FEDERAL COURT OF AUSTRALIA
Honourable Brendan O’Connor v Adamas [2013] FCAFC 14
IN THE FEDERAL COURT OF AUSTRALIA | |
THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS AND JUSTICE Appellant | |
AND: | First Respondent IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES Second Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent's costs in respect of the appeal.
3. The notice of contention be dismissed.
4. The first respondent pay the appellant's costs in respect of the notice of contention.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 92 of 2012 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS AND JUSTICE Appellant
|
AND: | ADRIAN ADAMAS First Respondent IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES Second Respondent
|
JUDGES: | LANDER, MCKERRACHER AND BARKER JJ |
DATE: | 15 FEBRUARY 2013 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
LANDER J:
1 I have had the advantage of reading in draft the reasons for judgment of Barker J. His Honour has dealt with the relevant facts, the findings of the primary judge and all of the arguments of the appellant and the first respondent extensively, and I do not need to repeat all of what his Honour has said.
2 Unfortunately, I do not agree with one aspect of his Honour’s reasons and that disagreement would lead me to dispose of the proceeding differently to his Honour.
3 I shall only refer to those matters which are necessary to explain the different conclusion that I have reached.
4 The first respondent, who was the President Director of Bank Surya in Indonesia between 1989 and 1998, was charged with Bambang Sutrisno, who was the Vice President Commissioner of Bank Surya, of misusing bank funds for their own purposes. The charge was that the misuse led to serious liquidity problems for the bank and, as a consequence of dealings with the central bank, Bank Indonesia, excessive losses to Bank Indonesia and therefore the Republic of Indonesia.
5 On 25 July 1999, the first respondent first entered Australia. On 22 November 1999, he notified the Indonesian Consulate in Perth of his address in Perth.
6 In March 2000, he returned to Indonesia, but again returned to Australia.
7 On 18 October 2000, a summons was issued by an Indonesian prosecutor directed to the first respondent for the purpose of investigation of the collapse of Bank Surya. That summons was not served. On 7 February 2001, a further summons was issued by the Indonesian prosecutor, but again was not served on the first respondent.
8 On 4 April 2002, notices of the summonses directed to the first respondent were published in the Indonesian media.
9 On 16 May 2002, the Central Jakarta District Court directed the public prosecutor to summons the first respondent to appear in court on 21 May 2002 to answer charges. On 21 May 2002, when the first respondent failed to appear, the District Court ordered a further summons to issue.
10 On 28 May 2002, the Village Head of North Kedoya Village, which was the first respondent’s last known place of residence in Indonesia, wrote to the prosecutor in the District Court advising that the first respondent no longer resided at the address to which the summons had been sent. It may be inferred that at least the Village Head was informed of the issue of the summons on 21 May 2002.
11 On 30 May 2002 and 25 June 2002, the prosecutor was again ordered to summons the first respondent to appear first, on 25 June 2002 and secondly, on 8 July 2002. Notices of the summonses were again published in Indonesian newspapers.
12 On 8 July 2002, the prosecutor requested the District Court to proceed with the trial in the absence of the first respondent and the court ordered the trial to proceed on 24 July 2002. In the meantime, on 15 July 2002, a further summons was issued directed to the first respondent to appear on 24 July 2002, but this summons was also not served upon the first respondent.
13 On 24 July 2002, the first respondent’s trial commenced in the District Court in his absence and on 13 November 2002, the first respondent was convicted of the offence of corruption and sentenced to life imprisonment and a fine. The first respondent’s co-accused, Mr Sutrisno, was also tried and was convicted on the same day as the first respondent for the same offence.
14 The next day, the first respondent changed his name from “Adrian Kiki Ariawan” to “Adrian Adams”. I would have thought that that circumstance might have led to an inference that, although the first respondent had not been served with the summons and the trial took place in his absence, and he was convicted in his absence, the first respondent was aware of his being convicted the previous day.
15 Mr Sutrisno appealed against his conviction to the High Court in Indonesia, but the appeal was dismissed.
16 It is not clear whether it was Mr Sutrisno’s unsuccessful appeal or the first respondent’s failure to appeal which led to the Ministry of Law and Human Rights of the Republic of Indonesia writing to the Australian Attorney-General’s Department on 11 May 2010, advising that “in the deadline provisioned under the law, both the Public Prosecutor and Adrian Kiki Ariawan did not file an appeal, so the decision of the High Court was final and binding”.
17 On 16 June 2003, the High Court decision dismissing the appeal was announced in the District Court and on 1 July 2003, that dismissal was published in a newspaper circulating within Indonesia. The first respondent was not served with any appeal process or any order of the High Court.
18 On 3 July 2003, the Central Jakarta District Prosecution Office declared the first respondent to be a “fugitive”.
19 On 16 December 2004, the first respondent changed his surname from “Adams” to “Adamas”, but continued to remain at the Perth address which he had notified the Indonesian Consulate of in 1999.
20 On 20 December 2004, the Central Jakarta District Prosecution Office requested Interpol’s assistance to locate and arrest the first respondent. On 17 January 2005, Interpol published a “Red Notice”, which made the Australian authorities aware of the first respondent’s presence in Australia.
