CA'TTCHWORDS Extradition under Extradition (Poreign States) Act - Extradition (Federal Republic of Germany) Regulations - Failure of State seeking extradition to tender Attorney-General's notice and warrant of apprehension - Warrant attached to Court papers and recital of notice in it relied upon - Whether recital in a warrant is evidence - Whether presumption of regularity applicable - Whether without evidence of date of Attorney-General's notice amending regulations could be applied — Whether repeal and amendment of regulations could operate retrospectively if an Attorney-General's notice had already issued - Court not satisfied of validity of Magistrate's decision. Extradition (Foreign States) Act 1966,ss. 10, 11, 12, 15, 16, 17, 17A, 18 Acts Interpretation Act 1901, ss.48(1)(b), 50 SCHLIESKE -V- FEDERAL REPUBLIC OF GERMANY & ANOR. NSW G.236 of 1987 Burchett J. Sydney 3 July 1987 tp esp ee ya Ey ES IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.236 of 1987 www ww GENERAL DIVISION BETWEEN: JENS INGO SCHLIESKE Applicant AND: FEDERAL REPUBLIC OF GERMANY First Respondent AND: DENIS ERIC CULLEN Second Respondent MINUTE OF ORDER OF THE COURT Judge Making Order: Burchett J. Where Order Made: Sydney Date of Order: 3 July 1987 THE COURT ORDERS THAT: (1) The applicant be released. (2) The respondent Federal Republic of Germany pay the applicant's costs of the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. _e Fr \} —sy = naan aaen IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.236 of 1987 GENERAL DIVISION BETWEEN: JENS INGO SCHLIESKE Applicant AND: FEDERAL REPUBLIC OF GERMANY First Respondent AND: DENIS ERIC CULLEN Second Respondent REASONS FOR JUDGMENT BURCHETT J. In this matter the applicant seeks a review of the validity of a decision made by the second respondent, a Magistrate, in extradition proceedings brought at the request of the first respondent, the Federal Republic of Germany (the Federal Republic). The review is sought under s.18 of the Extradition (Foreign States) Act 1966 (the Act). There has been a previous attempt to secure' the extradition of the applicant. That attempt failed when a Full Court of this Court held that it was necessary for the Federal Republic under the provisions, as they stood at that time, of the H bo if t b l te at i Pn yn meen I IRA TR ee . 2. . cs ~ Extradition (Federal Republic of Germany) Regulations to place before the Magistrate evidence of guilt: Schlieske v. Federal Republic of Germany (1987) 71 A.L.R. 215. But immediately upon the announcement of the Full Court's decision on 3 March 1987, the applicant was again apprehended pursuant, it is claimed, to a fresh warrant for his apprehension issued under s.16(1)(a) of the Act. A very important change which occurred between the original arrest of the applicant and his arrest on 3 March 1987 was the amendment of the Extradition (Federal Republic of Germany) Regulations by Statutory Rule No. 294 of 1986, notified in the Commonwealth of Australia Gazette on 15 October 1986. (See as to the effect of notification s.48(1)(b) of the Acts Interpretation Act 1901). One of the amendments made to the Regulations involved the repeal of the regulation containing the words "an act or omission by the person evidence of which is produced in connection with the requisition" which formed the basis of the Full Court's decision. As a consequence, the Federal Republic claimed to be entitled to seek the extradition of the applicant upon allegations made in its requisition without the necessity of producing evidence (see the previous Schlieske case, supra, at 218, 223-4). But, in the presentation of the renewed case to the Magistrate on behalf of the Federal Republic, there was also a departure from the procedure adopted on the previous occasion. Whereas on the first hearing the warrant for the apprehension of the applicant, which had issued pursuant to s.16(1)(b) of the ne € 3. . Act, and the notice in writing of the Attorney-General informing the Magistrate pursuant to s.15(1)(b) that the requisition had been made, were both tendered in evidence, on the hearing which followed the arrest of the applicant on 3 March 1987 neither the warrant for his apprehension nor any notice in writing of the Attorney-General, pursuant to either paragraph (a) or paragraph {b) of s.15(1), was tendered. In the course of his submissions, the representative of the Director of Public Prosecutions, who conducted the matter on behalf of the Federal Republic, informed the Magistrate that the warrant issued on 3 March 1987 was issued under s.15(1)(a) of the Act. But there was an express submission on behalf of the applicant that there was no evidence before the Magistrate that the warrant was issued in accordance with the Act, or how the warrant came about, or