Applicant's submissions
16 According to the applicant, the information not included in the advice to the Minister is more significant than the information provided. The applicant's principal claim is that, on the basis of the information contained in the advice, the first respondent could not reasonably have formed the opinion required by s 16(2)(a)(ii) of the Act and therefore the s 16 notice was not authorised by the Act. The applicant claims that the advice did not identify the conduct allegedly constituting the extradition offence with sufficient precision. Specifically he claims that the advice did not:
(a) attach the indictment setting out the offences alleged against him in the United States; or
(b) attach any material from the United States in relation to the charges or the conduct alleged to constitute the charges or any other supporting or explanatory material; or
(c) attach any supporting or explanatory material from the Office of the Commonwealth Director of Public Prosecutions (DPP) in relation to the charges or the alleged conduct of the applicant.
17 In oral submissions the applicant's counsel emphasised that s 16 refers to the alleged conduct of the extradition subject rather than to the charges levelled at that person. It was submitted that the omission of the matters referred to above amounted to a failure to describe the relevant conduct. The advice merely names the charges made against the applicant and thus made it impossible for the Minister to form a reasonable opinion that, if the conduct had occurred in Australia, it would have constituted an extradition offence. In the alternative the applicant claims that insofar as the applicant's conduct is described in the advice to the Minister it could not reasonably have been considered to constitute an extradition offence in relation to Australia.
18 The applicant accepted that the Minister was entitled to rely upon the advice of departmental staff in reaching the requisite opinion per s 16(2)(a)(ii) but submitted that when it comes to signing the s 16 notice the Minister has to do more than rubber stamp the recommendations of the Department. Clearly this submission must be accepted. This much is clear from the comments made in von Arnim at 298 by Young J, with whom Madgwick and Siopis JJ agreed:
'The obvious statutory intention behind s 16 is that the Attorney-General should carefully scrutinise the case for extradition before giving a notice stating that an extradition request has been received. Speaking of earlier legislation which was in similar form, Burchett J in Schlieske v Federal Republic of Germany (No 2) (1987) 26 ACrimR 341 at 346-347, described the Attorney-General's notice as the essential document which translates any Australian obligation, under international law, to extradite a fugitive into a right, under municipal law, to have a particular application for extradition proceeded with before a magistrate. This aptly describes the function of the s 16(1) notice under the Act.
In Commonwealth v Dutton (2000) 102 FCR 168 at [33], Moore J said that the function of the Attorney-General under s 16 provides an important safeguard against the abuse of the extradition process by the country seeking extradition and involves the Attorney-General scrutinising the request independently of the requesting country and, potentially, against the interests of that country. In this sense, Moore J said that s 16 involves the Attorney-General acting as a contradictor to the claim of the requesting country. None of this is controversial.'
19 The issue remains, however, whether the information contained in the advice put before the Minister was sufficient to allow him to give proper consideration to the request made for the extradition of the applicant. The fact that, if the notice is issued, the matter goes to a magistrate for consideration according to the same criteria as are considered by the Minister (s 19(2)(c) of the Act), does not in any way relieve the Minister from his obligation to give those criteria independent consideration; Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 at 538.
20 The submissions made by the applicant are similar to those rejected by this Court in Foster. The offences alleged in that case and stated in the departmental memorandum given to the Minister for the purpose of his decision, were set out in the judgment given in a related appeal, Attorney-General of the Commonwealth v Foster (1999) 84 FCR 582 at [50], namely:
'… one count of conspiracy to use false instruments, two counts of conspiracy to defraud, and three counts of using a false instrument.'
21 In Foster, as in this case, it was accepted that the relevant Minister had considered only a departmental minute and its annexures. From the extract of this minute in Cooper J's judgment, it appears to have been very similar in form to the advice provided to the Minister in this case. The applicant in Foster submitted that, in reaching the opinion required by s 16(2)(a)(ii), the Minister was required personally to consider the conduct of the person who was the subject of the extradition request. It was submitted that, since the conduct of the applicant in Foster was not described in any of the documents provided to him, the Minister could not have given personal consideration to this conduct. Cooper J rejected this submission and noted at 568:
'Section 16(2)(a)(ii) only requires that the Attorney-General hold the relevant opinion. The notice issued by the respondent under s 16 of the Act and signed by him expressly states that he held the requisite opinion. In order to avoid the consequence of the respondent in fact holding the opinion, the applicant must demonstrate that no person in the position of the respondent on 27 May 1997, having the material which was available to the respondent, could reasonably have held the opinion. That is, the applicant must show that the opinion was perverse: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228.'