21 On 26 November 2008, the Indonesian authorities issued a warrant for the arrest of the first respondent. On 28 November 2008, Indonesia made a formal extradition request of Australia for the first respondent’s surrender. In response to that request, a magistrate, acting under s 12 of the Extradition Act 1988 (Cth) (Extradition Act), issued a provisional arrest warrant. Section 12 provides that if an application is made by an extradition country to a magistrate for the issue of a warrant for the arrest of the person, and the magistrate is satisfied that the person is an extraditable person in relation to the extradition country, the magistrate shall issue a warrant for the arrest of the person: s 12(1). An extraditable person is defined in s 6 of the Extradition Act:
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; or
(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(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.
22 On 18 September 2009, another magistrate determined, pursuant to s 19(9) of the Extradition Act, that the first respondent was eligible for surrender to Indonesia in relation to an extradition offence and issued a warrant committing the first respondent to prison. There is no issue on this appeal that the offence for which the first respondent was convicted was an extradition offence.
23 The issue of a warrant by the magistrate under s 19(9) engaged s 22 of the Extradition Act and made the first respondent an “eligible person” within the meaning of that definition in s 22(1). Section 22(1) relevantly provides:
(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.
24 Once the first respondent became an eligible person, s 22(2) was engaged. That subsection provides:
(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.
25 The power under s 22(2) of the Extradition Act has been exercised by the Minister for Home Affairs and Justice, not the Attorney-General. Section 19A of the Acts Interpretation Act 1901 (Cth) provides that where different Ministers share responsibilities for administering a provision, then an Act which makes reference to one of those Ministers may be understood as referring to any of the Ministers. The Attorney-General and the appellant, the Minister for Home Affairs and Justice (the Minister), share responsibilities in the Attorney-General’s portfolio including extradition. For that reason, the Minister is also able to exercise the powers given to the Attorney-General by the Extradition Act: Brock v Minister for Home Affairs (2008) 170 FCR 434 at [11].
26 The Minister must make his determination in accordance with subsection (3) of s 22, which provides:
(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 speciality 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.
27 The extradition objection referred to in s 22(3)(a) is defined in s 7 of the Extradition Act, which provides:
For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:
(a) the extradition offence is a political offence in relation to the extradition country;
(b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country;
(c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions;
(d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or
(e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
28 Therefore, if the Requesting State is seeking the extradition of a person for any of the reasons in s 7 which qualify as an extradition objection, the Minister cannot order the person’s surrender.
29 Paragraphs (b), (c) and (d) of s 22(3) were not relevant in the sense they were not issues in relation to the first respondent. Paragraphs (e) and (f) were relevant.
30 Paragraph (e) engages s 11, which is headed “Modification of Act in relation to certain countries”. It, relevantly, provides:
(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.
31 Section 11 is relevant because regulations of the kind envisaged in s 11(1)(a) have been made. The relevant regulations are Extradition (Republic of Indonesia) Regulations (the Extradition Regulations) made on 20 December 1994, which commenced on 21 January 1995.
32 Regulation 5 provides that the Extradition Act applies in relation to the Republic of Indonesia, subject to the Extradition Treaty between Australia and the Republic of Indonesia done at Jakarta on 22 April 1992 (the Extradition Treaty). The Extradition Treaty is a schedule to the Regulations.
33 Article 1 of the Extradition Treaty, relevantly, provides:
Article 1
Obligation to Extradite
1. Each Contracting State agrees to extradite to the other, in accordance with the provisions of this Treaty, any persons who are wanted for prosecution or the imposition or enforcement of a sentence in the Requesting State for an extraditable offence.
34 Article 2 addresses and defines extraditable offences, which include the offences for which the first respondent was convicted.
35 Article 4, like s 7 of the Extradition Act, provides that persons shall not be extradited in relation to a political offence.
36 Article 6 addresses double jeopardy and provides that a person shall not be extradited if he (or she) has been already tried and discharged or acquitted by a competent tribunal, or has already undergone punishment in the Requested State or some other State for the act or omission constituting the offence for which his (or her) extradition is requested.
37 Article 7 is in similar form to s 22(3)(c) of the Extradition Act and provides that extradition shall not be granted if the offence “with which the person sought is charged or of which he is convicted, or for which he may be detained or tried in accordance with this Treaty, carries the death penalty under the law of the Requesting State unless that State undertakes that the death penalty will not be imposed or, if imposed, will not be carried out.”
