CATCHWORDS ADMINISTRATIVE LAW - Review of decisions (in applications by Israel for extradition for stealing of ship) to commit fugitives to await warrant of the Attorney-General - Whether review 1s only under the Extradition (Foreign States) Act s.18 or whether Administrative Decisions (Judicial Review) Act 1s also available - Bail - Natural justice - Refusal of adjournment application - Whether document not duly authenticated could be admitted on alternative grounds - Whether Article V of the Treaty and s.14 of the Act referring to prejudice alleged to be likely to be suffered at a trial by reason of the fugitives' "race, religion, nationality or political opinions" can be raised as a defence before the magistrate or 1s a matter solely for' the Attorney-General - effect of ss.10 and 11 of the Act to enable a defence in the Treaty to be raised - Construction of the Act - Effect of s.18(3) and necessity to tender before magistrate evidence sought to be relied upon in review - Meaning of "reasonable grounds for believing that ... the person might ... be prejudiced at his trial" - Irrelevance of Fugitive Offenders Act 1881 - Whether honest claim of right had been negatived a question for the magistrate. Extradition (Foreign States) Act 1966, ss.6, 10, 11, 13, 14, 17, 18, 18A, Fugitive Offenders Act 1881, s.19 Extradition (State of Israel) Regulations Prevato v. The Governor, Metropolitan Remand Centre (1986) 8 ¥F.C.R. 358 Watson v. Watson (1968) 70 S.R.(NSW) 203 Mudginberr1 Station Pty. Ltd. v. The Australasian Meat Industry Employees Union, unreported, Sweeney, Pincus and Burchett JJ., 26 June 1986 Bloch v. Bloch (1981) 37 A.L.R. 55 Maxwell v. Keun [1928] 1 K.B. 645 E.G. & H. Nominees Pty. Ltd. v. General Mutual Insurance Co. Ltd. (in liguidation) (1976) 50 A.L.J.R. 460 Riley v. Evans (1983) 50 A.L.R. 593; and on appeal Commonwealth of Australia v. Riley (1984) 57 A.L.R. 249 Liversidge v. Sir John Anderson [1942] A.C. 206 Nakkuda Ali v. Jayaratne [1951] A.C. 66 Registrar of Restrictive Trading Agreements v. Smith (W.H.) & Son T1969] I W.ULR. 1460 Gatward v. Alley (1940) 40 S.R.(NSW) 174 HEMPEL & ETHEREDGE -V~- MOORE WAG. 81 of 1986 Burchett J. Sydney 10 December 1986 IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.81 of 1986 ) ) GENERAL DIVISION ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Applicant lz Zz is] KENNETH MOORE Respondent MINUTE OF ORDER OF THE COURT Judge Making Order: Burchett J. Where Order Made: Sydney Date of Order: 10 December 1986 THE COURT ORDERS: (1) (2) NOTE: That the application be dismissed. That pursuant to s.18(3) of the Extradition (Foreign States) Act 1966 the decisions of the Magistrate to commit each of the applicants to prison by warrant in accordance with the form prescribed for the purposes of s.17(6) of the Extradition (Foreign States) Act 1966 to await the warrant of the Attorney-General for his surrender be confirmed. Settlement and entry of orders 1s dealt with 1n Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. G.81 of 1986 GENERAL DIVISION BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Applicants AND: KENNETH MOORE Respondent REASONS FOR JUDGMENT BURCHETT J. By an amended application for an order of review, the applicants seek relief against the decision of the respondent, a Magistrate, committing them to await the warrant of the Attorney-General for their surrender to the State of Israel pursuant to the Extradition Treaty between Australia and Israel. The application is brought pursuant both to s.18 of the Extradition (Foreign States) Act 1966 (Extradition Act) and also to the Administrative Decisions (Judicial Review) Act 1977 (Judicial Review Act). It was not suggested that reliance upon the Judicial Review Act involved any expansion of the powers of the Court to review the decision under s.18 of the Extradition Act, except in so far as it was claimed that the Judicial Review 2. . Act would enable the Court to suspend the order of committal and grant bail. At the hearing, I reserved my decision on the application for review. Senior counsel for the Director of Public Prosecutions, who appeared before the Magistrate and before me to conduct the matter on behalf of the State of Israel pursuant to s.6(1)(k) of the Director of Public Prosecutions Act 1983, submitted that the Judicial Review Act was inapplicable, on the basis that the Extradition Act provided its own review code. He asked me not to follow the dicta of Wilcox J. in Prevato v. The Governor, Metropolitan Remand Centre (1986) 8 F.C.R. 358 at 364-5. As I was of the opinion that 1t was not an appropriate case in which to grant bail, even if the power exists, I did not find 1t necessary to enter upon this question. I content myself with noting, as a matter which should perhaps receive the attention of the legislature, that the difficulty in respect of ball arises from the limitation of s.18A(6) (which gives a wide power to release on bail) to the case where "a person referred to | in sub-s.