Case: von Arnim v Ellison [2006] FCAFC 49 ; (2006) 150 FCR 282
Outcome: referred to
The steps involved in the extradition process under Part II of the Act were considered by the Full Federal Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389. The Full Court described four stages in the extradition process: commencement, remand, determination by a magistrate of eligibility for surrender and executive determination that the person is to be surrendered; see also Vasiljkovic v Commonwealth [2006] HCA 40 ; (2006) 228 ALR 447 at [55] . The issue of a notice under s 16(1) of the Act formally commences the process and, as noted above, is a condition precedent to a magistrate considering the person's eligibility for surrender. The Minister's decision to issue a s 16 notice may be subjected to judicial review; von Arnim v Ellison [2006] FCAFC 49 ; (2006) 150 FCR 282 at 298, Harris at 400-401. 18 The applicant accepted that the Minister was entitled to rely upon the advice of departmental staff in reaching the requisite opinion per s 16(2)(a)(ii) but submitted that when it comes to signing the s 16 notice the Minister has to do more than rubber stamp the recommendations of the Department. Clearly this submission must be accepted. This much is clear from the comments made in von Arnim at 298 by Young J, with whom Madgwick and Siopis JJ agreed: 'The obvious statutory intention behind s 16 is that the Attorney-General should carefully scrutinise the case for extradition before giving a notice stating that an extradition request has been received. Speaking of earlier legislation which was in similar form, Burchett J in Schlieske v Federal Republic of Germany (No 2) (1987) 26 ACrimR 341 at 346-347, described the Attorney-General's notice as the essential document which translates any Australian obligation, under international law, to extradite a fugitive into a right, under municipal law, to have a particular application for extradition proceeded with before a magistrate. This aptly describes the function of the s 16(1) notice under the Act. In Commonwealth v Dutton [2000] FCA 1466 ; (2000) 102 FCR 168 at [33] , Moore J said that the function of the Attorney-General under s 16 provides an important safeguard against the abuse of the extradition process by the country seeking extradition and involves the Attorney-General scrutinising the request independently of the requesting country and, potentially, against the interests of that country. In this sense, Moore J said that s 16 involves the Attorney-General acting as a contradictor to the claim of the requesting country. None of this is controversial.' 24 The respondents submit that the facts in Foster are indistinguishable from the present facts; that the decision in Foster is correct and should be followed by this Court; and that there is nothing in von Arnim to contradict Cooper J's analysis in Foster . 25 At its highest, the respondents' submission was that it was sufficient for the Minister to adopt the DPP's conclusion without having any indication from the DPP as to why it came to that conclusion. It seems to me that this is higher than it is necessary for the respondents to go and, indeed goes beyond the position taken by Cooper J in Foster . It is not correct to say that in this case the departmental advice gave no indication of the basis of the DPP's advice. Although scant, an indication is provided by the description of the offences with which the United States seeks to charge the applicant. The Minister had before him a list of the US offences that the applicant was charged with, a list of (at least in the DPP's opinion) equivalent offences under the Australian law and the DPP's advice that the US offences would be considered offences under the Australian law. 31 I respectfully accept the view expressed by Young J in von Arnim (see [18] above) that the Minister must carefully scrutinise the case for extradition before issuing a s 16 notice. I do not accept that the advice in this case did not allow such scrutiny. 32 In this case the DPP has given its opinion that that the conduct alleged by the United States, if committed in New South Wales, would be an offence under the Commonwealth Criminal Code . The question is not whether the DPP is right or wrong but whether it was perverse of the Minister to accept that advice. Put that way, the answer can hardly be in doubt. The DPP has the expertise that the Minister presumably lacks. There is no reason for the Minister to think other than that their advice was given in good faith. It was, in my opinion, entirely reasonable for the Minister to accept the advice given. 33 Accordingly, the application is dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 20 December 2006 Counsel for the Applicant: R Richter QC and R Lancaster Solicitor for the Applicant: Watsons Solicitors Counsel for the Respondents: Dr J Renwick and C Lenehan Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 4 December 2006 Date of Judgment: 20 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1782.html