FEDERAL COURT OF AUSTRALIA
O’Connor v Zentai [2011] FCAFC 102
FEDERAL COURT OF AUSTRALIA
O’Connor v Zentai [2011] FCAFC 102
CORRIGENDUM
1 In paragraph 60 of the Reasons for Judgment of Justice Besanko, in the first sentence, the reference to ‘Art 5(2)(a)’ should read ‘Art 2(5)(a)’.
2 In paragraph 61 of the Reasons for Judgment of Justice Besanko, in the first and second sentences, the reference to ‘Art 5(2)(a)’ should read ‘Art 2(5)(a)’.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
Dated: 2 November 2011
FEDERAL COURT OF AUSTRALIA
O’Connor v Zentai [2011] FCAFC 102
CORRIGENDUM
1 In para 214 of the reasons of Jessup J given on 16 August 2011, delete the words “evidentiary trial” and insert the words “evidentiary trail”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup. |
Associate:
Dated: 24 February 2012
IN THE FEDERAL COURT OF AUSTRALIA | |
DATE OF ORDER: | |
WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The appeal be allowed in part.
2. Orders 2A and 3 made by the primary Judge on 10 December 2010 be set aside.
3. Order 4 made by the primary Judge on 10 December 2010 be varied by omitting all words and punctuation after “him” and by substituting therefor the following:
to determine, according to law, whether the applicant is to be surrendered to the Republic of Hungary in relation to the offence of war crime referred to in the extradition request made by the Republic of Hungary in its letter dated 23 March 2005.
4. The appeal otherwise be dismissed.
5. The parties have leave to file and serve written submissions on the question of costs in accordance with the following timetable:
(a) within 14 days – any party who seeks a costs order against another party;
(b) within a further 14 days – a party against whom a costs order has been sought, by way of response to the submissions filed and served under (a); and
(c) within a further 7 days – a party who claimed costs under (a) and whose submission in that behalf was the subject of a response under (b), by way of reply to that response.
6. For a period of 28 days, or should an application be made to the High Court for special leave to appeal, for a period of 49 days:
6.1 the order set out in paragraph 4 of the orders made by McKerracher J on 10 December 2010 in Federal Court proceeding No. WAD 220 of 2009, as varied by this court, be stayed; and
6.2 the orders made by McKerracher J on 16 December 2009 in Federal Court proceeding No. WAD 220 of 2009 whereby:
(a) the warrant issued by the second respondent, a Magistrate of the State of Western Australia, dated 20 August 2008 pursuant to subsection 19(9) of the Extradition Act 1988 (Cth), committing the first respondent to imprisonment in Hakea Prison, Canning Vale, Western Australia was stayed until further order of the Court;
(b) the first respondent was admitted to bail upon the conditions set out in Schedule 1 to the order,
shall remain in force.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 1 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS First Appellant COMMONWEALTH ATTORNEY-GENERAL Second Appellant THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON Third Appellant
|
AND: | CHARLES ZENTAI First Respondent BARBARA LANE Second Respondent THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON Third Respondent
|
JUDGES: | NORTH, BESANKO AND JESSUP JJ |
DATE: | 16 AUGUST 2011 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
NORTH J
1 I agree with the reasons for judgment of Jessup J and the conclusions he reaches on the grounds of appeal and the notices of contention save for the reasons and conclusions concerning ground 4 of the original application. I would reject ground 4 and consequently would allow the appeal.
2 Jessup J has set out the relevant facts, the statutory and treaty provisions, the reasons of the primary judge and the contentions of the parties on the appeal. It is not necessary to repeat that material except for the purpose of ease of reading these reasons, and for the purpose of emphasis in some instances.
the construction issue
3 Ground 4 raises an issue of construction of Art 2.5(a) of the Treaty on Extradition Between Australia and the Republic of Hungary (the Treaty) which provides:
5. Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a) it was an offence in the Requesting State at the time of the acts or omissions constituting the offence;
4 The appellant contends that the proviso in Art 2.5(a) requires that the conduct constituting the offence for which extradition is sought must have constituted an offence in Hungary at the time when the acts were done.
5 The first respondent, on the other hand, contends that Art 2.5(a) requires that the very offence in respect of which extradition is sought must have been an offence in Hungary at the time when the acts were done.
6 The wrongful conduct alleged against the first respondent occurred in 1944. It is alleged that, as a member of the Hungarian Royal Army, the first respondent captured a young Jewish man, Peter Balazs. It is said that he dragged Peter Balazs back to the barracks where he, Captain Mader and First Lieutenant Nagy assaulted Peter Balazs. Peter Balazs died of his injuries. Then it is alleged that the first respondent, Mader and Nagy dumped the body in the Danube River.
7 The war crimes offence for which Hungary seeks the extradition of the first respondent was introduced in 1945, that is to say, after the alleged criminal conduct of the first respondent.
8 However, under Hungarian law at the time when the alleged conduct occurred, it would have constituted the offence of murder under Art 278 of the Hungarian Criminal Code.
The principles of construction of extradition treaties
9 The principles which govern the construction of treaties derive from the Vienna Convention on the Law of Treaties (the Vienna Convention) and from the common law.
10 Article 31(1) of the Vienna Convention provides that a treaty should be interpreted in good faith and that the ordinary meaning is to be given to the terms of the treaty in their context and in the light of the object and purpose of the treaty.
11 Extradition treaties are intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Thus, extradition treaties should be accorded a broad and general construction so far as the text permits in order to facilitate extradition: Government of Belgium v Postlethwaite [1988] 1 AC 924 (Postlethwaite); In re Ismail [1999] 1 AC 320, 326-327; Rey v Government of Switzerland [1999] 1 AC 54; R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556.
12 In Postlethwaite Lord Bridge said at 947 in relation to the interpretation of extradition treaties:
[I]t must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose.
13 In The Commonwealth v Tasmania [1983] 158 CLR 1 Deane J said at 261:
International agreements are commonly “not expressed with the precision of formal domestic documents as in English law”. The reasons for this include the different importance attributed to the strict text of agreements under different systems of law, the fact that such agreements are ordinarily “the result of compromise reached at the conference table” and the need to accommodate structural differences in official languages: see Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed. (1979), p. 299.
14 There is something curious about the debate concerning the meaning of Art 2.5(a) in this case. The Treaty is an agreement between Australia and Hungary. These contracting parties agree on the construction of their agreement which holds that the circumstances of the first respondent fall within the terms of the Treaty. Article 31(3)(a) of the Vienna Convention provides that any subsequent agreement between the parties regarding the interpretation of the Treaty or the application of its provisions shall be taken into account, together with the context. The first respondent, who was not a party to the agreement, is thus forced to contend that those who made the agreement used words which bear a meaning which is the opposite of the meaning which the parties intended.
15 Whilst still considering the general approach to the construction of the Treaty, it should be noted the Treaty was concluded in both English and Hungarian, “both texts being equally authentic”. The Hungarian text was not placed before the Court and no argument was raised which depended on the Hungarian version of the Treaty. However, the fact that the Treaty is equally authentic in both languages underscores the need to avoid a construction which is overly literal and to give due recognition to the extradition context and to the object and purpose of the Treaty. What follows seeks to establish the ordinary meaning of the words of the Treaty in the context and by reference to the object and purpose of the Treaty.
The terms of the treaty
16 Article 1 establishes the central obligation of the parties to the Treaty, namely, the obligation to extradite a person from their territory. The obligation arises when that person is wanted for prosecution or has been convicted of “an extraditable offence against the law of the other Contracting State”.
17 Art 2.1 and Art 2.2 provide:
ARTICLE 2
EXTRADITABLE OFFENCES
1. For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2. For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a) it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
18 Article 2.1 has two related components. Its central concept is that extraditable offences are offences against the law of both Contracting States. Then it confines extraditable offences to those which attract a minimum specified level of punishment. From the outset it is made clear by Art 2.1 that the way in which an offence is described in either of the Contracting States is not material. Article 2.1 defines extraditable offences as offences “however described”.
19 Article 2.2 explains how it is to be determined whether an offence is an offence against the law of both Contracting States. This is the role of the opening words, “For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States.” Article 2.2(a) then provides that it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology. Article 2.2(b) provides that the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
20 There is thus an obvious and express linkage between Art 2.1 and Art 2.2. The concept of an offence against the law of both Contracting States is a concept introduced by Art 2.1. Article 2.2 states that it has the purpose of identifying those characteristics of the laws of each of the Contracting States which qualify them as laws of both of the Contracting States. Further, Article 2.2(a) has the effect of amplifying the reference in Art 2.1 that the extraditable offences are offences “however described” under the laws of both Contracting States.
21 Articles 2.1 and Art 2.2 implement the policy of dual criminality in this Treaty. That is to say, those Articles only oblige the Contracting States to extradite persons whose alleged conduct is against the laws of both countries.
22 But Art 2.1 and Art 2.2 have a further purpose. Article 2.1 provides a definition of extraditable offences, “For the purposes of this Treaty … ”. By reason of the linkage of Art 2.2 with Art 2.1, the provisions of Art 2.1 are part of the definition of extraditable offence for the purpose of the Treaty. Article 2.1 and Art 2.2 together define generally for the purposes of the Treaty what constitutes an extraditable offence. In so doing they address the characteristics of the laws of each of the Contracting States.
23 It is against that setting that the ordinary meaning of Art 2.5 must be considered. That Article is concerned with whether there is any limitation on the time after the commission of the offence when extradition might be granted. The starting point of Art 2.5 is that extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed. That general position is then confined by a proviso which requires reference to the state of the law in the Requesting State at the time of the alleged conduct. The proviso is obviously concerned to implement the principle that a person should not be subject to criminal liability unless the conduct was unlawful where and when it was done.
24 The phrase “the offence in relation to which extradition is sought” in the opening words of Article 2.5 is a reference to the extraditable offence under the law of the Requesting State. As Art 2.1 provides for a definition of extraditable offence for the purposes of the Treaty, the definition in Article 2.1 is applicable to the interpretation of the meaning of the offence referred to in the opening words of Art 2.5.
25 As explained earlier, there is a linkage between Art 2.1 and Art 2.2. Article 2.2(b) requires that the totality of the acts and omissions of the person whose extradition is sought shall be taken into account. Applying this provision to the construction of Art 2.5 means that the reference to “the offence in relation to which extradition is sought” includes a reference to the acts and omissions which constitute the offence for which extradition is sought. It then follows that the reference to ‘it’ in the proviso also includes a reference to the acts and omissions which constitute the offence. This is the ordinary meaning of the words of Art 2.5 in their context.
26 Applied to the circumstances of the present case this construction would ask whether the acts which constitute the war crime offence alleged against the first respondent were acts made criminal under the law applicable in Hungary when the acts were committed. The acts alleged to have been committed by the first respondent in 1944 constituted the crime of murder under Hungarian law. On this construction, the proviso to Art 2.5(a) was satisfied and there is no time limit on the extradition of the first respondent.
27 The object and purpose of the Treaty is to ensure that people are called to account for their wrong doing. The text of the Treaty construed or proposed by the appellant supports this objective. The construction advocated by the first respondent would not advance that objective.
28 The construction proposed by the first respondent would mean that the offence for which extradition is sought must have existed in terms when the acts were done. On this view, it is immaterial that another offence existed at the time which made that conduct criminal.
29 This construction elevates form over substance. It is inconsistent with the objective of the Treaty. For instance, in relation to the dual criminality requirement, formal correspondence between the offences in both Contracting States is not required provided the conduct in question is criminalised in both countries. There is no reason in principle why the Treaty would adopt a different approach to the issue of the time limitation on extradition.
30 Indeed, if Art 2.1 and Art 2.2 do not apply to the interpretation of Art 2.5, there is a strong argument that the Treaty positively excludes those considerations from the interpretation of Art 2.5. Then, the provision in Art 2.2(a) that differing descriptions of offences do not matter, and the absence of that provision in Art 2.5, would mean that such differences do matter in relation to Art 2.5. And when considering the question of time limitation for the grant of extradition, the Court would be concerned with comparing descriptions of offences for identicality rather than assessing whether the acts committed fell within the current offence for which extradition is sought.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
IN THE FEDERAL COURT OF AUSTRALIA | |
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 1 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS First Appellant COMMONWEALTH ATTORNEY-GENERAL Second Appellant THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON Third Appellant
|
AND: | CHARLES ZENTAI First Respondent BARBARA LANE Second Respondent THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON Third Respondent
|
JUDGES: | NORTH, BESANKO AND JESSUP JJ |
DATE: | 16 August 2011 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
Besanko J
31 This is an appeal from orders made by a judge of this Court on 15 November 2010. The primary judge published two sets of reasons for those orders: his principal reasons are contained in Zentai v Honourable Brendan O’Connor (No 3) (2010) 187 FCR 495, and the reasons relating to particular orders which he made including orders as to costs are contained in Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385.
32 I have had the advantage of reading the reasons for judgment of Jessup J. I agree with his Honour’s reasons and conclusions with respect to grounds 5, 5A, 6, 9, 10, 11 and 12, and have nothing further to add. I agree with his Honour’s conclusions with respect to grounds 3 and 4, but wish to express my own reasons for reaching those conclusions.
Ground 3
33 Under subsection 22(2) of the Extradition Act 1988 (Cth) (“the Act”) the Attorney-General or, in this case his delegate, the first appellant, was required to determine, after the first respondent became an eligible person, whether he was to be surrendered in relation to a qualifying extradition offence.
34 The expressions “eligible person” and “qualifying extradition offence” are defined in subsection 22(1). Those definitions in turn refer to earlier sections in the Act. Subsection 22(3) sets out a number of conditions which must be met before the decision-maker under subsection 22(2) can determine that an eligible person is to be surrendered in relation to a qualifying extradition offence.
35 Subsections 22(1), (2) and (3) provide as follows:
(1) In this section:
eligible person means a person who has been committed to prison:
(a) by order of a magistrate made under section 18; or
(b) by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.
qualifying extradition offence, in relation to an eligible person, means any extradition offence:
(a) if paragraph (a) of the definition of eligible person applies—in relation to which the person consented in accordance with section 18; or
(b) if paragraph (b) of the definition of eligible person applies— in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).
(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence;
(b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;
(c) where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable;
(i) the person will not be tried for the offence;
(ii) if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii) if the death penalty is imposed on the person, it will not be carried out;
(d) the extradition country concerned has given a specialty assurance in relation to the person;
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances—the Attorney-General is satisfied:
(iii) where subparagraph (i) applies—that the circumstances do not exist; or
(iv) where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
36 Regulations in relation to the Republic of Hungary have been made under s 11 of the Act. Those regulations are the Extradition (Republic of Hungary) Regulations 1997 and they commenced on 25 April 1997. The Regulations provide that the Republic of Hungary is declared to be an extradition country (reg 3) and that the Act applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (reg 4), a copy of which is set out in the Schedule (“the Treaty”).
37 Subsections 11(1), (1A), (1B) and (1C) of the Act provide as follows:
(1) The regulations may:
(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
(1A) The regulations may provide that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
(1B) Regulations may be made under both subsections (1) and (1A) in relation to a specified extradition country.
(1C) For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.
38 Section 6 of the Act contains a definition of “extraditable person”. For the purposes of this case it is sufficient to note that the definition includes a requirement that the person is “accused” of having committed the offence in respect of which the warrant for his arrest is in force.
39 A magistrate considering the issue of a warrant for the arrest of a person must be satisfied that the person is an extraditable person (s 12) as must the Attorney-General in deciding whether to give a notice under s 16. By contrast, a magistrate determining eligibility for surrender under s 19 need not address whether the person is an extraditable person (Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (“Kainhofer”)). Nor is that matter expressly referred to in s 22 of the Act.
40 The nature and provenance of Attachment C is described in the reasons for judgment of Jessup J (at [83]). The author of the document addresses the general discretion to surrender in s 22(3)(f) of the Act. It was in the context of that discretion that the author considered the representations made to the decision-maker by the first respondent. One of those representations was to the effect that the first respondent’s extradition was sought for the purposes of his interrogation about possible involvement in the offence rather than for prosecution. That representation was based for the most part on the information contained in a letter from the leader of the Military Panel in Hungary dated 17 March 2009. Clearly, the information in that letter was provided after the determinations made under ss 12, 16 and 19 respectively. The author of Attachment C sets out the arguments of the first respondent and the response of the Republic of Hungary, and the comments of the Department, which comments include references to the reasons for judgment of Gummow J in Kainhofer concerning the meaning of “accused” within the definition of extraditable person. The author of Attachment C provides advice to the effect that it is open to the Minister to be satisfied that the first respondent is a person who is accused within s 6 of the Act, and that therefore the first respondent’s allegation should not be afforded such weight in the exercise of the decision-maker’s discretion as to refuse surrender.
41 The primary judge considered whether the first respondent was accused of an offence rather than wanted for interrogation. He noted that the information that supported the first respondent’s argument that he was wanted only for interrogation came to light in 2009 and that this was after the Minister, as delegate of the Attorney-General, had decided to give a notice under s 16 of the Act. He noted the provisions of the Act and Treaty which were relevant to the question of whether the first respondent was a person who is accused (Act s 6; Treaty Arts 1 and 5 (2)(a)). The primary judge appeared to reject the argument that he could determine that the earlier decisions under ss 16 and 19 were nullities because the first respondent was not a person who is accused within s 19(2) of the Act.
42 The primary judge found that the first respondent was not “accused” for the purposes of the Act. He held that the Minister’s determination that the first respondent be surrendered was a nullity. As I read the primary judge’s reasons he did so on two alternative grounds, the first going to the Minister’s power and the second going to his discretion.
43 As to the first ground, the primary judge held that because the first respondent as a matter of fact was “not ever capable” of being found an “eligible person” under s 19(2) of the Act, the Minister had no power to make a determination for his surrender for extradition under s 22 of the Act. Having regard to the terms of subsections 19(1) and (2) it seems to me that it is implicit in the primary judge’s reasoning that he held that the first respondent was not an eligible person within s 19(2) because he was not capable of being an extraditable person within s 16 of the Act.
44 In my respectful opinion, in adopting this approach the primary judge erred. It is not a condition of the decision-maker’s power in subsection 22(2) that he or she consider and determine matters which were relevant at earlier stages of the process which ultimately leads to the surrender or release of a person. It is not a condition of the power in subsection 22(2) that the decision-maker under that subsection be satisfied of the matters which condition the exercise of the power in s 16. The power in subsection 22(2) is not dependent on a jurisdictional fact that the relevant person be an accused person for the purposes of the Act. The conditions for the exercise of the power in subsection 22(2) are set out in the section itself and, in particular, subsections 22(2) and (3) and they do not include whether the first respondent was an accused person for the purposes of the Act. In my respectful opinion, the primary judge erred in deciding that it was necessary or open to him to decide whether as a matter of fact the first respondent was an accused person for the purposes of the Act. That was not a jurisdictional fact for the purposes of the power in subsection 22(2).
45 As to the second ground relied on by the primary judge, he held that the Minister’s discretion miscarried. He considered that a requirement that the Minister consider any new material which was relevant to whether a person was an extraditable person within s 6 of the Act should be implied into s 22. He referred to the decision in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 and found that the Minister ignored the new material, that is, the material which came to light in 2009. He said that the Minister approved the surrender of the first respondent despite actual or constructive knowledge that he was not an “extraditable person” and in doing so defeated the purpose of the Act.
46 The primary judge was clearly aware that Attachment C contained details of the information which came to light in 2009. It would seem then that to conclude that the Minister ignored the information he must have considered that the information was so compelling that the Minister’s decision to surrender the first respondent could not have been made unless the Minister ignored the information. Indeed the primary judge had earlier made a finding of fact that the first respondent was not “accused” for the purposes of the Act.
47 In my respectful opinion, in adopting this approach the primary judge erred. Two distinct matters need to be identified, namely, an obligation to consider a relevant matter when making a decision and an obligation to consider the most current information available to the decision-maker with respect to a relevant matter.
48 In my opinion, there is nothing in the subject-matter, scope or purpose of the Act which supports the conclusion that the decision-maker under subsection 22(2) is bound to consider whether the eligible person as that expression is defined in subsection 22(1) is an extraditable person within s 6 of the Act. In fact, as the authorities show, the structure of the Act supports the conclusion that the decision-maker is not required to do that. The obligation to consider the most current information available to the decision-maker only attaches to a matter which the decision-maker is bound to consider. The primary judge erred in concluding that the Minister had failed to take into account a relevant consideration.
49 However, that is not the end of the matter. The decision-maker under subsection 22(2) has a general discretion under subparagraph 22(3)(f) to determine whether surrender should take place and the decision-maker cannot exercise that general discretion in a way which gives rise to Wednesbury unreasonableness. Depending on the circumstances of a particular case that may mean that a failure to consider, or consider properly, new information which is relevant to whether surrender should take place could lead to the invalidity of the decision. However, that result would follow because there was Wednesbury unreasonableness not because of a failure to consider a matter.
50 I do not need to explore these issues of the proper approach any further because I am satisfied that based on the information in Attachment C it would be open to a decision-maker to conclude that the first respondent was an accused person for the purposes of the Act. In those circumstances there can be no Wednesbury unreasonableness. If, contrary to my view, the matter should be analysed in terms of an obligation to take into account a relevant matter, there is nothing to suggest that the Minister did not consider the information which came to light in 2009 and reach a view that the first respondent was an accused person within the provisions of the Act. As I have said, that was a view that was reasonably open to him.
51 In Kainhofer, Gummow J discussed in some detail the question of when a person is a person who is accused. His Honour considered that there is a distinction between a person wanted for prosecution on the one hand and a person against whom there were on foot “merely inquiries preliminary to the institution of a prosecution”, or who was subject to inquiries “as to whether a prosecution should be instituted” on the other (at 563). His Honour said (at 564):
The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.
52 In this case the information which came to light in 2009 included a statement that there was at present no criminal proceeding against the first respondent before the Military Panel of the Metropolitan Court and that following presentation of the first respondent to the Budapest Military Prosecutor’s Office, the Military Prosecutor’s Office will decide on the basis of the available evidence whether or not to bring a charge against him.
