case_text: One finds in the joint judgment of Lindgren and Bennett JJ, with whom in this regard I concurred, in Repatriation Commission v Warren (2008) 101 ALD 222 at 238, para 78, a very helpful summary of principles of arising from that case and earlier authority in respect of the obligations which attend the exercise by the Tribunal of its jurisdiction in circumstances where the parties have taken, or at least promoted, a particular way in which the issues ought to be identified or determined. The following principles, which we take to be established, must be understood against the background that the tribunal under consideration, like the Tribunal here, is required to "review" a primary decision, is given all the powers and discretions that were conferred on the original decision-maker, is not bound by the rules of evidence, is required to proceed with little formality and technicality, and is, of course, bound to apply the provisions of the relevant statute, even if there is no challenge by the parties: The general rule that a litigant is bound by, and accordingly is entitled to act on, admissions and concessions does not automatically apply, although cases concerned with the exercise of judicial power may be of assistance ( Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 194 per Bowen CJ). A party to the proceeding is not necessarily precluded from arguing on "appeal" matters that were conceded before the tribunal. Whether the party is so precluded depends on the nature of the matter conceded, its conduct of its case, whether the concession represented an agreement by the parties as to the facts to be decided and other relevant circumstances ( Kuswardana at 195 per Bowen CJ and at 199 per Fox J). Where a concession is made, there must be some difficulty in finding an "error of law" when the contrary of the concession is raised for the first time in this Court ( Federal Commissioner of Taxation v Raptis [1989] FCA 381 ; (1989) 20 ATR 1262 at 1267 per Gummow J). A tribunal does not err in law in failing to regard as material a fact which counsel failed in submissions to contend was material ( Federal Commissioner of Taxation v Perkins (1993) 26 ATR 8 at 10 per Davies J). There is a difference between factual matters not canvassed before the tribunal and a new issue relating to the validity of a regulation ( Tefonu Pty Ltd v Insurance and Superannuation Commissioner [1993] FCA 412 ; (1993) 44 FCR 361 at 367 per Beazley J). Even though the parties may be ' able, in practical terms, to narrow the issues by concession ... even a concession does not permit the [t]ribunal to avoid its duty as an administrative decision-maker to make the correct or preferable decision ... on all relevant aspects of the matter before it ' ( Peacock v Repatriation Commission (2007) 161 FCR 256 at [23]); A concession ' does, however, permit the decision-maker to reach the correct or preferable decision by reference to the concession as well as to its findings on disputed questions ' ( Peacock at [23]; and see Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at 337 338). The Court will more readily permit a matter to be raised for the first time in this Court on an appeal from a tribunal where: (a) the matter is a pure question of law, such as a question as to the validity of a regulation ( Kuswardana at 195; Tefonu at 367) or a question as to whether the tribunal had applied the correct standard of proof on the true construction and application of legislation ( Ferriday at 527 528 per Lee J); (b) the matter goes to a misapprehension that was shared by the parties before the tribunal and therefore by the tribunal itself ( Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150 ; (1994) 50 FCR 405 at 418-419 per Wilcox J) such as a shared misapprehension as to the applicable law (cf Thomas at 120 per Beazley J); or (c) the matter goes to a condition precedent to the availability of a power, the exercise of which will have a serious impact on the individual ( Kuswardana ) . 25 Of particular interest in the context of this case, having regard to the submissions that came to be made on behalf of Mr Todd, is the question of whether, though the parties did narrow the issues by concession, the Tribunal was nonetheless obliged in the discharge of its duty to make the correct or preferable decision in respect of the review application, to look beyond the issues that were identified for it. 26 The argument in that regard was developed, on behalf of Mr Todd, by reference to a report which Dr Stephenson gave. Dr Stephenson's report, which formed the basis of the submission, is one dated 22 June 1998. It must be said that there is some reference to the fact of this report in the statements of facts and contentions that were exchanged before the hearing in the Tribunal. It must also be said though that nothing was made of the opinions expressed in Dr Stephenson's report of 22 June 1998, even though, strictly speaking, it was a report before the Tribunal. 27 In the report of 22 June 1998, Dr Stephenson rehearses a number of events as related to her by Mr Todd that occurred in the course of his regular naval service. Of this and other events related by Mr Todd, Dr Stephenson stated: As to how much of this is due to his naval service, it is very hard to assess. Certainly, his perception is that he changed appreciably and from the time he went into the navy, compared with before, when he coped with a number of very efficient work situations without becoming unduly stressed. On the other hand, there have been other factors, at least in the last decade, that have preyed on his nerves. 28 She continued in the final paragraph of her report: It would appear that despite Mr Todd's self-perception of being entirely stable prior to his naval service, that he probably is susceptible to stress; and from his account of his attitude to work at his navy days, probably a bit perfectionistic and hard on himself.


case_outcome: applied

case_text: The principles governing the exercise of the Court's power summarily to dismiss a claim on the ground that it discloses no reasonable cause of action, the principles which govern pleadings in this Court and the relevant authorities are conveniently summarised by Weinberg J in McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 ; (1999) 165 ALR 409 at 415-421. It is not necessary to restate, at length, his Honour's exposition of the relevant rules and the statements of principle which emerge from the cases to which he refers. It is sufficient, for present purposes, to note that: • The power to dismiss a claim because it discloses no reasonable cause of action will not lightly be exercised: see Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130; Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603. • The purpose of pleadings is to define the issues with sufficient clarity such that respondents understand, and have the opportunity to meet, the case made against them: see Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591 at 44, 151ff. • A statement of claim must plead all the material facts necessary for the purpose of formulating a complete cause of action. If it does not it is liable to be struck out: Mitanis ; Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713. • It is not sufficient for the pleader to state conclusions drawn from unstated facts: see Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109 at 114-5. • There will be cases in which the power to strike out pleadings will not be exercised notwithstanding a failure to plead all material facts. Such restraint will be appropriate where the deficiency causes no confusion and does not raise issues of substantive principle ( HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822 at [59] ), and where deficiencies can be overcome by ordering the provision of particulars or the furnishing of affidavits ( State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691 at 42,828-9). • Not all conclusionary pleadings will be struck-out as being deficient: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413 at 417. Whether or not such a pleading should be struck out will depend on whether or not the facts are pleaded at too great a level of generality: see Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557.


case_outcome: cited

case_title: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_title: Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598


case_title: Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 41-591


case_title: Bruce v Odhams Press Ltd [1936] 1 KB 697


case_title: Trade Practices Commission v David Jones (Australia) Pty Ltd [1985] FCA 228 ; (1985) 7 FCR 109


case_title: HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822


case_title: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41-691


case_title: Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413


case_title: Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557


case_outcome: referred to

case_text: More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants were obliged to plead adequately the case alleged by them " on their own behalf and on behalf of all members of the represented class" (Emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed."


case_title: Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053


case_text: More recent authority has restated and applied these principles: see, for example, Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14] - [17] ; Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 ; [2005] ATPR 42-053 at 42,669-42,670. In the context of representative proceedings Sackville J has emphasised that applicants were obliged to plead adequately the case alleged by them " on their own behalf and on behalf of all members of the represented class" (Emphasis in original): see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 510. His Honour referred with approval to the earlier observation of Beaumont J in Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251 at 41,370 which he paraphrased as follows: "it is axiomatic that a respondent in a representative proceeding, like the respondent in any proceedings, is entitled to the benefit of a properly pleaded case, so that a proper defence can be filed." 15 In my view a person reading the pleaded definition could not reasonably be expected to determine whether he or she had purchased items which were "rubber products" as defined in paragraph 4 of the statement of claim. The statement of claim fails sufficiently to describe or otherwise identify the group members to whom the proceeding relates. For this reason alone the statement of claim should be struck out: see Philip Morris (Australia) Ltd v Nixon [2000] FCA 229 ; (2000) 170 ALR 487 at 514. 16 There are, however, additional and related difficulties occasioned by the failure of the applicant adequately to define "rubber products" which affect the efficacy of other parts of the statement of claim. The applicant pleads (in paragraph 37) that Bayer Australia and Chemtura Australia were able to and did influence the price of rubber products in Australia. In paragraph 38 it is claimed that the respondents overcharged for rubber products. As a result it is alleged (in paragraph 40) that the applicant and group members suffered loss and damage as a result of having to pay more for rubber products that they would have been required to do had the respondents contravening conduct not occurred. In the absence of a clear definition of group members and a clear understanding of what is comprehended by the term "rubber products" these paragraphs are embarrassing. The respondents cannot fairly be expected to plead to them. The same problem arises in respect to paragraph 12 in which it is said that there is a national market in Australia for the supply of rubber products. 17 Before passing to other objections to the statement of claim it should be noted that the applicant has not pleaded sufficient material facts to establish that it is a member of the group which it seeks to represent.