(5) is in custody pursuant to (the Extradition) Act", sub-s.(5) being concerned with a person who has been granted bail in respect of an offence committed in Australia. The implication seems to be that such a person may be a fit candidate for a grant of bail by the Federal Court, in respect of an additional offence the subject of a committal with a view to extradition, but a person not already granted ba1l for an Australian offence, because innocent of any such offence and not charged with any 3. such offence, would not be. The absurdity of this is guite ; apparent. An Australian offence alleged against a petson might - be relatively trivial compared with his grave extradition ' offence, which would nevertheless be ballable; and on the other; hand an extradition offence, in a case to which the bail provision does not extend because no Australian offence has been ' committed or alleged, may be much less serious, and the accused person's circumstances may be such as to suggest that bail ought to be granted. Prevato's case provides a ready illustration. Like Wilcox J., I find it curious that a magistrate may, under s.17(2), grant bail to an apprehended fugitive pending consideration of the case by him, but a like discretion has not (unless the case happens to fall within the odd anomaly of s.18A(6)) been conferred upon the superior courts. On 5 February 1986, warrants of arrest issued out of the magistrate's court of Beer Sheva (which 1s also known as Beersheba) in respect of charges of stealing by an agent under s.393(2) of the Israeli Penal Law in respect of each of the applicants, who are United States citizens. The property the subject of the charge 1s a sailing vessel, known as the Orionia, in which the applicants arrived at Albany on 22 January 1986, having sailed from the port of Eilat, Israel. In a record of interview, the applicant Hempel 1S recorded as stating that they left Israel on 28 August 1985. On 23 January 1986, the applicants were arrested at Albany by Detective Senior Constable Davis of the Australian Federal Police. They were then on the 4. "Orionia. They were told there was an allegation that the vessel was stolen from the Eilat marina, Israel, on 30 August 1985 and they were given the usual warning. The applicant Hempel said that he, as captain, sailed the vessel to Albany and that she was not stolen. He said: "This ship 1s owned by the family, all of us on board." He said he had no idea why the Israeli police would claim that the vessel had been stolen, and that he did not know what Senior Constable Davis was talking about. These answers may have been taken into account by the magistrate as enabling an inference to be drawn of a guilty state of mind, when compared with other evidence which showed that the vessel was owned by the company Orionia Limited, and had been removed from her home port of Eilat suddenly and without notice to the company or its directors other than Mr. Hempel. That evidence included evidence of the signing by both applicants of a contract, made 23 April 1985, which expressly acknowledged the company's ownership of the vessel and their agreement to manage her as independent contractors on behalf of the company, undertaking "to operate the Ship ina proper and responsible manner within the territorial waters between Eilat and Sharem-A-Sheich", and to comply with the directions of the company "as to the operation of the Ship". The agreement refers to the vessel's "business of tourist transportation", and provides for the deposit into the company's bank account each morning of all moneys collected the previous day. After his arrest, Mr. Hempel was asked further guestions, his answers to which were included in a record of interview signed by him. He 1S recorded as answering the question: "Have you ever relinquished ownership of the Orionia?" as follows: "No we have not." The applicant Etheredge was also questioned by Detective Senior Constable Davis, immediately before his arrest. He was asked: "Who 1s the owner of this ship?" and replied: "The family owns her." He said he was a member of what he called the family. On further questioning, he said that four Israeli businessmen had provided $150,000-00 to pay out a claim of ownership of the vessel, which had been made by a merchant banker, and "now we owe these businessmen $150,000-00." He was asked: "Did you put the vessel up as a security when you borrowed the money from these four men?" He replied: "No, but until we repay the money the vessel would be owned by Orionia Israel, an Israel1 company, but the vessel is not stolen, the 6. contract does not bind us to