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Oates v Attorney-General (includes corrigendum dated 2 April 2002) [2002] FCA 347 (28 March 2002)

Last Updated: 8 April 2002

ANTONY GORDON OATES v ATTORNEY-GENERAL & COMMONWEALTH OF AUSTRALIA

N 370 of 2001

O'LOUGHLIN, WHITLAM and CONTI JJ

28 MARCH 2002

SYDNEY

In paragraph 78 of Conti J's Reasons for Judgment, the quote attributed to Lord Millett beginning with the words "... On that basis, all the alleged actings..." and ending with the words "... prison on that charge", should be deleted and replaced with the following:

"Crimes which are the natural subject of extradition proceedings are almost invariably committed abroad and as such are usually outside the jurisdiction of the English courts, however widely that expression may be construed. So the conduct which constitutes an extradition crime does not consist of acts which actually were committed in England or within English jurisdiction, but rather conduct which would constitute a crime under English law if the acts in question were so committed. The test, therefore, is a hypothetical one, which calls for some degree of transposition.

In R v Governor of Pentonville Prison, Ex p Tarling (1978) 70 Cr App R 77 Lord Keith of Kinkel stated, at p 136:

`In considering the jurisdiction aspect it is necessary to suppose that England is substituted for Singapore as regards all the circumstances of the case connected with the latter country, and to examine the question whether upon that hypothesis and upon the evidence adduced the English courts would have jurisdiction to try the offences charged.'

This guidance was followed by the Divisional Court in R v Governor of Pentonville Prison, Ex p Osman [1990] 1 WLR 277. Lloyd LJ explained that only the acts which took place in the requesting state (Hong Kong) were to be treated as having taken place in England. All else remained as it in fact happened.

For my own part, and subject to one point which I will mention in a moment, I think that this is the correct way to effect the transposition. The principle at work is mutatis mutandis. Given that the court is concerned with an extradition case, the crime will not have been committed in England but (normally) in the requesting state. So the test is applied by substituting England for the requesting state wherever the name of the requesting state appears in the indictment. But no more should be changed than is necessary to give effect to the fact that the court is dealing with an extradition case and not a domestic one. The word "mutandis" is an essential element in the concept; the court should not hypothesise more than necessary."

Associate:

Dated: 2 April 2002

EXTRADITION - request by Australia for surrender of a person in Poland to answer criminal charges in Australia - relief sought under s 39B of Judiciary Act 1903 (Cth) in respect of request - whether making of request an exercise of the executive power of the Commonwealth or of a statutory power conferred by s 40 of Extradition Act 1988 (Cth) - whether power to make request circumscribed by operation of 1934 Imperial Order in Council - effect of such an Order under s 2 of Extradition Act 1870 (Imp).

Extradition Act 1870 (Imp) ss 2, 18

Extradition Act 1903 (Cth) s 6

Extradition Act 1988 (Cth) ss 11(3), 40, 41, 43(1)

Extradition (Foreign States) Act 1966 (Cth) ss 9, 10, 11, 20 and 21

Judiciary Act 1903 (Cth) s 39B

Companies (WA) Code ss 229(1), 229(4), 570

Criminal Code (WA) s 412

Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 considered

Bollag & Anor v Attorney-General of the Commonwealth (1997) 79 FCR 198 considered

Commonwealth v Riley (1984) 5 FCR 8 considered

De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 referred to

The King v Weaver [1931] HCA 23; (1931) 45 CLR 321 referred to

In re Nielsen [1984] AC 606 applied

Oates v Attorney-General (Cth) [2001] FCA 84; (2001) 181 ALR 559 considered

Regina (Al-Fawwaz) & Others v Governor of Brixton Prison & Another [2002] 2 WLR 101 considered

Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 considered

Winkler v Director of Public Prosecutions (1990) 25 FCR 79 distinguished

ANTONY GORDON OATES v ATTORNEY-GENERAL & COMMONWEALTH OF AUSTRALIA

N 370 of 2001

O'LOUGHLIN, WHITLAM and CONTI JJ

28 MARCH 2002

SYDNEY

THE COURT ORDERS THAT:

1. The respondents' application to receive further evidence on the appeal is refused.

2. The appeal is dismissed.

3. The appellant is to pay the respondents' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

O'LOUGHLIN and WHITLAM JJ

Introduction

1 On 11 January 1995 the appellant, Antony Gordon Oates, was charged with seventeen offences against the statute law of Western Australia and a warrant was issued for his arrest. On 7 July 1996 the first respondent, the Attorney-General of Australia, signed a request for Mr Oates's extradition from Poland in respect of those offences. That request was presented on 8 August 1996 to the Polish Ministry of Foreign Affairs, and Mr Oates was arrested on 22 October 1996. He was subsequently released from detention, but the request for his extradition remains to be finally determined by the competent authorities in Poland.

2 On 13 December 2000 Mr Oates filed an application in this Court claiming against the first respondent and the second respondent, the Commonwealth of Australia, various forms of relief, including an order in the nature of certiorari under s 39B of the Judiciary Act 1903 (Cth) quashing the first respondent's decision "to issue" the request for his extradition. The application was dismissed by Lindgren J: Oates v Attorney-General (Cth) [2001] FCA 84; (2001) 181 ALR 559. This is an appeal from that judgment.

3 The core of Mr Oates's case at first instance was the contention that the offences with which he was charged were not offences enumerated in Art 3 of the Treaty between Great Britain and the Republic of Poland for the Mutual Extradition of Fugitive Criminals done at Warsaw on 11 January 1932 ("the Treaty"). The Treaty may be found in Australian Treaty Series 1935 No. 10 (electronic). The relevance of Art 3 of the Treaty depends on the effect of s 11(3) of the Extradition Act 1988 (Cth) ("the Act").

The Legislation and the Barton Case

4 Section 11 of the Act relevantly provides:

"11. (1) The regulations may:

(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or

(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.

(1A) The regulations may provide that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.

(1B) Regulations may be made under both subsections (1) and (1A) in relation to a specified extradition country.

(1C) For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.

(2) For the purposes of subsections (1) and (1A), but without otherwise affecting the generality of that subsection, the reference in paragraphs (1) (a) and (b) and subsection (1A) to this Act applying subject to limitations, conditions, exceptions or qualifications is deemed to include a reference to this Act applying subject to a modification to the effect that a number of days greater or less than the 45 days referred to in paragraph 17 (2) (a) applies for the purposes of that paragraph.

(3) Until the regulations make provision as mentioned in subsection (1) in relation to an extradition country, being a foreign state to which paragraph (c) of the definition of `extradition country' in section 5 applies, this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications to which the former Foreign Extradition Act, in its application in relation to the extradition country as a foreign state, was subject by virtue of section 9 of that Act, but only to the extent that they are not inconsistent with limitations, conditions, exceptions or qualifications provided for by regulations under subsection (1A).

..."

The "former Foreign Extradition Act" referred to in s 11(3) is defined by s 5 of the Act as the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act") as in force immediately before the commencement of the Act. At that time s 9 of the 1966 Act provided:

"9. (1) Where, immediately before the commencement of this Act-

(a) under an Order in Council in force under the Imperial Acts known as the Extradition Acts, 1870 to 1935, those Acts applied in the case of a foreign state specified in the Order; and

(b) those Acts, as they so applied, extended to the Commonwealth, this Act applies in relation to that state.

(1A) It is declared, for the avoidance of doubt, that this Act applies by virtue of sub-section (1) in relation to each of the foreign states specified in the Schedule.

(1B) If, after the commencement of this sub-section, an extradition treaty comes into force between Australia and a foreign state specified in the Schedule, this Act has effect as if the reference in the Schedule to that foreign state were omitted.

(2) If the operation of the Order was subject to any limitations, conditions, exceptions or qualifications, then, subject to this Part, this Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications.

(2A) For the purposes of sub-section (2), the provisions of the Orders in Council referred to in sub-section (1) shall be deemed to be the provisions set out in Volume IX of the Statutory Rules and Orders and Statutory Instruments of the United Kingdom revised to December 31, 1948.

(3) The regulations may provide that this Act ceases to apply in relation to a foreign state specified in the regulations, being a foreign state in relation to which this Act applied by virtue of sub-section (1), and, upon the coming into force of a regulation that so provides, this Act ceases to apply in relation to that state.

(4) The coming into force of a regulation made for the purposes of sub-section (3) in relation to a foreign state does not prevent this Act from again applying in relation to that state by virtue of a regulation made for the purposes of section 10."

5 The Polish People's Republic was a country specified in the Schedule to the 1966 Act pursuant to s 9(1A) of that Act. Prior to the commencement of the Act an extradition treaty did not come into force between Australia and the Polish People's Republic and a regulation was not made for the purposes of s 9(3) of the 1966 Act in relation to the Polish People's Republic. Accordingly, at that time Poland was a foreign state to which the 1966 Act applied by virtue of s 9 of that Act. When the Act commenced on 1 December 1988, Poland was thus a foreign state to which par (c) of the definition of "extradition country" in s 5 of the Act applied. It was not until the Extradition (Poland) Regulations 1999 (Cth) commenced on 2 December 1999 that provision as mentioned in s 11(1)(a) of the Act was made in relation to Poland. In the present case the request in question was submitted on 8 August 1996 and, therefore, it is not governed by the bilateral extradition treaty, a copy of which is set out in those regulations.

6 The role of the Imperial Acts referred to in s 9 of the 1966 Act requires explanation. The Extradition Acts, 1870 to 1932 (Imp) were applied in respect of the United Kingdom in the case of Poland by the Poland (Extradition) Order in Council, 1934 (Imp). Those Acts, as they so applied, were extended to Australia with effect from 4 January 1935 by the Poland (Extradition: Commonwealth of Australia and New Zealand) Order in Council, 1934 (Imp). The first recital to each of the Orders stated:

"Whereas by the Extradition Acts 1870 to 1932, it was, amongst other things, enacted that, where an arrangement has been made with any foreign State with respect to the surrender to such State of any fugitive criminals, His Majesty may, by Order in Council, direct that the said Acts shall apply in the case of such foreign State; and that His Majesty may, by the same or any subsequent Order, limit the operation of the Order, and restrict the same to fugitive criminals who are in or suspected of being in the part of His Majesty's dominions specified in the Order, and render the operation thereof subject to such conditions, exceptions and qualifications as may be deemed expedient:"

That recital restated the effect of the first two sentences in s 2 of the Extradition Act, 1870 (Imp) ("the 1870 Act"). The specific Orders provided for the Acts mentioned to apply in the case of Poland "under and in accordance with" the Treaty. (Subsequently the Counterfeit Currency (Convention) Act, 1935 (Imp) amended the 1870 Act and provided for the Extradition Acts, 1870 to 1932 to be cited as the Extradition Acts, 1870 to 1935.)

7 The 1870 Act came under the High Court's attention in Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477. Barwick CJ noted (at 484) that that Act did not deal with a request for the surrender of a fugitive by another country. Mason J remarked of the 1870 Act (at 497) that, with the exception of s 19, it contained no provision touching the surrender by a foreign state of a fugitive offender who was alleged to have committed an offence against the laws of England. Later, after setting out the terms of s 2 of that Act, Mason J observed (at 502):

"The first paragraph makes it clear that an Order in Council may be made making the Act applicable to a foreign state when an arrangement has been made with respect to the surrender to such state of fugitive criminals. The Act contains no provision for an Order in Council giving the Act an operation when an arrangement is made merely for the surrender of fugitive criminals by a foreign state." (Emphasis in original.)

Jacobs J said (at 506) that the 1870 Act "was silent on any power to request extradition because the grant of such power was unnecessary" and that it "left unaffected the power or right of the Crown to request the extradition of a person from a foreign country to the United Kingdom."

8 The 1966 Act excluded the operation of the Extradition Acts, 1870 to 1935. It made extensive provision in Pt III for extradition to foreign states and limited provision in Pt IV relating to extradition from foreign states. The provisions in Pt III of the 1966 Act were roughly comparable with provisions in the 1870 Act. However, in Pt IV (comprising ss 20-23), only s 23 was a comparable provision. Section 23 of the 1966 Act dealt with the rule of speciality, for which provision was made in s 19 of the 1870 Act. There were no provisions in the Imperial Acts which corresponded with the other provisions in Pt IV of the 1966 Act.

9 At the time Barton was decided, ss 20 and 21 of the 1966 Act provided:

"20. In this Part, `extraditable crime' means an offence (wherever committed) against the law in force in Australia or in a part of Australia, being an offence that -

(a) is described in Schedule 1; or

(b) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence.

21. Where a person accused or convicted of an extraditable crime is, or is suspected of being, in a foreign state or within the jurisdiction of, or of a part of, a foreign state, the Attorney-General may make a requisition to that state for the surrender of the person."

10 Barton concerned Australian fugitives in Brazil at a time when Brazil was not a foreign state to which the 1966 Act applied. Nonetheless, Barwick CJ speculated about the effect of s 21 where the 1966 Act did apply and said (at 487-488):

"How, if at all, has the Act impinged upon the prerogative of the Crown to seek and accept the surrender of a fugitive? Doubtless, the prerogative to do so from a foreign state to which the Act applies has been wholly displaced. The Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined. The only power is that of the Attorney-General to requisition of such a state the surrender of a fugitive who is charged with or has committed an extraditable crime. This requisition will be communicated through diplomatic channels, as is international usage." (Emphasis supplied.)

Jacobs J, on the other hand, noted (at 507-508) that the question, whether Pt IV was exhaustive of the circumstances under which extradition may be requested from a foreign state where the 1996 Act applied, did not need to be determined in that case. The other three Justices in Barton simply made no reference to that question.

11 The 1966 Act was repealed by the Extradition (Repeal and Consequential Provisions) Act 1988 (Cth) on 1 December 1988 when the Act came into operation. Section 3 of the Act provides:

"3. The principal objects of this Act are:

(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."

Part II (ss 12-27) of the Act deals with extradition from Australia to extradition countries ("extradition country" being defined in s 5), Part III (ss 28-39) with extradition from Australia to New Zealand, and Part IV (ss 40-44) with extradition to Australia from other countries. Section 40 of the Act provides:

"40. A request by Australia for the surrender of a person from a country (other than New Zealand) 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."

The Extradition Act 1988 and the Prerogative

12 Mr Oates submitted in the Court below that the request for his extradition was made in the exercise of a power given by s 40 of the Act. Lindgren J rejected that submission. He said (at 566):

"[27] Section 40 does not give power to make a request for the surrender of a person. Rather, it assumes that such a request may be made in the exercise of a power to be found elsewhere and requires that an exercise of that power be by or with the authority of the Attorney-General - a requirement that was satisfied in the present case."

His Honour construed the expression "a request under section 40" used in ss 41 and 43(1) of the Act as meaning simply "a request made in accordance with section 40", and gave reasons for finding unpersuasive as to the proper construction of s 40 of the Act what Barwick CJ had said obiter in Barton about the effect of s 21 of the 1996 Act upon the prerogative power of the Crown. Lindgren J regarded s 40 of the Act "as predicating a request made in the exercise of the executive power of the Commonwealth". We agree with that conclusion.

13 Before us Mr Oates framed his case on this aspect of the appeal by reference to the expression "a request under section 40" used in ss 41 and 43(1) of the Act. First, it was submitted that the reference in s 43(1) to a request made "under section 40 or otherwise" plainly assumed a source of power in s 40 as well as a source of power to be found elsewhere. Lindgren J was said to have failed to give any effect to the words "or otherwise". Secondly, it was submitted that the word "under" connotes in the context "in pursuance of" or "under the authority of": Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166 at 173.

14 The first submission may, in our view, be quickly rejected because it fails to recognize the scope of s 43. The adverb "otherwise" is apt to describe a request made under other circumstances. Section 43(1) of the Act permits the Attorney-General to act on suspicion so as to have evidence taken in Australia and to do so, whether or not he suspects a person to be in a particular country. In those circumstances, so far from being in a position to request the surrender of a person from another country, the Attorney-General might simply make a request for information as to the person's whereabouts. Fugitives do, after all, frequently flit from one country to another. The context of s 43 of the Act does not suggest that a request made "otherwise" must be an extradition request. (The respondents submit that, when s 43 of the Act commenced, a requisition made under s 21 of the 1966 Act could be a request made "otherwise". However, that submission overlooks the effect of s 6 of the Extradition (Repeal and Consequential Provisions) Act 1988).

