) 111 FCR 175 at 210-211 [151].
84 The principle upon which those decisions proceeded was an application of provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth). These evince a legislative intention to preserve the validity of so much of an enactment, action or instrumentauthorised by law as would be supported by use of the power relied upon, notwithstanding that some other part of the enactment, action or instrument in question has been found to be beyond the power relied upon for its making. Thus, s 46(2) provides that if any instrument, such as a notice under s 16(1) of the Extradition Act, made pursuant to an enactment would be construed as being in excess of the authority's power, '… it is to be taken to be a valid instrument to the extent to which it is not in excess of that power'. A search warrant has been held to be such an instrument, as McHugh JA pointed out in Peters 16 NSWLR at 41E. Accordingly, he held that the search warrants in that case were to be read and construed, to the extent that they could be read, as valid instruments. He applied what Dixon J had said in Andrews v Howell (1941) 65 CLR 255 at 281 in relation to ss 15A and 46 of the Acts Interpretation Act. A notice under s 16 of the Act is also such an instrument.
85 In Andrews 65 CLR at 281 Dixon J said such provisions imposed a burden upon those attacking an entire regulation, part of which was bad, to establish that if the regulation were confined within the limits of the power, the result would be, not a partial application of the law, but a different provision. Alternatively, the attacker had to establish that it was the intention of the Act or Regulation which authorised the making of an instrument, that unless the instrument received its full intended operation, it should not operate at all.
86 Later, in Bank of New South Wales v The Commonwealth (The Bank Nationalisation Case) (1948) 76 CLR 1 at 370-371 Dixon J expanded upon the principles applicable to the construction of legislation or actions done under the authority of legislation where provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth) displaced the common law doctrine of severance. He explained that there was a common law presumption that the legislature intended its will on any particular matter as expressed in a statute to operate in its entirety and had no intention that something less should be the law (76 CLR at 371; see too The King v Poole; Ex parte Henry [No 2] (1939) 61 CLR 634 at 651 per Dixon J; Victoria v The Commonwealth (The Industrial Relations Act Case) (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; Harrington v Lowe (1996) 190 CLR 311 at 326 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). In the Bank Nationalisation Case 76 CLR at 371 Dixon J discussed ss 15A and the then form of s 46(b) (cp now: s 46(2)) of the Acts Interpretation Act. He said that in applying those provisions:
'… the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s. 15A and it is important in using s. 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law.
Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law.'
87 When Peters 16 NSWLR 24 was affirmed in Love v Attorney-General (NSW) (1990) 169 CLR 307 the issue of severance of the warrants was put to one side. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that it was clear that a warrant could, and had, to be construed so as not to do what the statute under which it was authorised itself did not purport to do. They held a State statute did not purport to authorise a breach of a federal law, s 219B of the Customs Act 1901 (Cth). They found that the warrants in that case were wholly valid (Love 169 CLR at 323).
88 It is important to bear in mind that in determining whether a notice given by the Attorney-General or Minister is wholly or partly valid for the purposes of s 16 of the Extradition Act, one of the significant effects of the notice is that it will authorise the detention in custody of the person who is its subject: Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ. In George v Rockett (1990) 170 CLR 104 at 110, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ noted that a search warrant authorised an invasion of premises without the consent of the persons in lawful possession or occupation. They said that the validity of such a warrant was necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the Court noted that the legislature had sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions to his privacy and property. They noted that in enacting the section authorising the issue of search warrants, the Queensland legislature had given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. However, the Court pointed out that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions. They then discussed the exceptions which many State and Commonwealth statutes had made to the common law position. They said (George 170 CLR at 110-111):
'Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.'
89 In Williams 157 FCR at 296 [40] the Full Court observed that cases such a Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276, Avon Downs v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J identified two relevant principles upon which the Court may examine, on judicial review, the validity of a notice under s 16 of the Extradition Act. They said that the Court could examine whether the decision-maker had or had not taken relevant, and only relevant, matters into account. If that examination resulted in a conclusion that the material relied on by the Minister was open to be considered, '… there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process'. That basis involved whether the decision-maker acted in good faith and had not acted merely arbitrarily or capriciously: Buck 135 CLR at 118-119 per Gibbs J.
90 There is no suggestion here that the Minister acted otherwise than in good faith. The question is whether, on the evidence, Senator Ellison can be found simply to have relied upon the advice of the CDPP without himself forming independently an opinion on any of the material before him. This is relevant to the application of s 46(2) of the Acts Interpretation Act to save some parts of the s 16 notice when, had the correct test been applied by the Minister, he would have see the patent deficiency of the material to support a great number of the matters included in the draft s 16 notice which he gave. That is to say, the material indicates that the Minister simply accepted the CDPP's advice or opinion without himself independently forming his own opinion or examining the basis of that advice either at all or with the correct test in mind.
91 In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120 per Dixon CJ, Williams, Webb and Fullagar JJ referred to the important distinction between a mere insufficiency of evidence or other materials to support a conclusion of fact when the function of finding the fact has been committed to a person or body by the Parliament and, on the other hand, the absence of any foundation in fact for the fulfilment of the conditions upon which, in point of law, the existence of the power depends. They said that it was not enough if the repository of the power, properly interpreting the section of the Act under which it was conferred and applying the correct test:
'… nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.'
92 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 223-224 [39], Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 663-664).
93 A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39], [60] where I applied this principle. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1047D-E Lord Wilberforce construed a statutory power in the 'subjective form' - 'if the Secretary of State is satisfied' - as raising two matters capable of review by the Court. First, where a judgment is to be made by the repository of a power, if the statute requires there to be some facts upon which the judgment is to be exercised, the Court may enquire into whether those facts exist. The evaluation of the facts is for the repository of the power alone, but his Lordship continued:
'… the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge …'
(See too Attorney-General v Reynolds [1980] AC 637 at 657G-659C per Lord Salmon giving the advice of the Judicial Committee.)