38 Article 9 addresses exceptions to extradition. Article 9.1 addresses circumstances where extradition “shall not be granted” and includes delay, offences against military law, special courts, prosecution or punishments on account of a person’s race, religion, nationality or political opinions, and where the Requested State has substantial reasons for believing that a person whose extradition is requested will be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
39 Article 9.2 addresses circumstances where extradition “may be refused” and, relevantly, provides in paragraph (b):
(b) where 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 requested, the extradition of that person would be unjust, oppressive or incompatible with humanitarian considerations;
40 Article 10 addresses provisional arrest, and Article 11 addresses the extradition procedure and required documents. It, relevantly, provides that a request for extradition shall be made in writing and be communicated through the diplomatic channel. The request for extradition must comply with Article 11.2, which provides:
2. The request for extradition shall be accompanied:
(a) if the person is accused of an offence—by a warrant for the arrest or a copy of the warrant for arrest of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence;
(b) if a person has been convicted in his absence of an offence—by a judicial or other document, or a copy thereof, authorising the apprehension of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence;
(c) if the person has been convicted of an offence otherwise than in his absence—by such documents as provide evidence of the conviction and the sentence imposed, the fact that the sentence is immediately enforceable, and the extent to which the sentence has not been carried out;
(d) if the person has been convicted of an offence otherwise than in his absence but no sentence has been imposed—by such documents as provide evidence of the conviction and a statement affirming that it is intended to impose a sentence;
(e) in all cases—by the text of the relevant provision of the law, if any, creating the offence or a statement of the relevant law as to the offence including any law relating to the limitation of proceedings, as the case may be, and in either case, a statement of the punishment that can be imposed for the offence; and
(f) in all cases—by as accurate a description as possible of the person sought together with any other information which may help to establish his identity and nationality.
41 Article 12 addresses additional information that the Requested State may require, and Article 13 the authentication of documents. The remaining Articles are not relevant.
42 The remaining provision of the Extradition Act that is relevant is s 10(1), which provides:
(1) Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.
43 Section 10(1) contemplates that a person in a Requesting State will have been convicted in the person’s absence and that the conviction may or may not be a final conviction. It therefore applies where a person has been tried in the person’s absence and finally convicted. That person is deemed for the purpose of the Act not to have been convicted.
44 The effect of s 10(1) has been considered in the light of the decision of the Full Court in Wiest v Director of Public Prosecutions (1988) 23 FCR 472 by Barker J at [262]-[269].
45 Both the Extradition Act and the Extradition Regulations, which contain the Extradition Treaty between Australia and Indonesia, recognise that a person may be convicted in the person’s absence. The Extradition Act recognises that that conviction may be a final conviction: s 10(1). The reference in s 10 must, of course, be a reference to a person being convicted, in the person’s absence, in a country other than Australia, an extradition country. Section 10 explicitly recognises that a person may be finally convicted in the extradition country, but provides that the person is deemed, for the purposes of the Extradition Act, not to have been convicted of that offence but is deemed to be accused of that offence.
46 The reference in Article 11.2(b) of the Extradition Treaty to a person having been convicted in his absence of an offence could be a reference to Indonesia or Australia, because either State may be a Requesting State under the Extradition Treaty.
47 A person accused of an indictable offence in Australia cannot be convicted of that offence in the person’s absence, except in circumstances where the person has, by his or her conduct, waived his or her right to be present at the trial. In Lawrence v The King [1933] AC 699 at 708, Lord Atkin said in declaring the common law for England and Wales:
It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings, including sentence. There is authority for saying that in cases of misdemeanour there may be special circumstances which permit a trial in the absence of the accused, but on trials for felony the rule is inviolable, unless possibly the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence. The result is that sentence passed for felony in the absence of the accused is totally invalid.
48 There may be two exceptions to that rule: first, where the accused so conducts himself or herself that the trial cannot be held in the accused’s presence: R v Cornwell [1972] 2 NSWLR 1; and where, after the trial has commenced and the accused is present, the accused absents so as to waive the accused’s right to be present: R v McHardie & Danielson [1983] 2 NSWLR 733. The decision in R v McHardie & Danielson was followed in R v Rigney (1988) 48 SASR 72, and again by the Court of Criminal Appeal in South Australia in R v Jones (1998) 72 SASR 281, but doubted by the Court of Criminal Appeal in New South Wales in R v Hallocoglu (1992) 29 NSWLR 67.
49 It is not necessary for the purposes of this appeal to resolve the competing views of these Courts. It is enough to notice that the chances of an accused being tried in this country and being convicted in the accused’s absence are very unlikely. Australia could request Indonesia to extradite a person who was convicted in the person’s absence in Australia, if the accused was present when the trial commenced and then absented himself or herself during the trial, and the Court concluded that the accused had waived the accused’s right to be present at the remainder of the trial. As I say, it cannot be said that the circumstance would never arise, but it is unlikely.
50 In any event, both countries recognise in the Extradition Treaty that the other State could seek the extradition of a person who has been convicted of an offence in that person’s absence.
51 For the purpose of discharging his responsibilities under s 22 of the Extradition Act, the Minister was provided with a briefing document headed “Casework-In-Confidence” dated 7 December 2010. It contained 11 paragraphs and referred to 12 attachments listed “A-I”. The document recommended that:
(i) you read Attachment B and determine under s 22(2) of the Act that Ariawan be surrendered to Indonesia, and
Approved / Not approved / Discuss
(ii) if you agree to (i), that you sign and date the warrant at Attachment A under s 23 of the Act for the surrender of Ariawan to Indonesia for the extradition offence stated in the warrant.
Signed / Not Signed / Discuss
(Emphasis in original)
52 On 17 December 2010, the Minister circled the word “Approved” under paragraph (i) of the recommendation and circled the word “Signed” under paragraph (ii) of the recommendation, and affixed his signature under that recommendation.