15 In any event, we have not thought it necessary to set out the text of either s 41 or s 43 because, as to Mr Oates's second submission, we do not think that the word "under" in the phrase "under section 40" used in those sections casts any light on the true interpretation of s 40 of the Act. In the Court below Mr Oates relied upon the statement of Barwick CJ that we have reproduced at [10] above, and Lindgren J said (at 568):

"[33] Mr Oates relies on these obiter dicta of Barwick CJ of Barwick CJ in support of his general submission that where there is an extradition treaty, the executive power of the Commonwealth to request extradition is displaced. But s 21 of the [1966] Act differs from s 40 of the Act in two important respects. First, unlike the current s 40, s 21 conferred a power where certain conditions were satisfied (`the Attorney-General may'). Secondly, the word `requisition' (`the Attorney-General may make a requisition to that state for the surrender of the person') as distinct from the word `request' used in s 40 of the Act, shows that s 21 of the [1966] Act was referring to the invoking of the other state's treaty obligation. In relation to this second point, Barwick CJ said (at CLR 487 ...):

`... in s 21 the authority of the Attorney-General is to make a requisition - a word which appropriately describes a demand as a right pursuant to treaty and which is in contrast with the word request when properly used, which indicates a resort to discretion or grace rather than concession of a right.'

[34] For the above reasons, the passage from the judgment of Barwick CJ in Barton on which Mr Oates relies is not persuasive as to the proper construction of s 40 of the Act."

16 On appeal, notwithstanding what Lindgren J said about the differences between s 21 of the 1966 Act and s 40 of the Act, Mr Oates also persisted in relying on Barwick CJ's asseveration about the prerogative of the Crown being displaced. In our view, this position is untenable because it fails to address the actual words employed in s 40, which plainly do not purport to confer any power. (We may say, however, that we attach no significance whatsoever to the distinction drawn by Barwick CJ between a requisition and a request in diplomatic parlance. In fact, as the treaty set out in Schedule 1 to the Extradition (Poland) Regulations 1999 shows, "request" is the modern word used in English language texts to describe a demand pursuant to an extradition treaty.) We think it is clear that s 40 of the Act operates as a machinery provision. Indeed, in Barton (at 508), Jacobs J described s 21 of the 1966 Act as "in effect a machinery provision". His Honour observed that the power conferred by s 21 was to the same effect as that conferred by s 6 of the Extradition Act 1903 (Cth) ("the 1903 Act").

17 The 1966 Act repealed the 1903 Act, but its history is instructive. That Act was prompted by In re Gerhard (No 3) (1901) 27 VLR 655 where it was held that the Governor-General of the new Commonwealth of Australia was not a "governor" for the purposes of s 17 of the 1870 Act. One of the 1903 Act's objects was thus to vest the powers exercisable under the Imperial Acts in appropriate persons in Australia. However, s 6 of the 1903 Act also involved a novel step based on a Canadian statute originally passed in 1877. As Prime Minister Deakin explained in his second reading speech, the Canadian legislation provided that an application for extradition of persons to Canada might be made directly to any foreign state instead of through the Secretary of State for the Colonies. Section 6 was intended to give a similar power to Australia: House of Representatives, Parliamentary Debates (Hansard), 14 October 1903, p 6134. It provided:

"6. Where the Extradition Act 1870 applies in the case of any foreign State, a requisition for the surrender of a person, accused or convicted of an extradition crime in the Commonwealth, who is or is suspected to be in that foreign State, may be made by the Attorney-General to a consular officer of that State in the Commonwealth, or to any Minister of that State through the diplomatic representative of His Majesty in that State, or in such other mode as is settled by arrangement."

18 The 1903 Act was expressed to commence upon proclamation after "the King has by Order in Council directed that this Act ... shall have effect in the Commonwealth as if it were part of the Extradition Act 1870." An Order in Council (SR&O 1904 No. 316) was subsequently made to that effect and a suitable proclamation published. The first recital of that Order invoked the authority of s 18 of the 1870 Act. However, section 18 only provided for effect to be given by Order in Council to colonial laws dealing with "the surrender of fugitive criminals who are in or suspected of being in such British possession". The term "fugitive criminal" was defined by s 26 of the 1870 Act as meaning a "person accused or convicted of an extradition crime committed within the jurisdiction of any foreign state who is in or suspected of being in some part of Her Majesty's dominions". Section 18 of that Act furnished, therefore, no authority for an Order in Council purporting to give effect to s 6 of the 1903 Act. Curiously the Order in Council made in 1904, though not the 1903 Act itself, referred in one of its recitals to the legislative power of Parliament with respect to the matters mentioned in placita (xxviii) and (xxix) of s 51 of the Constitution. Be that as it may, at that time such legislative power with respect to external affairs plainly did not extend to the displacement of prerogatives of the Crown on this topic. Up to the end of World War 1 the executive power of the Commonwealth under s 61 of the Constitution did not include certain prerogatives relating to external affairs, such as the making of treaties. The diplomatic unity of the British Empire was unquestioned. See generally LR Zines, "Nationhood and the Powers of the Commonwealth" in Commentaries on the Australian Constitution (1976). Barwick CJ also took the view that Australia was not an independent nation at that time: Bonser v La Macchia [1969] HCA 31; (1969) 122 CLR 177 at 189.

19 Section 21 of the 1966 Act was the direct successor of s 6 of the 1903 Act, the history of which recounted above hardly gives rise to any necessary implication that s 21 displaced the prerogative power to request extradition from a foreign state where the 1966 Act applied. Now the wording in s 40 of the Act is radically different, yet it only prescribes how a request for extradition is to be made. Mr Oates's challenge to this aspect of the judgment below must, in our view, fail.

The Operation of the 1934 Order in Council

20 The nub of Mr Oates's case in the Court below was that, even if the request for his extradition was not made in the exercise of a power granted by s 40 of the Act, the exercise of the executive power to make such a request was nonetheless circumscribed by the operation of s 11(3) of the Act. Lindgren J rejected that submission and said (at 569):

"[38] I address the Treaty below, but it is convenient to note now that in my opinion, there is no scope for saying that by s 11(3) of the Act, `limitations, conditions, exceptions or qualifications' contained in the Treaty somehow affect the application of the Act so that the circumstances, in which the executive power of the Commonwealth to request extradition may be exercised, are confined. As I observe below, apart from stipulating formal requirements with which a request must comply if it is to activate the requested state's Treaty obligation to surrender a person, the Treaty does not impose requirements in relation to the making of requests for extradition.

[39] In the absence of statutory constraints then, ... the executive power of the Commonwealth referred to in s 61 of the Constitution is at large so that the Attorney may lawfully request extradition of a person to answer any criminal charges in Australia where the Attorney perceives it to be in Australia's interests to make such a request."

His Honour had earlier observed (at 564-565):

"[15] ... It is common ground that subs 11(3) of the Act has the effect that in the case of Poland the Act applies, subject to any limitations, conditions, exceptions and qualifications to which the [1966] Act was subject by virtue of s 9 of that Act. Accordingly, I proceed on the basis that the Act applies in relation to Poland subject to any limitations, conditions, exceptions or qualifications found in the Treaty.

[16] The Treaty is not incorporated into Australian law and subs 11(3) means only that the Act `applies' `subject to' any limitations, conditions, exceptions, or qualifications found in the Treaty that are inconsistent with the Act; cf Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-287, 304, 315; Winkler v Director of Public Prosecutions ( 1990) 25 FCR 79 (FC) at 90 (Wilcox and O'Loughlin JJ); Bollag v Attorney-General (Cth) (1997) 79 FCR 198 (Merkel J) at 214-216. I will refer later to the relationship between the Act and the Treaty in more detail but it is worthy of emphasis now that the application of the Act is not affected by it unless the Act would `apply' in some manner that is inconsistent with it."

21 Mr Oates is critical of Lindgren J's holding in [16] of the reasons reproduced above and submits that there is no basis for "reading into" s 11(3) of the Act any requirement of inconsistency before the Act is affected by the Treaty. Mr Oates emphasizes that his case was, and is, that the effect of s 11(3) is to require the Act and the Treaty to be read together. He submits that the Act is modified to accommodate any limitations, conditions, exceptions, and qualifications in the Treaty. Thus, Mr Oates says, the conclusion of Lindgren J in [38] of his reasons above was flawed because there were limitations or conditions on the first respondent's authority implied by relevant provisions of the Treaty for the purposes of s 40 of the Act.

22 On this aspect of the appeal we think it is useful to begin by setting out the passage to which Lindgren J referred in the only extradition case among the three cases cited in [16] of his reasons. In Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 90 Wilcox and O'Loughlin JJ said:

"As a general proposition it is correct to say that, wherever there is a conflict between the terms of the Act and that of the Treaty, the Treaty is to prevail. This is the effect of reg 3 making the application of the Act to the United States subject to the Treaty. Although the notion that the operation of an Act may be limited by the terms of a regulation would normally be heretical, it was a notion specifically countenanced by s 10 of the [1966] Act. And this course was often taken in relation to extradition treaties, so that it was commonplace for an extradition treaty to prevail over this Act."

To the extent that that view of how s 10(1) of the 1966 Act operated was in point to explain the effect of s 11(3) of the Act, it was binding upon Lindgren J. The fact that the primary judge described terms as being "inconsistent" rather than in "conflict" does not suggest that his Honour misunderstood the general proposition stated by Wilcox and O'Loughlin JJ. However, Winkler was a case concerned with extradition from, not to, Australia. It must be understood in that context.

23 In the present case Lindgren J said (at 564) that he proceeded "on the basis that the Act applies in relation to Poland subject to any limitations, conditions, exceptions or qualifications found in the Treaty." By itself, that statement may be ambiguous. His Honour went on, however, to consider (at 571-574 and 578-581) the provisions of the Treaty and the Act before concluding at [87] that "[t]here are no limitations, conditions, exceptions or qualifications in the Treaty which bear upon the making of a request" for extradition. With respect, we think that the course undertaken by the primary judge was unnecessary. Mr Oates's contention that the Act and the Treaty must be "read together" rests upon a misconception about the effect of an Order in Council made under s 2 of the 1870 Act. We think it is clear that any "limitations, conditions, exceptions or qualifications" that have effect by virtue of s 11(3) of the Act relate only to extradition from Australia. Mason J noted in the passage reproduced at [7] above how such an Order in Council operates only in respect of the surrender to a foreign state of fugitive criminals. The true position in respect of the 1870 Act was succinctly stated by Lord Diplock in In re Nielsen [1984] AC 606 at 617 as follows:

"The Acts of 1870 to 1932 do not themselves provide that an arrangement made with a foreign state under section 2 of the Act of 1870 for the surrender by the United Kingdom to that foreign state of fugitive criminals accused or convicted of criminal conduct committed within its jurisdiction must provide for reciprocity of surrender by the foreign state to the United Kingdom of persons accused or convicted of similar criminal conduct committed in this country. In practice, extradition treaties do provide for a substantial degree of reciprocity, but the surrender by a foreign state of a fugitive criminal from the United Kingdom who is found in the territory of that foreign state is not governed by English law at all, but solely by the law of the foreign state that is party to the treaty." (Emphasis supplied.)

We note that, in describing the application of the 1966 Act in Commonwealth v Riley (1984) 5 FCR 8, a Full Court of this Court said (at 15) that requests for extradition made "by or to Australia" were subject to a treaty given effect by regulations made under that Act. Nonetheless it is not necessary for present purposes to consider an hypothesis that regulations could be made under s 11(1) of the Act applying s 40 of the Act differently in relation to Poland. Plainly the subject Orders in Council do not do so, as the 1870 Act made no provision at all in respect of requests for surrender by a foreign state.

24 In the light of Lord Diplock's statement it is hardly surprising that discussion in the English and Australian authorities of the question whether an offence is extraditable for the purposes of a particular treaty arises, almost invariably so far as we can see, in considering a request received from a foreign state and not a request to such a state. (An exception is, of course, provided by Barwick CJ's musings reproduced at [10] above. We have already explained why we think mistaken his view about the displacement of the prerogative. But, however that may be, we think it is clear enough that, by his reference to an "extraditable crime as defined", Barwick CJ meant the definition in s 20 of the 1996 Act that we have set out in [9] above, and not some list of crimes in the relevant extradition treaty.) So, in Riley v Commonwealth [1985] HCA 82; (1985) 159 CLR 1 the High Court considered whether the applicable treaty operated to qualify the definition of "extradition crime" in s 4(1A) of the 1966 Act, and in In re Nielsen and R v Secretary of State for the Home Department; Ex parte Gilmore [1999] QB 611 the English courts were concerned with the impact of particular treaties on the list of crimes used to define "extradition crime" in s 26 of the 1870 Act.

25 The way in which the primary operation of the Act's provisions may be qualified to give effect to particular extradition treaties is explained in Todhunter v United States of America [1995] FCA 1198; (1995) 57 FCR 70. Such a treaty may operate to qualify the definition of "extradition offence" in s 5 of the Act with important ramifications for the four stages in extradition proceedings described in Harris v Attorney-General (1994) 52 FCR 386 at 389. In particular, it may have a significant effect on the operation of ss 16(2)(a)(ii) and 19(2)(c) of the Act, which deal with the so-called dual criminality requirement. The scheme of the Act shows how critical the expression "extradition offence" is to the achievement of the objects expressed in pars (a) and (c) of s 3, but the breadth and generality of the language used in s 40 of the Act stands in stark contrast. Section 40 plainly assumes that the executive power of the Commonwealth to request extradition is entirely unconfined and not subject to any gloss lurking in an extradition treaty. It will be seen, therefore, that, albeit for different reasons and by a more direct route, we have reached the same conclusion as Lindgren J on this aspect of Mr Oates's case.

The Requirements of the Treaty

26 The request for Mr Oates's extradition described the offences of which he was accused as one count of conspiracy to defraud contrary to s 412 of the Criminal Code (WA), eight counts of improper use of position as a company director contrary to s 229(4) of the Companies (Western Australia) Code and eight counts of failure to act honestly as a company director contrary to s 229(1) of the Companies (Western Australia) Code. Details of the charges were attached to the warrant for arrest issued on 11 January 1995. Mr Oates submits that these are not offences enumerated in Art 3 of the Treaty. He relies in support of that submission on the joint written advice of two eminent Sydney counsel obtained on 23 December 1996.

27 Article 3 of the Treaty is referred to in Art 1, which provided:

`The High Contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party."

The first sentence of Art 3 provided:

"Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties (that is to say, in Poland, in accordance with the laws of at least one of the Provinces of Poland):-"

This was followed by a description of crimes or offences listed in 29 items. Article 3 concluded:

"Extradition is also to be granted for participation in any of the aforesaid crimes or offences, before, during or after the crime is committed: provided that such participation is punishable by the laws of both the High Contracting Parties (that is to say, in Poland, in accordance with the laws of at least one of the Provinces)."

28 Counsel were evidently briefed with a copy of the charges and of the Treaty. They were asked to advise whether, under Australian law, the statutory offences charged fell within any of the offences enumerated in Art 3. In their advice counsel identified the only relevant item as:

"19. Fraud by a bailee, banker, agent, factor, trustee, director, member, or public officer of any company, or fraudulent conversion."

They quickly concluded that the offence of conspiracy to defraud did not fall within that item because the word "conspiracy" was used elsewhere in the list to describe specific offences in connexion with the offences of murder and revolt on board a ship on the high seas. Counsel then analysed the elements of the Companies Code offences and the history of the equivalent item in the list of crimes in the 1870 Act before concluding that none of those offences "would, in Australian law, fall within any part of article 3 of the Treaty." Presciently, counsel remarked that: "It is not clear to us to precisely what use this opinion can be put in Polish proceedings."

29 The principal ground of Mr Oates's appeal is that Lindgren J erred in failing to hold that the request for his extradition was required to be made (1) "in conformance with the 1934 extradition treaty in force between Australia and Poland" and (2) "only in relation to a crime or offence listed in Article 3 of the treaty." As to the first suggested requirement, Lindgren J said (at 571-572):

"[50] ... But such a request cannot be made in conformity or in disconformity with the Treaty. The reason is that apart from Art 9, the Treaty contains no requirements of a request for extradition. Although Art 9 sets out formal requirements with which, apparently, such a request must comply if it is to activate the other party's Treaty undertaking, it contains no limitation as to the circumstances in which a request may be made. The Treaty contains reciprocal undertakings to surrender persons, not limitations on either country's power to request the other to do so. The Treaty is directed to the nature and extent of the undertaking by the requested country and the circumstances in which that undertaking is enlivened."

After pointing out that the Treaty contained no stipulation to the effect of the second suggested requirement, his Honour said (at 578):

"[51] ... Clearly, it is only in respect of `a crime or offence listed in Article 3 of the Treaty' that Poland and Australia have each undertaken to the other to surrender a convicted or alleged offender. It is therefore natural that in their memorandum to the Attorney, officers of his department referred to the Treaty: they contemplated engaging Poland's Treaty obligation. But it is a question for the authorities of a requested state how to respond to any request for extradition. Relevant to the question will be its municipal criminal and extradition laws and its own language version of the extradition treaty, upon which its own courts, not those of the requesting state, must rule.