53 On the other hand, the Minister had before him the warrant for the arrest of the first respondent issued by the Republic of Hungary and that warrant referred to a grave suspicion against the first respondent. Furthermore, the Minister had evidence from the Republic of Hungary that a grave suspicion was the same as a well-founded suspicion and that under continental law, criminal proceedings are started when a well-founded suspicion (probable cause) of committing an offence arises. The cases make it clear that in construing terms which relate to the criminal procedure of other countries, extradition statutes and treaties are to be given a broad and generous construction and one that involves a reasonable cosmopolitan interpretation (Kainhofer at 533 per Brennan CJ, Dawson and McHugh JJ; at 564 per Gummow J; Re Ismail [1999] 1 AC 320; Asztaslos v Szekszard City Court, Hungary [2011] 1 WLR 252 at 263-266 [37]-[49].
54 In light of the material to which I have referred and to which Jessup J refers (at [92]-[94]) it was open to the Minister to reach the conclusion that the new information did not alter the first respondent’s status as a person who is accused for the purposes of the Act.
55 The primary judge should have rejected Ground 3 of the Grounds of Review and the orders he made cannot be sustained on this ground. In the circumstances I do not need to consider in this context whether the orders the primary judge made and, in particular, the declaration in paragraph 2A, could be sustained even if the appellants had not been successful with respect to this ground.
Ground 4
56 Article 2 of the Treaty is entitled “Extraditable Offences” and is in the following terms:
ARTICLE 2
EXTRADITABLE OFFENCES
1. For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2. For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a) it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
3. Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, foreign exchange control or other revenue matter extradition may not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, duty, customs, or exchange regulation of the same kind as the law of the Requesting State.
4. Where the offence has been committed outside the territory of the Requesting State extradition shall be granted where the law of the Requested State provides for the punishment of an offence committed outside its territory in similar circumstances. Where the law of the Requested State does not so provide the Requested State may, in its discretion, grant extradition.
5. Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a) it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and
(b) the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.
57 The first respondent put to the Minister that the offence for which his extradition was sought was not an “extraditable offence” because it did not meet the requirements of Art 2(5)(a) of the Treaty. The offence allegedly occurred on 8 November 1944 and the law under which it is intended to prosecute the first respondent was originally created in 1945 under section 11 paragraph 5 of Law-Decree No. 81/1945 (“1945 Decree”). The 1945 Decree operates retrospectively so that the alleged conduct of the first respondent occurring at an earlier time is punishable under the Decree. The first respondent put to the Minister that the offence for which his extradition is sought was not an offence in the Republic of Hungary at the time of the acts or omissions constituting the offence.
58 The first respondent’s submission is dealt with in Attachment C. The author of that document notes that the Republic of Hungary asserted that the first respondent’s conduct would have constituted the offence of “murder” in Hungary at the time of the alleged conduct under Art 278 of Act V of 1878 of the Hungarian Criminal Code and would therefore have been criminal at the time the conduct allegedly occurred. The author of Attachment C expresses the view that as long as the conduct constituted an offence at the time it was carried out art 2(5)(a) did not preclude extradition.
59 The primary judge construed Art 2(5)(a) as requiring that the actual offence for which extradition was sought be an offence at the time of the act or omissions constituting the offence. The primary judge said that that was not the case in the matter before the Minister and therefore it was not open to him in the exercise of his s 22 discretion “to surrender for extradition a person when the offence of which the person was ‘suspected’ (not charged) did not exist at the relevant time”.
60 The first matter to be addressed is the source of the obligation on the decision-maker under subsection 22(2) to consider whether the provisions of Art 5(2)(a) have been satisfied. The Full Court of this Court in Zentai v Republic of Hungary (2009) 180 FCR 225 at 231 [32] and 241 [76] suggested that there was such an obligation without identifying its precise source. The author of Attachment C put the matter between discussion of the mandatory grounds for surrender in Art 3(1) of the Treaty and discussion of the discretionary grounds for surrender in Art 3(2).
61 In my opinion the obligation to consider whether the provisions of Art 5(2)(a) of the Treaty are met arises by reason of the fact that the definition of extraditable offences is effectively part of the limitations, conditions, qualifications or exceptions in the Treaty which the decision-maker must consider under subsection 22(2)(e) of the Act. Furthermore, although there may be room for differences in result in applying the proper construction of Art 5(2)(a) to the facts, the proper construction itself is a question of law and an erroneous construction by the decision-maker will result in a jurisdictional error. I reject the appellant’s contention that as long as the decision-maker adopts a construction reasonably open to him or her there is no jurisdictional error.
62 The proper construction of Art 2(5)(a) of the Treaty is not free of difficulty. If one considers only the text of Art 2(5)(a) then the text supports the first respondent’s construction because the pronoun “it” is a reference back to the expression “the offence in relation to which extradition is sought”. If one considers the text of Art 2(5) as a whole then again it seems to provide some support, albeit limited, for the first respondent’s construction. Article 2(5)(b) deals with the criminality of the conduct in the Requested State and the time at which that is to be determined. The fact that the paragraph uses the expression “the acts or omissions alleged” and that the same expression could have been used at the beginning of paragraph (a) if the intention of the parties to the Treaty was that suggested by the appellants, supports the first respondent’s construction.
63 The other provisions in Art 2 must also be considered. Article 2(1) deals with a particular feature that extraditable offences must bear and identifies a requirement which is also contained in the Act (s 5). I do not think the use of the words “however described” in Art 2(1) bears upon the proper interpretation of Art 2(5)(a). It is addressed to the particular matter in Art 2(1). Article 2(2), (3) and (4) relate to the double criminality requirement which finds expression in Art 2(5)(b). It mandates a broad and flexible approach to that requirement. The extent to which it mandates a different approach from that discussed by the High Court in Riley v The Commonwealth of Australia (1985) 159 CLR 1 may be debated, but the point is that it is not addressed to a comparison between an offence in the Requesting State at the time the acts or omissions were carried out and the offence for which the Requesting State seeks extradition. That, it seems to me, is quite a different matter. The double criminality requirement requires a comparison between the offence in the Requesting State which is the subject of the warrant for arrest and an offence against the laws of the Requested State.
64 In interpreting the provisions of the Treaty I must have regard to the principles of interpretation applicable to treaties. The Vienna Convention on the Law of Treaties provides a general rule for the interpretation of treaties in Art 31 as follows:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
65 I refer also to Art 32 without setting it out.
66 In England it seems to be generally accepted that extradition treaties are to be given a broad and generous construction so far as the text permits it in order to facilitate extradition: In re Ismail [1999] 1 AC 320 at 327 per Lord Steyn.
The Court was not referred to any authority of the High Court which has adopted the approach taken by Lord Steyn. On the one hand, extradition does involve a deprivation of liberty and disruption of lives: Riley v The Commonwealth of Australia (1985) 159 CLR 1 at 15 per Deane J. On the other hand extradition does not involve a determination of guilt or innocence and is not part of the criminal justice system: s 3 of the Act; Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 629 [33]-[34] per Gleeson CJ. I am disposed to think that the approach suggested by Lord Steyn is no different from the purposive approach laid down in Arts 31 and 32 of the Vienna Convention. The approach laid down in Arts 31 and 32 is the approach I must take (The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 222-223 per Brennan J; Riley v The Commonwealth of Australia (1985) 159 CLR 1 at 15 per Deane J; Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 per Dawson J; at 356-357 per McHugh J).
67 The Act contains a statement of objects (s 3) but they are expressed broadly and I do not think that they provide direct assistance in terms of the issue of construction raised in this case. The Treaty contains a statement in Art 1 of the “Obligation to Extradite” and it is in the following terms:
The Contracting States undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for prosecution by a competent authority for, or has been convicted of, an extraditable offence against the law of the other Contracting State.
68 I do not think this article supports a broader construction of Art 2(5)(a) because it is expressed to be “subject to the provisions of this Treaty” and because the undertaking is referred to in terms of an “extraditable offence” and that clearly directs attention to Art 2.
69 I have hesitated before rejecting the appellants’ construction of Art 2(5)(a) of the Treaty for two reasons. First, in a case such as the present I do not think that the appellants’ construction would be seen as frustrating the broad purposes of the Treaty or indeed as not advancing the broad purposes of the Treaty. Secondly, I do not think that there must be a precise identification between the offence in the Requesting State at the time of the acts or omissions and the offence for which extradition is sought. I would interpret the Treaty as allowing for minor variations such as changes in the name of the Act or Decree and changes so as to bring the language up to date. My approach means that there will be two tests, one a broader test which is applied when considering the double criminality requirement and a quite narrow test where consideration must be given to whether the requirement in Art 2(5)(a) is satisfied.
70 Despite these considerations I think the text of Art 2(5)(a) is sufficiently clear and that, subject to the minor qualification I have identified, extradition under the Treaty and the Act may only take place where the offence for which extradition is sought is the offence at the time the acts or omissions were carried out.
71 It follows then that the Minister applied an erroneous construction of the provisions of the Treaty and that that gave rise to a jurisdictional error. Furthermore, it seems to me that it can be said in this case that had the proper construction of Art 2(5)(a) been adopted the decision under subsection 22(2) would have been that the first respondent was not to be surrendered. That is because the offence for which extradition is sought, namely, war crime, was not an offence in the Republic of Hungary in November 1944.
72 With respect to the orders made by the primary judge, I agree with the conclusions of Jessup J concerning orders 2A, 3 and 4 and I agree with the orders his Honour proposes for the disposition of the appeal.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
Dated: 16 August 2011
IN THE FEDERAL COURT OF AUSTRALIA | |
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 1 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS First Appellant COMMONWEALTH ATTORNEY-GENERAL Second Appellant THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON Third Appellant
|
AND: | CHARLES ZENTAI First Respondent BARBARA LANE Second Respondent THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON Third Respondent
|
JUDGES: | NORTH, BESANKO AND JESSUP JJ |
DATE: | 16 August 2011 |
PLACE: | melbourne |
REASONS FOR JUDGMENT
Jessup J
73 This is an appeal from orders made by a single Judge of the court on 10 December 2010, for reasons which his Honour gave both on 2 July 2010 and on the date of the orders. The proceeding at first instance arose out of a determination made on 12 November 2009 by the first appellant, the Minister for Home Affairs (“the Minister”), as delegate of the second appellant, the Attorney-General, that the first respondent, Charles Zentai (“the respondent”), be surrendered for extradition to the Republic of Hungary (“Hungary”) pursuant to s 22(2) of the Extradition Act 1988 (Cth) (“the Act”). The respondent challenged that determination under s 39B of the Judiciary Act 1903 (Cth). That challenge was successful, the primary Judge ultimately granting relief in the nature of certiorari in relation to the determination of 12 November 2009, making corresponding declarations, and requiring, by mandamus, the Minister to determine that the respondent not be surrendered to Hungary and to order the release of the respondent.
The facts in outline
74 In the Australian context, the circumstances relevant to the present appeal commenced with a letter dated 23 March 2005 from the Hungarian Ministry of Justice to the Attorney-General seeking the extradition of the respondent from Australia to Hungary for the purpose of prosecution under an arrest warrant issued on 3 March 2005 by a Military Judge of the Military Division of the Budapest Metropolitan Court. The offence for which the respondent was wanted in Hungary was a “war crime” alleged to have been committed in 1944, and described by Hungary in the following terms:
… a war crime violating section 165 of Act IV of 1978 of the Hungarian Criminal Code in conjunction with section 11, paragraph 5 of Law-Decree No. 81/1945 (II.5) ME on People’s Jurisdiction enacted by Act VII of 1945, amended and complemented by Decree No. 1440/1945 (V.1.) ME (1 count).
The Hungarian arrest warrant, as translated into English, identified the war crime in question as follows:
A person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad.
75 As set out in the reasons of the primary Judge, the circumstances said to sustain the prosecution of the respondent were as follows:
1. [The respondent] was a soldier in the Hungarian Royal Army attached to a unit stationed at Budapest.
2. Whilst on patrol duty [the respondent] captured Mr Peter Balazs (a young man of Jewish origin).
3. [The respondent] dragged Mr Balazs back to the unit's army post.
4. [The respondent] and two other soldiers (Captain Mader and First Lieutenant Nagy) assaulted Mr Balazs over a number of hours. Mr Balazs died of his injuries.
5. [The respondent], Captain Mader and First Lieutenant Nagy weighted Mr Balazs' body and threw it into the Danube River.
76 On 8 July 2005, four events took place in consequence of the receipt of the extradition request from Hungary. First, a Magistrate issued a provisional warrant for the arrest of the respondent under s 12(1) of the Act, which provides as follows:
(1) Where:
(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person; and
(b) the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate shall issue a warrant, in the statutory form, for the arrest of the person.
Paragraph (b) of this subsection called up the definition of “extraditable person” in s 6 of the Act which, to the extent presently relevant, provides as follows:
Where:
(a) either:
(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act;
….
(b) the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.
77 Secondly, the respondent was arrested pursuant to the s 12 warrant and remanded on bail, subject to conditions, pursuant to s 15(2) of the Act.
78 Thirdly, the Attorney-General issued a notice under s 16 of the Act, subss (1) and (2) of which provide as follows:
(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) The Attorney-General shall not give the notice:
(a) unless the Attorney-General is of the opinion:
(i) that the person is an extraditable person in relation to the extradition country; and
(ii) that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or
(b) if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.
79 Fourthly, proceedings were commenced in relation to the respondent under s 19 of the Act, subs (1) of which provides as follows:
(1) Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d) the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
80 It does not appear what stage the s 19 proceedings had reached by 6 February 2006, but, on that day, the respondent commenced proceedings in this court challenging the validity of the functions conferred on State Magistrates under the Act. That challenge was ultimately taken to the High Court, where it was determined adversely to the respondent on 23 April 2008: Zentai v Republic of Hungary (2008) 234 CLR 599.
81 On 20 August 2008, the s 19 Magistrate determined that the respondent was eligible for surrender to Hungary, and committed the respondent to prison pursuant to s 19(9) of the Act, which provides as follows:
(9) Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:
(a) by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5);
(b) inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21 (1); and
(c) record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.
On the same day, the respondent applied for a review of the s 19(9) order pursuant to s 21 of the Act. That review was heard and determined by a Judge of the court, and ultimately (on 8 October 2009) by the Full Court on appeal, adversely to the respondent: Zentai v Republic of Hungary (2009) 180 FCR 225.
82 The Magistrate’s order under s 19(9) of the Act triggered the operation of s 22, the provisions of which are central to the present appeal. To the extent relevant, those provisions are:
(1) In this section:
eligible person means a person who has been committed to prison:
(a) by order of a magistrate made under section 18; or
(b) by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.
qualifying extradition offence, in relation to an eligible person, means any extradition offence:
(a) if paragraph (a) of the definition of eligible person applies - in relation to which the person consented in accordance with section 18; or
(b) if paragraph (b) of the definition of eligible person applies - in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).
(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
….
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances – the Attorney-General is satisfied:
(iii) where subparagraph (i) applies – that the circumstances do not exist; or
(iv) where subparagraph (ii) applies – either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
As will be noted, the s 19(9) order made the respondent an “eligible person” as defined, and required the Attorney-General to determine whether the respondent was to be surrendered to Hungary. In the present case, that task fell to the Minister, as delegate of the Attorney-General.
83 On 6 November 2009, the (or a) First Assistant Secretary, International Crime Co-Operation Branch, of the Attorney-General’s Department forwarded a written submission to the Minister in which it was recommended that he determine, under s 22(2) of the Act, that the respondent be surrendered to Hungary, and that he sign a warrant for the respondent’s arrest under s 23 of the Act. There were 12 attachments to that submission, seemingly covering everything that might be relevant under s 22. One of those, Attachment C (“Att C”) was a detailed departmental advice on the statutory criteria – both categorical and discretionary – that arose for consideration under s 22. In ways that will appear below, Att C played a significant part in the primary Judge’s resolution of the questions that came before him. In the absence of any reasons for the Minister’s determination which were available to the respondent, in a number of respects his Honour resorted to Att C as a kind of inferential facsimile of what the Minister’s reasons most probably were.
84 On 12 November 2009, the Minister determined that the respondent was to be surrendered to Hungary, pursuant to s 22 of the Act. This was done by circling the word “approved” as it appeared at the foot of the First Assistant Secretary’s submission. On the same day, the Minister (again acting as the delegate of the Attorney-General) issued a warrant for the surrender of the respondent into the custody of Hungarian police officers, pursuant to s 23 of the Act, which provides:
Where the Attorney-General determines under subsection 22 (2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section.
THE PLACE OF THE TREATY IN THE SCHEME OF s 22
85 As appears from the extract from s 22 of the Act set out above, subs (3) thereof contemplates that the Act may apply in relation to a country “subject to a limitation, condition, qualification or exception” that either requires or permits the surrender of the person concerned in certain circumstances. Such an application of the Act would arise because of s 11, subs (1) of which provides as follows:
(1) The regulations may:
(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b) make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
In relation to Hungary, there were regulations which made a statement of the kind contemplated by para (a) of this provision. They were the Extradition (Republic of Hungary) Regulations (“the regulations”), reg 4 of which provided:
4. The Extradition Act 1988 applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (a copy of which is set out in the Schedule).
86 The treaty referred to in reg 4 of the regulations was the Treaty on Extradition Between Australia and the Republic of Hungary (“the Treaty”), set out in the Schedule to the regulations. In the circumstances of the present case, the following provisions of the Treaty were relevant, or potentially relevant, because of the operation of s 22(3)(e) of the Act:
ARTICLE 1
The Contracting States undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for prosecution by a competent authority for, or has been convicted of, an extraditable offence against the law of the other Contracting State.
ARTICLE 2
1. For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2. For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a) it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
….
5. Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a) it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and
(b) the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.
ARTICLE 3
….
2. Extradition may be refused in any of the following circumstances:
(a) if the person whose extradition is sought is a national of the Requested State. Where the Requested State refuses to extradite a national of that State it shall, if the other State so requests and the laws of the Requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken;
(b) if the competent authorities of the Requested State have decided to refrain from prosecuting the person for the offence in respect of which extradition is sought;
…
(f) if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.
The respondent’s grounds at first instance
87 On 4 December 2009, the respondent commenced the proceeding from which the present appeal arises. He sought certiorari, and corresponding declarations, with respect to the Attorney-General’s notice of 8 July 2005 under s 16 of the Act, the Magistrate’s decision of 20 August 2008 under s 19 of the Act and the Minister’s determination of 12 November 2009 under s 22 of the Act. For the purpose of the challenge to the s 19 decision, the respondent joined the Magistrate to his proceeding, and she is now the second respondent in the present appeal. Also a respondent to the initiating proceeding, and joined as the third respondent to the present appeal, was the Western Australian Officer in Charge, Hakea Prison, but nothing further needs to be said in relation to this party.
88 The respondent’s case at first instance was based on 13 specific grounds, each of which was particularised in terms that were both factual and argumentative. The primary Judge’s reasons were organised around these grounds, and the parties’ cases on appeal have been likewise. It is convenient, then, to lay out the nature of the respondent’s case, and the content of his Honour’s reasons, by reference to the respondent’s grounds.
89 Omitting Grounds 7 and 8, which were decided adversely to the respondent below and as to which he makes no contention in the present appeal, the respondent’s grounds were as follows:
1. The Second Respondent, acting through his delegate, the Minister for Justice and Customs of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an “extraditable person”, and made a jurisdictional error, in deciding to issue, and issuing, pursuant to s.16 of the Act, a Notice of Receipt of Extradition Request (the s.16 Notice) on 8 July 2005.
Particulars
(a) According to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court (“Military Panel”) and accepted as correct by the Hungarian Government, the extradition of the Applicant is only sought for the purposes of preliminary investigation about his involvement in the alleged war crime, and there is no indictment currently before the Panel charging him with the alleged offence.
(b) As the proceedings instituted in the Military Panel are essentially investigative and preliminary and not at a more advanced state involving the laying of any charge, the Applicant is not a person who is “accused” (within the meaning of s.6(a) of the Act) of having committed the alleged offence of war crime in relation to which the Republic of Hungary's request for extradition was made.
(c) The statutory requirement that an “extraditable person” be “accused” of a relevant extradition offence is not met by equating it with expressions such as “wanted for prosecution”, or being “suspected of committing” the relevant offence.
(d) The Applicant therefore is not and never was an “extraditable person” within the meaning of, and for the purposes of, the Act.
(e) As the Applicant was not an “extraditable person” when the Extradition Request was made by the Republic of Hungary to the Australian Government, the Second Respondent should not have acted upon the Extradition Request by issuing the s.16 Notice. To do so was beyond his statutory power.
(f) The s.16 Notice was therefore unlawful and void.
2. The order made on 20 August 2008 by the Third Respondent, after conducting eligibility proceedings under s.19 of the Act, pursuant to s.19(9) of the Act, committing the Applicant to imprisonment in Western Australia, was beyond jurisdiction, unlawful and void.
Particulars
(a) Eligibility proceedings under s.19 of the Act cannot be conducted unless, as required by s.19(1)(b) of the Act, the Attorney-General has directed “a notice under s.16(1)” to a magistrate.
(b) By reason of the matters particularised in the preceding Ground, the s.16 Notice directed to the Third Respondent on 8 July 2005 by the Second Respondent, purportedly pursuant to s.16(1) of the Act, was unlawful and of no legal effect.
(c) Therefore the Applicant should not have been found to be an “eligible person”, and the Third Respondent had no power or jurisdiction to conduct proceedings under s.19 of the Act, or to make the order, on 20 August 2008, pursuant to s.19(9) of the Act, committing the Applicant to prison.
3. The Minister (First Respondent) made an error of law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was capable of being surrendered under the Act, and made a jurisdictional error, in finding that the Applicant was an “eligible person” within the meaning of s 19(2) of the Act, and for the purposes of s 22 of the Act in relation to an extradition offence of war crime established by s 165 of the Hungarian Criminal Code Act IV of 1978 in conjunction with s 11 para 5 of Prime Minister's-Decree No 81/1945 (II.5) ME on the Peoples Jurisdiction enacted by Act VII of 1945 amended and complemented by Decree No 1440/1945 (V.1.) ME (“war crime”).
Particulars
(a) The Applicant repeats Particular 1(a).
(b) The Applicant repeats Particular 1(b).
(c) The Applicant repeats Particular 1(c).
