consideration of the issue
36 The appellant's basic contention, set out in the written submissions of counsel, is that the s 19 magistrate lacked jurisdiction to conduct eligibility proceedings because her jurisdiction was dependent on the existence of an extradition offence. It was submitted that the offence alleged against the appellant was not such an offence. The appellant further submitted that, in purporting to exercise power under s 19, the magistrate erred in two respects:
· in holding that because the Minister for Justice had given the Notice under s 16 that the appellant was an "extraditable person", she was bound not to inquire further in order to satisfy herself that a relevant "extradition offence" existed as a matter of Hungarian law at the time when the relevant conduct constituting the offence occurred; and
· in holding, in any event, that there was a relevant extradition offence operative under Hungarian law at the relevant time because of the retrospective operation of the Hungarian legislation.
37 The appellant contends that the primary judge accordingly erred in the review proceeding conducted under s 21 of the Act in holding that the s 19 magistrate was correct to proceed on the basis that the Notice authorised her to determine that the appellant was an "eligible person", and not to proceed to determine whether there was an extradition offence.
38 The appellant particularly takes issue with the primary judge's finding that the effect of the decision of the High Court of Australia in Kainhofer was that the opinion of the Attorney‑General formed under s 16 of the Act, prior to the giving of the Notice that the appellant was an "extraditable person", and the related opinion of the Attorney‑General that there was an "extraditable offence", were not reviewable by the magistrate under s 19. The appellant contends in the written submissions of counsel that the primary judge should not have found that:
· for the purposes of s 19(1) of the Act, the "extradition offence" was, by virtue of s 10(4), the extradition offence to which the Notice relates, and the Notice in the instant case expressed the extradition offence to be the alleged war crime;
· by reason of s 11(6) of the Act, the matters that a magistrate has to consider in proceedings to determine eligibility for surrender under s 19(2) do not include restrictions or limitations arising under the Treaty; or that
· the sole avenue for judicial review of whether the war crime was an "extradition offence" at the s 19 eligibility hearing stage was if the s 16 Notice was on its face invalid and then by way of proceedings under s 39B of the Judiciary Act 1903.
39 The appellant's key submission is that s 19(1) and s 19(2) of the Act cannot sensibly operate without the requesting State nominating an "extradition offence" that relevantly has legal effect according to the Act. The hearing magistrate must therefore ascertain that such an offence exists. That is a jurisdictional pre‑condition separate from, and in addition to, the other stipulated matters the s 19 magistrate is required to determine, and is modified in this case by Art 2, para 5(a) of the Treaty. By force of those provisions a person cannot be eligible for surrender in relation to an offence that did not exist at the time the relevant conduct is alleged to have occurred.
40 The appellant contends therefore that the issue before the s 19 magistrate is not simply whether the facts alleged in the supporting documents were adequately described or were such as to satisfy the minimum requirements of the foreign offence. Rather, the issue properly for determination extends to whether there was a relevant foreign extradition offence in the first place. The existence of that jurisdictional pre‑condition is not a matter falling outside the ambit of those sections; rather, it is intrinsic to s 19.
41 The appellant submits that Kainhofer has never explicitly been applied to a situation where a treaty provision, like Art 2, para 5(a) of the Treaty here, operates upon s 19(1) of the Act to deprive the specified offence of the character of an "extradition offence", the existence of which is a jurisdictional fact or condition intrinsic to s 19(1).
42 Recognising that the issue to be determined by the Court is entirely about the proper interpretation or construction of the Act, counsel for the appellant draws attention to the various steps, or the process, by which extradition of a person occurs under the Act and the particular length of time for which a person may be detained pending a final resolution of the extradition proceeding by an executive decision taken under s 22 of the Act. Counsel acknowledges that judicial review of the various administrative or executive decisions taken may be available to a person. As a matter of policy, however, it is submitted that the determination of an issue such as that raised here, concerning the relevant effect of Art 2, para 5(a) of the Treaty on the question whether the appellant is an "extraditable person" who may be said to have committed an "extradition offence", should not have to await the Attorney‑General's consideration under s 22 following often a long period in detention. Rather, counsel submits, the s 19 hearing constitutes an appropriate earlier forum for the determination of this question.