case_title: Cameron v Qantas Airways Ltd [1993] FCA 328 ; [1993] ATPR 41-251


case_text: The need for precision in the framing of group definitions in representative proceedings was explained by Sackville J in Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61. His Honour said: "19 In determining what s 33H(1)(a) of the Federal Court Act requires, it is important to consider why it is necessary to describe or identify the group members in a representative proceeding. One reason, as the High Court observed in Wong v Silkfield, is to enable the Court to determine whether the requirements of s 33C have been satisfied. Unless the group member is adequately described or identified (although not necessarily named or counted: s 33H(2)), it may be difficult to ascertain, for example, whether the claims of all the group members give rise to a substantial common issue of law or fact. 20 Another reason for describing or identifying group members is to enable group members to decide whether or not to opt out of the representative proceeding pursuant to s 33J(2) of the Federal Court Act. If a person who is a group member does not opt out of the proceedings he or she will be bound by the judgment. (Section 33ZB requires the judgment in a representative proceeding to "describe or otherwise identify the group members who will be affected by it" and provides that the judgment binds any such persons other than any person who has opted out.) The failure by a group member to opt out of representative proceedings may therefore be attended by serious consequences, although of course the litigation might also produce advantages for that group member. 21 These factors suggest that it must be possible for persons who may be within the represented group to ascertain from the pleadings whether they are in fact group members. The point was made by Hedigan J in Cook v Pasminco Ltd [2000] VSC 534 , at [59], in relation to similar State legislation: "It is beyond doubt that in a group proceeding the description of a group membership must be such so that it is at least possible to determine who falls within the group as described. Persons contemplated as being within the group would themselves not understand whether they were within it, unless the definition of the group is intelligible, although not necessarily exact. Members of the group are entitled to know what constitutes the essentials of the group. A decision concerning opt-out cannot be sensibly made unless it is known what it is that is being opted out from." It follows from his Honour's observations that a person must be able to ascertain from the description of the represented group whether he or she is a member of that group. 22 ... 23 Clearly enough, not every description or identification of the represented group will satisfy the requirements of s 33H(1)(a) of the Federal Court Act. A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group. If a person cannot reasonably be expected to do this, the definition is unlikely to satisfy the requirements of s 33H(1)(a). (Emphasis added)." In that case the group was defined, in part, by reference to the pleaded conduct of the respondent. Hence his Honour's allusion, in the final paragraph quoted, to a definition incorporating a reference to conduct. The test which he propounded would have equal application to a definition which had, as one of its elements, the purchase by group members of a particular product: a person who wishes to ascertain whether or not he or she is a group member must be able, by reading the definition, to determine whether he or she has purchased such a product. 14 As presently framed the group definition includes any person who has paid at least $5,000 for "rubber chemicals" or "rubber products" in a six and a half year period. There could be multiple purchases so long as the aggregate price of those purchases exceeds $5,000. The purchases could have been made anywhere. A person seeking to determine, perhaps with the assistance of his or her lawyer, whether he or she fell within the group would have considerable, but probably not insurmountable, difficulty in deciding whether or not these criteria had been satisfied. Resort to invoices, catalogues, product statements and other documents would be needed. The real problem would lie in determining whether the items purchased were "rubber products". Some decisions would be easy: a rubber ball could readily be identified as a "rubber product". But how are potential group members to know whether an item which does not have the external appearance or texture of rubber contains "rubber chemicals"? They would, presumably, require the assistance of an expert chemist. What if the rubber item forms but a small part of a larger product? The respondents cite as examples the mud flaps on a large truck or the rubber "feet" at the bottom of table legs. Despite being asked, the applicant has not told the respondents whether, in such cases, the larger item with a small rubber part is itself to be regarded as a "rubber product" because it "contains rubber chemicals".


case_text: The material facts needed to establish that any one of the Australian companies was the agent of one of the foreign respondents is lacking. There is the bare allegation of agency and no more. This is not sufficient to forge the nexus between the alleged cartel agreements and the implementation of their terms by the Australia companies: see State Bank of Victoria v Parry (1990) 2 ACSR 15 at 30; Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 at 556; cf Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567.


case_title: Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549


case_title: Industrial Equity Limited v Blackburn [1977] HCA 59 ; (1977) 137 CLR 567


case_text: The applicant's attempt to rely on s 75B of the Act must fail in the absence of a pleading of intentional and knowing participation by a respondent in any alleged contravention of the Act : see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 669-670. This aspect of the pleading also suffers from an absence of specificity: it identifies conduct, for the purposes of s 75B , as being any of the conduct, alleged to have been undertaken by the foreign respondents or the Australian companies, to which reference is made in any or all of some 22 paragraphs of the statement of claim. 38 The statement of claim should be struck out. It cannot be saved by amendment. As this is the first occasion on which the Court has considered and ruled on the respondents' objections, the applicant should, if it is so advised, have the opportunity to replead. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 10 October 2008 Counsel for the Applicant: Mr I Wylie Solicitor for the Applicant: Maurice Blackburn Pty Ltd Counsel for the Second Respondent: Mr C Moore Solicitor for the Second Respondent: Baker & McKenzie Counsel for the Third and Fifth Respondents: Mr P Crutchfield Counsel for the Third and Fifth Respondents: Mallesons Stephen Jaques Dates of Hearing: 5 May 2008 and 15 May 2008 Date of Judgment: 10 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1510.html


case_text: The first time that I knew that there had been any threat, if there has been a threat directed to me, was when I read Ms Ogawa's letter on 15 May. I was not previously aware that the Queensland Police were investigating any threat made to or about me. It is not appropriate for me to disqualify myself in those circumstances. I need not disqualify myself because the applicant has brought to my attention the allegation that she has previously made a threat to me. As Mason J said in Re JRL; ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342 at 352: 'Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias encourage parties to believe that by seeking the disqualification of a judge, they will have had their case tried by someone thought to be more likely to decide the case in their favour.' 7 I decline to disqualify myself for bias. 8 The application for judicial review was listed for hearing today. There has been no appearance of the applicant. As I have said, there is no contradictor. Order 32 rule 2(1)(d) of the Federal Court Rules allows the Court to proceed in the absence of a party. In my opinion, it is appropriate that I proceed in this matter in the absence of the applicant. My reasons for judgment will show that, in my opinion, this application on any understanding is doomed to fail. It therefore should be disposed of as soon as possible.


case_text: Whether this application is brought under the Judiciary Act 1903 or the Administrative Decisions (Judicial Review) Act 1977 a grant of a remedy is discretionary. The issue of the constitutional writs is always discretionary: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 and Re McBain; Ex parte Australian Catholic Bishops Conference and Another [2002] HCA 16 ; (2002) 209 CLR 372. Any remedy under the Administrative Decisions (Judicial Review) Act 1977 is also discretionary: s 16.


case_title: Re McBain; Ex parte Australian Catholic Bishops Conference and Another [2002] HCA 16 ; (2002) 209 CLR 372


case_text: A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6.


case_title: Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667


case_text: I accept that in the present case that there may be documents in the possession of APRA whose release would clearly prejudice the public interest, for example documents identifying informers, documents containing details of financial affairs of third parties, documents which had been provided to APRA on a confidential basis, or documents which are pertinent to an ongoing investigation. It has generally been accepted that documents of this nature attract public interest immunity: see Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140; Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319; Spargos Mining NL & Anor v Standard Chartered Aust Ltd & Ors (No 1) (1989) 1 ASCR 311 at 312. The very restriction on the release of the final report without approval by the Attorney-General under s 60(6) suggests that reports of this nature may well contain information which, in the public interest, should not be disclosed.


