Case: New Zealand v Venkataya (1995) 57 FCR 151
Outcome: applied
In New Zealand v Venkataya (1995) 57 FCR 151 at 162-3, Sackville J provided some further background to the terms of s 34(2): 'The language used in s.34(2) has its Australian antecedents in the provisions of the Service and Execution of Process Act 1901 ("the 1901 Act"). Section 18(6) of the 1901 Act governed the extradition of persons from one Australian State or Territory to another until the 1901 Act was repealed by the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 , s.3. ... The three grounds specified in s.18(6) existed in the 1901 Act in its original form: Binge v Bennett (1988) 13 NSWLR 578 (NSW CA), at 584, per Kirby P. Unlike s.34(2), s.18(6) of the 1901 Act did not refer specifically to the lapse of time since the alleged offence was committed. However, the court's powers under that sub-section arose if, "for any reason", it would be unjust or oppressive to return the person to another State or Territory. The immediate predecessor to s.34(2) of the Act was s.27 of the Extradition (Commonwealth Countries) Act 1966 ("the 1966 Act"), Part III of which dealt with extradition to and from New Zealand. The scheme of Part III of the 1966 Act was similar to that of Part III of the 1988 Act and was summarised by Wilcox and Jackson JJ. in Narain v Director of Public Prosecutions (1987) 15 FCR 411 (FCA/FC), at 417 ( Narain v Director of Public Prosecutions was the subject of High Court proceedings, but on other issues: see Narain v Director of Public Prosecutions (1987) 61 ALJR 317; 71 ALR 248). Section 27 of the 1966 Act read as follows: "If a Magistrate before whom a person is brought under this Part is satisfied- (a) by reason of - (i) the trivial nature of the offence that the person is alleged to have committed or has committed; (ii) the accusation against the person not having been made in good faith or in the interests of justice; or (iii) the passage of time since the offence is alleged to have been committed or was committed; or (b) for any other reason. that it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, or to surrender the person before the expiration of a particular period, the Magistrate may [order the person released or make other orders the magistrate thinks just]." It will be seen that s.27(a)(iii) of the 1966 Act referred to "the passage of time" since the alleged offence, rather than the fact that "a lengthy period has elapsed" since the alleged offence, as does s.34(2) of the 1988 Act. However, I do not think that anything turns on this slight difference in language. The authorities construing s.27 of the 1966 Act, as well as those dealing with s.34(2) of the 1988 Act, must therefore be considered in construing the current legislation. The authorities construing s.18(6) of the 1901 Act are also helpful, despite the more significant differences in language. It should be noted that, since 10 April 1993, extradition within Australia is governed by the regime created by Part 5 of the Service and Execution of Process Act 1992 . Under this regime, although there is power to consider the validity of a warrant and to grant bail, the magistrate has no statutory discretion to refuse to return the person apprehended to the place where the warrant was issued: ss.83 - 86 . It is of course open to Parliament to introduce a similar regime for the extradition of accused persons from Australia to New Zealand, but that step has not been taken.' 71 Thus a conclusion that it would be 'unjust' or 'oppressive' ought not lightly be reached. The entirety of the legislation and context suggests that such cases will be, to recall the language of the counterpart New Zealand legislation, compelling or extraordinary. (It is, in the context, and despite what are, to an extent, imponderables, an easier and more objective judgment to say whether it would be 'too severe a punishment' to surrender a person.) The authorities referred to by Sackville J in Venkataya and subsequent authorities including Bannister v New Zealand [1999] FCA 362 ; (1999) 86 FCR 417 and Kenneally v New Zealand [1999] FCA 1320 ; (1999) 91 FCR 292 require and confirm that general approach. 132 Let me make it clear: my preference would be that the legislation should make it plain that New Zealand courts should deal with these problems and, in cases of such serious allegations, Australia should accept any degree of injustice to Australian judicial eyes that is not shared by our genuinely respected New Zealand counterparts: Australians generally would wish for the same degree of respect for our criminal justice system from the New Zealand parliament. But that is not what our Extradition Act says. It specifically envisages that there might be 'injustice' a broad concept in extraditing a person to New Zealand. It seems to me that, applying the Act according to its terms, the applicants have made out their case against surrender. Sackville J indicated in Venkataya at [163] that, if the result in that case was unsatisfactory, legislative change might be the answer. I venture to suggest that the outcomes in Venkataya , Bannister and this case, although regarded as necessary by the persons who decided them, may from a public policy point of view be less than satisfactory. 138 However, the factors discussed in relation to injustice are also relevant to the notion of 'oppression' and I think that, collectively, they would also make it oppressive to order the applicants' surrender to New Zealand. In any case, as Sackville J said in Venkataya at 171: '... as the authorities acknowledge, there is room for overlap between the concepts of injustice and oppression; and the question is ultimately whether the whole of the circumstances render it unjust or oppressive to surrender the first respondent to New Zealand. The difficulties facing the first respondent in preparing for trial should be considered, together with the other factors to which I have referred, in determining that question.' 139 No lack of belief by the New Zealand police officers concerned in the truth of the charges was alleged. Nor is there evidence sufficient to establish conscious falsehood on the part of any complainant. 140 Alleged departures by New Zealand police from desirable practice in interviewing Father Garchow in Australia produced nothing adverse to him or beyond what was common ground.