Case: Williams v Minister for Justice and Customs (2007) 157 FCR 28
Outcome: applied
Later in 2006, Mr Tervonen commenced these proceedings, challenging Senator Ellison's notice. I refused interlocutory relief on the basis of Mr Tervonen's challenges, as then formulated by him when he was self-represented: Tervonen v Minister for Justice and Customs [2007] FCA 464. Shortly after I delivered my judgment, the Full Court of this Court handed down its decision in Williams v Minister for Justice and Customs (2007) 157 FCR 286. I then appointed counsel under O 80 of the Federal Court Rules 2001 (Cth) to represent Mr Tervonen on the final hearing. His counsel has reformulated Mr Tervonen's claims. 3 On 30 April 2007, before the date of the final hearing, Senator Ellison's successor in the office of Minister for Justice and Customs, Senator the Honourable David Johnston, signed what was intituled 'Amended Notice of Receipt of Extradition Request' under s 16(1) of the Act. That second s 16 notice was given in respect of all of the original offences in Senator Ellison's notice together with seven further ones identified in its paragraphs (57) and (58). 4 Mr Tervonen has challenged the validity of each s 16 notice. He argued that Senator Ellison's s 16 notice was invalid because: (1) the Minister did not have before him any statement of Mr Tervonen's conduct or his acts or omissions and so Senator Ellison could not form the opinion which s 16(2)(a)(ii) required, viz, that the same, or equivalent conduct, acts or omissions, if committed in Australia, would have constituted an extradition offence in relation to Australia. The material before Senator Ellison was thus said to be so deficient (relying on Williams 157 FCR at 297 [45]) that the Minister could not have formed the opinion which s 16(2)(a)(ii) required; (2) the language of the Finnish warrants on their face was incapable of satisfying the definition of 'extraditable person' in s 6(a)(i) of the Act because they did not, in terms, seek his arrest as a person actually charged or accused of an offence. Rather, they sought his arrest on the basis that they alleged that he was 'suspected with probable cause' of having committed one or a number of offences. Mr Tervonen said that the Minister could not have formed the opinion required under s 16(2)(a)(ii) in the absence of any material before him to establish that the formulation used in each of the Finnish warrants was in fact a warrant within s 6(a)(i); (3) Article 7(2) of the Treaty between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 as amended by Article 3 of the Protocol between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985 contained in Schedule 2 of the Extradition (Finland) Regulations 1988 (Cth) required Finland to accompany its request for his extradition with a statement of each offence for which extradition was sought together with a statement of the acts or omissions which were alleged against Mr Tervonen in respect of each offence. Mr Tervonen argued that because in August 2006 Senator Ellison personally did not have before him all of this material, as required by the treaty, he could not issue the notice. 5 However, Mr Tervonen's principal challenge was against Senator Johnston's s 16 notice. He argued that: (1) Senator Johnston as Minister for Justice and Customs was not able to exercise the statutory powers and functions specifically conferred on the Attorney-General by s 16 of the Act; (2) under the Act it is not open for the Attorney-General, or the Minister administering the Act, to issue a second notice in respect of the same request; (3) the particularisation of his acts and omissions in the material before Senator Johnston relating to pars (24)-(52), (57) and (58) of the second s 16 notice was insufficient to enable the Minister to form the opinion required under s 16(2)(a)(ii), so that the whole notice was invalid or those paragraphs were; (4) the language of the Finnish warrants was incapable of satisfying the statutory definition of 'extraditable person' on the same basis as ground (2) in respect of Senator Ellison's s 16 notice. 6 The Minister argued that Mr Tervonen's challenges should fail and that: &#8226; each notice was valid; &#8226; Senator Ellison's notice was not acted on by the magistrate, and so it was of no present relevance; &#8226; if any deficiency were established in respect of the material before either Minister in relation to particular paragraphs in their s 16 notices, those paragraphs should be severed and the balance of notice(s) would be valid; &#8226; Senator Johnston's s 16 notice was either a validly amended version of his predecessor's notice or a valid, newly made, s 16 notice. 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. 