JUDGMENT No. SSS EXTRADITION - extradition to Israel - Extradition (Foreign States) Act 1966 - surrender order by Attorney-General —- judicial review - decision as to liability - whether "decision" under AD(JR) Act - application of Extradition (Foreign States) Act - modified application - onus of proof on 5.13 exemption and unfair discrimination under s.14 - nature of Attorney's discretion to surrender - application and content of rules of natural justice - right to controvert adverse testimony - test for operation of s.14 - "substantial" or "reasonable" grounds - prejudice by reason of race or nationality - proceedings in foreign language" - "race" - "nationality" <- "substantial" - time in custody pending extradition - relevance - ecting under dictation - bias - breach of treaty - effect on application of Act - extradition as a matter of comity - surrender of nationals - lack of reciprocity - formal and substantive reciprocity ~ relevance of guilt - unacceptable delay - need for review of procedures. CONSTITUTIONAL LAW - external affairs power - colourable treaty doctrine - continuance of inoperative treaty. LAW REFORM — divided review of divided primary decision making - need for unification of judicial review. RUCEIVED 220CT 1987 FEDERAL COURT OF AUSTRALIA PRINCIPAI REGISTRY 2. Administrative Decisions (Judicial Review) Act 1977 Extradition (Foreign States) Act 1966 s.4, s.6, s.16(1)(b), s.16A(3) Fugitive Offenders Act (1967) Migration Act 1958 Offences Committed Abroad (Amendment of Enactments) Law 5738-1978 Extradition Act 1870 La Forest - Extradition To and From Canada Shearer - Extradition in International Law (1971) Ryan - International Law in Australia (2nd Ed. - ch. 7 Extradition and Asylum - Shearer Rezek - Reciprocity as a Basis of Extradition (1981) 52 BYIL 171 Weis - Nationality and Statelessness in International Law (London) Elimination of Racial Discrimination (1966) 15 Int. & Comp. L.Q. Vienna Convention on Law of Treaties 1969 Article 60, Year Book of the International Law Commission (1966) II p.255 Grotius - The Law of War and Peace Book 2 Ch. 21 paras. III and IV Clarke - A Treatise on the Law of Extradition 1888 pp 1-14 Biron and Chalmers - The Law and Practice of Extradition Gouldman - Extradition from Israel in Transnational Aspects of Criminal Procedure 1983 Michigan Year Book of International Legal Studies pp.196 to 197 Tenth Annual Report Administrative Review Council (1985-86) - Letter 4 p.90 Hempel v Moore (1987) 70 ALR 714 Evans v Friemann (1981) 35 ALR 428 Legal Ald Commission of W.A. v Edwards (1982) 42 ALR Barton v Commonwealth (1974) 131 CLR 477 Commonwealth of Australia v Riley (1984) 57 ALR 249 Fernandez v Government of Singapore (1971) 2 All ER 691 Atkinson v United States of America Government (1971) AC 197 Royal Government of Greece v Governor of Brixton Prison (1971) AC Re Arton (1896) 1 QB 108 R v Governor of Brixton Prison. Ex parte Schtraks. (1964) AC 556 Salemi v MacKellar (No. 2) (1977) 137 CLR 396 R v Mackellar; Ex parte Ratu (1977) 137 CLR 461 Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR Kioa v West (1985) 159 CLR 550 State of Wisconsin v Armstrong (1973) 10 CCC 2 d. 271, 277 R v The Commonwealth Conciliation and Arbitration Commission; Ex "parte The Angliss Group (1969) 122 CLR 546 ~ National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 Government of Belgium v Postlethwaite (1987) 3 WLR 365 Tillmann''s Butcheries v AMIEU (1979) 27 ALR 367 Palser v Grimling (1948) AC 291 te 3. Angland v Payne (1944) NZLR 610 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR R v Burgess; Ex parte Henry (1936) 55 CLR 608 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Factor v Laubenheimer 290 U.S. 274, 287 (1933) Valentine v US ex rel Neidecker (1936) 299 U.S. 1 Pesachowitz v State of Israel 31(2) P.D. 449 (1977) Schlieske v Federal Republic of Germany (1987) 71 ALR 215 ARTHUR JAMES HEMPEL AND LAURENCE ETHEREDGE V THE ATTORNEY-GENERAL NO. WAG 69 of 1987 FRENCH J. PERTH 20 OCTOBER 1987 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION wwe www NO. WAG 69 of 1987 BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Applicants and THE ATTORNEY-GENERAL Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 20 OCTOBER 1987 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application 1s dismissed. 2. The applicants pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ae IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION wee ww NO. WAG 69 of 1987 BETWEEN =>: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Applicants and THE ATTORNEY-GENERAL Respondent CORAM: FRENCH J. 20 October 1987 REASONS FOR JUDGMENT By two warrants signed on 19 June 1987 the Attorney- General directed that Inspector Gabriel Haziza and Sgt. Yossi Haim take Arthur Hempel and Laurence Etheredge into custody and convey them to the State of Israel to be surrendered to persons appointed by that State to receive them. This is an application by Hempel and Etheredge for review of the Attorney's decision to sign the warrants and the underlying decision that they were liable to be so surrendered. It is brought under the Administrative Decisions (Judicial Review) Act ("the Judicial Review Act") and it is, so far as I am aware, the first occasion on which such an application has been made in Australia. History of Proceedings The signing of the two warrants on 19 June 1987 was the culmination of a process that began on 23 January 1986 when the applicants were arrested at Albany by Australian Federal Police. They had arrived there the previous day on the vessel Orionia, which they had sailed from the port of Eilat in Israel. By so doing they had, according to Israeli authorities, stolen the boat and committed an offence against the Penal Code of Israel. Initial warrants for their arrest by federal police were issued under s.16(1)(b) of the Extradition (Foreign States) Act 1966. They were issued following a request directed to the Australian Government by the Government of Israel for provisional arrest pending a formal request for extradition. That first request was conveyed informally through Interpol on 23 January and officially communicated to. the Government by the Embassy of Israel 1n Canberra on 31 January. It was made pursuant to Articles XIV and XXI of the Extradition Treaty between Israel and Australia which entered into force on 4 December 1975. A formal request for extradition dated 27 February 1986 was transmitted to the Australian Government on 6 March. 3. On 10 March 1986 the Attorney-General issued notices' under para.15(1)(b) of the Act to a Magistrate, Mr J.M. Forrest, SM, informing him that the requisition had been made. The applicants appeared before the magistrate on 13 March when the s.15 notices were tendered. They were remanded to appear again on 8 May 1986 for a hearing to decide whether or not they should be committed to prison to await the warrant of the Attorney-General for their surrender to Israel. They sought an adjournment of the hearing on 8 May and were remanded on bail to appear again on 14 July 1986. On that date they requested a further adjournment to enable their advisors to study the documentary evidence adduced against them and to pursue further enquiries in Israel. This was refused and the hearing proceeded on 14, 15 and 31 July and 1 August 1986. On 1 August the learned Magistrate, by warrant pursuant to sub-s.17(6) of the Act, committed both of them to prison to await the warrant of the Attorney-General. They have been in custody since that date. They sought review of the magistrate's decision pursuant to s.18 of the Act and also under the Judicial Review Act. 4. Their application was heard on 18 and 21 August by Burchett J. and dismissed on 10 December. They then appealed against that decision to the Full Court of the Federal Court. That appeal was not able to be heard until 19 May. They resisted an attempt by the Director of Public Prosecutions to bring the hearing date forward. - Hempel v Moore (1987) 70 ALR 714 at 718. The appeal was heard on 20 May and dismissed by the Full Court on 22 May. Material before the Attorney-General On 25 and 26 May 1987 the applicants' solicitors forwarded to the Attorney-General four statutory declarations. The principal declaration was sworn by Hempel and Etheredge and was by way of submission against their surrender to Israel. In summary, it contended that they would not receive a fair trial in that country because:- (a) The language of litigation in Israel is Hebrew and interpreters are not provided by the courts. (b) They have no money to engage legal representation in Israel. (c) They will have no one in Israel to look after their interests. (d) There is discrimination against non-Jews in Israel. 5. (e) Misinformation about Dr. Hempel disseminated by the Government of the United States will prejudice their position with respect to a fair trial. (f) The complainants against them ain Israel have resorted to fraud in order to support their claims and are using criminal proceedings to advance what is, in essence, a civil dispute. A supporting statutory declaration by one Barry James White, alleged unfair and discriminatory treatment at the hands of Israeli authorities in connection with an incident unrelated to the circumstances of this case. It was evidently adduced to support the general contention that non-Jews suffer discrimination at the hands of Government in Israel. So too, was a declaration sworn by Yonna Langford, who had practised as an attorney in that country. To the same end John McKnight, an Anglican minister, deposed to his dealings with Israeli authorities in connection with the case of Mordecail Vanunu, a former Jew, now a christian, who had been apprehended and imprisoned in Israel following his disclosures concerning "the nuclear industry" in that country. Other materials submitted included a transcript of debates in the Knesset dealing with the passage in 1978 of an amendment to the Extradition Law 1954 (Israel), whereby it was provided that Israel would not extradite an Israeli national to another country save for an offence committed before he assumed his nationality. 6. This step, it was said, constituted a unilateral abrogation by Israel of its treaty with Australia and further evidenced the "prejudice pursuant to Section 14" that' the applicants would suffer. On 16 June 1987, Mr H.F. Woltring, the First Assistant Secretary, Criminal Law and Security Division of the Attorney- General's Department, prepared a submission to the Attorney recommending that he execute surrender warrants 1n respect of Hempel and Etheredge. The submission was cast into numbered paragraphs, some of which were underlined and expressed in the form of conclusions. The conclusion so drawn in each case had against it in the margin a note "Agree/Disagree", surmounting a space for the Attorney to insert his signature. The submission designated Woltring and two others, Stafford and Chaikin, as "Action Officers". It was received initially by the Attorney's principal private secretary, who raised certain questions arising from it with departmental officers. A supplementary submission was then provided in response to these questions on 18 June. Both submissions were given to the Attorney the following day. After reading the materials and 7. discussing the submissions with his principal private secretary, the Attorney decided to sign the warrants. The present application for review of that decision was instituted on 7 July 1987 and heard over 24 to 26 August. Before turning to the grounds of the application some reference must be made to the circumstances under which the vessel Orionia was returned to Israel and to certain conversations and dealings between the Attorney and the officers on the one hand and the applicants and their representatives on the other. Ownership and Surrender of the Orionia On 22 February 1986 and acting pursuant to s.16A(3) of the Extradition (Foreign States) Act, the Attorney-General directed that the Orionia be returned to "duly authorised representatives" of the company Orionia Limited. In so doing he acted upon a written departmental advice dated 12 February 1986, submitted by Mr N.S. Reaburn, Acting First Assistance Secretary, Criminal Law and Security Division. The submission also designated one Dianne Stafford as Action Officer. This advice set out the following background events with respect to the boat:- "(i) Hempel purchased the vessel in the UK and secured registration there in the name of Orionia Ltd Granzi. 