mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Minister for Immigration v Bhardwaj (2002) 209 CLR 59
Outcome: cited
Importantly, s 16(3) contemplates that the Attorney-General may give a notice before an individual has been remanded under s 15. So, Senator Johnston had power to give a fresh s 16(1) notice when he did, even though Mr Tervonen was not then held on remand pursuant to s 15 because any reasonable time under s 17(2) for giving a notice after 18 August 2006 had long since expired and, in any event, no attempt had been made to seek such an extension from a magistrate. That is, even though Mr Tervonen was not being held in custody under s 15, and his detention was unlawful, the Act did not operate to deprive Senator Johnston of the power to give a fresh s 16(1) notice. That is because the power to issue a notice under s 16(1) had not been exercised validly, and thus at all, before then: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. Senator Ellison's s 16 notice was affected by jurisdictional error and was '... no decision at all': Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 197 Where an administrative decision-maker realises that he, she or it has made a jurisdictional error in an earlier purported 'decision' so that the statutory function was never, in fact, performed, he, she or it can consider the matter afresh, unless the legislative regime prevents that occurring: Bhardwaj 209 CLR at 603-604 [5]-[8] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 619 [67] per McHugh J, 644-645 [149] per Hayne J, 649-650 [163]-[165] per Callinan J.
Case: Peters v Attorney-General (NSW) (1988) 16 NSWLR 24
Outcome: distinguished
The Minister relied on authorities on severance of portions of search warrants in support of his argument that the invalid portions should be severed from Senator Ellison's s 16 notice. There, courts have held that it is possible to sever those parts of a warrant which were issued in excess of power: see per McHugh JA in Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 41D-42B and per Hely J in Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 210-211 [151] . 84 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. 87 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: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 47
Outcome: cited
Importantly, s 16(3) contemplates that the Attorney-General may give a notice before an individual has been remanded under s 15. So, Senator Johnston had power to give a fresh s 16(1) notice when he did, even though Mr Tervonen was not then held on remand pursuant to s 15 because any reasonable time under s 17(2) for giving a notice after 18 August 2006 had long since expired and, in any event, no attempt had been made to seek such an extension from a magistrate. That is, even though Mr Tervonen was not being held in custody under s 15, and his detention was unlawful, the Act did not operate to deprive Senator Johnston of the power to give a fresh s 16(1) notice. That is because the power to issue a notice under s 16(1) had not been exercised validly, and thus at all, before then: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. Senator Ellison's s 16 notice was affected by jurisdictional error and was '... no decision at all': Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
Case: Re Patterson; Ex parte Taylor (2001) 207 CLR 39
Outcome: cited
It follows that Senator Johnston was authorised to administer the provisions of the Extradition Act by force of s 19A(1) of the Acts Interpretation Act : Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 at 403 [17] - [18] per Gleeson CJ, 416 [67]-[68] per Gaudron J, 451-452 [182]-[187] per Gummow and Hayne JJ, 497-500 [319]-[325] per Kirby J, 519 [380] per Callinan J. He had power to act as the Attorney-General for the purposes of the Extradition Act in circumstances of the present matter. 131 During the course of the hearing before me privilege was waived, in stages, on a number of different portions of the material before Senator Johnston. As privilege was waived, a greater appreciation of what was before the Minister emerged. First, there was a partial waiver of some of the redacted material in the briefing note and other documents which recorded Senator Johnston's decision of 30 April 2007 to issue the amended s 16 notice. Secondly, Senator Johnston waived privilege that had previously been claimed over the whole of the dual criminality advice provided to him by the CDPP. Next, some further material was revealed in the decision record of 30 April 2007. Lastly, the departmental advice to Senator Johnston about the reconditions for the issue of the s 16 notice was completely revealed. 132 Mr Tervonen argued that pars (24)-(52) and (57)-(58) of Senator Johnston's s 16 notice had been founded on warrant 5. He complained that these paragraphs in the s 16 notice were deficient on two bases: (1) As to pars (24)-(27), (30)-(32), (34), (37)-(39), (41), (42), (44), (45), (49), (50), (57) and (58) Mr Tervonen said that these paragraphs, superficially, appear to relate to the material before the Minister, but the dates of the acts or omissions in that material and the notice do not relate to the dates in warrant 5. Accordingly, that disconformity, if established, renders at least those paragraphs in the s 16 notice bad. (2) As to pars (24)-(52), (57) and (58) Mr Tervonen argued that pars 28, 29, 33, 35, 36, 40, 43, 46-48, 51 and 52 as well as those in (1) above were not based on sufficient material identifying Mr Tervonen's alleged acts or omissions.