53 He wrote on the document, “I want to be briefed personally on this matter by relevant AGD officers asap on Friday 17th Dec.” and initialled that notation.
54 There is no evidence as to whether the Minister was briefed as requested either before or after he signed the document and issued the warrant.
55 Also on 17 December 2010, the Minister signed the warrant under s 23 of the Extradition Act.
56 On 20 December 2010, the first respondent brought an application pursuant to s 39B(1) and (1A) of the Judiciary Act 1903 (Cth) for the following orders:
1. A declaration that the surrender decision is void and of no legal effect.
2. An order in the nature of certiorari against the First Respondent to quash the surrender decision.
3. An order for an injunction or an order in the nature of prohibition to restrain and prohibit the First Respondent from giving further effect to the surrender decision.
4. An order in the nature of certiorari to quash the surrender warrant issued by the First Respondent on 17 December 2010 under s 23 of the Act to release the Applicant into the custody of officers of the Republic of Indonesia (the surrender warrant).
5. An order in the nature of habeas corpus directed to the Second Respondent requiring him to produce the Applicant to this Honourable Court and release the Applicant from custody.
6. Such other orders as this Honourable Court sees fit.
(Emphasis in original)
57 In a document headed “Grounds of Review” and dated 7 September 2011, which was the first day of the hearing before the primary judge, the first respondent identified the claimed errors made by the Minister.
58 First, it was contended that the Minister failed to take into account a relevant consideration, in that the Minister failed to have regard to:
(a) the International Covenant on Civil and Political Rights (the ICCPR) and the First Optional Protocol to the ICCPR;
(b) the fact that the first respondent was tried in absentia, other than where the first respondent had waived his right to be present, which was inconsistent with Article 14(3)(d) of the ICCPR and international law; and
(c) the fact that the first respondent had lost his right to examine the witnesses against him and obtain the attendance of witnesses on his behalf, which was inconsistent with Article 14(3)(e) of the ICCPR and international law.
59 Secondly, it was claimed the Minister had made an error as to jurisdiction, in failing to have regard to:
(a) whether the extradition of the first respondent to the Republic of Indonesia would be unjust or oppressive or incompatible with humanitarian considerations under Article 9(2)(b) of the Extradition Treaty; and
(b) any extradition to the Republic of Indonesia of a person tried in absentia, where that person neither has a right of appeal nor a right to a retrial, constitutes extradition that is unjust or alternatively oppressive, or alternatively incompatible with humanitarian considerations according to Australian standards.
60 Thirdly, it was claimed that the Minister’s decision was so unreasonable that it went beyond jurisdiction.
61 Fourthly, it was contended that the respondent made an error as to jurisdiction by disregarding a relevant consideration, being the claim that the first respondent was tried and convicted in absentia on account of his race (ethnic Chinese).
62 Lastly, it was contended that the Minister failed to have regard to a relevant consideration that, because of the high incidence of HIV/AIDS in Indonesian prisons, the first respondent would be subject to torture or to cruel, inhuman or degrading treatment or punishment.
63 The issues that were before the primary judge are identified by Barker J in his reasons.
64 As Barker J’s reasons show, the primary judge upheld the respondent’s contentions in relation to the failure by the Minister to have regard to Article 9.2(b) of the Extradition Treaty, and finding that the first respondent’s extradition would not be unjust or oppressive, or incompatible with humanitarian considerations. The primary judge also found that the Minister had acted unreasonably in making his s 22 determination and issuing the warrant under s 23, and so acted outside jurisdiction.
65 Otherwise, the primary judge rejected the first respondent’s contentions. However, in view of his Honour’s findings in relation to the second and third issues which I have identified, his Honour quashed the s 22 determination of the Minister and the issue of the warrant under s 23 of the Extradition Act.
66 His Honour’s reasons for his findings are identified in detail in Barker J’s reasons.
67 On this appeal, three issues are raised by the notice of appeal and a further issue in the first respondent’s notice of contention.
68 The issues raised in the notice of appeal are:
(1) whether the Minister relied on the s 22 submission as found by the primary judge;
(2) whether the Minister failed to take into account the relevant consideration of whether the extradition of the first respondent to Indonesia would be unjust by Australian standards, having regard to the fact that the first respondent was convicted in his absence in Indonesia;
(3) whether the Minister’s decision to order extradition and sign the warrant was unreasonable in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
69 The issue raised on the notice of contention, as I understand the notice which is inelegantly drawn, was whether the Minister disregarded a relevant consideration, namely that the surrender of the first respondent to the Republic of Indonesia would constitute a violation of Australia’s obligations under the ICCPR, and whether the Minister erred in failing to take into account that the surrender of the first respondent would breach Australia’s obligations under the ICCPR in exercising his discretion under s 22(3)(f) of the Extradition Act.
70 Justice Barker has found that the primary judge was right to conclude that the Minister had relied on Attachment B to the Casework-In-Confidence document and that it may be inferred that the Minister accepted the recommendation made in Attachment B.