8. (11) That company experienced financial difficulties and mortgaged the vessel to Aecon Ltd. {111)Mortgage payments were in arrears and Aecon took possession and transferred registration to Israel. (iv) Aecon transferred registration to Orionia Ltd of which Hempel is a director but not a shareholder. (v) The court at Beer Sheba found ownership for Orionia Ltd against Hempel in subsequent proceedings. (vi) Orionia Ltd contracted with Hempel to run the boat as a pleasure cruiser in Israeli waters. Orionia Ltd had no power under this contract to terminate Hempel's services. (v11)Following alleged financial mismanagement by Hempel, Orionia secured injunction to restrain Hempel from occupying the vessel." It was asserted in the submission that Hempel's action in removing the vessel from Israel was beyond his authority as a director of Orionia Limited. This was said to flow from a resolution of the company that "no action may be taken without the signatures of two directors over the company seal". The text of the resolution appears in translation in a copy of a minute of a meeting of directors held on 24 April 1985. That minute is exhibited to the applicants' submission to the Commonwealth Ombudsman on 16 June 1986. If the minute be an accurate record of the terms of the relevant resolution, then there 18 a serious question as to whether any relevant limitation on Hempel's powers flows from it. However in my opinion, it is not necessary to explore that issue further in the present case. 9. Reaburn's submission to the Minister at para.9 went on:- "I am conscious that any decision by you to return the boat to the possession of Orionia Ltd may be seen as a determination of the question of ownership which is the underlying issue on a charge of stealing. This is, however, a matter that has been determined by the Courts of Israel and will be a matter for them in future, should there be further litigation on the question of ownership. Furthermore, the consequence of not returning the vessel until the question of liability to surrender is determined is that the Commonwealth would remain liable for the safekeeping of the Orionia. In my opinion the advice received from the Israeli Ministry of Justice together with the copy of the Israeli Certificate of Registration issued prior to the removal of the vessel from Israel provide sufficient basis for you to exercise your power to dispose of the vessel to the registered owners." He concluded with a recommendation that the Attorney sign the direction to the Commissioner of the Australian Federal Police to hand the vessel into the custody of authorised representatives of its registered owner, Orionia Limited. The applicants now contend that by ordering the return of the boat when he did, the Attorney pre-judged the question of their liability to surrender and that by reason of this pre-judgment, his ultimate decision that they were liable for surrender to the State of Israel was affected by bias. The Attitude of the Attorney and His Officers The applicants also say that the advice to the Attorney was affected by the personal attitudes of two of his officers. oa See ee - Ale ssieliinllab Ala sy Sab do. es 10. I will deal with the merits of this complaint later. It is convenient however to refer now to the facts relied upon to sustain it. One of the officers concerned 18S Dianne Stafford, a Principal Legal Officer in the International Branch of the Attorney-General's Department in Canberra. She was designated as an "Action Officer" in the advice to the Attorney on the return of the Orionia and the surrender of the applicants respectively. Dale Boucher, who is the other officer concerned, was Senior Assistant Secretary of the International Branch of the Criminal Law and Security Division of the Attorney-General's Department in Canberra between 11 November 1985 and 15 August 1986. On 1 September 1986 he was appointed Senior Assistant Secretary in charge of the Criminal Law Branch of that division and he remained in that position until 24 December 1986. Thereafter he was appointed Director of Legal Services in charge of the Australian Government Solicitors Office in Perth. Graeme Campbell, a member of the House of Representatives for the Federal seat of Kalgoorlie, had made representations to the Attorney on behalf of the applicants. He said that between 3 April 1986 and 27 June 1986 he had about three conversations with Boucher. ll. In the course of these conversations Boucher, he said, had referred to the applicants and their associates as "nuts" who believed that universal power resides in the sword of Orion. Boucher had also told him that Hempel had a criminal record and had been "implicated or involved in drugs and kidnapping". As to Stafford, Campbell recalled her saying to him during the extradition hearing on 15 July 1986:- "This is a very worrying case. There is a lot you don't know about these people." Boucher whose evidence was given on affidavit, denied having said the words attributed to him and denied having spoken to Campbell except on 27 June 1986 when they met in a conference at which the Attorney, Stafford, Hempel and Etheredge were also present. He was not involved in any way in the preparation of the submission made to the Attorney by Woltring on the question of surrender. Stafford in her affidavit said she had assumed carriage of the matter relating to the extradition requests from Israel in January 1986. She recalled having one telephone conversation with Campbell on 3 April 1986 and that she had spoken to him at the Central Law Courts in Perth during a luncheon adjournment of the extradition hearing. She recalled remarking that the proceedings 12. were not very pleasant. She denied that she had at any time said to Campbell the words he attributed to her. Counsel for the applicants sought leave at the hearing to cross-examine Boucher and Stafford on their affidavits. No notice had been given of this intention as reguired by the Federal Court Rules. Ms. Stafford, I was informed, was in Canberra. In the event, I did not then accede to counsel's request but reserved my decision on the question of cross~examination. Evidence was also given of the meeting with the Attorney-General held on 29 June 1986. Etheredge, Hempel and Campbell gave evidence of what passed at the meeting. Etheredge said that the Attorney produced to them a copy of an agreement dated 23 April 1985 between shareholders of Orionia Limited and the applicants. Under the terms of the agreement Hempel and Etheredge agreed to operate the Orionia "1n a proper and responsible manner within the territorial waters between Eilat and Sharem-A~Sheich". The agreement bore certain signatures and according to the evidence, Hempel, when questioned about it by the Attorney, said that they looked like the signatures of himself and Etheredge but he was sure that he had not signed the document. Of that, according to Etheredge, the Attorney replied:- 13. "Well, all I can see 1s that 1t 1s a good thing for you that nothing that's said here will be used against you in a trial." The Grounds of Review The amended application identifies two decisions for which review 1s sought:- l. The decision that the applicants were liable to be surrendered to the State of Israel. 2. The decision to sign warrants for the surrender of the applicants to the State of Israel. Insofar as the first "decision" amounts to no more than a conclusion reached by the Attorney, 1t 1S not a "decision" for the purposes of the Administrative Decisions (Judicial Review) Act ~ Evans v Friemann (1981) 35 ALR 428, 431 (Fox ACJ); Legal Aid Commission of W.A. v Edwards (1982) 42 ALR 154, 157 (Toohey J.) The second decision embodies the necessary element of an act which makes manifest the antecedent conclusion and is for all relevant purposes the only decision under review. The grounds of the application were as follows:- "l. That a breach of the rules of natural justice eccurred in connection with the making of the decision in that Herman F. Woltring in his Minute dated 18th June 1987 to the Attorney General (folio 1906); 14. (a) "...-ascertained from Mr John Myer Walters of the Western Australian Bar that whilst proceedings are usually in Hebrew all Judges and Lawyers also speak English and argument 15S frequently in English. Where the Defendant 1s non-Hebrew speaking and criminal proceedings are conducted in Hebrew the Defendant would as a matter of course have access to an interpreter. ....". (b) afforded no opportunity to the Applicants or their agents to be present and hear what Walters said and afforded no opportunity to the Applicants to reply. (c) failed to consider that Walters' previous association with the matter as a witness for the Director of Public Prosecutions in the Extradition proceedings gives rise to a reasonable apprehension of bias. Woltring should have sought advice from an impartial source. That the decisions involved an error of law in that the Respondent exercised his discretion on the basis that he was only required to be satisfied that there were no- substantial grounds' for believing that the Applicants would be prejudiced at trial by reason of their race or nationality, whereas Article V of the Treaty between Australia and the State of Israel concerning Extradition ("the said Treaty") requires the Respondent not to extradite where he has reasonable grounds for that belief. Alternatively t& paragraph 2 above, the decision was not authorised by the said Act in pursuant (sic) of which 1t was purported to be made as Section 18A(1) of the said Act 1s ultra vires the Constitution in that 1t fails to conform with the said Treaty. That the decisions involved an error of law in that the Respondent decided that, as a matter of construction of s.14(b) of the said Act, the membership of a different race or nationality entairling an ignorance of the language used in the courts of the requesting State could not give rise to a substantial or reasonable belief that the Applicants might be prejudiced at their trial by reason of their race religion or nationality. That the decisions involved an error of law in that the Respondent exercised his discretion on the 15. basis that a ground was "substantial", within the meaning of s.14 of the said Act, if it involved a preponderance of likelihood. That the decisions involved an error of law in that the Respondent exercised his discretion on the basis that the Applicants bore an onus to adduce evidence of the circumstances which negative their liability to surrender. That the Respondents failed to take a relevant consideration into account in making the decisions, being evidence and further or alternatively the fact that the Applicants have been incarcerated pending their extradition for a period equal to or greater than the effective sentence likely to be served by them if convicted of the alleged offence for which their surrender is sought by the State of Israel. That the decisions were otherwise contrary to law or alternatively that the making of the decisions was an improper exercise of the power conferred by the Act in that:- (a) the Respondent took an irrelevant consideration into account 1n the exercise of his power; or (b) it constituted an abuse of the power; in that the Respondent did not make his own decision as required by section 14 of the Act but rather was required to "agree or disagree" with the Minute of Herman F. Woltring dated 16th June 1987 (folio 1895). This procedure foreclosed to some extent the Respondent having regard to more general considerations within the scope of the Act that might incline him to a different conclusion. This procedure also binds the Respondent to adopting the errors of Herman F. Woltring. That the decisions were made in breach of the rules of natural justice as they were actuated by bias against the Applicants in that: (a) the officers or some of them advising the Respondent were biased against the Applicants and the decisions of the Respondent by reason of the matters alleged in paragraph 8 above were affected by that bias; (b) the Respondent had prejudged the liability for surrender of the Applicants by ordering the return to third parties of the vessel "ORIONIA". 