Case: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014
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: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: applied
In The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22 ; (1953) 88 CLR 100 at 119-120 per Dixon CJ, Williams, Webb and Fullagar JJ referred to the important distinction between a mere insufficiency of evidence or other materials to support a conclusion of fact when the function of finding the fact has been committed to a person or body by the Parliament and, on the other hand, the absence of any foundation in fact for the fulfilment of the conditions upon which, in point of law, the existence of the power depends. They said that it was not enough if the repository of the power, properly interpreting the section of the Act under which it was conferred and applying the correct test: '... nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.' 96 While s 46(2) of the Acts Interpretation Act requires the Court to approach the continued operation of an instrument, part of which has been made in excess of power, with a presumption of validity, that does not deny the application of the principle identified in Australian Stevedoring 88 CLR at 119-120. If the Court comes to the conclusion that in truth the power of the Attorney-General to give a notice under s 16(1) of the Extradition Act has not arisen because the conditions for its exercise did not exist in law and in fact, namely, that the opinion had not been formed under s 16(2)(a)(ii) , then s 46(2) of the Acts Interpretation Act will not apply. This is because of the requirement that unless the opinion required by s 16(2)(a)(ii) has been formed by the Attorney-General on a proper basis, the chapeau in s 16(2) provides that he or she shall not give the notice under s 16(1).
Case: Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439
Outcome: cited
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.' 213 I am comfortably satisfied that on the material before me, which it was in the power of the Minister to supplement, had he chosen, by revealing in evidence the redacted portions of the material before him, Senator Johnston failed to discharge the exact function he was required to discharge in accordance with law ( Vetter 202 CLR at 454 [36]). In those circumstances, it would be wrong to sever portions of the instrument based on mere speculation that, despite the errors I have found, and the absence of evidence of what he was told could be invalid in Senator Ellison's notice, the Minister addressed the rest of the amended s 16 notice correctly. He has provided no evidence to support a finding that he did. Rather, I am of opinion that by reason of the jurisdictional and other errors in his failure to address those parts of the amended s 16 notice which I have found to be invalid, and on the evidence before me, Senator Johnston did not form the opinions required by s 16(2)(a)(ii) in respect of any paragraph in the notice. 214 For the reasons that I have given, I am of opinion that Mr Tervonen's challenges have succeeded in substance. In summary, I have formed the preliminary view that, subject to hearing the parties, I should make orders to the effect of: (a) declaring each s 16 notice invalid; (b) quashing each s 16 notice; (c) directing the Minister to issue a notice in statutory form pursuant to s 17(1)(b) of the Act directing a magistrate to order the release of Mr Tervonen from custody; (d) requiring the Minister to pay Mr Tervonen's costs. 215 The parties asked that I provide them with my reasons and an opportunity to address the precise form of relief. I will therefore order that the proceedings be stood over for argument on the appropriate relief to give effect to these reasons. I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 6 November 2007 Counsel for the Applicant: DPM Ash (pro bono pursuant to O 80 of the Federal Court Rules) Counsel for the Respondent: KC Morgan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 23, 24 July 2007 Date of Judgment: 6 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1684.html
Case: Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217
Outcome: cited
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: Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175
Outcome: distinguished
The Minister relied on authorities on severance of portions of search warrants in support of his argument that the invalid portions should be severed from Senator Ellison's s 16 notice. There, courts have held that it is possible to sever those parts of a warrant which were issued in excess of power: see per McHugh JA in Peters v Attorney-General (NSW) (1988) 16 NSWLR 24 at 41D-42B and per Hely J in Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at 210-211 [151] .