[52] The suggested requirement that a request may be made only in respect of `a crime or offence listed in Article 3 of the Treaty' is ambiguous. In the light of the content of [counsel's] advice, [it is] probably meant that a request may be made only in respect of `a crime or offence, the legal elements of which, according to Australian law, fall within the legal elements of a crime or offence listed in Art 3, also according to Australian law'. An alternative meaning ... is that the facts of the offence as actually alleged must be provable by facts actually alleged which would prove a crime or offence listed in Art 3. In my view, neither supposed requirement of the lawfulness of a request for extradition is imposed by Australian law.

[53] It seems that Mr Oates' case ... must be that in order to be lawful the request must, in truth and as a matter of objective fact, engage a Treaty obligation of Poland to surrender Mr Oates to Australia. In my view Australian law does not so require. ...."

30 We agree with Lindgren J's analysis of the Treaty although, as we have explained, we do not think it was a necessary exercise. In particular, no error can be demonstrated by speculating about how the competent authorities of Poland must deal with Australia's request. Polish law might perhaps require those authorities to consider whether the offences for which Mr Oates's extradition is demanded would be treated in Australia as being "enumerated in Article 3". If so, the answer to that question is a matter for them to be determined according to Polish law.

31 Were it relevant, the Anglo-Australian approach to that question under the 1870 Act was laid down in In re Nielsen. Lord Diplock pointed out (at 615) that, where an item such as item 19 describes offences in general terms and popular language, it was necessary to look at the conduct of which a person was accused in order to determine whether such conduct fell within the generic description of offences. Here the evidence submitted by Australia to Poland includes an affidavit made on 26 October 1995 by the lawyer in the Office of the Director of Public Prosecutions with the carriage of Mr Oates's prosecution and an affidavit made on 27 October 1995 by the officer of the Australian Securities Commission who laid the subject complaints. The facts alleged to constitute the offences are briefly summarized in some fourteen pages of the second of those affidavits. The offences were allegedly committed in the period between 26 August 1988 and 29 May 1989. These affidavits were apparently not available to counsel when they gave their advice on 23 December 1996. At first instance Lindgren J remarked (at 581-582) that Mr Oates did not submit that the facts alleged in that material did not show fraud by him as a director of the two companies named. Nor was such a submission made on the appeal and, indeed, we were not addressed at all on the contents of those affidavits. We are, therefore, relieved of the obligation to descend to any detail whatsoever for our confident opinion, were it relevant, that the conduct of which Mr Oates stands accused constitutes, for the purposes of Art 3 of the Treaty, either fraud as director of a company or participation in such fraud.

32 In any event, deference to the Polish authorities is hardly a cause for disquiet. Mr Oates is a fugitive, and there is an outstanding warrant for his arrest. The request for his extradition has been signed by this nation's first Law Officer. The Treaty was acceded to on the advice of the Australian Government. It ought not to be assumed that the competent authorities in Poland will be any less astute than our own in refusing to surrender a person in the case of an "exorbitant" request: Regina (Al-Fawwaz) v Governor of Brixton Prison [2002] 2 WLR 101 at 146-147.

Order

33 Mr Oates pursued a more elaborate case at first instance than on appeal. However, in our opinion, he has failed on all the issues re-agitated on this appeal and it should be dismissed with costs. Lindgren J said that, even had he considered the request for Mr Oates's extradition to be unlawful, he would have refused relief in the exercise of his discretion. His Honour gave reasons (at 595-596) for that view, and we can detect no error of principle in his approach. Indeed, whilst the source of the Court's jurisdiction invoked by Mr Oates was not the subject of debate before us, this case strikes us as the strongest one imaginable in which to withhold relief on the ground of unwarrantable delay. Mr Oates first pressed the joint advice of counsel upon the first respondent on 6 February 1997. The risible negotiations for his voluntary return to Australia provide no excuse whatsoever for his delay in mounting this challenge. Correctly, in our view, Lindgren J made no reference to evidence of Mr Oates's personal circumstances, the weight of which must be very slight since it was not given by himself but by his solicitors. Such subjective considerations remain matters for the Polish authorities.

Postscript

34 Whilst this appeal stood for judgment, the respondents applied to have the Court receive further evidence on the appeal. The evidence which they wanted the Court to receive was the ruling given on 15 January 2002 by a District Court in Poland that Mr Oates may be extradited to Australia in respect of fifteen of the seventeen offences with which he was charged. The respondents tendered an English translation of the District Court's decision and of its reasons published on 22 January 2002. Mr Oates objected to the reception of that evidence on the ground of relevance. It will be obvious from what we have already said that we do not consider the disposition of this appeal turns on the actual outcome of any step in the extradition proceedings in Poland. Accordingly, notwithstanding the recency of the District Court's decision, this further evidence should not be admitted on the appeal.

Associate:

Dated: 28 March 2002

CONTI J

Background

35 This is an appeal from the whole of the judgment of Lindgren J delivered on 16 February 2001, whereby his Honour dismissed the Appellant's application made on 13 December 2000 for declaratory relief and orders in the nature of certiorari under s 39B of the Judiciary Act 1903 (Cth) in relation to the Request of the Attorney-General made on or about 7 July 1996 to the Republic of Poland for the surrender of the Appellant for return to Australia. The reasons for judgment of the primary judge are reported at [2001] FCA 84; (2001) 181 ALR 559.

36 As stated by the primary judge, the heart of the case at first instance was the Appellant's contention that the offences with which the Appellant is charged lie outside the terms of the Extradition Treaty existing between Australia and Poland, which was entered into on 11 January 1932 between His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, of the one part, and the President of the Republic of Poland, of the other part ("the Treaty"), pursuant to the United Kingdom Extradition Acts 1870 to 1935 which had been applicable in respect of Australia by Order in Council of 20 December 1934, and had been supplemented by the Extradition Act 1903-1950 (Cth), and that the Respondents were unable to avoid the implications of that circumstance by reliance upon prerogative power. That Order in Council and supplementary legislation became replaced in operation by the Extradition (Foreign States) Act 1966 (Cth) ("the 1966 Act"), and the 1966 Act was subsequently replaced in turn by the Extradition Act 1988 (Cth) (the "1988 Act"), to both of which statutes close attention is required to be made.

37 The request for extradition was in the following terms:

"Request for the Extradition to Australia from the Republic of Poland

Antony Gordon Oates

I, Daryl Williams, Attorney-General of Australia, on behalf of the Government of Australia hereby request that Antony Gordon Oates, who is accused in the State of Western Australia of the following offences:

* one count of conspiracy to defraud contrary to section 412 of the Criminal Code of Western Australia

* eight counts of improper use of position as a company director contrary to section 229(4) of the Companies (Western Australia) Code; and

* eight counts of failure to act honestly as a company director contrary to section 229(1) of the Companies (Western Australia) Code;

be returned to Australia to be dealt with according to law.

Dated at Perth

this 7^th day of July 1996

Daryl Williams (signed)

Attorney-General"

38 The Treaty, which was lengthy in its content, is largely set out at [12] of the judgment of the primary judge. Those parts particularly material to the issues raised by the Appellant will be later extracted. It suffices at this stage to record that the Treaty recites the mutual desire to make provision for the reciprocal extradition of criminals, and resolution having been made to conclude a Treaty for that purpose. Article 1 reads as follows:

"The High Contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other party."

The bilateral character of the Treaty may be observed. Article 3 enumerates 29 such offences, introduced by the following:

"Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties (that is to say, in Poland, in accordance with the laws of at least one of the provinces of Poland)."

Those offences material to the present proceedings are as follows:

"1. Murder... or attempt or conspiracy to murder.

...

19. Fraud by a bailee, banker, agent, factor, director, member, or public officer of any company, or fraudulent conversion.

...

28. Revolt or conspiracy to revolt.

..."

The absence of reference to conspiracy in offences 1 and 19 may be observed. Thereafter appears the following within Article 3 of the Treaty:

"Extradition is also to be granted for participation in any of the aforesaid crimes or offences, before, during or after the crime is committed provided that such participation is punishable by the laws of both the High Contracting Parties (that is to say, in Poland, in accordance with the laws of at least one of the Provinces)."

Again the bilateral nature of the foregoing stipulation may be observed. Other Articles addressed issues dealing with lapse of time after offences had been committed, offences of a political character, exclusion of offences other than those for which extradition has occurred, the need for an accompanying warrant for arrest, and insufficiency of evidence according to the laws of the state applied to for extradition.

39 Some historical events recorded by the primary judge are reproduced below in chronological sequence:

11 January 1995:

Complaint laid against the Appellant under the Justices Act 1902 (WA) in Perth by an officer of the Australian Securities Commission ("ASC") and warrant issued for the Appellant's apprehension.

2 February 1995

ASC wrote to the Appellant in Poland, where he had been residing since 1991, whereby the Appellant was advised of the issue of the warrant in respect of the seventeen charges, all of which related to his alleged conduct as a director of Bell Resources Limited in the conferral of benefits on Alan Bond, or companies associated with him, to the disadvantage of the shareholders of that company.

22 October 1996

The Appellant was arrested by the Polish authorities and confined to prison in Poland, in relation to and as a result of the request for extradition.

23 December 1996

Joint Memorandum of Advice provided by Mr J J Spiegelman of Queens Counsel (as he then was) and N J Williams of junior counsel (as he then was) to the Appellant's solicitors to the effect that none of the statutory offences with which the Appellant had been charged fell within any of the crimes or offences listed in Article 3 of the Treaty, which Memorandum of Advice was provided to the Attorney General on 6 February 1997.

22 May 1997

The Appellant was released from prison by order of the Supreme Court of Poland.

7 September 2000

The European Court of Human Rights declared that the Appellant's detention was unlawful, and that he should have been released on 22 December 1996, but that since he had accepted a Polish Government apology on 28 August 2000, the matter was treated as resolved.

The 1966 Extradition Legislation

40 As already indicated, the first comprehensive extradition legislation in Australia was the 1966 Act. Prior to its replacement by the 1988 Act, the 1966 Act underwent many amendments. The transitional provisions of the 1966 Act contained within Part II thereof included the following:

"9(1) Where, immediately before the commencement of this Act -

(a) under an Order in Council in force under the Imperial Acts known as the Extradition Acts, 1870 to 1935, those Acts applied in the case of a foreign state specified in the Order; and

(b) those Acts, as they so applied, extended to the Commonwealth, this Act applies in relation to that state.

...

(2) If the operation of the Order was subject to any limitations, conditions, exceptions or qualifications, then, subject to this Part, this Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications."

The expression in subs 9(2) of the 1966 Act "subject to those limitations, conditions, exceptions or qualifications" assumes importance in the resolution of the issues arising on appeal. That statutory expression appears to trace in origin to s 5 of the 1870 Imperial legislation of Great Britain to which I have already referred. By way of compliment to s 9, ss 10 and 11 of the 1966 Act, the only other sections within Part II of that Act, continue the statutory theme as to "limitations, conditions, exceptions or qualifications" as follows:

"10. (1) Where, after the commencement of this Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign state -

(a) if this act applies in relation to the foreign state at the time of coming into force of that treaty - the regulations may provide that this Act applies in relation to that state after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations;

(b) if this Act does not apply in relation to the foreign state at the time of coming into force of that treaty - the regulations may provide that this Act applies in relation to that state after that time and may also provide that it so applies subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations.

(2) The limitations, conditions, exceptions or qualifications referred to in sub-section (1) may, in relation to a foreign state, be expressed in the form that this Act applies in relation to that state subject to the extradition treaty referred to in that sub-section or, if that extradition treaty affects or amends an earlier extradition treaty, subject to that earlier extradition treaty as affected or amended by the later extradition treaty.

(3) Where, after the commencement of this sub-section, a treaty (other than an extradition treaty) that contains provisions relating to the surrender of fugitives comes into force between Australia and a foreign state, sub-sections (1) and (2) apply for the purpose of giving effect to that treaty in so far as it relates to the surrender of fugitives in like manner as they apply for the purpose of giving effect to an extradition treaty.

(4) Where the Governor-General is satisfied that, if this Act applied in relation to a foreign state, the law of that foreign state would, with or without any limitations, conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV who are found in that foreign state, or within the jurisdiction of, or of a part of, that foreign state, the regulations may provide that this Act applies in relation to that foreign state or that this Act applies in relation to that foreign state subject to limitations, conditions, exceptions or qualifications specified in the regulations.

Effect of regulations applying Act in relation to foreign state

11. (1) Subject to sub-section (2), where the regulations for the time being in force provide that this Act applies in relation to a foreign state, this Act applies in relation to that state.

(2) Where the regulations for the time being in force provide that this Act applies in relation to a foreign state subject to any limitations, conditions, exceptions or qualifications, this Act applies in relation to that state subject to those limitations, conditions, exceptions or qualifications."

41 Part III of the 1966 Act related to "Extradition to Foreign States". It sought to regulate the surrender of fugitives to extradition treaty countries for "extradition crime", a statutory notion defined by subs 4(1A) of the 1966 Act. It contained thirteen sections, relating firstly to the liability of a fugitive to be extradited to a foreign state, subject to the 1966 Act and to any limitations, conditions, exceptions or qualifications to which the application of the 1966 Act in relation to that state was subject (s 12), restrictions on surrender of persons to foreign states (s 13), restrictions on the power of the Attorney-General to authorise the apprehension or order the surrender of a fugitive (s 14), the giving of notices by the Attorney-General (s 15), the issue of warrants (s 16), searches after apprehension (s 16A), search warrants (s 16B), proceedings after apprehension of persons (s 17), review of decisions of magistrates (ss 17A and 18), the surrender and transit of fugitives (ss 18A and 18B), and the discharge of fugitives not conveyed out of Australia within 2 months (s 19). Part IV of the 1966 Act related to "Extradition From Foreign States", and contained only four sections, namely s 20 relating to interpretation of the Part IV notion of "extraditable crime", s 21 relating to requisitions to foreign states for the surrender of persons to be made by the Attorney-General, s 22 relating to surrendered persons who may be brought into Australia, and s 23 relating to the traditional extradition notion of "specialty", namely that persons surrendered by foreign states were not to be prosecuted or detained for offences other than for those for which they had been detained. The Part III notion of "extradition crime" and the Part IV notion of "extraditable crime" were identical, each relating to offences against the laws respectively of a foreign treaty state and of Australia and carrying maximum penalties of death or imprisonment for not less than 12 months. The full text of ss 20, 21 and 22 is set out in [45] below.

42 The scope of operation of the 1966 Act fell for consideration by the High Court of Australia in Barton v The Commonwealth [1974] HCA 20; (1974) 131 CLR 477, in the context of an opposed extradition from Brazil to Australia of two Australian citizens charged in Australia with offences, at a time when no extradition treaty existed between Australia and Brazil. In the present proceedings, the parties cited extensively from the judgments in Barton, notwithstanding the differing circumstance in the present litigation that the applicable legislation in Barton was the 1966 Act, and the applicable legislation here is of course the successor 1988 Act, and the extradition of the Bartons was sought from a non-treaty country (Brazil), rather than as here, a treaty country (Poland).

43 Addressing the historical development of extradition treaties and legislative frameworks relating to extradition from other countries to common law countries, Barwick CJ spoke at 483 of reciprocity in extradition as having become central to the surrender of fugitives under the auspices of such treaties (so much is true of the Treaty, as appears from the introductory words to Article 3 thereof reproduced in [38] above), referred to the development of the limitation of extradition to more serious crimes, and to the practice of identification by treaties of the serious crimes to which the same would apply. Thereafter at 484, in the context of his further discussion of the Imperial 1870 legislation (ante), Barwick CJ elaborated upon the theme of reciprocity between extradition treaty countries, and the consequences as to supersession of the prerogative of the Crown, as follows:

"Where in such countries (ie common law countries) statutory authority exists to permit and regulate the surrender of a person on the request of another country, and the right to do so is limited to states with which extradition treaties exist, the power of the executive government, in monarchical systems expressed as a prerogative of the Crown, to accede to a request for surrender of a fugitive, if it existed before such legislation, has clearly been superseded. Indeed, whether or not an extradition treaty relevantly exists, a person may only be surrendered if statutory authority so exists."

His Honour next addressed at 485 the converse circumstance which was present in Barton, but not in the present litigation, namely the seeking and acceptance from a non-treaty country of an offender, in relation to which the prerogative remained:

"However, though perhaps in disuse, I think the better opinion is that after 1870, the Crown retained a prerogative to seek and accept from a non-treaty state the surrender of a fugitive, subject only to the limitation of specialty imposed by s 19 of the Extradition Act 1870. In respect of that prerogative, there would be no limitation as to the nature of the offence in respect of which the request was made."