43 The appellant contends Kainhofer should, therefore, be read as applying only to challenges that "would collaterally seek to deny or qualify some factual, procedural or evidentiary aspects of the allegations of the conduct stated by the requesting state to have occurred in relation to an actual existing offence". Accordingly, the appellant argues, the principle in Kainhofer is not relevantly applicable and therefore is distinguishable, as are other authorities said to follow it, such as Timar v The Republic of Hungary [2000] FCA 755 (Timar) and Papazoglou. The appellant contends the latter are all predicated on the existence in law of a foreign extradition offence, the elements of which putatively may be satisfied by the facts comprising the alleged conduct. None were concerned with the unique circumstances and objection presented in the present proceedings.
44 The appellant says that Zoeller v Federal Republic of Germany (1989) 23 FCR 282 (Zoeller), decided before Kainhofer by the Full Federal Court, is consistent with the view that a magistrate is required to determine whether the nominated offence qualifies as an "extradition offence" that founds jurisdiction. In that respect, it is said, Zoeller has not been impliedly overruled by Kainhofer, given that the latter has never been applied to the extent of permitting a magistrate to exercise what is only a purported, assumed or fictional authority. The appellant draws attention to the decision in Bennett v United Kingdom (2000) 179 ALR 113 (Bennett), in which Katz J at 119 [6] queried the consistency of Zoeller and Kainhofer, and also to observations of O'Loughlin and Whitlam JJ in Oates v Attorney‑General of the Commonwealth (2002) 118 FCR 544 at [25], which are said to provide support for this view.
45 Despite the contentions made on behalf of the appellant to the contrary, we consider that it is not open to us to come to the view that Kainhofer is not directly relevant to the determination of the primary issue. Kainhofer is not stated to be a decision applicable only to challenges that collaterally seek to deny or qualify some factual, procedural or evidentiary aspects of the allegations of the conduct stated by the requesting State to have occurred in relation to an actual existing offence. As the primary judge demonstrated by reference to the judgments of the members of the High Court in Kainhofer, the principle there established is of general application.
46 The facts in Kainhofer, shortly stated, were that on 20 January 1993 the Republic of Austria made a request in writing for the surrender of the respondent Maria Kainhofer, "for prosecution in Austria in respect of a number of misappropriation and malversion offences under the Austrian Penal Code". This request was or was taken to have constituted an "extradition request" for the purposes of the Act. Ms Kainhofer did not succeed in her contentions before the s 19 magistrate or the primary judge on review. On appeal in the Full Court of the Federal Court, however, she succeeded on her argument that the s 19 magistrate's order could not properly have been made unless the magistrate was satisfied, in accordance with ss 19(2)(a) and (3)(a) of the Act, that the supporting documents furnished by the Republic of Austria provided for the arrest of the respondent as a person "accused" of the offences to which the warrant referred. The Full Court examined the supporting documents and found that the s 19 magistrate could not have been properly satisfied that the appellant was "accused" of the four alleged offences, and for that reason the appeal was allowed.
47 The High Court allowed an appeal against the decision of the Full Federal Court. Brennan CJ, Dawson and McHugh JJ jointly gave reasons with which Toohey J agreed. Gummow J gave separate reasons in coming to the same conclusion.
48 In the joint judgment at 533, their Honours stated that the "principal issue" for determination on the appeal was:
… whether it was part of the magistrate's function to determine whether the appellant was 'accused' of the four alleged offences in relation to which the order committing her to prison [in Australia under the Act] was made.
49 Their Honours undertook an extensive analysis of the operation of the Act. Having regard to the scheme of the Act, the function of the magistrate under s 12 of the Act in issuing a provisional arrest warrant, and the role of the Attorney-General under s 16 of the Act in giving a notice in writing in the statutory form expressed to be directed to a magistrate, their Honours concluded that the power of a s 19 magistrate, who is required to determine whether the person is "eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country", does not extend to the review of the satisfaction of the original magistrate or the opinion of the Attorney-General as to whether the person is an extraditable person.