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
There is no explanation of how Mr Tervonen, when he was in jail between April and August 2004, aided, abetted, counselled or procured the activities of any of Messrs Siira, Raappana or S&ouml;derqvist. In order to establish Mr Tervonen's liability as a secondary offender in Australia, it was necessary for Senator Johnston to have before him identified conduct of Mr Tervonen which showed his intentional participation in each offence, with knowledge of the essential matters which went to make up that offence: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667 per Mason ACJ, Wilson, Deane and Dawson JJ applying Giorgianni [1985] HCA 29 ; 156 CLR 473. It is here that the material provided by Finland fails to provide a substantive link between the conduct alleged and how Mr Tervonen could be found to have been a secondary offender under the law of New South Wales. This deficiency in the material relied on is accentuated in respect of those offences which occurred while he was in jail between April and August 2004.
Case: Zoeller v Attorney-General (Cth) (1987) 16 FCR 153
Outcome: cited
Under the Extradition (Foreign States) Act 1966 (Cth), there was a similar time limit (of 45 days after arrest) imposed for the giving of a notice by the Attorney-General as is now contained in s 17. Beaumont J held that that time limit under the repealed Act did not prohibit the bringing of multiple, subsequent, applications for extradition: Zoeller v Attorney-General (Cth) (1987) 16 FCR 153 at 162. He suggested that if multiple applications were made a remedy could be sought by the person whose extradition was sought based on the power of the Court to prevent an abuse by the Attorney-General of the exercise of the power. The question presented here is different. There is no suggestion of abuse in Senator Johnston's issuing a new notice. 110 If Senator Ellison's notice could not be withdrawn, then its status at the time Senator Johnston gave his s 16 notice must be determined. If Senator Ellison's notice were wholly or partly valid, Senator Johnston would have power to amend it pursuant to s 10(4). But if Senator Ellison's s 16 notice were wholly invalid, the question arises as to Senator Johnston's power to issue an amended or a fresh notice in circumstances where Mr Tervonen would have been held in custody without the lawful authority of an existing and valid s 16 notice. To that matter I now turn.
Case: SZIYV v Minister for Immigration [2006] FMCA 1621
Outcome: affirmed
This is an appeal from the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister to refuse the appellants' protection visas. The appellants are brother and sister. They are Indonesian citizens of Chinese origin and Christians. They claimed a well-founded fear of persecution in Indonesia on the grounds of their race and religion. Details of their claims and the Tribunal's consideration of their claims are set out fully in the decision of the Federal Magistrates' Court: SZIYV v Minister for Immigration and Multicultural Affairs [2006] FMCA 1621. 2 Their grounds of review before the magistrate were as follows: 1. They were denied procedural fairness in connection with the making of the decision. 2. That a breach of the rules of natural justice occurred in connection with the making of the decision. 3. They feared returning to Indonesian because they were ethnic Chinese and Christians.
Case: Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133
Outcome: cited
In the circumstances of this matter the maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ought be applied here. That maxim can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers. ( Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 at 216 [228] - [230] per McHugh J; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 283 per Windeyer J; Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983 per Griffith CJ; In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 at 544 per James LJ applied by McTiernan J in The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312 at 317).
Case: Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262
Outcome: cited
In the circumstances of this matter the maxim of interpretation chartarum benigne faciende est ut res magis valeat quam pereat ought be applied here. That maxim can be of assistance where an instrument, be it legislative, administrative or a document inter partes, is open to two interpretations, one of which would make the instrument effectual in law, and the other would make it ineffectual. The rationale behind the principle rests on the presumed intent of the person or body promulgating the instrument to create a valid instrument. Where what is done is the exercise of a power, the presumption is that the body intends to act within, not outside, its powers. ( Airservices Australia v Canadian Airlines International Ltd [1999] HCA 62 ; (2000) 202 CLR 133 at 216 [228] - [230] per McHugh J; Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd [1970] HCA 58 ; (1970) 124 CLR 262 at 283 per Windeyer J; Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 at 983 per Griffith CJ; In re Florence Land and Public Works Company; Ex parte Moor (1878) 10 Ch D 530 at 544 per James LJ applied by McTiernan J in The Queen v Portus; Ex parte City of Perth [1973] HCA 64 ; (1973) 129 CLR 312 at 317).