10. ll. 16. That the decisions involved an error of law or alternatively were otherwise contrary to Law in that the Act under which the decisions purported to be made does not apply in relation to the State of Israel. That the making of the decisions was an improper exercise of the power conferred by the Fxtradition (Foreign States) Act in pursuance of which they were purported to be made in that the Respondent took into account an irrelevant consideration in making the said decisions, being the guilt of the Applicants." Particulars of the bias alleged in para. 9 of the application were provided as follows:- "Paragraph 9(a) of the Application: The Applicants allege that Dianne Stafford and further or alternatively Dale Boucher, both officers of the Attorney-General's Department and persons who have tendered advice to the Attorney-General in relation to the decisions under review, were biased against the Applicants. on account of their personal views about the religious and political activities of the Applicants. The Applicants say that advice to the Attorney-General from these officers was infected with the said bias and that by reason of the matters alleged in paragraph 8 of the Application herein, the decisions of the Respondent were actuated by bias. Paragraph 9(b) of the Application: On 13 February 1986 the Respondent decided that persons other than the Applicants herein had a better right to possession of the vessel "Orionia"." te cd 17. Statutory Framework It 1s desirable before considering the grounds raised to set out the relevant provisions of the Extradition (Foreign States) Act 1966. A brief history of extradition law in the United Kingdom and Australia leading up to its enactment may be found in Shearer ~ Extradition and Asylum in Ryan - International Law in Australia (2nd Ed). See also Barton v Commonwealth (1974) 131 CLR 477. Definitions of terms used in the Act are found in s.4 and include the following:- extradition treaty" means a treaty relating to the surrender of fugitives; "fugitive" means a person accused of an extradition crime that is alleged to have been committed, or convicted of an extradition crime that was committed, at a place in a foreign state or within the jurisdiction of, or of a part of, a foreign state" The term "extradition crime" 1s explained in sub-s.4(1A):- "(1A)An offence against the law of, or of a par' of, a foreign state (including an offence against such a law relating to taxation, customs duties, foreign exchange control or any other revenue matter) for which a requisition for the surrender of a person has been made to the Attorney-General 1S an extradition crime for the purposes of this Act if, but only if - 18. (a) the maximum penalty for the offence is 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, or within the jurisdiction of, the part of Australia where the person was found, that act or omission would have constituted an offence against the law in force in that part of Australia the maximum penalty for which is death or imprisonment for not less than 12 months." The operation of pre-existing imperial and territorial laws 1s excluded by virtue of s.6:- "6(1) Subject to sub-section (2), this Act excludes the operation of - (a) the Imperial Acts known as the Extradition Acts, 1870 to 1935; and (b) any other laws relating to extradition that were in force in a Territory' immediately before the commencement of this Act. (2) Nothing in this Act excludes the operation of the Imperial Act known as the Fugitive Offenders Act, 1881." Part II of the Act deals with its application. Section 9 applies it to States in respect of which the Imperial Extradition Acts 1870 - 1935 were applied by Order in Council and where those Acts as they so applied extended to the Commonwealth. For the avoidance of doubt in relation to the application of the Act under sub-s.(1), sub-s. 9(1A) applies it to each of the foreign states listed in the schedule to the Act. The list does not include the State of Israel. 19. Section 10 enables the Act to be applied ain relation to foreign states by regulation where there 1s an extradition treaty in force between Australia and the foreign state. Sub-s. 10(4) enables 1t to be applied to foreign states in the absence of an extradition treaty on the basis of reciprocity alone. It also permits that application to be modified in accordance with what has been described as a qualified reciprocity - Rezek - Reciprocity as a Basis of Fxtradition (1981) 52 BYIL 171 at 173. It is desirable in order to understand the operation of the Act to set this section out in full:- "10.¢1) Where, after the commencement of this Act, an extradition treaty (including an extradition treaty that affects or amends an earlier extradition treaty) comes into force between Australia and a foreign state - (a) if this Act applies in relation to the foreign state at the time of coming into force of that treaty ~- the regulations may provide that this Act applies in relation to that state after that time subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are _ specified in the regulations; (b) if this Act does not apply in relation to the foreign state at the time of coming into force of that treaty - the regulations may provide that this Act applies in relation to that state after that time and may also provide that it so applies subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to that treaty and are specified in the regulations. 20. (2) The limitations, conditions, exceptions or qualifications referred to in sub-section (1) may, in relation to a foreign state, be expressed in the form that this Act applies in relation to that state subject to the extradition treaty referred to in that sub-section or, 1f that extradition treaty affects or amends an earlier extradition treaty, subject to that earlier extradition treaty as affected or amended by the later extradition treaty. (3) Where, after the commencement of this sub-section, a treaty (other than an extradition treaty) that contains provisions relating to the surrender of fugitives comes into force between Australia and a foreign state, sub-sections (1) and (2) apply for the purpose of giving effect to that treaty in so far as 1t relates to the surrender of fugitives in like manner as they apply for the purpose of giving effect to an extradition treaty. (4) Where the Governor-General is satisfied that, if this Act applied in relation to a foreign state, the law of that foreign state would, with or without any 'limitations , conditions, exceptions or qualifications, permit the surrender to Australia of persons accused or convicted of extraditable crimes within the meaning of Part IV who are found in that foreign state, or within the jurisdiction of, or of a part of, that foreign state, the regulations may provide that this Act applies in relation to that foreign state or that this Act applies in relation to that foreign state subject to limitations, conditions, exceptions or qualifications specified in the regulations." The operative sub-section relevant for present purposes is 10(1)(b). It authorises the making of regulations which apply the Act in relation to a specified foreign state with modifications to take account of particular features of the relevant treaty. 21. Sub-section 10(2) permits the exercise of that power by regulations which are expressed to apply the Act in relation to a foreign state "Subject to" the relevant extradition treaty. In the case of Israel the Extradition (State of Israel) Regulations provide by req.3:- "The Extradition (Foreign States) Act 1966-1976 applies in relation to the State of Israel subject to - (c) the Treaty concerning Extradition." Contrary to the submission of counsel for the applicants, this regulation does not purport to give to the treaty between Australia and Israel the force of municipal law. - Barton v The Commonwealth (1974) 131 CLR 477, 507 (Jacobs J.) Broadly speaking, 1t may be said to do no more than effect the application of the Act subject to modifications where there is some inconsistency between its terms and those of the treaty. It is to the content of the regulation that one must look to see the source of the modification. When, as in the present case, the regulation applies the Act "subject to" the treaty, it embodies only the consequential modifications to the Act's operation, not every provision of the treaty. 22. By s.12, where the Act applies to a foreign state every fugitive from that state is liable to be apprehended and surrendered to it. The liability 1s subject to the Act and to any "limitations, conditions, exceptions or qualifications" to which the application of the Act in relation to that state 1s subject. Section 13 sets out cases in which, "a person 1S not liable to be surrendered to a foreign state", they being in substance where:- (1) The offence alleged is of a political character {s.13(1)). (i1) The requisition for surrender has been made with a view to punish the person for an offence of a political character (s.13(1)). (1ii)Provision is not made by the law of the requesting state or by treaty or undertaking by the requesting state that the person will not unless he has left or had an opportunity of leaving that state, be tried there or detained for trial in any other country for any offence other than that for which he was extradited or in respect of which the Attorney-General gives a consent (s.13(2)). (iv) He has already been acquitted or pardoned or convicted and punished for the same offence in any country (s.13(4)). The Full Court of the Federal Court has held in Commonwealth of Australia v Riley (1984) 57 ALR 249 at 255 that it is for the fugitive to adduce evidence of the circumstances giving rise to the exemptions for which this section provides. That case 23. went on appeal to the High Court ((1985) 62 ALR 497). The appeal was dismissed and the onus point does not appear to have been raised. Section 14, which 1s of direct relevance for present purposes, provides:- "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), in respect of a fugitive from a foreign state in relation to which section 10 applies, if there 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 1s 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." Before the prohibition to which this section gives rise can operate there must be "substantial grounds for believing" that the collateral purpose (s.14(a)) or the risk of unfair discrimination (s.14(b)) exists. There 1s no requirement that the existence of such grounds be negatived in order to avoid the prohibition. 24. It follows, in my opinion, and contrary to qround 6 of the qrounds for review, that the proponent to the probibition bears the burden of establishing the existence of the conditions for 1ts operation. This 1S consistent with the approach taken by the House of Lords to a similar provision in s.4(1)(c) of the Fugitive Offenders Act (1967) - Fernandez v Government of Singapore (1971) 2 All ER 691, 697 (Lord Diplock). Section 15 provides that upon a requisition to the Attorney-General by a foreign state he may give notice authorising the issue of a warrant for the arrest of the fugitive. He shall not give such a notice if the fugitive is not liable to be surrendered. Section 16 specifies the conditions under which a magistrate may 1ssue a warrant for the arrest of a fugitive from a foreign state. Section 16A relates, inter alia, to searches for and seizure of property under the control of the fugitive. It 1s relevant to these proceedings 1n so far as it was invoked by the Attorney in directing the return of the Orionia to the persons regarded as its rightful owners. In the material parts it provides:- 25. "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; or (b) that has been acquired by the person as a result of such an offence. (3) A Police Officer may seize any article found as a result of a search in accordance with sub-section (1) and may retain any article so seized pending any direction from the Attorney-General as to the manner in which the article 1s to be dealt with. (4) The powers conferred by this section are in addition to, and not in derogation of, any other powers conferred by law. (5) In this section, "Police Officer" means a member or special member of the Australian Federal Police or a member of the Police Force of a State or Territory." Section 17 covers proceedings after apprehension, including the determination by a magistrate whether to commit the fugitive to prison to await the warrant of the Attorney-General. That determination turns on production of a duly authenticated foreign warrant and duly authenticated statements in writing setting out the description of each offence and its penalty and all the acts or omissions in respect of which surrender is requested. The magistrate must be satisfied, after taking into account any evidence properly adduced by the person, that he or she is liable to be surrendered to the requesting state. wee SH SRE 26. In such event the Magistrate 1s obliged either to commit the person to prison to await the warrant of the Attorney-General for his surrender or, 1n certain circumstances, release him on bail (s.17(6)). It 1S notable that a person adjudged by the magistrate as liable to surrender 1s not entitled after that judgment 1s made to adduce evidence to controvert any allegation that he committed any act or omission in respect of which his surrender 1s requested (s.17(6A)). A decision not to commit is reviewable by the Federal Court on the application of the requesting State (s.17A). A decision to commit or admit to bail under s.15 1s similarly reviewable under s.18 of the Act on the application of the fugitive. Section 18A provides for the final step in the extradition process and that which 1s challenged in this case, namely, the Attorney's signature on a surrender order. It provides:- "18A(1) 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 - (a) the fugitive did not make an application under that sub-section within that period; or 27. (b) the fugitive made an application under that sub-section within that period and the Court to which the application was made, or, where an appeal was brought from the decision of that Court to the Full Court of the Federal Court, the Full Court, has refused to order that the fugitive be released, and the period of 15 days after the date of the decision of the first-mentioned Court or the Full Court of the Federal Court, as the case may be, has expired, the Attorney-General may - (c) if satisfied that the fugitive is liable