case_text: In the present application for preliminary discovery I have not been told of a relevant factual dispute between the parties which would justify the use of a notice to produce. The applicant has alleged a possible cause of action arising under the ADJR Act. In a subsequent letter to the respondent (Exhibit 2 in these proceedings), the applicant's solicitor provided further details with respect to the applicant's potential claim. That letter indicates that the proceedings contemplated by the applicant are proceedings for judicial review of APRA's report on the basis of apprehended bias of the inspector. In particular, the applicant seeks to rely upon his differential treatment by the investigator and has referred to several authorities which he says suggest that a cause of action may lie on this basis: see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 per Brennan J; Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 per Downes J. The applicant seeks the final report of the inspector in order to determine whether an action on this ground in fact lies.


case_outcome: considered

case_text: There is a tension between the public interest in disclosing documents which may assist a party in enforcing its legal rights and the public interest in keeping documents of a certain nature confidential. As Lord Upjohn stated in Conway v Rimmer and Anor [1968] UKHL 2 ; [1968] AC 910 at 992: 'On the one side there is the public interest to be protected; on the other side of the scales is the interest of the subject who legitimately wants production of some documents which he believes will support his own or defeat his adversary's case. Both are matters of public interest, for it is also in the public interest that justice should be done between litigating parties by production of all documents which are relevant and for which privilege cannot be claimed under the ordinary rules. They must be weighed in the balance one against the other.'


case_text: The applicant submits that the entirety of the draft reports is required in order to consider whether he has a basis to allege that APRA treated him inconsistently. I accept that the draft reports may be relevant to the question of any ultimate claim against APRA, should such a claim be brought, but those reports are not properly the subject of a notice to produce brought in proceedings under O 15A r 6. The requirements of O 15A r 6 are not particularly stringent: see Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 at [28] and [29] per Sackville J; Gull Petroleum (WA) Ltd v Tah Land Pty Ltd [2001] FCA 1531 at [59] per Carr J. However, if the applicant does not possess sufficient factual material to substantiate O 15A r 6(a), then the deficiency cannot be rectified by seeking production of material from a respondent before the preliminary discovery application is heard.


case_outcome: distinguished

case_text: There was one further consideration raised by APRA which I consider to be significant. APRA submitted that the public interest in non-disclosure was heightened when the report was in draft form, and referred to the decision of Beaumont J in Harris v Australian Broadcasting Corporation and Ors (1983) 50 ALR 551. That case involved interim reports prepared in the course of an investigation into the legal department of the Australian Broadcasting Commission. An application was made under the Freedom of Information Act for the release of the interim reports prepared by the investigator. At the time the application was made, the final report had not been completed. His Honour was required to decide whether the public interest required that the interim reports remain confidential and observed at 563: 'Given that the public interest is not a static concept, in my opinion, full disclosure of the reports, at this stage, would, on balance, be contrary to the public interest. The unchallenged evidence is that, in submitting her "interim" reports, Miss Pearlman did not seek information or comment from the applicant. No doubt, this course was adopted for sound practical reasons, presumably in the interests of expedition. But an incomplete inquiry conducted on such a limited footing could only lead to the formation, at that point, of views or opinions of a tentative or provisional kind (cf Blackshaw v Lord [1983] 3 WLR 283 at 301). However, publication of such views or opinions, provisional as they may be, could create a misleading, perhaps unfair, impression in the minds of readers who do not have the benefit, if there be any, of knowing the response of the applicant. The formation of such impressions in the public mind could, in turn, influence the decision-makers in their review of the situation.' 57 The considerations which arise in evaluating the public interest in a freedom of information application may be different from those in a claim of public interest immunity. The interest in a freedom of information application is that of the public generally in being able to gain access to government documents and in transparent governance more broadly, whereas a litigant opposing a public interest immunity claim has a specific and significant interest in obtaining documents relevant to his or her claim. Nonetheless, the considerations are likely to be similar. 58 In Harris , Beaumont J found that it was not in the public interest to release draft reports where the final report had not been completed, because of the potential of the draft reports in isolation to mislead. His Honour was concerned that the release of details before the conclusion of the investigation may influence the minds of the decision-makers in their review of the matter. 59 That is not the situation in the present proceedings. Although it has not been released, the final report has been completed and has been in the possession of APRA since 1 July 2005, that is, a period of almost a year. ASIC has already determined that it does not wish to pursue any criminal prosecutions. As recorded in the letter of the Attorney-General forwarded to APRA on 29 November 2005, the Office of the Director of Public Prosecutions did not have any objections to the reports being released to ZFS and ZAI. In respect of APRA, although it is continuing to review its position with respect to potential action which it may take against individuals, I am not able to determine, at this stage, that the release of the entirety of the draft reports to the applicant would materially influence APRA's future conduct. 60 It is true that a person reading the draft reports may be misled or may come to conclusions about individuals named in the reports which are unfair unless the totality of the evidence included in the final report is known. But in my opinion, mere unfairness to a party named in the draft report should not, without more, be a reason to declare it subject to public interest immunity and thereby deprive a litigant of a document which is relevant to proceedings which he wishes to pursue.


case_title: Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549


case_title: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634


case_text: A Court will not order the production of a document, even if relevant and admissible, if it would be injurious to the public interest to disclose it: see Alister and Ors v The Queen [1983] HCA 45 ; (1984) 154 CLR 404 at 450-1; Sankey v Whitlam and Ors [1978] HCA 43 ; (1978) 142 CLR 1 per Gibbs ACJ at 38; The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604; Young v Quin (1985) 4 FCR 483; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 674-6. 47 It is the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or withheld: see Sankey v Whitlam at 38. An objection may be taken to the production of a document because it would be against the public interest to disclose its contents, or because the document belongs to a class of documents which, in the public interest, ought not be produced: see Sankey v Whitlam at 39. The category of documents to which the 'class' rule applies is relatively narrow, and includes documents such as cabinet minutes and documents which relate to the framing of government policy at a high level: see Sankey v Whitlam at 39. The claim in the present case is made on the basis of the contents of the draft reports, and not on the basis that the draft reports are a class to which public interest immunity attaches.


case_title: Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319


case_title: Spargos Mining NL & Anor v Standard Chartered Aust Ltd & Ors (No 1) (1989) 1 ACSR 311


case_text: There could be no dispute that APRA possesses the documents in question and accordingly par (c) of O 15A r 6 is satisfied. As to par (b) of O 15A r 6, it seems unlikely that APRA will dispute that production of the final report would be necessary for the applicant to decide whether to bring proceedings: see Hely J in St George Bank Ltd v Rabo Australia Ltd and Anor (2004) 211 ALR 147 at 154(e). Without the final report the applicant does not know the details of any findings which may have been made against him in the final report, which would be essential information in making such a decision. Accordingly it seems likely that par (b) of O 15A r 6 would be satisfied. The real question seems to be whether there is reasonable cause to believe that the applicant may have the right to obtain relief from APRA, as required by par (a). 38 The facts relied upon by the applicant in support of his application for preliminary discovery are set out in his affidavit of 9 December 2005, which accompanied the application. The affidavit describes the course of APRA's investigation as it related to the applicant and to the facts which he believes indicated differential treatment of him by the inspector. 39 APRA has indicated in its written submissions that it intends to dispute that there is a reasonable cause to believe that the applicant has or may have the right to obtain relief from APRA in this Court. It has indicated that such challenge will be made because the final report, by virtue of the confidentiality provisions in the APRA Act, is only available to the inspector, APRA, ASIC, the Director of Public Prosecutions and the Attorney-General: see s 56(5)(a) and the definition of ' financial sector supervisory agency ' in s 3 of the APRA Act. This submission does not raise a factual dispute in respect of any of the matters raised in the affidavit of the applicant, but rather a legal question, namely whether a claim lies at law based upon the facts raised by the applicant.


