-u&7 pe JUDGMENT No. 51/97, CATCHWORDS Extradition -— whether multiple extradition proceedings lawful under Extradition (Foreign States) Act 1966, ss.13, 15, 16, 16A and 17 - "speciality" rule - distributive construction of statutory provisions - power to seize property. Constitutional Law - Two Ministers of State administering one Department - responsible government - whether in contravention of s.64 of the Constitution - Acting Minister - Acts Interpretation Act, s.19 GUENTER ZOELLER v. THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY- GENERAL OF THE COMMONWEALTH OF AUSTRALIA & ORS. No. G406 of 1987 Beaumont, J. Sydney 16 September 1987 wrt ' a mp pe w4 ¢ An ey ey ee ate ota wee ee oe as IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G406 of 1987 ) GENERAL DIVISION ) BETWEEN: GUENTER ZOELLER Applicant AND: THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA First Respondent AND: THE HONOURABLE MICHAEL JOHN DUFFY,MINISTER OF STATE FOR TRADE NEGOTIATIONS Second Respondent STANLEY DAVID KITCHENER HYDE, MAGISTRATE AND Third Respondent AND: KEVIN ROBERT WEBB, MAGISTRATE Fourth Respondent AND: THE FEDERAL REPUBLIC OF GERMANY Fifth Respondent AND: THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Sixth Respondent AND: RAYMOND CARLIN Seventh Respondent wee ae; =a ST a 2. MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: 16 September 1987 Where made: Sydney THE COURT ORDERS: 1. Note: Declare that the seizure of the applicant's property described in the application for an order for review was unlawful. Reserve liberty to the applicant to apply for further relief in this connection. Proceedings otherwise dismissed. Applicant to pay one-half of the respondents' costs. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. ~f . awe ee ge we ee 2 epee oe od IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G406 of 1987 GENERAL DIVISION BETWEEN : AND: AND: CORAM: Beaumont, J. DATED: 16 September 1987 ) ) GUENTER ZOELLER Applicant THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY GENERAL OF THE COMMONWEALTH OF AUSTRALIA First Respondent THE HONOURABLE MICHAEL JOHN DUFFY,MINISTER OF STATE FOR TRADE NEGOTIATIONS Second Respondent STANLEY DAVID KITCHENER HYDE, MAGISTRATE Third Respondent KEVIN ROBERT WEBB, MAGISTRATE Fourth Respondent THE FEDERAL REPUBLIC OF GERMANY Fifth Respondent THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Sixth Respondent RAYMOND CARLIN Seventh Respondent REASONS FOR JUDGMENT oo bt TS ~~ 2. This is an application by Mr. Zoeller for judicial review of certain decisions under the Extradition (Foreign States) Act (1966) ("the Act"). On 10 June 1986, a judge at the District Court, Koblenz, Germany, issued a warrant for the applicant's arrest. According to the warrant, the applicant was a German citizen who formerly resided in Germany but was then of unknown whereabouts. The warrant recited that the applicant was charged with "having violated" by two independent acts: "1. On March 2, 1982 in Mainz his obligation to look after third party pecuniary interests which had been assigned to him by private act and thus having inflicted damage to that person whose pecuniary interests he had to safeguard." "2. On March 18, 1982 in Montabaur, acting conjointly, having made incorrect declarations to the Revenue Authority on material taxation Matters and thus unlawfully, curtailed taxes." In each case, particulars of the charge were given. On 24 June 1986, a stipendiary magistrate at Melbourne issued a warrant for the apprehension of the applicant in these terms: "TO all members and special members of the Australian Federal Police and all members of the Police Force of each State and Territory. WHEREAS I, BRYAN JOSEPH CLOTHIER a Magistrate, have received an application for the issue of a warrant for the apprehension of GUENTER ZOELLER, a fugitive from the Federal Republic of Germany who is accused of the offences of breach of trust contrary to section 266 of the German Penal Code and making incorrect or incomplete declarations to the Revenue Authorities contrary to sub-paragraph 370(1)(i) of the Tax Law 1977; ee — ee er po Tat : ne en rr ea Koblenz, and I have been informed, by information on oath, that a warrant for the apprehension of GUENTER ZOELLER has been issued in the Federal Republic of Germany and is in force: NOW THEREFORE I, pursuant to section 16 of the Extradition (Foreign States) Act 1966, hereby command you to apprehend GUENTER ZOELLER and bring him, as soon aS practicable before a Magistrate in the State or Territory in which he is apprehended to be dealt with according to law." On 9 October 1986, a judge at the District Court, The warrant recited a charge of - "having misused on March 23, 1983 in Mainz the authority assigned to him by private act to look after third party's property or to have someone else look after it and thus having inflicted damage to that person whose pecuniary interests he had to safeguard." Particulars of the charge were given. June 1987 by members of the Australian Federal