to be surrendered to the foreign state that made the requisition for the surrender of the fugitive; and (d) unless of the opinion that - (1) the offence to which the requisition for the surrender 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 (ii) 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 1n 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. (7)A warrant issued pursuant to sub-section (1) or (3) may be executed according to its tenor. (9) Any article, including a sum of money, that may be material as evidence in proving the offence to which the requisition for the surrender of a fugitive or volunteer prisoner relates or that has Ts & ot TT PR Se eR 28. been acquired by him or her as a result of the offence shall, 1f the Attorney-General so directs, be delivered up to the foreign state that made the requisition. (11) If, at any time after a fugitive or volunteer prisoner has been committed to prison or otherwise ordered to be held in custody, or has been released on bail, under this Part pending the signing of a warrant by the Attorney-General for the surrender of the fugitive or volunteer prisoner to a foreign State, the Attorney-General decides not to sign such a warrant, the Attorney-General shall, by order in writing, direct that the fugitive or volunteer prisoner be released or that the recognizances upon which the fugitive or volunteer prisoner was admitted to bail be discharged, as the case may be, but any such order does not affect any order made in respect of, or recognizances entered into by, the fugitive or volunteer' prisoner otherwise than pursuant to this Act." Against that statutory background the grounds for review can now be considered. Reliance Upon Walters' Evidence The first ground asserts breach of natural justice arising from reliance by the Attorney's advisor, Mr Woltring, upon information obtained from John Meyer Walters. Walters practices as a barrister in Western Australia. He has some familiarity with the operation of the judicial system in Israel, having been admitted as an advocate in that country in February 1981. He worked in a law office in Israel for two and a half years and also had 12 months experience as an officer of Interpol. —— 29. Re gave evidence before the magistrate who heard the extradition proceedings, Mr Moore, that court proceedings in Israel were normally conducted in Hebrew or Arabic. In his experience however most judges could speak English. This evidence was referred to at paragraph 30 of the principal submission in answer to the contention advanced by the applicants that they would not have a fair trial as the litigation language of Israel is Hebrew and they would not be provided with interpreters. It was also referred to in the supplementary submission where Woltring advised that Mr Walters had confirmed the accuracy of the principal submission on this point. Walters also said that the rules of evidence in criminal matters were basically the same in Israel as in Australia and that a defendant would have a right to subpoena documents necessary for the presentation of a proper defence. The applicants' grounds disclose two complaints about this evidence. The first was that they were afforded no opportunity to reply to what Walters said on the point. As to that, it should be noted that Walters was cross- examined on the hearing before the magistrate. The enquiry was made in relation to the applicants' contention about trial procedure in Israel. Insofar as Walters spoke from his own experience there is nothing to suggest that what he said was incorrect. 30. The second complaint about the reliance upon Walters' rnformation is that the Attorney failed to consider that his previous association with the matter as a witness for the Director of Public Prosecutions in the extradition proceedings would give rise to a reasonable apprehension of bias. Woltring, 1t was said, should have sought advice from an impartial source. How the appearance by a person in court proceedings as a witness called by one side gives rise to an inference that he 1s biased in favour of the person who calls him, was not explained. It may be that some persons called as witnesses are biased in favour of the party calling them. But that inference does not follow from the fact that they are called. A person called to give evidence in proceedings in a court of law must be called as a witness of the truth and not otherwise. If every witness called by a particular party were thought, on that ground alone, to be biased in favour of that party, then no witness could be relied upon to tell the truth. The proposition embodied in this ground of the application deserves a short life and a summary despatch. The first aspect in relation to Walters' evidence however gives rise to a broader consideration of the duty of the Attorney-General to observe principles of natural justice in exercising the discretion to order surrender. 31. Natural Justice and the Attorney's Discretion to Surrender The power of the Attorney to order the surrender of a fugitive under s.18A 1s conditioned upon his satisfaction that the fugitive is liable to surrender. In effect he must be satisfied that the elements of liability set out in s.12 of the Act are made out. There 1s no Onus upon the fugitive to negative them. The separate identification of the political offence issue in s.18A(1)(b) makes clear that it relates to an exemption from liability to be demonstrated by the fugitive rather than excluded by the Attorney. It is probably unnecessary for the incidence of that onus is already apparent from sub-s.13(1). Similarly, it is for the fugitive to demonstrate the existence of collateral purpose or risk of unfair discrimination which would activate the s.14 prohibition against surrender. Unlike the magistrate and the court, the Attorney's general discretion to decline surrender subsists notwithstanding his determination that the fugitive is liable, that there are no relevant exemptions and that issue of a warrant is not prohibited by s.14. This is evident from the language of s.18A which provides that if satisfied as to liability he "may" make the Surrender order. 32. H1S position then 1s somewhat analogous to that of the Secretary of State under s.1l of the Extradition Act 1870. As to that there 1S some guidance from the House of Lords. In Atkinson v United States of America Government (1971) AC 197 their Lordships rejected argument that a magistrate in deciding whether to commit a fugitive under s.10 of the Extradition Act 1870 could take into account that it would be unjust or oppressive to do so. But the Act, as Lord Reid said at 232, provides a safeguard:- "The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view 1t would be wrong, unjust or oppressive to surrender the man." Lords McDermott, Guest and Upjohn agreed with Lord Reid. Lord Morris of Borth-y-Guest at 239 said:- "There 1s, however, a complete discretion in extradition cases in the Secretary of State and it will be for him to decide whether in all the circumstances the appellant should or should not be surrendered." In Royal Government of Greece v Governor of Brixton Prison (1971) AC 250, the House of Lords applied its decision in Atkinson against a submission that the committing magistrate should have gone behind the fugitive's conviction in Greece on the basis that it was arrived at in disregard of the rules of natural justice and should not be recognised in England. wn RFS OER Oe > we > . 7 33. At 281 Lord Morris of Borth-y-Guest observed:- "Tt 1s for the courts to say whether the statutory conditions have been complied with to the extent that a fugitive criminal could be surrendered: 1t 1s for the Secretary of State to decide whether, having regard to all the circumstances, he should be surrendered...In the exercise of his discretion the Secretary of State (who, in the first place, had a discretion as to whether he would make an order requiring the magistrate to proceed) can consider all the facts and circumstances of a case and it is for him to give consideration to any questions and contentions which invoke the rules of natural justice." If a question arises whether the requisition is made in good faith then that too, it seems, 1S a matter for the Executive to consider in the exercise of its discretion to decline surrender. It is not a matter for the court - Re Arton (1896) 1 QB 108. It 1s evident that even after committal the Secretary of State in the United Kingdom and the Attorney-General in Australia are entitled to consider fresh evidence on the question whether the fugitive is liable to surrender and whether the offence 1s of a political character, or the requisition made for the collateral purpose of punishing him for such an offence. In R v Governor of Brixton Prison. Ex parte Schtraks. (1964) AC 556 at 596, Lord Evershed, while agreeing that the House of Lords, upon an appeal from a refusal of habeas corpus, could not receive fresh evidence, said:- 34. «ee1t 18 no less clear that such fresh evidence may and should be weighed by the Secretary of State in whose power 1t 1s, 1f he thinks proper in the exercise of his discretion, to decline to order the extradition of the person charged." In the exercise of his discretion generally there appears no reason why the Attorney should not receive submissions from the fugitive, not limited to questions of exemption under ss. 13, 14 and 18A(1)(d). Indeed he has done so in the present case. A Canadian precedent for such a course 18S mentioned in La Forest - Extradition to and From Canada p.136. His discretion will, no doubt, be exercised with full regard to AuStralia's treaty obligations with respect to extradition. Having regard to that obligation there may be few cases in which he would decline to surrender a fugitive who 1s liable to surrender, in respect of whom no prohibition against extradition operates and who does not attract the benefit of discretionary provisions relating to Australian nationals. The question relevant for present purposes is whether and to what extent he must observe the rules of natural justice in coming to his decision. The application of those rules to the exercise of a statutory power depends upon the proper construction of the statute ~ Salemi v MacKellar (No. 2) (1977) 137 CLR 396, 401 (Barwick CJ), 419 (Gibbs J.), 460 (Aickin J); R v MacKellar; Ex 35. parte Ratu (1977) 137 CLR 461, 463 (Barwick CJ), 470 (Gibbs J.), 475 (Mason J); Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, 491 (Barwick CJ), 498 (Aickin J., Stephen and Mason JJ agreeing). There 1S a preliminary issue to be addressed in each case, namely whether the exercise of the power affects the rights, interests or legitimate expectations of those subject to it. That issue does not require lengthy consideration here as there 1s no doubt that the decisions under review involve a direct interference with the personal liberty of the applicants. The nature of that interference 1s draconian, for as one author has observed:- ",.-despite the salutary effects of extradition it should not be forgotten that 1t is in conflict with the bastion of civil liberties: the principle that a man is entitled to his liberty unless he has been guilty of a serious breach of a law of the land." - La Forest - Extradition To and From Canada 2nd Ed. p. 25 In such a case the common law generally requires that a person who may be affected by such a decision be given the opportunity to know the case to be made against him and to reply to 1t - Kioa v West (1985) 159 CLR 550, 563 (Gibbs CJ), 582 (Mason J.), 593 (Wilson J.), 609 (Brennan J.), 632 (Deane J.). 36. This rule may be excluded by a clear legislative intent to the contrary. Whether or not such an intent is to be found depends on a consideration of the nature and subject matter of the power in question, the limits upon its exercise, limitations on curial review and any specific mechanisms for receiving the representations of those whose interests are affected. The surrender power is hedged about with conditions, the exemptions under s.13, partly reflected in s.18A(1)(d) and the prohibition imposed by s.14. As to those, the onus of demonstrating their application rests upon the fugitive. It follows that the fugitive must be entitled to a hearing 1f he is to have the opportunity of discharging that onus. Once past these barriers, the residual discretion 1s subject to no express statutory constraint. However its very existence reflects, in my opinion, a legislative intent that the Attorney should have the power to refuse surrender wherever surrender would, in his view, be wrong, unjust or oppressive - Atkinson v United States of America Government (supra). Where there is a treaty in force its existence no doubt reflects a degree of mutual trust and confidence between the contracting parties as to their bona fides and the fairness of treatment that will be meted out by one or the other to a fugitive 37. who has been surrendered. - State of Wisconsin v Armstrong (1973) 10 ccc 2d. 271, 277. On the other hand, circumstances, governments and the domestic laws of the requesting State may change even within the lifetime of a treaty. The discretion to be exercised by the Attorney after his determination on the application of the express Statutory constraints will be heavily influenced by the need to honour Australia's obligations under the treaty. It may nevertheless involve weighing a variety of factors of general significance and other factors peculiar to the particular case. Some of those factors could well be known only to the fugitive and it 1s he who would bear the burden of demonstrating their existence and importance. There may be a case where clear evidence of innocence is presented by a fugitive who is an Australian national and whose work and family life would be seriously and unfairly disrupted were he to be surrendered to stand trial in another country. The statute provides no specific mechanisms for input on such matters. Questions of guilt or innocence, hardship and oppression are not able to be determined by the magistrate. The point at which the Attorney makes his decision under s.18A 1s a point at which there is no statutory bar to a full submission on all relevant issues. 