46 However, in Williams at 157 FCR at 296 [42], the Full Court held that Cooper J's approach was incorrect. They held that s 16(2)(a)(ii) of the Act required the Minister to have before him or her a statement of what was alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition was sought: Williams 157 FCR at 297 [45], 298 [49]. In that case the material before the Minister had not included a statement of the elements of the offence in the extradition country. Gyles, Allsop and Buchanan JJ said ( Williams 157 FCR at 298 [50]): 'The opinion which must be held by the Attorney General (or the responsible Minister) under s 16(2)(a)(ii) must relate to, and be based on, actual conduct said to constitute, in a factual sense, the commission of an identified offence. In the present case there was no information before the Minister to furnish that knowledge. Accordingly, the Minister was not in a position to form an opinion about Mr Williams' conduct, whether in reliance on advice or personally, so as to conclude that the requirements of s 16(2)(a)(ii) were met. As a result the opinion was not validly formed.' 51 This offence became the subject of par (1) in Senator Ellison's s 16 notice. The elements of Chapter 36, section 2(1) of the Penal Code were not before the Minister. As the Full Court recognised in Williams 157 FCR at 298 [49], the Attorney-General or responsible Minister cannot be taken to be an expert in the foreign law. Rather, the Minister must be expected to form a view about whether identified acts or omissions (or equivalent conduct) would have constituted an extradition offence in relation to Australia. 52 The allegations concerning Mr Tervonen were set out in the CDPP's advice at a level of generality which did not identify any precise act or omission which Mr Tervonen himself was alleged to have done or omitted to do. Rather, Mr Tervonen and others were alleged to have misled a number of parties. This allegation did not identify what Mr Tervonen, or the others for that matter, did to mislead any person. Next, the CDPP's summary asserted that Mr Tervonen and the others gained control of a company in circumstances where its managing director was said not to have control over it. 53 The CDPP's advice did not put before Senator Ellison any act or omission of Mr Tervonen relating to: &#8226; his or 'the others' gaining control over the company or overriding its director; &#8226; why the director 'in reality did not have control over the company'; &#8226; the opening of accounts 'with an overdraft facility with several suppliers and service providers'; &#8226; what an 'overdraft facility' was or how it was operated on for that purpose; &#8226; how the goods and services were ordered from the supplier companies 'using the name' of the director. 57 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]. 76 The CDPP's consideration of offences 48, 49 and 50 in warrant 5 was confined simply to setting out a number for each of the offences, describing it in a general way and referring to the section of the Finnish statute to which the numbered offence related. There was no information whatsoever provided about the registration offences, let alone the conduct of Mr Tervonen alleged to give rise to them. The Minister had no information about any conduct of Mr Tervonen in respect of offences 48, 49 and 50 on which to form the opinion required in s 16(2)(a)(ii) to justify him signing the s 16 notice based on this material: Williams 157 FCR at 296-297 [45], 298 [50]. Other offences were included in Senator Ellison's notice, such as aggravated fraud and aggravated forgery (pars (46) and (47)) without any discussion about what the conduct was. The Minister formally conceded that pars (34)-(52) of Senator Ellison's s 16 notice should be severed from his notice. This concession was said to be made because the Minister did not have sufficient material before him to enable him to form the opinion required by s 16(2)(a)(ii) in respect of pars (34)-(52). It was correctly made. 77 Warrant 8 asserted that Mr Tervonen was suspected 'with probable cause' of the following criminal act: 'Aggravated dishonesty by a debtor, 25 June 2001 to 5 July 2001, Helsinki.' Warrant 8 stated that the grounds on which that charge was based were detailed in an appended claim for arrest, but no such claim for arrest was included in the material before Senator Ellison. 78 The CDPP's advice discussed this count, which became the subject of par (56) of Senator Ellison's notice, as follows: ' Offence 1 Aggravated Dishonesty by a Debtor Chapter 39, section 1a, Penal Code 125. If it is accepted that Tervonen was an officer of the company within the meaning of the Corporations Act 2001 (Cth) , his conduct may amount to an offence of an officer dishonestly using his position with the intention of directly or indirectly gaining an advantage for themselves or someone else, or causing a detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. 126. The maximum penalty for an offence against section 184(1) or section 184(2) the Corporations Act 2001 (Cth) , is imprisonment for 5 years (Schedule 3, Item 30).' (emphasis added) 89 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. 