At 487, Barwick CJ returned to the consequences of Australia becoming bound to extradition treaties with foreign states which are inherently bilateral in character, being again obiter in the context of Barton, but nevertheless of doctrinal importance in the present appeal. Upon the premise that a foreign state to which Part IV of the 1966 Act applied was the same foreign state to which the 1966 Act as a whole applied, his Honour pointed to two so-called "small matters". The first, as I have earlier foreshadowed, was that an extraditable crime to which Part IV related was of the same nature as an extradition crime to which Part III of the same Act related, and vice versa. The second confirmed the substance of what he had earlier stated at 483 concerning the element of reciprocity inherent in bilateral extradition treaties:

"Having regard to the operation of the definition of extradition crime in s 4, it is clear that the Parliament has controlled the executive in the use of the extradition treaties. They are capable of containing within their provisions crimes not listed in that schedule. But if they do, the Act will limit the extent to which the treaty may be observed. Thus because of the need for Australia to be able to perform the treaty, the presence of the definition of extradition crime will control the content of the treaty in its specification of the crimes to which it will apply. Also a regulation made under s 10 is within the operation of Part XII of the Acts Interpretation Act, 1901-1966 (Cth) and thus liable to disallowance. Through the power of disallowance and the definition of extradition crime the Parliament has control of the effectiveness of the terms of an extradition treaty."

As I pointed out in [41] above, the definition of "extradition crime" in subs 4(1A) of the 1966 Act was the same as the definition of "extraditable crime" in s 21.

44 A further matter to which the Chief Justice referred at 487 was that by s 21 of the 1966 Act, the authority of the Attorney-General was to present to a foreign state a "requisition", being a word which his Honour described a demand as of right pursuant to a treaty, in contrast to the word "request" which, when properly used, indicated resort to a discretion or grace rather than concession of a right. The Chief Justice thereafter concluded upon the limited power of the Attorney-General, as a consequence of the enactment of the 1966 legislation, as follows (at 487-488):

"How, if at all, has the Act impinged upon the prerogative of the Crown to seek and accept the surrender of a fugitive? Doubtless, the prerogative to do so from a foreign state to which the Act applies has been wholly displaced. The Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined. The only power is that of the Attorney-General to requisition of such a state the surrender of a fugitive who is charged with or has committed an extraditable crime. This requisition will be communicated through diplomatic channels, as is international usage."

As in the case of what I have extracted from Barton at 484 and 487 above, the foregoing conclusion of Barwick CJ at 487-488 was obiter, but if the same was correct, there are profound consequences to the outcome of this appeal, unless the 1988 Act is to be given a different operation relevantly to the 1966 Act.

45 At least by the time of the 31 October 1988 reprint of the 1966 Act, being of course fourteen years after the decision of the High Court was handed down in Barton, the definition of "extraditable crime", contained in s 20 thereof, read not materially differently, as follows:

"20. In this Part, `extraditable crime' means an offence (wherever committed) against the law in force in Australia or in a part of Australia (including an offence against such a law relating to taxation, customs duties, foreign exchange control or any other revenue matter) for which the maximum penalty is death or imprisonment for not less than 12 months."

At the time of such reprint, ss 21 and 22 read as follows:

"21. Where a person accused or convicted of an extraditable crime is, or is suspected of being, in a foreign state or within the jurisdiction of, or of a part of, a foreign state, (whether the extraditable crime is alleged to have been committed, or was committed, before or after the commencement of this Act or before or after the time when this Act commenced to apply in relation to that state), the Attorney General may make a requisition to that state for the surrender of the person.

22. Where a person accused or convicted of an extraditable crime is surrendered by a foreign state, the person may be brought into Australia and delivered to the proper authorities to be dealt with according to law."

The continuing use of the expression "requisition" in s 21 may be noticed, in the light of the observation made by Barwick CJ in relation thereto recorded in [44] above. The Respondents did not contend that various amendments to the 1966 Act, made after Barton was decided, rendered any of the foregoing cited dictum of his Honour in Barton as to entire displacement of the prerogative no longer applicable.

46 Having thus made the foregoing observations in the setting of bilateral extradition treaties to which Australia was privy, such as here the Treaty between Australia and Poland, Barwick CJ addressed the subject of the continuing prerogative to seek and accept from a non-treaty state, such as Brazil, the surrender of a fugitive by Australia (my emphasis). It was in that converse context, I should emphasise in the light of passages in the judgment of the primary judge, that his Honour at 488 referred to "the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong", and concluded that "Pt IV does not displace the prerogative to seek and accept of a non-treaty state the surrender of a fugitive" (my emphasis).

47 None of the other members of the High Court in Barton expressed conclusions albeit obiter concerning the subsistence or otherwise of the prerogative in the context of the 1966 Act of bilateral extradition treaties to which Australia might be privy. The joint judgment of McTiernan and Menzies JJ in Barton resolved the issue arising on the appeal in favour of the Commonwealth on a more confined basis, making the observation (at 491), not inconsistently with the Chief Justice's observations which have earlier referred to, that unless the statute, either expressly or by necessary implication, "has deprived the executive of part of its inherent power, it may make such requests as it considers proper for the assistance of other states in bringing fugitive offenders to justice".

48 As in the case of the Chief Justice, the judgment of Mason J (as he then was) in Barton reflected extensive historical research into occasions of exercise of the Crown prerogative for the extradition of fugitives, and of the evolution of extradition treaties made by Great Britain, prior to the twentieth century, with foreign states. Following upon the passage in his Honour's judgment at 497-498, which was extracted at length by Lindgren J in the present proceedings below at [43], Mason J made it clear that he approached the issues raised before him "... on the footing that the making of a request to a foreign state for extradition of a fugitive offender wanted for trial in Great Britain, in circumstances where there was no treaty between Great Britain and the foreign state, was something which at the end of the nineteenth century fell within the executive power of the Crown", which were of course the circumstances in Barton but not the circumstance here. His Honour thereafter made the following observations at 498 concerning the nature and scope generally of the continuing executive power in Australia which prevailed in the Barton circumstances:

"By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law."

49 After stating at 498-499 that "... subject to a consideration of the effect of the Commonwealth Act, (my emphasis), the making of a request to a foreign state for the surrender of a fugitive offender alleged to have committed an offence against the laws of Australia is an act which falls within the executive power of the Commonwealth", being a consideration which, unlike Barwick CJ, Mason J did not venture any concluded obiter view, Mason J recognised at 499 the existence of some support for the contention advanced by the Attorney-General in Barton, contrary to the appellants' submissions in Barton, that none of the provisions contained in Part IV of the 1966 Act were so expressed as to be necessarily limited to extradition from a foreign state pursuant to a treaty, and further that the content of those Part IV provisions did not render their application to extradition from a non-treaty country, such as Brazil, in any way inappropriate. Moreover still at 499, his Honour expressed his inability to read Part II of the 1966 Act otherwise than as a declaration and description of the circumstances in which the Act in its entirety was intended to operate. Those views of his Honour so expressed at 499 present some support for the alternative way in which the Appellants here put their case as to the operation of Part IV of the 1988 Act. His Honour also observed, relevantly for present purposes, that the sections located within Part II, and in particular the expression "this Act applies in relation to that State" contained in inter alia subss 9(1) and 9(2), applied to the 1966 Act in its totality. Mason J withheld however from expressing affirmatively the obiter opinions of Barwick CJ at 484, 485 and 487 which I have cited, though it is important to appreciate for present purposes that in his references to and discussion of the 1870 Imperial Act, his Honour did not suggest that the same possessed any counterpart to Part IV of the 1966 Act.

50 Mason J thus joined with all of the other members of the High Court in Barton (including the Chief Justice) in concluding to the effect that the 1966 Act applied to circumstances in which Australia was bound by an extradition treaty with a foreign state, which was not of course the case with Brazil, but remains the case with Poland, and it was in that context he referred to the following principle already cited from the judgments of Barwick CJ and of McTiernan and Menzies JJ jointly (at 501), which the primary judge duly emphasised:

"It is well accepted that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or by implication, that is, necessary implication."

Thereafter Mason J resolved the controversy he had identified at 499 of Barton as follows:

"Here, not only is there a conspicuous absence of express words, but the area of operation of the statute, limited as it is to extradition pursuant to treaty, does not extend to the whole of the area covered by the exercise of the prerogative or executive power."

51 The remaining judgment in Barton was that of Jacobs J. At 505, his Honour said that "A request to a foreign state for a person's extradition or for his detention is in the absence of a statute a purely executive act, and may therefore be called an exercise of the prerogative", though further he said at 506 "... although it is not necessary to give power to the executive to request detention in and extradition from another country, nevertheless, if reciprocity with the other country is sought, it is necessary to provide by Act of Parliament for detention in and extradition from this country. This was recognised by the United Kingdom Extradition Act 1870". Thereafter at 507, after pointing out what is common ground to the parties in the present appeal, that "[t]he effect of the application of the Act is not directly to give the relevant treaty the force of law in Australia...", his Honour further said that Part IV of the 1966 Act dealt only with extradition from foreign states with whom there was an extradition treaty under that or previous legislation, adding that "[a] feature of extradition legislation is reciprocity by treaty between states and that feature is preserved by giving Part IV an application limited to circumstances where such a treaty exists and pursuant to ss 9 and 10 the Act is thereby expressed to apply".

52 Thereafter at 507-508 his Honour added the observations that "possibly s 21 replaced the prerogative power of the Crown by a legislative authority to the Attorney-General to make the requisition to the foreign state" (my emphasis), in the following context as fully extracted below:

"Then there is the question whether Pt IV is an exhaustive statement of the circumstances under which the Australian Government may request the extradition of a person from a foreign state. The Act by Pt IV may be exhaustive of the circumstances under which extradition may be requested from a state with which there is a treaty effective under the Act - that is a question which does not need to be determined in this case - but there is nothing in the legislation which would suggest that the executive power stemming from the prerogative is intended wholly to be replaced by the statutory power in Pt IV... But an intention to withdraw or curtail a prerogative power must be clearly shown and, as I have tried to show earlier, the right to communicate freely with a foreign state is an important prerogative power. In my opinion the express grant of the powers conferred in s 21 is insufficient to take away the prerogative power in circumstances where the Act does not apply. In circumstances where the Act does apply the sections do not diminish the executive power, though possibly s 21 replaced the prerogative power of the Crown by a legislative authority to the Attorney-General to make the requisition to the foreign state. However he does so as the appropriate Minister of the Crown and I can discern no implied intention to cut down the power of the Crown generally. The power conferred by s 21 on the Attorney-General... is in effect a machinery provision."

53 In summary as to obiter dicta appearing from the judgments in Barton which I have reviewed, the following opinions relevant to the present appeal would apply, upon the hypothesis that the 1966 Act had continued to remain in force, and not been replaced by the 1988 Act:

(i) according to Barwick CJ, and not gainsaid by any of the other members of the Court, the prerogative to request a foreign treaty state to extradite fugitives to Australia no longer applied; and

(ii) according to Mason and Jacobs JJ, Part IV of the 1966 Act related to executive functions, or what Jacobs J also referred to as "machinery" provisions, inferring thereby that the exercise of power pursuant to such provisions would nevertheless be governed by Parts II and IV of the 1966 Act, in their implementation (such as in the case here of a subsisting extradition treaty).

The 1988 Legislation

54 The 1988 Act commenced in operation on 1 December 1988. In the Second Reading speech to the  Extradition Bill 1987  which preceded the enactment of the 1988 legislation, the Attorney-General stated, significantly for present purposes, that "The Bill simplifies certain matters which have led the courts into difficulty under the current laws. It does not change the law; it merely expresses in clearer language the concepts contained in the current Acts," and further that "[a]s I stated at the beginning of this speech, this legislation is the result of a comprehensive review of the efficacy of the current extradition laws. It embodies much of the wisdom of our courts which has been gleaned from judgments". The 1988 Act is intended of course to replace the 1966 Act. Part II thereof relates to "Extradition From Australia To Extradition Countries" and consists of ss 12 to 27, and Part IV thereof relates to "Extradition To Australia From Other Countries" and consists of ss 40 to 44. The intervening Part III concerns extradition from Australia to New Zealand, and addresses most of the same subject matters as Part II, whilst reflecting also the similarity of the circumstances of Australian and New Zealand administrations. There is a correspondence of subject matters addressed by Part II of the 1988 Act with those addresses by Part III of the 1966 Act, the latter having been summarised in [43] above. There also is a correspondence of subject matters addressed by ss 40 to 42 of Part IV of the 1988 Act with ss 21 to 23 of Part IV of the 1966 Act; the additional ss 43 and 44 of Part IV relate to "Evidence for purposes of surrender of persons to Australia" and "Persons temporarily surrendered to Australia", the former corresponding with s 27A of the 1966 Act. The s 5 definition of "extradition country" refers by paragraph (a) thereof to "any country (other than New Zealand) that is declared by the regulations to be an extradition country"; the definition extends of course to Poland, by reason of paragraph (c) thereof reading as follows:

"(c) until the regulations provide that this paragraph does not apply in relation to a foreign state, any foreign state to which [the 1966 Act] applied by virtue of section 9 of that Act."

The s 5 definition of "extradition offence", most relevantly for present purposes, means in relation to Australia or part of Australia:

"(b) an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months."

The preceding paragraph (a) of the definition of "extradition offence", in relation to a foreign country, concerns an offence carrying the same range of penalties, or else if not subject to penalty in the foreign country, constitutes conduct treated as an offence under a treaty with Australia for which surrender is mutually permitted. As in the case of the 1966 Act in relation to its identical definitions of "extradition crime" and "extraditable crime" respectively, such definition contains no reference to an extradition treaty. The definition of "extradition offence" is picked up by the s 6 definition of "extraditable person", and speaks of "an extraditable person in relation to the country" against the law of which an offence has been committed or convicted, and does not draw any distinction in relation to Australia, consistently with subs 43(1) later extracted.

55 Section 11 of the 1988 Act assumes particular importance in the resolution of this appeal; it corresponds in theme and purpose with ss 9 and 10 of the 1966 Act (see [40] above). Sub-sections 11(1) and (3) respectively read as follows:

"11 (1) The regulations may:

(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or

(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications.

...

(3) Until the regulations make provision as mentioned in sub-section (1) in relation to an extradition country, being a foreign state to which paragraph (c) of the definition of `extradition country' in section 5 applies, this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications to which the former Foreign Extradition Act, in its application in relation to the extradition country as a foreign state, was subject by virtue of section 9 of that Act."

The key expressions of both sub-sections, for present purposes, namely "subject to any limitations, conditions, exceptions or qualifications", are to be found specifically in subs 9(2), paragraphs (a) and (b) of subss 10(1), 10(2), 10(4) and 11(2) of the 1966 Act (extracted in [40] above). The Court was informed that no regulations pursuant to subs 11(3) of the 1988 Act have been made in relation to Poland since the enactment thereof, with the consequence that subsection (3) applies in relation to Poland as an extradition country, subject to such limitations, conditions, exceptions or qualifications to which the 1966 Act, in its application in relation to Poland, was in turn subject by virtue of subs 9(2) of the 1966 Act. Those key expressions are of critical importance to the correct interpretation of Part IV of the 1988 Act, which I will now address.

56 Sections 40 and 41 and subs 43(1) of Part IV of the 1988 Act which fall for critical consideration, are extracted in full below:

"40. A request by Australia for the surrender of a person from a country (other than New Zealand) 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.

41. Where a person is surrendered to Australia in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted (whether or not pursuant to a request under section 40), the person shall be brought into Australia and delivered to the appropriate authorities to be dealt with according to law.

43. (1) Where the Attorney-General suspects that a person who is an extraditable person in relation to Australia (whether or not the Attorney-General knows or suspects the person to be in a particular country or has made a request under section 40 or otherwise in relation to that person), the Attorney-General may, by notice in writing in the statutory form, authorise the taking of evidence in Australia for use in any proceedings for the surrender of the person to Australia."

None of the foregoing provisions of Part IV of the 1988 Act purport to exclude or modify the operation of subs 11(3) in relation to the limitations, conditions, exceptions or qualifications to which the operation of the 1966 Act, in its application in relation for instance as here to Poland as an "extradition country", or to any other extradition treaty country for that matter, was subject by virtue of subs 9(2) thereof. I should add for completeness that the intervening provisions of s 42 of the 1988 Act correspond with s 23 of the 1966 Act relating to the extradition notion of "specialty", which Barwick CJ addressed in Barton at 485, and need not further be referred to.

57 Having outlined in [54] above the extent to which the 1988 Act corresponds in subject matter with the 1966 Act, I next set out the statement of principal objects of the 1988 Act contained in s 3 thereof, for which there was no counterpart in the 1966 Act, as follows:

"3. The principal objects of this Act are:

(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."

I do not wholly comprehend the use of the word "codify" in paragraph (a) of s 3 above, once comparison is made of Parts II and III of the 1966 Act with Parts I and II of the 1988 Act. In any event, the primary judge described the distinction between paragraphs (a) and (b), by reason of paragraph (a) containing the words "to codify", as "striking", and provided the following explanation:

"In so far as the Act deals with the making by Australia of requests for extradition, it is not a code, but is intended to facilitate the exercise of the executive power of the Commonwealth to make such requests."