38. There 1s nothing in the Act to suggest a legislative intention whether by provision of specific alternative mechanisms or otherwise, to displace the presumptive rule that the fugitive whose surrender 1s contemplated by the Attorney, 1s entitled to be heard and to know the case against him. The incidence of the burden of proof in respect of exemptions from liability to surrender under s.13 and _ the conditions of collateral purpose and unfair discrimination under s.14 is a strong positive indicator that the rules apply. In my opinion the rules of natural justice do apply to the exercise of the Attorney's discretion to surrender a fugitive under s.18A. The mere statement of their application does not, of course, determine their content. In its joint judgment in R v_ The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552-553, the High Court spoke of the variable content of the rules of natural justice:- "But it must be borne in mind that these principles are not to be found in a fixed body of rules applicable inflexibly at all times and in all circumstances. Tucker LJ said in Russell v Duke of Norfolk [(1949) 1 All ER 109 at p.118): "The requirements of natural justice must depend on the circumstances of the case, the nature of the 39. inquiry, the rules under which the tribunal is acting, the subject matter that 1S being dealt with, and so forth". This passage was approved by the Privy Council in University of Ceylon v Fernando [{(1960) 1 WLR 223} and was used by Kitto J. in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [{(1963) 113 CLR 475 at p.504). There his Honour observed: "What the law requires in the discharge of a quasi-judicial function is judicial fairness. What is fair in a given situation depends upon the circumstances." We agree with the foregoing statements of the relevant law." See also National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 314-316 (Gibbs CJ), 319-320 (Mason, Wilson, Dawson JJ), 326 (Brennan J.). As Gibbs CJ pointed out in the latter case at 316, the application of the rules may vary from case to case even though the same power is being exercised. Later Stephen J. 1n Salemi v MacKellar (No. 2) (1977) 137 CLR 396 at 444 said:- "It 1s, no doubt, now a truism that in cases in which the rules of natural justice are applicable' the procedural consequences will not necessarily be uniform. On the contrary they will depend upon what Kitto J. describes, in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [(1963) 113 CLR 475 at p.504), as "the particular statutory framework" within which they are to apply. But not only will their effect and application thus vary depending upon the character and function of the particular statutory tribunal or person in relation to whose deliberations they are invoked (Ridge v Baldwin per Lord Reid [(1964) AC at pp.65, Terr a ree our aE 40. 72)), they may also vary from case to case although each be conducted before one and the same tribunal or person." And although his Honour dissented in that case in taking the view that the rules of natural justice had an application to a deportation decision under s.18 of the Migration Act 1958 as 1t then stood, his remarks on the variable content of the rules of natural justice are not in doubt. Those rules in this case required the Attorney to give to the applicants an opportunity to be heard on issues material to the exercise of his discretion. That requirement does not give rise to an obligation to conduct an oral hearing with right of cross-examination and address. It was, given the administrative nature of the decision, sufficiently met by the receipt and consideration of written submissions by the applicants' solicitors. And no complaint 1s made in that regard. The question is whether the Attorney had an obligation to advise them of Walters' views on litigation in Israel and give them an opportunity to respond. The extent of the obligation in natural justice to disclose and afford an opportunity to respond to matter adverse to an applicant's case will, of course, vary according to the circumstances. r "FTE 41. It would include in this case a duty to bring to the attention of the applicants the critical issues or factors on which the Attorney's decision was likely to turn so that they might have an opportunity of dealing with them ~- Kioa v West (supra) at 587. The disclosure of adverse material personal to the applicants would be a particular requirement. In my opinion, the dictates of fairness did not require the Attorney or his advisors to go back to the applicants for their comments on Walters' evidence. They had put their submission on that subject matter. They had had an opportunity to cross-examine Walters in proceedings before the Magistrate. Fairness did not require that they be given an opportunity to specifically reply to that information. In my opinion no breach of natural justice is made out under ground 1. Ground 2 - The Criterion for Excluding Section 14 Discrimination By the second ground for review, 1t 1s contended that the Attorney misdirected himself in concluding, for the purposes of s.14, that he had no substantial grounds for believing that the applicants would be prejudiced at trial by reason of their race or nationality. 42. He should, 1t was said, have considered whether there were reasonable grounds for such a belief. Although the language of s.14 speaks only of "substantial grounds", Article V(1)(d) of the Treaty provides:- "(1) A person shall not be extradited where - (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, 1f 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 was submitted that the inclusion in Article V of a "reasonable grounds" test and the application of the Act in relation to the State of Israel "subject to the treaty" imported that test into s.14 by virtue of sub~s.10(1) and (2) of the Act. The application of the Act is, by virtue of s.10(1)(a), read with 10(1)b) and the regulations:- "...subject to such limitations, conditions, exceptions Or qualifications as are necessary or desirable to give effect to that treaty..." (s.10(1)(a)) 43. It 18 neither "necessary" nor "desirable" to give effect to the treaty that the "substantial grounds" test prescribed in s.14 be supplemented by a "reasonable grounds" test. Article V in defining the minimum support necessary to sustain the requisite belief as to prejudice, uses the phrase "substantial or as the case may be reasonable grounds". This terminology 1s readily explicable as nothing more complicated than a reference to the differing verbiage of the domestic extradition laws of Israel and Australia. Section 10 of the Israeli Extradition Law 5714-1954 in its English language version, a copy of which was provided by the applicants' solicitors with their letter of 25 May 1987 to the Director of Public Prosecutions, provides:- "Notwithstanding the provisions of section 9, the Court shall not declare a wanted person subject to extradition if it finds that there are reasonable grounds for assuming - (1) that the accusation or the request for extradition arises from racial or religious discrimination; or (2) that the request for extradition aims at prosecuting or punishing him for an offence of a political character, though prima facie it 1s not made in connection with such an offence." Section 14 of the Extradition (Foreign States) Act 1966 on the other hand has, since its enactment, embodied only the "substantial grounds" requirement. tye 44. The lanquage of Article V(1l) of the treaty can be understood therefore as embracinq the differing formulae of existing domestic law 17 cack country and as perfectly consistent with those laws in their nresent form. The importation of both tests into s.14 would create a redundancy in its language, for the more generous exemption embraces the more restrictive. It would also involve an approach to the construction of Article vV(1) in conflict with the general proposition that the court should not, unless constrained by the language used, interpret any extradition treaty 1n a way which would hinder and narrow the operation of these most' salutary international arrangements - Government of Belgium v Postlethwaite (1987) 3 WLR 365, 383 (Lord Bridge). In my opinion, there is no substance in ground 2. Ground 3 - Inconsistency Between Section 14 and Article V This ground was raised by way of alternative to ground 2. The substance of it is that 1f s.14 when properly construed gives rise only to a "substantial grounds" test then it is not consistent with the treaty and the Act is, at least in that regard, beyond power. 45. The argument fails at the threshold as, for the reasons already outlined, s.14 in its present form 1s quite consistent with the treaty. Ground 4 - Language as a Source of Prejudice by Reason of Race or Nationality In his judgment on the application to review the magistrate's decision to commit the applicants, Burchett J. said:- ",..e1t cannot be said that the conduct of proceedings in a foreign State in the language of that State, 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"" Hempel v Moore 70 ALR 601 at 608 These remarks were embodied and adopted in Woltring's primary submission to the Attorney. Based upon that dictum and "conflicting statements as to language" he recommended to the Attorney in relation to $.14(1)(b):- "I am of the view that you should not be satisfied that this issue should preclude surrender." An endorsement on the submission records that' the Attorney agreed with this recommendation. 46. It 1s a finding challenged in ground 4 on the basis that membership of a race or nationality entailing ignorance of the language used in the courts of the requesting State could give rise to prejudice at trial by reason of race or nationality. It may be assumed that an accused person can be prejudiced at his trial by reason of the proceedings being conducted in a laungage he neither speaks nor understands. It may also be assumed that the prejudice he may suffer 1s not entirely removed by the use of interpreters. The question remains whether that prejudice would be suffered "by reason of" race or nationality. The term "race" is difficult of definition. The Shorter Oxford English Dictionary speaks of:- "A group of persons...connected by common descent or origin. A tribe nation or people regarded as of common stock. A group of several tribes or peoples forming a distinct ethnical stock. One of the great divisions of mankind having certin physical pecularities in common." oe YR OUE PORY 1 aR 47. The scientific significance of the term is doubtful:- "I apprehend that anthropologists would dispute how far the word "race" 1s biologically at all relevant to the species amusingly called homo sapiens" - Ealing LBC v Race Relations Board (1972) AC 342, 362 (Lord Simon of Glaisdale) Whatever its proper definition the word refers to congenital attributes. Race is an accident of birth. The language spoken by a person 1s ordinarily regarded as a function of environment and education. Ability to speak ao particular language may _ be overwhelmingly associated with membership of a given race. That is not to say it exists "by reason of" that membership. A fortiori the inability to speak or understand a language cannot be said to be causally related to race. The same is true of the relationship between language and nationality. That term may be used in a politico-legal sense denoting membership of a State or the historico-biological sense of membership of a nation. - Weis ~- Nationality and Statlessness in International Law (London) 1956; Elimination of Racial Discrimination (1966) 15 Int. Comp. L.Q. at 1006. In which ever way it is used there does not appear to be any stronger argument for a cause-effect relationship between nationality and language, than there is for such a relationship between race and language. SPE SER ee ee 48. In my opinion 1t cannot be said that the conduct of a trial in a foreign language will generate