50 In the joint judgment, at 538 - 539, their Honours stated:
The question whether a person is accused of having committed an offence in relation to which a warrant for the person's arrest has been issued by an extradition country is addressed by a magistrate under s 12(1) and by the Attorney-General under s 16 in considering whether the person is an extraditable person. The state of mind which is formed on that issue by those officers is not reviewable by a s 19 magistrate. Of course, prohibition or mandamus may go to an officer of the Commonwealth who exercises power under the Act (footnote omitted) but the amenability of decisions under ss 12(1) and 16 to judicial review does not expose those decisions to review by a magistrate who conducts administrative proceedings under s 19. Nor does sub‑s (2)(a) in conjunction with sub-s (3)(a) of s 19 make the accusation of the person whose surrender is sought a condition affecting any power conferred by that section. The s 19 magistrate is neither required nor authorised to determine the issue whether that person is an extraditable person.
51 Their Honours further noted, at 539:
Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made. Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16.
52 Toohey J, at 541, agreed with the construction of the Act explained by their Honours in the joint judgment. His Honour, however, expressed some concern about the fact that there is "little scope for judicial review of the question whether a person is an extraditable person". In that regard, his Honour at 541 - 542, doubted that judicial review of the s 12 magistrate's decision was open under s 39B of the Judiciary Act 1903. His Honour, at 541, considered that the observation that the Act represents "a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion" (Shearer, "Extradition and Human Rights" (1994) 68 ALJ 451 at 452), had "force".
53 Gummow J exhaustively analysed the terms of the Act and provided a similar construction to that of the other members of the Court. In relation to the s 19 magistrate's function, Gummow J, at 552, noted:
It will be apparent that, within the meaning of s 19, the person is eligible for surrender only if the magistrate is satisfied of two matters, those in s 19(2)(c) and (d). The first of these is concerned with dual criminality and the second with the absence of an extradition objection. In respect of both these matters, the Attorney-General had been required to form an opinion before issuing a notice under s 16.
Both the Attorney-General and the magistrate, when respectively giving notice under s 16 and issuing a provisional arrest warrant under s 12, were obliged to consider whether the person was an extraditable person in relation to the extradition country. That requirement, spelled out in the text of ss 12 and 16, is not repeated in s 19(2).
54 At 553 - 554, Gummow J repeated the proposition:
That the person be an extraditable person is not specified in s 19(2) as a necessary condition of eligibility for surrender and the making of an order by the magistrate under s 19(9) committing the person to prison to await surrender.
The classification in s 19(3) of that which is required for the necessary "supporting documents" assumes that extradition is sought either in respect of an offence of which the person is accused or in respect of an offence of which the person has been convicted. It does not proceed on the footing that there is a further category of offences in respect of which the person is neither accused nor convicted.
55 The interpretative provision s 10(4) of the Act relating to an extradition offence, and set out at [30] above, aids the construction settled upon in Kainhofer. It provides that a reference to an "extradition offence for which surrender of a person is sought by an extradition country" (which are the same words that appear in s 19(1)), is, in relation to a time after the Attorney‑General has given a s 16(1) notice "a reference to any extradition offence to which the notice (including the notice as amended) relates". This plainly implies that the extradition offence has been identified in the notice and is not for the s 19 magistrate to inquire into whether or not there is an extradition offence.
56 The terms of s 11(6) of the Act also confirm a construction of the Act that limits the function of a s 19 magistrate in the manner identified by the High Court in Kainhofer and as found by the primary judge. Section 11(6) provides as follows:
(6) For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).
57 As explained above at [9], by virtue of s 11(1) and s 11(1C) and the Regulations, the terms of the Treaty are taken to modify the Act by reference to whatever limitations, conditions, exceptions or qualifications as are expressed. In these circumstances, the express words of s 11(6) permit no other reasonable meaning than that the s 19 magistrate should not consider the terms of the Treaty. As a s 19 magistrate is not "permitted" to be satisfied about any matter other than the stipulated matters, the magistrate is not permitted to enter upon an analysis of whether or not Art 2, para 5(a) of the Treaty, properly construed means that there is no "extradition offence" under the Act.