whether the prerequisites to its issue had been satisfied. Attention was also specifically drawn to the fact that there was no evidence of the Attorney-General's notice. In his reasons, the Magistrate said: "Tt is contended that there is no evidence before the court that the warrant issued under the Act which relates to the fugitive's present custody was issued in accordance with the Act. The warrant was not tendered in evidence before the court, it is attached to the court papers and upon the fugitive's apprehension under the warrant the provisions of Section 17 of the Act came into play. The warrant issued under Section 16 of the Act recites that the Attorney General had, by notice under paragraph 15(1)(a) of the Act, authorised the issuing by any Magistrate of a warrant for the apprehension of the fugitive. The fugitive contends that as there is no evidence before the court as to how the warrant came into being, the court cannot decide whether Section 17(5) of the Act regarding a warrant issued under other than " 4. Section 15(1)(a) comes into effect. I have indicated that the warrant purports to be issued in pursuance of an authority by the Attorney General under Section 15(1)(a) of the Act. The argument by the fugitive can be answered by the presumption that at the relevant time of issue of the warrant, there existed the necessary notice under Section 15(1)(a) of the Act authorising the issue of the warrant. In the absence of evidence from the fugitive to raise a contrary presumption, there 1s no evidence before the court to invalidate the presumption. By application of the presumption there is a prima facie case, that the Magistrate was authorised by the Attorney General by notice issued under Section 15(1)(a) of the Act to issue the warrant which led to the fugitive's apprehension. That presumption not having been met by any rebutting evidence, prevails against the fugitive." It is apparent that the Magistrate, though the warrant had not been tendered, considered he was entitled to refer to it on the basis that it was attached to the Court papers. It seems to me there is a difficulty about this. The warrant is not a pleading defining the issues between parties for the purposes of a proceeding. Its function is entirely different. It is addressed "To all members or special members of the Australian Federal Police and all members of the Police Force of each State and Territory." A fundamental principle of natural justice stands in the way of the Magistrate referring to such a document. The applicant had no opportunity to object to its admissibility, or to lead evidence or make submissions to counter the effect of what 1t conveyed. Whether or not he was aware of its existence and terms, he was not aware that it was before the Tribunal. It is accepted that the Attorney-General's notice was not part of the material which was before the Magistrate. For a 5. Fd the applicant, it was submitted that both the warrant and the notice, in a case where a warrant has issued under paragraph (a) of s.15(1), must be tendered before a Magistrate can have jurisdiction to commit a fugitive to prison to await the warrant of the Attorney-General for his surrender. In order to understand the submission, it is necessary to have regard to certain provisions of the Act. There are two procedures by which a fugitive may be brought before a Magistrate pursuant to the provisions of the Act relating to the surrender of fugitives to a requesting State. By the one procedure, the requesting State makes a requisition upon which the Attorney-General, in the exercise of a discretion, may pursuant to s.15(1)(a) of the Act "by notice in writing in accordance with the form prescribed for the purposes of this paragraph, state that the requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of the fugitive." Where this procedure has been followed, a Magistrate may then issue a warrant pursuant to s.16(1)(a) of the Act, and the fugitive, upon arrest, may be brought before a Magistrate with a view to the hearing of the committal proceeding. Where the other procedure is adopted, the warrant is issued first under s.16(1)(b), and after the apprehension of the fugitive in pursuance of that warrant, and upon receipt of the requisition for the surrender of the fugitive made by the foreign state, the Attorney-General may issue in accordance with s.15(1)(b) a notice 1n writing informing a Magistrate that the requisition has been made. aoe Set an 6. In either case, the Attorney-General is subject to the statutory command contained in s.15(2) which reads as follows: "The Attorney-General shall not give a notice under sub-section (1) in respect of a fugitive whose surrender is requested by a foreign state if:the Attorney-General is of the opinion that - (a) the