"Facilitate" is not however an apposite description of the use of existing prerogative or executive power. Moreover, there are obviously different functions, apposite to requests made by extradition treaty countries to Australia, from requests made by Australia to extradition countries. The former involve matters such as arrest and detention in Australia, curial processes in Australia and transportation from Australia to the requesting state, whereas Australia obviously cannot legislate in relation to functions of a similar kind to be performed outside of Australia by a foreign country. As in the case of Part IV of the 1966 Act, which was confined in scope to essentially the same subjects as are addressed by Part IV of the 1988 Act, it would have been obviously incompetent for Australia to have legislated in Part IV of the 1988 Act, in relation to fugitives located offshore in extradition countries, concerning the numerous subject matters appearing in Part II of the 1988 Act, or in the corresponding precursor Part III of the 1966 Act.

58 The primary judge described the combined impact of the provisions of subss 9(1) and (2) of the 1966 Act and of subs 11(3) of the 1988 Act, all of which have been earlier extracted, as follows:

"14. By subs 9(1) of the [1966 Act], the [1966 Act] was made applicable in relation to Poland. Sub-section 9(2) of the [1966 Act] provides that if the operation of the relevant Order in Council was subject to any limitations, conditions, exceptions or qualifications, then, subject to Part II of the [1966 Act], the [1966 Act] applied, subject to those limitations, conditions, exceptions and qualifications. It is common ground that in the case of Poland the relevant Order in Council applied subject to any limitations, conditions, exceptions and qualifications found in the Treaty.

15. Section 5 of the [1988 Act] defined the expression `extradition country' for the purposes of the Act to mean, relevantly, a foreign state to which the [1966 Act] applied by virtue of s 9 of the [1966 Act]. It follows that Poland is an extradition country for the purposes of the [1988 Act]. It is common ground that subs 11(3) of the Act has the effect that in the case of Poland the Act applies, subject to any limitations, conditions, exceptions and qualifications to which the [1966 Act] was subject by virtue of s 9 of that Act. Accordingly, I proceed on the basis that the Act applies in relation to Poland subject to any limitations, conditions, exceptions or qualifications found in the Treaty.

16. The Treaty is not incorporated into Australian law and subs 11(3) means only that the [1988 Act] `applies', subject to any limitations , conditions, exceptions or qualifications found in the Treaty that are inconsistent with the Act..."

If his Honour intended by paragraph 16 above to conclude no more than what was earlier explained by a Full Court (comprising Smithers, Sheppard and Wilcox JJ) in Commonwealth of Australia & Anor v Riley (1984) 5 FCR 8 at 15 in relation to the operation of subs 9(2) of the 1966 Act, in substance the precursor to subs 11(3) of the 1988 Act, which I now set out below;

"Section 9(2) of the Act refers to limitations etc upon the operation, in relation to a particular state, of an Order in Council under the Imperial Extradition Acts 1870 to 1935. The effect to reg 3 (ie of the Extradition (United States of America) Regulations made on 27 August 1976) is that the provisions of the Extradition (Foreign States) Act 1966 apply to requests for the extradition of a `fugitive' made by or to Australia to or by the United States of America. However, in relation to such requests, the terms of the Act are made subject to any limitations, conditions, or qualifications to be found in the Treaty on Extradition between those two countries."

then I would respectively adopt what his Honour so observed.

Principal issues arising on appeal

59 The principal issues arising on the appeal relate to the viability in law of the Request for Extradition made by the Attorney-General as set out in [37] above ("the Request"). Counsel for the Appellant divided their submissions upon that principal issue into the following three segments:

(i) the primary judge erred in finding that the Request was made in the exercise of the prerogative, or executive power of the Commonwealth now conferred by s 61 of the Constitution, and not in exercise of a power conferred by s 40 of the 1988 Act;

(ii) the primary judge erred in finding that the 1988 Act has left at large the prerogative or executive power of the Commonwealth to request extradition, and in therefore finding that the Attorney-General, may lawfully request extradition of a person to answer any criminal charges in Australia, where the Attorney perceives it to be in Australia's interest to make such a request;

(iii) the primary judge erred in failing to find that the Request was invalid, because it was required to be, but was not made, in conformance with the Treaty, and in particular in relation to a crime or offence listed in Article 3 of the Treaty.

60 The Appellant made the following four elaborations in outline upon such submissions, in summary in advance of detailed submissions, in relation to the three main segments of issues arising on appeal set out in the preceding paragraph:

(i) correctly construed, s 40 of the 1988 Act confers power upon the Attorney-General to make a request for the surrender of a person;

(ii) in fact, the Request was made in exercise of the statutory power conferred by s 40;

(iii) however, even if the Request was made by the Attorney-General in the exercise of prerogative or executive power, any such exercise of executive power was subject to control by the 1988 Act, including in particular subs 11(3) thereof, with the result that a request for the surrender of a person from Poland could only seek the return of that person to Australia to face charges for a crime or offence listed in Article 3 of the Treaty; and

(iv) the Request was invalid because it was required by the 1988 Act to be made, but was not so made, in conformance with the Treaty, and thus only in relation to a crime or offence listed in Article 3 of the Treaty.

Section 40 of the 1988 Act and the executive power of the Commonwealth

61 The primary judge found that s 40 of the 1988 Act does not empower the Attorney-General to make a request for the surrender of a person, but instead assumes that such a request might be made in the exercise of a power to be found elsewhere, and requires that an exercise of that power be undertaken by or with the authority of the Attorney-General, being a requirement which was satisfied in the present case. His Honour paraphrased the statutory expression "a request under section 40," as contained in s 41 and subs 43(1) of the 1988 Act, as "a request made in accordance with section 40", and therefore meaning "a request made by or with the authority of the Attorney-General as required by section 40", and not "a request made in exercise of a power given by section 40". His Honour emphasised dicta in the judgments in Barton to the effect that clear words or necessary implication were required to displace prerogative or executive power, citing certain passages to that effect from judgments of the High Court in Barton, to which I have earlier generally referred, and found that far from displacing that area of the prerogative or executive power of the Commonwealth, s 40 of the 1988 Act assumes its existence, and thus predicates a request made in exercise of the prerogative or executive power of the Commonwealth. I will hereafter endeavour to summarise the essence of his Honour's reasoning.

62 The primary judge acknowledged the existence of the obiter dictum of the Chief Justice in Barton at 487-488, without explicit agreement or disagreement, to the effect that the prerogative of the Crown in the right of the Commonwealth had been displaced by s 21 of the 1966 Act during the time when that Act applied, but he considered that such dictum was not persuasive as to the proper construction of s 40 of the subsequent 1988 Act. His Honour pointed out in [67] of the judgment below that the former section conferred a power where certain conditions were satisfied, and furthermore the latter section used the word "request", instead of the former section which used the word "requisition", thereby relying upon the contrast made by Barwick CJ at 487 in Barton between the two words in the course of his construing s 21 of the 1966 Act (see [44] above). The primary judge proceeded to find that even if, in the light of certain departmental records in evidence, the Attorney-General might have wrongly thought that the Act empowered him to make the Request, and that in so doing, he was thereby exercising statutory power pursuant to s 40, the prerogative was available in any event to support the Request, and he cited authorities where the Courts have held that a mistaken reliance upon one source of statutory power did not operate to deny authorisation upon the footing of an available source of power elsewhere to be found in the same or a different statute.

63 The primary judge further found that there was no scope for saying that by subs 11(3) of the 1988 Act, any limitations, conditions, exceptions or qualifications contained in the Treaty somehow affected the application of the Act, so that the circumstances in which the executive power of the Commonwealth to request extradition might be exercised were confined, the Treaty not imposing requirements in relation to the making of requests for extradition. As indicated already in [58] above, his Honour considered that since the Treaty was not incorporated into Australian law, subs 11(3) meant only that the 1988 "applies" (to adopt the s 11(3) expression) subject to "any limitations, conditions, exceptions or qualifications found in the Treaty that are inconsistent with the Act" (see again [58] above). The primary judge further considered that nothing said in Barton detracted from the broad view he took as to the executive power of the Attorney-General being at large and unconstrained by s 40 of the 1988 Act, but on the contrary Barton supported that view, if not conclusively. His Honour specifically referred in that regard to what appears at 488 in the judgment of Barwick CJ, namely "However, the rule that the prerogative of the Crown is not displaced except by a clear and unambiguous provision is extremely strong", and thereafter to what was said by McTiernan and Menzies JJ at 490-491, in particular "The very conception of an invalid request is one with which we find some difficulty. We grasp readily enough the idea of an unlawful request, either by making a request which is forbidden by law or requesting an unlawful act, but here what is claimed is simply that the Government of Australia, which has power to treat with the governments of other states about matters of common concern, had no power to make the requests which it did to the Government of Brazil", and further to passages in the judgment of Mason J at 496 and 497-498, and concluding at 501 with emphasis on the dictum "It is not to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect", and lastly to the observations of Jacobs J at 508 that "an intention to withdraw or curtail a prerogative power must be clearly shown", and further that "In circumstances where the Act does apply the sections do not diminish the executive power, though possibly s 21 replaced the prerogative power of the Crown by a legislative authority to the Attorney-General to make the requisition to the foreign state" (my emphasis). I interpolate to point out that the judgments in Barton nevertheless emphasised that prerogative (or executive) power may be displaced by clear implication, as well as by express language.

64 Having determined that there was an absence of statutory restraint to be found in the 1988 Act, the primary judge concluded that the executive power of the Commonwealth to request extradition was at large, so that the Attorney-General was able lawfully to request the extradition of a person to answer any criminal charges in Australia. His Honour considered that his view was in conformity with s 3 of the 1988 Act (reproduced and discussed at [57] above), and that in so far as the Act deals with the making by Australia of requests for extradition, it is not a code, but rather is intended to facilitate the exercise of the executive power of the Commonwealth to make such requests.

65 The Respondents supported the reasoning of the primary judge, emphasising that not only is the executive power not displaced by or subsumed into s 40 of the 1988 Act, but that on the contrary, s 40 assumes its existence, and that nothing in the 1988 Act has the effect of constraining the power of the Attorney-General to request the extradition of a person from a foreign state.

66 The starting point for consideration of the attack made by the Appellant upon the process of reasoning of the primary judge, which I have sought to summarise above, is the precursor 1966 Act, and in particular his Honour's approach to the construction of s 21 thereof. The Appellant did not acknowledge the direct relevance of the 1870 Imperial legislation to the interpretation of the 1966 Act, and in my opinion rightly so, since the 1870 Imperial Act did not purport to regulate the extradition of fugitives from other countries, whether treaty countries or otherwise, to Great Britain, to the extent appearing in Part IV of each of the 1966 and 1988 Australian legislation. Consistently with that description of the 1870 Imperial Act, Mason J said in Barton at 497 as follows:

"The effect of the Act of 1870 in its application to extradition pursuant to treaty was to put beyond doubt the abrogation of the executive power formerly enjoyed by the Crown of surrendering fugitive offenders who were alleged to have committed offences against the law of a foreign state, a power which had already been diminished by the Habeas Corpus Amendment Act of 1679, but there is nothing in the statute to support the view that it abrogated or abolished the Crown's prerogative power to request the extradition from a foreign state of a fugitive offender alleged to have committed an offence against the laws of England."

Instead the Appellant focused upon the obiter of Barwick CJ in Barton, which I have cited and summarised in [43-47] above, and submitted that the effect of Part IV of the 1966 Act was to afford recognition of and require compliance with bilateral treaties, which, as was pointed out by Mason J in Barton at 497, were entered into by many countries in the wake of the 1870 Imperial Act. There was no disagreement expressed by any of the other members of the High Court in Barton with the obiter of the Chief Justice, nor anything said directly or indirectly contrary thereto. That is not to say of course that there was any explicit statement of agreement with that obiter.

67 The foundation of the obiter expressed by Barwick CJ in Barton upon the operation or implications of Part IV of the 1966 Act in relation to treaty states, and of s 21 thereof in particular, as already pointed out earlier, was said to inhere in the creation of bilateral extradition treaties, of which of course the Treaty is one instance, and the existence or assurance of reciprocity between treaty states apparent from the mutuality of description of extradition crimes contained in extradition treaties. I would repeat for emphasis the implications drawn from such circumstances by the Chief Justice at 483 (extracted in [43] above), and in particular the concluding sentence "Through the power of disallowance and the definition of extradition crime the Parliament has control of the effectiveness of the terms of an extradition treaty", and subsequently at 487 (extracted in [44] above), namely that "[h]aving regard to the operation of the definition of extradition crime in s 4, it is clear that the Parliament has controlled the executive in the use of extradition treaties". The implications to Australia of bilateral treaties so established were also referred to by Mason J at 502 (see [50] above) and by Jacobs J at 507 (see [51] above).

68 Given the matters to which I have referred above including, in particular, the bilateral nature of the Treaty, the circumstance that Part IV of the 1966 Act addressed only subject matters, having regard to the nature and incidents of bilateral treaties, that could be expected, it follows in my opinion that Part IV of the 1966 Act conferred statutory power on the Attorney-General to requisition foreign states to return fugitive offenders to Australia, to the exclusion or entire displacement of prerogative or executive power, as of course was the obiter opinion of Barwick CJ expressed in Barton. Moreover it is readily apparent, from what I have set out in [58] above, that the exercise by the Attorney-General of such statutory power was subjected by subs 9(2) of the 1966 Act to such "limitations, conditions, exceptions or qualifications" as might be contained in an earlier extradition treaty to which Australia was for the time being privy. It follows that had the 1966 Act remained in force and not been replaced by the 1988 Act, the request for the extradition of the Appellant would have been required by subs 9(2) of the 1966 Act to engage only those crimes or offences set out in Article 3 of the Treaty, since the designation thereof in the context of Article 1, and of the introductory and concluding words of Article 3 (all reproduced in [38] above), constituted and involved limitations, conditions, exceptions or qualifications upon and to the exercise of the statutory power of the Attorney-General conferred by Part IV of the 1966 Act.

69 Moving forward then to the 1988 Act, as I have pointed out in [55] and [58] above, subs 11(3) thereof applies in relation to the Treaty (ie the Treaty with Poland because of the absence of any subsequent regulations yet made concerning Poland pursuant to subs 11(1)) producing any varied or contrary circumstance, and by reason of the previous operation of subs 9(2) of the 1966 Act in relation to the Treaty. It follows that the 1988 Act applies to the extradition of fugitives from Poland, as well as to Poland, relevantly in the sense that the 1988 Act is subjected in operation in relation to the extradition of fugitives both from and to Poland by reference to limitations, conditions, exceptions or qualifications contained in the Treaty, and thus in particular in relation to the extradition offences for which the Attorney-General may exercise the function (or "machinery", to adopt the description of Jacobs J in Barton), provided for in s 40 of the 1988 Act. It follows that where subs 11(3) of the 1988 Act, and the earlier subs 9(2) of the 1966 Act, speak of the Act having application in relation to a "foreign state" (or in the case of the 1988 Act to an "extradition country"), subject to limitations, conditions, exceptions or qualifications, the latter expressions necessarily and inherently refer to the limitations, conditions, exceptions or qualifications operating upon a purported invocation of a bilateral extradition treaty, for instance of the kind exemplified in my summary of the subject Treaty in [38] above, and as explained in [58] above. Those expressions hence include reference to such limitations, conditions, exceptions and qualifications as are inherent in the limited categories and descriptions of offences expressed to fall within the scope of operation of an extradition treaty. That conclusion of statutory interpretation is supported in principle by the dicta in Riley extracted in [58] above, albeit that the same occurred in the context of the 1966 Act, and thus prior to the introduction of the 1988 Act. In my respectful opinion therefore, the finding of the primary judge in the terms set out below cannot be sustained:

"... it is convenient to note now that in my opinion, there is no scope for saying that by subs 11(3) of the Act, `limitations, conditions, exceptions or qualifications' contained in the Treaty somehow affect the application of the Act so that the circumstances, in which the executive power of the Commonwealth to request extradition may be exercised, are confined... apart from stipulating formal requirements with which a request must comply if it is to activate the requested state's Treaty obligation to surrender a person, the Treaty does not impose requirements in relation to the making of requests for extradition."

