Case: Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528
Outcome: referred to
Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 at 537, consideration was given to the jurisdiction of a magistrate exercising functions under s 19 of the Act. In the joint judgment of Brennan CJ and Dawson and McHugh JJ (with whom Toohey J agreed), it was held that the conditions of jurisdiction prescribed by s 19(1) must be satisfied and then consideration must be given to the compliance of the supporting documents with the requirements of s 19(2)(a) and (b). Then the character of the conduct of the person constituting the offence or equivalent conduct must be ascertained under sub-s (2)(c) and finally the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence under sub-s (2)(d) at p 537. However, their Honours concluded at p 538 that the power of a s 19 magistrate did not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person. Significantly their Honours said at p 539: The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. 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. The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the "supporting documents in relation to the offence" produced to the magistrate and the description of "supporting documents" in sub-s (3). The "offence" referred to in sub-s (2)(a) is the offence referred to in sub-s (1), namely, "the extradition offence or extradition offences for which surrender of the person is sought by the extradition country". Given that the person is an extraditable person, "the offence" in s 19(2)(a) must be taken to be either an offence "that the person is accused of having committed" or an offence of which the "person has been convicted". (Emphasis added) In this case no question arises as to whether the magistrate was in error in being satisfied as to any of the matters set out under s 19(1) or (2) of the Act. The issue is whether Article 2 para 5 of the Treaty operates upon s 19(1) so as to require the magistrate to consider whether, as a matter of law, the offence, namely the alleged war crime, was an extradition offence within the meaning of the Act. In my opinion the reasoning in Kainhofer is apt to the present case. The opinion of Attorney-General, necessarily formed under s 16(2)(a)(i) of the Act and prior to giving the Notice under s 16(1), that the applicant is an "extraditable person" is not reviewable under s 19 by the magistrate. Neither, in my view, is the related opinion of the Attorney-General reviewable that the offence articulated in the extradition request is an "extradition offence" for the purposes of the Act. Before forming the opinion that a person is an "extraditable person" the Attorney-General, by reason of s 6(b) of the Act must be satisfied that the offence is an "extradition offence". Furthermore and for the particular purposes of s 19 of the Act "extradition offence" referred to there is, by virtue of s 10(4) of the Act, the extradition offence to which the notice relates. Section 10(4) provides: A reference in this Act to an extradition offence for which surrender of a person is sought by an extradition country is, in relation to a time after the Attorney-General has given a notice under subsection 16(1) in relation to the person, a reference to any extradition offence to which the notice (including the notice as amended) relates. The Notice in this case expresses the extradition offence to be the alleged war crime.