case_title: The Commonwealth of Australia v Northern Land Council and Anor [1993] HCA 24 ; (1993) 176 CLR 604


case_outcome: followed

case_text: The issues to be decided in an application for preliminary discovery are narrow in scope. The primary question to be answered is whether pars (a), (b) and (c) of O 15A r 6 of the Federal Court Rules are satisfied. In Tyco Australia Pty Ltd v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; (2005) 142 FCR 428 the Full Court of the Federal Court held that in limited circumstances a notice to produce could be issued under O 33 r 12 of the Federal Court Rules in relation to an application for preliminary discovery under O 15A r 6. In those proceedings, Hill J, with whom Hely and Conti JJ agreed, held that a notice to produce could be issued where there was a factual dispute related to one of the requirements of a preliminary discovery application under O 15A r 6. His Honour gave the example of a respondent who wished to call into question whether an applicant had made reasonable enquiries, as required by O 15A r 6(b). His Honour cautioned, however, at [46]: 'An applicant who seeks to use a notice to produce, in effect, to gain production of the very documents which are the subject of the pre-action discovery will not have given the notice to produce in good faith, but rather, will have acted in a way that is an abuse of process.'


case_title: Young v Quin (1985) 4 FCR 483


case_text: I accept that in the present case that there may be documents in the possession of APRA whose release would clearly prejudice the public interest, for example documents identifying informers, documents containing details of financial affairs of third parties, documents which had been provided to APRA on a confidential basis, or documents which are pertinent to an ongoing investigation. It has generally been accepted that documents of this nature attract public interest immunity: see Zarro and Ors v Australian Securities Commission (1992) 36 FCR 40; Choi v Minister for Immigration and Multicultural Affairs (1998) 55 ALD 140; Somerville v Australian Securities Commission and Ors (1995) 60 FCR 319; Spargos Mining NL & Anor v Standard Chartered Aust Ltd & Ors (No 1) (1989) 1 ASCR 311 at 312. The very restriction on the release of the final report without approval by the Attorney-General under s 60(6) suggests that reports of this nature may well contain information which, in the public interest, should not be disclosed. 49 However, in an application such as this, the Court must be satisfied that the specific documents sought by the applicant contain information of that nature. In Zarro Lockhart J observed at 50-1: 'In these days with large government instrumentalities and agencies involved in time consuming and extensive investigations into possible irregularities and offences, great care is required by the bodies themselves in ensuring both that the correct person within the structure of the organisation (that is, a person who knows the facts, has seen the documents and who is preferably at a high level within the organisation) swears the appropriate affidavit claiming public interest immunity and that the claim is not made too widely so as to sweep within its net documents that are not legitimately an essential integer in the investigative process. This also calls for vigilance by the courts lest documents are shielded from public scrutiny or inspection by parties to litigation under an unduly broad umbrella of public interest immunity.' 50 In the present matter the final version of the report may be released in the future to ZFS and ZAI (under s 60(5) of the Insurance Act ) as well as being publicly released (under s 60(7)). In addition, if proceedings are in the future brought against the applicant, then pursuant to s 60(8) the Court may order that he be provided with a copy of the final report. 51 It is therefore anticipated by the Insurance Act that in some circumstances a report of this nature will be made public or at least be provided to bodies outside of APRA. Accordingly, it must be anticipated that a report will not necessarily contain information which it is not in the public interest to reveal, even if the conduct of an investigation may require that its release be delayed. If such considerations apply to a final report, they may also apply to a draft report. 52 It is possible that the draft reports could contain material which falls into a category which usually attracts public interest immunity, but it is by no means certain. In these circumstances, before they would attract public interest immunity, I would need to be satisfied that these specific draft reports contain information which should not be released, because they identify informers, contain confidential information, because their release would prejudice ongoing investigations or legal proceedings or on some other basis. 53 The evidence provided by APRA does not contain details to this effect, but rather talks generally of the public interest in maintaining confidentiality of draft reports of APRA. It does not refer in any way to the specific basis on which the contents of these draft reports attract public interest immunity. Mr McKenzie-Craig's affidavit states generally that the release of draft findings of APRA ' could lead to tailoring or tainting of evidence, concealment of documents, or other conduct which diverts, hampers or even misleads APRA or the Inspector in the investigation '. However, the affidavit does not indicate why the release of the specific information contained in the draft reports would have this effect. Given that the final report has now been completed and those parts of the document which are referable to the applicant have already been provided to him, it is not immediately obvious that, if the reports were released for the limited purpose of these proceedings, APRA's investigations would be prejudiced. It appears that the evidence-gathering stage of the investigation is wholly completed and the decision is now a forensic and/or legal one.


case_outcome: affirmed

case_text: The Refugee Review Tribunal affirmed the decision of a delegate of the respondent not to grant the appellants protection visas. An application for review of that decision was dismissed by the Federal Magistrates Court: Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42. This is an appeal from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is to be heard by a single judge. 2 The background facts and the first appellant's claims are set out in the Magistrate's decision, and in more detail in the Tribunal's reasons. The second, third and fourth appellants are the first appellant's wife and children. Their claims are dependent on his. I will refer hereafter to "the appellant" alone. 3 There are three grounds of appeal. The first is that the Magistrate erred in finding that the Tribunal "did not fail to consider that the basis of the appellant's fear of extortion by the LTTE was a Convention related reason". The contention before the Magistrate was that in respect of the appellant's claim that he feared that the LTTE would seek to extort money from him upon his return to Sri Lanka, the Tribunal failed to consider that his claim was that extortion would be by reason of his Tamil ethnicity. It was also said that the Tribunal failed to consider whether such extortion would be by reason of the appellant's membership of a particular social group, namely Tamils returning to Sri Lanka from overseas or Tamils perceived to have money.


case_text: The appellant relies on the following passage from the Tribunal's reasons to support this ground: "The applicant is concerned that the LTTE will seek to extort money from him upon return because he would be thought to have money given that he has worked abroad for so long. There has been no such approach to him in the past but if this were to occur I do not consider that the evidence indicates that it would be anything other than an opportunistic grab for money. What the applicant seems to me to fear is analogous with the circumstances described in Ram v MIEA (1995) 57 FCR 565. In his judgment (at 569-570) Burchett J stated: Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual .... [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually. I do not consider that the evidence about the appellant's circumstances indicates that there is a real chance that the applicant's race, religion, nationality, membership of a particular social group or his actual or imputed political opinion would be the essential or significant reason for any extortion demands which he may face upon return from the LTTE, rather the essential and significant reason for such treatment would be his perceived possession of money. Consequently such treatment does not constitute persecution within the meaning of the Refugees Convention." 5 It is true that in that passage the Tribunal does not say that the claim was that the appellant feared extortion because he was Tamil. However, a reading of the Tribunal's reasons as a whole makes it perfectly clear that that was the claim it was addressing. 6 The appellant's whole case for a protection visa was founded on his Tamil ethnicity. Under the heading "The Applicants' Claims" the Tribunal recorded claims that • the appellant was a male of Tamil ethnicity, • the LTTE had details of all Sri Lankan Tamils living in Sri Lanka and in foreign countries • the Army was reported to be killing Tamil civilians. It also recorded that • it had raised with the appellant information indicating that Tamils were subjected to less checking than before • the appellant's adviser at the first Tribunal hearing submitted that the appellant faced persecution because he is a Tamil from Jaffna • in a submission to the current Tribunal it was put that LTTE cadres were abducting Tamil youths and extorting money from Tamils, that as a Jaffna Tamil the appellant would not be able to live in any Sinhalese areas, and that more than a hundred young Tamils had been taken in for questioning and thirteen of them were arrested. It is clear from the foregoing that all these claims are related to the appellant's fears based on his Tamil ethnicity. 11 The Tribunal's statement (recorded at [4]) that it did not consider the extortion would be anything other than an opportunistic grab for money, in the context recorded at [6] to [10], is to be understood as a rejection of the reason the appellant advanced for the extortion, namely that he is a Tamil. The reference to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 is unexceptionable. There it was claimed that the appellant was a member of a class of wealthy Sikhs who were liable to extortion. The Full Court held that because the extortion was not based on membership of that class but purely on opportunism, there was no Convention basis. That is what Burchett J said at 569-570. The Tribunal was saying that just as in Ram the extortion was not because the appellant was a wealthy Sikh, so in this case it was not because the appellant was a Tamil. In each case the extortion was opportunistic. 12 It was not put to the Tribunal that the appellant was a member of a particular social group. However the Tribunal did say it was not satisfied that there was a real chance that the appellant's membership of a particular social group would be the essential and significant reason for any extortion demands. The appellant did make social group claims before the Magistrate. For the reasons his Honour gave in connection with the appellant's Tamil ethnicity, the social group claim, based as it was on Tamil ethnicity (see [3]), had to fail. See pars 20 to 22 of the Magistrate's reasons. 13 The Tribunal did not fail to address the case put by the appellant. The Magistrate did not err in so holding. 14 This is that the Magistrate erred in finding that the Tribunal's decision with respect to the appellant's detention and torture "was not based on findings for which there was no information". This ground is directed to the Tribunal's refusal to accept that the appellant was arrested, detained, interrogated and tortured in December 1998 on suspicion of associating with the LTTE. The Tribunal gave four reasons for this conclusion. The first is not attacked. It is that "independent information indicates that Tamils have been subjected to checking in Colombo for many years. As is apparent from the account of relevant information outlined above, it was young Tamils from the north or east of the country without a plausible reason for their presence in Colombo who were likely to be taken into custody for further questioning or to establish their bona fides. This does not mean that other people are not, but it does indicate the importance attached to identity documents and weighs against the claim that the applicant was not allowed to show his passport." The reference to the passport is to the appellant's claim that after he had been detained, the authorities refused to allow him to show his passport to verify that he had come from Brunei where he had been working.