Police and New South Wales Police Force. The applicant was arrested at Tweed Heads, N.S.W. applicant, were then seized. further warrant for the arrest of the applicant, On 10 June 1987, the Koblenz District Court issued a charge of - "having made incorrect and incomplete declarations to the revenue authorities on material tax-relevant facts during the period of November 6, 1980 through July 31, 1984 in Bingen and Maing thus acting in a continuation of offence." Particulars of the charge were given. issued another warrant for the arrest of the applicant. on 5 A number of items, the property of the reciting a —— Sad ee aa Ngee epee ma: =") eaek - 4. On 24 June 1987, another warrant for the arrest of the applicant was issued by the District Court at Koblenz. that the applicant was charged with - "having misused in November and December 1980 and in October 1981 in Mainz and at other places' the authority assigned to him by private act to look after third party's property or to have someone else look after it and thus having inflicted damage to that person whose pecuniary interests he had to safeguard." Particulars of the charge were given. The warrant stated: "Based on the results of the previous investigations the person charged is strongly suspected of having committed this act. The reason for arrest is based on section 112, paragraph 2, subparagraph 1 of the German Code of Criminal Procedure. The person charged is still at large and most likely hiding in Australia." It stated —r a eee - ~f wep On' 30 June 1987, the Government of the Federal Republic of Germany, the fifth respondent, issued a request to the Australian Government in respect of the applicant which, so far as relevant, was as follows: "The Government of the Federal Republic of Germany requests the Australian Government to commit Mr. Guenter ZOELLER to custody for extradition, to keep him under arrest until the carrying of the extradition and then to advise for how long he has been under arrest only because of this request for extradition.... It is assured, that the Government of the Federal Republic of Germany is prepared to extradite to Australia persons who are wanted for the same or similar criminal offences, who do not have German citizenship, under the stipulations and conditions of its domestic extradition law. Furthermore it 1s assured that the extradited person will not be sentenced, nor be subjected to any other restriction of his personal liberty, nor be prosecuted 5. by measure, which could not also have been taken in absence, in the Federal Republic of Germany without consent of the Australian Government for any offence committed before his extradition other than the offences for which extradition has been approved. It is also assured that the extradited person will not be re-extradited, handed over or deported to a third country from the Federal Republic of Germany without the consent of the Australian Government, and that he will be allowed to leave the Federal Republic of Germany after final completion of the proceedings for which the extradition has been approved. It is also assured that the penalty, if to be imposed, will not be imposed or ancreased on political, military or religious grounds, and that the arrest for extradition purposes undergone in Australia will be credited on the penalty, if to be imposed." osiniechadeahiend en On 15 July 1987, the Honourable Lionel Bowen, Commonwealth Attorney-General, the first respondent, issued a notice pursuant to s.15(1)(b) of the Act as follows: "TO any Magistrate before whom the person apprehended under the warrant referred to in this notice is brought. WHEREAS - (a) a requisition has been made to me, Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia, by the Federal Republic of Germany a state to which the Extradition (Foreign States) Act 1966 applies, for the surrender of Guenter zoeller (spelt in the German language as Giinter Zoller), a fugitive who is accused of the offences of: (i) violating the obligation given to him by law to look after third party pecuniary interests and thereby inflicting damage to the person whose property interests he has to manage (one count), (il) making incorrect or incomplete declarations to the Revenue Authorities on material taxation matters (1 count), against the law of that state and is in or on the way to Australia; and (b) on 24 June 1986 a warrant for the apprehension of Guenter Zoeller was issued under section 16 of that Act by Bryan Joseph Clothier, a Tee mn 6. Magistrate of the State of Vicloria and a person has been apprehended under the warrant: NOW THEREFORE I, Lionel Frost Bowen, Attorney-General of the Commonwealth of Australia, being of the opinion that - (c) Guenter Zoeller is liable to be surrendered to the Federal Republic of Germany; (d) the offences to which the requisition relates are, neither in essence nor by reason of the circumstances in which they are alleged to have been committed, offences of a political character; and (e) the requisition has not been made with a