94 In George v Rockett 170 CLR at 111 the Court considered the function of a justice in issuing a search warrant. The terms of the statute were that it had to 'appear to the justice' that certain conditions existed. The Court held that this imposed on the decision-maker the duty of satisfying himself or herself that the conditions for the issue of the warrant were fulfilled.
95 The real question here is whether Senator Ellison properly directed himself as to the matters he had to take into account: see also Minister for Immigration v Rajamanikkam (2002) 210 CLR 222 at 233 [27] per Gleeson CJ, 241 [58] per Gaudron and McHugh JJ, 250 [97] per Kirby J; see too Craig v South Australia (1995) 184 CLR 163 at 179.
96 While s 46(2) of the Acts Interpretation Act requires the Court to approach the continued operation of an instrument, part of which has been made in excess of power, with a presumption of validity, that does not deny the application of the principle identified in Australian Stevedoring 88 CLR at 119-120. If the Court comes to the conclusion that in truth the power of the Attorney-General to give a notice under s 16(1) of the Extradition Act has not arisen because the conditions for its exercise did not exist in law and in fact, namely, that the opinion had not been formed under s 16(2)(a)(ii), then s 46(2) of the Acts Interpretation Act will not apply. This is because of the requirement that unless the opinion required by s 16(2)(a)(ii) has been formed by the Attorney-General on a proper basis, the chapeau in s 16(2) provides that he or she shall not give the notice under s 16(1).
97 In Coco v The Queen (1994) 179 CLR 427 at 442-443 Mason CJ, Brennan, Gaudron and McHugh JJ rejected an argument concerning the severability of a warrant that had been issued by a judge whom, they held, had misapprehended the power which the statute conferred. Their Honours held that the judge had purported to exercise a power different from the power reposed in him.
98 I am of opinion that Senator Ellison, likewise, purported to exercise a power different from that which the statute reposed in him. Had Senator Ellison approached the function of forming the opinion required by s 16(2)(a)(ii) in accordance with law (as it had subsequently been declared in Williams 157 FCR 286), he would have noticed the deficiencies in the material before him. He would then have considered that many of the proposed paragraphs of the draft notice which he signed were not justified. I am satisfied that he did not consider the material before him in the way in which s 16(2) required. Rather, 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.
99 While I have found that Senator Ellison erred in his approach, that error was understandable. I am not intending to criticise him in these reasons. He did not have the benefit of the decision, given months later, in Williams 157 FCR 286, but he acted on the then state of the law as interpreted by Cooper J in Foster 97 A Crim R 560; 158 ALR 394.
100 The filter which the Parliament intended be applied to extradition requests under s 16 was the formation of a genuine and real opinion by the Attorney-General, or other Minister exercising the power to give a notice under s 16(1). A notice under s 16 provides a lawful authorisation for the continuing detention of a person pursuant to the operation of s 17 of the Act. The Court should not impute to the Parliament an intention to authorise interference with the fundamental right to liberty where it does not appear that the Attorney-General or Minister actually turned his or her mind to the question s 16(2) requires be addressed: Coco 179 CLR at 537; see too Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ.
101 There is no basis to sever portions of Senator Ellison's s 16 notice. He never formed the opinion under s 16(2)(a)(ii) based on considering Mr Tervonen's alleged conduct. That step was a precondition of the exercise of the power to give the notice, as s 16(2) provided. As Gleeson CJ, McHugh and Heydon JJ said in Truong 223 CLR at 142 [29] the exercise required by s 16 is a concrete one, not an abstract one. They said it was to proceed by reference to the actual conduct alleged against the person in question.
102 Moreover, I am unable to conclude that Senator Ellison applied the correct test in considering those parts of the s 16 notice which were supportable on the material before him. There is no basis to think he applied two different tests, the correct one to the material in the CDPP's advice which contained sufficient acts and omissions of Mr Tervonen to justify one or more paragraphs in the draft notice, and the incorrect one to the balance. That would be irrational. The Minister simply did not apply the right test of forming his own opinion on the manner laid down in Williams 157 FCR 286. Thus, the whole notice was invalid and there was nothing on which s 46(2) of the Acts Interpretation Act could operate.
103 The danger in the Courts being more executive-minded than the executive was highlighted by Lord Atkin's famous dissent in Liversidge v Anderson [1942] AC 206 at 244.
104 In exercising his power under s 16(1) to give the notice, Senator Ellison asked himself the wrong question, namely whether his advisors considered that the notice should be issued and were satisfied of any matters which the statute required, including the formation of an opinion as to dual criminality under s 16(2)(a)(ii). The qualification on the Attorney-General's power to issue a notice under s 16(1) imposed by the requirement of the formation of the various opinions under s 16(2) is an important safeguard for the person whose extradition is sought. If in truth the Attorney-General, or Minister exercising the power in s 16(1) to give a notice, does not address for himself or herself the formation of the opinions on a proper factual basis under s 16(2) then the function of giving the notice has not been fulfilled in accordance with the Act.
105 I am of opinion that Senator Ellison did not consider whether Mr Tervonen's acts or omissions or equivalent conduct, had it taken place in Australia at the time at which the extradition request was received, would have constituted an extradition offence in relation to Australia. Rather, he accepted the opinions of others without examining the facts upon which those opinions were based. This was not a performance of his statutory function in accordance with law. The whole of Senator Ellison's s 16 notice was invalid.
106 That being so, the question then arises as to the proper relief which ought to be granted. In my opinion I should make an order in the nature of a writ of prohibition prohibiting further proceedings upon that notice and I should make an order in the nature of a writ of certiorari quashing it.