operate solely out of Israel." The evidence includes a photocopy of a certificate of registration of the Orionia, issued at Haifa on 9 August 1985 by the Ministry of Transport, Department of Shipping and Ports, of the State of Israel showing her registration number as 70714 and the name of her owner as Orionia Limited of Tel Aviv. The evidence also includes a copy of a declaration, made 24 May 1985, by Judge Giladi of the District Court of Beersheba (also shown as Beer Sheva), 1n proceedings to which the applicant Hempel was a party, that the ship registered number 70714 Haifa, then anchored at Eilat, was owned by Orionia Ltd (sic), an Israeli company. The Court ordered delivery of the possession of the vessel to the company. The evidence indicated that this order was made by consent pursuant to agreements in settlement of disputes involving the applicants and also receivers of the vessel, whose appointment had been related to a substantial claim the payment of which was secured under the contract for the acquisition by the present shareholders in Orionia Limited of their shares. The evidence tendered before the magistrate consisted of the duly authenticated documents which had accompanied the request for extradition, and certain further affidavits and documents submitted by the State of Israel bearing certifications as provided in the Treaty, and also evidence elicited from the arresting police officer, from an Israeli attorney, a Mr. Ecker, and from a barrister of the Supreme Court of Western Australia 7. e -who had been admitted as a member of the Israeli Bar and had worked in a law office in Israel. There was no objection taken, and no ground of appeal raised, in relation to the authentication of the affidavits and other documents transmitted from Israel. A number of grounds were taken in the amended application. of these, the first and sixth related to applications for adjournment. It was suggested that a breach of the rules of natural justice had occurred by reason of the refusal of these applications. The first ground referred to an application, which was made at the commencement of the hearing, for a three months adjournment to enable the applicants' legal advisers to study the documentary evidence adduced against them, and to pursue enquiries in Israel. It was said that the applicants' counsel had been given some of the material only one working day before the commencement of the hearing, and some documents only half an hour before the commencement of the hearing. It should be pointed out that the hearing commenced on 14 July 1986, some six months after the original apprehension of the applicants, who had been allowed bail, and that the hearing continued for a short period on 15 July, when 1t was adjourned to 31 July, and ultimately concluded on 1 August. Accordingly, there was, before the proceedings concluded, a significant period available to counsel for the applicants to consider any submissions he wished to put in respect of the documents received by him on the day the 8. . hearing commenced. A similar situation constituted a factor relied on by the Court of Appeal Division of the Supreme Court of New South Wales in Watson v. Watson (1968) 70 S.R.(NSW) 203, where an appeal against refusal of an adjournment was dismissed. At 206, Asprey J.A. stated, as the general rule, the proposition that when a case is brought on for trial by the proper process, the plaintiff 1s entitled to have it heard and determined. In the unreported decision of the Full Court of this Court (Sweeney, Pincus and Burchett JJ., 26 June 1986) in Mudginberri Station Pty. Ltd. v. The Australasian Meat Industry Employees Union, the Court referred to the task of a trial judge, in dealing with an application for adjournment, as reguiring him to "weigh various considerations of convenience, delay and justice". The Court referred to the decisions in Bloch v. Bloch (1981) 37 A.L.R. 55 and Maxwell v. Keun [1928] 1 K.B. 645. In the former case at 58 Wilson J., speaking for the Full High Court, said: "The decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, and it 1s indeed seldom that an appellate court will feel justified in reviewing such a decision." In the present case, 1t 1S necessary to bear in mind the terms of s.17(6A) of the Extradition Act, which reads as follows: "A person referred to in paragraph (6)(b) (1.e@. a person whose extradition is sought in proceedings such as were involved in the present matter) is not entitled to adduce, and a Magistrate 1s not entitled to receive, evidence to controvert an allegation that the person has committed an act or omission in respect of which the surrender of the person 1s requested." So far, therefore, as the application for adjournment relied upon the applicants' desire to obtain material in Israel, any