58 In that regard, we note that in Papazoglou, the Full Court (Wilcox, Tamberlin and Sackville JJ) held, by reference to s 11(6), that the function of a magistrate under s 19 and a judge under s 21 review did not extend to the consideration of the terms of a treaty that provided that extradition shall not be granted "if final judgment has been passed in the Requested State or in a third state in respect of the offence for which the person's extradition is requested", and which allowed the requested State to take into account the question whether extradition of the person "would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment". The Court, in Papazoglou at 140, stated:
The matters that a magistrate has to consider in proceedings to determine eligibility for surrender are those set out in s 19(2) of the Extradition Act; whatever the proper construction of s 19(2), those matters do not include restrictions or limitations arising under a treaty. This is made clear by s 11(6) of the Extradition Act,
59 That s 11(6) has the effect of removing from consideration by a s 19 magistrate any limitations, conditions, exceptions or qualifications (save those referred to in s 19(2)(b) limited to the documents that a treaty requires to be produced to a magistrate) is also supported by other Full Federal Court authority: see, for example, Prabowo v Republic of Indonesia (1997) 74 FCR 599 at 606; Timar at [19].
60 Notwithstanding the reasoning of Kainhofer and the provisions of the Act, counsel for the applicant seeks to draw some support for the applicant's contentions from the Full Federal Court's decision in Zoeller, decided before Kainhofer. In Zoeller, the Full Court (Lockhart, Gummow and Hill JJ) at 303 - 304, having referred to the fact that the ultimate issue to be decided by a s 19 magistrate is whether a person is "eligible for surrender", continued:
To determine that issue the magistrate will be required to determine the following constituent matters:
1. Is the offence one which qualifies as an extradition offence? (see s 5)
2. Is the requesting country an extradition country? (see s 5)
3. Are the documents produced to him as "supporting documents" under s 19(2)(a) within the definition of that expression in s 19(3) having regard to the following questions:
(a) is there a duly authenticated warrant of the kind described by s 19(3);
(b) if the extradition is in respect of a conviction, are there duly authenticated documents which provide evidence of the matters in s 19(3)(b);
(c) is there a duly authenticated statement in writing setting out the matters in s 19(3)(c)(i);
(d) is there a duly authenticated statement in writing setting out the conduct constituting the offence (see s 19(3)(c)(ii))?
61 In Bennett, Katz J at [6] observed, by reference to this passage, that it "might be possible to mount an argument that the effect of the High Court's decision in Kainhofer was that, in so far as this court held in Zoeller that a magistrate determining a person's extradition eligibility is required to determine whether the offence is one which qualifies as an extradition offence, its holding was impliedly overruled by Kainhofer". However, no such argument was mounted before Katz J and he simply followed Zoeller on the "extradition offence" point without troubling to consider whether such an argument would, if made, be likely to succeed.
62 In Dutton v O'Shane (2003) 132 FCR 352, the Full Federal Court (Finn, Dowsett and Conti JJ) dealt with a contention by the appellant that the function imposed on a s 19 magistrate extends to consideration of a person's eligibility for surrender in relation to an extradition offence and that the expression "extradition offence" recurs throughout s 19. The appellant in this case submitted that the s 19 magistrate is not required to consider whether the person on remand is an "extraditable person". That is the Attorney‑General's s 16 function and the s 12 magistrate's function. But the s 19 magistrate, nonetheless, must consider whether the relevant offence is one for which the person could be eligible for surrender.
