Case: Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386
Outcome: referred to
The steps involved in the extradition process under Part II of the Act were considered by the Full Federal Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389. The Full Court described four stages in the extradition process: commencement, remand, determination by a magistrate of eligibility for surrender and executive determination that the person is to be surrendered; see also Vasiljkovic v Commonwealth [2006] HCA 40 ; (2006) 228 ALR 447 at [55] . The issue of a notice under s 16(1) of the Act formally commences the process and, as noted above, is a condition precedent to a magistrate considering the person's eligibility for surrender. The Minister's decision to issue a s 16 notice may be subjected to judicial review; von Arnim v Ellison [2006] FCAFC 49 ; (2006) 150 FCR 282 at 298, Harris at 400-401. 13 The applicant's written submissions put the following argument: 'However, the formation of the Minister's opinion is flawed and the decision is invalid if the deficiencies in the material before the Minister are such that the material does not provide a factual basis for, and prevents the reasonable formation of, the requisite opinion in section 16(2) of the Act: Harris v Attorney General (1993) 45 FCR 11 at 25 (Ryan J). Alternatively, the formation of the Minister's opinion is flawed and the decision is invalid if the Minister has not properly construed and applied the statutory criteria to the facts before him: Harris v Attorney General (1993) 45 FCR 11 at 27 (Ryan J). Nothing said by the Full Court in Harris v Attorney General (Cth) (1994) 52 FCR 386 controverts either of those propositions.' 14 Whilst this submission may be accepted as far as it goes, it does little to advance the applicant's case. The comments of Ryan J to which the applicant refers were directed to preconditions to the Minister issuing a notice under s 16(1) that are not the subject of challenge here. His Honour's comments were directed to whether a valid extradition request had in fact been received and whether there was an extradition objection in relation to the offence. No challenge has been made to the extradition request in this case and there is no extradition objection. The complaints made by the applicant in this case have all been directed to the reasonability of the opinion expressed by the Minister, given the alleged deficiencies in the material on which that opinion was based. I note, however, the statement of the Full Court in Harris at 403: 'It is difficult to imagine a case where, on the one hand, there is a document which is sufficiently certain so that it can properly be described as an "extradition request", while, on the other, does not contain sufficient information to enable the Attorney to consider the matters specified in s 16(2).' 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 Act does 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.