such material could, at best, have played but a slight part in the hearing before the magistrate. The comments of Barwick C.J. un E.G. & H. Nominees Pty. Ltd. v. General Mutual Insurance Co, Ltd. (an_liguidation) (1976) 50 A.L.J.R. 460 are accordingly 1n point. In argument before me, 1t was conceded that "before the hearing had concluded before the magistrate, (the applicants' advisers) had ample opportunity to study those documents (1.e. the documents said to have been received at a late stage before the hearing) and consider any submissions that arose out of their form or contents." So far as the later application for adjournment, the subject of ground six, 1s concerned, this was specifically for the purpose of the obtaining of evidence, which the applicants hoped to be able to produce, to the effect that a return of directors and shareholders, included among the documents tendered in support of the case for extradition, could not have been properly procured from the relevant Israeli authority. It seems to me there are at least two conclusive answers to any suggestion that the magistrate's refusal of this application for adjournment Lnvolved any error of law. In the first place, the avowed purpose of the applicants came into direct collision with the terms of s.17(6A). Counsel conceded he was attempting to draw a 10. fine distinction between evidence to controvert an allegation and evidence to deprive a document, the contents of which supported the allegation, of authenticity. In my opinion, the suggested distinction 1s too fine spun to have a place in the construction of the sub-section, the practical purpose of which 1s clear. But un any case, 1f the particular document had been deprived of credit, there was ample other evidence to support the accuracy of 1ts contents. The first and sixth grounds taken cannot, in my view, be sustained. No error or denial of natural justice 1s shown in relation to the magistrate's exercise of his discretion upon either of the applications for adjournment. Ground two of the amended application was not persisted in at the hearing. To understand the third ground of the application, it is necessary to say something of the relationship between the Extradition Act and the relevant treaty. By the combined operation of ss.J0 and 11 of the Extradition Act, provision 1s made for regulations applying the Act, in relation to a particular State with which Australia may enter into. an extradition treaty, "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"; and the limitations, conditions, exceptions or qualifications may ll. - be expressed in the form "that this Act applies in relation to that State subject to the extradition treaty". This legislative device was commented upon by Fox J. in Riley v. Evans (1983) 50 A.L.R. 593 at 596; and by the Full Court upon appeal, sub nom. Commonwealth of Australia v. Riley (1984) 57 A.L.R. 249 at 252. In the case of Israel, the Extradition (State of Israel) Regulations provide (by regulation (3)) that the Extradition Act "applies in relation to the State of Israel subject to ... the Treaty concerning Extradition." Accordingly, although s.17 of the Extradition Act has been amended to delete from sub-s.(6) the previous requirement of production to the magistrate of evidence to justify the trial of the person whose extradition 1s sought (for the previous form of this provision see Commonwealth v. Riley at 256), the requirement concerning evidence may still be applicable if it 1s contained in the treaty. In fact, Article XI(1)(b) (221) does require a request for extradition of a person accused of an offence to be accompanied by "such duly authenticated documents as, according to the law in force in the part of the territory of the requested State in which he is found, would, or would when taken together with any other evidence that 1s, or will be, available in the requested State, constitute sufficient evidence to justify his being put on trial if the act or omission constituting the offence had occurred in that part of that territory". Article XII provides for the furnishing of additional evidence subsequently to the request, and Article XIII provides for the 12. "manner of authentication of certain documents by the signature of a judge or magistrate, or by his certification or that of a competent officer of a court of the reguesting State. The point raised by ground three of the application 1s that a document, which was received in evidence by the magistrate, had not been duly authenticated within the meaning of Article XIII. It was conceded, for the purpose of the submission, that the document in question, a minute of a special resolution appointing directors of the company Orionia Limited, was proved by the oral evidence of Mr. Ecker, who was one of the directors, but the submission was simply that authentication in the particular manner provided for by Article XIII, such as the signature or certificate of a judge, was essential. It was asserted that Article XIII 1s not merely facultative, but provides the exclusive way in which a document may be proved. I do not accept this submission, which seems to me to overlook the plain words in the passage I have earlier quoted from Article XI: "or would when taken together with any other evidence that 1s, or will be, available in the requested State", Those words in Article XI are consistent with s.26 of the Extradition Act, sub-s.