fugitive is not liable to be surrendered to the foreign state; or (b) the offence to which the requisition for the surrender of the fugitive relates is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character or that 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." The form of notice by the Attorney-General prescribed for the purposes of s.15(1)(a) is contained in the schedule to the Extradition (Foreign States) Regulations as amended by Statutory Rules No. 157 of 1985. The prescribed form, which provides for some alternatives to suit various cases, and clearly might require some amendment in particular circumstances, reads as follows: " COMMONWEALTH OF AUSTRALIA Extradition (Foreign States) Act 1966 NOTICE BY ATTORNEY-GENERAL UNDER PARAGRAPH 15(1)(a) WHEREAS— (a) a requisition has been made to me, , Attorney-General of the Commonwealth of Australia, by , a State to which the Extradition (Foreign States) Act 1966 applies, for the surrender of , a fugitive who *is ap rr amennemn and Faas, ~ TTS - wes me wo - —— 7. accused/*has been convicted/of the offence of against the law of *a part of/fthat state and is *suspected of being/in or on the way to Australia; and (b) a warrant for the apprehension of has not been issued under section 16 of that Act: NOW THEREFORE I, ,Attorney-General of the Commonwealth of Australia, being of the opinion that - (c) 1s liable to be surrendered to (insert name of foreign state); (d) the offence to which the requisition relates is, neither in essence nor by reason of the circumstances in which it *is alleged to have been/*was/committed, an offence of a political character; and {e) the requisition has not been made with a view to try or punish for an offence of a political character, pursuant to paragraph 15(1) (a) of the Extradition (Foreign States) Act 1966, hereby state that the above-mentioned requisition has been made and authorize the issuing by any Magistrate of a warrant for the apprehension of Dated 19g Attorney-General *Omit if applicable. Section 17 of the Act then provides for the proceedings which are required after the apprehension of the fugitive. By subsection (5A) and subsection (5B) provision is made for the case of a person who consents to being extradited, but even in such a case the subsections ensure that there will be no committal with a view to the surrender of the fugitive until the Attorney-General's notice has been received. Subsection (6) ——— eae nee ey eee ' 8. provides for a contested hearing. It reads as follows: "If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under paragraph 15(1)(b) and - (a) there is produced to the Magistrate - (i) in the case of a person who is accused of an extradition crime - (A) a duly authenticated foreign warrant in respect of the person issued in the foreign state that made the requisition for the surrender of the person or a duly authenticated copy of such a warrant; (B) a duly authenticated statement in writing setting out a description of each offence for which the Surrender of the person is requested and the penalty applicable to each such offence; and (Cc) a duly authenticated statement in writing setting out all the acts or omissions in respect of which' the surrender of the person is requested; or (ii) in the case of a person who is alleged to have been convicted of an extradition crime - such duly authenticated documents as provide evidence of the conviction, of the sentence imposed on the person or of the intention to impose a sentence on the person and of the extent to which a sentence imposed on the person has not been carried out, and, if the application of this Act to the foreign state that made the requisition for the surrender of the person is subject to any limitations, conditions, exceptions or qualifications, any other documents ae ene. — required by those limitations, conditions, exceptions or qualifications to be produced; and (b) the Magistrate is satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender, the Magistrate shall either - (c) by warrant in accordance with the form prescribed for the purposes of this sub-section, commit the person to prison to await the warrant of the Attorney-General for the surrender of the person; or (d) in the case of a person - (i) who has been charged with an offence that is alleged to have been committed in Australia, being a charge that has not been disposed of; or (1i) who has been convicted in Australia of an offence and 1s not in custody in respect of that offence, on the person's entering into such recognizances as the Magistrate thinks appropriate, grant bail to the person pending the signing of a warrant by the Attorney-General for the surrender of the person, but otherwise the Magistrate shall order that the person be released." If the Magistrate