view to try or punish Guenter Zoeller for an offence of a political character, pursuant to paragraph 15(1)(b) of the Extradition (Foreign States) Act 1966, hereby inform you that the above-mentioned requisition has been made." On 13 August 1987, the Honourable Michael John Duffy issued a notice in this form: "NOTICE BY ATTORNEY-GENERAL UNDER PARAGRAPH 15(1)(a) WHEREAS - (A) a requisition has been made to me, Michael John Duffy, Minister of State for Trade Negotiations for and on behalf of the Attorney-General of the Commonwealth of Australia by the Federal Republic of Germany, a state to which the Extradition (Foreign States) Act 1966 applies, for the surrender of Guenter Zoeller (spelt in the German language as Glinter Z6ller), a fugitive who 1s accused of the offence of: (i) violating the obligation given to him by law to look after third party pecuniary unterersts and thereby inflicting damage to the person whose property interests he has to manage (two counts), (ii) making incorrect or incomplete declarations to the Revenue Authorities on material taxation matters (one count), against the law of that state and is suspected of being in Australia; and (b) a warrant for the apprehension of Guenter a eee 27 mee Sent ten Del eee 7. Zoeller has not been issued under section 16 of that Act in relation to the offences in the German warrants attached to this requisition: NOW THEREFORE I, Michael John Duffy, Minister of State for Trade Negotiations for and on behalf of the Attorney-General of the Commonwealth of Australia, being of the opinion that - {c) Gunter Zoeller is liable to be surrendered to the Federal Republic of Germany; (d) the offence to which the requisition relates is, neither in essence nor by reason of the circumstances in which 1t is alleged to have been committed, an offence of a political character; and (e) the requisition has not been made with a view to try or punish Guenter Zoeller 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 Guenter Zoeller." On 18 August 1987, the fourth respondent, a stipendiary magistrate, aiussued a warrant for the apprehension of the applicant under s.16 of the Act in these terms: "To all members and special members of the Australian Federal Police and all members of the Police Force in each State and Territory:- WHEREAS - (A) the Attorney-General of the Commonwealth of Australia has, by a notice under paragraph 15(1)(a) of the Extradition (Foreign States) Act 1966, authorised the issuing by any Magistrate of a warrant for the apprehension of GUENTER ZOELLER (also described as GUNTER Z20LLER) a fugitive from the Federal Republic of Germany who is accused of the offences of - (1) violating the obligation given to him by law to look after third party pecuniary interests and thereby inflicting damage to the person whose property interests he has to manage (charged under German law as 2 counts); (ii) making incorrect or incomplete declarations 8. to the Revenue Authorities on material taxation matter (charged under German law as 1 count); against the law of that state; and (b) I, Kevin Robert WEBB a Magistrate, have been informed by information on oath that three warrants for the apprehension of GUENTER ZOELLER (also described as GUNTER ZOLLER) have been issued and are in force: NOW THEREFORE I, pursuant to Section 16 of the Extradition (Foreign States) Act 1966, hereby command you to apprehend GUENTER ZOELLER (also known as GUNTER ZOLLER) and to bring him, as soon as practicable, before a Magistrate in the State or Territory in which he is apprehended to be dealt with according to law." The relevant legislative scheme is as follows. Extradition to foreign states is dealt with by Part III of the Act. Every "fugitive" from a foreign state to which the Act applies is liable, subject to any limitations or conditions in the Act, to be apprehended and surrendered to that state (s.12). A "fugitive" means, inter alia, a person accused of an "extradition crime" that is alleged to have been committed within a foreign state (s.4(1)). An offence against the law of a foreign state (including an offence against such a law relating to, inter alia, taxation) for which a requisition for the surrender of a person has been made to the Attorney-General is an "extradition crime" if (a) the maximum penalty for the offence 1s death or imprisonment for not less than 12 months; and (b) had a relevant act or omission by the person taken place, at the time when the requisition was made, in Australia, that act or omission would have constituted an offence against the law in force in that part of Australia where the person was found the maximum penalty for which is death or imprisonment for not less ". a ree = Re oe se po ee woe 9. than 12 months (s.4(1A)). A person is not liable to be surrendered to a foreign state unless, inter alia, that state has given an undertaking, by virtue of which the person will not, unless he has left, or had an opportunity of leaving that state, be detained or tried in that state for any offence that is