71 For the reasons given by Barker J, I agree with the conclusion at which his Honour has arrived.
72 I agree with Barker J’s conclusion in relation to the third issue raised in the notice of appeal, that the primary judge erred in finding that the Minister’s decision was unreasonable in the Wednesbury sense.
73 I further agree with Barker J’s conclusion that the issues raised in the notice of contention must be dismissed.
74 It is in relation to the second issue raised in the notice of appeal which relates to the conviction being entered in Indonesia in the first respondent’s absence that, with respect, I disagree with Barker J.
75 Before addressing the proposition directly that the Minister failed to have regard to the fact that the first respondent was convicted in his absence in Indonesia, I should address the general proposition that eligible persons, who have been convicted in their absence in a Requesting State, should not be extradited because that would be unjust according to Australian standards.
76 It is not right, in my opinion, to say that it would be inconsistent with Australian law to allow for the extradition of an eligible person to a State in which that eligible person has been convicted in his or her absence.
77 Australian law recognises that other States may convict persons in their absence and that those persons may be extradited from Australia to those States. That proposition is expressly recognised in s 10(1) of the Extradition Act.
78 If the law in Australia was that no eligible person may be extradited to a State in which that eligible person has been convicted in his or her absence, s 10(1) of the Extradition Act would have no work to do. Section 10(1) contemplates that eligible persons might have been convicted in that person’s absence of an offence against the law of an extradition country. It also contemplates that the conviction might be final.
79 Moreover, the Extradition Act by s 11 recognises that the Executive should have power to enter into extradition treaties with other countries which shall, if made the subject of Regulations (s 11(1)(a)), provide for the limitations, conditions, exceptions, or qualifications, other than those provided for in the Act.
80 The Extradition Act expressly recognises that the Executive might enter into extradition treaties that may include limitations, conditions, exceptions or qualifications that are inconsistent with the Act. The treaty under consideration is not unusual. As the Minister contended, there are many treaties with similar text to the Extradition Treaty, which have been recognised in Regulations that apply to those treaties.
81 In this case, the Executive has entered into an Extradition Treaty with Indonesia and that treaty has the force of law by virtue of s 11(1) of the Extradition Act and the particular Extradition Regulations. It is not suggested that those Regulations are ultra vires.
82 The Extradition Treaty could have provided, like similar treaties with the United Mexican States (see Article 12 thereof) and the Republic of Argentina (see Article 6 thereof), that if a person is convicted in absentia that the person shall not be extradited unless the Requesting State gives assurances that the person sought to be extradited will have an opportunity to put forward a defence.
83 Article 11.2(b) expressly recognises that Australia or Indonesia may seek the extradition of an eligible person who has been convicted in the Requesting State in his or her absence.
84 Australia, by entering into the Extradition Treaty with Indonesia, expressly recognised that Indonesia might request the extradition of an eligible person convicted in that person’s absence in Indonesia.
85 Thus, in my opinion, it cannot be said, as the first respondent accepted, that a person who has been convicted in his or her absence in Indonesia cannot be extradited to Indonesia.
86 An application for extradition requires the Minister to perform an executive act in accordance with the powers given by the Extradition Act.
87 The Extradition Regulations in relation to the Republic of Indonesia are designed to include such limitations, conditions, exceptions or qualifications that Australia and Indonesia have thought necessary, which are contained in the Extradition Treaty as a schedule to the Extradition Regulations.
88 If Australia or Indonesia seeks extradition of a person, the Requesting State must comply with the Extradition Treaty, which regulates the circumstances in which the Requested State will agree to extradite a person to the Requesting State.
89 The Minister is obliged, because of s 22(3)(e), to give effect to s 11 of the Extradition Act so that the Minister must determine whether the Extradition Regulations and therefore the Extradition Treaty imposes limitations, conditions, exceptions or qualifications on extradition.
90 The Minister must therefore examine the Extradition Treaty. In this case, an examination of the Extradition Treaty shows that there are circumstances, in the nature of limitations, identified in the Extradition Treaty when the Requesting State’s application for extradition should be refused: Articles 4, 6, 7 and 9.1. In the case of Article 7 the limitation is subject to a condition.
91 The Extradition Treaty also provides for circumstances in the nature of qualifications where the Requesting State’s application may be refused: Articles 5 and 9.2. The relevant Article is Article 9.2(b), which requires the Requested State to consider, whilst at the same time taking into account the nature of the offence and the interests of the Requesting State, whether the circumstances of the person whose extradition is sought, including that person’s age, health or other personal circumstances, would make that person’s extradition unjust, oppressive or incompatible with humanitarian considerations.
92 The Minister must be satisfied whether the circumstances in Article 9.2(b) do not exist, or do exist. If the Minister is satisfied they do not exist, then s 23(3)(e) does not preclude the Minister from determining that the person be surrendered.
93 If the Minister is satisfied that the circumstances in Article 9.2(b) do exist, then the Minister must consider whether, nevertheless, the application for surrender should not be refused: s 22(3)(e)(iv).
94 The Minister must address s 22(3)(e) and, in particular, if the limitation, condition, qualification or exception provides the Minister with a discretion to refuse surrender: s 22(3)(e)(ii). If the Minister has to address s 22(3)(e)(ii), the Minister must, as I have said, satisfy himself or herself whether the circumstances exist or do not exist and, if they do exist, whether nevertheless the surrender of the person to the Requesting State should not be refused.
