Barton v Commonwealth [1974] HCA 20

High Court of Australia Barwick C.J. McTiernan, Menzies, Mason and Jacobs JJ. Barton v Commonwealth [1974] HCA 20

ORDER Questions asked by the stated case answered as follows:

1. Is the Australian Government entitled under the provisions of Pt IV of the Extradition (Foreign States) Act 1966-1973 to request the extradition of an Australian citizen to Australia from a foreign State as to which the requirements of ss. 9 and 10 of the said Act are not satisfied?

No.

2. If not, is the Australian Government entitled to request the extradition of an Australian citizen from a foreign State to Australia in circumstances in which the provisions of the Extradition (Foreign States) Act 1966-1973 do not apply?

Yes.

3. Does the executive power of the Commonwealth of Australia enable the Australian Government to make a request to the Government of Brazil in the terms set out in par. 6 of this case?

Yes.

Cur. adv vult.

The following written judgments were delivered:—

May 20 Barwick C.J.

The detail of the circumstances out of which this action arose will be found in other reasons for judgment to be published in this matter. The essential facts are that the plaintiff, as it happens, of Australian citizenship, has been charged in the State of New South Wales with offences which fall within the description of extraditable offences in the Extradition (Foreign States) Act, 1966-1973 Pt IV, s. 20 (the Act). The plaintiff is presently in the Federative Republic of Brazil (Brazil), with which country Australia has no extradition treaty. Brazil has a law relating to extradition which limits the occasions when a fugitive may lawfully be surrendered in response to a request by a state with which Brazil has an extradition treaty or, in the absence of it, with which reciprocity of treatment exists. By its law, Brazilian authorities in urgent cases may arrest and detain a person to be extradited in preventative imprisonment pending the receipt of a formal petition for his surrender.