Case: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 
Outcome: cited
The argument proceeded as follows: (1) the express words of s 40 of the Extradition Act had its origins in the decision of Barwick CJ in Barton v Commonwealth [1974] HCA 20 ; (1974) 131 CLR 477. That case concerned s 21 of the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") which provided that " the Attorney-General may make a requisition to [a foreign state] for the surrender of the person ." Barwick CJ stated that the Crown prerogative to seek and accept the surrender of a fugitive from a treaty state to which the 1966 Act applied had been wholly displaced and that the " only power " to requisition a treaty state for the surrender of a fugitive was that of the Attorney-General: at 487. In other words, if a treaty exists between Australia and a foreign state regulating the surrender and requests for surrender of fugitives, then the Extradition Act wholly replaced the prerogative power to make a request for the return of a fugitive to Australia: Barwick CJ in Barton at 487; (2) the Extradition Act was enacted in 1988. Its principal objectives are stated in s 3 to be: "(a) to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence; (b) to facilitate the making of requests for extradition by Australia to other countries; and (c) to enable Australia to carry out its obligations under extradition treaties." (3) consistent with the language adopted by Barwick CJ in Barton , s 40 of the Extradition Act states that: "A request by Australia for the surrender of a person from a country ... in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney-General ." (Emphasis added.) (4) the Replacement Explanatory Memorandum to the Extradition Bill 1987 supports the contention that any request is only to be made by or with the authority of the Attorney-General. In relation to what became s 40 of the Extradition Act , the Explanatory Memorandum states at 41: "This clause makes it clear that the only way in which extradition can be requested by Australia ...is by or with the authority of the Attorney-General ...." (5) the express words of s 40 of the Extradition Act are clear and unambiguous and mean what they say: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26 ; (1981) 147 CLR 297 at 305 (per Gibbs CJ); (6) the Extradition Act involves the liberty of the subject and where statutory authority is given to interfere with that liberty, such interference can be effected only in accordance with the terms and conditions of that grant: Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [126] to [134]; (7) the following passage of the unanimous decision of the High Court in Oates v Attorney-General (Cth) [2003] HCA 21 ; (2003) 214 CLR 496 at [39] that considered a request for extradition to Poland signed by the Attorney-General under s 40 of the Extradition Act explains the correct way in which a request to a foreign state is to be made and raises the question why the Request in relation to the Applicant was not signed by the Attorney-General: "Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. " (Emphasis added.) 60 French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]: "[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts. " (Emphasis added.) See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] [77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.