70 If it was the legislative intent that Part IV of the 1988 Act should merely reflect or predicate the exercise of prerogative power, it would have been strange, particularly in the light of Part IV of its precursor the 1966 Act and the obiter appearing in Barton in relation thereto, for the Legislature to have omitted to explain in the text of the 1988 Act, or in any extrinsic Parliamentary material, the reason for what might have been seen to constitute a reversion to prerogative power in the case of requests for extradition of fugitives to Australia, albeit in the context of bilateral treaties. Moreover the terms of the following s 41 and subs 43(1) of Part IV of the 1988 Act (the text whereof appear also in [56] above), and in particular the presence therein of the respective expressions "whether or not pursuant to a request under section 40", and "whether or not the Attorney-General knows or suspects the person to be in a particular country or has made a request under section 40 or otherwise in relation to the person", are not consistent with the confined interpretation of s 40 to the effect found by the primary judge, namely that the section does not give power to make a request for the surrender of a person, but rather assumes that such a request may only be made in the exercise of a power to be found outside the scope of the 1988 Act. Moreover as the Appellant has in my opinion rightly submitted, the statutory expressions in s 41 and subs 43(1), containing as they do the words "under section 40", import the notion of "pursuant to section 40" or "under the authority of section 40", consistently with the interpretation placed upon the analogous expression "under an enactment" appearing in subs 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) in Australian National University v Burns [1982] FCA 191; (1982) 43 ALR 25 at 31 (per Bowen CJ and Lockhart J), citing Evans v Freimann & Ors [1981] FCA 85; (1981) 35 ALR 428 at 436. There remains however for consideration the presence within the context of both statutory expressions of the words "whether or not", the implications whereof will next be considered.

71 In the context of s 41, reason for the existence of the alternative "whether or not pursuant to a request under section 40" appears on one view to accommodate the circumstances of a surrender occurring without a formal request having emanated from the Attorney-General purportedly pursuant to s 40. Or perhaps, and I think more likely, the draftsman had in mind that s 41 (and also s 43 which contains similar words) should accommodate the surrender of a fugitive back to Australia from both treaty and non-treaty countries, and thus the making of a request to a non-treaty state as well as to a treaty state. That kind of dual function was identified as a real possibility for the interpretation of the corresponding s 21 of the 1966 Act by Mason J in Barton at 499 (see [49] above), though compare Jacobs J at 507 (see [51] above). In any event, it would be somewhat surprising, as I have already mentioned, if the Legislature's replacement of Part IV of the 1966 Act by Part IV of the 1988 Act would have been intended to reverse the longstanding obiter of the Chief Justice in Barton at 483 and 487-488, concerning displacement of the prerogative at least by necessary implication, in the circumstances of bilateral treaties, without the Legislature having made clear that a radical step of that nature was intended. A legislative reversal away from reliance upon the apparent statutory power contained in Part IV of the 1966 Act to request the return to Australia of a fugitive would have been all the more unlikely, having regard to the explicit passages in the Second Reading Speech to the 1987  Extradition Bill  extracted in [54] above. I am conscious of the primary judge's observation, reproduced in [62] above, of the change of "requisition" in s 21 of the 1966 Act to "request" in s 40 of the 1988 Act, and of the prima facie contrasting significance of those two words in the context of rights arising pursuant to treaties, as was mentioned by Barwick CJ in Barton and has been set out in [44] above, but that change in legislative language from requisition to request was hardly sufficient, without more, to demonstrate the intention of the Legislature to so radically change the nature and import of the operation of Part IV of the 1988 Act from that which had existed in Part IV of the 1966 Act for the preceding 22 years. Alternatively, one may speculate with some justification that the word "request", in the context of s 40, assumes implicitly the function of accommodating both treaty and non-treaty circumstances, as I have already suggested above, by reference to dictum of Mason J in Barton. In non-treaty circumstances, the need for the Attorney-General to address the implications of s 11 of the 1988 Act, in terms of limitations, conditions, exceptions and qualifications contained in a treaty, would not arise, but where a treaty already exists, the situation would be otherwise. If Part IV of the 1988 Act was intended to reflect the existence relevantly of executive power, one would have expected that Part I of the Act, and s 11 thereof in particular, would have been explicitly excluded from application to Part IV thereof.

72 I would conclude that in the case of existing extradition treaties (such as the Treaty the subject of the present proceedings), the executive power of the Commonwealth to seek and accept from a foreign bilateral extradition treaty state the surrender of a person charged with or convicted of an offence against Australian law, having been displaced by the Parliament pursuant to the 1966 Act, for the reasons enunciated obiter by Barwick CJ in Barton, has remained displaced by the 1988 Act as the successor legislation thereto, in relation to foreign states the subject of bilateral extradition treaties. As I have indicated above, there would be no rationale for subss 11(1) and (3) of the 1988 Act, geared as they are to bilateral extradition treaties, if the primary judge's view as to the operation of s 40 of the 1988 Act be correct, and so that the Attorney-General would have power and authority to request extradition from an extradition treaty state for non-treaty offences. If that be correct, it follows that s 40 of the 1988 Act confers only statutory authority upon the Attorney-General to apply for extradition from a treaty state such as Poland, being an authority operating subject to any other relevant provisions of that Act, including in particular s 11 thereof, and does not merely predicate the existence of prerogative or executive power in the Commonwealth to authorise that course. It further follows from my conclusion that the Parliament has not brought about, by a side-wind in the form of s 40 of the 1988 Act, a return to a prerogative or executive regime, after the lengthy period of time when the 1966 Act appears to have applied equally to the case of extradition of fugitives from a foreign treaty state to Australia, as well as vice versa, and with the further unlikely consequence that subs 11(3) (and indeed subs 11(1) also) would be confined in application to extradition to, and not from, a foreign state (my emphasis), despite its apparent purport to the contrary. I would add for completeness that I have encountered no statements of principle in the reasons for judgment in Attorney-General v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508, or more recently in the Full Federal Court judgments in Ruddock v Vadarlis [2001] FCA 1329; (2001) 183 ALR 1, which would gainsay that conclusion. As I have earlier indicated, it is to be inherently expected that legislative provisions relating to extradition to Australia, in contrast to those relating to extradition from Australia, will not be comprehensive in their regulation, by reason of the very scope of what the former must necessarily address and regulate.

73 The Appellant has submitted alternatively (see [60(iii)] above) that if, contrary to what I have determined above, the prerogative or executive power in relation to extradition of fugitives from a foreign state to Australia has not been displaced by Part IV of the 1988 Act, the exercise of the prerogative power to make a request is nonetheless presently controlled in operation by the legislative framework of the 1988 Act, including the critical provisions of subs 11(3) thereof, just as the same was controlled in operation by the legislative framework of the 1966 Act, and the critical provisions of s 9 thereof. I have already foreshadowed that alternative view of s 40, which is conceptually proximate to the conclusions I have reached in [71-72] above. The Appellant's submission can be justified in my view in principle, as an alternative approach to s 40, given that the primary conclusion in [72] above is incorrect, since there can be no warrant, in the light of the generality of the statutory language relevantly employed, to read down the application of subss 11(1) and 11(3) (and their earlier counterparts within s 9 of the 1966 Act) to only extradition requests made by Australia to foreign states. As appears in the joint judgment of the High Court in Brown v West (1990) 169 CLR 195 at 202:

"Whatever the scope of the executive power of the Commonwealth might otherwise be, it is susceptible of control by statute. A valid law of the Commonwealth may so limit to impose conditions on the exercise of the executive power that acts which would otherwise be supported by the executive power fall outside its scope."

Accordingly if I am wrong in my conclusion that s 40 of the 1988 Act reflects or implies the exclusion of the prerogative, I would be of the opinion that there was effected by Part IV of the 1988 Act a partial displacement only of the prerogative, that is to say, a displacement which rendered the exercise of prerogative power subject to control by the 1988 Act, and subss 11(1) and (3) in particular. The outcome would therefore be the same in favour of Mr Gates, whether or not the prerogative or executive power remained in force in favour of the Respondents.

The Treaty

74 In conformity with the structure of the judgment below, it becomes next appropriate to address the issues debated on appeal relative to the content of the Treaty, in the light of the conclusions I have reached upon the operation of s 40 of the 1988 Act. The primary judge commenced with the observation that "[t]he first thing to be said about the Treaty is that it does not purport to give rights to Mr Oates, and, not being incorporated into Australian municipal law, it cannot do so". So much may be accepted so far as the Treaty per se extends, though the proposition needs to be understood in the light of the qualification, made by Mason J in Barton at 502 in the passage firstly extracted in [50] above, and in any event his Honour's use of the word "directly". I do not understand the Respondent to have challenged the locus standi of the Appellant, either below or in the course of the hearing on appeal, to have brought the present administrative law challenge.

75 The critical issue arising therefore is whether the Respondents were empowered by s 40 of the 1988 Act to make the Request in respect of the offences specified, in the light of the contents of the Treaty, and Article 3 in particular, and of such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty.

76 The primary judge's process of reasoning, in resolving that issue adversely to the Appellant, may be summarised as follows:

(i) The Treaty imposes no requirements for a request for extradition, since "... a request cannot be made in conformity or disconformity with the Treaty"; to cite his Honour's reasoning; although Article 9 thereof sets out formal requirements with which, apparently, such a request is stipulated to comply if it is to activate the other party's Treaty undertakings, the Treaty contains no limitation as to the circumstances in which a request may be made; whilst the Treaty contains reciprocal undertakings between countries to surrender persons, it does not contain limitations on either country's power to request the other to do so; the Treaty is directed to the nature and extent of the undertaking by the requested country, and the circumstances in which that undertaking is enlivened.

(ii) Whilst it is only in respect of a crime or offence listed in Article 3 of the Treaty that Poland and Australia have each undertaken to the other to surrender a convicted or alleged offender, it is a question for the authorities of a requested state as to how to respond to a request for extradition, and relevant to that question would be the requested countries' municipal criminal and extradition laws, and its own language version of the extradition treaty, upon which its own courts, not those of the requesting state, must rule.

(iii) It was not required of the Request by Australian law that it must, as a matter of objective fact, have engaged a treaty obligation of Poland to surrender the Appellant to Australia; otherwise considerable practical difficulties would arise; for one matter, Australia would be limited to making requests to which Poland, in accordance with Polish law as determined by the courts of Poland, and having regard to the Polish language version of the Treaty, had undertaken to accede; it was difficult to accept that the Treaty was intended to impose on the Australian authorities the burden of correctly determining, in effect, what the Polish courts would decide, at the peril of making an invalid request, that is, a request which an Australian court would declare invalid after itself correctly determining, in effect, what the Polish courts would decide.

(iv) Upon receiving a request, the Polish authorities could not know that it was safe to be acted upon until all means of testing its validity in the Australian courts had been unsuccessful; if the Polish authorities acted on a request, the validity whereof had not been resolved in Australia, it might transpire that they had devoted resources to arresting the person and supporting their actions in the Polish courts, only to find out subsequently that the request had been ruled invalid by an Australian court, with such consequences as an action against Poland by the fugitive akin to that in Australia for damages for unlawful imprisonment; it would be difficult to think that the framers of the Treaty intended it to operate in this fashion.

(v) The potential for embarrassment disappears, once it is accepted that a request for extradition is not invalidated merely because the offences charged are ultimately held to lie outside the Treaty obligation undertaken by Poland, and that whether they do is a matter for decision by the courts of Poland reached on the Polish version of the Treaty and in accordance with Polish law, rather than for the Australian courts.

(vi) The approach preferred by his Honour was consistent with that taken by Merkel J in Bollag & Anor v Attorney-General of the Commonwealth (1997) 79 FCR 198 to the question of the validity of requests made by a delegate of the Attorney-General pursuant to s 10 of the Mutual Assistance in Criminal Matters Act 1987 (Cth) on behalf of the Director of Public Prosecutions and the Australian Federal Police to the relevant Swiss authorities.

77 One potential difficulty with his Honour's process of reasoning set out above is that if correct, and taken to its logical conclusion, the function of a bilateral extradition treaty as a contractual arrangement between countries is inherently diminished, and the expression "such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral treaty in relation to a country..." contained in subss 11(1) and 11(3) of the 1988 Act is deprived of virtually all significance in relation to requests made by the Respondents to treaty countries for the extradition of fugitives to Australia. An overseas fugitive may conceivably be the subject of an extradition request for an offence not specified or nominated by the Treaty, being even an offence of an insignificant nature in terms of criminality, yet in the events which happen, that fugitive might find himself extradited to Australia, and once returned to Australia, any such misconception of executive authority would have been expedient from the perspective of the Respondents. In any event, no evidence was apparently placed before the primary judge to demonstrate the existence of precedent to the effect that the concerns which he expressed were anything more than hypothetical, in the light of actual treaty experiences. Moreover it would be clearly open to the bureaucracies of treaty countries to ensure, as far as is reasonably possible, mutual clarification of the scope of an extraditable offence the subject of their respective extradition treaties, in order to avoid the kind of unnecessary cost and inconvenience the subject of his Honour's postulation summarised in [76(iv)] above.

78 An answer in principle to the concerns of the primary judge summarised in [76] above, save as to sub par (vi) thereof, may be found within the recent restatement of general principles in the House of Lords in Regina (Al-Fawwaz) & Others v Governor of Brixton Prison & Another [2002] 2 WLR 101, albeit that the proceedings related to a request by an extradition country (the United States) to the United Kingdom, and not vice versa. For instance at 134, Lord Millett said as follows:

"... On that basis, all the alleged actings in the present case can be supposed, for the purposes of section 26, to have taken place in England. The simple question then is whether, if they had taken place in England, those actings would have constituted the crime of conspiracy to murder in England Law. For my part, I see no need for any more complex analysis at this stage since the test which I have outlined is sufficient to ensure that extradition is confined to allegations of crimes according to English law and in respect of which Parliament has given the Secretary of State power to surrender accused persons.

This interpretation of the relevant provisions is straightforward and the provisions when so interpreted are easy to apply. By contrast the approach advocated by the applicants and adopted by the Administrative Court leads inevitably to a blurring of two questions. The first is whether the individual concerned is a criminal accused of an "extradition crime". The second question is whether, even supposing that he is, there is evidence to justify ordering his committal to prison on that charge."

To similar effect is the following extract from the speech of Lord Rodger of Earlsferry at 148:

"On that basis, all the alleged actings in the present case can be supposed, for the purposes of section 26, to have taken place in England. The simple question then is whether, if they had taken place in England, those actings would have constituted the crime of conspiracy to murder in English law. For my part, I see no need for any more complex analysis at this stage since the test which I have outlined is sufficient to ensure that extradition is confined to allegations of crimes according to English law and in respect of which Parliament has given the Secretary of State power to surrender accused persons.

This interpretation of the relevant provisions is straightforward and the provisions when so interpreted are easy to apply. By contrast the approach advocated by the applicants and adopted by the Administrative Court leads inevitably to a blurring of two questions. The first is whether the individual concerned is a criminal accused of an "extradition crime". The second question is whether, even supposing that he is, there is evidence to justify ordering his committal to prison on that charge."

The emphasis on English law for the purpose of the relevant test or analysis may be observed.

79 The next consideration conveniently to be dealt with is the primary judge's expression of reliance on dicta appearing in the reasons for the decision of Merkel J in Bollag (see [76(vi)] above); that litigation involved a somewhat analogous framework contained in a different statute. I have been unable to identify however any significant assistance in favour of the Respondents to be gained from the reasons for judgment in Bollag. Under the heading "The executive government power of inquiry and investigation", Merkel J made the following observations, cited by his Honour, which do not assist the Respondents here:

"In general, absent a treaty (my emphasis), a request on behalf of the executive government of Australia to a foreign country to obtain testimony or to seize or obtain documents in that foreign country to assist an investigation into a criminal matter in Australia is entirely a matter for the executive governments of Australia and the foreign country." (at 366)

"To the extent that compliance with a treaty obligation involves the use of coercive power in Australia, neither the executive government nor any member of it has the automatic right to exercise such power otherwise than pursuant to the mandate of some Act of the parliament..." (at 367)

And under the judgment heading "Do the Swiss Regulations modify ss 12 and 14?", the following appears, which if it assists any party to the present litigation, would favour more the Appellant's case:

"The Treaty is not enacted into Australian municipal law. The Swiss Regulations and s 7 only provide for the Act to apply to Switzerland `subject to such limitations, conditions, exceptions or qualifications' as are necessary to give effect to the Treaty. These are words of restriction..." (at 371)

"Further my approach accords with that given to the same words in the Extradition (Foreign States) Act 1966 (Cth). It has been accepted that a statutory provision such as s 7 can, in effect, provide for an act to be amended by a treaty." (at 371)

80 In my opinion, the primary judge was incorrect in his conclusion, which I have summarised in [76(iii)] above, that it was not required of the Request by Australian law that the Request must, as a matter of fact, engage a treaty obligation of Poland to surrender the Appellant to Australia. As I have earlier indicated, subs 11(3) of the 1988 Act requires that in the implementation or operation of the powers and authorities conferred by Part IV thereof, and s 40 thereof in particular, there must be observed and applied by the Respondents the limitations, conditions, exceptions or qualifications to which the operation of an extradition treaty is for the time being made subject, irrespective of the existence or otherwise of a bilateral extradition treaty. Subs-section 11(1) of the 1988 Act has an analogous operation where the regulation power is available and has been exercised. Plainly, the confinement of an extradition treaty to specified offences carries at least implicitly limitations, conditions, exceptions or qualifications variously to the effect that no other offences can be engaged by the requesting state, other than those specified in the applicable treaty. The implications of the contrary conclusion reached by the primary judge are startling, because there would be in that case no identifiable stopping place in relation to the categorisation of offences which might lawfully be the subject of a s 40 request, irrespective of the limited descriptions of offences the subject of an otherwise applicable treaty. The essence of reciprocity in extradition, so central to bilateral treaties (see again Barwick CJ in Barton at 483 and 487-488, and Mason J at 502, as earlier cited) would be eroded or diminished by the implementation of an unqualified approach which might be adopted by the Attorney-General purportedly in pursuance to the authority referred to in s 40 in the context of bilateral treaties.