(d) The Applicant repeats Particular 1(d).
(e) In apparently concluding that the Applicant satisfies the definition of an “extraditable person”, and hence “eligible person”, the Minister failed to have proper regard to the legal distinction between preliminary investigative process and the more advanced state of affairs where charges are laid or are imminent, and was inferentially misled to an incorrect understanding of the relevant legal concept of “accused” by the reference in Departmental Attachment C (para 262; also para 190) to the Australian High Court authority of Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 which is cited for the proposition that extradition legislation must be construed so as to recognize differences between the common law and continental systems of criminal law, but omitting reference to the passage from Gummow J in Kainhofer (at [88]), cited in the Applicant’s Supplementary Submission dated 26 October 2009, in which his Honour made the above relevant distinction is made. [sic]
(f) As the Applicant was not an “extraditable person” when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced, and he should not have been found to be an “eligible person” by the Magistrate for the purposes of sub-ss 19(2) and (9) of the Act.
(g) As the Applicant was incapable of being found to be an “eligible person” under sub-s 19(2) of the Act the Minister had no power to make a determination for his extradition under s 22 of the Act.
(h) In consequence, the Minister’s determination that the Applicant should be surrendered for extradition is not authorised by law and is a nullity.
4. The Minister further erred in law and made a jurisdictional error, in determining that the Applicant was eligible to be surrendered under s 22 of the Act, in relation to a “qualifying extradition offence” of war crime, and that determination was not authorised by the Act and was a nullity.
Particulars
(a) By virtue of Article 2 paragraph 5(a) of the Extradition Treaty between Australia and the Republic of Hungary 1995 (“Extradition Treaty”), as incorporated into the Act under of s 11 of the Act and the Extradition (Republic of Hungary) Regulations 1997, the alleged war crime was not an offence under Hungarian municipal law at the time (8 November 1944) when the conduct constituting the offence is alleged to have occurred.
(b) “War crime” was not made an offence under the Hungarian Criminal Code until legislation of Hungary enacted by Decree No 81/1945 (1945 Decree) which was purportedly given retrospective effect in Hungary by s 1 of the 1945 Decree.
(c) Relative to extradition requests by the Republic of Hungary, the effect of Article 2 paragraph 5(a) of the Extradition Treaty is that conduct which was not a criminal offence under Hungarian law at the time the conduct occurred is not an “extradition offence”, as defined by s 4 of the Act.
(d) Unlike other international instruments such as the European Convention on Human Rights 1950 (ECHR), the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Rome Statute establishing the International Criminal Court (where non-retrospectivity clauses are qualified by an exception in the case of war crimes) the Extradition Treaty contains no such exception.
(e) The alleged offence is therefore not an “extradition offence”, and is therefore not an offence in relation to which the Minister may, under s 22 of the Act, order that the Applicant be surrendered to Hungary.
5. The Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Article 3 paragraph 2(a) of the Extradition Treaty, he should refuse extradition, having regard to the fact that the Applicant is a national of Australia, and all other relevant factors. Alternatively, his decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.
Particulars
(a) The Minister had a duty, imposed by Paragraph 2(a) of Article 3, to give primary consideration to the fact that the Applicant is an Australian citizen and national, given that Hungary may request Australia to submit the case to competent authorities in Australia, to consider whether to prosecute the Applicant in Australia.
(b) The Minister fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it, purportedly on the ground of a long-standing “policy” that Australia will not refuse extradition on the basis of Australian citizenship alone.
(c) The Minister further fettered the exercise of his discretion by giving undue precedence to Australia’s obligation, under the Extradition Treaty, to respond to the Republic of Hungary's extradition request, without having a balanced or any regard to Australia's other obligations and responsibilities under that Treaty to the Applicant, as an Australian citizen.
(d) In so doing, the Minister failed to take into account the fact that Australia has a primary obligation to afford diplomatic protection to the Applicant, as an Australian national, and to save him from undergoing foreign criminal procedures unnecessarily, if either a Hungarian request is made under Article 3 paragraph 2(a), or Australia of its own motion considers whether, as an Australian national resident in Australia, the Applicant can and should be prosecuted under Australian law for the alleged war crime.
(e) The Minister further failed to satisfy himself as to whether Australia or Hungary had primary responsibility for prosecuting the Applicant, given that the Applicant had ceased to be, by force of Hungarian law applicable in 1944-1945, an Hungarian national, having failed to return to Hungary in response to an official summons to do so.
(f) The Minister should have had regard and failed to have regard to the fact that Australia has a primary obligation to afford the Applicant diplomatic protection, to prevent any unnecessary or disproportionate distress and disruption that his extradition would occasion if removed from Australia; or to the question of whether, as an alternative to Hungarian proceedings, the Applicant might be investigated and (if thought appropriate) prosecuted for the alleged war crime under Australian war-crimes legislation.
5A. The First Respondent erred in law and fact and made a jurisdictional error in deciding that there was no basis for finding that the competent Australian prosecuting authorities, the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP), had not, within the meaning of, and for the purposes of Article 3(2)(b) of the Extradition Treaty, decided to refrain from prosecuting the Applicant for the alleged offence in respect of which extradition is sought, thereby failing to give relevant and proper consideration under section 22 of the Act to whether Australia as the Requested State should refuse to surrender the Applicant for extradition.
Particulars
(a) According to paragraphs 112, 116 and 117 of Departmental Attachment C the AFP, having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting the Applicant for an offence under the War Crimes Act 1945 (Cth) and sought advice from the CDPP regarding whether such a prosecution could be initiated in Australia. Upon receiving advice from the CDPP that in the absence of any testimony from living witnesses to support the documentary evidence the CDPP was unable to conclude that there was a prima facie case to support a prosecution under the War Crimes Act, the AFP determined not to proceed further.
(b) Having regard to the exchange of information between the AFP and the CDPP and its outcome, there was in the circumstances an actual or constructive refraining by Australia’s competent authorities from prosecuting the Applicant and Article 3(2)(b) of the Treaty was therefore engaged.
(c) The First Respondent wrongly took into account the view of the Department (paragraph 118 of Departmental Attachment C) that the decision of the AFP to take no further action did not constitute a “refraining” since it did not entail a positive decision not to prosecute the Applicant, thereby misdirecting himself on the legal meaning of “refrain” in Article 3(2)(b).
(d) By concluding that there had not been a relevant refraining, he failed to consider, as required by Article 3(2)(b), whether he should exercise his discretion, acting on behalf of Australia, to refuse the Hungarian Request and thereby committed a jurisdictional error.
6. The Minister further erred in law, misdirected himself on a fundamental matter regarding whether in the terms of Article 3 paragraph (2)(f) of the Extradition Treaty the Applicant’s extradition would be unjust, oppressive, and incompatible with humanitarian considerations, failed to take into account relevant considerations which he was bound to consider, and failed to properly exercise his jurisdiction under s 22 of the Act.
Particulars
(a) The Minister failed to satisfy himself of the capacity of the Military Division to provide procedures consistent with Australia’s and Hungary’s international obligations under Article 14 of the ICCPR with its two protocols and other relevant instruments, to ensure a fair trial if the Military Division were to charge and prosecute the Applicant for the offence of war crime.
(b) By virtue of s 11 and sub-paragraphs 22(3)(e)(i), (ii), (iii) and (iv), and 22(3)(f) of the Act, the Minister is required to have regard to the considerations specified in Article 3 paragraph 2(f) of the Extradition Treaty, namely, whether in the relevant circumstances it would be unjust, oppressive, and incompatible with humanitarian considerations to extradite the Applicant.
(c) In issuing the international arrest warrant for the Applicant’s extradition to Hungary, the Republic of Hungary relied on the minutes and records of statements made in criminal proceedings before the Hungarian People’s Court in 1946-1947 by the defendants and various witnesses in the trials of a Captain Mader and Lieutenant Nagy, which apparently will be the foundation on which any prosecution of the Applicant will be based. (Departmental Attachment C, para 33).
(d) So far as is known (and it is not contradicted by the Republic of Hungary) the relevant prosecution witnesses, on whose statements the Hungarian military prosecution authorities will apparently rely, are either no longer alive or are not available for examination.
(e) The Applicant has made submissions to the Minister that, if the Hungarian military prosecution authorities intend to rely on documentary evidence of Captain Mader, Lieutenant Nagy, and other witnesses including Jozsef Monori, Pal Marko, Zoltan Imre, and Janos Mahr, the Minister must be satisfied that the Applicant will have an opportunity to confront and question the witnesses, as required by Article 6 of the ECHR and Article 14 of the ICCPR, failing which to extradite the Applicant to Hungary would be unjust and oppressive within the meaning of Article 3 paragraph 2(f) of the Extradition Treaty.
(f) The Minister has also failed to discharge his responsibility of requiring the Hungarian Government to satisfy him that the Applicant will not be subjected to an unfair and unjust trial.
(g) The Hungarian authorities have failed to give an assurance that statements recorded by the People’s Court in 1946-1947, coerced by torture, including any by Lieutenant Nagy, would not be produced as evidence in proceedings before the Military Panel, contrary to Article 15 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984 (CAT)
(h) It is a fundamental requirement of a fair trial in accordance with the above international instruments that the Applicant should have the opportunity and ability to question the above-named witnesses as to whether their statements were voluntary or coerced by threats of torture, induced by promises of leniency, are consistent with other statements by relevant witnesses, or reliable and credible, particularly given that to a large extent the statements are those of alleged accomplices or based on hearsay.
(i) The Republic of Hungary has declined to provide any specific details about whether the named witnesses are alive and available to be called in any proceedings against the Applicant, failed to inform the Applicant or the Australian Government of any alternative procedures for the testing of the voluntariness, reliability, credibility and veracity of the statements of those witnesses, and has given the Minister no assurance as to how, the Military Panel would be able to provide fair procedures and a fair trial if it were to prosecute the Applicant.
(j) The Republic of Hungary has, further, refused and failed to inform the Applicant or the Minister how the Applicant would be able to have a fair trial in accordance with international standards, when he will be unable to access relevant official documentary evidence (destroyed in the time elapsed since 1944) about the movement of his unit of the Royal Hungarian Army that would enable him to establish that he was not in Budapest at the time of the commission of the alleged offence in Budapest.
(k) The Minister, in the absence of such information and assurances and without making any further enquiry, has made his determination that the Applicant should be surrendered for extradition, apparently because the Military Panel is bound by the provisions of the ECHR and ICCPR and that it is therefore not for the Australian Government to enquire into or make judgments about whether the Military Panel and its procedures will, in fact, be able to comply with the international standards for a fair trial (Departmental Attachment C paras 103, 219).
(l) In that regard, the Minister has been misled by the selective reference in the Departmental Attachment C (para 33, dot point 7 and para 190) to the decision of this Honourable Court in Mokbel v Attorney-General for the Commonwealth (2007) 162 FCA [sic — FCR] 278 at [58]-[59], said to be authority that in accordance with the principle of comity a degree of respect is to be accorded by a requested country to the laws and institutions of another country, but omitting reference to Snedden v Republic of Croatia [2009] FCA 30 (a decision of the Full Federal Court to which the Applicant referred in his Supplementary Submissions to the Minister dated 26 October 2009) in which the contrary proposition was stated, namely that Australian court may, in an appropriate case, determine that a country requesting the extradition of an Australian citizen cannot provide a fair and unbiased trial in the event of extradition, and if so, that extradition must be refused.
(m) The Minister, in accepting that “comity” prevents him from considering whether, having regard to the particular evidentiary problems presented by the non-availability of key witnesses, the procedures of the Military Tribunal are actually capable of affording the Applicant a just and fair trial in accordance with relevant international standards has fettered his discretion and abdicated his responsibility to address that question.
(n) The Minister has in that regard asked himself the wrong question: the issue is not whether the Military Division is capable of providing a fair trial because it is bound by the ECHR and ICCPR; it is whether the Hungarian authorities can provide assurances to the Australian Government as to how they can, in fact, afford a fair trial to the Applicant in accordance with the ECHR and ICCPR in all the circumstances.
(o) The Minister has further erred in law and taken into account an irrelevant consideration, namely, that if the Hungarian authorities and the Military Panel fail to comply with the relevant international standards, the Applicant could appeal pursuant to procedures open, under Hungarian law, with the ultimate prospect of appealing to the European Court of Human Rights, and has concluded that he therefore has no responsibility to satisfy himself, before making a decision to extradite, that the Applicant will be able to be afforded a fair trial, complying with the relevant international standards.
Particulars
(oa) Further, the statement in Departmental Attachment C, paragraph 202, that advice received from the Attorney-General’s Department's Office of International Law (OIL) (which is summarised in unredacted form in paragraphs 204 and 205 of that Attachment) suggests that there is “no information that establishes that the Military Panel would not be capable of providing a fair trial”, and in paragraph 204 that: “We are not aware of any information to suggest that Hungry does not propose or is unlikely to provide [the respondent] with a fair trial”, is inconsistent with the highly qualified advice given by the OIL that for a trial to be fair the Military Panel could only have regard to documentary evidence that was unsupported by viva voce evidence so long as the documentary material was not the sole or decisive evidence.
(ob) The First Respondent has therefore acted on a legally incorrect view of the apparently unsupported documentary evidence on which the Republic of Hungary proposes to rely (if a trial were to be instituted), and consequently, in the special circumstances of this case, erred in failing to take into account the fact that Hungary has not been able to produce any relevant live witnesses whose testimony would allow testing of the 1940's documentary records, given that the records cannot, in accordance with international standards of fairness, constitute the sole or decisive evidence for the prosecution.
(p) Contrary to the statement in the Departmental Attachment C, para 210, (that there is no evidence to suggest that Hungary will not afford the Applicant the protections and rights contained in its procedures and practices) there is evidence that the Military Panel, when issuing the international arrest warrant relating to the Applicant in 2005, failed to consider whether the statements and records of the People's Court were capable of being used in any criminal proceedings consistently with the Republic of Hungary’s obligations under the ECHR and ICCPR, or whether a prosecution could comply with the requirement of a fair trial according to the standards of the ECHR and ICCPR. The Minister has, in the result, failed to take into account a relevant consideration, namely, that the Military Panel has already failed to comply with the relevant international standards.
(q) The Minister, in relying on Departmental Attachment C, has apparently also been induced to misconceive the nature of the Applicant’s submissions regarding the need to confront prosecution witnesses, given that there is objective evidence that the Hungarian prosecution authorities may be incapable of producing critical prosecution witnesses, whose evidence is proposed to be relied on.
(r) The Minister has also failed to have regard to a relevant factor, namely Australia’s own international legal obligations under the ICCPR, irrespective of any other obligations of non-refoulement, not to surrender the Applicant, an Australian national, for extradition where there is objective evidence that he may not be afforded a fair trial, and a real risk that there will be a violation of Australia’s international undertakings because of its failure to comply with Article 14 of the ICCPR.
….
9. The Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Article 3 paragraph 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender the Applicant for extradition, given his advanced age (88) and his ill health.
Particulars
(a) The Minister failed to give real and genuine consideration to whether,
(i) given the Applicant’s age and medical condition, and
(ii) given the Hungarian Government’s concession that the Applicant is only wanted in the first instance for investigation,
there are relatively more appropriate alternatives (which would give full force and effect to “humanitarian considerations”) to surrendering him for extradition to Hungary, such as permitting the Hungarian authorities to conduct their enquiries in Australia, or, if requested by the Hungarian Government, asking the Australian prosecuting authorities to consider whether to charge the Applicant under the Commonwealth Criminal Code.
(b) The Minister further erred in evidently deciding to give greater effect to the fact that any anguish, stress and seriously adverse health impacts upon the Applicant resulting from his extradition, and possible lengthy incarceration in a foreign country, should be “balanced” against the seriousness of the offence and interest of the international community in having a suspected World War II criminal tried before Hungarian courts.
(c) In so doing, the Minister failed to take into account the fact that the Applicant is an Australian national who is entitled to the presumption of innocence, and that the relevant interests of the international community could, proportionately and appropriately, be satisfied by such alternatives.
10. The Minister has also committed a jurisdictional error by taking into account, in his reasoning process, an inaccurate and misleading impression created in Departmental Attachment C, para 214, to the effect that the Minister should have little, if any, regard to the fact that the Applicant would be disadvantaged in his defence, if he were to be charged, by the long passage of time, because the relevant Hungarian authorities were unaware of the Applicant’s presence in Australia until brought to their attention in 2004 by the Simon Wiesenthal Centre (whereupon they responded quickly) and further, (impliedly) that this delay was due in part to the fact that the Applicant had changed his name from Steiner to Zentai, thus preventing the Hungarian authorities from seeking his arrest and extradition at an earlier date.
Particulars
(a) The Applicant changed his name from Steiner to Zentai prior to World War II and was officially known by that name by all relevant Hungarian authorities thereafter including, relevantly, in proceedings before the People’s Court.
(b) Any delay in pursuing an investigation and prosecution of the Applicant for the alleged war crime cannot be attributed to the Applicant, who lived openly in Western Australia from 1950 under the name of Zentai, by which he had been known when he left Hungary.
(c) His presence in Western Australia was known in the 1980s to the family of Peter Balazs, the victim of the alleged war crime, who claim to have brought it to the attention of a person associated with the Simon Wiesenthal Centre, which was therefore in a position to inform Hungarian or Australian authorities of the Applicant’s presence in Australia at that time.
(d) The Minister made a jurisdictional error by only taking into account (Departmental Attachment C paras 273-279) the fact that the Hungarian authorities have acted in good faith since 2004, without having regard to the earlier opportunities that the Hungarian Government could have had if Hungarian authorities or other informants and agencies had acted more diligently in the past, and by failing to take into account, and give proper weight to, the enormous prejudice to the Applicant occasioned by the delay.
(e) The Minister has, also, apparently taken into account, as a reason not to refuse surrender, the wrong and misleading statement of fact (Departmental Attachment C, para 275) that the Applicant “has lived under the false assumption that [he is] no longer wanted for prosecution”.
11. For the reasons stated in the above grounds, the Minister’s decision was so unreasonable that it went beyond his jurisdiction under s 22 of the Act and is a nullity and of no legal effect.
12. The Minister further erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the Applicant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination is a nullity and of no legal effect.
Particulars
(a) Section 22 of the Act requires the Minister, in exercising his statutory discretion and powers, to make various findings and to be satisfied regarding matters specified in that section.
(b) By necessary implication, for the purpose of judicial review of his decision, if requested by the person subject to the order for extradition, the Minister must provide a statement of relevant findings and reasons.
(c) On 17 and 19 November 2009, the Applicant’s solicitors requested the Attorney-General’s Department to provide a statement of the Minister’s reasons for decision. By letter dated 20 November 2009 the Department replied that no such statement would be provided.
(d) The refusal constitutes a failure to comply with the Act, and therefore of itself vitiates the Minister’s decision, and is a ground for quashing it.
90 I shall describe how the primary Judge disposed of these grounds presently, but, in summary, his Honour upheld only Grounds 3, 4 and 9. In the present appeal, the appellants challenge those aspects of his Honour’s judgment. The respondent has filed a Notice of Contention challenging his Honour’s rejection of Grounds 5, 5A, 6, 10, 11 and 12. Although there is no challenge to his Honour’s rejection of Grounds 1 and 2, for reasons which will appear, they had an important linkage with Ground 3, and have therefore been retained in the list set out in the previous paragraph.
91 Ground 1 was advanced in support of the respondent’s challenge to the Attorney-General’s notice under s 16 of the Act, and was based on the definition of “extraditable person” in s 6 of the Act. The respondent submitted that, when the relevant aspects of Hungarian criminal procedure were properly understood, he had not in fact been “accused” of anything, with the result that the Attorney-General could not properly have formed the opinion under s 16(2)(a)(i) of the Act that he was an “extraditable person”.
92 The facts necessary to sustain Ground 1, on the respondent’s case, were based in a response received to a series of written questions concerning Hungarian criminal law and procedure delivered to the Military Division of the Metropolitan Court by a relative of the respondent living in Hungary on 9 March 2009. The response came in the form of a letter from Brigadier General Dr Bela Varga, Leader of the Military Panel of the Metropolitan Court, dated 17 March 2009. As translated and put before the primary Judge, that response contained the following paragraph:
I inform you, that there is no criminal proceeding at present against Karoly Zentai before the Military Panel of the Metropolitan Court. The fact, that the court has issued through the Minister of Justice an international arrest warrant against the aforementioned means merely that sooner or later the aforementioned can be made available to the Budapest Military Prosecutor’s Office to be heard in the matter, in the interest of the investigation. Following this, the Military Prosecutor’s Office will decide on the basis of the available evidence whether or not to bring a charge against him. (The arrest warrant issued by the Court does not mean that the Court or even the Prosecutor’s Office would see the perpetrator as guilty). Only when an indictment is brought before it, will the Military Panel of the Metropolitan Court proceed in the matter.
I should mention here that, in the (re-typed) extract corresponding to this paragraph which was placed before the Minister in Att C, the first sentence was rendered as: “… at present there is criminal proceeding against Charles Zentai before the Military Panel of the Metropolitan Court”. The primary Judge did not mention this disconformity, and the respondent made nothing of it on appeal.
93 Having been advised of Dr Bela Varga’s letter, Hungary provided the following response to the Attorney-General’s department:
• The statements included in the letter of Brigadier-General Dr Bela Varga dated 17 March 2009 correspond with the facts of this case. The Hungarian criminal proceeding against [the respondent] is in the investigative phase and no indictment has been lodged so far and consequently there are no criminal proceedings pending before the Military Panel of the Metropolitan Court at present.
• Hungary’s request for extradition is based on the international arrest warrant issued by the Military Panel of the Metropolitan Court dated 3 March 2005. That warrant indicates that there are current proceedings pending against [the respondent] before the Military Prosecutor’s Office of Budapest under case No B.XXXII.51/2005.
• The request for extradition aims at enabling the criminal proceedings against [the respondent] to be carried out. If an indictment is lodged against him, those criminal proceedings will also involve him having to stand trial for the offence for which his extradition is sought.
• Accordingly to section 32(1) of the Act XXXVIII of 1996 on international legal assistance in criminal matters, if criminal proceedings must be conducted against an accused person who is not in Hungary and who may be extradited, an arrest warrant shall be issued by a court.