orders the release of the fugitive, s.17A provides that the foreign state may apply to this Court or to the Supreme Court of the State or Territory in which the fugitive was apprehended for a review of the order. subsection (5) of that section: "Upon a review of the order, the Court shall have regard only to the material that was before the Magistrate." By srr oe oe aT A eee ae tare oy wee or 10. By subsection (7) the Court "may confirm or vary the order, or quash the order and make a new order in substitution for the order so quashed." There is provision for an appeal to the Full Court of this Court. By s.18, the fugitive may make an application "for a review of the validity of the decision of the Magistrate." The present application is under s.18(1), and it 1s important to note the terms of subsection (3) of that section which reads as follows: "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) 1£ not so satisfied - order that the fugitive be released." It will be apparent from so much of the Act as I have summarized that the Attorney-General's notice is the essential document which translates any Australian obligation, under international law, to extradite a fugitive into a right, under municipal law, to have a particular application for extradition proceeded with before a Magistrate. It is in an analogous position to the information the laying of which was proved by evidence in order to invest the magistrate with jurisdiction in Ex parte Walker; Re Goodfellow (1944) 45 S.R.(NSW) 103, though of course the magistrate in extradition proceedings does not exercise judicial power, but performs an administrative function or eT ee a eeee wes tara alee on ae ae te, atan NAEP aanane CLARA a ee ft we . 2 2 1 : ll. as a persona designata: Amrit Lal Narain v. Parnell (1986) 9 F.C.R. 479. The opening words of subsection (6) of s.17 reflect the two procedures I have mentioned, but in each case the foundation of the whole proceeding before the Magistrate is the Attorney-General's authority. This appears plainly enough from those opening words of subsection (6), but it may also be demonstrated by reference to paragraph (b) which requires the Magistrate to consider whether he "is satisfied ... that the person 1S liable to be surrendered to the foreign state that made the requisition for the surrender"; he cannot be so satisfied apart from the Attorney-General's notice. For the liability to be apprehended and surrendered, laid by s.12 upon a fugitive from a foreign state in relation to which the Act applies, exists only "subject to this Act [my emphasis] and to any limitations, conditions, exceptions or gualifications to which the application of this Act in relation to that state is subject", and the Act provides for that liability only by a proceeding in pursuance of an Attorney~General's notice. The receipt of the notice is as much a condition of the exercise of the jurisdiction of the Magistrate in respect of extradition as was the provision of evidence under the Extradition (Federal Republic of Germany) Regulations in their previous form, and likewise "this requirement seems to (me) to impose upon the Magistrate ... the duty of ensuring" that there is evidence of that notice. (Cf. the previous Schlieske case at 223.) By s.17(4) and (5) specific provision is made to ensure that no hearing may take place before the Magistrate without an Attorney-General's notice. seh ieaieataeenenhaees seaanetnoalitaiaalceeammedetias a errr 12. I have already drawn attention to the fact that the Court, when reviewing a Magistrate's decision under s.17(6), may have regard only to the material that was before the Magistrate. Yet ss. 17A and 18 place upon the Court the duty, according to the circumstances, of confirming, varying, quashing or making a new order (in a case under s.17A) or confirming a decision as valid or ordering the release of a fugitive under s.18. If the Court, in an application under s.18, is not satisfied that the decision was valid, it is required to order that the fugitive be released. Unless the Attorney-General's notice forms part of the material that was before the Magistrate, being the only material to which the Court may have regard, it is impossible to see how the Court could make an order under s.17A committing the fugitive to prison to await the warrant of the Attorney-General for his surrender, or how the Court could be satisfied that the decision of the Magistrate was valid in an application under s.18. The Court, no less than the Magistrate, "must be positively satisfied of his (i.e. the fugitive's) liability to be surrendered before (the Court) may commit a particular fugitive to prison to await the Attorney-General's warrant for surrender". (See the previous Schlieske case at 222.) Since the liability to be