mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Andrews v Howell [1941] HCA 20 ; (1941) 65 CLR 255
Outcome: applied
The principle upon which those decisions proceeded was an application of provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth). These evince a legislative intention to preserve the validity of so much of an enactment, action or instrument authorised by law as would be supported by use of the power relied upon, notwithstanding that some other part of the enactment, action or instrument in question has been found to be beyond the power relied upon for its making. Thus, s 46(2) provides that if any instrument, such as a notice under s 16(1) of the Extradition Act , made pursuant to an enactment would be construed as being in excess of the authority's power, '... it is to be taken to be a valid instrument to the extent to which it is not in excess of that power'. A search warrant has been held to be such an instrument, as McHugh JA pointed out in Peters 16 NSWLR at 41E. Accordingly, he held that the search warrants in that case were to be read and construed, to the extent that they could be read, as valid instruments. He applied what Dixon J had said in Andrews v Howell [1941] HCA 20 ; (1941) 65 CLR 255 at 281 in relation to ss 15A and 46 of the Acts Interpretation Act . A notice under s 16 of the Act is also such an instrument. 85 In Andrews 65 CLR at 281 Dixon J said such provisions imposed a burden upon those attacking an entire regulation, part of which was bad, to establish that if the regulation were confined within the limits of the power, the result would be, not a partial application of the law, but a different provision. Alternatively, the attacker had to establish that it was the intention of the Act or Regulation which authorised the making of an instrument, that unless the instrument received its full intended operation, it should not operate at all. 185 Mere proof of the absence of power to make part of a notice would not necessarily result in the balance being invalid. This is because s 46(2) of the Acts Interpretation Act deems the balance to be valid unless, as Dixon J explained in Andrews v Howell 65 CLR at 281, Mr Tervonen showed that the balance was not intended to operate in the absence of the invalid portions.
Case: Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969
Outcome: considered
In Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 Lord Mansfield CJ observed, in a passage approved in Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and in Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439 at 454 [36] per Gleeson CJ, Gummow and Callinan JJ with whom Hayne J generally agreed at 477 [107]: 'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.'
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336
Outcome: considered
In these proceedings, the civil onus of proof on the balance of probabilities applies under s 140 of the Evidence Act 1995 (Cth). That requires the Court to be satisfied on the balance of probabilities of the occurrence or existence of a fact. The Court makes such a finding based on its reasonable satisfaction that the allegation has been established by the evidence, as Dixon J explained in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-363; see too Cassell 201 CLR at 193 [18] per Gleeson CJ, Gaudron, McHugh and Gummow JJ. 188 While Mr Tervonen has the onus of establishing his case, the Minister has gone into evidence by adducing part, and withholding part, of the material before him. The Minister consciously waived privilege on portions of that material on a number of occasions during the hearing. Mr Tervonen could not lead evidence of what remained in the privileged material which the Minister chose not to put before the Court. However, that material which the Minister did choose to put before the Court leaves uncertain whether he addressed the correct question, namely whether the whole of the material enabled him to form the opinion required by s 16(2)(a)(ii) on the paragraph in the notice, or at least so many of them as might have been valid, had he turned his mind to them.
Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: considered
In Williams 157 FCR at 296 [40] the Full Court observed that cases such a Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276, Avon Downs v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J identified two relevant principles upon which the Court may examine, on judicial review, the validity of a notice under s 16 of the Extradition Act . They said that the Court could examine whether the decision-maker had or had not taken relevant, and only relevant, matters into account. If that examination resulted in a conclusion that the material relied on by the Minister was open to be considered, '... there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process'. That basis involved whether the decision-maker acted in good faith and had not acted merely arbitrarily or capriciously: Buck 135 CLR at 118-119 per Gibbs J.
Case: Coco v The Queen [1994] HCA 15 ; (1994) 179 CLR 427
Outcome: cited
In Coco v The Queen [1994] HCA 15 ; (1994) 179 CLR 427 at 442-443 Mason CJ, Brennan, Gaudron and McHugh JJ rejected an argument concerning the severability of a warrant that had been issued by a judge whom, they held, had misapprehended the power which the statute conferred. Their Honours held that the judge had purported to exercise a power different from the power reposed in him. 100 The filter which the Parliament intended be applied to extradition requests under s 16 was the formation of a genuine and real opinion by the Attorney-General, or other Minister exercising the power to give a notice under s 16(1). A notice under s 16 provides a lawful authorisation for the continuing detention of a person pursuant to the operation of s 17 of the Act. The Court should not impute to the Parliament an intention to authorise interference with the fundamental right to liberty where it does not appear that the Attorney-General or Minister actually turned his or her mind to the question s 16(2) requires be addressed: Coco 179 CLR at 537; see too Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ.