Engagement of extradition offences

81 As I indicated earlier, the Treaty is extensively reproduced at [46] in the judgment of the primary judge below, but I have set out in [38] above sufficient for consideration of the issue as to whether by the terms of the Request, there was engaged any of the offences nominated in the Treaty. As appears in [39] above, the legal representatives of the Appellant placed before the Respondents the Joint Memorandum of Advice of Australian Counsel to the effect that none of such charges engaged the offences the subject of the Treaty. Upon the true construction of the Treaty, the same provides for reciprocal extradition only in respect of the nominated crimes or offences punishable in accordance with the laws of both High Contracting Parties, Australia and Poland. The Appellant contends that the Request does not purport to apply in terms to a crime or offence listed in Article 3 of the Treaty, once consideration is given to the legal elements of the offences set out in the Request. In that regard, as the Appellant has rightly submitted, the Treaty adopts an enumerative method of listing offences, rather than an eliminative method apparently favoured in the extradition treaty practices of more recent times, such as (so I have been informed by Counsel for the Appellant), to be found in the new Treaty between Australia and the Republic of Poland on Extradition made in Canberra on 3 June 1998, which came into force on 2 December 1999. As the Appellant has further submitted, the primary judge misconceived the operation of the Treaty in observing that offences "will change from time to time", because under the subject Treaty, the offences are purportedly fixed by their description, in the absence of subsequent amendment to, or replacement of, the Treaty.

82 The Appellant submitted that none of the offences with which the Appellant has been charged, and which are set out in the Request, falls within the elements of a crime or offence listed in Article 3 of the Treaty, for the reasons set out in written submissions, which may be conveniently reproduced below:

"(a) The first charge, conspiracy to defraud by fraudulent means contrary to section 412 of the Criminal Code (Western Australia) has no equivalent in Article 3 of the Treaty. Conspiracy is a distinct crime involving an agreement. The Treaty distinguishes between substantive offences and the inchoate offence of conspiracy (for example, Article 3.1 lists "murder" and "conspiracy to murder". Article 3.28 "revolt" and "conspiracy to revolt"). Article 3 does not include "conspiracy to defraud".

(b) Similarly, the offence of failing to act honestly in section 229(1)(b) of the Companies (Western Australia) Code is not the offence of "fraud by director" in Article 3.29 of the Treaty. The offence against section 229(1) is a general offence of failing to act in the best interests of the company. Where that offence is committed with the additional element of intent to defraud contained in section 229(1)(b), the maximum sentence is increased, but this is only as a circumstance of aggravation affecting penalty.

(c) The offence of making improper use of the position of an officer of the corporation in order to gain an advantage for himself or herself or another person in section 229(4) of the Companies (Western Australia) Code can be committed even though the person does not know that he or she is using the position improperly. Accordingly, an offence against section 229(4) is not the same as "fraud by a director" in Article 3.19 of the Treaty."

The foregoing submissions effectively adopt the reasoning of the Joint Memorandum of Advice of Counsel dated 23 December 1996 identified in [39] above. The Counsel were Mr J J Spiegleman of Queens Counsel, now the Chief Justice of the State of New South Wales, and Mr N J Williams, now senior counsel in and for that State. The Joint Memorandum set out the extensive experience of the authors in a number of prominent extradition cases in Australia, and referred to Mr Williams' co-authorship of the Butterworths publication Williams, Payne and McNaughton, Federal Criminal Law, a four volume loose leaf service which contains commentary on the 1988 Act and on company law offences. It is instructive to consider some of the detail of the reasoning of the authors of the Joint Memorandum of Advice, which as I have already said, has been summarised immediately above and adopted by Counsel for Mr Oates in the proceedings now before this Full Court.

83 As to the offence of conspiracy to defraud by fraudulent means in contravention of s 412 of the Criminal Code of Western Australia, whereof as indicated in the Request extracted in [37] above there is only a single count pleaded, the Joint Memorandum pointed out that the terminology of offences in Article 3 of the Treaty is derived from the British Extradition Act 1870 (to which I have been referring as the 1870 Imperial Act), the first schedule to which contained references in identical terms to those offences set out in Article 3, with only two being phrased in terms of conspiracy to commit a specified crime, namely the crimes of murder or revolt, and thus no offence of conspiracy to defraud being listed, nor conspiracy to commit any other offence.

84 The Respondents contended that the Joint Memorandum applied an approach to construction applicable to statutes and not to treaties, namely the expressio unius principle. I do not think that the contention is soundly based. The approach of the learned authors of the Joint Memorandum was conceptually in line with the principles which have been subsequently articulated in the House of Lords in Al-Fawwaz, which I have extracted in [78] above.

85 The Respondents next contended, in relation to the s 412 count of conspiracy, that the expression "defraud" is not a term of art or a technical legal expression, but an expression of wide connotation, and in the context of a treaty, it must be given a liberal construction, but it is unclear where that submission takes the Respondents' case. The crime of conspiracy, according to the common law of England, and of Australia, consists in the making of an agreement, as was emphasised in the passage in the judgment of Evatt J in The King v Weaver [1931] HCA 23; (1931) 45 CLR 321 at 349, cited in the course of argument, as follows:

"There is, however, a vital distinction between a conspiracy to cheat and a conspiracy to obtain money by false pretences. The latter conspiracy is a conspiracy to commit a crime. The former conspiracy is proved by showing an agreement to do certain acts of a fraudulent or dishonest character which, if done, would enable the person defrauded to succeed in obtaining a civil but not necessarily a criminal remedy. It is occasionally said to be an illogical and surprising feature of the law that an individual may do certain acts without criminal liability attaching to him, whereas a criminal conspiracy arises if two persons agree to do those very same acts; but if the result surprises, it is certainly not illogical. For conspiracy consists in the making of an agreement. The nature and quality of the agreement determine its legality or criminality, and there is no logical reason why certain agreements should not be struck at by the criminal law. What an individual may of himself lawfully do is nothing to the point. One thing he can never do - of himself - is to make any agreement."

86 It seems to me, in the light of the foregoing analysis of the nature and quality of an agreement constituting criminal conspiracy, to be an inescapable conclusion that the making of an agreement to commit (that is to say, conspiring to commit) any of the offences set out in the Treaty, other than those of murder and revolt (ie those Treaty offences numbered 1 and 28), is not intended to be a treaty offence. The context of the introductory words to the Treaty, contained in Article 1 thereof which has been extracted in [38] above, do not allow room for the parties to the Treaty to accord the character of a treaty offence to a conspiracy to commit any of the remaining other treaty offences, including the offence of "fraud... by a director". I would respectfully adopt in principle, for application in the present case, what was said by Pill LJ (with whom Astill J, the only other member of the Court agreed), in Regina v Secretary of State For The Home Department, ex parte Gilmore [1999] QB 611 at 618, in a context of addressing treaty offences, as follows:

"I have considered the history of the list and am not able to conclude that where the description of the listed offence was what Lord Lowry in Boew's case [1990] 1 AC 500 described as specific, for example embezzlement and larceny, the offence of a conspiracy to commit the offence can be included in the list by implication."

I therefore conclude that the first charge brought against the Appellant, being that of conspiracy to defraud contrary to section 412 of the Criminal Code (WA), has not engaged any offence contained in the Treaty, and in particular, that of "Fraud by a... director", and that the Appellant's submission summarised in paragraph (a) of [82] above is correct.

87 As to the eight counts of failure to act honestly as a company director, contrary to subs 229(1) of the Companies (Western Australia) Code, next set out in the Request, the text of that sub-section reads as follows:

"An officer of a corporation shall at all times act honestly in the exercise of his powers and the discharge of the duties of his office.

Penalty:

(a) in the case to which paragraph (b) does not apply - $5000, or

(b) where the offence was committed with intent to deceive or defraud the company, members or creditors of the company or creditors of any other person or for any other fraudulent purpose - $20,000 or imprisonment for 5 years, or both."

And as to the further eight counts of failure to act honestly as a company director, contrary to subs 229(4) of the same Code, also set out in the Request, the text of that sub-section reads as follows:

"An officer or employee of a corporation shall not make improper use of his position as such an officer or employee, to gain, directly or indirectly, an advantage for himself or for any other person or to cause detriment to the corporation.

Penalty: $20,000 or imprisonment for five years or both."

88 The Joint Memorandum reflects the essence of the Appellant's submissions to this Court, summarised in paragraph (b) set out in [82] above, relating to the operation of subs 229(1) of the Code. The Joint Memorandum referred firstly to the interpretation placed on the sub-section by Australian courts to the effect of failing to act in good faith in the interests of the company, with knowledge that what is being done is not in the interests of the company, but is instead in deliberate disregard of the company's best interests. The Joint Memorandum cited several authorities, including Corporate Affairs Commission v Papoulias (1990) 20 NSWLR 503, where Allen J observed (at 505-506) "The language of s 229(1) itself puts beyond doubt that the offence of failing to act honestly can be committed without there having been intent to deceive or defraud. That fully accords with the concepts, for criminal law purposes, of dishonesty, of deception and of defrauding". His Honour said further that "What subs 229(1) does is to provide only the one offence, but to specify circumstances which, if proven, make the offence worthy of a more severe penalty". It follows that if what has been done by way of dishonest exercise of powers and discharge of the officer's duties was so done with intent to deceive or defraud, that is a matter which goes to penalty rather than to the specification of an offence different from that of failing at all times to act honestly in the exercise of the powers and discharge of the duties of office. The NSW Court of Criminal Appeal (Hunt CJ, Abadee and Simpson JJ) in the matter of Yuill (1994) 77 A Crim R 314 at 330 implicitly approved of the approach so taken in Papoulias. A not dissimilar distinction had been earlier raised in Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 280, a case involving customs offences, where the High Court, in the joint judgment of Gibbs CJ, Wilson and Dawson JJ, said as follows:

"There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice of R v Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed."

89 Sub-section 229(4) does not contain an additional aggravation element carrying an increase in penalty, as in the case of subs 229(1), and though it stipulates that the offence may be committed, even though the offender does not know that he is using his position improperly, in contravention of subs 229(4). In Chew v R [1992] HCA 18; (1992) 173 CLR 626 at 640, Dawson J said in relation to the operation of subs 229(4):

"It is clear enough that a director of a company may act improperly with no intention of acting dishonestly or otherwise than in the best interests of the company as a whole."

In applying that approach to interpretation of the sub-section in R v Towey (1996) 21 ACSR 46 at 57, Gleeson CJ said as follows:

"The propriety of the conduct of the appellant in relation to the payment the subject of count 21 is to be assessed in the light of an understanding of the duties of a company director. It may be that the appellant, who is not a lawyer, did not himself have such an understanding. That is irrelevant to the propriety of his conduct. No doubt many directors of companies are not fully acquainted with the obligations of fiduciaries... Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties powers and authority of the position and the circumstances of the case."

90 Each of the eight counts relating to subs 229(1) of the Code takes the following basic format:

"... on or about (the specified date) at Perth... [the Appellant], being a director of (the particular Bond Group company) did, with intent to defraud the said company, its subsidiaries and shareholders, fail to act honestly in the exercise of his powers and the discharge of his duties as an officer of the said company in that he caused/authorised (the particular Bond Group company) (to do the conduct complained of) and thereby contravened s 229(1)(b) and s 570 of the [Code]."

Section 570 of the Code renders contravention of subs 229(1) an offence. Each of the further eight counts relating to subs 229(4) of the Code takes the following basic format:

"... on or about (the specified date) at Perth... [the Appellant], being a director of (the particular Bond Group company) made improper use of his position as an officer of the said company in order to gain an advantage for Bond Corporation Holdings Ltd in that he caused/authorised (the particular Bond Group company) (to do the conduct complained of) and thereby contravened s 229(4) and s 570 of the [Code]."

91 Difficult questions may therefore be seen to arise as to how the scope of Treaty offence number 19, and in particular its component "Fraud by a... director... of any company", should be construed and applied, in particular in the light of the submissions of the Appellant set out in paragraphs (b) and (c) of [82] above. In The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1 at 93, Gibbs CJ made the following general observations in relation to the interpretation and application of treaties, incorporating thereby the text of Articles 31 and 32 thereof:

"The interpretation of treaties is now governed by the Vienna Convention on the Law of Treaties. The general rule of interpretation is laid down in Art. 31 of that Convention, paras 1 and 2 of which are as follows:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

Article 32, which is headed "Supplementary means of interpretation" provides as follows:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable."

In Thiel v Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338, McHugh J at 356 expressed the view that recourse to the abovementioned Articles 31 and 32 of the Vienna Convention, reflecting as they do "the customary rules for the interpretation of treaties", was appropriate in interpreting the Double Taxation Agreement between Australia and Switzerland, notwithstanding that Switzerland was not a party to the Vienna Convention. In the present case, there are no such extrinsic materials before the Court other than the terms of the Treaty, the material provisions whereof having been already set out in [38] above, to which perhaps I could add the reference to the expressions "mutual extradition of fugitive criminals" and "reciprocal extradition of criminals" contained in the opening preamble to the Treaty.

92 As to the principles governing the application of the provisions of the Treaty to particular circumstances, the Respondents referred me to dictum of Lord Wilberforce in James Buchanan & Co Ltd v Babco Forwarding & Shipping (UK) Ltd [1978] AC 141, being a dispute which concerned the construction to be applied to a contract for the carriage of goods which was expressed to be subject to the Convention on the Contract for the International Carriage of Goods by Road. The following passage appears at 152:

"The Convention of 1956 is in two languages, English and French, each text being equally authentic. The English text alone appears in the Schedule to the Act of 1965 and is by that Act (section 1) given the force of law. Moreover the contract of carriage seems to have incorporated contractually this English text. It might therefore be arguable (though this was not in fact argued) - by distinction from a case where the authentic text is (for example) French and the enacted text an English translation - that only the English text ought to be looked at. In my opinion this would be too narrow a view to take, given the expressed objective of the Convention to produce uniformity in all contracting states. I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate from the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation...."

93 I was also referred by the Respondents to the reasons for judgment of the Court (Lord Widgery J and Griffith J) in Regina v Governor of Pentonville Prison; Ex parte Budlong [1980] 1 WLR 1110, where, under the heading "Double criminality", at 1118, the following appears:

"The prosecution submit that the true rule is that a criminal is to be extradited if his crime falls within the general description of a crime specified in the Extradition Treaty and the facts of the offence - that is the conduct complained of - show it to be a criminal offence punishable by the laws of both countries. As the facts of these offences show a prima facie case of burglary against both the laws of the District of Columbia and this country, the prosecution submit that extradition should be ordered."

The judgment at 1120 then cited In re Arton (No 2) [1896] 1 QB 509, where it was said by Lord Russell at 517 that the emphasis was to be placed not upon the definition of the crime, but on the acts that constitute the criminal conduct, but the passage cited from judgment needs to be reproduced, as follows:

"Is extradition to be refused in respect of acts covered by the treaty, and gravely criminal according to the law of both countries, because in a particular case, the falsification of accounts is not forgery according to English law, but falls under that lead according to French law? I think not. To decide so would be to hinder the working and narrow the operation of most salutary international arrangements."

After that citation from Arton, the judgment in Budlong at 1120 interposed the following observation, upon which the Respondents have placed emphasis:

"Here again the emphasis is placed not in the definition of the crime but on the acts that constitute the criminal conduct."

Next followed at 1120 the further citation from Arton, which affords more precision to the immediately preceding observation made in Budlong:

"We are here dealing with a crime alleged to have been committed against the law of France; and if we find, as I hold that we do, that such a crime against the law of both countries, and is, in substance, to be found in each version of the treaty, although under different heads, we are bound to give effect to the claim for extradition."

It is in the context of the last passage cited from Arton that the judgment at 1120 in Budlong then stated:

"Here too, it is the substance of the two offences that must correspond, not their precise definitions."

The Respondents contended that the substance of the offences is to be found in the charges reproduced in the Appeal Book.

