Case: Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477
Outcome: cited
The argument proceeded as follows: (1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") which provided that " the Attorney-General may make a requisition to [a foreign state] for the surrender of the person ." Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the " only power " to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487; (2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be: "(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties." (3) consistent with the language adopted by Barwick CJ in Barton , s 40 of the Extradition Act states that: "A request by Australia for the surrender of a person from a country ... in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General ." (Emphasis added.) (4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act , the Explanatory Memorandum states at 41: "This clause makes it clear that the only way in which extradition can be requested by Australia ...is by or with the authority of the Attorney-General ...." (5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 305 (per Gibbs CJ); (6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134]; (7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General: "Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. " (Emphasis added.) 18 The Executive Government is established by Ch 2 of the Constitution . By virtue of s 61 of the Constitution , the executive power of the Commonwealth extends to the " execution and maintenance of [the] Constitution , and of the laws of the Commonwealth. " As Latham CJ said in R v Burgess; ex parte Henry [1936] HCA 52 ; (1936) 55 CLR 608 at 643 644 cited by Mason J in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477 at 498: "The execution and maintenance of the Constitution , particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane." 19 A request to a foreign state for the surrender of a person convicted of, or alleged to have committed, an offence against the laws of Australia is within the sphere of executive power: Barton at 484 - 485 (Barwick CJ), at 491 (McTiernan and Menzies JJ), at 498 (Mason J) and at 505 (Jacobs J). While it is now accepted that legislative power has abrogated executive power in respect of the extradition of persons from Australia (see s 3(a) of the Extradition Act which purports to " codify the law relating to the extradition of persons from Australia... "), requests for the return of fugitives to Australia remains an exercise of executive power. This power cannot be displaced except by a clear and unambiguous legislative provision to the contrary. Part IV of the Extradition Act does not displace or even attempt to displace the executive power to seek the return of fugitives to Australia: Oates at [32] to [35], [38] and [39] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) and Barton at 491 (McTiernan and Menzies JJ), at 501 (Mason J) and at 508 (Jacobs J); cf Barton at 488 (Barwick CJ). 20 Consistent with that principle, s 40 of the Extradition Act is not expressed as a source of power. It properly assumes that the power to make a request to a foreign state is vested in the executive: see Truong v R [2004] HCA 10 ; (2004) 223 CLR 122 at [80] ; Oates at [29] and [39]; Barton at 484 (Barwick CJ), 490 491 (McTiernan and Menzies JJ), 498 499 (Mason J), 505 508 (Jacobs J); see also Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth) at 41.