{1) of which provides: "In a proceeding under this Act, any document that is duly authenticated is admissible in evidence"; and sub-s.(3) of which provides: "Nothing in this section prevents the proof of any matter, or the admission in evidence of any document, in accordance with any other 13. law of the Commonwealth or any law of a State or Territory." In Riley v. Evans (supra), which concerned the treaty with the United States of America, a treaty containing a similar provision un respect of authentication, evidence was tendered in Australia to supplement the evidence transmitted in duly authenticated form from the United States of America, and none of the courts before which the matter came suggested that any invalidity was thereby introduced into the proceedings. In the nature of things, evidence 1s likely to be available, at an extradition hearing, of statements made, or documents seized, at the time of apprehension of the fugitive. There 18 no reason to suppose it was intended that evidence of that kind should be excluded. The fourth ground relates to an attempt, which was made at the hearing before the magistrate, to adduce evidence, by cross-examination of Mr. Ecker, that the proceedings of courts in Israel are conducted -in the Hebrew language and not in English. The suggestion was that s.14(b) of the Extradition Act was applicable. S$.14 (as will become apparent) needs to be considered in conjunction with s.13(1)}. They provide: "13.(1) A person is not liable to be surrendered to a foreign state 1f the offence to which the requisition for his surrender relates 1S, or is by reason of the circumstances in which it 1s alleged to have been committed or was committed, an offence of a political character or 1f the reguisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character. 14. 14. The Attorney-General shall not give a notice under sub-section 15(1), or issue a warrant under sub-section 18A(1) or (3), un respect' of a fugitive from a foreign state in relation to which section 10 applies, if theré are substantial grounds for believing that - (a) the requisition for the surrender of the fugitive, 'although purporting to have been made in respect of an offence for which, but for this section, he would be liable to be surrendered to that state, was made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or (b) if the fugitive is surrendered to that state, he may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions." Counsel was permitted to ask some questions of Mr. Ecker concerning the language in which court proceedings are conducted in Israel, and evidence was given that the proceeding in the court at Beersheba, which was relevant to the present matter, was in fact conducted in English. At that point, counsel attempted to put a question in cross-examination referring to what he said the applicants would say. A question in that form would normally be regarded as objectionable, and the question was objected to. Discussion followed concerning s.17(6A), s.14, and Article V of the treaty. At the conclusion of that discussion, the magistrate ruled: "TI will allow him to take his cross-examination and these submissions can be made at the end," 15. He added some comments which made it perfectly clear that he did not think s.14 applied, but he did not reject any question on the topic which counsel had sought to raise, and on the contrary he invited counsel to resume his cross-examination. Counsel had no further questions. In my view, the magistrate's comment was entirely justified, because it cannot be said that the conduct of proceedings in a foreign state in the language of that state, if 1t were thought that this is what would occur, would amount within the meaning of s.14(b) to prejudice to an extradited person "at his trial ... by reason of his race, religion, nationality or political opinions". Anyway, as I have said, no question was rejected. But the matter was raised again, on the last day of the hearing before the magistrate, when counsel 'for the applicants sought what he described as clarification of the magistrate's view as to the kind 6f evidence the applicants could give in respect of the issues