Case: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31
Outcome: cited
This passage highlights the necessity that the facts must be stated in such a way that the Minister can be satisfied that the particular conduct, being acts or omissions of the person whose extradition is sought, would have been sufficient to constitute an extradition offence in relation to Australia. Dixon J explained that a prosecutor must identify not only the legal nature of the offence with which a defendant is charged, but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller 59 CLR at 489-490; see too John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ; see Williams 157 FCR at 298 [50]. The position is similar in respect of European arrest warrants: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at 52 [48] per Lord Hope of Craighead with whom the rest of the House agreed on this issue: see at 39 [2], 58-59 [71], 59 [72], 61 [82].
Case: Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528
Outcome: cited
In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word 'accused' in s 6(a)(i) of the Act, noting: 'It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.' 39 The Attorney-General cannot be expected to be an expert in foreign law: Williams 157 FCR at 298 [49]. Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer [1995] HCA 35 ; 185 CLR 528, illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. 42 Each warrant, on its face, was termed a 'warrant'. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer 185 CLR at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i). 43 Senator Johnston had Finland's request for extradition before him. Finland stated there that it sought Mr Tervonen's extradition 'on the basis of the offences detailed in the appended warrants for arrest, for pre-trial investigation and prosecution'. Finland provided supplementary information dated 14 August 2006 in support of the request for extradition. That was also before Senator Johnston. It stated that 'Tervonen's offences are white-collar crime of which it is very hard to get unambiguous evidence and for which trials many times take weeks. At this stage of the procedure and investigations the information provided is as detailed as possible'. 44 This material provided an additional basis why it was open to Senator Johnston to form the opinion that Mr Tervonen was an extraditable person under s 16(2)(a)(i). I am of opinion that it was open to him to have formed that opinion.
Case: Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575
Outcome: cited
In order to determine whether relief would be futile for this reason, it is necessary to examine the consequence of any finding that Senator Ellison's s 16 notice was wholly or partly invalid. In Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575 at 578 [13] Wilcox, Whitlam and Moore JJ held that once a notice under s 16 was given, it could not be withdrawn. In arriving at that result they relied upon the existence of the Attorney-General's power under s 17(1) to cause a person's remand to cease after a s 16 notice had been issued in the event that the Attorney-General did not wish that proceedings under s 19 commence ( Dutton 92 FCR at 578 [12]). 186 But the problem here is different. It is clear that Senator Johnston intended to make an amendment to the number of offences for which Mr Tervonen could be eligible for extradition to Finland by adding the 7 offences the subject of pars (57) and (58). However, the selective revelation of his legal advice leaves an open question as to what power Senator Johnston actually exercised. I infer that Senator Johnston did not intend wholly to replace Senator Ellison's s 16 notice. Had that been his intention he would have not have headed the notice as ' Amended Notice of Receipt of Extradition Request '. Rather he would have had to state that a new notice was being given because the old one was wholly invalid. That would reflect the result of the decision of the Full Court of this Court in Dutton 92 FCR at 578 [12]-[13], that once a (valid) s 16 notice has been issued, it cannot be withdrawn.
Case: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104
Outcome: referred to
It is important to bear in mind that in determining whether a notice given by the Attorney-General or Minister is wholly or partly valid for the purposes of s 16 of the Extradition Act , one of the significant effects of the notice is that it will authorise the detention in custody of the person who is its subject: Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ. In George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ noted that a search warrant authorised an invasion of premises without the consent of the persons in lawful possession or occupation. They said that the validity of such a warrant was necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the Court noted that the legislature had sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions to his privacy and property. They noted that in enacting the section authorising the issue of search warrants, the Queensland legislature had given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. However, the Court pointed out that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions. They then discussed the exceptions which many State and Commonwealth statutes had made to the common law position. They said ( George 170 CLR at 110-111): 'Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.' 94 In George v Rockett 170 CLR at 111 the Court considered the function of a justice in issuing a search warrant. The terms of the statute were that it had to 'appear to the justice' that certain conditions existed. The Court held that this imposed on the decision-maker the duty of satisfying himself or herself that the conditions for the issue of the warrant were fulfilled.
Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: cited
Senator Johnston did not give evidence as to what he took into account or what he addressed. He could have done so, notwithstanding that for a Minister to give evidence would have been unusual. Such evidence may have clarified what Senator Johnston did. A busy Minister may have some difficulty, even after only one or two months, in recalling precisely what decision-making process he or she undertook in a portfolio requiring a number of individual decisions on a daily basis. I infer that Senator Johnston could not have clarified the actual question he addressed in signing the s 16 notice by any evidence he may have given: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. 202 The material provided by Finland in support of its extradition request covered over 270 pages. In addition to that material, the CDPP's advice was a further 22 pages long and the ministerial briefing papers comprised over 20 more pages. It is a difficult task to analyse all of that material and form a view in respect of each of the items in Senator Johnston's s 16 notice. There was no attempt in the material before the Minister to correlate paragraphs in the then draft s 16 notice with any portion of the vast amount of documentary material before him. That material can be pieced together, with considerable patience, by using the CDPP's advice, considering each individual warrant, then working out which of the charges the CDPP found could have dual criminality and what portions in the voluminous material supported them. It is difficult to imagine that a busy Minister would have had the time to engage in such a perplexing task with such disordered material, especially when his senior advisers had recommended, and the CDPP had told him it was in order for, him to sign the amended notice. It was a task which counsel for the parties essayed, somewhat summarily, for the purposes of the hearing. Each prepared tables referring to parts of the evidence which were said to relate to particular paragraphs in the s 16 notice. But there was only brief reference in argument to the detail of the material and how it supported or failed to support each paragraph in the s 16 notice based on warrant 5. 203 The Minister relied on the terms of Senator Johnston's s 16 notice and, particularly, its preface, which reads: 'To a magistrate before whom the person named in this notice is brought: I, David Albert Lloyd Johnston, Minister for Justice and Customs of the Commonwealth of Australia, under subsection 16(1) of the Extradition Act 1988 , state that an extradition request has been received from Finland, an extradition country, in relation to Jan Atso Tervonen for the following extradition offences: ...'
Case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Outcome: applied
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E Lord Wilberforce construed a statutory power in the 'subjective form' - 'if the Secretary of State is satisfied' - as raising two matters capable of review by the Court. First, where a judgment is to be made by the repository of a power, if the statute requires there to be some facts upon which the judgment is to be exercised, the Court may enquire into whether those facts exist. The evaluation of the facts is for the repository of the power alone, but his Lordship continued: '... the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge ...' (See too Attorney-General v Reynolds [1980] AC 637 at 657G-659C per Lord Salmon giving the advice of the Judicial Committee.)
Case: Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206
Outcome: cited
The danger in the Courts being more executive-minded than the executive was highlighted by Lord Atkin's famous dissent in Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206 at 244. 104 In exercising his power under s 16(1) to give the notice, Senator Ellison asked himself the wrong question, namely whether his advisors considered that the notice should be issued and were satisfied of any matters which the statute required, including the formation of an opinion as to dual criminality under s 16(2)(a)(ii). The qualification on the Attorney-General's power to issue a notice under s 16(1) imposed by the requirement of the formation of the various opinions under s 16(2) is an important safeguard for the person whose extradition is sought. If in truth the Attorney-General, or Minister exercising the power in s 16(1) to give a notice, does not address for himself or herself the formation of the opinions on a proper factual basis under s 16(2) then the function of giving the notice has not been fulfilled in accordance with the Act. 105 I am of opinion that Senator Ellison did not consider whether Mr Tervonen's acts or omissions or equivalent conduct, had it taken place in Australia at the time at which the extradition request was received, would have constituted an extradition offence in relation to Australia. Rather, he accepted the opinions of others without examining the facts upon which those opinions were based. This was not a performance of his statutory function in accordance with law. The whole of Senator Ellison's s 16 notice was invalid.
Case: Love v Attorney-General (NSW) [1990] HCA 4 ; (1990) 169 CLR 307
Outcome: discussed
When Peters 16 NSWLR 24 was affirmed in Love v Attorney-General (NSW) [1990] HCA 4 ; (1990) 169 CLR 307 the issue of severance of the warrants was put to one side. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that it was clear that a warrant could, and had, to be construed so as not to do what the statute under which it was authorised itself did not purport to do. They held a State statute did not purport to authorise a breach of a federal law, s 219B of the Customs Act 1901 (Cth). They found that the warrants in that case were wholly valid ( Love 169 CLR at 323).
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: considered
In Williams 157 FCR at 296 [40] the Full Court observed that cases such a Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276, Avon Downs v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J identified two relevant principles upon which the Court may examine, on judicial review, the validity of a notice under s 16 of the Extradition Act . They said that the Court could examine whether the decision-maker had or had not taken relevant, and only relevant, matters into account. If that examination resulted in a conclusion that the material relied on by the Minister was open to be considered, '... there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process'. That basis involved whether the decision-maker acted in good faith and had not acted merely arbitrarily or capriciously: Buck 135 CLR at 118-119 per Gibbs J.