Case: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110
Outcome: followed
Section 16(2)(a), it will be noted, confers power by reference to whether the Attorney-General forms an " opinion "; and s 22(3) refers to the Attorney-General being " satisfied " of the matters there specified. On behalf of the Respondent Minister, reference was made to the confined ambit of judicial review available where powers are so conferred: Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110. Gibbs J there observed at 118 19: It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. 15 In the present extradition process, an issue which assumes significance was the making of an order under s 18. That section provides as follows: Consent to surrender (1) Where: (a) a person is on remand under section 15; and (b) the Attorney-General has given a notice under subsection 16(1) in relation to the person; the person may inform a magistrate that the person consents to being surrendered to the extradition country concerned in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought by that country. (2) Where the person informs the magistrate that he or she so consents, the magistrate shall, unless the magistrate has reason to believe that the consent was not given voluntarily: (a) advise the person that the effect of so consenting will be that: (i) the person will be committed to prison without any proceedings being conducted under section 19 to determine whether the person is eligible for surrender in relation to any extradition offence; and (ii) the person will, if the Attorney-General issues a surrender warrant or a temporary surrender warrant, be surrendered to the extradition country; and (b) if, after the person has been advised as mentioned in paragraph (a), the person again consents to being surrendered: (i) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5); and (ii) advise the Attorney-General in writing of the offence or the offences in respect of which the person has so consented. 16 It is difficult to conclude that the Applicant does not fall within the terms of s 6(a)(i) of the Extradition Act , namely a person in respect of whom there is " a warrant ... in force ... in relation to an offence ... against the law " of Germany. 18 The warrant as issued does not on its face disclose any limitation as to the period of time during which it is to operate. The manner of operation of a warrant issued under a foreign law, including any limitation as to the period of time during which it is to operate, is a question of fact. As contended by the Respondent Minister, the existence of the warrant and the absence of any limitation upon its face provided a sound basis upon which the Respondent Minister could lawfully form an " opinion " for the purposes of s 16(2): cf Buck v Bavone . Moreover, the request for extradition, being a document also before the Minister when giving the notice, also proceeds upon the assumption that the warrant issued in September 2003 remained in force when the request was being made in April 2006. 27 As at the date when the s 16 notice was given, the material then available provided a sound basis for the requisite " opinion " being formed. A discrete submission advanced on behalf of the Respondent Minister again focused attention upon the confined ambit of such judicial review as is available: Buck v Bavone . Section 16(2)(a)(ii) -- as with s 16(2)(a)(i) -- again vests the decision-making function in the Attorney (or the Minister) if he is " of the opinion " that the person involved has committed an " extradition offence ." That submission is again accepted. 28 A contrary conclusion advanced by Mr Karsten was based upon what was said to be a discrepancy between what the German Criminal Code may have provided in terms, and the sentences in fact imposed upon others involved in the events giving rise to the charges against him. That " parity of sentencing " as urged by Mr Karsten dictated a different conclusion. It is considered that the " opinion " formed on 24 October 2006 was one open to be reached by the Minister on the materials before him and one which should be accepted for the purposes of the present Motion . 29 Albeit subsequent to the point in time when the s 16 notice was issued on 24 October 2006, it may further be noted that there was no later reason to revisit that conclusion. The " Opinion " provided in April 2007 thus also states in part as follows: ... German police officers are not authorised to make offers to terminate criminal procedures. Additionally, execution of imprisonment may, under Section 56 StPO, only be suspended on probation, when it does not exceed 2 years. In the case concerned here however, the minimum punishment provided by law is 3 years of imprisonment. One could only go below this when other circumstances, which are regulated by law, come up. Such specific circumstances are not recognisable, however. For this reason, probationary suspension of the imprisonment to be imposed when a sentence is passed would, at the current state of knowledge, not be possible ...