Case: Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391
Outcome: cited
Consistent with that view, the Applicant does not dispute that the High Court in Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391 established, in the context of s 501 of the Migration Act 1958 (Cth) ("the Migration Act ") read with s 19A of the AI Act , that the combined use of the words "only" with the word "personally" in referring to one minister did not prevent one of two ministers administering the Act exercising the power in question. However, the Applicant sought to distinguish Re Patterson on the grounds that it was concerned with the Migration Act , not the Extradition Act , and s 40 of the Extradition Act was in wholly different terms to s 501 of the Migration Act . 16 The Applicant's construction of s 40 of the Extradition Act should be rejected. First, it proceeds from a misunderstanding about the source of power to request extradition of a fugitive from a foreign State to Australia. Secondly, it ignores the relevant executive and administrative arrangements made by the Governor-General pursuant to ss 61 , 64 and 65 of the Constitution . Thirdly, it is contrary to the express words and history of s 19A of the AI Act , is contrary to authority and, if adopted, would not facilitate " efficient and effective government administration ": see Re Patterson at [15]. 46 Finally, the Applicant's contentions are contrary to the decision of the High Court in Re Patterson; ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391. In that case, the combined use of the words "only" with the word "personally" in referring to one Minister in s 501 of the Migration Act , read with s 19A of the AI Act , did not prevent the other of the two Ministers administering the Act exercising the power in question. Although that case was concerned with the Migration Act , not the Extradition Act , and s 40 of the Extradition Act was in wholly different terms to s 501 of the Migration Act , having regard to the nature and express words of each provision, a generally similar analysis should be made leading to the same result. 47 As noted earlier, after the decision of Spender J in Foster , s 19 of the AI Act was also amended. The Respondents contend that s 19 of the AI Act is an alternative to s 40 of the Extradition Act which provides an independent and separate justification for the Justice Minister to sign the Request because the administrative arrangements are sufficient to constitute an authorisation of the Justice Minister to act for the Attorney-General. 48 Given the conclusions I have reached about s 19A of the AI Act , it is unnecessary to resolve the application of s 19 of the AI Act . Sections 19 and 19A of the AI Act overlap. Where and how they overlap is neither necessary nor appropriate to resolve in this case. It is sufficient to note that, consistent with the decision of the Full Court in Foster , if for the purposes of s 19 of the AI Act (in its pre-amended form) the Attorney-General can write out an authorisation for another Minister authorising that Minister to exercise the power under ss 22(2) and 23 of the Extradition Act , there can be no doubt that the Governor-General, in this case on the advice of the Prime Minister, can provide such an authorisation exercising his power under s 64 of the Constitution . 49 This ground of review should be dismissed. 50 The Applicant's contention in relation to this ground is not supported by the facts and is contrary to fundamental principles of public international law.