The Minister for External Affairs:

On 2 May 1902 M. Bourcart the Swiss Minister in London, addressed a note to the Marquis of Lansdowne, submitting four questions which have arisen in the proceedings for the extradition of Gerhard.

These questions were:

1. Whether the word 'month' in Article VIII of the Extradition Treaty with Switzerland of 26 November 1880 means lunar month or calendar month.
2. Whether the proof required by that Article must be furnished within the two months to the magistrate, or only to the Government of the State to which the requisition is made.
3. Whether requisitions for extradition from Australia should be made to the Governor-General or to a State Governor.
4. Whether the period of two months cannot, in the case of extradition from British colonies, or possessions, be extended to three months.

The questions were referred to Mr A. de Rutzen, the Chief Magistrate of the London Metropolitan Police Courts, whose letter in reply is with the papers.

The Secretary of State for the Colonies has submitted the correspondence to the Governor-General for the consideration of the Commonwealth Government, with a covering dispatch dated 28 August 1902.

With regard to question (1), it is submitted that the view of the Swiss Council, concurred in by Mr de Rutzen and the Secretary of State for the Colonies, that 'months' means calendar months, is correct, and that the decision of Mr Justice A'Beckett in re Gerhard (No. 2) 27 V.L.R. 484 is erroneous.

With regard to question (2), it is submitted that the word 'furnished' means furnished by the requisitioning Government to the requisitioned Government. The object of the provision is to ensure promptitude in the furnishing of the proof by the requisitioning Government. That Government is not responsible for delay in its production before the magistrate; and it cannot have been intended to stipulate that where the requisitioning Government had done all that was required of it, the prisoner should be discharged because of delay in production before the magistrate. In re Bluhm [1901] 1 Q.B. 764, which Mr de Rutzen cites in support of the contrary view, this question does not seem to have been directly raised.

The third question is one of considerable doubt. In re Gerhard (No. 1) 27 V.L.R. 244 and re Gerhard (No. 3) 27 V.L.R. 655, it was held that the Extradition Acts still apply to each State individually, and not to the Commonwealth as a whole. This contention is perhaps supported by the legislation in all the Australian States (except N.S.W.), taking effect by Orders in Council under section 18. But attention is directed to:

1. section 17 of the Extradition Act 1870, which extends the Act to 'every British possession';
2. section 26 of the same Act, which declares that all colonies under one 'legislature' are deemed to be one British possession, and defines 'legislature', where there are local legislatures as well as a central legislature, as meaning the central legislature only;
3. the Constitution of the Commonwealth, section 51 (xxix), empowering the Commonwealth Parliament to legislate as to 'External Affairs';
4. the Constitution of the Commonwealth, section 61, declaring that the executive power of the Commonwealth extends to the execution and maintenance of the Constitution, and of the laws of the Commonwealth;
5. the Constitution of the Commonwealth, section 70, which provides that 'In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth', the powers and functions of the Government of a Colony are vested in the Governor-General.

It is submitted that, by virtue of the above provisions, extradition is a matter which passed to the Executive Government of the Commonwealth, and that requisitions should be made to the Governor-General. See however the recommendations appended.

As regards the fourth question, of the extension of the period of two months to three, the Secretary of State for the Colonies asks the Commonwealth Government to consider the advisability of agreeing to a special arrangement to that effect. So far as the Commonwealth is concerned, the extension would appear to be desirable.

OBSERVATIONS AND RECOMMENDATIONS

The questions dealt with in the foregoing memorandum, and the proceedings in the case of Gerhard, suggest the advisability of action being taken, both by the Imperial Government and by the Commonwealth Parliament, in connection with the two cognate subjects of extradition and fugitive offenders.

Extradition

As to the proper proceedings for extradition under the existing law, the position created by the decisions of single Judges in Gerhard's case is neither final or satisfactory. In the first application (27 V.L.R. 244), Mr Justice A'Beckett decided that, as the Imperial Extradition Acts applied to Victoria before Federation, and when Victoria was clearly a British possession, it did not cease to apply when Victoria became federated, as the State retained the machinery necessary for the proceedings. In the third application, Mr Justice Holroyd held (with hesitation) not only that these Acts applied to Victoria, but that they do not as yet apply to the Commonwealth as a 'British possession'. The reasoning is not satisfactory, and seems to be based chiefly on the fact that the jurisdiction of the Police Magistrate exists by virtue of Victorian law (Extradition Act 1877).