• Consequently, all international arrest warrants are issued by a judge, on the motion of a prosecutor during the investigative phase of the proceedings. The prosecutor considers all available data, information and evidence and determines whether it is sufficient to make a motion to the court for the issue of an arrest warrant, having satisfied himself that a well-founded submission is established. That motion includes all the facts of the case on which the arrest warrant is based. Based on these documents presented by the prosecutor, the court then decides whether to issue an international arrest warrant subject to the court itself being satisfied that a well-founded suspicion is established.
• Under continental law, criminal proceedings are started when a well-founded suspicion (probable cause) of committing an offence arises.
• In this case, the Military Panel of the Metropolitan Court considered the documents presented by the Prosecutor established the requisite well-founded suspicion and issued the international arrest warrant.
• The term “well-founded suspicion” is interchangeable with “grave suspicion” and the variance in the request documentation results from translation.
• Pursuant to section 33(2)(a) of Act IV of 1978 of the Hungarian Criminal Code, the criminal action with which [the respondent] is charged has not yet lapsed and the offence for which his extradition is sought continues to be punishable.
• The request for extradition submitted by Hungary in accordance with Article 1 of the Treaty on Extradition between the Republic of Hungary and Australia requested the extradition of [the respondent] for the purpose of prosecution under the international arrest warrant issued on 3 March 2005 by the Metropolitan Court.
94 Although, as will appear below, the primary Judge ultimately accepted the respondent’s case that he was not “accused” within the meaning of the definition of “extraditable person” in the Act, his Honour held that the Attorney-General’s s 16 notice of 8 July 2005 could not be impugned by reference to facts which became available only in 2009. His Honour said:
The material before the Attorney-General demonstrated that a military judge of the Military Division the Budapest Metropolitan Court issued a warrant for the arrest of [the respondent] and that warrant on its face is described as a ‘warrant’ and seeks [the respondent’s] arrest in respect of a specified offence. It also states that evidence against [the respondent] has already been the subject of consideration by the Hungarian authorities to the point where they hold a ‘grave suspicion against [the respondent] of having committed the [following] crime’. It asserts that the ‘contents of the above historical statement of the facts and the well-founded suspicion on the basis thereof, are duly established’. The Attorney-General was legitimately entitled to have regard to these matters in forming the opinion that there was a warrant in force for [the respondent’s] arrest.
Thus his Honour rejected Ground 1. That rejection was not the subject of any challenge by the respondent in the present appeal.
95 Ground 2 was advanced in support of the respondent’s challenge to the Magistrate’s determination under s 19 of the Act. It was contended that the determination was beyond jurisdiction because the Attorney-General’s notice under s 16 was bad, for the reasons relied upon under Ground 1. It was put that the effect of a successful challenge to the legality of the s 16 notice was to vitiate any proceeding, or any determination, under s 19 (see s 19(1)(b)). The primary Judge rejected this ground too, for the following reasons:
[I]n conducting the proceeding under s 19 of the Act, it is not open to the learned magistrate to go behind a notice under s 16 of the Act. Her Honour was acting administratively and was obliged to proceed on the basis that the notice, if not invalid on its face, was a valid document: Kainhofer [DPP v Kainhofer (1995) 185 CLR 528] at 538; Vasiljkovic v Commonwealth (2006) 227 CLR 614. I accept the submission for the Commonwealth that the scheme of the Act is that the powers other than those conferred on a court under s 21 are administrative in nature, exercised in sequence, with none of the decision-makers being authorised to review the exercise of a power earlier in the sequence: Kainhofer at 538.
The primary Judge’s rejection of Ground 2 was not the subject of any challenge by the respondent in the present appeal.
96 Ground 3 was advanced in support of the respondent’s challenge to the Minister’s determination under s 22 of the Act. As I read this ground as particularised, and as the primary Judge appears to have read it, the ground had two aspects. The first was the contention that the respondent was not, as a matter of categorical fact, an “extraditable person” as defined and could never, therefore, be extradited. The second was that the Minister’s discretion, to the extent that he had one, under s 22 miscarried because he failed to have proper regard to the legal distinction referred to in item (c) of the particulars set out in the ground (by reference to item (c) in the particulars to Ground 1). In each aspect the gravamen of the point was the same as that which was pressed under Grounds 1 and 2, namely, that the respondent had not been “accused” of the war crime for which he was wanted by Hungary.
97 The primary Judge recorded the submission of the appellants that the only (presently relevant) question for the Minister was whether an order had in fact been made under s 19(9) of the Act committing the respondent to prison. That being the case, according to the appellants, it was beyond the competence of the present inquiry to enter upon the issue which had been determined under s 16: see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, 533-540. The primary Judge did not accept the correctness of the limitation proposed by the appellants, holding in effect that it remained open to the respondent to contend, in a challenge to the Minister’s determination under s 22, and notwithstanding that his Honour had held that direct challenges to the corresponding decisions under ss 16 and 19 were no longer open, that he had never been an “extraditable person”. His Honour said:
The fact that s 22 makes no mention of s 16 would not preclude the Minister making a fresh and, in this case, negative assessment of [the respondent’s] eligibility if it were appropriate to do so. It is not the case that the making of an order by the learned magistrate under s 19(9) legally estopps or prevents the Minister (or the Attorney-General) finding that the eligibility qualification is not satisfied if new information to hand contradicts the basis on which earlier determinations were made.
His Honour accepted that there was –
… force in the submission made for [the respondent] that “… there is no immutable law of the Medes and Persians…” that once determined to be eligible at one of the earlier stages of the extradition process, the Minister or the Attorney-General has no option other than to robotically act on those earlier determinations in the face of his positive knowledge that he lacks the proper legal authority for surrender.
98 The primary Judge noted that Att C – the advice received by the Minister for the purposes of his decision under s 22 – had canvassed the respondent’s argument that the information received from Hungary by way of the letter of 17 March 2009 demonstrated that he was not “accused” within the meaning of the definition of “extraditable person”. His Honour said:
[T]here is no position at law which means that the Minister or the Attorney-General could not take into account the new information at the time of acting pursuant to s 22 of the Act late in 2009. In reality, the submission made to him in Attachment C quite properly worked on that assumption as it did refer to the new information. Indeed, a Minister is not entitled to ignore new material that has come to hand and which may have a direct bearing on the “justice” of making the decision. As a general principle the High Court made clear in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 that a decision-maker should make the decision on the most current material available to the decision-maker.
99 His Honour accepted the respondent’s submission that the information of 17 March 2009, and Hungary’s response to it, demonstrated that the respondent was not in fact “accused” of a war crime, but only wanted for the purpose of the relevant investigation. As to the consequences of that conclusion, his Honour said:
The entire premise of the earlier actions was, by the time of the s 22 determination, known to be incorrect. The fundamental purpose of the Act by reference to s 3 and s 6 is to provide for extradition of people who are “accused” (or convicted), not people “suspected”. The Act does not authorise the extradition of persons who are only suspected of committing an offence (assuming that the offence existed at the relevant time). To decide to surrender someone for a purpose not authorised by the Act is invalid per se in the sense that it is beyond power. This is so regardless of the criteria in s 22 otherwise having earlier been established, albeit on the false premise that [the respondent] was extraditable.
As [the respondent] was, as a matter of fact, not ever capable of being found to be an “eligible person” under s 19(2) of the Act, the Minister had no power to make a determination for his surrender for extradition under s 22 of the Act. In consequence, the Minister’s determination that [the respondent] should be surrendered for extradition is not authorised by law and is a nullity.
Thus His Honour upheld Ground 3 primarily because the respondent was not an extraditable person in fact, which circumstance removed the statutory foundation for a determination under s 22(2) that he was to be surrendered to Hungary.
100 The primary Judge also accepted the second basis upon which the respondent argued that Ground 3 should be upheld. His Honour held, in the alternative, that the Minister’s discretion under s 22 had “miscarried”, because it was “clear from the Act and the Treaty that a fundamental element of any extradition application is that the person be accused or convicted of an extraditable offence and not merely ‘suspected’ of committing one”. His Honour continued:
It is entirely reasonable to imply into s 22 a requirement that the Minister consider any new material that comes to light which elucidates the status of a person who has been wrongly classified as an “extraditable person” at the first stage. To ignore such material and approve the surrender of a person despite actual or constructive knowledge that that person is not an “extraditable person” would be to defeat the purpose of the Act.
His Honour found support for this approach in the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, and in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
101 Ground 4 was concerned with whether the offence of “war crime” in relation to which Hungary had requested the surrender of the respondent was a “qualifying extradition offence” within the meaning of s 22(2) of the Act. The ground invoked s 11(1) of the Act and Art 2.5(a) of the Treaty. It was contended on behalf of the respondent that the offence in relation to which his surrender was sought had not been an offence in Hungary at the time of the commission of the acts said to have constituted it. It was common ground that the specific offence of “war crime” in connection with which the respondent was wanted in Hungary did not exist in 1944 when the acts in question were alleged to have taken place. However, the appellants contended before the primary Judge that para (a) of Art 2.5 should be construed so as to encompass any offence under which the relevant acts were unlawful in the Requesting State at the time. It seems that Hungary had advised the Attorney-General that the acts alleged against the respondent, if established, would have constituted murder in Hungary in 1944. The appellants relied upon that in their defence to Ground 4.
102 The primary Judge noted that Art 2.5(a), on its face, reflected “an important international human rights principle against retrospectivity”. His Honour said that murder was not “the same thing as a war crime”, albeit that “killing someone” may be an element in each. He continued:
Making every possible allowance for the obligations of co-operative, sensible, purposive and liberal interpretation contended for by [the appellants], [the respondent’s] argument is well made in my view. An offence of “war crime” is a different offence from the offence of murder. That is so under Australian law and, on the evidence, on Hungarian law. Secondly, the penalties are different.
His Honour held that Art 2.5(a) dealt with offences, not with conduct, and that the Minister had been “incorrectly advised on this central issue” by the authors of Att C. It was, in his Honour’s view, not to the point that the acts alleged against the respondent may have constituted murder at the relevant time: the actual offence for which he was wanted did not then exist in Hungary. Thus his Honour upheld Ground 4.
103 Grounds 5 and 5A, which were considered together by the primary Judge, invoked the operation of s 22(3)(e)(ii) and (iv) of the Act and of Art 3.2 of the Treaty. Ground 5 relied upon para (a) of Art 3.2, as to which it was common ground that the respondent was an Australian national, having been nationalised as such in 1958. Thus the factual circumstance giving rise to the discretionary basis of refusal set out in Art 3.2(a) existed. Before the primary Judge, the respondent also argued that he had, by a series of events, lost his Hungarian nationality. However, in Att C the Minister had been advised that Hungary still regarded the respondent as a Hungarian citizen. The primary Judge said:
The Department also advised that whether or not [the respondent] is also a Hungarian national does not impact upon the merits of Australia’s consideration of Hungary’s Request. Further, the Department advised that “the protections afforded to [the respondent] as an Australian citizen do not, however, as a matter of long standing policy, extend to refusal of his extradition by reason of that citizenship if extradition is otherwise considered appropriate”.
104 The respondent argued below that para (a) of Art 3.2 presented a clear alternative to extradition in the case of an Australian national: that he or she should be prosecuted for the alleged offence under Australian law. His case was that there “was no serious suggestion, if at all, in Attachment C that this option should have been explored”. From this it was, according to the respondent, to be inferred that the Minister had given no separate consideration to this alternative possibility, and thus had failed to take into account a relevant consideration. According to his Honour’s reasons, it was said on behalf of the respondent –
… that the Minister appears to have foreclosed consideration of whether to exercise the discretion to refuse on the basis of a so called ‘long standing policy’ that Australia will not refuse extradition on the basis of Australian citizenship alone, and failed to have regard to the merits including [the respondent’s] nationality at all as a reason for refusal.
105 It is, with respect, not self-evident from the primary Judge’s reasons what his Honour made of Ground 5. I can find no passage in those reasons in which the proposition that the Minister failed to have regard to a consideration to which he was, as a matter of obligation under the Act, required to have regard (in the Peko-Wallsend sense) was either accepted or rejected. His Honour did appear to accept the submissions made on behalf of the appellants that “Australian citizenship is simply a circumstance by which a discretion may be exercised to refuse extradition” and that “the advice [in Att C] was entirely correct that Australia does not refuse extradition on the basis of Australian citizenship alone if extradition is otherwise considered appropriate” (emphasis in original). His Honour also noted, and seemed to accept, the submission that Att C had made it clear to the Minister that the respondent was an Australian citizen.
106 As against these observations, the primary Judge held that the “foundational complaints” for Ground 5 had been made out. He said:
Yet the Minister was not adequately, if at all, advised by the Department that it was open to him to consider as a real possibility the option of declining to surrender but acceding, as Australia must, to a requirement by Hungary that [the respondent] be submitted to Australian authorities for prosecution. The only passing and very brief reference to that option (at [315] of Attachment C) was immediately countered and dismissed with a repetition of the reminder that it is long-standing practice that Australian citizenship “alone” is not a sufficient basis to decline surrender for extradition. The policy has been allowed to override any genuine and real evaluation of the totality of the merits which were not confined only to [the respondent’s] citizenship.
His Honour held that “when the Minister exercises his or her discretion, he or she is expected to give real and genuine consideration to the merits of the claims being made rather than simply to apply policy”.
107 But the primary Judge did not proceed to uphold Ground 5. He held that “errors alone in the advice to the Minister would not necessarily vitiate a decision”, and, in conclusion under this ground, his Honour said:
The difficulty, however, as it appears to me with these two grounds (5 and 5A) is that notwithstanding what is now an accumulation of errors, it remained open to the Minister to take into account [the respondent’s] nationality but still not conclude that that was an adequate discretionary basis for refusing surrender. Similarly, while the authorities of Australia had decided to refrain from prosecuting [the respondent], it was only a discretionary consideration and it was open to the Minister to not refuse extradition. I do not consider these grounds can succeed.
It was in these terms that the primary Judge rejected Ground 5.
108 It will be clear from the paragraph just quoted that the primary Judge also rejected Ground 5A. Under that ground, the respondent invited his Honour to hold that the Australian authorities had “decided to refrain from prosecuting” him, thereby bringing para (b) of Art 3.2 of the Treaty into play. His Honour’s finding of fact for the purposes of this ground was as follows:
The evidence shows that the AFP [Australian Federal Police], having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting [the respondent] for an offence under the War Crimes Act 1945 (Cth). The AFP sought advice from the CDPP [Commonwealth Director of Public Prosecutions] about whether such a prosecution could be initiated in Australia. The CDPP advised that in the absence of any testimony from living witnesses, not even a prima facie case existed to support a prosecution under the War Crimes Act. The AFP did not pursue the investigation following the CDPP’s advice.
On this point, his Honour said that he agreed with the following submission made on behalf of the respondent:
[W]hen a prosecuting authority, like the AFP, is asked to investigate an allegation, reports to the CDPP that the only evidence which has been made available are statements of two witnesses who are now deceased, is advised by the CDPP that there would not be sufficient evidence to establish a prima facie case against [the respondent] and neither the AFP nor the CDPP takes any further step and in fact do not prosecute [the respondent], it is “sophistry” to suggest that the competent authorities (the AFP and CDPP) have not yet “decided to refrain from prosecuting” [the respondent].
However, for the reasons set out in the extract in the previous paragraph, his Honour rejected Ground 5A.
109 Ground 6 also invoked the operation s 22(3)(e)(ii) and (iv) of the Act. Here, the discretionary basis for refusal upon which the respondent relied was that set out in Art 3.2(f) of the Treaty. The respondent’s case was that his extradition would be unjust (etc) within the meaning of this provision because he could not be assured of a fair trial in Hungary. It seems that Capt Mader and Lt Nagy (see para 89 Ground 6(c) above) had been tried for their parts in the events alleged against the respondent in 1944, and that it was proposed to make good the prosecution case against the respondent by reference to statements and other remaining documentary fragments from those trials. The respondent asserted, and made the point that Hungary itself had not denied, that there was no living witness whose viva voce evidence would provide the basis of the proposed Hungarian prosecution, and which he could test by means conventionally associated with criminal trials. In this regard the respondent supported his case on injustice by reference to Art 6 of the European Convention on Human Rights and Art 14 of the International Covenant on Civil and Political Rights. It was argued on his behalf that, although the Minister – guided by Att C – had given ostensible attention to these matters, he had relied on an assumption that Hungary would, consistently with its obligations under that Convention and that Covenant, provide a fair trial, and had thus failed to take the matters into account by giving “proper, genuine and realistic consideration” to the circumstances which were relevant in the sense in which that expression was utilised by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987). Alternatively, it was argued that, given the seemingly uncontested assertion that there were no living witnesses available to give evidence against the respondent, the Minister’s conclusion that extradition should not be refused on the injustice ground was so unreasonable that no reasonable decision-maker could have reached it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
110 The primary Judge held that the respondent’s challenge to the Minister’s determination did not “reach the level of near absurdity necessary for Wednesbury unreasonableness”. Neither did it meet the requirements referred to by Gummow J in Khan. His Honour continued (and concluded on this ground):
I do not think it is open on the materials before the Minister to infer that he failed to seriously consider the fair trial question. Analysis of the topic in Attachment C was reasonably fulsome. While it did contain references to comity, that subject was very relevant. I do not consider that there were errors on this topic as there were on some. On the fair trial point it was appropriate to assume that Hungary would make suitable provision for the very unusual circumstances.
Thus his Honour rejected Ground 6.
111 Ground 9 dealt with the adequacy of the Minister’s consideration of what might be described as the general humanitarian factors which arose under Art 3.2(f) of the Treaty, given the respondent’s advanced years and poor health. The primary Judge noted that a “substantial portion” of Att C dealt with the issues raised by this ground, and that what his Honour accepted were the respondent’s “unique circumstances” were acknowledged (although not so described in terms). It appears from Att C that, notwithstanding that acknowledgement, the Minister’s advisers expressed the view that the totality of the circumstances were not such as would justify refusing extradition on the grounds referred to in Art 3.2(f) of the Treaty.
112 His Honour noted that senior counsel for the respondent had, twice in the course of his address, made the point that, given the respondent’s ill-health and advanced age, extradition to Hungary “could be a death knell for him”. Senior counsel for the appellants had not “[raised] objection to or [submitted] that an expression of that nature was unfounded, fanciful or farfetched”. His Honour did not take that silence to amount to an acceptance of the submission made on behalf of the respondent, but added that “it would also be difficult in the circumstances for senior counsel for the [appellants] to deny that [the respondent’s] extradition could have the outcome suggested”. His Honour continued:
It requires only normal experience of life and awareness of the frailty of those who are elderly and quite unwell to accept that this is not just a remote possibility. Yet it was one very substantially discounted by the Department in its analysis. Amongst other points made, the Department suggested that these considerations could be taken into account by Hungary.
113 The primary Judge took the view that, to the extent that the authors of Att C had paid regard to the respondent’s health and advanced years, they did so in a way that was, in effect, disjointed from other significant features of the unusual case with which they were dealing, specifically the respondent’s Australian nationality, and particularly when Art 3.2(a) of the Treaty contemplated the alternative of a prosecution in this country. His Honour said:
329. The Department made the point that the health and age factors should be balanced against the seriousness of the alleged offence but did not suggest that the Minister should, in his very broad discretion, consider the weakness of the evidence which might support the suspicion as to the offence.
330. Clearly, the nature of the offence and Hungary's interest in the matter and the fact that Australia does not want to protect or be seen to protect war criminals from prosecution are very important considerations but when they are considered, they must also be weighed against the totality of the extraordinary factors in this situation.
331. Although the Department was appropriately cautious to avoid a conclusion that there could be said to be no real medical risks, it approached this topic as it did others. Rather than weighing the totality of the factors, the Department has considered whether or not [the respondent] has positively established each individual concern. As a result, in a number of instances the Department has reported that it has no knowledge of problems with, for example, health care during incarceration.
….
336. [The respondent] argues that a truly proportionate calculation of the balancing process must include consideration of realistic and available alternatives. In that regard, no explanation has been given as to why the alternative of prosecution before an Australian court, with greatly reduced risk to [the respondent’s] health, is not compatible with the Treaty. In my view, it is this argument that is significant.
114 Noting the appellants’ submission that matters relevant to Art 3.2(f) of the Treaty were put before the Minister in detail in Att C, and that matters of weight were for the Minister to decide and would not give rise to reviewable error, his Honour nonetheless concluded as follows:
344. However, in my view the Commonwealth's response overlooks the fact that in the obligation to consider the humanitarian considerations, the Minister must give realistic, proper and genuine consideration to the merits rather than allow them to be overridden by a policy objective. This is not a question of weight but a question of obligation at law.
345. In the very unusual nature of this case, to in effect totally ignore the Art 2(a) [sic] option of declining surrender but accepting a request for prosecution of [the respondent] within Australia, as expressly contemplated by the Treaty indicates that realistic, genuine and proper consideration to the merits of Art 3, para 2(f) was not given.
346. In my view, [the respondent] has succeeded in showing that the Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Art 3, para 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender [the respondent] for extradition, given his advanced age and his ill-health given that there were more appropriate alternatives under Art 2(a) [sic] (which would give full force and effect to "humanitarian considerations") and to the Treaty than surrendering him for extradition to Hungary.
Thus the primary Judge upheld Ground 9.
115 Ground 10 was concerned with the detriment which would be visited upon the respondent by the passage of time since the occurrence of the events in 1944 which were alleged against him. As the ground came to be considered by the primary Judge, a significant feature was the timing and circumstances of the respondent’s change of name from Steiner to Zentai. One aspect of the advice contained in Att C dealt with the question whether the extradition of the respondent would be “unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment” within the terms of Art 3.2(f) of the Treaty. Here, the authors’ advice was as follows:
214. There are also a number of Australian cases that are authority for the proposition that the “passage of time” argument is less likely to result in the refusal of extradition where the offence is very serious or where it was committed in an aggravated form. Many of the cases in which an argument of “passage of time” has been rejected are where the circumstances of the case involved a relatively serious offence, or circumstances where the delay was the fault of the fugitive. Both of these circumstances are relevant to assessing the affect [sic – effect] of delay in [the respondent's] circumstances. In particular, in the case Re Gorman [1963] NZLR 17 at 18, the accused had been living under an assumed name and his whereabouts was unknown to authorities. The court commented that for him to rely on the length of time which has elapsed would be to “claim a benefit from success in escape and concealment”. This counters claims made by [the respondent] that he has been living openly in Australia for the past 60 years and never sought to conceal his identity. On the basis of Re Gorman, [the respondent’s] claims should be given less weight on the basis that he also changed his name from Steiner to Zentai and Hungarian authorities have advised that they had no knowledge of [the respondent’s] whereabouts until 2004. This issue is further discussed at paragraphs 273-276, but for the purposes of Article 3(2)(f) you can be satisfied that when having regard to the other circumstances of the case, in particular the nature of the offence and conduct involved, the effect of the passage of time would not make extradition so oppressive or unjust as to warrant the exercise of your discretion to refuse surrender.