surrendered, which s.12 imposes subject to the Act, is restricted by the discretion given the Attorney-General to withhold his notice, neither' the Magistrate nor the Court can avoid scrutinising the notice to ensure that it authorizes the decision requested by the foreign state. As Deane J. said in Riley v. The Commonwealth of aa nee sae ae wor ee 13. Australia (1985) 159 C.L.R. 1 at 15: "Even when another state is entitled to require extradition of a person under the provisions of an extradition treaty to which this country is a party, however, neither the executive government nor any member of it has any automatic right to detain or deliver up that person otherwise than pursuant to the mandate of some Act of the Parliament." This must also be true of a magistrate considering the exercise of the administrative function reposed in him by the Act. In Re Bolton; Ex parte Beane (1987) 61 A.L.J.R. 190 at 196 Deane J. said: "Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody." The Attorney~General's discretion under s.15 is no mere rubber stamp. Subsection (2) requires him not to issue the notice if he is of opinion that "the fugitive is not liable to be surrendered to the foreign state", or where the matters set out in paragraph (b) of that subsection apply. It may be noted that those matters include the case where the offence to which a requisition relates is of a political character. It is established law that under a given treaty a particular offence May not be extraditable, but none the less a requisition which includes such an offence may also include other offences upon wer ie yee. 14. which it 1s proper that the fugitive may be extradited. (See for example Riley v. The Commonwealth of Australia, supra, at 6.) [In a case in which the Attorney-General formed the opinion that the situation was as I have described, it seems to me that it would be his duty under s.15, if minded to exercise his discretion in respect of the offence or offences for which the fugitive was liable to be extradited, to give a notice authorizing the issue of a warrant by a Magistrate pursuant to s.15(1)(a) for the apprehension of the fugitive only in respect of the appropriate offences, and not in respect of offences including an offence which would fall within the terms of s.15(2). Having regard to the formality of a request for extradition, the interests of the comity of nations which are involved, and the importance of swift action 1n many cases where extradition is sought, I do not think s.15(2) should be construed as necessarily requiring rejection altogether of a requisition referring to a number of offences, simply because one only is in the Attorney-General's opinion of a political character or otherwise of a kind for which the fugitive is not liable to be surrendered. In Factor v. Laubenheimer (1933) 290 U.S. 276 at 293-4 Stone J., delivering the opinion of the Supreme Court of the United States, said: "In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations, and the good faith of treaties, as well, require that their obligations should be liberally construed so as to effect the apparent intention of the ee ee eee 15. parties to secure equality and reciprocity between them. Tor that reason if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred." It seems to me that this reasoning has an application to the construction of s.15(2), though that section is found in an Act, and not in a Treaty. The Act is one peculiarly concerned with the performance of treaty obligations. The significance of the question I have just been discussing is, of course, that unless the Magistrate has before him the Attorney-General's notice he cannot, certainly in a case such as the present where the reguisition includes more than one offence, know whether the Attorney-General has authorized him to consider the committal of the fugitive in respect of all the offences in the requisition. It would even be possible, in an extreme case, in the absence of tender of the Attorney-General's notice, that a Magistrate might commit on the basis of one only of a number of offences referred to in the requisition, whereas the Attorney~General's notice may have omitted that very offence. Such a situation could arise, not only by virtue of s.15(2), but also by virtue of an exercise of the Attorney-General's discretion under s.15(1) in relation to a particular alleged offence. The Magistrate, though directing his attention to a somewhat different argument, recognized that the authority of an Attorney-General's notice was required. But he thought the nn nee cone terme ae ee rot 16. recital in the warrant which he treated as before him, though 1t had not been tendered, enabled him to be satisfied ~- at any rate when a presumption of the regularity of its issue was