Case: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
A full and accurate summary of all material matters and facts ordinarily would enable a minister to discharge a function which legislation required be performed personally by the minister. A minister who acted on such a full and accurate summary would not have delegated any part of the decision-making process to the officials who prepared the summary. If, on the other hand, the summary or other material provided by the department or the minister's advisers omitted a material fact, then the minister would not make a decision on the basis of what parliament required him or her to take into account. Thus the minister would not perform the very function which parliament intended be performed: cf: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 31 per Gibbs CJ. Indeed, depending on the volume of material, a full and accurate, but succinct, summary of material may assist a minister properly to perform the function of exercising the discretion personally confided upon him or her by the statute. 29 Where a statute requires a minister to exercise a discretion personally and the material put before him or her by the department fails to draw to his or her attention a relevant fact which is not insignificant or insubstantial, a valid decision cannot be made because the minister will not have before him or her all relevant material: Peko-Wallsend 162 CLR at 30-31 per Gibbs CJ, 37-38 per Mason J, 65-67 per Brennan J, 71 per Dawson J. If a department were to determine which facts or matters are provided to the minister for him or her to take into account to exercise such a discretion, then the decision-making function will be bifurcated impermissibly, because the department will have assumed a delegation of power which the statute did not permit: namely, the power to decide what facts and matters the minister may take into account. That bifurcation is not permitted where the statute requires the minister personally to exercise the discretion, for the reasons explained by Mason J in Peko-Wallsend 162 CLR at 37-38. 30 Thus, in order to form the opinion that a person is an extraditable person under s 16(2)(a)(i), the Attorney-General must consider whether the requirements of s 6 (which defines 'extraditable person') have been met. If the request for extradition is based on one or more warrants for the arrest of the person, the Attorney-General must be of opinion that each warrant has been received and that it satisfies the requirements of s 6 (and here, Art 7(2) of the treaty). The Attorney-General must see what has been provided with the request for extradition as the warrant (or its translation) in order to form the opinion in s 16(2)(a)(i). It would not be sufficient for the Attorney-General merely to be told that such a warrant existed or to have a summary of it and its contents relating to the offence or offences concerned. That is because the Act requires the Attorney-General to form an opinion that a warrant meeting the terms of s 6 actually exists. 31 Article 7(2)(a) of the Treaty requires the request for extradition to be accompanied by a copy of the warrant together with the statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person whose extradition is sought in respect of each offence. The statement of each offence is a matter which may be capable of accurate summation, as may the statement of the acts or omissions. Much will depend upon the form in which the extradition country presents the material. As became apparent when the brief provided to Senator Johnston was tendered, he was confronted with over 250 pages of material which Finland had furnished in support of its request. The material was by no means easy to follow or digest in the form in which it was presented. As Brennan J said in Peko-Wallsend 162 CLR at 66: 'The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and pr&eacute;cis of the material relevant to that decision.' 32 I am of opinion that the Minister can form the opinion in relation to the conduct of the person for which s 16(2)(a)(ii) provides by use of a full and accurate summary of that conduct. I reject Mr Tervonen's argument that s 16(2)(a) and or Art 7(2) of the treaty require the Minister to be provided with the full material furnished by Finland as the requesting State. 33 Each of the Finnish warrants recited that Mr Tervonen was 'suspected on probable cause' of one or more offences. Mr Tervonen argued that the language of the warrants did not meet the threshold set in s 6(a)(i) of being warrants which were in force for his arrest '... in relation to an offence ... against the law of [Finland] that the person is accused of having committed ...'. He argued that being suspected on probable cause was something less than being accused of having committed an offence. 41 In the context of Australian law, a statement that a person has been arrested by the police and charged with an offence is capable of bearing a meaning that the police suspected him or her of having committed the offence and that the arresting officers had reasonable cause for doing so: Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301 per Mason J. That case dealt with defamatory meanings that might be conveyed to ordinary, reasonable Australians by a statement of a police arrest and charge. 92 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 223-224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664). 207 The last alternative is that Senator Johnston considered the whole matter afresh, and that it is possible to sever the portions of the notice relating to warrant 5 which I have found to be invalid, leaving the balance of the notice intact. In Peko-Wallsend 162 CLR at 40-41, Mason J said: 'The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228.'