Oates v Attorney-General for the Commonwealth of Australia [2001] FCA 84

FEDERAL COURT OF AUSTRALIA

Oates v Attorney-General for the Commonwealth of Australia [2001] FCA 84

EXTRADITION – request by Australia for surrender of a person in Poland to answer criminal charges in Australia – relief sought under s 39B of Judiciary Act 1903 (Cth) in respect of request - whether making of request an exercise of executive power of Commonwealth of a statutory power conferred by s 40 of Extradition Act 1988 (Cth) – whether request required to "conform" to Poland (Extradition: Commonwealth of Australia and New Zealand) Treaty – whether Treaty contained any stipulations with which request for surrender could comply – effect of legal elements of the Australian offences charged lying outside scope of the crimes and offences enumerated in the Treaty understood in accordance with Australian law - effect of delay in making present application Extradition Act 1988 (Cth) subs 11(3), s 40 Poland (Extradition: Commonwealth of Australia and New Zealand) Treaty Barton v Commonwealth of Australia (1974) 131 CLR 477, applied Johnson v Williams (Attorney-General) [2000] FCA 3 (FC), distinguished Levinge v Director of Custodial Services (1987) 9 NSWLR 546 (CA), distinguished Bollag v Attorney-General of the Commonwealth (1997) 79 FCR 198, referred to R v Horseferry Road Magistrates' Court; Ex parte Bennett [1994] 1 AC 42 (HL), distinguished Bou-Simon v Attorney General [2000] FCA 24 (FC), applied Zoeller v Federal Republic of Germany (1989) 23 FCR 282 (FC), discussed Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 (FC), distinguished Russell v United States 789 F2d. 801 (9th Cir. 1986), referred to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, referred to Winkler v Director of Public Prosecutions (1990) 25 FCR 79 (FC), referred to Brown v West (1990) 169 CLR 195, referred to R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, referred to Newcrest Mining (WA) Ltd v The Commonwealth of Australia (1997) 190 CLR 513, referred to Bennett v Government of the United Kingdom [2000] FCA 916, cited In re Bellencontre [1891] 2 QB 122, cited Re Arton (No 2) [1896] 1 QB 509, cited R v Dix (1902) 18 TLR 231, cited R v Governor of Pentonville Prison; Ex parte Ecke [1974] Crim LR 102, cited R v Governor of Pentonville Prison; Ex parte Budlong [1980] 1 WLR 1110, cited Riley v The Commonwealth (1985) 159 CLR 1, cited James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141, cited Government of Belgium v Postlethwaite [1988] AC 924, cited Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161, cited Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FC), referred to Clyne v Evans (1984) 2 FCR 515, cited ANTONY GORDON OATES v ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA & ANOR N 1329 OF 2000 LINDGREN J 16 FEBRUARY 2001 SYDNEY