116 Attachment C dealt with much the same point when advising on the exercise of the general discretion arising under s 22(3)(f) of the Act. The authors regarded the submissions made to the Minister on behalf of the respondent as “implicitly [alleging] delay on the part of the Hungarian authorities”. They advised:
275. Further, just because a person has lived under the false assumption that they are no longer wanted for prosecution is not reason enough to deny surrender. It should be noted that while [the respondent] might have lived openly and accessibly in Australia for the last 59 years, he has also lived under a different surname (Zentai) to the surname (Steiner) in which the arrest warrant for him was issued. The Department understands that during the time [the respondent] resided in Germany prior to arriving in Australia he changed his name to Zentai.
In point of fact, documents which had been forwarded to the Minister on behalf of the respondent in September 2009 showed that the respondent’s name change occurred in 1935, when he was 13 years old, and was done on his behalf by an older member of his family.
117 The primary Judge held that Att C had been “wrong on the name change point of view”, that that was “something the Minister might well have taken into account”, that a change of name would “support an assertion of a person being a fugitive in order to escape prosecution”, and that it was to be inferred that the Minister did take that circumstance into account. However, his Honour took the view that, while unfortunate, this error on the part of the Minister’s advisers, taken alone, “would [not] be sufficient to constitute jurisdictional error”. His Honour added that it was improbable that the error alone might have “tipped the discretionary balance” against the respondent, since “the weight of Attachment C was generally strongly against all of the arguments he had raised”. Thus his Honour rejected Ground 10.
118 As to Ground 11, the primary Judge took the view that, aside from the specific grounds which he had upheld, it could not be said that the Minister’s determination under s 22, was “sufficiently irrational, capricious or so unreasonable that no reasonable person could have made it so as to satisfy a ground of review on a Wednesbury unreasonableness basis”. His Honour rejected the ground.
119 Rejecting Ground 12, the primary Judge held that there was neither a common law nor a statutory obligation to provide reasons for a s 22(2) determination.
120 On 10 December 2010, the primary Judge made orders to reflect his reasons as summarised above. To the extent that those orders dealt with matters of substance, they provided as follows:
1. A writ of certiorari issue to quash the decision of the first respondent made on 12 November 2009 pursuant to section 22 of the Extradition Act 1988 (Cth) (the Act) determining that the applicant should be surrendered to the Republic of Hungary.
2. A writ of certiorari issue to quash the warrant dated 12 November 2009 issued by the first respondent pursuant to section 23 of the Act authorising the applicant’s surrender to the Republic of Hungary.
2A. It is declared that upon a proper construction of section 22 of the Act, the offence in respect of which the Republic of Hungary seeks the extradition of the applicant in the Extradition Request of the Republic of Hungary dated 23 March 2005 is not an ‘extradition offence’ within the meaning of the Act and the applicant was, as a matter of fact, not capable of being found to be an ‘eligible person’ under s 19(2) of the Act.
3. Upon a proper construction of section 22 of the Act and Article 2(5)(a) of the Treaty on Extradition between Australia and the Republic of Hungary 1995 contained in the schedule to the Extradition (Republic of Hungary) Regulations 1997, it is declared that the offence in respect of which the Republic of Hungary seeks the extradition of the applicant in the Extradition Request of the Republic of Hungary dated 23 March 2005 is not an ‘extraditable offence’ within the meaning of the Act.
4. A writ of mandamus issue to the first respondent directing him:
4.1 To determine that the applicant not be surrendered to the Republic of Hungary in response to the Extradition Request of the Republic of Hungary dated 23 March 2005 concerning the applicant; and
4.2 To order the release of the applicant.
5. The further amended application be otherwise dismissed.
The appeal and the cross-contentions
121 By Notice of Appeal dated 4 January 2011, the appellants appealed from the whole of the judgment of the primary Judge. In that Notice, the appellants challenged his Honour’s finding that the Minister had no power to determine that the respondent should be surrendered to Hungary under s 22(2) of the Act because he was not “accused” of the relevant offence and was not, therefore, an “eligible person”; and they challenged also his Honour’s alternative finding that the Minister’s discretion miscarried by reason of his having taken the view that the respondent was an “eligible person”. The appellants challenged the primary Judge’s finding that it was not open to the Minister under s 22(2) to determine that the respondent should be surrendered to Hungary because the offence for which he was wanted did not exist at the time when he committed the acts said to constitute it. Finally, the appellants challenged the primary Judge’s conclusion that the Minister did not give “realistic, proper and genuine consideration” to the matters required by Art 3.2(f) of the Treaty; and they contended that his Honour had erred in failing to find that the Minister had “properly considered all of the mandatory considerations” arising under s 22.
122 As mentioned earlier in these reasons, in a Notice of Contention dated 4 February 2011, the respondent gave notice that he would seek to support the orders made by the primary Judge by contending that his Honour ought to have upheld grounds 5, 5A, 6, 10, 11 and 12 in the proceeding before him.
123 The original grounds which remain controversial in this appeal were, in the way they were placed before the primary Judge, organised more or less as follows. The allegations in Ground 3 related to requirements of the Act as such, without contribution from the Treaty. Ground 4 was concerned with a circumstance which invoked sub-paras (i) and (iii) of s 22(3)(e) of the Act – ie a circumstance which, if it existed, required the mandatory refusal of surrender under s 22(2). Grounds 5, 5A, 6 and 9 were concerned with circumstances which invoked sub-paras (ii) and (iv) of s 22(3)(e) of the Act – ie circumstances which, if they existed, left the Minister with a discretion not to refuse surrender under s 22(2). Ground 10 related to what was said to be a conspicuous mistake of fact in the advice set out in Att C, the effect of which was said to be a miscarriage of the exercise of the Minister’s discretion. Ground 11 was something of an omnibus one, covering, in effect, all the sins and omissions previously alleged. Ground 12 was sui generis, relating as it did only to the obligation to give reasons. It is convenient to consider these grounds by reference to the same organisation as they had in the reasons of the primary Judge.
Ground 3
124 Any consideration of the conclusions reached by his Honour in respect of Ground 3, and of the appellants’ challenge to them, must commence with the relevant provisions of the Act itself, and with the internal relationship between those provisions.
125 It is not in terms a condition of the exercise of the power to make a determination under s 22(2) of the Act that the person in question have been “accused” of an offence. The precondition for the consideration of the matters of substance set out in s 22(3) is that the person be an “eligible person” within the meaning of subs (1). Relevantly to the present case, the respondent became an “eligible person” not because he had been “accused” of something, but because he was the subject of an order made by the Magistrate under s 19(9), in relation to which no proceedings under s 21 were being conducted or were available. The points at which it had been relevant to consider whether the respondent was “accused” of an offence were when the Attorney-General formed the opinion under s 16(2)(a)(i) that he was an “extraditable person”, and when a Magistrate was required to be satisfied under s 12(1)(b) that he was an “extraditable person” before issuing a provisional arrest warrant as authorised by that section. It was under subpara (i) of para (a) of the definition of “extraditable person” in s 6 of the Act that the question then arose whether the respondent was “accused of having committed [an offence or offences against the law of a country]”.
126 The question whether the respondent was eligible for surrender to Hungary was determined by the Magistrate under s 19 of the Act. The respondent’s eligibility for surrender was to be determined by reference to the specific matters set out in s 19, not including whether he was an “extraditable person”, or whether he had been “accused” of an offence. Those matters had been determined at the earlier stages under ss 12 and 16. In Kainhofer Brennan CJ, Dawson and McHugh JJ said (185 CLR at 538):
But the power of a s 19 magistrate does not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person. The powers conferred by the Act, other than those conferred on a court by s 21, are administrative in nature. They are exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.
And further (at 538-539):
The question whether a person is accused of having committed an offence in relation to which a warrant for the person's arrest has been issued by an extradition country is addressed by a magistrate under s 12(1) and by the Attorney-General under s 16 in considering whether the person is an extraditable person. The state of mind which is formed on that issue by those officers is not reviewable by a s 19 magistrate. Of course, prohibition or mandamus may go to an officer of the Commonwealth who exercises power under the Act but the amenability of decisions under ss 12(1) and 16 to judicial review does not expose those decisions to review by a magistrate who conducts administrative proceedings under s 19. Nor does sub-s (2)(a) in conjunction with sub-s (3)(a) of s 19 make the accusation of the person whose surrender is sought a condition affecting any power conferred by that section. The s 19 magistrate is neither required nor authorised to determine the issue whether that person is an extraditable person.
In the circumstances of the present case, therefore, for the Magistrate to have approached her task under s 19 by re-examining whether the respondent was an “extraditable person” would have amounted to a misdirection.
127 The Minister’s determination under s 22 of the Act was one stage further removed again from the question whether the respondent was an “extraditable person”. The Magistrate’s order under s 19(9) made the respondent an “eligible person” within the meaning of s 22, and the Attorney-General (in this case by his delegate, the Minister) was thereupon obliged to make the determination to which subs (2) refers. Subject only to questions possibly arising under para (f) of s 22(3), it was no part of that process for the Minister to turn his mind to the question whether the respondent was an “extraditable person”. It would have been a mistake for the Minister to have regarded his power to make a determination under s 22(2) as to any extent conditioned upon an affirmative answer to that question.
128 For those reasons, I consider that the primary Judge was in error to have concluded that, because the respondent was “not capable of being found to be an ‘eligible person’ … the Minister had no power to make a determination for his surrender … under s 22 …”. I would uphold the appellants’ challenge to this aspect of his Honour’s reasons.
129 The primary Judge’s alternative basis for upholding Ground 3 was that the Minister’s discretion under s 22(2) of the Act “miscarried”. In this regard, his Honour said:
180. The enumerated considerations in s 22 that are to be taken into account by the Minister in determining whether a person should be surrendered or not do not expressly require the Minister to consider any new material going to the question of whether the person requested is an “extraditable person” pursuant to s 6 of the Act. Nevertheless, a consideration of the subject matter, scope and purpose of the Act, with reference to the Treaty, as intended to facilitate the extradition of extraditable persons for extraditable offences, reveals that such a requirement is implied.
181. In Peko-Wallsend 162 CLR 24, s 50(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) required the Minister to give consideration to matters enumerated in s 50(3)(a) to (d). Those requirements did not include an express requirement that the Minister consider a Commissioner’s report which addressed the same matters as enumerated in s 53(a) to (d). At [44]-[45] Mason J said:
The Act does not expressly state that the Minister is bound to take into account the Commissioner’s comments on the matters in paras (a) to (d) of s 50(3) in exercising his power under s 11(1)(b) to decide whether or not he is satisfied that a land grant should be made. But a consideration of the subject matter, scope and purpose of the Act indicates that such a finding is necessarily implied by the Statute. The factor that leads irresistibly to this conclusion is the specific requirement in s 50(3) that the Commissioner comment in his report on each of the four matters enumerated in the subsection, including of course detriment. The provision recognises that the granting of land to a Land Trust may adversely affect the interests of many people, in some cases in a very substantial way. The legislature was clearly concerned that the Minister not overlook crucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision under s 11(1)(b) ... Once it is accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.
See also Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
182. In the present case, it is clear from the Act and the Treaty that a fundamental element of any extradition application is that the person be accused or convicted of an extraditable offence and not merely “suspected” of committing one.
183. It is entirely reasonable to imply into s 22 a requirement that the Minister consider any new material that comes to light which elucidates the status of a person who has been wrongly classified as an “extraditable person” at the first stage. To ignore such material and approve the surrender of a person despite actual or constructive knowledge that that person is not an “extraditable person” would be to defeat the purpose of the Act.
Jurisprudentially, his Honour’s reasons involve the proposition that the continuing status of the respondent as an extraditable person was, if not a categorical condition of the validity of a determination to surrender under s 22(2), at least a circumstance to which consideration had to be given, in the sense that, if ignored, the determination itself would be invalid: see Peko-Wallsend 162 CLR at 39.
130 The immediate difficulty which the primary Judge’s reasoning confronts is that the evidence which was before his Honour was consistent only with the conclusion that the Minister did consider the material received from Hungary, and did take it into account in the exercise of his general discretion under s 22(3)(f) of the Act. Indeed, the advice set out in Att C was so structured as to recommend that the Minister give consideration to the material received from Hungary, and to the submissions made, both by the respondent and by Hungary, in relation to that material. The subject occupied some 11 paragraphs, over nearly three pages, of Att C, at the conclusion of which the following advice was provided to the Minister:
For the reasons given above, in the present circumstances, the Department considers it is open to you to be satisfied that [the respondent] is an accused person who is wanted for prosecution within the meaning of Australia’s extradition requirements and Article 1 of the Treaty. In these circumstances, the Department considers that this allegation should not be afforded such weight in the exercise of your discretion so as to refuse surrender.
In the light of this evidence, the findings of fact which were implicit in the primary Judge’s reasons – that the Minister did not consider the material recently received, or ignored that material – cannot, in my respectful view, stand.
131 Neither, with respect, do I agree with the primary Judge’s treatment of the law which applies to the purely discretionary aspects of the Minister’s task under s 22(2) of the Act. His Honour used Peko-Wallsend as authority for the proposition that, in the exercise of an otherwise unconfined statutory power to decide, there may be implied, from the subject matter, scope and purpose of the relevant statute, a requirement to take particular considerations into account. On the reading which Mason J gave to the applicable provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), such a requirement did arise in that case (although I consider that the primary Judge was mistaken to observe that that Act required the Minister to give consideration to matters enumerated in s 50(3)(a)-(d) thereof – those were the matters upon which the Aboriginal Land Commissioner was required to comment in his or her report to the Minister: see R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327, 331). I would, with respect, regard such a general proposition as unexceptionable, but the question was whether it applied in the circumstances of s 22 of the Act, and particularly as to the content of the implication, if it did apply.
132 In Peko-Wallsend, the power to decide was given to the Minister for Aboriginal Affairs, but a power of recommendation was given to the Aboriginal Land Commissioner. The Commissioner had made a recommendation, but interests adversely affected thereby took the opportunity, which was on any view open to them, to make further representations, and to provide further information, to the Minister. When a new Minister came into office after a general election, it seems that he made his decision without consideration of those representations, or of that information. Mason J said (162 CLR at 44-45):
The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand. Considerable time may elapse between completion of the Commissioner’s report and the date at which the Minister makes his decision; in the present case it was well over one and a half years. In that time there may be such a change of circumstances that the Commissioner’s comments may no longer prove to be an accurate guide, there may be uncertainties or ambiguities in his comments that deserve clarification, or, as in the present case, even though there may have been no change of circumstances, interested parties may have become aware that the Commissioner’s report omitted material matters on the subject of detriment. It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
Relevantly to the present controversy, Peko-Wallsend stands for two propositions: that the exercise of a statutory discretion will have miscarried if the decision-maker fails to take account of a circumstance which he or she was bound to take into account; and that, if the statute in question imposes upon the decision-maker an obligation to give consideration to certain information before making the decision which is entrusted to him or her, it is the most recent and accurate information to which consideration must be given.
133 In the context of the present case, where the statute provided for a sequence of decisions by different functionaries, I consider, with respect, that his Honour’s resort to Peko-Wallsend begged the question. It assumed, contrary to the scheme of things ordained by the Act, that the Minister’s role under s 22 included the review of any of the earlier decisions. Although this case had in common with Peko-Wallsend the arrival of new information, in Peko-Wallsend the information bore directly upon the decision which then had to be made. By contrast, in the present case, the new information related only to an earlier conclusion which the Minister under s 22 was, in my view, required to treat as a closed event, namely, that the respondent was an “extraditable person”. The appellants accepted that the Minister was entitled to consider such new information as came to his attention about the stage reached by the Hungarian criminal process in the exercise of his discretion under s 22(3)(f). But that is not a Peko-Wallsend point. The Minister was not required to give attention to such information in the sense that any failure to do so would invalidate any decision which he made under the section. And much less, of course, was he obliged to arrive at what a court might later hold to be a single correct answer to the question whether the respondent was “accused” of a particular offence.
134 Counsel for the appellants also argued that if, contrary to the conclusions which I have reached above, it was open to, and incumbent upon, the Minister to consider whether the respondent had been “accused” of an offence, the primary Judge was in error to have decided for himself that this condition was not satisfied, and that the Minister’s decision was invalidated as a result. For the purposes of this argument, the appellants accepted that it was open to the respondent to invoke the Ministerial discretion arising under para (f) of subs (3) by proposing that information that became available subsequent to the ss 12 and 16 stages justified the conclusion that he was not accused at all. The respondent had made such a proposal in the facts leading to the present case and, as I have said, it was dealt with on the merits in Att C. If it could be shown that, in considering this point, the Minister mistook the meaning of the word “accused” as it appears in the Act, it might be possible to construct a claim which would lead to the grant of certiorari. For that reason, and because the point was fully argued on the present appeal, it is appropriate to address the appellants’ submission that the primary Judge was in error to have held that the respondent was not an “extraditable person” at the time of the Minister’s s 22 determination.
135 The primary Judge took the view that the respondent was not “accused” because he “was wanted only for questioning and … had not been charged”, and was “merely ‘suspected’ of committing” an extraditable offence. His Honour reached these conclusions on the strength of the advice provided by Dr Bela Varga to which I have referred at para 92 above and Hungary’s response thereto. As far as I can see (and as far as we were advised by the parties) there was no other expert or similar evidence before his Honour about Hungarian criminal law or procedure, or as to the respondent’s status under Hungarian law in the circumstances which existed at the time of the Minister’s s 22 determination. It is, therefore, wholly within the sources to which I have referred that presently relevant assistance is to be found on these important questions.
136 His Honour derived the distinction between being “accused” of an offence and merely being wanted for questioning, or for investigation, from the judgment of Gummow J in Kainhofer. As stated above, other members of the High Court on that occasion found it unnecessary (and, I would infer, considered it to be inappropriate) to deal with the meaning of “accused” in the definition of “extraditable person” in s 6 of the Act, on the basis that the issue was not germane to the task of the s 19 Magistrate. Although recognising that what he said on the point was obiter, Gummow J did proceed to deal with the meaning of the word in that context.
137 Gummow J said that he would not construe the term “accused” as including “any proceeding … in which evidence has been or might lawfully be taken with a view either to a future criminal prosecution or to making a decision as to whether to institute a criminal prosecution.” (185 CLR at 563). Noting that there was “increasing specificity in the procedures of the country requesting extradition”, his Honour said that “to treat as ‘accused’ a person against whom there were on foot merely inquiries preliminary to the institution of a prosecution would be contrary to that trend.” (185 CLR at 563). Noting further that, in extradition processes, considerations of personal liberty were at stake, and that habeas corpus was available to an alien who had been wrongfully arrested, Gummow J continued (185 CLR at 563):
It is reasonable to expect that the legislature would express clearly an intention to authorise the executive surrender of such persons, not necessarily for trial, but rather to facilitate inquiries by the proper authorities in the extradition country as to whether a prosecution should be instituted.
Next, noting that the Act applied to cases of extradition to Australia, as well as to cases of extradition from Australia, his Honour said that it would be an unlikely construction of the relevant provisions “that the references therein to persons accused of an offence against a law of Australia were treated as extending to cases merely where inquiries were on foot to decide whether to institute a prosecution.” (185 CLR at 564). The notion of reciprocity, which was fundamental to the legislative scheme, would suggest, in the absence of a clear indication to the contrary, that Australia would not give “greater recognition to the criminal processes of other countries than that which it could ever seek for itself.” (185 CLR at 564). Gummow J concluded (185 CLR at 564):
On the other hand, I would not accept the proposition that there must be an authorised public accusation of equivalent effect to what in common law systems would be treated as an indictment or the laying of an information. Care must be taken to allow, within the limits mentioned earlier in these reasons, what in the United States was called a "reasonable cosmopolitan interpretation". In particular, differences between denomination or categorisation of procedures should not be given too great a weight. The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.
138 In the present case, in Att C, the Minister’s advisers commenced by setting out the terms of Art 1 of the Treaty, and by observing that it dealt with a person who was “wanted for prosecution”. Having referred to the definition of “extraditable person” in s 6 of the Act, Att C continued:
In considering whether [the respondent] is an accused person who is wanted for prosecution, the representations made by [the respondent] and the information provided by Hungary in response must be considered in the context of Hungary’s civil law system which is an inquisitorial system governed by written codes rather than an adversarial system based on judicial precedent. In inquisitorial systems an examining magistrate serves two roles by developing the evidence and arguments for each side during the investigative phase.
The authors of Att C said that, “while acknowledging the importance of the personal liberty considerations which arise in extradition proceedings, the need to accommodate differences in criminal procedures between countries and interpret extradition requirements in that context was recognised” by the High Court in Kainhofer. Extracts from the reasons of Gummow J were set out.
139 Attachment C then continued:
263. Kainhofer supports the proposition that the differences in criminal procedure applicable in Hungary should be recognised and respected in considering whether or not [the respondent] can be considered an ‘accused’ person who is sought for prosecution. A strict assessment against Australian criminal procedures and process is misplaced.
264. As noted above, Hungary has advised that the international arrest warrant for [the respondent] was issued by a judge during the investigative phase and required, following consideration of all the available information and evidence, establishment of a well founded suspicion that [the respondent] had committed an offence. While there is no indictment lodged against [the respondent] so far, there are proceedings pending before the prosecutor’s office and extradition is required to enable the “criminal procedure [against him] to be carried out”. It is a matter of Hungarian criminal procedure that [the respondent’s] presence in Hungary is essential to the criminal prosecution proceeding further.