alleged to have been committed, or was committed, before his surrender other than - (i) the offence in respect of which the person was surrendered or any other offence of which the person could be convicted upon proof of the facts on which the surrender of the person was ordered; or (ii) any other extradition crime in respect of which the Attorney-General consents to his being so detained or tried, as the case may be. (s.13(2)(a)). Section 15 is important for present purposes. It provides: "15. (1) Subject to sub-section (2), where a requisition for the surrender of a fugitive who is, or is suspected of being, in or on the way to Australia is made to the Attorney-General by a foreign state, the Attorney-General may, in his or her discretion - (a) if a warrant for the apprehension of the fugitive has not been issued under section 16 - 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; or (b) if a warrant for the apprehension of the fugitive has been issued under section 16 and a person has been apprehended under the warrant - by notice in writing in accordance with the form prescribed for the purposes of this paragraph and directed to any Magistrate before whom the person may be brought, inform the Magistrate that the requisition has been made. RR a id. (2) 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 1f 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 requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character." Section 15 should be read in conjunction with s.16. So far as relevant, it provides: "16. (1) Where - (a) a Magistrate is authorized by the Attorney-General by a notice under paragraph 15(1)(a) to issue a warrant for the apprehension of a fugitive; or {b) an application is made as prescribed to a Magistrate for the issue of a warrant for the apprehension of a fugitive who is, or is suspected of being, in Australia, and the Magistrate is informed, by information on oath or affirmation, that a warrant for the apprehension of the fugitive has been issued in a foreign state and is in force, the Magistrate shall issue a warrant for the apprehension of the fugitive in accordance with the appropriate form prescribed for the purposes of this sub-section. (3) Where a Magistrate issues a warrant under this section without having been authorized by the Attorney-General by a notice under paragraph 15(1)(a) to issue the warrant, the Magistrate shall forthwith send to the Attorney-General a report stating that he has issued the warrant and the evidence produced to him on the application for the warrant." Proceedings after the apprehension of a person are prescribed by s.17. The person is to be brought as soon as a4 ate "Ho r oo pee ne ye li. practicable before a magistrate (s.17(1)). Thereafter, s.17(4), (5}, it 1s provided: "(4) If the person was apprehended under a warrant issued otherwise than in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a), the Magistrate shall remand the person in accordance with sub-sections (2) and (2A) of this section until the Magistrate receives a notice under paragraph 15(1)(b) from the Attorney-General informing the Magistrate that a requisition for the surrender of the person has been made to the Attorney-General by a foreign state. (5) Where the Magistrate does not receive such a notice within - (a) in a case to which paragraph (b) does not apply - 45 days after the day on which the person was apprehended; or (b) if a treaty in force between Australia and the foreign state in which, or within the jurisdiction of which or of a part of which, the person is alleged to have committed, or has committed, an extradition crime specifies a different period after the apprehension of the person as the period by which a requisition for the surrender of the person must be made - that period, or within such further per1od as the Magistrate considers reasonable having regard to all the circumstances, the Magistrate shall - (c) if the person apprehended is held in custody - order that the person be released; or (d) 1£f the person has been admitted to bail - make an order discharging the recognizances upon which the person was admitted to bail. Before turning to the contentions of the parties, is convenient to recall the chronology of events: 10 June 1986 Warrant of arrest - Koblenz 24 June 1986 s.16 warrant of apprehension 9 October 1986 Warrant of arrest - Koblenz by it —— mye ewan ae ne eee Seteheien es 12. 