raised by s.14(b). Not all of what was said following this request is clear or consistent. The magistrate appears to have been, at least initially, of the view that the matters embraced by s.14 of the Extradition Act could be canvassed in evidence, but senior counsel appearing for the Director of Public Prosecutions, Mr. Lee Q.C., submitted strongly that this was not so. According to his submission, the matters which could be raised on behalf of the applicants were those contained in s.13, but s.14 concerned only the Attorney-General, 16. - and was not relevant to the hearing before the magistrate. At the conclusion of the submissions on behalf of the Director of Public Prosecutions, the magistrate asked counsel for the applicants the following question: "In view of what Mr. Lee has said do you wish now to address?" Counsel sought a few moments to confer with his clients, and then Stated that he conceded he could not bring the matter he wished to raise within s.13, adding: "And accepting that s.14 refers to the Attorney-General and that 1t refers to a power of the Attorney~General in respect of these matters, 1t follows logically in my mind that some other steps have to be taken to bring the matters of race, religion and nationality to the Attorney-General's attention in another way. Consequently I do not seek now to call any evidence of those matters in this court." It is true that counsel prefaced all of his remarks by a reference to "the clarification from your worship", but having read and re-read with care the several pages of transcript to which counsel referred me as embodying the discussion with the magistrate, T am left with the very clear impression that he had made no ruling excluding evidence, if it should be tendered, relevant to the issues raised by s.14(b) of the Extradition Act. On the contrary, he had indicated he would accept such evidence, but had then been pressed by Mr. Lee Q.C. to change that intended ruling, and had called on counsel for the applicants to address 17. on the subject. It seems plain that counsel, after conferring with his clients, decided not to pursue the matter. In those circumstances, I think 1t is too late for the applicants to attempt to rely on this question in the present application. $.18(3) is quite specific: "Upon a review under sub-section (1), the Court shall have regard only to the material that was before the Magistrate and shall - (a) if satisfied that the decision of the Magistrate was valid - make an order confirming the decision; or (b) if not so satisfied - order that the fugitive be released." The material before the magistrate included neither evidence raising any question under s.14(b) nor a tender of any such evidence. Furthermore, so far as counsel had previously foreshadowed the nature of the evidence he had at one stage proposed to adduce, 1t does not seem to me that 1t could possibly fall within the language of s.14(b). It would be fundamentally ' inconsistent with the Extradition Act and the treaty, and could not have been contemplated by the legislature when enacting s.14, to hold that the mere fact of the fugitives belonging to a different race, speaking a different language, from those of the members of the court in the requesting country could be a ground for asserting that the fugitives were not liable to be surrendered. Notwithstanding these conclusions, as the matter has been argued, I think I should indicate my opinion on the basic 18. question of construction. The starting point 1s s.17(6), which states the task of the Magistrate. That task is to consider the material submitted by the foreign state and whether "the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person 1s liable to be surrendered to the foreign state that made the requisition for the surrender" (emphasis added). Whether a person is liable to be surrendered is to be determined in the light of sections 12 and 13 of the Extradition Act and of the relevant treaty; but does s.14 also play a part in that question? By s.12, a fugitive from a foreign state (as to what 15s meant by such a fugitive, see s.4(1) and (2)) is liable to be surrendered, subject to the Act and to any MIlimitations, conditions, exceptions or qualifications to which the application of the Act in relation to that state is subject. The reference to Limitations and conditions, of course, reflects the terms of sections 10 and 11, which I mentioned earlier in these reasons, and embraces (where, as in the case of Israel, the regulations contain a provision in the form authorised by s.10(2)) those limitations and conditions which "are necessary or desirable to give effect to (the relevant) treaty" (s.10(1)(b)). No court seems to have been called upon as yet to explore the implications of this legislative short-cut, or to decide