Case: Vasiljkovic v The Commonwealth (2006) 227 CLR 614
Outcome: applied
A principal object of the Act is to codify the law in relation to the extradition of persons from Australia to extradition countries without determining the guilt or innocence of a person whose extradition is sought. A second object is to enable Australia to carry out its obligations under extradition treaties (s 3(a) and (c)). The Act is structured in a way that permits decisions to be taken at a number of points in the extradition process which may halt that process, either in part or entirely. The Act contemplates four stages in the extradition process, namely: commencement, remand, determination by a magistrate of eligibility for surrender and executive determination that the person be surrendered: Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 628 [29] per Gleeson CJ, 635-636 [55] per Gummow and Hayne JJ (with whom Heydon J agreed on this issue at 676 [222]), 657 [144] per Kirby J applying Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389. Mr Tervonen's applications in the present case arise at an early point in the process. 9 Initially an extradition country, here Finland, must make an application to a magistrate, sitting as persona designata , for the issue of a warrant for the arrest of a person under s 12(1) of the Act. If the magistrate is satisfied, on the basis of the information given by affidavit, that the person is an extraditable person in relation to the extradition country, the magistrate must issue the warrant in statutory form for the arrest of the person (s 12(1)(b)). The magistrate must then send to the Attorney-General a report saying that he or she has issued the warrant together with a copy of the affidavit (s 12(2)). The Attorney-General is then given a discretion, by s 12(3), to cancel the warrant where he or she decides not to issue a notice under s 16(1) in relation to the person or considers for any other reason that the warrant should be cancelled. Cancellation is effected by the Attorney-General directing the magistrate to cancel the warrant (s 12(3)). 10 If the warrant is not cancelled, the person, when found, is then arrested and must be brought before a magistrate in the State or Territory where the arrest occurs as soon as practicable (s 15(1)). Unless there are special circumstances justifying the remand of a person on bail, the magistrate must remand the person in custody for such period or periods that may be necessary for the proceedings to be brought, relevantly, under s 19 of the Act (s 15(2) and (6)). 88 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.' 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.