case_text: Before proceeding to the Tribunal's other reasons that are under attack, it is convenient to refer to some authorities on "no evidence" or "no information" submissions in the context of jurisdictional error. In SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 at [18] to [20] a Full Court said: "But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. This argument, if it were made out, would be sufficient to establish that the Tribunal had made a 'jurisdictional error' so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-357. ... On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a 'jurisdictional fact', there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merits review and jurisdictional error may not be a 'bright line', but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272." 16 In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24] , after quoting the second above paragraph from SFGB , Ryan J said: "by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error." (Emphasis in original.) Why his Honour made this clarification appears from [22] and [26]: "it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as 'unclear', 'incoherent' or 'implausible'. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated [in MIMA v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 629], different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal. ... In the present case the impugned rejection by the Tribunal of certain of the appellant's assertions of fact about assistance rendered to the LTTE or the LTTE's knowledge of the Army's intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point."


case_text: In VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 at [24] , after quoting the second above paragraph from SFGB , Ryan J said: "by that passage I take their Honours to mean that a positive finding, in the absence of any supporting evidence, of the existence of a fact which is a critical step in deciding the ultimate matter as to which the Tribunal has to be satisfied, may signify jurisdictional error." (Emphasis in original.) Why his Honour made this clarification appears from [22] and [26]: "it is not a legal or jurisdictional error for the Tribunal, in evaluating the assertions of fact relied on by an applicant as giving rise to a well-founded fear of persecution, to reject one or more of those assertions as 'unclear', 'incoherent' or 'implausible'. That is so even if there is no identifiable piece of evidence which tends against acceptance of the relevant assertion. As Gleeson CJ and McHugh J indicated [in MIMA v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 629], different minds may form different views about issues which arise for determination on the way to resolving the ultimate question. The fact that a reviewing Court might disagree, even strongly, with a conclusion reached by the Tribunal on a question on the way to determining the ultimate question does not import jurisdictional error on the part of the Tribunal. ... In the present case the impugned rejection by the Tribunal of certain of the appellant's assertions of fact about assistance rendered to the LTTE or the LTTE's knowledge of the Army's intention to search her home did not depend on any inference from other facts. It resulted merely from a failure to attain a state of satisfaction that the assistance had been rendered or that the LTTE had the prior knowledge imputed to it. The fact that the rejection may appear to a reviewing court to be illogical is not to the point."


case_title: Ainsworth v Criminal Justice Commission (1992) 175 CLR 56

case_text: Because I am of opinion that Senator Ellison's s 16(1) notice was invalid and that Mr Tervonen's continued detention after 18 August 2006 was unlawful (there having been no application to a magistrate for an extension of the detention under s 17(2)), it is appropriate to grant a declaration to the effect that after 18 August 2006 Mr Tervonen was not on remand under s 15. His liberty was interfered with for a considerable time without lawful authority: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582 per Mason CJ, Dawson, Toohey and Gaudron JJ; cf: SZFDE v Minister for Immigration (2007) 237 ALR 64 at 70 [22] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.


case_text: The principle upon which those decisions proceeded was an application of provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth). These evince a legislative intention to preserve the validity of so much of an enactment, action or instrument authorised by law as would be supported by use of the power relied upon, notwithstanding that some other part of the enactment, action or instrument in question has been found to be beyond the power relied upon for its making. Thus, s 46(2) provides that if any instrument, such as a notice under s 16(1) of the Extradition Act , made pursuant to an enactment would be construed as being in excess of the authority's power, '... it is to be taken to be a valid instrument to the extent to which it is not in excess of that power'. A search warrant has been held to be such an instrument, as McHugh JA pointed out in Peters 16 NSWLR at 41E. Accordingly, he held that the search warrants in that case were to be read and construed, to the extent that they could be read, as valid instruments. He applied what Dixon J had said in Andrews v Howell [1941] HCA 20 ; (1941) 65 CLR 255 at 281 in relation to ss 15A and 46 of the Acts Interpretation Act . A notice under s 16 of the Act is also such an instrument. 85 In Andrews 65 CLR at 281 Dixon J said such provisions imposed a burden upon those attacking an entire regulation, part of which was bad, to establish that if the regulation were confined within the limits of the power, the result would be, not a partial application of the law, but a different provision. Alternatively, the attacker had to establish that it was the intention of the Act or Regulation which authorised the making of an instrument, that unless the instrument received its full intended operation, it should not operate at all. 185 Mere proof of the absence of power to make part of a notice would not necessarily result in the balance being invalid. This is because s 46(2) of the Acts Interpretation Act deems the balance to be valid unless, as Dixon J explained in Andrews v Howell 65 CLR at 281, Mr Tervonen showed that the balance was not intended to operate in the absence of the invalid portions.


case_text: Later, in Bank of New South Wales v The Commonwealth (The Bank Nationalisation Case) [1948] HCA 7 ; (1948) 76 CLR 1 at 370-371 Dixon J expanded upon the principles applicable to the construction of legislation or actions done under the authority of legislation where provisions such as ss 15A and 46 of the Acts Interpretation Act 1901 (Cth) displaced the common law doctrine of severance. He explained that there was a common law presumption that the legislature intended its will on any particular matter as expressed in a statute to operate in its entirety and had no intention that something less should be the law (76 CLR at 371; see too The King v Poole; Ex parte Henry [No 2] [1939] HCA 19 ; (1939) 61 CLR 634 at 651 per Dixon J; Victoria v The Commonwealth (The Industrial Relations Act Case) [1995] HCA 45 ; (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ; Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 326 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). In the Bank Nationalisation Case 76 CLR at 371 Dixon J discussed ss 15A and the then form of s 46(b) (cp now: s 46(2)) of the Acts Interpretation Act . He said that in applying those provisions: '... the courts have insisted that a provision, though in itself unobjectionable constitutionally, must share the fate of so much of the statute, regulation or order as is found to be invalid, once it appears that the rejection of the invalid part would mean that the otherwise unobjectionable provision would operate differently upon the persons, matters or things falling under it or in some other way would produce a different result. This consideration supplies a strong logical ground for holding provisions to be inseverable, whether the prima-facie presumption be in favour or against severability. It is important where there is no statutory clause like s. 15A and it is important in using s. 15A. For the inference in such a case is strong that provisions so associated form an entire law and that no legislative intention existed that anything less should operate as a law. Further, where severance would produce a result upon the persons and matters affected different from that which the entire enactment would have produced upon them, had it been valid, it might be said with justice that unless the legislature had specifically assented to that result, contingently on the failure of its primary intent, it could not amount to a law.' 125 When he signed the s 16 notice, Senator Johnston was acting in a public office. Under the administrative arrangements order of 21 September 2006 and the division of portfolio responsibilities agreed between the previous Attorney-General and Minister for Justice and Customs, the latter had portfolio responsibility for extradition. Senator Johnston's act of signing the s 16 notice is evidence of his having been appointed as a Minister of State with responsibility for administering s 16 of the Act: Cassell v The Queen [2000] HCA 8 ; (2000) 201 CLR 189 at 193-194 [17] - [22] per Gleeson CJ, Gaudron, McHugh and Gummow JJ citing R v Brewer [1942] HCA 33 ; (1942) 66 CLR 535 at 548 per Latham CJ and McTiernan J. 126 The Extradition Act refers to the Attorney-General by name. He or she is thus a 'particular minister' within the meaning of s 19A(1)(ab) of the Acts Interpretation Act 1901 . In addition, s 19A(1) of the Acts Interpretation Act provides that where a provision of a statute refers to a particular minister, then unless the contrary intention appears, where two or more ministers administer the provision, any one of them is referred to as administering it (see: s 19A(1)(a) and (b)). 127 There is no contrary intention in the Extradition Act to prevent a reference to the Attorney-General also being a reference to another minister administering, with the Attorney-General, that Act or the Attorney-General's Department of State. Section 19A(1)(a)(i) of the Acts Interpretation Act provides that where different ministers administer a provision in respect of different matters, and if two or more of those ministers administer it in respect of the relevant matter, any of the Ministers may do so. And, s 19A(1)(b) provides that if s 19A(1)(a) does not apply, and for the time being two or more ministers administer the provision, any one of those ministers may do so. 209 Is it possible, as the Minister contended, to sever the invalid portions of Senator Johnston's s 16 notice under s 46(2) of the Acts Interpretation Act ? That provides, as explained above, that the notice is to be taken to be valid '... to the extent to which it is not in excess of ...' the power to make it. However, Dixon J explained in the Bank Nationalisation Case 76 CLR at 371 that the statutory presumption would be displaced if rejection or severance of the invalid part would mean that the otherwise unobjectionable portion would operate differently on Mr Tervonen or in some other way produce a different result.


