Case: Knauder v Moore [2002] FCAFC 404 ; (2002) 127 FCR 327
Outcome: discussed
At the commencement of the substantive hearing, I raised the issue as to whether satisfaction of the requirements of s 19(1) could be considered in a review pursuant to s 21. I expressed a tentative view in the negative and suggested that challenge to those requirements would need to be by way of a separate proceeding based on administrative law grounds. Counsel for Finland submitted that that view was contrary to current practice, based upon the decisions of Full Courts in Knauder v Moore [2002] FCAFC 404 ; (2002) 127 FCR 327 and Brock v United States of America [2007] FCAFC 3 ; (2007) 157 FCR 121. As those decisions do provide a basis for what was described as the current practice, I was prepared to proceed accordingly in the absence of argument to the contrary. 6 Does that approach apply to review of the requirements of s 19(1)? That question was not clearly or satisfactorily dealt with in Knauder [2002] FCAFC 404 ; 127 FCR 327. Conti J (having noticed the point that troubles me at [36]) dealt with the question at [37] [40]. There is some support in those paragraphs for the view that the question of reasonable time in s 19(1)(d) is an objective fact for determination by the Court pursuant to s 21 but, on a proper reading, it seems to me to be based upon the view that the circumstances in that case were such that there could be no reasonable or rational finding that the applicant had reasonable time in which to prepare for the conduct of the proceedings. Allsop J gave the other leading judgment. His Honour found both that there was an absence of the necessary jurisdictional fact on the basis that the magistrate's view was arbitrary and capricious, and that there was an absence of procedural fairness afforded as a matter of fact and law. His Honour held that the denial of procedural fairness was not cured by the s 21 review as held by the primary Judge but preferred not to decide the question whether failure to satisfy s 19(1)(d) of itself required quashing the orders of the magistrate. Mansfield J confined his reasons for making the orders to the failure of the magistrate to accord procedural fairness to the appellant. How failure to accord procedural fairness comes within the rubric of a s 21 review was not explained (cf Hill J in Republic of South Africa v Dutton (1997) 77 FCR 128 at 136D, noticed by Conti J in Knauder [2002] FCAFC 404 ; 127 FCR 327 at [36] ). 11 Section 21(2) provides that, in circumstances such as the present, the Court "may" quash the magistrate's order and direct the magistrate to order the release of the applicant. That was the relief sought in the application. Indeed, the structure of the subsection assumes that that will be the result where the order is not confirmed. In my opinion, the word "may" in the subsection is a Julius v Bishop of Oxford imperative (see the explanation by Windeyer J in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12 ; (1971) 127 CLR 106 at 134 135). Section 21 does not authorise the Court to directly order the release of the person. That course was taken in Knauder [2002] FCAFC 404 ; 127 FCR 327 apparently based upon the submissions and consent of the country respondent (see Conti J at [41]). That may have been a sensible course in order to avoid double handling in a matter affecting the liberty of the subject, but the decision cannot be seen as authority for such a power absent consent.