an Limited bistribution ed JUDGMENT No. 148/82. CATCHWORODS EXTRADITION - extradition to Israel - order for surrender - alleged breach of treaty obligations by Israel - whether Act consequently beyond power - Attorney-General's discretion - prejudice "by reason of race or nationality" - construction of "substantial or, as the case may be, reasonable grounds" in treaty - whether reasonable apprehension of bias. Extradition (Foreign States) Act 1966 ss.10, 14, 17(6), 18A. Extradition (State of Israel) Regulations ARTHUR JAMES HEMPEL & ANOR. V. THE ATTORNEY-GENERAL WAG 123 of 1987 CORAM: Spender, Pincus & Hartigan JJ. BRISBANE 27 NOVEMBER 1987 IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALTAN DTSTRICT REGTSTRY ) WA G123 of 1987 GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Appellants AND: THE ATTORNEY-GENERAL Respondent MINUTES OF ORDER JUDGES MAKING ORDER: SPENDER, PINCUS & HARTIGAN JJ. DATE OF ORDER: 27 NOVEMBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's costs of and incidental to the appeal to be taxed. i Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) WA G123 of 1987 GENERAL DIVISION ) ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: ARTHUR JAMES HEMPEL and LAURENCE ETHEREDGE Appellants AND: THE ATTORNEY-GENERAL Respondent CORAM: SPENDER, PINCUS & HARTIGAN JJ. DATE: 27 NOVEMBER 1987 BRISBANE REASONS FOR JUDGMENT THE COURT: This is an appeal froma judgment of French J. dismissing an application made under the Administrative Decisions (Judicial Review) Act 1977, in which application the appellants challenged the validity of extradition warrants signed by the respondent on 19 June 1987. On 22 January 1986, the appellants arrived in Australia on the vessel "Orionia", which they had sailed here from Israel. That state requested their extradition on a charge of stealing the vessel "Orionia" and, having been arrested under the Extradition (Foreign States) Act 1966, they were, on 1 August 1986, committed to prison under 3.17(6) of that Act. They applied to this Court for review of the Magistrate's decision and that application was dismissed on 10 December 1986: Hempel v. Moore (1986) 70 A.L.R. 601; an appeal to the Full Court was dismissed on 22 May 1987. It does not appear to be necessary to discuss the proceedings to that point, or the statutory basis of them, further. The present appeal concerns steps taken after the Magistrate's order, the immediately relevant provision being s.18A(1) of the Act, which reads in part as follows: "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 (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 - (i) 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 in accordance with the appropriate form prescribed for the purposes of this sub-section, order that a person specified in the warrunl take the fugitive into custody and convey the fugitive toa 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." There is no issue as to satisfaction of the conditions set out in s.18A(1) before the words "the Attorney-General may". Counsel for the appellants took four points. 1. It was contended that, in the circumstances which have occurred, the Act has no valid application to extradition from this country to Israel. It was contended on behalf of the appellants that, for reasons discussed below, the Commonwealth Parliament's external affairs power did not, at relevant times, extend to providing for such extradition and does not do so now. That is so, counsel contended, because the Commonwealth, in bad faith, failed to repudiate its obligations under the relevant extradition treaty. The treaty in question is the schedule to the Extradition (State of Israel) Requlations made under the Act. Under Article I: "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 is accused, 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." Under Article VIII: "l. 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." It was said for the appellants that on its proper construction Article VIII is breached if either contracting party enacts dome.tic legislation prohibiting the extradition of nationals, either absolutely or subject tuo conditions. The argument was that the expression "may refuse" requires that each contracting party preserve a discretion to extradite nationals in all circumstances. Article VIII, the appellants contended, was breached by the State of Israel in passing a law in 1978 which forbad extradition of Israeli nationals subject to an exception. The law relied on, passed three years after the date of the treaty, is s.1A of the Offences Committed Abroad (Amendment of Enactments) Law of the State of Israel, reading as follows: "An Israeli national shall not be extradited save for an offence committed before he became an Israeli national." The argument was that the enactment of that law constituted a renunciation of the treaty, entitling Australia to repudiate its own obligations under it. The failure to repudiate such obligations, it was argued, was an omission in bad faith. Counsel did not suggest that the existence of bad faith was demonstrated by any special circumstances attending the failure; the argument was that any such failure must be in bad faith. The contentions so far mentioned were dealt with and rejected by the learned primary judge in away with «hich ve agrec, and it is strictly unnecessary to say mor: Tn view of the earnestness with which the argumes® . 15 pre. 4, however, if should be added that there would seem to be no substance in the suggestion that the Australian government must be taken to act in bad faith if it fails to repudiate treaty obligations whenever an entitlement to do so arises under international law. Even if - a proposition we «do not accept - the State of Tsracl had, as contended, acted 1n breach of its treaty obligations in passing the legislation we have mentioned, it is clear that the Commonwealth's declining itself to repudiate the treaty cannot, ipso facto, be taken to be in bad faith. The next step in the argument, namely that failure in bad faith to repudiate treaty obligations affects the content of the Commonwealth's power to legislate with respect to external affairs, has its own difficulties, but we think it unnecessary to analyse them. It is enough to say that the authorities relied on were all concerned with treaties founding legislation having a purely domestic operation. 