Public Prosecutions of (Cth) v Kainhofer

70 ALJR 117

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(Judgment by: TOOHEY)

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) & ANOTHER v KAINHOFER

Court:

Judges: Brennan J, Dawson J and McHugh JJ
Toohey J
Gummow J

Judgment date: 30 November 1995

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Judgment by:
TOOHEY

TOOHEY J. I agree with the reasons for judgment of Brennan CJ, Dawson and McHugh JJ and with the orders they propose. There is however one aspect warranting further comment, namely, the scope for judicial review of decisions made under the Extradition Act 1988 (Cth) ("the Act").

As their Honours conclude, in reaching a decision as to a person's eligibility for surrender under s 19 of the Act, a magistrate is not required to determine whether the person is an "extraditable person" within s 6 of the Act. A determination of that question only arises when, as a first step in the extradition process, a magistrate is called upon to issue a provisional arrest warrant under s 12 and when the Attorney-General has given notice pursuant to s 16 that an extradition request from an extradition country has been received.

While I agree with their Honours' construction of the Act, a consequence is that there is little scope for judicial review of the question whether a person is an extraditable person. Only the magistrate's decision under s 19 as to eligibility for surrender is expressly reviewable under the Act [18]. The decision to issue a provisional arrest warrant under s 12 is not expressed to be reviewable. Decisions under the Act are included in Sched 1 to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") among those decisions to which the ADJR Act does not apply.

The respondent argued that only if she was "accused" could the magistrate determine that the requirements of s 19(3)(a) had been met and that therefore whether she was "accused" was necessarily a matter to be determined by the magistrate. But, as their Honours show, this is to read too much into s 19. The introductory words in s 19(3)(a) and (b) are classificatory rather than having an operative effect. The requirement that a person is an extraditable person, involving as it does a conclusion that the person is "accused" of having committed an offence against the law of a country, is spelled out in ss 12 and 16 but not in s 19. In those former sections no provision is made for judicial review and as already noted the ADJR Act has no application to a decision made under those sections. The magistrate's function under s 12 is limited in so far as he or she is required to be satisfied "on the basis of information given by affidavit" that the person is an extraditable person [19].

It has been said that a feature of the Act is "a substantial shift away from judicial review of the extradition process towards the exercise of unreviewable executive discretion" [20]. The comment has force.

These observations say nothing as to s 39B of the Judiciary Act 1903 (Cth) which includes in the original jurisdiction of the Federal Court "any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth". A State magistrate exercising jurisdiction under the Act does not in any event answer the description of an officer of the Commonwealth [21]. In Harris v. Attorney-General (Cth) [22] s 39 B was invoked to challenge the issue of a notice by the Attorney-General under s 16(1) of the Act. The relief sought was declaratory, coupled with an injunction to restrain further action upon the notice. Prohibition is only available where jurisdictional error has occurred [23]. And, as the Full Court of the Federal Court observed in Harris [24]:

"Of course, investment with jurisdiction to hear a dispute is one thing; the grant of discretionary prerogative relief including declaratory relief if appropriate, is another".

The immediate question in this appeal is whether it was necessary for the magistrate to determine whether the respondent had been "accused" of an offence against the law of Austria. For the reasons given by Brennan CJ, Dawson and McHugh JJ, this was not a necessary step in the exercise of power under s 19. The scope for challenging a decision of the magistrate under s 19 is therefore very limited. No other challenge to the exercise of power was mounted before this Court.