whether its validity or other considerations would require it to be given some more restrictive construction than its literal terms at first sight suggest. But at least it can be said, in my opinion, that the 19, effect of sections 10 and 11 and of cl.3 of the Extradition (State of Israel) Regulations quoted earlier must be that, 1f the treaty provides that a person 1s not liable to be extradited where certain circumstances exist, those circumstances would constitute a ground for finding him not liable to be surrendered. Article V(1) of the Extradition Treaty between Australia and Israel provides: "A person shall not be extradited where - (c) the offence for which his extradition is requested is, or is by reason of the circumstances in which 1t is alleged to have been committed or was committed, regarded by the appropriate authority of the requested State as an offence of a political character; or (d) the appropriate authority of the requested State has substantial or, as the case may be, reasonable grounds for believing that the request for extradition has been made for' the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions or that the person might, if surrendered, be prejudiced at his trial, or punished, detained or restricted in his personal liberty, by reason of his race, religion, nationality or political opinions." It may be thought the words "the appropriate authority of the requested State has substantial or ... reasonable grounds for believing" are ambiguous, not pointing sufficiently distinctly to a Magistrate acting under s.17(6). But since the 20. - dissenting judgment of Lord Atkin in Liversidge v. Sir John Anderson [1942] A.C. 206 came to be recognized as expressing the true view of the law (see Nakkuda Ali v. Jayaratne [1951] A.C. 66; Registrar of Restrictive Trading Agreements v. Smith (W.H.) & Son [1969] 1 W.L.R. 1460), language of this kind has invariably been understood to state an objective requirement. In a matter so greatly affecting individual liberty, a court should not lightly retreat from the principles on which Lord Atkin took his historic stand. Tf Article V(1l)(d) 1s aunterpreted as raising an objective ground denying the liability of a person to be extradited, it seems to fall squarely within the matters to be decided by a Magistrate under s.17(6). In fact, Article V(1)(c) closely parallels s.13(1) of the Extradition Act, which counsel agree raises a defence to be considered by a Magistrate; while Article vV(1)(d) just as closely parallels s.14. According to Article V of the Treaty, each 1s egually a defence to , extradition, and is expressed as such in a precisely similar way. Yet it is said the Act requires that a different construction be adopted, because s.14 addresses itself, not to the Magistrate, but to the Attorney-General; s.13 1s said to state the defences which can be raised before the Magistrate. If the Treaty views them as two branches of the one tree, the Act sees them as separate species. The first problem about this argument is that ut ignores the effect of sections 10 and 11, 21. which subject the application of the Act to limitations and conditions imposed by virtue of the Treaty. There is another problem. The Act cannot be said to preserve a clear dichotomy of function between the Magistrate and the Attorney-General in respect of sections 13 and 14. While it 1s true that section 13 uses the words which describe (in s.17(6)) part of the Magistrate's function, to decide whether the person 1s "liable to be surrendered", and that s.14 addresses itself to the Attorney-General, it 1s also true that s.14(a) umplies that s.14, as well as s.13, 1s concerned with a person's liability to be surrendered; it uses the expression "an offence for which, but for this section, he would be liable to be surrendered". And on the other hand section 18A(1) uses language clearly implying that s.13 raises an issue which does not go to the question whether the person 1s liable to be surrendered. For it provides: "Where the period applicable under sub-section 18(1) in relation to a person (in this section referred to as a 'fugitive') has expired and - the Attorney-General may - (¢) 1£ satisfied that the fugitive 1s liable to be surrendered to the foreign state that made the requisition for the surrender of the fugitive; and (ad) unless of the opinion that - (1) the offence to which the requisition for the surrender relates 18, or 1S by reason of the 22. circumstances in which zt 1s alleged to have been committed or was committed, an offence of a political character; or (i1) the requisition for the surrender has in fact been made with a view to try or punish the fugitive for an offence of a political character, by warrant in accordance with the appropriate form prescribed for the purposes of this