5 June 1987 Applicant apprehended at Tweed Heads Seizure of property 10 June 1987 Warrant of arrest - Koblenz 11 June 1987 Seizure of property 12 June 1987 Seizure of property 24 June 1987 Warrant of arrest - Koblenz 30 June 1987 German Government's request to Australian Department of Foreign Affairs 15 July 1987 Notice under s.15(1)(b) of the Attorney-General ("the first notice") 13 August 1987 Notice under s.15(1)(a) of the Acting Attorney-General ("the second notice") 18 August 1987 Warrant of apprehension under s.16 On behalf of the applicant, it 1s first submitted that the second notice, purportedly given under s.15(1)(a), 1s not authorised by the Act because the legislation permits only one requisition and only one notice for each extradition. It is said that the requisition and the undertaking contemplated by the procedures laid down by Part III must relate to a specific offence and, so the argument runs, the rule of "speciality", which is incorporated into the statute in the form of s.13(2)(a), forbids the prosecution by the German Republic of any charges beyond those specified in the first Koblenz warrant for the arrest of the applicant. The "speciality rule" is the rule of international practice which prohibits a reguesting state from trying a Pee ee ae a rr en ra re ran , > +. vr 13. returned person for any offence committed before his return other than one for which he was returned, unless he first had an opportunity to return to the country from which he was extradited (see Barton v. The Commonwealth (1974) 131 C.L.R. 477 at pp.483,500; Stanbrook and Stanbrook, The Law and Practice of Extradition at p.47; V.E. Hartley Booth, British Extradition Law and Procedure at pp.65-8; I.A. Shearer, Extradition and Asylun, International Law in Australia, 2nd ed. (ed. by K.W. Ryan) at pp.200-1). As Shearer says, the rule - "...upholds three important principles. First, it protects fugitives from having to face charges after return of which they have had no notice and as to which no prima facie case of guilt has been made out before the judicial authorities of the requested country. Secondly, it re-inforces both the Gouble-criminality rule and the rule prohibiting extradition for political offences, ensuring that such offences cannot be charged after surrender. Thirdly, it protects from abuse the legal processes of the requested country which is called upon in extradition to surrender its personal jurisdiction over, and Protection of, the accused fugitive." The applicant contends that the "speciality" envisaged in the undertaking required by s.13(2)(a) is mandatory but he says that its provisions were not complied with here. The applicant's argument acknowledges the existence of the power given to the Attorney-General by s.13(2)(a)(ii) to consent to a person's being detained or tried in respect of any other extradition crime. But ut is common ground that' the Attorney-General has not sought to exercise this extraordinary ° power here. eee erage ate, te ay a III = — = 14. In my opinion, the second notice was not invalid on the ground suggested by the applicant. It may be accepted that the provisions of s.13(2)(a) are mandatory. As the marginal note suggests, s.13 imposes restrictions on the surrender of persons to foreign states. If those restrictions are not complied with, judicial review will be available to ensure compliance. It would be no answer to an application for judicial review on this Limited ground to contend that the surrender proposed involves an exercise of "political" judgment which is not justiciable. True, an exercise of "political" judgment may be called for at a later stage but, in the first instance at least, the courts have a responsibility to ensure, in an appropriate case, that the provisions of the statute have been complied with (see Royal Government of Greece v. Governor of Brixton Prison [1971] A.C. 250 at p.281; The State of South Australia v. O'Shea, High Court of Australia, 2 September 1987, unreported, per Mason C.J. at pp.5-9; per Deane J. at pp.42-48). It is also clear, in my view, that the undertaking envisaged by s.13(2)(a) must be current at the time of surrender of the person concerned. If, for instance, the undertaking were to be withdrawn, the provisions of s.13(2) would not have been complied with. The undertaking must be in force at the material date, viz. at surrender. Although the present challenge is not, in terms, directed at the undertaking proferred by the German Government - me nee ney a .~ore + 15. the attack is upon the validity of the notice given under s.15(1)(a) - yet the operation of s.13(2)(a) 1s central to the applicant's argument. In substance 1f£ not in form, the applicant's contention is that the "speciality" rule embodied in s.13(2)(a}) operates so as to confine the Attorney-General's actions under s.15. There are difficulties in accepting the applicant's argument. Sections 13 and 15 are directed to different things. Section 13 restricts the surrender of persons to foreign states in certain respects. On the other hand, s.15 lays down a procedure whereby the Attorney-General may, inter alia, communicate certain material to a magistrate. It is one thing to assert a breach of the "Speciality" rule (i.e. s.13(2)). It aisa different thing to say that there 1s a defect in the notification procedures envisaged by s.15(1) merely because of an alleged contravention of the "speciality" rule. But, this complication apart, in the ultimate analysis, the applicant can only succeed on this argument if he can make good the far-reaching proposition that, as a matter of power, there is a limit to the number of