case_text: In Blatch v Archer (1774) 1 Cowp 63 at 65, 98 ER 969 at 970 Lord Mansfield CJ observed, in a passage approved in Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ and in Vetter v Lake Macquarie CC [2001] HCA 12 ; (2001) 202 CLR 439 at 454 [36] per Gleeson CJ, Gummow and Callinan JJ with whom Hayne J generally agreed at 477 [107]: 'It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.'


case_text: In these proceedings, the civil onus of proof on the balance of probabilities applies under s 140 of the Evidence Act 1995 (Cth). That requires the Court to be satisfied on the balance of probabilities of the occurrence or existence of a fact. The Court makes such a finding based on its reasonable satisfaction that the allegation has been established by the evidence, as Dixon J explained in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 361-363; see too Cassell 201 CLR at 193 [18] per Gleeson CJ, Gaudron, McHugh and Gummow JJ. 188 While Mr Tervonen has the onus of establishing his case, the Minister has gone into evidence by adducing part, and withholding part, of the material before him. The Minister consciously waived privilege on portions of that material on a number of occasions during the hearing. Mr Tervonen could not lead evidence of what remained in the privileged material which the Minister chose not to put before the Court. However, that material which the Minister did choose to put before the Court leaves uncertain whether he addressed the correct question, namely whether the whole of the material enabled him to form the opinion required by s 16(2)(a)(ii) on the paragraph in the notice, or at least so many of them as might have been valid, had he turned his mind to them.


case_text: In Williams 157 FCR at 296 [40] the Full Court observed that cases such a Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-276, Avon Downs v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360 per Dixon J and Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119 per Gibbs J identified two relevant principles upon which the Court may examine, on judicial review, the validity of a notice under s 16 of the Extradition Act . They said that the Court could examine whether the decision-maker had or had not taken relevant, and only relevant, matters into account. If that examination resulted in a conclusion that the material relied on by the Minister was open to be considered, '... there is a further, strictly limited but nevertheless potentially available, basis for review which focuses upon the outcome of the decision-making process'. That basis involved whether the decision-maker acted in good faith and had not acted merely arbitrarily or capriciously: Buck 135 CLR at 118-119 per Gibbs J.


case_text: In Coco v The Queen [1994] HCA 15 ; (1994) 179 CLR 427 at 442-443 Mason CJ, Brennan, Gaudron and McHugh JJ rejected an argument concerning the severability of a warrant that had been issued by a judge whom, they held, had misapprehended the power which the statute conferred. Their Honours held that the judge had purported to exercise a power different from the power reposed in him. 100 The filter which the Parliament intended be applied to extradition requests under s 16 was the formation of a genuine and real opinion by the Attorney-General, or other Minister exercising the power to give a notice under s 16(1). A notice under s 16 provides a lawful authorisation for the continuing detention of a person pursuant to the operation of s 17 of the Act. The Court should not impute to the Parliament an intention to authorise interference with the fundamental right to liberty where it does not appear that the Attorney-General or Minister actually turned his or her mind to the question s 16(2) requires be addressed: Coco 179 CLR at 537; see too Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ.


case_text: This passage highlights the necessity that the facts must be stated in such a way that the Minister can be satisfied that the particular conduct, being acts or omissions of the person whose extradition is sought, would have been sufficient to constitute an extradition offence in relation to Australia. Dixon J explained that a prosecutor must identify not only the legal nature of the offence with which a defendant is charged, but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller 59 CLR at 489-490; see too John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ; see Williams 157 FCR at 298 [50]. The position is similar in respect of European arrest warrants: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at 52 [48] per Lord Hope of Craighead with whom the rest of the House agreed on this issue: see at 39 [2], 58-59 [71], 59 [72], 61 [82].


case_text: In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word 'accused' in s 6(a)(i) of the Act, noting: 'It is sufficient to say that, in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.' 39 The Attorney-General cannot be expected to be an expert in foreign law: Williams 157 FCR at 298 [49]. Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer [1995] HCA 35 ; 185 CLR 528, illustrates). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. 42 Each warrant, on its face, was termed a 'warrant'. It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The Minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer 185 CLR at 540, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i). 43 Senator Johnston had Finland's request for extradition before him. Finland stated there that it sought Mr Tervonen's extradition 'on the basis of the offences detailed in the appended warrants for arrest, for pre-trial investigation and prosecution'. Finland provided supplementary information dated 14 August 2006 in support of the request for extradition. That was also before Senator Johnston. It stated that 'Tervonen's offences are white-collar crime of which it is very hard to get unambiguous evidence and for which trials many times take weeks. At this stage of the procedure and investigations the information provided is as detailed as possible'. 44 This material provided an additional basis why it was open to Senator Johnston to form the opinion that Mr Tervonen was an extraditable person under s 16(2)(a)(i). I am of opinion that it was open to him to have formed that opinion.


case_text: In order to determine whether relief would be futile for this reason, it is necessary to examine the consequence of any finding that Senator Ellison's s 16 notice was wholly or partly invalid. In Dutton v Republic of South Africa [1999] FCA 1016 ; (1999) 92 FCR 575 at 578 [13] Wilcox, Whitlam and Moore JJ held that once a notice under s 16 was given, it could not be withdrawn. In arriving at that result they relied upon the existence of the Attorney-General's power under s 17(1) to cause a person's remand to cease after a s 16 notice had been issued in the event that the Attorney-General did not wish that proceedings under s 19 commence ( Dutton 92 FCR at 578 [12]). 186 But the problem here is different. It is clear that Senator Johnston intended to make an amendment to the number of offences for which Mr Tervonen could be eligible for extradition to Finland by adding the 7 offences the subject of pars (57) and (58). However, the selective revelation of his legal advice leaves an open question as to what power Senator Johnston actually exercised. I infer that Senator Johnston did not intend wholly to replace Senator Ellison's s 16 notice. Had that been his intention he would have not have headed the notice as ' Amended Notice of Receipt of Extradition Request '. Rather he would have had to state that a new notice was being given because the old one was wholly invalid. That would reflect the result of the decision of the Full Court of this Court in Dutton 92 FCR at 578 [12]-[13], that once a (valid) s 16 notice has been issued, it cannot be withdrawn.