98 I am of opinion that Senator Ellison, likewise, purported to exercise a power different from that which the statute reposed in him. Had Senator Ellison approached the function of forming the opinion required by s 16(2)(a)(ii) in accordance with law (as it had subsequently been declared in Williams 157 FCR 286), he would have noticed the deficiencies in the material before him. He would then have considered that many of the proposed paragraphs of the draft notice which he signed were not justified. I am satisfied that he did not consider the material before him in the way in which s 16(2) required. Rather, the inference which I am satisfied should be drawn is that Senator Ellison deferred to or accepted the opinion of the CDPP without himself considering any of the conduct alleged against Mr Tervonen for the purposes of s 16(2)(a)(ii). Senator Ellison simply accepted the CDPP's advice as authorising him to sign the s 16(1) notice. 99 While I have found that Senator Ellison erred in his approach, that error was understandable. I am not intending to criticise him in these reasons. He did not have the benefit of the decision, given months later, in Williams 157 FCR 286, but he acted on the then state of the law as interpreted by Cooper J in Foster 97 A Crim R 560; 158 ALR 394. 102 Moreover, I am unable to conclude that Senator Ellison applied the correct test in considering those parts of the s 16 notice which were supportable on the material before him. There is no basis to think he applied two different tests, the correct one to the material in the CDPP's advice which contained sufficient acts and omissions of Mr Tervonen to justify one or more paragraphs in the draft notice, and the incorrect one to the balance. That would be irrational. The Minister simply did not apply the right test of forming his own opinion on the manner laid down in Williams 157 FCR 286. Thus, the whole notice was invalid and there was nothing on which s 46(2) of the Acts Interpretation Act could operate. 107 If Senator Ellison's s 16 notice were invalid, Mr Tervonen argued that then Senator Johnston had no power to issue his s 16 notice. The Minister's principal submission was that it would be futile to grant relief in respect of Senator Ellison's s 16 notice because the proceedings for Mr Tervonen's s 19 hearing had been taken on Senator Johnston's s 16 notice: see Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at 194 [48] per Besanko J, with whom Moore and Buchanan JJ agreed. 111 At no time after Senator Ellison's s 16 notice was issued was the process contemplated by s 17 of the Extradition Act followed. That is hardly surprising since, at least until the decision in Williams 157 FCR 286, no-one would have considered that Senator Ellison's s 16 notice was invalid. However, it was. Thus, no s 16(1) notice had been given by the Attorney-General or Senator Ellison in the 45 day period following Mr Tervonen's remand under s 15. Therefore, s 17(2) required that Mr Tervonen be brought before a magistrate who could exercise the power to continue his remand during a period which he or she considered in all the circumstances to be reasonable for the giving of a notice under s 16 or to order Mr Tervonen's release. But that did not happen. The consequence is that no magistrate ever exercised any power under s 17(2) as the Act required. And s 17(3) required that if a s 16(1) notice was not given within the 45 day period, or a further extended period, under s 17(2), the magistrate must order the release of a person who was Mr Tervonen. 112 The language in which ss 17(2) and (3) are cast is in imperative terms. The object of those sections is to protect an individual who has been arrested and placed on remand in custody or on bail under s 15 pursuant to a warrant issued by a magistrate by the request of an extradition country. The purpose of the remand authorised by s 15 is to afford a limited period in which proper material can be placed before the Attorney-General so that he or she can determine whether to issue a notice under s 16(1). The Parliament has prescribed substantial limitations on the ability of an extradition country or the Attorney-General to delay the taking of steps to give a notice under s 16(1), should that course be pursued. 113 The process contemplated under ss 12 and 15 of a remand in custody or, in special circumstances, on bail (s 15(6)), involves an interference with the liberty of an individual who may be a subject or citizen of Australia or an alien. Executive interference with the liberty of an individual has always been jealously scrutinised by the Courts. There is a legislative intent evinced in s 17 that this should remain so for the purposes of the Extradition Act . Thus, if the magistrate is satisfied that a notice under s 16(1) is likely to be given within a particular period that is reasonable in all the circumstances, he or she is given authority to extend the time of the remand beyond 45 days. But, if the magistrate is not so satisfied, or if the period he or she allowed expires, the individual must be released from custody or discharged from any recognisances on which bail was granted to him or her (ss 17(2) and (3)). 117 But, when those advising Senator Johnston appreciated that a consequence of Williams 157 FCR 286 (which was decided on 22 March 2007) may be that Senator Ellison's s 16 notice was wholly invalid, Senator Johnston should have caused Finland to be notified so that it could decide whether to seek to have a fresh warrant issued for the arrest of Mr Tervonen so that he could be brought before a magistrate under s 12. Instead, Senator Johnston proceeded as if Mr Tervonen were lawfully on remand under s 15. 