22 His Honour found that the Minister was entitled to have the investigation and consideration done by departmental officers and was entitled to rely on departmental submissions in reaching the s 16(2)(a)(ii) opinion.
23 I respectfully agree with his Honour that the applicant in this case must establish that the first respondent's determination was unreasonable or perverse in the Wednesbury sense. If the decision was based on factual material which was so materially deficient that it could not reasonably form the basis for the requisite opinion, then it would be unreasonable in the Wednesbury sense.
24 The respondents submit that the facts in Foster are indistinguishable from the present facts; that the decision in Foster is correct and should be followed by this Court; and that there is nothing in von Arnim to contradict Cooper J's analysis in Foster.
25 At its highest, the respondents' submission was that it was sufficient for the Minister to adopt the DPP's conclusion without having any indication from the DPP as to why it came to that conclusion. It seems to me that this is higher than it is necessary for the respondents to go and, indeed goes beyond the position taken by Cooper J in Foster. It is not correct to say that in this case the departmental advice gave no indication of the basis of the DPP's advice. Although scant, an indication is provided by the description of the offences with which the United States seeks to charge the applicant. The Minister had before him a list of the US offences that the applicant was charged with, a list of (at least in the DPP's opinion) equivalent offences under the Australian law and the DPP's advice that the US offences would be considered offences under the Australian law.
26 Further, the respondents referred to two passages from Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985) 162 CLR 24 in support of its contention that the first respondent was entitled to rely on the advice prepared for him by departmental staff. Although in a different context, these extracts bear repeating. At 30 Gibbs CJ stated:
'Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department.'
27 In the same case Brennan J said at 65-6:
'The department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function… Reliance on the departmental appreciation is not tantamount to an impermissible delegation of the ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts.'
28 The applicant attempted to distinguish Foster on the basis that the descriptions of the offences in Foster were instantly recognisable as bearing dual criminality, whereas in the present case it was not possible on the basis of the descriptions given in the advice to form a reasonable opinion as to dual criminality. As noted above at [7], the charges made against the applicant are 'wilful attempt to evade Federal income tax' in each of 1999, 2000 and 2001. Counsel for the applicant submitted that there is no such offence in Australia. Further, counsel submitted that such an offence could encompass conduct that was not criminal in Australia, including the failure to lodge an income tax return. In comparison, counsel for the applicant referred to the departmental submission in Foster, which stated:
'The Commonwealth DPP has advised that Foster's alleged conduct would amount to the offences of conspiracy to defraud contrary to section 430(1) of the Criminal Code (Qld); fraudulent inducement of a person to give credit to a company… uttering false document… obtaining goods or credit by false pretence… and falsifying books or accounts by an officer of a corporation.'
29 I do not accept that the circumstances in Foster were relevantly different from those before me. It is inevitable that in many cases where extradition is sought there will be no precise equivalent between the offence as specified in the request for extradition and offences in Australia however the Actdoes not require this. It is sufficient if there is dual criminality in substance; Harris at 411; Holt v Hogan (No 2) (1993) 46 FCR 145 at 149-151. The dual criminality requirement is that the 'conduct or the equivalent conduct' to that in respect of which extradition is sought should be an 'extradition offence' in relation to Australia.
30 It is not to be expected that the Minister would be aware of which offences, if any, in Australia would equate to a wilful attempt to evade federal income tax. The Minister is entitled to rely on expert advice from his department or another Commonwealth instrumentality on this point. The applicant says that the statement of the alleged offence under United States law does not describe the conduct of which the applicant stands accused. In my view, however, it does describe conduct and it describes it sufficiently. If the United States were to seek the extradition of a person on the basis that he or she had attempted murder it would not be necessary for the Minister to know what form the attempt took to appreciate that there is an allegation of certain conduct. Similarly, to allege that the applicant wilfully attempted to evade income tax is immediately understandable as a description of conduct without the need to describe how that attempt is said to have been made. In many, if not most, cases the description of the relevant conduct will be found in the naming of the charge.
31 I respectfully accept the view expressed by Young J in von Arnim (see [18] above) that the Minister must carefully scrutinise the case for extradition before issuing a s 16 notice. I do not accept that the advice in this case did not allow such scrutiny.
32 In this case the DPP has given its opinion that that the conduct alleged by the United States, if committed in New South Wales, would be an offence under the Commonwealth Criminal Code. The question is not whether the DPP is right or wrong but whether it was perverse of the Minister to accept that advice. Put that way, the answer can hardly be in doubt. The DPP has the expertise that the Minister presumably lacks. There is no reason for the Minister to think other than that their advice was given in good faith. It was, in my opinion, entirely reasonable for the Minister to accept the advice given.