These decisions are not binding on the other Judges in Victoria-much less on the Judges in the other States; and it is quite possible in the next case it may be held that an order issued by the State Governor is bad, on the ground that the power is now vested in the Governor-General. The whole of the extradition procedure is therefore involved in much uncertainty at present.

It is obviously desirable that for the purposes of extradition to other countries the Commonwealth should be dealt with as a whole. Requisitions, orders, warrants etc., would then run throughout the Commonwealth, instead of only in the State in which they are made or issued. And to prevent delay, the Governor-General might, under section 126 of the Constitution and paragraph VI of the Letters Patent constituting the office of the Governor-General, appoint deputies in each State to exercise his powers and functions in respect of extradition matters.

The Commonwealth Parliament clearly has power, under the heading of External Affairs, to legislate as to extradition.

In Canada, by Order in Council under section 7 of the Extradition Act 1870, the Imperial Extradition Acts have been suspended so long as the Dominion Extradition Act 1886 remains in force; and extradition is there accomplished under the Dominion Act.

In the Australian colonies, prior to Federation, extradition has been accomplished under the Imperial Extradition Acts, by virtue of section 17 of the Act of 1870. In New South Wales there has been no local legislation on the subject, and the duties of the Police Magistrate are apparently (by virtue of section 17 aforesaid) performed by the Governor sitting as an Extradition Court.

In the other colonies it has been found convenient to pass laws (confirmed by Order in Council under section 17) conferring upon Police Magistrates in those colonies the powers vested in the Police Magistrate in London.

There seems to be no sufficient reason at present for following the Canadian precedent, and passing a law to cover the whole ground of extradition procedure. The balance of convenience seems to be in favour of adopting the alternative method of legislating in aid of the Imperial Acts.

I recommend:

1. that a Commonwealth Act be passed on the lines of the Extradition Acts in the several States, vesting in appropriate magistrates the powers vested by the Imperial Acts in the Police Magistrate-and perhaps, to remove any doubts which may still exist, declaring that the powers and functions of the Secretary of State are vested in the Governor-General;
2. that the Secretary of State for the Colonies be then asked to advise His Majesty to give effect to such Act by Order in Council under section 17 of the Extradition Act'XZlQ, and to revoke the Orders in Council applying to the several States.

Fugitive offenders

With regard to the Fugitive Offenders Act 1881, attention is directed:

1. to the definition, in section 39, of 'British possession' and 'part of Her Majesty's dominions';
2. to the Order in Council of 23 August 1883, applying Part II of the Act to a 'group' of British possessions consisting of the several Australian Colonies, New Zealand and Fiji;
3. to the Commonwealth Service and Execution of Process Act 1901 (No. 11 of 1901) which provides for the interstate execution of warrants, and the attendance of witnesses.

In my opinion, the Commonwealth is a British possession within the meaning of this Act, and (for reasons similar to those stated in the answer to the questions of the Secretary of State for the Colonies in the case of extradition) the powers of the Governor are vested in the Governor-General. Moreover, there is room for doubt as to the exact effect of the Order in Council mentioned in view of the union of the Australian Colonies into a single 'British possession'.

No Commonwealth legislation seems to be necessary in the matter; but I recommend that the Secretary of State for the Colonies be asked to advise His Majesty to substitute for the present Order in Council an Order in Council applying Part II of the Fugitive Offenders Act to a group consisting of the Commonwealth, New Zealand, Fiji, and such other possessions as it may be thought desirable to include (e.g. British New Guinea).

If the above recommendations are adopted, it will probably be found convenient for the Governor-General to exercise, with respect to extradition and fugitive offenders, the power of delegation conferred by the King under section 126 of the Constitution, in order that there may be in each State a deputy of the Governor-General in these matters.

[Vol. 3, p. 93]