case_text: It is important to bear in mind that in determining whether a notice given by the Attorney-General or Minister is wholly or partly valid for the purposes of s 16 of the Extradition Act , one of the significant effects of the notice is that it will authorise the detention in custody of the person who is its subject: Vasiljkovic 227 CLR at 618 [6], 629 [34] per Gleeson CJ. In George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 110, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ noted that a search warrant authorised an invasion of premises without the consent of the persons in lawful possession or occupation. They said that the validity of such a warrant was necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the Court noted that the legislature had sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions to his privacy and property. They noted that in enacting the section authorising the issue of search warrants, the Queensland legislature had given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. However, the Court pointed out that the common law had long been jealous of the prima facie immunity from seizure of papers and possessions. They then discussed the exceptions which many State and Commonwealth statutes had made to the common law position. They said ( George 170 CLR at 110-111): 'Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.' 94 In George v Rockett 170 CLR at 111 the Court considered the function of a justice in issuing a search warrant. The terms of the statute were that it had to 'appear to the justice' that certain conditions existed. The Court held that this imposed on the decision-maker the duty of satisfying himself or herself that the conditions for the issue of the warrant were fulfilled.


case_text: The only act or omission expressly referred to by the CDPP as alleged against Mr Tervonen was contained in the single sentence that he 'was involved in a scheme with a number of other persons'. The CDPP's advice did not provide any detail as to how it could be found that Mr Tervonen was aware of all the material ingredients of the underlying conduct in relation to each of the balance of the offences in warrant 5 so as to attract the liability of a person who aids, abets, counsels or procures the commission of the principal offences: Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473. 161 However, the primary material provided by Finland and provided to Senator Johnston included a number of acts or omissions of Mr Tervonen which the Finnish authorities considered gave rise to him being suspected with probable cause of having committed the offences. That material is capable of showing that Mr Tervonen had an involvement in establishing Yellow Light Invest Oy so that it could seek information through a remote login from the National Land Survey of Finland. And, the material suggests, as I have found, that Mr Tervonen may have been involved in procuring Yellow Light Invest Oy's registration or continuing existence by falsely representing to Finnish authorities that Ms Lindholm had consented to act as and was the auditor of that company. 162 In addition, the document found on Mr Tervonen's computer with Yellow Light Invest Oy's articles of incorporation and Ms Lindholm's identity details included the names of some missing persons and the statement that some of those persons could be buyers provided that they had not been declared dead. However, in contrast to the suggestion in that suspicious document, the scheme of the fraud alleged against Mr Tervonen involved Mr Söderqvist, a real person, becoming registered as the purchaser and applying for a loan in his own name. This was a different scheme to one involving fictitious purchasers. The only further concrete link between Mr Tervonen and any of the frauds in warrant 5 was the material seized from Ms Fallenborg's apartment, being the 59,000 euros in the envelope and the SMS card with Mr Raappana's contact details. 166 I am of opinion that this material is inadequate to support a prima facie case of any contravention of a law in Australia that is equivalent to any of the Finnish offences in warrant 5 other than those in relation to Ms Lindholm to which I have referred. As the CDPP summarised, Mr Tervonen was alleged to be 'involved' in the commission of various offences as an accessory. Here, the material in support of the charges in warrant 5 contains no sufficient link to Mr Tervonen in respect of knowledge on his part of all of the essential facts which constituted each of the multiple offences: Giorgianni 156 CLR at 503, 506 per Wilson, Deane and Dawson JJ. 167 There is no explanation of how Mr Tervonen, when he was in jail between April and August 2004, aided, abetted, counselled or procured the activities of any of Messrs Siira, Raappana or Söderqvist. In order to establish Mr Tervonen's liability as a secondary offender in Australia, it was necessary for Senator Johnston to have before him identified conduct of Mr Tervonen which showed his intentional participation in each offence, with knowledge of the essential matters which went to make up that offence: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667 per Mason ACJ, Wilson, Deane and Dawson JJ applying Giorgianni [1985] HCA 29 ; 156 CLR 473. It is here that the material provided by Finland fails to provide a substantive link between the conduct alleged and how Mr Tervonen could be found to have been a secondary offender under the law of New South Wales. This deficiency in the material relied on is accentuated in respect of those offences which occurred while he was in jail between April and August 2004.


case_text: There may be differences between Finnish law and Australian law as to duplicity in bringing criminal charges: see Johnson v Miller [1937] HCA 77 ; (1937) 59 CLR 467. However, in relation to an equivalent Australian offence for the purposes of s 16(2)(a)(ii) it was essential for the material before Senator Ellison to identify particular conduct of Mr Tervonen or its equivalent, which would have constituted, without duplicity, an offence here. The particular acts or omissions of Mr Tervonen in placing an order needed to be identified, together with the basis on which that conduct could have amounted to the obtaining of a valuable or financial advantage by deception contrary to s 178BA of the Crimes Act 1900 (NSW). 56 However, there was a lack of any particularity in the material on which Senator Ellison was asked to form an opinion that s 178BA of the Crimes Act would have been contravened had Mr Tervonen engaged in the same or equivalent conduct in New South Wales. In a broad way, the CDPP's summary suggested a connection between Mr Tervonen and others in misleading third parties. But, the CDPP did not set out who lacked an intention or ability to pay for the goods, or what Mr Tervonen's role was in relation to the formation of that intention. Given that it is implicit in the CDPP's summary that some goods were either actually paid for or no loss was suffered as a result of the order, there may have been a real issue about the proof of any preliminary intention not to pay in a particular instance and whether a particular company or companies was deceived into supplying goods. A company that was ultimately paid in full for goods it sold or which never delivered goods would hardly have conferred a financial advantage on the recipient by means of the deception. As Dixon J said in Johnson v Miller 59 CLR at 487: 'Prima facie, but one offence can be proved under one charge. For, except to prove intent or system and to exclude accident or mistake, evidence that accused persons committed other like offences is seldom relevant to the issue of guilt. But, if the present case fell within the prima facie rule, plainly to admit evidence of thirty distinct offences would be contrary to law, and the fact that each satisfied the description contained in the complaint could afford no justification for such a breach of so important a rule.' 57 This passage highlights the necessity that the facts must be stated in such a way that the Minister can be satisfied that the particular conduct, being acts or omissions of the person whose extradition is sought, would have been sufficient to constitute an extradition offence in relation to Australia. Dixon J explained that a prosecutor must identify not only the legal nature of the offence with which a defendant is charged, but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller 59 CLR at 489-490; see too John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 ; (1987) 163 CLR 508 at 520-521 per Mason CJ, Deane and Dawson JJ; see Williams 157 FCR at 298 [50]. The position is similar in respect of European arrest warrants: Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at 52 [48] per Lord Hope of Craighead with whom the rest of the House agreed on this issue: see at 39 [2], 58-59 [71], 59 [72], 61 [82].


case_text: Senator Johnston did not give evidence as to what he took into account or what he addressed. He could have done so, notwithstanding that for a Minister to give evidence would have been unusual. Such evidence may have clarified what Senator Johnston did. A busy Minister may have some difficulty, even after only one or two months, in recalling precisely what decision-making process he or she undertook in a portfolio requiring a number of individual decisions on a daily basis. I infer that Senator Johnston could not have clarified the actual question he addressed in signing the s 16 notice by any evidence he may have given: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. 202 The material provided by Finland in support of its extradition request covered over 270 pages. In addition to that material, the CDPP's advice was a further 22 pages long and the ministerial briefing papers comprised over 20 more pages. It is a difficult task to analyse all of that material and form a view in respect of each of the items in Senator Johnston's s 16 notice. There was no attempt in the material before the Minister to correlate paragraphs in the then draft s 16 notice with any portion of the vast amount of documentary material before him. That material can be pieced together, with considerable patience, by using the CDPP's advice, considering each individual warrant, then working out which of the charges the CDPP found could have dual criminality and what portions in the voluminous material supported them. It is difficult to imagine that a busy Minister would have had the time to engage in such a perplexing task with such disordered material, especially when his senior advisers had recommended, and the CDPP had told him it was in order for, him to sign the amended notice. It was a task which counsel for the parties essayed, somewhat summarily, for the purposes of the hearing. Each prepared tables referring to parts of the evidence which were said to relate to particular paragraphs in the s 16 notice. But there was only brief reference in argument to the detail of the material and how it supported or failed to support each paragraph in the s 16 notice based on warrant 5. 203 The Minister relied on the terms of Senator Johnston's s 16 notice and, particularly, its preface, which reads: 'To a magistrate before whom the person named in this notice is brought: I, David Albert Lloyd Johnston, Minister for Justice and Customs of the Commonwealth of Australia, under subsection 16(1) of the Extradition Act 1988 , state that an extradition request has been received from Finland, an extradition country, in relation to Jan Atso Tervonen for the following extradition offences: ...'