occasions the extradition proceedings can be invoked. For this purpose, it may be accepted that judicial review of the administrative action involved may be available where it is demonstrated that the Executive has abused the extradition procedures by a needless multiplicity of actions (cf. Connelly v. Director of Public Prosecutions [1964] A.c. 1254 at pp.1296, 1347-1353, 1361-2; Barton v. The Queen (1980) 147 C.L.R. 75 at p.96). This, an example of an improper purpose, is prt ee ey en weer emer er te we 16. not the present question. Here the argument 1s that the Executive lacked the statutory power to effect more than one extradition. The question, of course, is one of construction of the Act. But there is nothing in its express provisions to suggest that only one extradition is possible. Nor is there anything in the context of the legislation or in the principles upheld by the doctrine of "speciality" which would justify an implication in the Act to this effect (cf. Pretorius v. Daltons Carpet Tiles Pty. Ltd. (1984) 54 A.L.R. 743 at pp.749-50). It must be emphasised that the present question is concerned with the existence of a power to extradite and, in particular, the power to effect multiple extraditions by following, in each case, the appropriate statutory procedure. This is different from the question whether, without a separate extradition proceeding, it is open to the requesting state to prosecute for what is said to be a different offence (see The Queen v. Nicholl; Ex parte Boog (1973) 21 F.L.R. 469 at p.473; Reg. v. Boog (1974) 23 F.L.R. 417 at p.420; Wong v. Evans (1985) 60 A.L.R. 629 at p.637). Reliance is placed by the applicant upon the 45 day time limit imposed by s.17(5). It 1s said that the benefit of this provision would be lost if multiple extraditions were permitted. But, as has been said, 1f£ the power to extradite is abused, it may be controlled as conduct engaged in for an improper purpose. Such conduct is not suggested here. It 18 also contended by the applicant that Parliament a -—o.e er aa tee ere rn ine oe cee as eee po ene ony we: pee 17. could hardly have intended more than extradition to be possible because this would involve the artificial result that a warrant would issue for the apprehension of a person already in custody. But this can be an appropriate course in some cases. In The Queen v. Weil [1882] 9 0.B.D. 701, Jessel, M.R. said (at p.705): ",..the whole objection is this, that the Irish Magistrate's warrant was not a warrant for the 'apprehension' of the prisoner within the meaning of s.8 of the Act. It appears to me that this would be to give too narrow a meaning to the word 'apprehension'. The word strictly construed means the seizing or taking hold of the man, and literally and truly you can do that although he may be already in custody. It means the taking hold of him and detaining him with a view to his ultimate surrender. I am not inclined to limit the word 'apprehension' to the taking hold of a man who is not already in custody. It would follow that if a man was already in lawful custody you could not take him at all under this Act; the word 'apprehension' would not apply. You would be compelled to restore him to liberty before you could apprehend him. It appears to me that this would not be a rational mode of construing the Act." (see also R v. Governor of Pentonville Prison, ex p. Ecke (1974) Crim.L.R. 102). It is also said on behalf of the applicant that paras.(a) and (b) of s.15(1) contemplate mutually exclusive procedures. It is contended that extradition must proceed under one or other of these procedures. But there is no such limitation expressed in the Act and it is difficult to justify an implication to this effect. The Act can be given a sensible operation and the rights of a person concerned can be adequately protected if Part III is given a distributive construction, i.e. multiple extraditions are permitted provided that, in each case, the statutory procedures are complied with. ee ere ene Rte ee ye epee o ah pare cee ee vee cp eye oo ee =e er tare pen See — aed 18. In my opinion, the applicant's argument on this branch of the case should not be accepted. For the sake of completeness, 1t should be noted that, in this connection, the applicant also relies upon the additional circumstance that at the time of the institution of the first set of extradition proceedings, the German and Australian authorities were already aware that it was proposed to press further charges and, it may be added, further extraditions were also proposed. Since the present question 1s one of the existence of the relevant power, rather than any suggestion of its abuse, 1t is difficult to see how this additional material advances the argument. In my opinion, the "speciality" rule, as embodied in s.13(2), was not offended by either notice. Moreover, there is no contradiction arising as between the respective undertakings given by the German Government if, as has been already suggested, they are read distributively. The applicant