95 In this case, the limitation, condition, qualification, or exception that must be addressed is Article 9.2(b), which is a limitation that calls for the Minister to consider s 22(3)(e)(iv), because the limitation, condition, qualification or exception allows a residual discretion to the Requested State.
96 The first respondent contended that because he had been convicted and his appeal had been determined in his absence and he has lost his right to appeal, it would be unjust, oppressive or incompatible with humanitarian considerations for him to be extradited to Indonesia.
97 He contended that in this regard the Minister had failed to have proper regard to his personal circumstances when considering Attachment B to the briefing document headed “Casework-In-Confidence” (Att B).
98 Att B addressed the question of the right to a fair trial and the fairness of the first respondent’s conviction between paragraphs 185 and 204, all of which have been reproduced in Barker J’s reasons at [409].
99 However, they are not the only paragraphs in which Att B addressed the question of the first respondent’s conviction in his absence.
100 Att B also addressed s 7(c) of the Extradition Act, which provides for extradition objections and, in particular, whether the first respondent may be prejudiced at his trial, or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. That issue was addressed in Att B between paragraphs 33 and 99.
101 Att B addressed the issue of service upon the first respondent and at paragraphs 45, 46 and 71, informed the Minister that receipt by the Village Head on behalf of an accused person constitutes effective service under Indonesian law. At paragraph 79, Att B informed the Minister that Indonesia advised that receipts were in fact signed by the Village Head in respect of summonses for the first respondent. Att B stated that substituted service is permitted under Australian law in certain circumstances, and at paragraphs 45, 72 and 80, informed the Minister that service of the summonses was carried out in accordance with relevant Indonesian law including Articles 146 and 154 of the Indonesian Criminal Procedure Code.
102 Between paragraphs 81 and 99, Att B addressed the first respondent’s claims of dysfunction and corruption within the Indonesian judicial system, and the claims of prejudice against himself as an individual, which, he said, were substantiated by the very fact of his conviction in absentia and the circumstances of his trial and appeal.
103 From paragraph 215, Att B addressed considerations of international comity, noting that courts of the Requested State are “not in a position to scrutinise the criminal justice process in the Requesting State”, and at paragraph 220 stated that while “issues going to the fairness of the trial process in the Requesting State can potentially be taken into account … such issues must be considered in all the circumstances of the case and balanced with the principle of international comity.”
104 Att B also addressed the procedure known as Peninjauan Kembali (PK), which is a form of review after a person has been convicted and that person’s appeal dismissed.
105 The right to a PK hearing was identified in paragraph 225 of Att B and its application to the first respondent discussed between that paragraph and paragraph 239.
106 In paragraph 239, Att B concluded:
It therefore appears from the information provided by both Indonesia xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Plainly, the result of the application cannot be anticipated but available information suggests Ariawan will be afforded the opportunity to appear before the District Court Judges appointed to his case to seek review of his conviction and sentence. Further, there is no information to suggest Indonesia would not be capable of conducting a review of Ariawan’s case that accorded with fair trial rights under Article 14 of the ICCPR. The Department considers it is open to you to conclude that Ariawan’s surrender would not be unjust, oppressive or incompatible with humanitarian considerations notwithstanding his claims as to limited appeal rights and the perceived unfairness of a hearing in any future proceedings given the passage of time.
107 In the paragraphs to which I have referred, Att B addressed the first respondent’s conviction in his absence directly.
108 Att B also brought to the Minister’s attention, at paragraph 188, that the extradition treaty with Indonesia expressly provides for extradition where a person has been convicted in that person’s absence.
109 The Minister was informed at paragraph 189 that ordinarily a person is not convicted in Indonesia in their absence, but that such convictions only occur in certain limited circumstances for certain offences, which include corruption.
110 The Minister was informed that Indonesia had advised that the first respondent’s case fell within those circumstances and therefore that his trial took place in accordance with Indonesian law.
111 At paragraph 195, Att B advised the Minister that what is important in a consideration of this issue is whether the trial that occurred in the person’s absence is a trial that is in the whole of the circumstances fair, including the trial judge’s exercise of a proper discretion in determining to proceed with the conduct of the trial.
112 Att B advised the Minister that convictions in a person’s absence in Australia are rare. In particular, the Minister was advised, at paragraph 201, that Deane J, in Dietrich v The Queen (1992) 177 CLR 292, said that the “fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law”. (Department’s emphasis.)
113 At paragraph 255, the Minister was advised that “[t]he Department acknowledges that it is open to you to afford some weight to the assertions that [the first respondent’s] trial was not conducted in accordance with, and his sentence is excessive by, Australian standards.”
114 In addition to these matters to which I have just referred, which relate to the trial and conviction of the first respondent, Att B brought several further matters to the Minister’s attention that were relevant to the question for determination that arose under Article 9.2(b) of the Extradition Treaty.