63 In dealing with this submission, Finn and Dowsett JJ, at 361 - 362 [37] - [38], noted the observations of Katz J in Bennett and further, wryly perhaps, observed:
This issue is not one which it is necessary to resolve in this proceeding, given the view we take of the ground of appeal itself. We would, though, indicate that its proper resolution may raise directly, though in another guise, the constitutional issue to which reference will later be made in these reasons. We would indicate additionally that the respondent's submission goes quite some distance, in our view, to falsify one of the declared objects of the Act which is:
'(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be extradited without determining the guilt or innocence of the person of an offence.'
(Emphasis added.)
It may be, though, that despite this object the legislature only intended the court conducting a s 21 review to be seised of part of the 'matter' … assuming there is a matter…
64 Conti J, on the other hand, considered at 398 [198], that Kainhofer "does not question the correctness of the Full Federal Court's decision in Zoeller, and nor is it in my opinion presently on point". His Honour added:
I find nothing inconsistent in Kainhofer which persuades me that Zoeller should not be followed in respect of the mandatory requirement that in determining a person's eligibility for surrender, the s 19 magistrate is to consider whether any offence in the supporting documents qualifies as an extradition offence for the purposes of s 5 of the Extradition Act.
65 Senior counsel for the Republic of Hungary acknowledges the apparent inconsistency and the requirement identified in Zoeller at 303 that the s 19 magistrate, amongst other things, be satisfied whether "the offence is one which qualifies as an extradition offence". Counsel contends, however, that the Court did have in mind a substantive examination of the facts and circumstances alleged or the precise legislative framework in the requesting country and, indeed, at 300, expressly stated that all the magistrate is required to do, by reference to Australian law, is to determine whether the conduct referred to in a s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.
66 In Zoeller, the Court (which, as noted, included Gummow J, who later delivered a separate judgment in Kainhofer) observed, at 300:
Accordingly it is our view that the magistrate was entitled to consider the statement of facts in each warrant in determining whether offences were committed under Australian law. As we understand it, the applicant concedes that in relation to the two misappropriation offences, if regard may be had to the statement of facts there are, subject to a limitation argument, disclosed offences under either or both of s 229(1) and (4) of the Companies (New South Wales) Code, that State's law being the relevant law to determine the matter, it being the State of apprehension. A different problem arises in respect of the first tax charge.
67 In relation to the "first tax charge", the Court then dealt with the appellant's submission that it was not an offence punishable with imprisonment for a term of 12 months or more (ie an extradition offence under s 5 of the Act). Rather, it was said that the facts disclosed no more than a breach of the taxation legislation, punishable by a fine or imprisonment not exceeding 12 months. However, the Court ultimately accepted, at 300 - 302, that the relevant Australian offences were to be found in the Crimes Act 1914 (Cth) and that they answered the description of an "extradition offence" in this regard.
68 We think it is also important to note that in Zoeller, at 304, the Court, having just noted that amongst other things it is necessary for the s 19 magistrate to determine if the offence is one which qualifies as an extradition offence, further noted that:
In a case to which the provisions of s 11 apply the magistrate may be required as well to determine whether the evidence before him would, if uncontroverted, provide sufficient grounds to put the person on trial or sufficient grounds for inquiry by a court. But s 11 will only require this result in the case of a country which be force of regulations becomes an extradition country after the commencement of the 1988 Act (as the Federal Republic of Germany did) where the regulation is subject to a limitation condition, qualification or exception to the effect that the sufficient evidence test or the prima facie evidence test is satisfied. In the case of the respondent country there was no such limitation, condition, qualification or exception.
The question whether the proceedings are statute barred in Germany is therefore a question irrelevant to the inquiry before the magistrate under s 19. This is not surprising because questions of limitations notoriously involve questions of facts, most limitation provisions being subject to exceptions and qualifications. … Since we are of the view that the issue whether the German offence was statute barred was not an issue properly before the magistrate it follows that in our view the affidavit dealing with the limitation period was rightly rejected.
69 These aspects of the judgment of the Full Federal Court in Zoeller tend to support the view that the Full Court did not have in mind a substantive examination of the facts and circumstances concerning whether a person is an "extraditable person" or whether an "extradition offence" has been made out for the purposes of the underlying treaty in the course of a s 19 hearing.