265. Consistent with the no evidence standard Australia requires, a person is an ‘extraditable person’ within the meaning of section 6 of the Act where, amongst other things, there is in force a warrant for the arrest of a person in relation to an offence he or she is accused of committing.
266. For the reasons given above, in the present circumstances, the Department considers it is open to you to be satisfied that [the respondent] is an accused person who is wanted for prosecution within the meaning of Australia’s extradition requirements and Article 1 of the Treaty. In these circumstances, the Department considers that this allegation should not be afforded such weight in the exercise of your discretion so as to refuse surrender.
140 Although we are here dealing with an Australian statute, and the connotation of the word “accused” is a matter of Australian law, what the word denotes in a particular case will depend to no small extent upon the nature of the relevant criminal procedure in the Requesting State. In the present case, the question was not whether the respondent would, on the same or analogous facts, have been regarded as an “accused” person in accordance with Australian criminal law and procedure. Rather, it was whether the legal and factual circumstances in Hungary were such as would invoke the concept of the respondent being “accused” as that word is used in s 6 of the Act.
141 Here it is important to recognise that differences exist in criminal procedure as between common law and civil law countries. In a context which is directly on point, these differences were recognised by Lord Steyn, in a speech which attracted the assent of the other members of the House of Lords, in In re Ismail [1999] 1 AC 320, 326-327:
It is common ground that mere suspicion that an individual had committed offences is insufficient to place him in the category of “accused” persons. It is also common ground that it is not enough that he is in the traditional phrase “wanted by the police to help them in their inquiries.” Something more is required. What more is needed to make a suspect an “accused” person? There is no statutory definition. given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word “accused” within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that “accused” in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an “accused” person. Next there is the reality that one is concerned with the contextual meaning of “accused” in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits [sic] it in order to facilitate extradition: Reg. v. Governor of Ashford Remand Centre, Ex parte Postlethwaite [1988] A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of “accused” in an extradition treaty: Rey v. Government of Switzerland [1999] A.C. 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the point of view of the formal acts of the laying of an information or the preferring an indictment.
142 In my view, it follows from the judgments of Gummow J in Kainhofer and of Lord Steyn in Ismail that there will not, or at least will not always, be a bright line in the perception of an Australian court between the circumstances of a person who is, and those of a person who is not, “accused” in the context of criminal proceedings in a civil law jurisdiction. In the present case, the evidence was that Hungarian prosecuting authorities had a well-founded suspicion that the respondent had committed an offence. Hungary had advised that, under continental law, criminal proceedings were started upon the existence of such a suspicion. Those criminal proceedings, in the present case, were said to exist “before the Military Prosecutor’s Office” rather than “before the Military Panel of the Metropolitan Court”. Nonetheless, an international warrant for the arrest of the respondent had been issued. This was done by a Judge, on the motion of a prosecutor during the investigative stage of the proceeding. In my view, it would have involved no misdirection on the part of the Minister had he formed the view, as he was invited to do by Att C, that the respondent was wanted for prosecution within the meaning of Art 1 of the Treaty. It would not have been a misdirection for the Minister to have concluded that, in Hungary, a person in respect of whom there is a well-founded suspicion of the commission of an offence, and in respect of whom a warrant has been issued on the motion of a prosecutor, is wanted for prosecution, notwithstanding that the immediate stage of the procedure remained that of investigation, and that no charge had yet been laid.
143 Given the purposive nature of the constructional exercise presently involved, as recognised both by Gummow J and by Lord Steyn, I likewise do not believe it would have been an error of law for the Minister, in the exercise of his discretion under s 22(3)(f) of the Act, to have accepted that the respondent was, at that time, “accused” of a relevant offence. The matter of the respondent’s status was a discretionary consideration put before the Minister by the respondent himself. It would, in my view, have been a lawful and regular disposition of the point if the Minister had not been satisfied that the respondent was, contrary to the earlier findings of the Attorney-General and the s 12 Magistrate, other than “accused” of the offence in question.
144 However the matter is put, I take the view that the primary Judge was in error to have decided for himself that Att C established that the respondent was not “accused” in the s 6 sense, and that the Minister’s s 22 determination was amenable to certiorari on that account. I consider that, in this respect, the present appeal should be upheld.
Ground 4
145 Through the operation of s 11 of the Act and reg 4 of the regulations, Ground 4 involved a consideration of the terms of Art 2.5 of the Treaty, in particular the proper construction of para (a) of that subarticle: see para 101 above. It was submitted on behalf of the appellants that –
… the question is whether it was open to the Minister to construe Article 2(5)(a) of the Treaty such as to be satisfied that the alleged ‘war crime’ was “an offence in the requesting State at the time of the acts or omissions constituting the offence”.
I would not accept, however, that the proper construction of Art 2.5(a) was a question upon which the Minister’s view could be challenged only if that view were not “open” to him. The proper construction of the subarticle was and is a question of law to which there will ultimately be only one correct answer. Whether, in a particular case, the requirements of para (a) were met was, of course, a question upon which the Minister had to be satisfied. But the Minister had to formulate that question by reference to the terms of the paragraph as properly construed. I shall return to issues of this kind towards the end of my consideration of the appellants’ case under Ground 4.
146 It was submitted on behalf of the appellants that the requirement in Art 2.5(a) would be satisfied if the acts or omissions constituting the offence relied on for extradition amounted to an offence in the Requesting State at the time they took place, even if the offence as such did not then exist. The appellants’ case is effectively that para (a) should be construed as though it used the same formula as para (b), namely –
… the acts or omissions alleged constituted an offence against the law in force in the Requesting State at the time of those acts or omissions.
So to read para (a) would, in my view, be to amend it. As I shall attempt to demonstrate below, it would also be quite at odds with the structure and intended operation of the Treaty.
147 It was a strong theme in the submissions made on behalf of the appellants that the primary Judge had taken an inappropriately “strict” approach to the construction of Art 2.5(a). They relied upon what was said to be an established principle of construction that treaties on the subject of extradition should be construed broadly and liberally, so as to facilitate the important task of bringing to justice those who, in a State other than that where they happened to be, are accused of serious wrongdoing. The appellants commenced with the words of Lord Russell CJ in In re Arton (No 2) [1896] 1 QB 509, 517:
In my judgment these treaties ought to receive a liberal interpretation, which means no more than that they should receive their true construction according to their language, object, and intent.
The appellants next relied – I take it, by way of analogy – on two authorities on the subject of the construction of mercantile treaties, the first being the speech of Lord Wilberforce in Buchanan & Co v Babco Forwarding & Shipping (U.K.) Ltd [1978] AC 141, 152:
I think that the correct approach is to interpret the English text, which after all is likely to be used by many others than British businessmen, in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation ….
The second was the judgment of Mason and Wilson JJ applying the words of Lord Wilberforce in The Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142, 159. The appellants finally relied upon the speech of Lord Steyn in Ismail ([1999] 1 AC at 326-327) to which I have referred at para 141 above.
148 To the extent that the learning conveyed by these authorities travels beyond an injunction to construe an extradition treaty according to the normal meaning of the text employed, it requires special attention to be given to the achievement of the object and purpose of the treaty concerned. Even the “broad and generous” construction urged by Lord Steyn was an approach that should be taken not in a contextual vacuum, but to facilitate “the purpose of bringing to justice those accused of serious crimes”. As it happens, the way in which the object and purpose of a particular treaty are to be used as an aid to construction has, in effect, been codified in the Vienna Convention on the Law of Treaties, Art 31 of which provides as follows:
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
149 In the preamble to the Treaty, Australia and Hungary acknowledged their mutual desire “to make more effective the co-operation of the two countries in the suppression of crime by concluding a treaty on extradition”. At a very high level, that is the object and purpose of the Treaty considered as an agreement between States. But the court is not at liberty simply to take whatever steps appear to be appropriate to give effect to that object and purpose. Rather, the object and purpose provide the context against which “the ordinary meaning” of the terms of the Treaty is to be discerned. That is to say, the court remains concerned with the task of giving to the terms actually used in the Treaty their ordinary meaning in their context and in the light of the object and purpose thus identified.
150 On any view, Art 1 (set out at para 86 above) is fundamental to an understanding of the purpose of the Treaty, and of the context in which it is to be read. No unqualified purpose of the facilitation of the extradition of any and every person wanted by a Requesting State for prosecution should be discerned in the words of that article. There are two significant qualifications expressed in Art 1, and they ought to be used in the ascertainment of purpose. The first is that the undertaking expressed in Art 1 is “subject to the provisions of this Treaty”. That is to say, when later provisions in the Treaty make specific provision on a particular subject, they are to be given effect. The second qualification is that it is not every person who is wanted for prosecution that is to be extradited: it is only a person who is wanted for prosecution for “an extraditable offence against the law of the other Contracting State”. Thus the limitations inherent in the term “extraditable offence” are as much a part of the context, object and purpose conveyed by Art 1 as any other meaning conveyed by its terms. And the term “extraditable offence” is defined in Art 2 of the Treaty (see para 86 above) in a way that reveals a particular concern on the part of the Contracting States with the placement of the dividing line as between offences which are, and offences which are not, covered by the Treaty.
151 Article 1 is fundamental not only because it contains the international consensus which lies at the core of the Treaty, but also because it provides the setting within which all the other terms of the Treaty presumptively operate in a particular case. The question whether an obligation to extradite arises will always, it seems to me, call for an answer in a situation in which a particular person is wanted for prosecution for, or has been convicted of, a particular offence. It is, of course, Art 2 that tells us what an “extraditable offence” is, but it remains Art 1 that makes it clear that the existence of such an offence will give rise to an obligation to surrender only if it is an offence – even if otherwise extraditable – in relation to which the person is wanted for prosecution or of which he or she has been convicted. That is to say, the “offence” which gives rise to the obligation is necessarily an offence in the Requesting State. All other presently relevant provisions of the Treaty operate by reference to that circumstance.
152 Thus, when Art 2.1 provides that “extraditable offences are offences however described which are punishable under the laws of both Contracting States (etc)”, it is in effect setting up two requirements: first, that the offence in relation to which the person concerned is in fact wanted for prosecution, or of which he or she has in fact been convicted, in the Requesting State satisfies the condition set out; and secondly, that there is an analogous offence in the Requested State that also satisfies that condition. It is in relation to the second requirement that a complication is immediately apparent. Plainly, the person concerned is not wanted for prosecution in the Requested State and has not been convicted there. There is, therefore, no fixed reference point for the “offence” as there is in relation to the Requesting State. Having received a request for extradition, the authorities of the Requested State must, therefore, immediately search their own statute books in relation to the second requirement to which I have referred.
153 It is here that Art 2.2 comes into play. Although, viewed in isolation, this article may appear to be concerned with some correspondence between two or more offences at the abstract level, a moment’s thought makes it clear that it can be dealing with one question only: is there an offence in the Requested State which has the necessary correspondence with the offence in the Requesting State by reference to which the obligation to surrender would arguably arise, namely, the offence for which the person is wanted for prosecution or of which he or she has been convicted? That offence is a known, fixed, entity throughout the whole exercise with which Arts 2.1 and 2.2 are concerned. A simple example will demonstrate why this must be so. Suppose a person had been convicted in the Requesting State of offence A. The authorities of the Requested State would then consider whether that offence corresponds (within the meaning of Arts 2.1 and 2.2) with any one of their own offences I, II, III, etc. It would be quite outside their remit under the Treaty to consider whether their offence II, for example, corresponds with offence B in the Requesting State. Neither would it be within their remit to conjecture that offence A and offence B in the Requesting State would both be committed by engaging in the same conduct. The only question would be whether there was an offence in the Requested State that had the required degree of correspondence, within the terms of Arts 2.1 and 2.2, with the offence for which the person had in fact been convicted.
154 Thus, in a practical situation, when Art 2.2(a) provides that “it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology”, what it means is that it shall not matter whether the laws of the Requested State place the acts or omissions which constitute the offence in the Requesting State (ie the actual offence in relation to which extradition is sought) within the category of offence employed in that State, or denominate the offence by the same terminology as is used in that State. And, when Art 2.2(b) provides that “the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account”, such that “it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ”, what it means is that it shall not matter whether, under the laws of the Requested State, the constituent elements of the offence differ from those that constitute the offence in the Requesting State for which the person is actually wanted for prosecution, or of which he or she has actually been convicted.
155 Although the present problem is concerned with the construction of Art 2.5, the attention which I have given above to the operation of Art 2.2 was required because, in the view I take, it is necessary to approach Art 2.5 with the perception that it is no part of the function of Art 2.2 to require, or to permit, recourse to be had to offences in the Requesting State other than the one in relation to which the person concerned is wanted for prosecution, or of which he or she has been convicted, in the exercise presumptively required by Art 2.1, that is, of determining whether that offence is one which the Requested State also makes punishable by imprisonment for a maximum period of at least one year or by a more severe penalty. So too in the context of Art 2.5: the “offence” first there referred to must be an extraditable one in the sense conveyed by Art 2.1, but it will be, in every case, the offence in relation to which the person is in fact wanted for prosecution or of which he or she has in fact been convicted. That is to say, it will be the offence in relation to which the obligation to extradite arises – if it does arise – under Art 1. The “it” with which para (a) of Art 2.5 commences is that offence.
156 Just as it would not be permissible for the authorities of the Requested State to search, in the statute books of the Requesting State, for some offence other than that in relation to which the obligation to extradite arises for the purposes of the application of Art 2.2, neither would they be permitted, in the application of Art 2.5(a), to search for some other offence which did appear in those statute books at the time of the acts or omissions which constituted the offence in relation to which the person concerned was actually wanted for prosecution or of which he or she had actually been convicted. The structure of Art 2.5 is in complete harmony with that of Arts 2.1 and 2.2 as I have explained it above. When dealing with the situation in the Requesting State, Art 2.5(a) speaks of the offence as such. When dealing with the situation in the Requested State, Art 2.5(b) speaks of the acts or omissions that would, had they taken place in that State, have constituted an offence. And so it must: it is, by definition, concerned with a hypothetical situation. But there is no warrant for a reading of para (a) which would permit the kind of comparative exercise which is required, in quite different circumstances, under para (b).
157 The appellants submitted that the concern of para (a) of Art 2.5 – the subject of criminal laws of retrospective operation – may be accommodated if the provision is read in such a way as to protect the person concerned from being extradited in relation to acts or omissions which were lawful when done. I have two difficulties with that submission. The first is that, had the Contracting States intended to provide no greater limitation upon extradition than that, they might have done so in terms. The terms they did use reveal, in my opinion, a preoccupation not just with the criminality of the relevant acts or omissions, but with the actual offence in respect of which the person is wanted for prosecution. The concern to avoid exposure to prosecution for retrospectively-legislated offences might have been given effect in either of the ways proposed by the parties in the present case, but the actual wording of Art 2.5(a), read in the context of the article as a whole, favours the way for which the respondent contends, and which was adopted by the primary Judge.
158 The second difficulty is that to accept the submission would be to yield to the temptation which often confronts a court required to interpret any written text: to view the task through the prism of the facts, dynamics and possibilities of the controversy presently before it. Plainly, Art 2.5(a) has the object and purpose of giving some degree of protection against extradition for the purpose of confronting a trial based on retrospective criminal liability. It would, in my view, be a bold proposition to say that the Contracting States could not have been concerned to provide any such protection in a situation in which the acts and omissions now relied on to constitute the newly-legislated offence would also have given rise to an offence under the law as it stood at the time when those acts and omissions took place. The new law might, for example, remove a pre-existing requirement of mens rea; or it might introduce a new offence in a specific situation where previously there was a perception that convictions were not easy to achieve under an offence of broader application, such as, perhaps (to cite an example that will not be unfamiliar to Australian lawyers) the introduction of the offence of causing death by culpable driving. There is, of course, a degree of conjecture in what I have written here. But the point is that there is no warrant in the terms – or in the object or purpose – of the Treaty to assume that the important principle to which Art 2.5(a) gives effect was necessarily viewed by the Contracting States as limited in the way which the appellants’ submissions implied.
159 It was also part of the appellants’ case under Art 2.5(a) that the construction favoured by the primary Judge could not be correct because it would permit the objects of the Treaty to be defeated by minor variations in the way a particular offence was described in legislation at different points in time. I am not attracted by that argument, because it seems to me that it seeks to trivialise the question of substance that arises: was the offence an offence at the relevant time? I would not regard variations in the way an offence was described as necessarily foreclosing an affirmative answer to that question. All would depend on the content of the offence and the nature of the variations.
160 For the above reasons, I would reject the appellants’ challenge to the primary Judge’s construction of Art 2.5 of the Treaty.
161 Whether that conclusion requires us to dismiss the appeal against his Honour’s grant of certiorari in relation to the Minister’s determination under s 22 of the Act depends both upon the significance of Art 2.5 to the valid exercise of a power to surrender and upon the availability of the writ of certiorari in the circumstances obtaining.
162 The former aspect turns upon the operation of s 22(3) of the Act. In stating that the person “is only to be surrendered … if …”, the subsection is making it a condition of the power to surrender that the requirements set out in the paragraphs which follow have been satisfied. By para (e), where the Treaty provides for a limitation, condition or qualification that has the effect that the surrender of the person shall be refused in certain circumstances, it is a condition of the power to surrender that the Attorney-General (here, the Minister) is satisfied that the circumstances do not exist. Although expressed by way of a proviso, the evident effect of Art 2.5(a) of the Treaty is that extradition is to be refused unless the offence in relation to which extradition is sought was an offence in the Requesting State at the time of the acts or omissions upon which reliance is placed. The “circumstances” to which s 22(3)(e) refers are the Requesting State’s failure to satisfy the proviso in para (a) of Art 2.5 of the Treaty. In the facts of the present case, unless the Minister was satisfied that the offence for which the extradition of the respondent was sought was an offence in Hungary at the relevant time in 1944, he was subject to a statutory injunction not to surrender the respondent under s 22.
163 As to the latter aspect, I do not consider it to be the court’s function to decide whether the offence in relation to which the extradition of the respondent was sought by Hungary was, or was not, an offence in that country at the relevant time. That was a matter for the Minister under s 22(3)(e) of the Act. I regard the court’s function under s 39B of the Judiciary Act as limited to answering the question whether the Minister constructively failed to exercise the power which was entrusted to him under s 22, in accordance with the line of authorities of which Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416, 420 and Craig v South Australia (1995) 184 CLR 163, 177 are the leading exemplars. In this respect, resort may be had to Att C for the purpose of inferring what was the question which the Minister asked himself under s 22(3)(e). He asked himself whether the acts alleged against the respondent amounted to an offence against the laws of Hungary in 1944. That was not, in my view, the question which the Minister was required to consider under Art 2.5(a) as made relevant by s 22(3)(e). I do, therefore, regard this as an appropriate case for mandamus, and, in order to make that remedy fully effective, for certiorari in relation to the Minister’s purported determination of 12 November 2009, and his warrant under s 23 of the same date.
164 Although what I have written above would support the dismissal of so much of the present appeal as relates to the substance of Ground 4, there remains a problem about paras 2A, 3 and 4 of the orders made by the primary Judge on 10 December 2010. The declarations made in the first limb of para 2A, and in para 3, ought not, in my view, have been made. In para 2A, his Honour declared that the offence for which the respondent was wanted in Hungary was not “an ‘extradition offence’ within the meaning of the Act”. The statutory definition of “extradition offence”, in s 5 of the Act, is, to the extent relevant, as follows:
extradition offence means:
(a) in relation to a country other than Australia - an offence against a law of the country:
(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or
(ii) if the offence does not carry a penalty under the law of the country - the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; ….
Nothing in the proceeding before the primary Judge made controversial the question whether the offence for which the respondent was wanted came within these words. If the declaration in para 2A was intended to reflect his Honour’s conclusion as to the effect of Art 2.5(a) of the Treaty, such a perception of things was, in my respectful view, misplaced. Although found in a series of provisions in the Treaty headed “extraditable offences”, in the context of Australian law, Art 2.5(a) has effect at the point of the Minister’s determination on the matter of extradition under s 22. The conclusion for which the respondent successfully contended under s 22(3)(e)(iii) of the Act did not involve the consequence that the offence in connection with which he was wanted by Hungary was not an “extradition offence” as defined.
165 The second problem with the first limb of the declaration in para 2A of the primary Judge’s orders is that it treated as a matter for judicial resolution in a Chapter III court a question which was for the Minister to decide under s 22(3)(e)(iii) of the Act. I have dealt with that aspect of the operation of s 22 above. In their submissions made on the present appeal, counsel for the respondent recognised that, if their success under Ground 4 were maintained, the matter would have to return to the Minister for the limited purpose of considering whether the offence for which the respondent was wanted by Hungary existed at the time of the conduct which is alleged against him. They raised the question – rather tentatively, I perceived – whether the court might direct the Minister to answer that question in the negative. I am not attracted to such an expedient. The question is either one for the Minister or one for the court: if the former, the court should not require it to be answered in a particular way.
166 The second problem mentioned above exists also in relation to para 3 of the primary Judge’s orders, and I would deal with it the same way. The first problem too has something of an analogue under para 3, but this time the issue relates to his Honour’s use of the phrase “an ‘extraditable offence’ within the meaning of the Act” in that declaration. The term “extraditable offence” is neither defined nor used in the Act. To the extent that the use of the word “extraditable” in para 3 was a slip, and the word “extradition” was intended, I would make the same observation as I have above in relation to para 2A.
167 It follows from the above that it would be inappropriate to retain para 4.1 of the orders made on 10 December 2010. Consistently with the reasons I have given, there should be no direction to the Minister as to the consequences of his determination of the question which would again arise under Art 2.5(a) of the Treaty.
168 Since, on the view I take, the Minister has not yet given proper consideration to the question which arose under Art 2.5(a) of the Treaty in the case of the respondent, the condition for an order releasing him from custody under s 22(5) of the Act – that the Attorney-General have determined under s 22(2) that the respondent was not to be surrendered to Hungary – has not yet been satisfied. Until a proper consideration is given to the question referred to, and the Minister (as I assume it would be) has made such a determination, it would be wrong to order the release of the respondent. I would, therefore, set aside order 4.2 as made by the primary Judge.
169 Subject to what I have written above, I would reject so much of the present appeal as relates to Ground 4 in the respondent’s case before the primary Judge.