115 Between paragraphs 175 and 180, Att B addressed the personal circumstances of the first respondent by informing the Minister that the first respondent was 66 years of age; his wife and two children were Australian citizens residing in Australia; he had not indicated that he was suffering from any ill health or medical complaints; and that he had no criminal record prior to 1999. The Minister was advised that these factors would not preclude the first respondent’s extradition on the grounds that it would be unjust, oppressive or incompatible with humanitarian considerations. The first three of these factors were described, at paragraph 270, as “not unusual or exceptional circumstances.”
116 From paragraph 240, Att B addressed the term of imprisonment and the first respondent’s claim that the sentence of life imprisonment was “unduly excessive”. The Minister was informed that life imprisonment in Indonesia meant imprisonment until the person’s death, but that an application for a fixed term sentence may be made by persons sentenced to life imprisonment and that remissions were possible in certain circumstances. The Minister was advised at paragraph 243 that it was “open to you to consider whether the punishment that has been imposed, in combination with factors such as incarceration in both Australia and Indonesia would leave to a disproportionately heavy burden of punishment being imposed”. Att B stated that different sentencing outcomes between countries are to be expected, given the different criminal justice priorities faced in each country. Att B, between paragraphs 100 and 105, addressed the claim of the first respondent that the length of the term of imprisonment demonstrated prejudice against him as a person of Chinese ethnicity.
117 From paragraph 247, Att B addressed the first respondent’s contention that if he were to be imprisoned in Indonesia he would be exposed to a high level of risk of HIV/AIDS infection and that such exposure would be incompatible with humanitarian considerations. The Minister was referred to earlier discussion upon the issue of HIV/AIDS infection in Indonesian prisons that was contained in paragraphs 122 to 157.
118 As I have said, Article 9.2(b) of the Extradition Treaty not only requires the Requested State to consider the circumstances of the person whose extradition is sought including that person’s age, health or other personal circumstances, in determining whether those circumstances would make that person’s extradition unjust, oppressive or incompatible with humanitarian considerations, but Article 9.2(b) also requires the Requested State, in doing so, to take into account the nature of the offence and the interests of the Requesting State.
119 At paragraph 165, Att B stated that the nature of the offence “is a serious offence relating to corruption and misappropriation of State finances” and, at paragraph 29, advised the Minister that the offence for which extradition was sought was “very serious and allegedly led to a loss amounting to over IDR1.5 trillion (approximately A$113 million in 1998) and had a significant effect on Indonesia’s State finances.”
120 At paragraph 166, Att B stated that the interests of the Requesting State, Indonesia, included “its interest in having a person who has been convicted of a very serious corruption offence involving a significant loss to State finances, who committed the offence while present in Indonesian territory, extradited to Indonesia in order to serve the sentence of imprisonment imposed.” The Minister was informed of Indonesia’s efforts to eradicate corruption and the fact that the first respondent was identified by the Indonesia corruption eradication Commission as one of its most important targets for law enforcement action, given the seriousness of his offending.
121 Att B also brought a principal object of the Extradition Act, namely for Australia to carry out its obligations under extradition treaties, to the attention of the Minister: s 3(c) of the Extradition Act. The Minister was advised that “in the consideration of any discretionary ground for refusal in the Treaty the objective of extradition arrangements should be borne in mind, that is, to facilitate the administration of criminal justice in Australia and other countries by ensuring that persons accused or convicted of serious offences cannot escape justice by not being present in the jurisdiction.”
122 In addition to these paragraphs of Att B wherein matters relevant to the question for determination under Article 9.2(b) were brought to the Minister’s attention, it should, in my opinion, also be observed that the decision of the Minister is not made within a knowledge vacuum.
123 The Minister seized with the responsibility of administering the Extradition Act and making administrative decisions under the Act is the Attorney-General for the Commonwealth, the senior law officer in the Commonwealth. It may be assumed that the Attorney-General has more than a passing knowledge of the law but, in particular, would be aware that it is rare that a person would be convicted in Australia in that person’s absence. In this case, the decision was made by the Minister who shares responsibility in the Attorney-General’s portfolio, but the point is no less sound. The Minister may be expected to be aware of the proposition, which it is said was not properly addressed.
124 In my opinion, Att B adequately brought to the Minister’s attention the question for determination by the Minister, which was whether, after taking into account the nature of the offence and the interests of the Requesting State, that in the circumstances of the case, including the age, health or other personal circumstances of the first respondent, the extradition of the first respondent would be unjust, oppressive or incompatible with humanitarian considerations.
125 For those reasons, in my opinion, the appeal should be allowed. The orders made by the primary judge should be set aside. The application to the primary judge should be dismissed.
126 The first respondent should pay the costs of the hearing before the primary judge and the costs of the appeal.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. |
Associate:
IN THE FEDERAL COURT OF AUSTRALIA | |
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 92 of 2012 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH APPELLANT FOR HOME AFFAIRS AND JUSTICE Appellant
|
AND: | ADRIAN ADAMAS First Respondent IAN JOHNSON, THE COMMISSIONER DEPARTMENT OF CORRECTIVE SERVICES Second Respondent
|
JUDGES: | LANDER, MCKERRACHER AND BARKER JJ |
DATE: | 15 february 2013 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
MCKERRACHER J:
127 I have had the benefit of reading the reasons in draft prepared by Justices Lander and Barker. I am grateful for their Honours’ detailed consideration of the issues. Repetition of it would be superfluous. The process of reasoning by their Honours is similar. They depart, however, on the point of the final analysis. I adopt the abbreviations used by Lander J, but I respectfully agree with the conclusions reached by Barker J and the reasons for them.