2. The second ground relied on was based upon s.14(b) of the Act, reading as follows: "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 - (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." Counsel contended that the respondent failed to give to this provision such consideration as, on its proper construction, it requires. The complaint was that the respondent failed to recognise that the circumstance that the proposed criminal proceedings in Israel would be conducted in Hebrew raised a matter for consideration under the provision. It was added, in reply, that the appellants (English speakers) would not have the benefit of translations from Hebrew, or so it was alleged. The learned primary judge held that no question arose of either appellant being "prejudiced at his trial ... by reason of his race, religion, nationality or political opinions", that an inability to speak Hebrew is not consequential upon any of those four matters and, in particular, did not arise by reason of race or of nationality. His Honour expressed the view that: "Race is an accident of birth. The language spoken by a person is ordinarily regarded as a function of environment and education." It is not necessary for the purposes of this case to determine whether the ability or inability to use a particular language could ever be regarded as arising by reason of race or nationality. Conceding that it is possible that in other contexts that could be so, we are convinced that in this statute it 15 not so. Burchett J. said in Hempel v. Moore (supra) at p.609:- "It would be fundamentally inconsistent with the Extradition Act and the treaty, and could not have been contemplated by the legislature when enacting 3.14, 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." When the decision of Burchett J. was taken on appeal, the court made no reference to that view of Burchett J., which was apparently not challenged. We agree with the learned primary judge that it would be - "fundamentally at odds with the purpose of the Act to ban extradition to another country solely because of the language spoken in court proceedings therein." We also agree with the course the learned primary judge took in reserving his opinion on the question whether the language of the courts of the requesting State might be relevant in the exercise of the respondent's general discretion to decline Surrender. Betng satisfied that the learned primary judge correctly construed the expression "by reason of race ... or nationality", as not including a mere language difference, we reject this ground of appeal. 3. As was contended before the learned primary judge, it was put that the respondent erred in law in applying 5.14, the relevant portion of which is quoted above. The point depends upon a variance of language. Article V(1)(d) of the treaty reads as follows: "i. A person shall not be extradited where - (d) the appropriate authority of the requested State has substantial or, as the case may he, reasonable grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions or that the person might, if surrendered, be prejudiced at his trial, or punished, detained or resticted in his personal liberty, by reason of his. race, religion, nationality or political opinions." It will be noted that there is reference to "substantial or, as the case may be, reasonable grounds...", for relief, in contrast to merely "substantial grounds" in 3.14. It was said for the appellants that the respondent was obliged to consider both questions - i.e. whether there were substantial grounds and whether there were reasonable grounds. The foundation of the contention was that s.10 of the Act, the terms of which it is unnecessary to set out in full, permits the making of regulations providing for the application of the Act in relation to a particular State "subject to such limitations, conditions, exceptions or qualifications as are necessary or desirable to give effect to" an extradition treaty with that State - see s.10(1)(a). Further, s.10(2) permits the expression of the relevant limitations, conditions, exceptions or qualifications "in the form that this Act applies in relation to that state subject to the extradition treaty ..." That is the form used here; the relevant regulations, referred to above, make the Act apply to the State of Israel subject to, inter alia, the treaty. The learned primary judge took the view that' the reference to "substantial or, as the case may be, reasonable grounds" in Article V(1)(d) was simply explained. His Honour said that the provisions of the Tsraeli extradition law corresponding to s.14 of our Act speak of "reasonable grounds" and that he understuod the relevant language of the treaty as "embracing the differing formulae of existing domestic law in each country ..." That seems, with respect, plainly to be right; in no other way can effect sensibly be given to the words "as the case may be" and this ground of appeal is also rejected. , 10. 4. Lastly, it was contended on behalf of the appellants that there was reasonable apprehension of bias on the part of the respondent. The point is quite a short one. It appears from the papers that it is, and has always been, common ground that the vessel in question, the ""Orionia", is not owned by the appellants or either of them, bul by a certain company. The respondent decided, pursuant to statutory power, to order the vessel's return to the "duly authorised representatives" of that company. It was not said that the order was beyond power, but counsel contended that the making of it created a reasonable apprehension of bias, because one of the issues in the proposed criminal proceedings might be whether the appellants or either of them had such possessory rights in the vessel as to make it lawful to sail it away from Israel and to this country. In our opinion, there is nothing in the point. The respondent's order with respect to the disposition of the vessel could not possibly be regarded as a pre-judgment of the question of guilt or innocence. Pending the (quite lengthy) resolution = of the questions relating to extradition, 1b was mecessary for the respondent to deal with the pructical question of custody of the vessel, and he did so. This last ground of appeal also fails, and the "appeal must therefore be dismissed with costs. Counsel for the Appellants: Counsel for the Respondent: Date of Hearing: Place: I ceruty that this and tre jo preceding pages are atrue copy c: «1. usuns for judgment herein of the "ey SD. +7] { fg 7 'Associate Dated Mr. T. Robertson with Mr. P. Johnston instructed by Lohrmann Tindal & Guthrie Mr. M.C. Lee Q.C. with Mr. K.P. Bates, instructed by Director of Public Prosecutions. 27 November 1987 Brisbane