taken into account. This seems to me to be contrary to the views expressed by the Full Court in the previous Schlieske case at 223, where the joint judgment states: "(W)e do not think that the common law rule presuming the regularity of official acts has any relevance to the present case. ... There is no room for presumptions in favour of the executive where the liberty of the subject is concerned: see Dillon v. R [1982] A.C. 484 at 487." To apply the presumption of regularity to the previous issue by a Magistrate of a warrant for the apprehension of a fugitive, for the purposes of the subsequent proceedings under s.17(6), would also offend against the principle stated in Wade on Administrative Law 5th ed. page 307: "A situation in which the presumption of regularity does not apply 1s where the jurisdiction of an inferior tribunal is challenged in collateral proceedings." There is, too, long standing and specific authority for the proposition that a warrant is not "evidence of the truth of its recitals", as Cresswell J. put it in Stevens v. Clark [1842] 2 Me. & Rob. 435 at 436; 174 E.R. 341, also reported in (1842) Car. & M. 509; 174 E.R. 612. Stevens v. Clark was relied on by Hawkins J., Pollock B. and Lindley J. in The Queen v. Hughes [1879] 4 Q.B.D. 614 at 628-9, an authority which has been cited on a number of occasions. In Osborne v. Petrie (1946) S.R.(0d.) 124 at 135-6 Philp J., with whom Webb C.J. agreed, said: Pon ee es gee ero 17. "The recital of the original complaint in the purported complaint is no evidence of the former, since it does not show what was stated in the original complaint, but merely what is subsequently said to have been stated therein, and its recital in the warrant is equally no evidence of it. R. v. Hughes... ." See also R. v. Wilson; Ex parte Petrie (1949) S.R.(Od.) 291 at 303. Counsel for the applicant raised a separate point, also depending on the fact that the Magistrate did not have before him the Attorney-General's notice. Attention was drawn to the statement made at the hearing before the Magistrate from the bar table on behalf of the Director of Public Prosecutions, who was representing the Federal Republic, that the requisition of the Federal Republic was made on 9 October. If the Attorney~General's notice issued promptly, it is possible that it issued prior to 15 October, at a time when extradition between Australia and the Federal Republic was governed by regulations in the form considered in the previous Schlieske case. In that event, 1t is submitted that the Magistrate ought to have determined the matter by reference to the regulations as they stood at the time the Attorney-General issued his notice. The Attorney-General exercised a discretion in issuing his notice, and may have exercised that discretion having regard to the requirement of the then regulations that evidence be produced to justify the committal of the applicant. At least 1t can hardly be said that prior to the new regulations coming into force the discretion was exercised upon the question, raised by the new regulation, whether the applicant should be extradited in respect rar aren oa 18. * of these particular offences although in relation to them only the allegations, and not evidence, would be provided. It seems to me that the Attorney-General's notice is "the critical event in the history of the case" (Carr v. Finance Corporation of Australia Limited (No. 2) (1982) 150 C.L.R. 139 at 152), founding the whole proceeding thereafter, and utself embodying an exercise of a discretion to which the extent of the investigation to occur before the Magistrate must have been relevant. Tt causes the matter to come before the Magistrate, not merely as an application by a foreign state, but with the statutory authorization of the Attorney-General. The situation corresponds to that described in the old case Carlin v. Government of Colony of Cape of Good Hope (1885) 22 Sc. L.R. 906 at 909 (see also The State at the Prosecution of Kennedy v. Little (1931) I.R. 39 at 65) where Lord M'Laren said: "It [i.e. the colonial warrant endorsed under the Fugitive Offenders Act 1881] comes to the Sheriff as a Secretary of State's warrant, because it is the Secretary of State's indorsation which gives currency to the warrant in this country ... ." The question is whether, at the time the notice issues, the law to be applied in respect of it becomes fixed so that the amendment of the regulation (if subsequent) would not affect the right of the fugitive to have evidence produced. The distinction for this purpose between matters of substance and matters of procedure was clearly stated in Maxwell v. Murphy (1957) 96 C.L.R. 261. But in The Queen v. Blackburn; ane, qo ney er 19. ° EX parte Transport Workers' Union of Australia (1952) 86 C.L.R. 