Grounds 5 and 5A
170 I shall take these grounds together, as that was the course proposed by the respondent in his submissions before the primary Judge, it was the course adopted by his Honour in his reasons, and it was the way the respondent’s submissions were organised on appeal. As noted above, these were the first two of four grounds (of those that remain alive) where, in the respondent’s case, a discretion to refuse surrender arose under s 22(3)(e)(iv) of the Act by reason of the provisions of Art 3.2 of the Treaty. It is, therefore, convenient to say something at the outset about the nature of the discretion which arises under subpara (iv).
171 A person cannot be surrendered for extradition under s 22 unless the Attorney-General, in his or her discretion, forms the positive view “that the person should be surrendered in relation to the offence”: s 22(3)(f). This general requirement suggests that the discretion arising under subpara (iv) of para (e) is concerned not with the ultimate question of surrender, but with the more limited question of whether the circumstance referred to in a particular condition, limitation or qualification for which the Treaty provides, and which is found to exist, should stand in the way of surrender. The use of the word “nevertheless” suggests that, prima facie as it were, the existence of such a circumstance should be regarded as the occasion for refusal, but that the Attorney-General may, in his or her discretion, view the matter otherwise.
172 The terms of para (e) of s 22(3) suggest that the Attorney-General’s approach should be to consider each potentially disqualifying discretionary circumstance as an individual entity and, if it exists, to consider then whether, notwithstanding the existence of that circumstance, surrender should nevertheless not be refused. At the second stage, I can see no objection to the Attorney-General taking into account also other facts and circumstances of the case, but I cannot see anything in the terms of s 22(3)(e)(iv) which would require that to be done. That is to say, it would, in my view, involve no misdirection in a particular case if the Attorney-General, having found the existence of a circumstance that would, under the Treaty, give rise to a discretion to refuse surrender, considered that circumstance in its own right and took the view that surrender should not be refused because of that circumstance. That would not mean, of course, that a determination in favour of surrender would necessarily be made, but such a decision, or a decision to the contrary, would then invoke the broad discretion arising under para (f) of the subsection.
173 These considerations may be important in the present case, because of the way the primary Judge disposed of the respondent’s grounds which arose under the discretionary aspects of s 22(3)(e). I am here dealing with Grounds 5 and 5A. In the case of Ground 5, it may be inferred from the terms of Att C that the Minister was satisfied that the respondent was an Australian national. Thus the discretion under subpara (iv) came into play. Indeed, that was the premise upon which the advice in Att C proceeded. In the case of Ground 5A, however, no such inference was open: indeed, the advice in Att C was that the Minister should not be satisfied that the competent (Australian) authorities had decided to refrain from prosecuting. The authors of the attachment went on (in terms to which I shall refer) to recommend that, even if the Minister were satisfied that the authorities had decided to refrain, the surrender of the respondent should not be refused on this account. The point I make at this initial stage, however, is that some care needs to be taken, especially in a case like the present where reasons are not given, to distinguish between the essentially fact-finding process, and the discretionary process, which arise in the application of subparas (ii) and (iv) of s 22(3)(e) of the Act.
174 Turning to Ground 5 as such, the respondent’s case on appeal was laid out in the outline filed on his behalf in the following terms:
85. Paragraph 3(2)(a) applies where the requested person is a national. Being a national is sufficient for refusal. The provision thus gives special priority to such persons. It envisages a sequential procedure that if Australia refuses extradition on that basis Hungary may request consideration by Australia’s competent authorities. The matter would then be referred for prosecutorial consideration.
86. Paragraph 3(2)(b) has a discrete operation. It is not restricted to nationals though it includes them. Reference to the competent authorities can occur at any time without a request from the other party. The Attorney General may refuse extradition if the authorities have “refrained”. It is an unduly technical approach to read the two as working together. The fact that the sequence of Article 3(2)(a) has not been specifically followed does not detract from the primary judge’s finding that reference to Australian authorities was relevant.
87. There is no contest that the Respondent is an Australian national. Article 3(2)(a) therefore applies. While nationality alone does not mandate refusal to extradite Article 3(2)(a) confers on nationals a prime and special status that requires the Attorney General to consider nationality alone as a basis for refusal. Although considerations of comity may diminish that element in some cases, it was open to Australia to refuse extradition, and either on its own initiative or if requested by Hungary under this provision, to prosecute the Respondent for a war crime under Australian law.
88. Even if the First Appellant decided that the Respondent’s nationality alone was not a sufficient basis for refusal, it was still required to be considered as part of the Minister’s overall evaluation. Therefore the primary judge’s conclusion that the Minister had failed to give proper, genuine and realistic consideration to whether Australia should refuse extradition in light of a number of other detriments to the Respondent considered against domestic alternatives, is strengthened given the primacy accorded to his nationality.
In point of substance, the oral submissions made on behalf of the respondent did not travel beyond those foreshadowed in these paragraphs of his outline.
175 Doing the best I can to put some kind of analytical flesh upon the propositional bones provided by the respondent’s case under Ground 5, it would seem that that case involves the point that the Minister’s discretion miscarried because he did not give the respondent’s nationality the “special priority” required by Art 3.2(a), he adhered to Government policy rather than treating his discretion as open-ended, and he looked at the matter of nationality in isolation, rather than, as was required, in conjunction with the possibility contemplated by the very terms of Art 3.2(a) that the respondent might be referred to the relevant authorities for prosecution in Australia. The last two aspects of the case derived some support from a passage in the reasons of the primary Judge:
Yet the Minister was not adequately, if at all, advised by the Department that it was open to him to consider as a real possibility the option of declining to surrender but acceding, as Australia must, to a requirement by Hungary that [the respondent] be submitted to Australian authorities for prosecution. The only passing and very brief reference to that option (at [315] of Attachment C) was immediately countered and dismissed with a repetition of the reminder that it is long-standing practice that Australian citizenship “alone” is not a sufficient basis to decline surrender for extradition. The policy has been allowed to override any genuine and real evaluation of the totality of the merits which were not confined only to [the respondent’s] citizenship.
176 I would reject the proposition that Art 3.2 of the Treaty gives the circumstance of nationality (of the Requested State) an especial significance in favour of non-surrender. Neither the Treaty nor the Act gives the circumstance of Australian nationality a significance above the other factors which are listed in Art 3.2. Importantly, as I have said, s 22(3)(e)(iv) of the Act in terms contemplates that a person may be extradited notwithstanding the existence of a circumstance referred to in Art 3.2 of the Treaty, and Australian nationality is one of those.
177 With respect to the point that the Minister merely followed Government policy in not treating the respondent’s nationality as a circumstance which militated against surrender, it is true that, when the nationality point was considered as such, the authors of Att C said very little about how the Minister’s discretion should be exercised. They said:
105. As a matter of long standing policy, Australia does not refuse extradition on the basis of citizenship alone. We do not consider that this representation would justify the exercise of your discretion to refuse extradition of [the respondent] on grounds of nationality.
….
109. The Department accepts that by virtue of naturalisation [the respondent] became an Australian citizen and that his meaningful connection appears to be with/to Australia rather than Hungary. Whether or not [the respondent] is also a Hungarian national does not impact upon this position nor on the merits of Australia’s consideration of Hungary’s request. The protections afforded to [the respondent] as an Australian citizen do not, however, as a matter of longstanding policy extend to a refusal of his extradition by reason of that citizenship if extradition is otherwise considered appropriate.
110. For the reasons given above we do not consider that [the respondent’s] Australian citizenship would justify the exercise of your discretion to refuse his extradition on grounds of nationality.
178 However, I do not accept the premise implicit in the respondent’s case that there is something objectionable in Australia having, and the Attorney-General or his or her delegate implementing, a policy of the kind mentioned in Att C. The Treaty is fundamentally an agreement between nations, a circumstance which must, by the terms of ss 11 and 22(3)(e) of the Act, inevitably inform the operation of the latter. Australia might well, in my view, have a policy that Australian nationals would never be surrendered for extradition. That would not be unlawful under s 22(3)(e). And it might well, as it apparently does, have a policy that Australian nationality should not of itself lead to refusal, if surrender is otherwise considered appropriate. The discretion for which s 22(3)(e) provides is one that must be exercised by a Minister of State, and it is, in my view, unthinkable that he or she would not be entitled to give effect to such policy as Australia, as a Contracting State under an international instrument, had with respect to the significance of Australian nationality to the matter of extradition.
179 I would add that, although it does not obviously relate to Ground 5 as such, there could be no suggestion that Att C should be read as an invitation to the Minister to close his mind to the respondent’s nationality as a contributor to the overall mix of discretionary factors which presented itself for consideration under s 22(3)(f). The advice was not that, as a matter of policy, Australian nationality ought never to be treated as a circumstance favouring non-surrender. Rather, the advice was that, if otherwise extradition were considered appropriate, extradition would not be refused “by reason of [Australian] citizenship”; or, as it was put elsewhere, extradition would not be refused “on the basis of Australian citizenship alone”. These passages from Att C seem clearly to invite the Minister to consider whether, by reference to other factors, extradition is considered appropriate, and only then to apply the policy of not generally permitting Australian nationality, of itself, to stand in the way of surrender. There is here no suggestion that if, by reference to those other factors, the decision to extradite or not lay in the balance, the respondent’s nationality might not then be a circumstance that might tip the scales in favour of refusal.
180 Turning to the possibility of prosecuting the respondent in Australia, one commences with the terms of Art 3.2(a) itself. That there may be such a possibility in a particular case is in itself not a factor giving rise to a discretion to refuse to surrender. Rather, Art 3.2(a) makes it obligatory for Australia, as against the other Contracting State, to act in a certain way if the extradition of an Australian national is refused and that other State requests that the case be submitted to the competent authorities. The existence of such a possibility does not change the nature of the discretionary exercise which arises under s 22(3)(e)(iv) in relation to Art 3.2(a). It does not constitute a circumstance, or even a consideration, that the Attorney-General is bound to take into account as a condition of the valid exercise of his or her discretion. I would, therefore, reject the legal premise which is fundamental to this aspect of the respondent’s case under Ground 5. To the extent that the passage from his Honour’s reasons set out in para 175 above implies a different view of the law, I consider, with respect, that his Honour was in error.
181 I also consider that, in that passage, his Honour did something of an injustice to the authors of Att C. The quite lengthy passage leading up to para 315 should also be noted. Under the heading “Allegation that surrender should be refused in recognition of alternative courses of action – [the respondent] could be questioned or prosecuted in Australia”, Att C read:
310. [The respondent] asserts that given the substantial doubts surrounding the lawfulness, fairness and propriety of Australia surrendering [the respondent] for extradition to Hungary, Australia could adopt one or other of the following courses of action, so far as they are consistent with international law:
• Make arrangements with Hungary for the interrogation of [the respondent] in Australia by appropriate Hungarian officers, or
• Refer the matter under Article 3(2)(a) or (b) of the Treaty to the CDPP to consider instituting proceedings for the prosecution of [the respondent] in accordance with Australian criminal war crimes law.
311. In support of whether you should allow [the respondent] to be questioned or prosecuted in Australia [the respondent] claims:
• that the well established extradition principle that prosecution should take place in the country in which the offence is alleged to have occurred is not relevant in [the respondent’s] case because Hungary is unlikely to be able to produce witnesses (for reasons described above)
• [The respondent] has resided in Australia since 1950, including working and raising a family in Australia and had long relinquished his Hungarian connections and that this gives rise to an entitlement to diplomatic protection by Australia as an Australian national, and
• [The respondent] was naturalised as an Australian citizen on 29 May 1958.
Departmental Comment
312. Hungary has requested the extradition of [the respondent] and such request is to be considered on its individual merits in accordance with the Act and the Treaty The availability of any alternative course of action (including any potential prosecution in Australia) does not usurp consideration of an extradition request on its merits. As noted above in paragraphs 259-266 the Department considers it open to you to be satisfied that [the respondent] is an accused person who is wanted for prosecution within the meaning of Australia’s extradition requirements and the Treaty.
313. As a matter of general policy, Australia supports prosecution of offences in the country in which the offence occurs and only seeks to prosecute in Australia, where extraterritorial offences exist, if the country is unwilling or unable to prosecute. Generally, the discretion to prosecute is only exercised where Australia has a legitimate and predominant interest in prosecuting the person in Australia, which outweighs the interests of the foreign country in conducting the prosecution in that country.
314. Investigation and prosecution decisions are matters for the Australian Federal Police and CDPP as independent statutory authorities. Allegations of war crimes committed overseas can give rise to complex legal and factual issues that would need careful consideration by law enforcement agencies. Australia would be in no better position than Hungary in regards to factual considerations such as the availability of witnesses or the passage of time, so as to render irrelevant the general policy position that Australia supports prosecution of offences in the country in which the offence occurs.
315. Article 3(2)(a) of the Treaty applies where the Requested State (in this case, Australia) refuses to extradite its national. If requested to do so and its laws allow, the Requested State shall submit the matter to its competent authorities in order that proceedings may be taken. As noted above, as a matter of long-standing policy Australia does not refuse to surrender a person on the basis of citizenship alone.
It is true that, in this part of Att C, the authors were dealing with the general discretion which arose under s 22(3)(f) of the Act, but the passage makes it quite impossible to sustain the inference that, having read Att C, the Minister did not give serious consideration to the possibility that the respondent might be prosecuted in Australia rather than extradited to Hungary.
182 This point of the respondent’s case also encounters evidentiary problems of a kind which, in my reading of the primary Judge’s reasons, underlay his Honour’s conclusion that, despite the errors in the Minister’s approach to which he referred, ultimately there was insufficient evidence to make good the proposition that his discretion miscarried. It may be one thing to infer from Att C that the Minister accepted some advice tendered, or some viewpoint expressed, in Att C. However, it would be another thing altogether to infer that, having read Att C and the other documents with which he was provided, the Minister did not fairly turn his mind to the totality of the material, including the possibility that the respondent might be prosecuted in Australia, before he made his determination under s 22. I would not draw such an inference. The primary Judge did not, and I am not persuaded that his Honour was in error in relevant respects.
183 For the reasons which I have set out above, I do not consider that the respondent’s case under Ground 5 comes close to making good such an attack on the exercise of the Minister’s discretion as would be necessary to sustain the grant of relief under s 39B of the Judiciary Act. I would reject the challenge, made in the respondent’s Notice of Contention, to the primary Judge’s rejection of this ground.
184 It is convenient to commence consideration of the primary Judge’s treatment of the respondent’s Ground 5A with the appellants’ challenge to his Honour’s conclusion that the relevant “foundational complaint” had been made out, and with para 238 of his Honour’s reasons, set out in the second passage in para 108 above. It was submitted on behalf of the appellants that the only question for his Honour should have been whether it was “open” to the Minister to be satisfied that the Australian authorities had not “decided to refrain from prosecuting” the respondent. It was said that his Honour did not approach the matter in this way, but rather answered for himself the question which was for the decision of the Minister under s 22(3)(e).
185 In my respectful opinion, there is substance in this criticism of his Honour’s reasons. Again, I recognise that the proceeding before his Honour may at times have descended into a debate as to the primary facts of the matter, and if so it would be true to say that such a debate found reflection in a deal of the arguments which were advanced on appeal. But there can be no doubt but that it is not the court’s function to decide whether the circumstance referred to in Art 3.2(b) of the Treaty existed or did not exist. That was not a jurisdictional fact, but a matter upon which the Minister was required to be satisfied. A conclusion on the part of his Honour – even one expressed with the conviction that was done in this instance – that the Australian authorities had decided to refrain would not, as a matter of law, displace the Minister’s conclusion under s 22(3)(e). It was only the latter that had legal significance.
186 As in the case of other grounds, the evidence with which the primary Judge worked for the purposes of Ground 5A was contained in Att C. It is, therefore, convenient to set out what Att C said about Art 3.2(b) of the Treaty:
111. Article 3(2)(b) of the Treaty provides that extradition may be refused if the competent authorities of the Requested State have decided to refrain from prosecuting the person for the offence in respect of which extradition is sought.
112. Australia is the Requested State in this matter. Article 3(2)(b) requires consideration because prior to the receipt of Hungary’s extradition request for [the respondent], Australian authorities accepted a referral for investigation into the allegation against [the respondent] and sought prosecutorial advice as to whether a prosecution could be initiated in Australia and as to the types of issues any Australian Federal Police (AFP) investigation ought to consider.
113. While preliminary steps were taken by Australian authorities (as discussed below) the matter was not actively pursued further following receipt of a formal extradition request from Hungary on 30 March 2005. Based on the limited steps undertaken by Australian authorities, it cannot be said that the competent authorities of Australia have considered and refrained from prosecuting [the respondent] for the alleged war crimes offence. Therefore, this ground of refusal does not arise.
114. On 17 January 2005, the AFP evaluated and accepted the referral (received in December 2004 through DFAT) from the Director of the Simon Wiesenthal Centre, Dr Efraim Zuroff concerning an allegation of a war crime against [the respondent]. The referral followed initial confirmation by the AFP to Israeli authorities in November 2004 that [the respondent] was residing in Australia. On 2 March 2005, the AFP conducted a tape recorded interview with [the respondent] who declined to comment in relation to questions concerning the alleged offence.
115. On 31 January 2005, the AFP sought advice from the CDPP as to whether a prosecution could be initiated in Australia and as to the types of issues any AFP investigation ought to consider. CDPP was not provided with a brief of evidence and understood that there existed contemporaneous witness statements but that the witnesses were deceased (or likely deceased), unable to be located or infirm. CDPP also understood that there was no known eyewitness to support the allegation.
116. On 4 March 2005, CDPP provided its advice. It advised that a brief of evidence had not been submitted that would allow a comprehensive assessment of whether there is a prima facie case against [the respondent] and whether there is a reasonable prospect of conviction for any offences in contravention of the Australian War Crimes Act 1945. It therefore was not possible for CDPP to consider whether there was available, credible and admissible evidence to prove an offence. CDPP considered that it was not possible to initiate a prosecution in Australia on the basis of witness statements alone and in that in the absence of any witness testimony it was unable to conclude that there was a prima facie case. Consequently, CDPP advised that on the information presently known there was insufficient evidence to make out a prima facie case against [the respondent]. This assessment was said to be based fundamentally upon the absence of available witness testimony to support any allegation of murder. CDPP advised AFP that they could offer further advice if AFP pursued the investigation with a view to compiling a full brief if evidence.
117. The AFP has not pursued the investigation following the CDPP advice.
118. The Department considers that Article 3(2)(b) of the Treaty is directed at enabling a party to refuse extradition in circumstances where its competent authorities have substantively considered a matter and taken a positive informed decision to refrain from prosecuting the person. The present matter is at an earlier stage in that process where AFP investigations into the allegation were in only preliminary stages and had not sufficiently progressed so as to allow an informed decision by the prosecutors whether to proceed or to refrain from prosecuting [the respondent] in Australia. Therefore this ground for refusal does not arise in this case.
119. Further, the Department considers that the advice of CDPP based on the insufficiency of evidence made available to it at the time does not support a view that extradition should be refused. Nor, the Department submits, would any decision by Australian authorities to refrain from a prosecution necessarily lead to the refusal of extradition. Article 3(2)(b) provides for a discretionary ground for refusal. The purpose of the Treaty is to facilitate international crime cooperation between Hungary and Australia, and to assist each country in bringing persons alleged to have committed serious crimes to face prosecution. Treaties are negotiated in a context that recognises differences between civil and criminal systems of justice and differences in criminal procedure. In these circumstances, any potential difficulties that may be identified with prosecuting [the respondent] in Australia for an offence allegedly committed in Hungary may not be difficulties which arise in Hungary under its different criminal justice system and which would support refusal. The clear objective underpinning the Treaty is to facilitate law enforcement in both Australia and Hungary by ensuring that a person cannot escape justice be being absent from the jurisdiction and ensuring that the person faces prosecution in the country in which the offence occurred.
187 I would make the following observations about this extract from Att C. First, the view put before the Minister was that the Australian authorities had not (or not yet) decided to refrain, but, if the Minister were to take a different view of the matter, the considerations to which he might usefully pay regard in the exercise of his discretion were also canvassed (in para 119). Accordingly, both limbs of subpara (iv) of s 22(3)(e) were covered. Secondly, the facts as such were laid out before the Minister, so that he might either be satisfied or not from what he made of those facts. It was not as though Att C served up to the Minister a simplified conclusion, shielding him from the actual facts. Thirdly, it would have been apparent to the Minister that the whole of the prosecution authorities’ consideration of the matter had been played out between 17 January and 30 March 2005, a period of about 2½ months. And fourthly, it would also have been apparent that the Federal Police had received advice that the evidence then available to it was insufficient to make out a prima facie case against the respondent.
188 It was following these aspects of the advice given to the Minister that Att C recorded the view that Art 3.2(b) was concerned with a situation in which the authorities had “substantively considered a matter and taken a positive informed decision to refrain from prosecuting the person”. This is the closest that Att C went, relevantly, to opining on a question of law as to the scope of the Treaty, and it was an opinion with which, I am bound to say, counsel for the respondent did not fully come to grips in their submissions on the present appeal – at least if we were to understand that it was the respondent’s case that Att C invited the Minister to address a question which was the wrong one as a matter of law. In their outline, counsel accepted that the Treaty was “certainly predicated on a ‘decision’ by the AFP and the CDPP”. It was said that that had to be “approached in a practical way appropriate to a criminal investigative process” (emphasis in original) and that the decision did not have to “take a particular form such as being in writing”. It was said that the advice of the CDPP “though apparently expressed as contingent on the existence of further evidence was conclusive in its effect”. In none of this, or the associated passages in the outline, can I find any clear challenge to the test of what constitutes a decision to refrain put before the Minister in Att C.
189 Neither did I understand counsel for the respondent, in their oral submissions, to advance anything more than a tangential attack, if that, on the proposition in Att C as to the scope of Art 3.2(b) of the Treaty. They referred to the relevant passage in Att C, and proceeded to defend his Honour’s conclusion of fact that a decision must have been made in circumstances where the CDPP had advised that there was no available evidence that would sustain a prosecution, and the Federal Police had not pursued its investigation any further. But the issue before the court was not whether the authorities had decided to refrain, but whether, in being satisfied that they had not (if that was, indeed, the way the Minister proceeded), the Minister misdirected himself in the sense of asking the wrong question or the like. So far as I can see, the respondent’s case below, and on appeal, was concerned wholly with the factual issue which was for the Minister, not the court.