prejudice "by reason of" race or nationality. In any event the prejudice contemplated by sub-s.14(1)(b) appears to be of the direct variety flowing from active discrimination grounded on race, religion, nationality or political opinions. This is reinforced by the words "punished, detained or restricted" in the balance of that paragraph. The "accidental" disadvantage to a person tried in proceedings in a language he does not speak, 1S not within that category of prejudice. The constructional approach is supported by a purposive perspective. The object of the Act is to facilitate the extradition of persons to or from Australia and other countries. As Lord Russell of Killowen LCJ said in Re Arton (1896) 1 QB 108 at p. 111:- "The law of extradition is, without doubt, founded upon the broad principle that it is in the interest of civilised communities that crimes, acknowledged to be such, should not go unpunished, and it is part of the comity of nations that one state should afford to another every assistance toward bringing persons guilty of such crimes to justice." x ry ak 49. It would be fundamentally at odds with the purpose of the Act to ban extradition to another country solely because of the language spoken 1n court proceedings therein. If that were a basis for exemption then it would seriously undermine the effectiveness of extradition treaties with non-English speaking countries. As Burchett J. said in Hempel v Moore (1986) 70 ALR 601 at 609:- "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." I respectfully adopt his Honour's conclusion. In doing so I do not say that the language of the courts of the requesting state can never be taken into account by the Attorney in the exercise of his general discretion to decline surrender where neither the statutory exemptions nor the s.14 prohibition have been made out. In my opinion however, there 1s no basis for the claimed exemption and ground 4 of the application must fail for the reasons set out above. 50. Ground 5 ~ What 1s Meant by "Substantial" in Section 14? This question was addressed at para.22 of the primary submission to the Attorney in which 1t was said:- "There must be a "reasonable chance" or "substantial grounds for thinking" or a "serious possibility" that the fugitives might be treated in one of the ways set out in sub-section 14(b)." At para. 22 of the primary submission, the term "substantial grounds" was equated with "reasonable chance" or a "serious possibility". A more elaborate exposition in the supplementary submission invoked dicta in Tillmann's Butcheries v AMIEU (1979) 27 ALR 367, Palser v Grimling (1948) AC 291 and Angland v Payne (1944) NZLR 610. It came to the conclusion at para.1l1:- "The phrase "substantial grounds for believing" as contained in s.14 has not been judicially interpreted. However, on 1ts ordinary meaning 1t would suggest a preponderance of likelihood." The applicant submitted that in the context of s.14 "substantial" cannot mean "more than 50%". Reliance was placed on Fernandez v Government of Singapore [1971}) 2 All ER 691, a case referred to in the primary ° ery = j OMIT om ee: 51. submission and which dealt inter alia, with para. 4(1)(c) of the Fugitive Offenders Act 1967. House of Lords sitting on the case agreed, that That paragraph provides:- "4(1)A person shall not be returned under this Act to a designated Commonwealth country, or committed to or kept in custody for the purposes of such return, if it appears to the Secretary of State, to the court of committal or to the High Court or High Court of Justiciary on an application for habeas corpus (c) that he might, 1f£ returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions." Lord Diplock with whom the four other members of the the section required satisfaction on the balance probabilities and said at 697:- "Paragraph (c) of s.4(1) of the Act, unlike paras.(a) and (b), calls on the court to prophesy what will happen to the fugitive in the future 1f he is returned. The degree of confidence that the events specified in the paragraph will occur which the court should have in order to justify refusal to return the fugitive, is not determined by the mere use of the subjunctive mood of the auxiliary verb "may". It should, as a matter of commonsense and common humanity, depend on the gravity of the consequences contemplated by the section on the one hand of permitting, and on the other of refusing, the return of the fugitive if the court's expectation should be wrong. My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified negated the proposition of 52. either in one way or in the other, I do not think that the test of applicability of para. (c) 1s that the court Must be satisfied that 1t is more likely than not that the fugitive will be detained or restricted 1f he 1s returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. "A reasonable chance", "substantial grounds for thinking", "a serious possibility" ~ I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his- return which justifies the court in giving effect to the provisions of s.4(1)(c)." Section 4(1)(c) of the Fugitive Offenders Act 1967, unlike sub-s.14(1)(b) of the Australian Statute, does not import the words "substantial grounds". The key words there are "appear...that he might...". Nevertheless what constitute "Substantial grounds" for the purposes of s.14 will depend upon the circumstances including the nature of the prejudice considered. It is ultimately a normative rather than a purely quantitative question. The minimum requirement of a substantial ground is that it be non-trivial. I think it goes too far to say that the term always requires the discernment of a greater than even chance of unfair discrimination. Here the material does not disclose precisely what test was applied by the Attorney. The principal evidence before him as to prejudice based on race or nationality, was that of the 53. applicants in relation to the language of proceedings in the courts of Israel and anecdotal material from Messrs. White and McKnight together with a declaration sworn by Yonna Langford. Her very short statutory declaration annexed a letter to Mr Graeme Campbell in which she referred to various alleged deficiencies in the administration of justice in Israel. The substance of it 1s found in the -~ following paragraph:- "In respect to Arthur James Hempel and _ Laurence Etheredge it 1S my opinion as an <MIsraeli Legal Practitioner that if they are extradited to Israel they will be prejudiced at their trial by reason of their race, religion or nationality. I particularly emphasise the fact that:- (a) Israel does not have a jury system. (b) Non-Jews are treated worse in comparable cases than Jews." The Attorney had the choice of accepting or rejecting that declaration. Had he accepted it and its conclusion, 1t is difficult to see how he could not have been satisfied on the balance of probabilities that the applicants would be prejudiced in the relevant sense. H1s obvious rejection of the evidence, leaves little or no room for the possibility that 1t could have amounted in any lesser sense to "substantial grounds" for the requisite belief. ORT, wwe 54. The evidence of White concerned principally his own experience in connection with his apprehension by Israeli military forces while conveying passengers from Cyprus to Lebanon by chartered motor vessel. He and 8 passengers were taken into custody and his boat seized. There is nothing in the way of any useful inference applicable to the applicants' case which can be drawn from that experience. The declaration did, however, end with a general observation:- "It was very clear to me that as a non-Jewish person I simply had no legal rights whatsoever. I was certainly treated in that way. Whilst in prison in Israel, I observed, on a number of occasions, prisoners being brought into the prison with broken arms, teeth missing or other physical injuries. I now count myself lucky that I was not treated in the same way by the security forces. The people I witnessed having been injured in this way were obviously non-Jews. I could tell by their features and by their skin colour. I could also tell by the language they spoke. I am able to say this because prior to this incident occurring, I had spent several periods of time in Israel over a period of about 12 years and therefore I came to know the country quite well." Its generality leaves no room for any half-way house between acceptance and rejection. The experience of the Rev. McKnight 1n trying to get information from JIsraeli authorities about the position of Mordecai Vanunu, is, similarly, of little or no value in endeavouring to judge the likely treatment of the applicants in Israel. wage are cere sam euaiewer 55. Although a balance of probabilities test was advanced in the supplementary submission, there is no evidence that it was applied. The nature of the material relied upon to support the claim of prejudice was, 1n my opinion, such that 1f 1t could not persuade on the balance of probabilities, 1t could not persuade at all. Ground 5 1S 1n my view, not made out. Ground 6 - Liability to Surrender - The Onus of Proof The complaint made in ground 6 is that the Attorney's decision involved an error of law in that he made it on the basis that the applicants had the onus of negativing their liability to surrender. Reference was made to paras. 10 and 30(f£) of the primary submission. But aS appears from a reading of their text they go no further than to say that the onus rests upon the fugitive to adduce evidence of circumstances which will give rise to the prohibition under s.14. And that position is, for reasons I have previously outlined, correct in law. To say that is not to say that the Attorney may not in some cases consider it appropriate to inquire further into matters raised by a fugitive where they may have some prima facie merit. Nor is the Attorney thereby excused from taking into account _ 56. Matters relevant to the application of ss. 13 and 14 where they have come to his notice, whatever their source, But so far as the complaint in ground 6 goes, it 1s, for the reasons indicated, not made out. Ground 7 - Relevance of Time Spent in Custody Pending Extradition It 1s said that the Attorney in arriving at his decision failed to take into account a relevant factor, namely the length of time spent by the applicants in custody pending his determination. Counsel submitted that this was a general consideration relevant to the issue of oppression and not adverted to in the submission put to the Attorney. The fact that the applicants have been in custody since their committal on 1 August 1986 is a consequence of a restrictive provision for bail under the Act. The length of time that they have spent in custody since then flows from their apparent determination, which I do not in any way criticise, to exhaust all possible avenues of representation, review and appeal in relation to their pending extradition and proceedings leading up to it. 57. As to that I will make some general observations in conclusion. The length of time in custody might be relevant in some circumstances. In this case I consider 1t to have little or no bearing on the matters that the Attorney should weigh in the exercise of his discretion. It is appropriate in this context to reiterate in summary the principles governing judicial review for failure to take into account a relevant consideration as enunciated by Mason J. in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 66 ALR 299 at 308:- "(A) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he 1s bound to take into account in making that decision... (B) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors ... are not expressly stated, they must be determined by implication from the subject matter, scope and Purpose of the Act. Where the ground of review 1s that a relevant consideration has not been taken into account and the discretion 1s unconfined by the terms of the statute, the court will not find that the decision-maker 1s bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. (C) Not every consideration that a decision-maker 1s bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law... spears 58. (D) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the funct1ron of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within' those boundaries cannot be impugned... It follows that, 1n the absence of any statutory zndication of the weight to be given to various considerations, it 1s generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power... (E) The principles stated above apply to an administrative decision made by a Minister of the Crown." If 1t be wrong to say the time spent in custody has no bearing on the Attorney's decision, then in my view it has so little weight, that having regard to para.(c) above, the court would not be justified in setting aside the decision on the ground of failure to take it into account. Ground 8 - Failure by the Attorney to Make His Own Decision This ground 1s completely lacking in merit. It is in substance a complaint about the fact that the primary submission made provision in its margin for the Attorney to indicate his assent to or dissent from the various propositions there advanced. 