75 at 95 the joint judgment of Dixon C.J., McTiernan, Williams, Webb and Kitto JJ. states: "In matters of ordinary legal rights and duties the distinction is familiar between the operation on existing cases of provisions going to substantive right and of provisions going to procedure. It is true that some rights arising out of the law adjective have been treated as too important to fall under the application of the principle that new procedural provisions apply to existing proceedings. See for example Newell v. The King (1936) 55 C.L.R. 707 (the right of a prisoner upon his trial on indictment to the unanimous verdict of twelve men), Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C. 369 at p.372 (a right of appeal to the Privy Council): cf. T. Conway Ltd. v. Henwood (1934) 50 T.L.R. 474, where a limitation on a right of appeal was held to apply to proceedings already commenced, and Rathbone ve. Munn (1868) 18 L.T. 856; 9 B & S 708, where a new right of appeal was held to apply to pending proceedings." ' If, as this passage suggests, the importance of the right is a criterion, there can be no doubting the importance of the right under the former regulations to have evidence produced to support the extradition. It was at least as important as the right to challenge jurors to the number of twenty the subject of the decision of the Full Court of the Supreme Court of New South Wales in R. v. Keys (1885) 6 N.S.W.L.R.(L) 135, as to which see also R. v. Murray (1886) 7 N.S.W.L.R.(L) 361. Section 50 of the Acts Interpretation Act 1901 provides: "Where an Act confers power to make regulations, the repeal of any regulations which have been made under the Act shall not, unless the contrary intention appears in the Act or regulations effecting the repeal - a ee yoeaeee — 20. (a) affect any right, privilege, obligation or liability acquired, accrued or incurred under any regulations' so repealed; or (b) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any regulations so repealed; or (c) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or regulations had not been passed or made." I do not think any contrary intention appears in relation to the repeal of the former regulation here in question, and 1t does not seem to me that it would be consistent with the approach taken by the High Court in Re Bolton (supra) to the construction of the Act there in guestion to construe sections 10 and 11 of the Act as authorizing, or the repeal of the former regulation and adoption of a new regulation which occurred in respect of the Federal Republic as purporting to effect, a retrospective alteration of the right of a person in respect of whom an Attorney-General's notice had issued to have evidence produced as required by the regulation in its then form. In Re Bolton at 193-4 Brennan J. said: "Section 11 (originally s.12) of the Habeas Corpus Act 1679 prohibited under the severest penalties the sending of inhabitants or residents of England as_ prisoners' into foreign places... . eee 1 9 eee wey on mee Sopepeney 21. The law of this country is very jealous of any 1unfringement of personal liberty .. and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, 1£ possible, so as to respect that right... . In construing a statute which is said to abrogate s.1l1 of the Habeas Corpus Act 1679, there are especially powerful considerations 1n favour of strict construction, for habeas corpus is not an effective remedy once the person arrested is taken out of the jurisdiction... ." If the conclusion be correct that retrospective effect cannot be given to the repeals and amending regulations gazetted on 15 October 1986 in relation to any prior authorization by an Attorney-General's notice, in the present case the Magistrate was not in a position to apply the new regulations, since he could not know that the Attorney~General's notice had not issued prior to their coming into force. On that basis, the previous Schlieske decision still applied, and the material presented to the Magistrate did not enable him to make a valid order of committal. It is not necessary to consider other grounds upon which counsel assailed the validity of the Magistrate's decision. For these reasons, I find under s.18(3) of the Act that I am not satisfied that the decision of the Magistrate was valid, and accordingly I order that the applicant be released. I order that the Federal Republic pay the applicant's costs of the application. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. bn tht Associate Dated: 3 July, 1987. wore ane wer Ie TT Ne » . . Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Date of hearing: 22. Mr. M. Weinberg Q.C. Mr. Le. Katz W.P. O'Brien, Solicitors Mr. D.E. Grieve Q.C. Mr. J. Carney Director of Public Prosecutions 19 June 1987 one ote a ens