118 The First Assistant Secretary, International Crime Corporation Division, provided a memorandum to Senator Johnston on 27 April 2007. In the final but still partly redacted version of that memorandum which was tendered in evidence, the Minister was told that the deadline for consideration of the s 16 notice which he was to sign was 'as soon as possible' and that his office was aware of the urgency associated with the matter. He was told that there was a risk that the existing s 16 notice issued may be found to be partly invalid. So far as appears from the unredacted portions of this memorandum, the Minister was not made aware of the possibility that the notice might be, as I have found, wholly invalid. 119 The consequence of partial invalidity would have been that any remaining valid portions of the notice would have supported Mr Tervonen's continuing detention on remand under s 15. The memorandum informed Senator Johnston that it was arguable, in light of the decision in Williams 157 FCR 286, that: &#8226; the submission provided to Senator Ellison did not provide a sufficient description of the conduct 'constituting some of the offences for which Mr Tervonen's extradition was sought to enable the Minister to form the requisite opinion under subparagraph 16(2)(a)(ii)' (emphasis added); &#8226; as a result there was a risk that the existing notice might be found to be partly invalid; &#8226; there were also 7 additional offences referred to in pars (57) and (58) of the proposed draft notice; &#8226; the action required by him was to issue an amended s 16 notice; and &#8226; the extradition proceedings under s 19 were listed for hearing on 8 May 2007. 120 Accordingly, on the evidence before me, Senator Johnston was not aware of the possibility that Senator Ellison's s 16 notice was wholly invalid and that if it were it may have affected the obligations of Finland or Senator Johnston to bring Mr Tervonen before a magistrate. Nor does the evidence reveal which portion or portions of Senator Ellison's notice Senator Johnston was informed might be invalid. 121 What, then, is the status of Senator Johnston's s 16 notice in those circumstances? 170 The concrete exercise required by s 16 ( Truong 223 CLR at 142 [29]) required Senator Johnston to consider the actual conduct alleged against Mr Tervonen before he could form any opinion about the matters in warrant 5. Apart from the above offences in relation to Ms Lindholm, the actual conduct alleged against Mr Tervonen in the material before Senator Johnston was at too great a level of generality, or even abstraction, to enable him to form an opinion which satisfied the requirements of s 16(2)(a) of the Act and Art 7(2)(a) of the treaty. As the Full Court pointed out in Williams 157 FCR at 297 [45], what was required was 'a statement of what is alleged to have been actually done or omitted'. The material before Senator Johnston failed to identify what Mr Tervonen was alleged actually to have done or omitted to do in a manner which would enable the identification of any part of his conduct as amounting to an equivalent offence in New South Wales had he done or omitted to do those or some of those things in that State. 192 The First Assistant Secretary suggested, at one point, to Senator Johnston that he issue an amended s 16 notice. The Minister was told that, having regard to the decision in Williams 157 FCR 286, the CDPP provided further advice adding an additional 7 offences set out in pars (57) and (58). And, the First Assistant Secretary's advice also informed Senator Johnston that he had to consider each of the offences in the draft notice and determine whether he was of the opinions in s 16(2)(a)(i) and (ii). The First Assistant Secretary's briefing note then discussed some matters covering almost a page which were redacted for reasons of legal professional privilege and continued by recommending that he: '... issue a new section 16 notice ... [redactions made] ... &#8226; [redaction made] &#8226; to ensure that the additional (seven) extradition offences [redaction made] are put before the Magistrate for the purposes of his determination under section 19 Extradition Act ...' 193 The Minister was then informed that the Department considered the requirements of s 16 of the Extradition Act and Article 7 of the treaty had '... been met for the offences listed in the attached fresh section 16 notice' (emphasis added). 194 During the hearing, the parties' arguments changed from the positions taken in written submissions because more material was revealed from portions of the briefing material given to Senator Johnston after legal professional privilege was partially waived. Ultimately, Senator Johnston's attention was directed to the CDPP's fresh advice and he was informed: 'Taking into account the CDPP advice in relation to the conduct set out in the extradition request from Finland (including the supplementary documentation provided in support of the request), you may be of the opinion that if Mr Tervonen had engaged in conduct constituting the Finnish offences listed in the section 16 notice in New South Wales at the time the extradition request was received (August 2006), that conduct would have constituted extradition offences in relation to Australia.' 