59. The submission, as drawn, comprehensively addressed the issues raised under the statute but did not preclude the possibility of more wide ranging consideration. Indeed it expressly adverted to the Attorney's "overriding discretion" - para.30(e). The uncontradicted evidence of Mr Broome, the Attorney's principal private secretary, indicated that he first examined the primary submission and raised questions in relation to some aspects of it which were dealt with in the supplementary document prepared by Mr Woltring. Both submissions were discussed between Broome and the Attorney who considered their correctness and completeness in the light of the statute and the regulations. In my opinion there is nothing to suggest that the Attorney did not bring an independent consideration to the exercise of his statutory discretion. This ground fails. Ground 9(a) ~ Bias on the Part of the Attorney's Advisors This ground attacks the decision on the basis of bias on the part of officers advising the Attorney. The bias is said, by reason of the matters raised in ground 8, to have affected the Attorney's decision. The particulars given by the applicants identify the officers concerned as Ms. Stafford and Mr Boucher and 60. say they were biased by reason of their personal views about the religious and political activities of the applicants. This ground, like its predecessor, does not warrant lengthy discussion. Accepting that Stafford said what she 1s alleged to have said, there 1S no evidence of any relevant bias on her part. As to Boucher, there 1S no evidence that he played any part in the preparation of the submission to or otherwise advised the Attorney in relation to the surrender decision. Even 1f he had, the submission comes to the Attorney as a submission, not as the expression of views which he must accept. Assuming that the officers who prepared it~ were invincibly hostile to the applicants, I am inclined to think it would still be necessary to demonstrate some causal relation between that animadversion and the exercise of the Attorney's discretion. But it is not necessary to go that far in this case. There is no evidence of any relevant involvement by Boucher and the evidence in respect of Stafford does not support an allegation of bias. For these reasons also, the question of cross-examination of these officers does not arise as the ground 61. fails even 1f the evidence adduced by the applicants in relation to them 1s accepted. Ground 9({b) - Prejudgment of Guilt The second limb of the bias ground involves' an allegation that the Attorney had prejudged the guilt of the applicants by his decision to order the return of the vessel Orionia to "duly authorised representatives" of Orionia Ltd. On the evidence, the Attorney's advisor, Reaburn, adverted to the risk that the return of the vessel might be seen as a determination of the question of ownership. It was the substance of his advice, however, that the question of ownership was a matter for the Israeli courts. There was in existence a declaration of the District Court at Beersheba, given on 24 May 1985, that the owner of the vessel was Orionia Ltd. On 29 August 1985 the District Court at Tel Aviv-Jaffa issued an injunction restraining the applicants from going on to the vessel. Hempel in a submission to the Commonwealth Ombudsman made on 16 June 1986 contended in effect that the Attorney should have gone behind these decisions. In the case of the declaration of 24 May he should have considered the agreement between the rear en 62. parties on which 1t was said to be based. Had he done so, 1t was said, he would have discovered "that the shares of the company and possession of the vessel were ordered to be placed under Doctor Hempel's control." The Attorney also failed, 1t was said, to consider that the injunction was obtained ex parte by an Israeli solicitor who lacked authority to represent the company and that the order was made after the departure of the Orionia from Israel (Complaint to Ombudsman paras. 4-5). It was further contended in the submission to the Ombudsman, that the Diplomatic Note from the Embassy of Israel dated 31 January 1986 should not have been accepted by the Attorney in so far as it alleged that the applicants "stole" the vessel. A Management agreement relied upon to support this allegation was, according to Hempel, superseded by a later agreement of 19 April 1985 which was the foundation of what appears to have been the consent order made by the court at Beersheba on 24 May. In my opinion, the decision taken by the Attorney in relation to the surrender of the vessel is explicable on the basis of the information he had with respect to the judgments of the Israeli courts and practical considerations in relation to the continuing custody of the boat. ae = 63. Whether or not he was correct on the merits or in law does not bear upon the issue of bias raised in this qround. In my opinion there 18S nothing in the decision to surrender the boat or in its circumstances to indicate bias on the part of the Attorney which would vitiate the decision to surrender the applicants under s.18A. Ground 10 The applicants contended that the Extradition (Foreign States) Act 1966 does not apply in relation to the State of Israel since the Parliament of that country, in 1978, passed the Offences Committed Abroad (Amendment of Enactments) Law 5738-1978. Section 2 of that statute amended the Extradition Law 5714-1954 by the insertion of a new section 1A:- "An Israeli national shall not be extradited save for an offence committed before he became an Israeli national." The treaty between Israel and Australia prescribes in Article 1 an obligation to extradite subject to certain qualifications:- "Each Contracting Party agrees to extradite to the other Contracting Party, subject to the provisions of this Treaty, any person found in its territory who 1s accused 64. or has been' convicted, of an offence committed in the territory of the other Contracting Party or outside that territory in the circumstances referred to in paragraph 3 of Article III." One of the provisions qualifying the obligation under Article I is Article VIII:- "1. Either Contracting Party may refuse to extradite a national of that Party. 2. For the purposes of this Article, the expression "national", in relation to Australia, includes' an Australian protected person. 3. The nationality of a person shall be determined as at the time of the making of the request' for extradition." The applicants contended that by the 1978 alteration to its domestic law, Israel had withdrawn its support for a fundamental obligation in the treaty. It was not suggested that the treaty had thereby been unilaterally terminated. Even 1f the enactment or implementation of the new domestic law were to constitute or give rise to a breach of the treaty obligation, that of itself is not sufficient to terminate it. And before the innocent party is entitled to terminate, the breach must be a material one - Chile v Peru 2 United Nations Reports of International Arbitral Awards (1925) (Tacna - Arica Arbitration), Vienna Convention on Law of Treaties 1969 Article 60, Year Book of the International Law Commission (1966) II p.255. t% 65. What was put for the applicants was that Israel's conduct haS a consequence for the operation of the Extradition (Foreign States) Act 1966. That law, 1t 1S contended, 1s only valid in so far as it is a law with respect to external affairs within the meaning of s.51(xx1x) of the Constitution. By withdrawing its support from the fundamental obligation to extradite, Israel has, 1t 1s suqgested, extinguished the mutual reciprocal relationship by virtue of which the Act in its application to Israel can be said to be a law with respect to external affairs. If one party to a treaty repudiates it so that the treaty no longer reflects the existence of any obligation between the parties, then, it was said, "the external affair ceases to exist". That was so, 1t waS argued, notwithstanding' the persistence of the treaty obligations in international law. This argument was advanced as an extension of what might be called the "colourable treaty" doctrine which qualifies the scope of the external affairs power. This refers to the proposition that entry into a treaty or convention by the Australian Government as a mere device to 66. procure additional domestic legislative power for the Commonwealth will not give rise to or reflect the existence of an external affair for the purposes of s.51(xx1x) - R v Burgess; Ex parte Henry (1936) 55 CLR 608, 687 (Evatt and McTiernan JJ); Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 216 (Stephen J.), 231 (Mason J.), 260 (Brennan J.). The propounded extension of that doctrine would have it that a treaty entered into bona fide can become a sham, not reflecting the true relationship between the contracting parties, where one of them has withdrawn its support for a fundamental obligation under the treaty. In such a case it would no more reflect the existence of an external affair or subject matter of international concern than a treaty colourable at formation. The continuing force that international law gives to the obligations imposed by a treaty even after breach by one party of a material provision militates against this argument. Moreover, the subject matter of extradition is directly concerned with international relations. This characterisation is unaffected by the resolution of the once live controversy whether the extradition of fugitive criminals 1s an international duty or a matter of comity, bolstered by reciprocity or obligation derived from treaty. Proponents of the former view were many and 67. distinguished, from Grotius - The Law of War and Peace Book 2 Ch. 21 paras. III and IV, to Sir Edward Clarke - A Treatise on the Law of Extradition 1888 pp. 1-14. It is clear however, that the latter view has won the day - Shearer ~ Extradition in International Law at p.24; see Re Arton (1896) 1 OB 108 where Lord Russell spoke of mutual assistance between States in this area as "part of the comity of nations"; Factor v Laubenheimer 290 U.S, 274, 287 (1933); Barton v The Commonwealth (1974) 131 CLR 477, 494 (Mason J.). The nature of extradition 1s such that a law with respect to it 1s likely to be a law with respect to external affairs whether or not there 1S in existence any supporting treaty. So much 1s, I think, recognised by sub-s. 10(4) of the Act which empowers the making of regulations applying the Act to a foreign state with reciprocal powers under its domestic law. Whether reciprocity 1S a condition of the' constitutional characterisation in particular cases may be debatable. Constitutional considerations apart, the threshold proposition upon which this ground relies is that the enactment in Israeli domestic law of an absolute prohibition on the extradition of nationals represents a withdrawal of support for the general obligation to extradite under Article I of the Treaty. a eee reer Re renee ae 68. That proposition faces the substantial difficulty that Article VIII confers what 1s prima facie an unfettered discretion on the requested state to decline to surrender 1ts own nationals. Insofar as the proposition relies upon a need for reciprocity of obligation it is further weakened by the history of the relevant state practice. That history is helpfully and succinctly explained by Professor Shearer 1n Extradition and Asylum included as Chapter 7 of International Law 1n Australia 2nd Editior (1984) Ryan ed. at p.195:- "There is no rule of extradition law that the citizens of a requested State may be exempt from surrender, but such a provision appears in most of the treaties to which Australia is a party. The reason why nationality may be relevant to extradition is that in countries of the civil law tradition, criminal jurisdiction 1s seen primarily in personal terms,and the State owes a duty to its citizens not to surrender them to a foreign power. In the common law tradition, by contrast, criminal jurisdiction 1s regarded as essentially territorial, and its historical roots lie un the origins of the jury system and the concept of venue. When negotiating an extradition treaty with a country of the civil law tradition, therefore, the United Kingdom was faced with a difficult problem. The other party would insist on an absolute prohibition clause, but was able to give an assurance that one of its subjects, committing an extradition crime in the United Kingdom, would be prosecuted and punished at home, for the same crime. The United Kingdom could give no such assurance, because the range of offences which at common law could be committed extraterritorially were very few: murder, manslaughter, piracy, perjury and bigamy. The result was most often a compromise whereby the extradition of citizens was made discretionary, but in some cases the absolute exception was agreed. The permissive formula 1s_in