94 The Respondents also placed reliance on dictum of Lord Bridge in Government Of Belgium v Postlethwaite and Others [1988] 1 AC 924 at 947 which related to requirements of the Anglo-Belgian Extradition Treaty concerning the consequences of non-presentation of statements, tendered under s 102 of the United Kingdom Extradition Act 1870, within the two months time limit laid down by Article V of that Treaty, by reason of the circumstances that the same had not been tendered in evidence without objection or, in the case of objection, with oral evidence to substantiate the contents of the statements given by the makers thereof. The issue arising there related to procedural requirements of a treaty for extradition, rather than to the elements of alleged offences. It had been found in the court below that such circumstances did not mean that there was sufficient evidence for the committal of the persons involved in relation to the extradition sought by Belgium: the passage cited by the Respondents in that regard is set out below:

"I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would "hinder the working and narrow the operation of most salutary International arrangements." The second principle is that an extradition treaty is "a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute:" Reg. v Governor of Ashford Remand Centre, Ex parte Beese [1973] 1 W.L.R. 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."

The reference in the above passage to dictum of Lord Widgery J is often to be found in extradition cases. The passage generally reflects the contention of the Respondents already touched on in [85] above.

95 Having considered each of the authoritative statements of principle which I have cited above, I have derived the most assistance from the two speeches in the House of Lords in Al-Fawwaz which I have extracted in [78] above, and propose to apply the same in the resolution of the issues now under consideration. I should add for completeness nevertheless reference to the following dictum of Deane J in Riley v The Commonwealth [1985] HCA 82; (1985) 159 CLR 1 at 16-19, which related to extraditing a fugitive from Ireland to England at the request of England, being a request falling for consideration by an Irish Court. After introducing the subject of double criminality at 16, his Honour said this in particular at 17-18:

"One can find, in the writings of some publicists and in some judgments of international and domestic courts, support for the view that the principle of double criminality requires correspondence or substantial correspondence between an entire offence under the law of the requesting state, being an alleged offence for which extradition is sought, and an entire offence under the law of the requested state. This approach is likely to result in primary emphasis being placed upon labels and correspondence of legal elements. If unqualified, it would significantly and arbitrarily frustrate the effectiveness of extradition arrangements between states with dissimilar systems of criminal law. The preferable view - and that which commands general acceptance - rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under the criminal law of the requesting and requested states and defines the principle of double criminality in terms of substance rather than technical form. On this view, the requirement of double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements: O'Connell, op. cit., vol. 2, p.723. This view places primary emphasis upon the acts constituting the offence alleged against the accused in the warrant rather than upon general theoretical correspondence between the legal elements of the offence which he is alleged to have committed against the law of the requesting state and some offence recognised by the law of the requested state."

After then referring to some further learned writings on the subject, his Honour provided the following reference to Irish authority:

"The principle of double criminality is satisfied where, and only where, any alleged offence against the law of the requesting state in respect of which extradition is sought would necessarily involve a criminal offence against the law of the requested state if the acts constituting it had been done in that state. As O'Dalaigh CJ of the Irish Supreme Court commented in The State (Furlong) v Kelly (16) (a case in which England was the requesting state and Ireland was the requested state):

`The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the [requested] State... If the English offence consists of, say four essential elements a + b + c + d, then a corresponding Irish offence exists only if it contains either precisely these same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as a + b + c + d + e), then there is no corresponding Irish offence... for the simple reason that, ex-hypothesize, conduct a + b + c + d falls short of being an offence under Irish law or, in plainer words, is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which, if repeated within the State, would not offend against our law.' [Emphasis added]."

Applying that approach to the situation here of Australia as the "requesting" state and Poland as the "requested" state, what must be found within the elements of subss 229(1) and 229(4) of the Code is that of fraud by a director, if the terms of the relevant Treaty offence are to be satisfied in either or both cases.

96 The offence the subject of subs 229(4) of the Code may be put aside as outside the scope of "Fraud by a... director...". The notion of impropriety, inherent in the statutory expression "improper use", according to the ordinary usage of the expression, does not necessarily extend to or encompass fraud, and no allegation of fraud is made in any of the eight charges or counts based upon subs 229(4). The Macquarie Dictionary defines "impropriety" as "1. the quality of being improper; incorrectness. 2. inappropriateness. 3. unseemliness. 4. An erroneous or unsuitable expression, act etc 5. an improper use of a word.", and therefore does not necessarily or inherently encompass the legal notion of fraud. The submission of the Appellants summarised in [82(c)] above is therefore in my opinion correct.

97 The offence the subject of subs 229(1) of the Code presents however an issue of greater difficulty. The eight charges or counts based upon subs 229(1) each allege conduct in contravention thereof with intention to defraud, thereby indicating a misconception of the meaning and elements of the offence the subject of the sub-section for the reasons earlier explained, in that fraud is not a necessary or essential ingredient of the offence, but if nevertheless present in the circumstances of the case, constitutes a basis for increase in the penalty to be imposed. The fact that fraudulent contravention of subs 229(1) has been erroneously pleaded by reason of reference to paragraph (b) of subs 229(1), which only appertains to penalty, must nevertheless be addressed. In my opinion, essentially in the light of the authoritative dicta I have cited in particular from Riley (in the High Court proceedings), Arton and Al-Fawwaz, it should be concluded that the absence of fraud as an essential element in the statutory offence the subject of subs 229(1) should carry the consequence that irrespective of the apparent intention of the Attorney-General to establish the existence of fraud, albeit that the existence of fraud is only relevant to penalty, there yet remains the irrefutable circumstance that the ingredients of the offence the subject of subs 229(1) do not constitute "fraud... by a... director" within the Treaty, and consequently there remains an absence of corresponding "essential elements" between the offence which has been charged, and the nearest description of an offence contained in the Treaty. If my strict approach to analysis is incorrect, there would be no logical stopping place to propound an allegation of fraud in the pleading of any statutory offence said to have been committed in the capacity of a bailee, banker, agent, factor, trustee, director, member or public officer of a company, simply because by so doing, the penalty would be potentially more severe, yet on that footing the operation of an extradition treaty would be attracted. I would therefore conclude that the contention of the Appellant is correct, and that the Treaty is not engaged by an offence charged under subs 229(1) of the Code. I observe that in De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290 at 298, Gyles J (though in the minority) observed obiter, in relation to the reverse situation of requests of foreign states to Australia, the principle that "... it would be unfortunate if this Court gave the impression to countries seeking extradition, and to magistrates hearing applications under s 19, that a statement pursuant to s 19(3)(c)(ii) should not descend to precision as to the acts or omissions alleged but can allege relevant conduct in the form of general conclusions from primary facts". In my opinion, the reverse is also true in relation to requests made by Australia for extradition of offenders from foreign countries, particularly given the bilateral nature of extradition treaties such as is the case here. A failure to strictly adhere to the principles in Al-Fawwaz in what is in substance a field analogous to criminal law carries potentially unfortunate and undesirable implications.

98 In the result, I would conclude that the Request fell short of the Attorney-General's obligation in law to engage any offence the subject of the Treaty, with the result that the Request was ineffective and invalid according to the law of Australia, and of the 1988 Act in particular.

Failure of the Respondents to have regard to a relevant consideration

99 Given the correctness of the finding that the Request was not made according to law and was therefore ineffective, and that the Respondents are therefore not lawfully entitled to pursue the same, it follows that in the circumstances already recorded in these Reasons for Judgment, the Request was vitiated upon the further ground advanced by the Appellant on the appeal, namely that the Respondents failed to have regard to a relevant consideration in connection with the decision to make the Request, namely whether the Request was made in relation to an offence listed in Article 3 of the Treaty, as required by the 1988 Act. In that regard, neither of the Departmental Memoranda dated June 1996 and November 2000 disclose that any consideration was given by departmental officers as to whether or not the alleged offences fell within the list of extraditable offences in Article 3, and for that matter whether such offences were punishable in accordance with the laws of Poland as well as Australia, and hence whether or not the Appellant's surrender could be lawfully sought by the Respondents upon the footing of the statutory offences with which Mr Oates has been charged. It is not suggested that there exists any other material in evidence before the primary judge which throws light on the question as to whether appropriate consideration according to administrative law principles was given to such matters by or on behalf of the Respondents. It is unnecessary however for me to dwell further on this additional ground of appeal, since success in relation thereto would carry the consequence only of referral of the subject consideration back to the primary judge, an unnecessary course given the findings made upon the principal issue as to the failure of the Request to engaged a Treaty offence.

Discretion

100 The primary judge concluded that even if the Request had been found to be unlawful, the Appellant should be denied relief, in the exercise of his Honour's discretion, because of the Appellant's delay in bringing the proceedings. A truncated chronology of relevant events has been set out in [39] above. To those events should now be added the following circumstances listed in the judgment below:

(i) on 6 February 1997, the Appellant's solicitors wrote to the Attorney-General asking that the Request be withdrawn; there was submitted with that letter the abovementioned Joint Memorandum of Advance of Australian Counsel, together with legal opinions of apparently eminent Polish professors, which purported to support the contention that the offences or crimes listed in the Request did not constitute crimes within the scope of the Treaty, and Article 3 thereof in particular; and

(ii) on 18 August 1997, the Appellant commenced proceedings in this Court for judicial review of the decision of the Attorney-General to consent to the institution of the proceedings the subject of the Request; on 27 February 1998, the proceedings were dismissed, but on 6 July 1998 a Full Court upheld an appeal from such dismissal; the Attorney-General and Minister for Justice thereafter lodged an appeal in relation to the Full Federal Court's decision to the High Court of Australia, and that appeal was allowed on 5 August 1999.

101 The primary judge observed that the period from August 1999 to the commencement of the proceedings was "some sixteen months". His reasons for thereafter finding adversely to the Appellant that the delay was disentitling were as follows:

"The institution of the other proceedings does not satisfactorily explain Mr Oates' delay in commencing this proceeding until just before the hearing before the Gdansk Court of Appeals on 16 February 2000. Mr Oates submits (incorrectly in my view) that the Advice supports the view that the Request was invalidly made. On that basis, he must claim to have been armed since 23 December 1996 with a weapon with which to attack the making of the Request. Yet he has chosen to attack the bringing of the criminal charges against him in this Court and the extradition procedure in the Polish courts, while reserving until the end of the day his present attack on the making of the Request...In the present case, the delay is to be measured, from at the latest the time when it was made clear to Mr Oates that the Request would not be withdrawn. As noted earlier, that date was 21 February 1997, and the delay from that date to the commencement of this proceeding was three years and ten months."

102 The Appellant points however to the following additional train of events:

(i) between 6 March 1997 and 22 May 1998, the Appellant's lawyers and the Attorney-General were engaged in negotiations in relation to the Appellant's voluntary return to Australia, until the negotiations were discontinued by the Attorney-General;

(ii) in May 1997, the Supreme Court of Poland held that the Appellant's detention, from the time of his arrest on 22 October 1996, was unlawful after 22 December 1996, and ordered his release. It was thereafter that the Appellant commenced the judicial review proceedings in this Court on 18 August 1997;

(iii) on 14 June 2000, the Appellant requested that the Attorney-General withdraw the extradition request, and thereafter there ensued an exchange of correspondence and the provision of medical records concerning the Appellant;

(iv) on 16 August 2000, the Polish District Court in Gdansk resumed the extradition hearing and delivered a decision upholding the extradition request; subsequently on 28 August 2000, the Government of Poland apologised to the Appellant for the unlawfulness of his detention after 22 December 1996 (as already indicated in [39] above), and on 5 September 2000, an appeal was lodged against the decision of the District Court of Gdansk; and

(v) on 7 December 2000, the Attorney-General's Department advised the Appellant's lawyers of the decision of the Minister for Justice and Customs not to withdraw Australia's request for extradition; it was only six days later that the Appellant commenced the present proceedings.

103 The Appellant has also placed before the Court the following circumstances personal to his life since taking up personal residence in Poland in early 1991:

(i) his marriage to a Polish citizen in 1994;

(ii) the circumstance that charges were not laid against him in Australia until January 1995;

(iii) the exacerbation of his asthma and other respiratory problems by his imprisonment, which have required constant monitoring;

(iv) since his release from prison in May 1997, the requirement that he report weekly to Sopot police station; and

(v) the loss of his position as a senior executive of a brewery enterprise in Poland as a result of his imprisonment.

104 The Appellant further submitted that the Respondents could point to no countervailing prejudice suffered as a result of such delay as may have occurred, which was not in any event the kind of delay which could have caused prejudice to the investigation, and further that there was no suggestion advanced by the Respondents that the Appellant had misused the processes of the Court, or that he had selected, reserved and preserved his present points of juridical challenge to be raised if and when they might have suited him in his litigation strategy.

105 Having reached the conclusion that a treaty offence was not engaged by the Request and was therefore misconceived in law, and not lawfully made, I have experienced difficulty in comprehending why delay in challenging the legality of the Request may constitute a valid basis in law for denial of relief upon the ground of discretion. The Appellant has referred the Court in that context to the following dictum of Gaudron J in Corporation of the City of Einfield v Development Assessment Commission & Anor [2000] HCA 5; (2000) 199 CLR 135 at 157 [56] (subsequently cited with approval by Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte AALA [2000] HCA 57; (2000) 204 CLR 82 at [55]):

"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that within the limits of their jurisdiction and consistent with their obligations to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less."

However it becomes unnecessary for me to resolve any such question, for the reasons appearing below.

106 Assuming therefore that delay may disentitle relief in the circumstances of the Appellant's challenge to the Request, nevertheless when there is added to the historical events, to which the primary judge referred in [100-101] above, the further factors set out in [102] and [104] above, and perhaps additionally that set out in [103(ii)] above, in relation to all of which there was apparently undisputed documentary evidence placed before the Court below, it should follow in my opinion that any discretion exercised at first instance to withhold relief on the ground of delay in commencement of the present proceedings would not have been affirmatively entertained on appeal. Moreover the circumstances here are in any event distant from those found adversely to the applicants in Bollag, where no attempt was made by them to explain the extraordinary delay there involved, which the presiding judge characterised at 374 as "unexplained, inordinate, inexcusable and unreasonable", and the commencement of which proceedings his Honour described as "audacious". Additionally, I do not think that the Respondents' informal raising of an Anshun estoppel during the course of argument on appeal, upon the footing of a failure to propound the present cause of action during the course of the proceedings summarised in [102(ii)] above, should be entertained. It would not be safe or just to endeavour to reconstruct the full implications of those earlier proceedings at the heel of the present quite separately commenced and conducted proceedings. Furthermore the Respondents, as well as the Appellant, were in possession of the Joint Memorandum of Advice of Counsel dated 23 December 1996 at the time of such earlier proceedings, and have been thus aware of the potential implications flowing from the analysis of legal principles the subject thereof.

107 On 7 March 2002, whilst judgment was reserved on the appeal, the Respondents filed in Court a notice of motion for leave to file further evidence, which was said to bear on the issue raised by the Respondents above as to whether relief should have been in any event refused on the ground of discretion. Irrespective of my concern raised in [105] above, I do not think that the evidence to be relied upon would be material, must less persuasive, to the exercise of the Court's discretion to withhold relief. That evidence consists of findings of the District Court in Gdansk Branch IV, delivered on 15 January 2002, in relation to the Request, as follows:

"1. On the basis of article 30 paragraph 1 of the Code of Criminal Procedure, article 92 and article 603 paragraph 1 of the Code of Criminal Procedure, to rule that the extradition of Antony Gordon Oates to Australia is legally admissible.

2. On the basis of article 614 of the Code of Criminal Procedure and article 15 of the Agreement, to charge the costs of the extradition proceedings to the Australian party and the Polish party.

3. On the basis of article 98 paragraph 2 of the Code of Criminal Procedure, to delay the preparation of the reasons for the decision until the 22^nd of January 2002 at 2 pm."

108 In my opinion, the view of the Gdansk District Court is entirely irrelevant to the issues the subject of the present Appeal, including the discretionary issue as to the delay of the Appellant in commencing the proceedings below, which I have addressed in [100-106] above. Moreover the fundamental issue in the present proceedings in Australia is the validity of the Request under Australian law, and as pointed out by Counsel for the Appellant, the Respondents have emphasised to the present Full Court the importance of in effect distinguishing Poland's obligations under the Treaty and the obligations of Australia.

109 In the result, I would uphold the appeal, and set aside the orders of the primary judge below, and declare that the Request of the Attorney-General was not lawfully made, and must therefore be set aside. Since my finding is in the minority, I merely record that I would have been otherwise of the view that the order as to costs made below by the primary judge should also be vacated, and the Respondents ordered to pay the costs of the proceedings before the primary judge and of this appeal, and also of the application to the Court of 21 March 2002. Given the identity and standing of the Respondents, I would not have thought that injunctive relief would need to have been additionally granted, had my decision been in the majority, but I would nevertheless have granted to each party liberty to apply.

Associate:

Dated: 28 March 2002