Case: Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 , 185 CLR 528
Outcome: followed
The Extradition Act 1988 (Cth) sets forth a four stage process for the extradition of a person from Australia. These four stages have been summarised as follows by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389: The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered. In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered. This approach has subsequently been endorsed by Gleeson CJ in Vasiljkovic v Commonwealth [2006] HCA 40 at [29] , [2006] HCA 40 ; 227 CLR 614 and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 , 185 CLR 528 at 547. It has most recently been endorsed by a Full Court of this Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 at [9] per Jacobson, Bennett and Buchanan JJ. 19 The approach urged upon the Court by Mr Karsten, namely an invitation to go behind the face of both the request and (more importantly) the warrant itself is an invitation which should be rejected. Section 16(2) , framed as it is in terms of an " opinion ", should not be construed as requiring the Attorney-General or the Minister to become an expert in foreign law and construed in a manner which has the potential to frustrate the discharge by Australia of its obligations under extradition treaties: Tervonen v Minister for Justice &amp; Customs (No 2) [2007] FCA 1684 , 98 ALD 589. Rares J there observed: [38] 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 v Minister for Justice and Customs [2007] FCAFC 33 ; 157 FCR 286 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 ; (1995) 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. His Honour continued: [40] Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the Court which issued the warrant considered he ought be arrested. ... [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 [1995] HCA 35 ; (1995) 185 CLR 528 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). An appeal from this decision has been allowed in part, although it was not necessary for the Full Court to make any comment in relation to the above observations of the learned trial judge: Minister for Home Affairs v Tervonen [2008] FCAFC 24. See also Cabal v United Mexican States (No 3) [2000] FCA 1204 at [149] and [153], [2000] FCA 1204 ; 186 ALR 188 per French J.