practice unreciprocal as it has always been understood by both parties that one would in fact never surrender its citizens, while the other nearly always would, in order to avoid a failure of ustice." (emphasis added) - see also Shearer - Extradition in International Law (1971 Manchester University Press) pp. 94-126 69. La Forest in Extradition to and From Canada observes at 78:- "The discretionary power to refuse to surrender can have much the same effect as an absolute prohibition, for the decision In many countries will be based upon reciprocity and past practice of the other state, and unless there is absolute certainty of reciprocity by the requesting state in the future, the requested state 1s unlikely to exercise 1ts discretion to surrender." Lack of reciprocity in surrender of nationals 1s of respectable antiquity. Biron and Chalmers - The Law and Practice of Extradition (Stephens & Sons 1903) refers at p.13 to the fact that many treaties "still contain the provision that the contracting parties shall not be required to surrender their own subjects" and says of such provisions:- ",..it may be observed that the most liberal governments of the world - those of this country and the United States of America - are now sometimes willing to surrender their own subjects, even in some cases where they do not meet with reciprocal treatment: ..." In Valentine v US ex rel Neidecker (1936) 299 U.S. 1, the Supreme Court held that a treaty which merely denied an obligation to surrender nationals did not, for the purposes of the domestic law of the United States, thereby empower the Executive Government to effect surrender. Between 1936 and 1961 the United States concluded 6 Major extradition treaties of which two used the simple "not Sl al a ial a lee 70. bound" formula which had the effect in the light of Neidecker that the United States could not surrender any of its nationals under them. - Shearer - Extradition in International Law (supra) p.114. The amendments to the Israeli extradition law themselves followed upon a decision of the Supreme Court of Israel in Pesachowitz v State of Israel 31(2) P.D. 449 (1977) in which absence of reciprocity in the extradition of nationals was invoked without success 1n connection with a request from Switzerland. An Israeli national was charged in Switzerland with forgery and fraud. Article VI(1)(a) of the European Convention on Extradition which governed extradition between Israel and Switzerland provided that each State had "the right to refuse extradition of its nationals". Swiss domestic law evidently forbade extradition of Swiss nationals. The Supreme Court of Israel held that although there was no formal reciprocity there was substantive reciprocity as Swiss law, as in civil law countries generally, allowed the prosecution of a national in Switzerland for offences committed abroad. The objection to extradition in that case failed for that reason. Following this decision the 1978 amendment was enacted in the terms set out above. As to the background to that ae, Re na: @ ~ _ a et < A 71. amendment generally, see Gouldman - Extradition from Israel in Transnational Aspects of Criminal Procedure 1983 Michigan Year Book of International Legal Studies pp.196 to 197. It is also relevant that by the same amendment that introduced s.1A into the Extradition Law 5714-1954, there was enacted a new section 4A of the Penal Law (Offences Committed Abroad) (Consolidated Version) 5733-1973. By that new section the courts of Israel were given jurisdiction to try under Israeli law an Israeli national or resident who committed abroad an act which, had it been committed in Israel, would be one of the offences included in the schedule to the Extradition Law 5714-1954. An equivalence between local punishment and extradition was assumed more than 300 years ago by Hugo Grotius when he wrote:- "Since as a matter of fact states are not accustomed to permit other states to cross their borders with an armed force for the purpose of exacting punishment, and since such a course is inexpedient, 1t follows that the state in which he who has been found guilty dwells ought to do one of two things. When appealed to 1t should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal. This latter course is rendition, a procedure most frequently mentioned in historical narratives." - The Law of War and Peace Book 2 Ch. 21 para. IV (p.527) oo me ne Tee98- eee an rs 72. In summary, therefore, the applicants' primary contention that by its law of 1978 Israel withdrew support from the general obligation to extradite faces three major obstacles:- 1. The lanquage of Article VIII of the Treaty. 2. The absence of general formal reciprocity in State practice as between common law and civil law countries with respect to such provisions. 3. Specific provisions of Israeli domestic law allowing for prosecution within Israel of nationals who have committed extraditable offences abroad. In the light of these matters the applicants' primary proposition cannot be sustained and for that reason the ground fails at the threshold. Ground 11 - The Fugitives' Guilt As An Irrelevant Consideration The complaint made in this ground, which was added rather late in the day, is that the Attorney in making his decision to surrender took into account the guilt of the applicants. This, it was said, was an irrelevant consideration. No substantial submissions were made on this ground which seemed rather awkwardly linked with the bias ground 9(b). Woltring''s primary submission to the Attorney referred at the end of para.30 to the assertion by the applicants that those claiming ownership of the Orionia were relying upon fraudulent documents. It then went on:- 73. "This submission goes to guilt or innocence and purports to cast doubt on the case submitted in support of the request for extradition. I consider 1t would not be appropriate for you to consider this submission. Guilt Or innocence 1S a matter for the Israel2 Courts 1f your (sic) order surrender." The Attorney endorsed his agreement with the latter view in the margin of the submission paper. There 1s no evidence that he formed a view as to the guilt of the applicants or if he did, that he acted upon ut. I do not wish by the preceding observation to be taken as endorsing any view that the Attorney may never take into account the guilt or innocence of a fugitive. To extend an earlier example the requesting state might seek the extradition of an Australian national alleged to have committed an offence in that State. If the Australian national is able to demonstrate beyond doubt that he has never been in that State, I can see no reason why that evidence of innocence could not be considered by the Attorney. Plainly the Attorney cannot be obliged to conduct a trial of the issue upon which the requesting State seeks extradition, but to say that is not to limit his discretion. So far as ground 11 1s considered however, and for the reasons I have outlined, it must fail. aa 74. CONCLUSION Twenty-one months have elapsed since the applicants arrived in this country. The last thirteen of those, they have spent in prison unconvicted of any crime. Much of that time has been occupied with their own invocation of judicial review and appeal procedures available to them under the laws of Australia. To say that, 1S not to criticise the applicants, for the judictal review laws are enacted for the protection and use of individuals against unfair or unlawful administrative decisions. As is apparent from this case however, the price of seeking that protection can be unacceptably high. Where a foreign state requisitions the extradition of a fugitive, Australia's response depends upon primary decision- making in three principal parts:- 1. The Attorney's decision whether to issue a notice under s.15 of the Extradition (Foreign States) Act authorising the issue of a warrant for the arrest of the fugitive. 2. The Magistrate's decision whether or not to commit the fugitive to await the warrant of the Attorney for his surrender to the foreign state. (s.16) 3. The Attorney's decision whether or not to order the surrender of the fugitive to the foreign state. (s.18A) 75. The division of decision-making powers in our extradition law has 1ts origins 1n the statute (6 and 7 Vict c.75) by which the United Kingdom implemented the Webster-Ashburton Treaty with the United States in 1842. It 18 central to the scheme of the Extradition Act 1870 (UK) upon which the Australian statute 1s modelled. In relation to the judicial components of that process, 1t has been said, "constitutionally impartial organs are better fitted to decide questions affecting individual liberties than organs more closely geared to government policy" - Schlieske v Federal Republic of Germany (1987) 71 ALR 215, 222 (Full Court) citing Shearer - Extradition in International Law (1971) p. 198. Nevertheless it is not surprising that the union of a modern all~embracing judicial review jurisdiction with a divided primary decision-making process dating back to 1842, should produce a rather ungainly result. The difficulties are accentuated by the overlap of the matters to be considered by the Magistrate and the Attorney in the discharge of their respective functions under the Act. For the Attorney, in deciding whether to surrender a fugitive, may be asked either on the basis of fresh evidence or otherwise to re-canvass matters placed before the magistrate, as well as those reserved to him by statute or otherwise falling within his general discretion. "OR ST BE er 76. Under the present system an applicant could in separate proceedings seek judicial review of the decision to issue a notice under s.15, the decision to commit under s.16 and the decision to surrender under s.18A. Conceivably the political offence issue could be raised tn all three applications. Some of the issues which arise in this context were considered by the Administrative Review Council ina letter to the Attorney-General responding to proposals to exclude decisions taken under the Extradition (Foreign States) Act 1966 from the application of the Administrative Decisions (Judicial Review) Act. (see Letter 4 at p.90 of the Tenth Annual Report (1985-86) of the Administrative Review Council). Judges must necessarily tread carefully in the area of law reform, but this case discloses deficiencies in the system of decision-making and review that could affect public confidence in the law and in the administration of justice. In the light of those deficiencies some limited comment 1S warranted. It 1s the evident policy of the law as it stands to protect two important interests. One is the interest of the individual in his liberty. The other is the interest of Australia 77. in the prompt discharge of its obligations under treaties of extradition. (cf. Second Reading Speech - Extradition - Commonwealth Countries Bill - PV (Hansard) Vol. H of R 53 - 14.10.86. - p.1814) Neither interest has been well served in this case to date and as yet the appellate procedure 1s not exhausted. The problem is the familiar one of the law's delay made more acute in this case by the prolonged imprisonment of the applicants. It arises, in large part, out of divided review of divided primary decision-making. In my respectful opinion, 1t is a matter which deserves legislative attention. There 1s no doubt a variety of remedial changes that could be devised. One such would involve unification of the review process. Without diminishing any of the protection presently available to the individual who 1s the subject of extradition proceedings, it should be possible to reduce the review facility to a "one stop shop" process available only after the surrender decision has been taken, but covering all presently reviewable aspects of extradition decision-making. we pe 78. With such a procedure the alleged fugitive could have ample opportunity to make appropriate representations on all issues at all levels of the primary decision-making sequence. If there is some possibility of a successful outcome before one or other of the primary decision-makers, that more expeditious and considerably less expensive avenue can _ be exhausted before resort to the essentially supervisory function of judicial review. As I said earlier however, the area of law reform is one in which judges should tread with caution. There may well be reasons immediately apparent to others which would render this suggestion impracticable. For myself there 1s nothing more that I can say about these unhappy proceedings, except that the application is dismissed. I certify that this and the preceding seventy-seven (77) pages are a true copy of the Reasons for Judgment of His Honour Justice French. Associate: Doren. Usk pates QO OckMoss (487, Fy re re RE: aR 79. Counsel for the Applicants: Mr T. Robertson with Mr. P. Johnston Solicitors for the Applicants: Lohrmann Tindal & Guthrie Counsel for the Respondent: Mr M. Lee OC with Mr K. Bates Solicitors for the Respondent: Director of Public Prosecutions Dates of Hearing: 24, 25, 26 August 1987 Date of Judgment: 20 October 1987