198 Senator Johnston did not give a fresh s 16 notice. By its very terms, his was an 'Amended Notice'. Thus, he may have proceeded on the basis that there was a risk some of Senator Ellison's s 16 notice was invalid or affected by jurisdictional error of the kind identified in Williams 157 FCR 286. But there is no basis in the evidence before me to suggest that Senator Johnston approached the matter completely afresh. I am not prepared to draw an inference that he did, on the incomplete material in evidence and the failure of the Minister to give any direct evidence of his decision-making. 199 What task Senator Johnston did undertake? Did he simply consider pars (57) and (58), being the amendments to the notice? Or, did he consider the whole of the notice afresh together with all of the material before him so as to come to the requisite opinion under s 16(2)(a)(i) and (ii) in respect of every single paragraph in the s 16 notice which he signed? 200 It is not uncommon when an amendment is made for the person making it to review the whole document, as amended, for the purposes of seeing that it then, as a whole, reflects that person's intentions or objectives. Thus, it is conceivable that Senator Johnston read all the material and satisfied himself that it was appropriate to sign the document in its totality, rather than merely focusing on two additional paragraphs that he had been advised to add. The evidence before me does not disclose what portions of Senator Ellison's notice Senator Johnston was told may have been susceptible to being found to be invalid. It is not possible for me to assess whether Senator Johnston looked at any particular paragraphs to address that question. There is no doubt that he had all of the material before him which had been provided by Finland and was aware of the risk that some, but not all, of the earlier s 16 notice might be invalid. 208 The Minister chose to tender selected portions of the material before him, while retaining claims for legal professional privilege on other portions. The portions on which privilege claims were maintained could have made clear the question which the Minister may have addressed having regard to the effect of the decision in Williams 157 FCR 286 in respect of some portion or portions of Senator Ellison's s 16 notice that may have been invalid. However, the Minister has not proved whether he had regard afresh to any particular part or parts of Senator Ellison's notice for the purposes of overcoming any perception of invalidity. Accordingly, the evidence is silent on whether the Minister directed his attention to any possible problem with respect to the paragraphs in the notice he ultimately signed which replicated paragraphs in Senator Ellison's notice for which I have held there was material on which he could have formed the opinions required by s 16(2)(a). 210 Here, Senator Johnston could have given a wholly fresh notice under s 16 in the form of the one he did. The provisions of s 46(2) of the Acts Interpretation Act would apply to sever the portions of it relating to warrant 5 which I have found to be invalid, while leaving the balance of the notice valid and operative. But, if in signing the notice he asked himself the wrong question (as his predecessor had recently done in Williams 157 FCR 286) or confined the formation of his opinion under s 16(2)(a)(ii) to pars (57) and (58), then the whole notice would be bad because of jurisdictional error, namely the failure to form the opinions required in accordance with s 16(2)(a)(ii) in respect of any paragraphs other than pars (57) and (58). Nothing in s 46(2) would save it. 211 The only amendment actually made was the addition of pars (57) and (58) and I have held those to be invalid, as I have held the whole of Senator Ellison's s 16 notice to be. The Minister has put forward in submissions a variety of possible matters to which he may have directed himself, none of which identifies, beyond the intention to add pars (57) and (58), what he was actually doing. 212 Senator Johnston addressed whether pars (57) and (58) should be added to the 'amended notice'. But he came to the incorrect conclusion that they should. I am of opinion that he did not consider the whole of the material afresh in such a way as would justify me in severing portions of the notice to preserve its validity. A considerable part of the notice could not have satisfied Senator Johnston had he correctly considered forming an opinion in accordance with s 16(2)(a)(ii). While s 46(2) of the Acts Interpretation Act enables those portions which I have found to be invalid to be severed from the notice, the material in evidence comfortably satisfies me that the Minister was not addressing himself to the correct question when considering the amended notice. As Dixon J said in Avon Downs 78 CLR at 360: 'It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.'