190 That brings me back to how the primary Judge in fact disposed of Ground 5A. As mentioned above, his Honour was faced with a situation in which the Minister had been advised as to the existence or otherwise of the relevant circumstance for the purposes of s 22(3)(e), but had also been advised as to the considerations that might influence his discretion if the relevant circumstance were found to exist. The Minister provided no reasons for his determination, but “approved” the advice which had been tendered to him. As the primary Judge pointed out, so long as that residual discretion might in any event have been exercised adversely to the respondent, there was no way, on the evidence, that he might infer that the Minister even formed the view that the Australian authorities had not decided to refrain, much less misdirected himself in doing so. Indeed, the primary Judge recognised that, even notwithstanding what he described as “an accumulation of errors” in Att C, it remained open to the Minister, in his discretion, to order the surrender of the respondent. In their submissions on the appeal, counsel for the respondent came very close to accepting that there was no answer to his Honour’s conclusion in this respect. For my own part, I consider that the conclusion was unexceptionable.
191 For the above reasons, I am not persuaded that the primary Judge’s disposition of ground 5A involved any error on his Honour’s part. I would reject the respondent’s contention to the contrary.
ground 6
192 In his reasons of 2 July 2010, the primary Judge described this ground as “substantially more challenging than some” for the respondent. For my own part, with respect to those involved, I found the greatest challenge in understanding, from the submissions made on behalf of the respondent, how an error of the kind that would sustain mandamus or certiorari was said to have been made by the Minister in his determination under s 22 of the Act. In those submissions, counsel did not challenge his Honour’s observation that the topic of the respondent’s prospects of getting a fair trial in Hungary was the subject of a “reasonably fulsome” analysis in Att C. Neither did counsel submit that that analysis was based upon a legally incorrect appreciation of the question to be answered under Art 3.2(f) of the Treaty as made relevant by s 22(3)(e) of the Act. Although they foreswore any attempt at merits review, counsel’s submissions went little beyond the very merits-rich, rather discursive, particulars that were subjoined to the ground itself (see para 89 above).
193 The respondent’s case at least involved the proposition that, in considering the matter of injustice and oppression arising under Art 3.2(f), the Minister “failed to take into account relevant considerations which he was bound to consider”, thereby invoking the principle articulated by Deane J (sitting as a single member of the Federal Court) in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375:
[T]he ground of failure to take into account a relevant consideration would only be made good if it was shown that the decision-maker had failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.
This passage was approved by Mason J in Peko-Wallsend (162 CLR at 39), his Honour emphasising the word “bound”, and by Brennan J in the same case (162 CLR at 55-56). It was also approved, by way of a footnote, by Gleeson CJ and McHugh J in Foster v Minister for Customs and Justice (2000) 200 CLR 442, 452 [22], their Honours proceeding to quote with approval also the following statement by Brennan J in Peko-Wallsend (which was part of the passage to which I referred) (200 CLR at 452 [22]):
The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power.
To these authorities I would add only a reference to the judgment of the NSW Court of Appeal judgment in Saville v Healthcare Complaints Commission [2006] NSWCA 298, [55]:
To invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters, the consideration of which is mandated by law: see generally Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]–[23] (Gleeson CJ and McHugh J) and at [45] (Gaudron and Hayne JJ): see also at [102] (Kirby J), dissenting but not in relation to this principle.
194 It was less clear what were the considerations that the Minister was alleged to have failed to take into account. In terms, Art 3.2(f) of the Treaty required the Minister to consider the nature of the offence, the interests of Hungary, and the age, health and personal circumstances of the respondent. But the respondent’s challenge to the Minister’s determination under Ground 6 was not concerned with any of those things. It was concerned, rather, with what was said to be the unlikelihood of the respondent getting a fair trial in Hungary, especially given the matters to which I have referred in para 109 above. That, I accept, is something which the Minister may well have taken into account in considering whether extradition would be unjust or oppressive, but the Act did not require him to do so in the sense of it being an essential precondition to the valid exercise of the power arising under s 22. The matter can be tested this way: if neither the respondent nor anyone else had raised any doubts about the fairness of the trial which lay in prospect in Hungary, would the Minister’s failure to consider the matter before making an affirmative determination under s 22(2) have invalidated that determination? Clearly not.
195 The issue about the prospect of a fair trial in Hungary was, in my view, no more than a factual circumstance which became relevant before the Minister because the respondent raised it. To say that is in no sense to depreciate the importance of the consideration; and it is not to suggest that, the consideration having been raised by the respondent, the Minister was at liberty to ignore it. But his obligation to consider it arose, in my view, more by way of the need to observe the principles of natural justice by turning his mind to what had been put by the respondent than because, by the terms or implications of the Act itself, the power under s 22 could not be validly exercised without adverting to the consideration.
196 In their oral submissions on behalf of the respondent, his counsel emphasised the allegation, which he had made in his representations to the Minister, that there were no living witnesses who could give such evidence as would be necessary to convict the respondent of the offence for which he was wanted by Hungary. The implication was that the Minister had no choice, in effect, but to infer that the Hungarian prosecutors proposed to rely on statements previously made by deceased persons, and that his conclusion that the extradition of the respondent should not be refused because of the circumstance referred to in Art 3.2(f) was so obviously unreasonable as to make it almost self-evident that he had not given proper, genuine and realistic consideration to the point. I would not accept that submission. As pointed out by the primary Judge, the treatment of the subject in Att C was fulsome. It would do that treatment a disservice were I here to take the course – not adopted by his Honour below – of setting out selective extracts from it. Having read the attachment, and assuming, as the respondent did in his submissions, that the Minister read it and was guided by it, I would have no hesitation in agreeing with his Honour that the proposition that the Minister failed to have regard, or to give the appropriate level of consideration, to the question whether extradition would be unjust or oppressive because of the unlikelihood of the respondent getting a fair trial in Hungary was quite unsustainable on the facts.
197 For the above reasons, I would reject the respondent’s contentions made in relation to Ground 6.
Ground 9
198 As I understand the primary Judge’s reasons in upholding Ground 9, it was suggested not that the Minister had omitted consideration of any particular fact or circumstance, considered as an individual entity, but that he had, rather, in considering the matter of oppression and incompatibility with humanitarian considerations under Art 3.2(f) of the Treaty, failed to weigh on the scales the possibility of what his Honour described as a “more appropriate alternative”, namely, submitting the respondent’s case to the Australian prosecuting authorities for such action as they may care to take, as contemplated, in the case of an Australian national such as the respondent, by para (a) of the same subarticle. The sense in which his Honour upheld Ground 9, then, was not that conveyed by the terms of the ground itself. It was that conveyed by the submission made on behalf of the respondent below which his Honour recorded in para 336 of his reasons: see para 113 above.
199 In my opinion, his Honour’s disposition of Ground 9 in the way I have described could be supported only if, in addressing the questions arising under Art 3.2(f) of the Treaty, the Minister was bound to consider, in the case of an Australian national, whether prosecution here would be a more appropriate alternative having regard to humanitarian considerations, the prospect of the respondent being oppressed by extradition, and the like. With respect to his Honour, I cannot accept that the Minister was so bound, in the Peko-Wallsend sense. Neither the Act nor the Treaty itself set up such an obligation. The questions which the Minister was bound to take into account were those stated in Art 3.2(f). To answer them did not require the Minister to revisit Art 3.2(a). Indeed, in drafting para (f) of the subarticle, the Contracting States appear to have turned their minds to the other matters that might properly be placed on the discretionary scales alongside age, health, etc – “while also taking into account the nature of the offence and the interests of the Requesting State” – which, if anything, strengthens the conclusion that the Minister was not bound to place what his Honour described as the subart 2(a) option also on those scales.
200 I would add two further observations about the construction of Art 3.2 of the Treaty. The first is to repeat what I have set out at paras 171-172 above: the subarticle is, in my view, concerned with discrete questions, and does not require the Requested State to consider two or more of them in combination if none of them considered as a separate entity yields the conclusion that extradition should be refused. The second is to observe that the question which arises under para (f) of the subarticle is whether the extradition of the person would be unjust etc. With respect to his Honour, I consider that, for the Minister to have infected his consideration of that question with the issue of whether the respondent could be tried for the same offence in Australia would have amounted to a misdirection. The problem needs only to be contemplated from a perspective which is the opposite of that taken by the respondent in the present case. Might the inability of Australian prosecutors to proceed against a person in relation to conduct for which he or she was wanted by another State properly be taken into account as favouring a negative answer to the question whether the extradition of that person would be unjust etc under Art 3.2(f)? I do not think so. It would be irrelevant to that question. So too, in my view, was the respondent’s nationality, and the assumed availability of an alternative prosecutorial path here, irrelevant to the Minister’s consideration of the injustice etc of his extradition to Hungary.
201 I would also accept the submission made on behalf of the appellants that there was no evidentiary basis for the primary Judge to have held that the Minister ignored the option of declining surrender but referring the respondent for prosecution in Australia. As mentioned in para 181 above, the subject was well-covered in Att C. That coverage was done under the rubric of the general discretion which arose under s 22(3)(f) of the Act, and, for reasons which I have explained above, appropriately so. If Att C itself were to be accepted as a comprehensive reflection of the way the Minister organised the various circumstances in his own mind in coming to the discretionary judgment which s 22 required, the inference that he had ignored what his Honour described as the Art 3.2(a) option was, in my view, not open under the terms of the attachment. The authors of Att C did not ignore such an option and, had he been minded to go no further than to echo the thinking in the attachment, neither would the Minister.
202 For those reasons, I consider that the appellants’ challenge to the primary Judge’s treatment of Ground 9 should be upheld.
Grounds 10 and 11
203 In the respondent’s Notice of Contention, these grounds were dealt with together. The following contention was made:
His Honour should have upheld Grounds 10 and 11 of the Further Amended Grounds of Review. He should have held that, in the absence of further explanation, the First Appellant’s decision must be taken to have been affected by wrongly taking into account an accumulation of seriously erroneous information, incorrect legal advice and other considerations, not limited to those under the Extradition Act 1988 (Cth)(“the Act”) to which he was entitled to have regard, and was so unreasonable that he had failed to properly discharge his function under section 22 of the Act.
The submissions made on behalf of the respondent reflected that contention.
204 Something should be said, at the outset, about the consequences of combining Grounds 10 and 11 as the respondent has done. Ground 10 was an attack on the Minister’s decision insofar as it depended on para 214 of Att C (see para 89 above). There, the authors of Att C were dealing with the question which arose under Art 3.2(f) of the Treaty, as made relevant by s 22(3)(e)(iv) of the Act. They did so because of a specific submission which had been made on behalf of the respondent, namely, that the passage of time since the occurrence of the events which gave rise to the allegations made against him would, as a matter of fair inference, by then have led to the unavailability of evidence which might be essential to his defence. According to that submission (as recounted in Att C), the result would be that the respondent would not get a fair trial, and that his extradition would be unjust etc within the terms of Art 3.2(f). The gist of para 214 of Att C was that, “having regard to the other circumstances of the case, in particular the nature of the offence and conduct involved”, the Minister could be satisfied that “the effect of the passage of time would not make extradition so oppressive or unjust as to warrant the exercise of [his] discretion to refuse surrender”.
205 In terms to which I have referred at para 117 above, the primary Judge rejected Ground 10 as advanced before him. No attempt was made by the respondent on the present appeal to demonstrate that his Honour had been in error to do so. In particular, no attempt was made to challenge his Honour’s observation that the mistake – if mistake it were – about the timing of the respondent’s change of name was a factual error which could not sustain the case for certiorari being advanced on his behalf. Neither was any attempt made to displace the inference which his Honour drew that it was “improbable” that this mistake “tipped the discretionary balance” against the respondent. In these circumstances, the challenge to his Honour’s disposition of Ground 10, considered in its own right, must be rejected.
206 Although not so stated in terms, the discretion the exercise of which was challenged under Ground 11 could only have been that arising under s 22(3)(f) of the Act. It was not concerned with the mandatory or discretionary bases for refusing surrender set out in the Treaty (save possibly in the sense that the Minister might, under s 22(3)(f), have chosen to re-visit some of the factual matters raised also in the context of the Treaty). As advanced on appeal, Ground 11 has effectively subsumed Ground 10, as is apparent from the following passages in the respondent’s outline:
The Respondent contends that the primary judge should have upheld Grounds 10 and 11 of the Grounds of Review and held that, in the absence of further explanation, the First Appellant’s decision must be taken to have been affected by wrongly taking into account an accumulation of seriously erroneous information and incorrect legal advice (including about the Respondent’s change of name). As such, the First Appellant’s decision was so unreasonable that he had failed to properly discharge his function under s 22 of the Act.
And:
For the purposes of this Appeal, the Respondent combines his objections under Grounds 10 and 11, adopting the Department’s unfounded incorrect comments about his name and identity as a specific illustration of the kind of errors that permeated Attachment C.
As I read these submissions, we are to understand that Ground 10 is no longer being advanced as a ground said to be capable, in itself, of sustaining a successful challenge to the Minister’s consideration of issues arising under s 22(3)(e)(iv) of the Act, but rather is to be taken as an instance of a number of errors that, together, would justify the view (as stated elsewhere in the respondent’s outline) that the Minister’s determination generally was “flawed by illogical and irrational conclusions to such a degree and was so manifestly unreasonable that it cannot stand as a proper and genuine discharge of his responsibilities under the Act.” Or, as counsel for the respondent put it in their oral submissions, Ground 10 was now being used as a “spear carrier” for the “wider issues” raised in Ground 11.
207 The difficulty with these submissions is that they depend upon the premise that the advice tendered to the Minister in Att C was infected by all of the errors that were alleged elsewhere in the respondent’s case, and then some. In my assessment of Att C, in only two respects was it legitimately open to criticism: first, in proposing that the offence in relation to which the respondent was wanted for prosecution was an offence in Hungary in 1944, and secondly, in mistaking the timing of the respondent’s change of name. As to the first, it is true that, in the view I take, the Minister asked himself the wrong question, thereby opening a door to extradition which, had he considered the correct question, might well have remained closed. But an affirmative answer to the correct question was in the nature of a mandatory pre-condition to the making of a surrender determination under s 22(2) of the Act rather than of a circumstance which might be placed on the discretionary scales under para (f) of subs (3). As to the second, the matter was, as I have said, appropriately dealt with by the primary Judge in his disposition of Ground 10. It had neither the importance not the intrinsic relevance to justify an indictment of the Minister in anything like the sweeping terms used in the respondent’s submissions.
208 With respect to Ground 11 as such, the following submission was made in the respondent’s outline on appeal:
His Honour erred in law first, by treating the irrationality objection as part of the Wednesbury claim. It was a separate ground concerning how the Minister arrived at his conclusion and whether he was precluded from making a realistic and genuine evaluation of the merits of surrendering the Respondent. Secondly, his Honour impliedly accepted that attainment of the Wednesbury standard is reserved only for the most extreme and rarest of cases to the extent that the standard is virtually unobtainable.
In the light of the terms of Ground 11, the submission that the primary Judge made the first error alleged in this passage cannot be accepted. The ground was concerned with that, admittedly uncommon, category of legal error known as Wednesbury unreasonableness. It is clear from his Honour’s reasons that he read Ground 11 in this sense. Those reasons provide no basis for the suggestion, now made, that the case put before his Honour had two elements as proposed in the passage set out above. Indeed, it was his Honour, in para 375 of his reasons, who said that the Minister’s decision under s 22 of the Act was not “sufficiently irrational, capricious or so unreasonable that no reasonable person could have made it so as to satisfy a ground of review on a Wednesbury unreasonableness basis”. It was this passage which was said to have demonstrated his Honour’s misunderstanding of the respondent’s case, but, so far as I can see, it fairly reflected the terms of Ground 11 itself.
209 When, during the course of oral submissions on appeal, it was asked of junior counsel for the respondent (who had the carriage of the argument in relevant respects) whether application had been made to amend Ground 11 so that it might be seen to travel beyond the unreasonableness aspect, he responded:
It didn’t so much require amendment, we say, ... because it’s the weasel word “unreasonable” there and the intention is to cover both irrationality plus a Wednesbury unreasonableness. It’s looking to process an outcome and certainly if there were – your Honour’s point may be well taken that in terms of the ground itself it might have been read as a purely Wednesbury ground and not a rationality ground. But in terms of the way the submissions were made which were directed at the potential for what was said in attachment C to divert the Minister from making his decision on a properly understood basis as the jurisdictional error, that was also – we directed that as an irrationality ground. …. [W]e’re talking here about a process of decision making where there are errors that prevented the decision maker coming to – performing the statutory task of making the correct decision and it’s in that sense. So we would say that perhaps it was not made sufficiently clear to his Honour, but we’re saying that even if Honour came to the conclusion that we didn’t reach the great heights of establishing a Wednesbury breach, on a fair reading of the negative assertions that constantly are putting up in attachment C, the Minister was not able to give full consideration to the merits of his decision.
I would make three observations about this response. First, for counsel to seek to give the language of his own client’s ground a meaning beyond that which it naturally carried on the footing that it employed a “weasel word” – thereby implying that it had a plasticity of meaning that could be turned to advantage as the occasion required – was a conspicuously inadequate basis upon which to challenge the reasons of the primary Judge. Secondly, no attempt was made on behalf of the respondent to give content to the high-level, tendentious, submission that something other than Wednesbury unreasonableness was implicit in the “terms of the way the submissions were made” below. And thirdly, had some other thing been implicit in those submissions, his Honour would have been entirely within his rights to have rejected it on the basis that no application had been made to amend Ground 11.
210 As to the second error alleged in the passage set out in para 208 above, in oral submissions junior counsel for the respondent expressed the point by way of the rather challenging metaphor that, in dealing with “Wednesbury evaluation”, the primary Judge “set up a pole vault rather than a high jump”. The Wednesbury aspect of administrative law is, of course, not entirely free of contention, but I do not consider this to be a case which calls for a consideration of how unreasonable a decision needs to be before it should be held to be invalid on that ground. Neither do I think that his Honour’s reasons proceeded by reference to a perceived need to cross some especially high bar, save possibly where he recorded a concession apparently made on behalf of the respondent: “[The respondent] has accepted that invalidity on the Wednesbury grounds is extremely limited and that the impugned decision must be verging on absurdity.” But it is because I agree with his Honour that, on any view, Wednesbury unreasonableness was not established in relation to the exercise of the Minister’s discretion under s 22(3)(f) of the Act that I would reject the respondent’s contention challenging his Honour’s rejection of Ground 11. In doing so, I would see no need to consider any general question as to the Wednesbury test.
211 Lest there be any misunderstanding, I would add that, making due allowance for the two aspects to which I have referred in para 207 above, there is no respect in which I would characterise the advice given to the Minister in Att C as unreasonable, irrational, or anything of the sort. Self-evidently, Att C was the result of a meticulous analysis of the facts and law that bore upon the making of the Minister’s decision under s 22. In its structure, organisation and content, I consider that Att C was unobjectionable as a memorandum intended to lay out the various considerations, and the submissions and responses that had been received, which were proper to be taken into account. The notion that the Minister’s decision, to the extent that it relied on Att C, was sufficiently unreasonable or irrational to constitute invalidating error was, in my view, a conspicuously improbable one.
212 I would reject the respondent’s contention made in relation to his Honour’s disposition of Grounds 10 and 11.
Ground 12
213 Under this ground, the respondent submitted that the primary Judge was in error not to have held that s 22 of the Act and s 39B of the Judiciary Act (and, to the extent necessary, s 75(v) of The Constitution), acting together, gave rise to an implied statutory obligation to give reasons. While accepting that there was no common law obligation upon an administrative decision-maker to give reasons, the respondent submitted that such an obligation might yet be implied from the principle of the rule of law, respect for human rights and protections and the need to make effective the supervision of administrative action for which ss 39B and 75(v) provide.
214 In my view, these submissions should not be accepted. The fact that ss 39B and 75(v) invest the courts to which they refer with a supervisory jurisdiction does not imply that persons who would be subject to that supervision must generate, and presumably maintain, a documentary evidentiary trial by reference to which the supervision might be the more conveniently exercised. The constitutional writs are available for those cases in which an excess or deficiency of power may be established by evidence in the conventional way. As Dixon J said in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360 (in a passage cited by the primary Judge in the present case):
[The Commissioner’s] decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
To give s 22 of the Act, and ss 39B and 75(v), their intended operation, it is not necessary to imply the existence of quasi-legislative obligations which the legislature itself has not chosen to create. It is not enough to construct an argumentative case that such an obligation might well advance the circumstances of persons, such as the respondent, seeking to invoke the latter two provisions.
215 Further, in the Australian federal context, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) constitutes a comprehensive treatment of the obligation of Ministers and other administrative decision-makers to give reasons for their decisions. This is not the place to consider whether the ADJR Act is generally codifying, but in the case of the Act it is. By s 13(1) of the ADJR Act:
Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
Upon such a request having been made, the person who made the decision must provide his or her reasons within 28 days. A “decision to which [s 13] applies” is “a decision to which [the ADJR] Act applies”, and a decision of the latter character does not include “a decision included in any of the classes of decisions set out in Schedule 1”: ADJR Act, ss 13(11) and 3(1). A class of decision set out in Schedule 1 is “decisions under the Extradition Act 1988”. The legislature has, therefore, specifically turned its mind to whether reasons must be given for decisions made under the Act, and has decided that they need not be. In these circumstances, it is, in my view, quite impossible for the respondent to succeed on a submission that, as a matter of implication, s 22 of the Act requires the decision-maker to provide the reasons for his or her determination under subs (2) of that section.
216 Ground 12 was quite without substance and was rightly rejected by the primary Judge.
Disposition of the Appeal
217 I would allow the appeal to the extent only of setting aside orders 2A and 3 made by the primary Judge on 10 December 2010, and of varying order 4 consistently with the view expressed above in connection with Ground 4. I would otherwise dismiss the appeal. I would lay out a timetable for the parties to make such written submissions as they may be advised on the question of costs.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. |
Associate:
Dated: 16 August 2011