next argues that the second notice was invalid because it was not given by the Attorney-General. It will be recalled that s.15(1) requires that the statutory notice be given by the Attorney-General. At all material times, Mr. Bowen was Attorney-General but this notice was given by Mr. Duffy as "Minister of State for Trade Negotiations for and on behalf of the Attorney-General". On 11 March 1983, Mr. Duffy was appointed to the office of Executive Councillor and is thus a member of the Federal Executive Council established by s.62 of the Constitution. In the Commonwealth Gazette dated 24 July 1987 the Governor-General approved administrative arrangements which, inter alia, specified the matters to be dealt with by each —— ay eee en a Pa Mee re mee oo ee 19. Department of State and the enactments administered by a Minister of State administering a Department. In the case of the Attorney-General's Department, the enactments included the Act. In the case of the Department of Foreign Affairs and Trade, the principal matters dealt with were external affairs including international trade negotiations. Another Commonwealth Gazette dated 24 July 1987 notified a number of Ministerial appointments in these terms: "His Excellency the Governor-General directs it to be notifed, for general information, that he has been pleased to direct and appoint the following Members of the Federal Executive Council to hold the offices mentioned in connection with their respective names, and to administer the Department of State connected with such offices, namely: The Honourable Robert James Lee Hawke, AC, MP Prime Minister The Honourable Lionel Frost Bowen, MP Attorney General The Honourable William George Hayden, MP Minister of State for Foreign Affairs and Trade The Honourable Michael John Duffy, MP Minister of State for Trade Negotiations" By s.64 of the Constitution it 1s provided that: "The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor~General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen's Ministers of State for the Commonwealth. After the first general election no Minister of State shall hold office for a longer period than three =r pea a i ny ON — ras 20. months unless he is or becomes a senator or a member of the House of Representatives." Reference should also be made, in this connection, to s.19 of the Acts Interpretation Act 1901 in these terms: "Where in an Act any Minister is referred to, such reference shall unless the contrary intention appears be deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister." By letter dated 10 August 1987, the Prime Minister wrote to Mr. Duffy as follows: "Mr. Bowen will be taking leave for medical reasons for approximately three weeks. I should be grateful if you would act for and on behalf of the Attorney-General with effect from 9 August 1987 until he returns to duty." On behalf of the applicant it is submitted that the Constitution should be interpreted in the light of the principle of responsible government (see New South Wales v. Commonwealth (1975) 135 C.L.R. 337 at pp.364-5; Leslie Zines, The High Court and the Constitution, 2nd ed. at p.223); that so interpreting s.64 leads to the conclusion that only one Minister can administer each Department of State; and that it was not lawful to appoint two Ministers (Mr. Hayden and Mr. Duffy) to administer the one Department of Foreign Affairs and Trade. The applicant relies, for this purpose, upon the following comments by Quick and Garran, Annotated Constitution of the Commonwealth of Australia at p.711l: "In some of the Australian colonies the practice has grown up of including in the Cabinet one or more 'Ministers without portfolios;'' that 1s to. say, ce ee ee ene pn ee eee eee 21. members of the Executive Council who join in the deliberations of the Ministry, and represent it in one of the Chambers, but who do not administer any department. This practice 1S especially resorted to in order to secure the adequate representation of a Ministry in the Upper House; but it does not appear to be contemplated by this Constitution. The heads of the chief departments are to be 'the Queen's Ministers of State' - a phrase which appears to mean not only that these officers are to be Ministers of the Queen, but that they are to be the Ministers of the Queen; in other words, that all the Ministers of State are to administer departments of State." There is no authority on the question (see GTE (Australia) Pty. Ltd. v. Brown, Burchett J., 31 October 1986, as yet unreported, at pp.64-5). But other constitutionalists do not share Quick and Garran's early view. Geoffrey Sawer, Councils, Ministers and Cabinets in Australia (1956) Public Law 11lo says (at p.124): "Even if interpreted with the greatest of strictness, section 64 of the Constitution does not require that only one person be appointed to administer a Department of State, nor does it say anything as to the allocation of authority between several persons so appointed. Hence, there is no constitutional obstacle to