sub-section, order that a person specified in the warrant take the fugitive into custody and convey the fugitive to a place in that foreign state or within the jurisdiction of, or of a part of, that foreign state and there surrender the fugitive to a person appointed by that foreign state to receive' the fugitive." It cannot therefore be concluded that the Act establishes a logical and consistent structure requiring section 14 to be construed as raising an issue only' for. the Attorney-General. At least, no intention appears which would exclude the effect of Article V of the Treaty as made applicable by the terms of the Regulations and sections 10 and ll. , However, in the present case, no evidence was tendered which would attract the operation of s.14 and Article Vv. The fifth ground was abandoned at the hearing before me, and the sixth has already been considered. Under the seventh ground, counsel informed me that what he wished to argue was that s.19 of the Imperial Act the Fugitive 23. ' Offenders Act 1881 should have been applied by the magistrate. Counsel pointed out that s.6(2) of the Extradition Act provides: "Nothing in this Act excludes the operation of the Imperial Act known as the Fugitive Offenders Act, 1881." However, 1t seems to me to be beyond question that the Imperial Act has no relevance to proceedings with a view to extradition of a person pursuant to the treaty between Australia and Israel. The Fugitive Offenders Act 1881 was concerned with the British Empire, and was repealed "as respects the United Kingdom" by s.21 of the (United Kingdom) Fugitive Offenders Act 1967, which is concerned with the British Commonwealth. In Australia, extradition of fugitives from Commonwealth countries 1s dealt with by the Extradition (Commonwealth Countries) Act 1966, s.6 of which provides: "This Act excludes the operation of the Imperial Act known as the Fugitive Offenders Act, 1881." Under ground eight, counsel submitted that there was no evidence of the capacity of the company Orionia Limited to own the vessel 1n question. The submission was put on the basis that the memorandum and articles of association of the company had not been tendered. It was conceded that the magistrate was concerned only with the establishment of a prima facie case sufficient to justify a committal for trial 1f the offence had occurred in Western Australia, It seems to me the evidence to which I have ? 24. "already referred clearly justified the magistrate in finding such a case. Each of the applicants was proved to have expressly acknowledged in writing the company's ownership of the vessel, and the applicant Hempel was proved to have been a consenting party to court proceedings in Israel in which a declaration of ownership of the vessel by the company was made, while the applicant Etheredge had acknowledged to Detective Senior Constable Davis that the company owned the vessel. It was proved that the vessel was registered in Israel, that her registration was in the name of the company, and that the company was a corporation in Israel. Actions by the company, indicative of ownership, included its entry into the agreement with the applicants for the management of the vessel on the company's behalf, and for the payment of the moneys earned by her operation into the company's account. In other words, the company dealt with the vessel as owner, and that supplies prima facie evidence of ownership: Gatward v. Alley (1940) 40 S.R.(NSW) 174 at 180. , The final ground raised, ground nine, was that there was an honest claim of right which had not been negatived. Reference was made to the Criminal Code of Western Australia, and to the terms of s.383 of the Israeli Penal Law which provides (inter alia) that a person steals who "without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of taking, permanently to deprive the owner thereof." It is enough, in answer to this submission, to say oe pay ' 25. that I have considered the evidence that was before the magistrate, some of which I have referred to earlier in these reasons, and that it appears to me it was plainly open to the magistrate to find a sufficient prima facie case that the assertions of right made by each of the applicants were false, and that they had not acted upon any claim of right, but intentionally in order to deprive the company Orionia Limited of 1ts property in the vessel. For these reasons I reject each of the grounds of the application for review, and I am satisfied that the decision of the Magistrate was valid. I dismiss the application, and pursuant to s.18(3) of the Extradition Act I make an order confirming the decision of the Magistrate. I certify that this and the preceding twenty-four (24) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Leen abs Associate Dated: 10 December, 1986.