case_text: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council [2001] NSWCA 167 ; (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6 ; [1977] AC 1014 at 1047D-E Lord Wilberforce construed a statutory power in the 'subjective form' - 'if the Secretary of State is satisfied' - as raising two matters capable of review by the Court. First, where a judgment is to be made by the repository of a power, if the statute requires there to be some facts upon which the judgment is to be exercised, the Court may enquire into whether those facts exist. The evaluation of the facts is for the repository of the power alone, but his Lordship continued: '... the Court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge ...' (See too Attorney-General v Reynolds [1980] AC 637 at 657G-659C per Lord Salmon giving the advice of the Judicial Committee.)


case_text: The danger in the Courts being more executive-minded than the executive was highlighted by Lord Atkin's famous dissent in Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206 at 244. 104 In exercising his power under s 16(1) to give the notice, Senator Ellison asked himself the wrong question, namely whether his advisors considered that the notice should be issued and were satisfied of any matters which the statute required, including the formation of an opinion as to dual criminality under s 16(2)(a)(ii). The qualification on the Attorney-General's power to issue a notice under s 16(1) imposed by the requirement of the formation of the various opinions under s 16(2) is an important safeguard for the person whose extradition is sought. If in truth the Attorney-General, or Minister exercising the power in s 16(1) to give a notice, does not address for himself or herself the formation of the opinions on a proper factual basis under s 16(2) then the function of giving the notice has not been fulfilled in accordance with the Act. 105 I am of opinion that Senator Ellison did not consider whether Mr Tervonen's acts or omissions or equivalent conduct, had it taken place in Australia at the time at which the extradition request was received, would have constituted an extradition offence in relation to Australia. Rather, he accepted the opinions of others without examining the facts upon which those opinions were based. This was not a performance of his statutory function in accordance with law. The whole of Senator Ellison's s 16 notice was invalid.


case_outcome: discussed

case_text: When Peters 16 NSWLR 24 was affirmed in Love v Attorney-General (NSW) [1990] HCA 4 ; (1990) 169 CLR 307 the issue of severance of the warrants was put to one side. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that it was clear that a warrant could, and had, to be construed so as not to do what the statute under which it was authorised itself did not purport to do. They held a State statute did not purport to authorise a breach of a federal law, s 219B of the Customs Act 1901 (Cth). They found that the warrants in that case were wholly valid ( Love 169 CLR at 323).


case_text: A full and accurate summary of all material matters and facts ordinarily would enable a minister to discharge a function which legislation required be performed personally by the minister. A minister who acted on such a full and accurate summary would not have delegated any part of the decision-making process to the officials who prepared the summary. If, on the other hand, the summary or other material provided by the department or the minister's advisers omitted a material fact, then the minister would not make a decision on the basis of what parliament required him or her to take into account. Thus the minister would not perform the very function which parliament intended be performed: cf: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 31 per Gibbs CJ. Indeed, depending on the volume of material, a full and accurate, but succinct, summary of material may assist a minister properly to perform the function of exercising the discretion personally confided upon him or her by the statute. 29 Where a statute requires a minister to exercise a discretion personally and the material put before him or her by the department fails to draw to his or her attention a relevant fact which is not insignificant or insubstantial, a valid decision cannot be made because the minister will not have before him or her all relevant material: Peko-Wallsend 162 CLR at 30-31 per Gibbs CJ, 37-38 per Mason J, 65-67 per Brennan J, 71 per Dawson J. If a department were to determine which facts or matters are provided to the minister for him or her to take into account to exercise such a discretion, then the decision-making function will be bifurcated impermissibly, because the department will have assumed a delegation of power which the statute did not permit: namely, the power to decide what facts and matters the minister may take into account. That bifurcation is not permitted where the statute requires the minister personally to exercise the discretion, for the reasons explained by Mason J in Peko-Wallsend 162 CLR at 37-38. 30 Thus, in order to form the opinion that a person is an extraditable person under s 16(2)(a)(i), the Attorney-General must consider whether the requirements of s 6 (which defines 'extraditable person') have been met. If the request for extradition is based on one or more warrants for the arrest of the person, the Attorney-General must be of opinion that each warrant has been received and that it satisfies the requirements of s 6 (and here, Art 7(2) of the treaty). The Attorney-General must see what has been provided with the request for extradition as the warrant (or its translation) in order to form the opinion in s 16(2)(a)(i). It would not be sufficient for the Attorney-General merely to be told that such a warrant existed or to have a summary of it and its contents relating to the offence or offences concerned. That is because the Act requires the Attorney-General to form an opinion that a warrant meeting the terms of s 6 actually exists. 31 Article 7(2)(a) of the Treaty requires the request for extradition to be accompanied by a copy of the warrant together with the statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person whose extradition is sought in respect of each offence. The statement of each offence is a matter which may be capable of accurate summation, as may the statement of the acts or omissions. Much will depend upon the form in which the extradition country presents the material. As became apparent when the brief provided to Senator Johnston was tendered, he was confronted with over 250 pages of material which Finland had furnished in support of its request. The material was by no means easy to follow or digest in the form in which it was presented. As Brennan J said in Peko-Wallsend 162 CLR at 66: 'The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision.' 32 I am of opinion that the Minister can form the opinion in relation to the conduct of the person for which s 16(2)(a)(ii) provides by use of a full and accurate summary of that conduct. I reject Mr Tervonen's argument that s 16(2)(a) and or Art 7(2) of the treaty require the Minister to be provided with the full material furnished by Finland as the requesting State. 33 Each of the Finnish warrants recited that Mr Tervonen was 'suspected on probable cause' of one or more offences. Mr Tervonen argued that the language of the warrants did not meet the threshold set in s 6(a)(i) of being warrants which were in force for his arrest '... in relation to an offence ... against the law of [Finland] that the person is accused of having committed ...'. He argued that being suspected on probable cause was something less than being accused of having committed an offence. 41 In the context of Australian law, a statement that a person has been arrested by the police and charged with an offence is capable of bearing a meaning that the police suspected him or her of having committed the offence and that the arresting officers had reasonable cause for doing so: Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301 per Mason J. That case dealt with defamatory meanings that might be conveyed to ordinary, reasonable Australians by a statement of a police arrest and charge. 92 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 223-224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664). 207 The last alternative is that Senator Johnston considered the whole matter afresh, and that it is possible to sever the portions of the notice relating to warrant 5 which I have found to be invalid, leaving the balance of the notice intact. In Peko-Wallsend 162 CLR at 40-41, Mason J said: 'The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function 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: Wednesbury Corporation [1948] 1 KB at 228.'


case_title: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: Minister for Immigration v Bhardwaj (2002) 209 CLR 59

case_text: Importantly, s 16(3) contemplates that the Attorney-General may give a notice before an individual has been remanded under s 15. So, Senator Johnston had power to give a fresh s 16(1) notice when he did, even though Mr Tervonen was not then held on remand pursuant to s 15 because any reasonable time under s 17(2) for giving a notice after 18 August 2006 had long since expired and, in any event, no attempt had been made to seek such an extension from a magistrate. That is, even though Mr Tervonen was not being held in custody under s 15, and his detention was unlawful, the Act did not operate to deprive Senator Johnston of the power to give a fresh s 16(1) notice. That is because the power to issue a notice under s 16(1) had not been exercised validly, and thus at all, before then: Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597. Senator Ellison's s 16 notice was affected by jurisdictional error and was '... no decision at all': Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 197 Where an administrative decision-maker realises that he, she or it has made a jurisdictional error in an earlier purported 'decision' so that the statutory function was never, in fact, performed, he, she or it can consider the matter afresh, unless the legislative regime prevents that occurring: Bhardwaj 209 CLR at 603-604 [5]-[8] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 619 [67] per McHugh J, 644-645 [149] per Hayne J, 649-650 [163]-[165] per Callinan J.