appointing a Minister and an Assistant Minister to administer the Department of Defence, both being 'officers' and their respective authority being such as Parliament, or the common sense of Cabinet, dictates, and both paid." Enid Campbell (Advice to the Royal Commission on Australian Government Administration (1976)) is of the same opinion (at p.24). There is nothing in the terms of s.64 which would require 1t to be read down in the manner suggested by the applicant. The language 1S general enough and there is no logical reason to restrict the administrative arrangements which 22. might be desirable in the interests of good government. On the contrary, there is every reason to suppose that flexibility was desirable and therefore intended to be conferred. Nor, in my view, is the principle of responsible government any obstacle: both Ministers would remain answerable to Parliament. In my opinion, to confine the operation of s.64 in the way contended for by the applicant would require explicit language. In the absence of such language, the provisions should be liberally construed 80 as to afford a proper opportunity to the Executive to introduce administrative arrangements which are appropriate in the particular circumstances. It will be remembered that, in the present case, Mr. Duffy purported to execute the second notice for or on behalf of the Attorney-General. For this purpose, the Crown relies upon s.19 of the Acts Interpretation Act 1901. Under that provision, it 1s contemplated that an appointment may be made of a Minister or other member of the Executive Council to act for or on behalf of another Minister. It is true that this provision applies unless the contrary intention appears. On any view, Mr. Duffy was a member of the Executive Council. However, it is argued on behalf of the applicant that s.19 did not apply here because "a contrary intention appears" in the Act. It is said that the reference in s.19 to a member of the Executive Council should be read down here so as to pick up only those Ministers who are actually administering a Department of State. Again, it would require, in my view, clear language to justify confining the operation of s.19 in such a way. There is no such language in the Act. All practical considerations tend against the making of en 23. any implication which would so restrict the operation of s.19, In my opinion, the execution by Mr. Duffy of the second notice was valid. Finally, the applicant seeks to challenge the seizure of his property. The seizure is sought to be justified by s.16A of the Act which, so far*as relevant, provides: "16A. (1) A Police Officer who apprehends a person pursuant to a warrant issued under section 16 may search the person or the clothing that the person is wearing, and any property under the control of the person, if the Police Officer has reasonable grounds for suspecting that there is concealed, on, or in the clothing of, the person or in that property, any article, including a sum of money - (a) that may be material as evidence in proving an offence to which the requisition for the surrender of the person relates;" (Emphasis added) Such a provision is strictly construed. 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, 1t 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." It will be recalled that the applicant's property was seized before the German Government's requisition was made. It must follow that, literally at least, s.16A(1)(a) is not available here. On behalf of the Crown, it 1s sought to avoid this construction by the importation of an alternative factor into s.16A(1), that is to say the situation obtaining where a warrant has been issued (cf. Cooper Brookes (Wollongong) Pty. A Mee eae, y errr nn prep ee corer or > 24. Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 at pp.319-21). However, there is nothing absurd or irrational in the literal construction of s.16A(1). As it stands, it has a limited operation but this is not a reason for expanding the scope of s.16A(1) so as to pick an additional situation of the kind contended for. I would reject the Crown's suggested implication. It must follow, in my view, that the seizure of the applicant's property was unlawful. A declaration will be made to that effect. Otherwise the proceedings will be dismissed. In the circumstances, it is appropriate that the applicant pay one-half the respondents' costs. I certify that this and the preceding twew7zy THREE (23) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. Oe A: &. FRANSSON Associate Dated: 16 September 1987 Counsel and Solicitors Sir Maurice Byers Q.C. with for Applicant: Dr. G. Flick instructed by Barker Gosling Counsel and Solicitors Mrs. P. Flemming 0.C. with for First, Second, Miss C.C. Simpson instructed Sixth and Seventh by Australian Government Respondents: Solicitor Counsel and Solicitors Mr. B. Gross Q.C. with for Fifth Respondent: Mr. P. Dwyer Dates of hearing: 14 and 15 September 1987 Date Judgment Delivered: 16 September 1987 po eee aeny se wa, , ara ye op