70 We also note that in the judgment of Gummow J in Kainhofer, his Honour gave special attention to the requirement under s 19(2) that "supporting documents" be produced to the magistrate in relation to the offence and such other documents as required to satisfy any limitation, condition, exception or qualification subject to which the Act applies in relation to the extradition country. In Kainhofer, nothing turned on that particular requirement, just as nothing turns on it in this case. At 552 - 553, Gummow J noted:
In this sense, the power of the magistrate to determine whether the person is eligible for surrender depends upon the production of 'supporting documents' which comprise documents which are 'duly authenticated' (Riley v The Commonwealth (1995) 159 CLR 189, 21). In addition to being 'duly authenticated', what other classification applies to 'supporting documents' in any given case? The answer is provided by s 19(3). Attention should first be directed to par (c) thereof. This states that 'in any case', that is to say, in any case in which the magistrate is conducting proceedings under s 19 to determine eligibility for surrender, there must be a duly authenticated statement in writing setting out a description of and the penalty applicable in respect of the offence, together with a duly authenticated statement in writing setting out 'the conduct constituting the offence'. The phrase 'the conduct ... constituting the offence in relation to the extradition country' appears in s 19(2)(c) as an element in the consideration of dual criminality. Questions of the penalty applicable will be relevant to the inquiry under s 19(2)(d), the existence of an extradition objection.
(emphasis supplied)
At 554, Gummow J added:
It is for the magistrate to determine that the necessary duly authenticated documents are produced and there may be debate as to what, in a particular case, amounts to due authentication within the meaning of s 19(7). There may also be debate in a particular case as to whether the warrant is 'for the arrest of the person for the [extradition] offence'.
(emphasis supplied)
71 In our view, the discussion in Zoeller, supplemented by the analysis of Gummow J in Kainhofer,discloses that there remains a requirement, in the terms just discussed, for a s 19 magistrate to be satisfied that there is a warrant for the arrest of the person for an "extradition offence" identified by the supporting documents, but there is no wider role to be played by the s 19 magistrate concerning whether the conduct stated in the supporting documents actually constitutes the offence described in the warrant.
72 In this regard, we note that in Unkel v Director of Public Prosecutions (1990) 95 ALR 44 - also decided prior to Kainhofer - Pincus J concluded, at 49 by reference to Zoeller, that s 19 of the Act does not say that the magistrate must be satisfied that the conduct stated under s 19(3)(c)(ii) constitutes (in law) the offence described in (i).
73 In Federal Republic of Germany v Parker (1998) 84 FCR 323, a case decided soon after Kainhofer, another Full Federal Court (Ryan, Einfeld and Foster JJ) considered the function of a s 19 magistrate in relation to the requirements of a treaty. The relevant treaty provided that the request for extradition should be accompanied by "all available information concerning the identity and nationality of the person claimed". Taking into account Kainhofer, and also the decision of the Full Federal Court in Papazoglou, the Court, at 342, stated:
In our view, the question that might arise under Art 9(2)(a) is one which is committed to the Attorney-General, as being a matter which could affect the exercise of discretion under s 16 or under s 22 of the Act. His or her determination in this regard is not one that can be reviewed by the magistrate, although it may be susceptible to review under s 39B of the Judiciary Act, as indicated in the passages cited earlier.
74 In our view, the judgments in Kainhofer are not susceptible to a gloss, as submitted on behalf of the appellant, such that the s 19 magistrate is only prevented from determining whether a person on remand is an "extraditable person" in respect of an "extradition offence" in circumstances where the person collaterally seeks to deny or qualify some factual, procedural or evidentiary aspect of the allegations of the conduct stated by the requesting State to have occurred in relation to the actual existing offence.
75 We do not consider that the principle to be drawn from Kainhofer is distinguishable in the circumstances of the appellant, where he wishes to contend that the effect of Art 2, para 5(a) of the Treaty is such that he cannot be said to have committed an "extraditable offence" as described by Art 2, para 5, or an "extradition offence" as defined by the Act as modified by the terms of the Treaty.