128 Specifically, as is common ground, the Minister, in my view, was required to consider the matters set out in the Extradition Treaty (as well as the Extradition Act). The Extradition Treaty, being specific to these parties, qualifies or modifies the Extradition Act.
129 If the Minister considered the factors in Art 9(2)(b) of the Extradition Treaty, he was to consider whether or not the circumstances of the case were such that the extradition of the first respondent would be, amongst other things, “unjust” according to Australian standards. He was also required, at the same time, to consider the nature of the offence and the interests of the requesting State. It may be accepted that the latter considerations were serious and the Minister was so informed and accepted the seriousness. The seriousness cannot be and is not disputed.
130 There is also a deal of discussion in Attachment B about the regularity of the conviction according to Indonesian law. None of this analysis is in dispute. However, as noted recently by the Full Court (Siopis, Greenwood and Logan JJ) in Newman v New Zealand (2012) 206 FCR 1 at [44], the weight to be given to the assumption that proceedings in the requesting country are fair “is neither a substitute for measuring whether the surrender of a person is ‘unjust, oppressive or [too severe a punishment]’ by reference to Australian standards nor a panacea for a surrender which would entail a violation of those standards”. The same consideration applies to this Extradition Treaty.
131 On that key issue, the high point of the information before the Minister in relation to what may be unjust by Australian standards was the advice (at [197] of Attachment B) that “convictions in a person’s absence are ‘rare’ in Australia and generally only occur for summary offences or where the defendant has deliberately absented himself [or herself] from proceedings after having appeared initially”. It may be that such rarity would, in any event, be understood by the Minister as noted by Lander J (at [123]).
132 However, this consideration, in my respectful view, is but one aspect of the totality of the relevant considerations for the purposes of Art 9.2(b). It is the cumulative “circumstances of the case” that fall for consideration, not the conviction in absentia alone.
133 What this paragraph of Attachment B does not say, and it appears nowhere else in Attachment B, is that it would actually be unheard of in Australian criminal justice (and therefore clearly unjust as well as oppressive) for someone to be tried in his or her absence in respect of an offence carrying a penalty of imprisonment for one’s natural life in circumstances where there is no proof that the person was aware of the charge or the trial. Mere suspicion as to the possibility of the person’s awareness of the charge and trial would never satisfy Australian standards. Nor does Attachment B suggest that by Australian standards it would be unjust that there would be no individual right of appeal in respect of conviction and sentence following such a “trial” if an appeal had already been unsuccessfully exercised by a co-accused who happened to be aware of and present for the trial and conviction. These matters in totality must be included when considering “the circumstances of the case” leading to “extradition of the person” for the purposes of Art 9.2(b).
134 None of this is to suggest that extradition following a conviction in absentia cannot occur. It is plain under the Extradition Act and the Extradition Treaty that it may. As long as the Minister is advised correctly and considers the correct matters, the decision is entirely for him or her as the case may be.
135 The only evidence before the primary judge, without overzealous scrutiny of Attachment B (which is otherwise drawn with typical care), demonstrates in my respectful view that the Minister was not informed as to the manifest injustice by Australian standards.
136 It would follow that the primary judge was entitled to conclude, as he did, that the Minister was misled into taking into account a wrong consideration (mere rarity) or failing to take into account the correct relevant consideration.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Dated: 15 February 2013
IN THE FEDERAL COURT OF AUSTRALIA | |
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 92 of 2012 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS AND JUSTICE Appellant
|
AND: | ADRIAN ADAMAS First Respondent IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES Second Respondent
|
JUDGES: | LANDER, MCKERRACHER AND BARKER JJ |
DATE: | 15 FEBRUARY 2013 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
barker J:
Overview of appeal
137 This appeal concerns the extradition of the first respondent to the Republic of Indonesia (Indonesia) at the request of Indonesia.
138 On 17 December 2010, the appellant (Minister) approved the first respondent's extradition to Indonesia under the Extradition Act 1988 (Cth) (Extradition Act or Act) in relation to his earlier in absentia conviction in Indonesia for the offence of corruption.
139 On 15 March 2012, following consideration of the first respondent's judicial review application, the primary judge quashed the Minister's decision and a surrender warrant issued under the Act, finding the decision took into account irrelevant matters and failed to take into account relevant matters concerning the standard to be applied when considering whether the extradition of the first respondent would be unjust, oppressive or incompatible with humanitarian considerations having regard to the in absentia nature of the conviction, and was unreasonable in any event having regard to the in absentia nature of the conviction.
140 The Minister now appeals against the decision of the primary judge.
141 The first respondent seeks to uphold the primary judge's decision on the grounds given by the primary judge, but also on other grounds rejected by the primary judge, which are the subject of notices of contention in the appeal.
142 For the reasons which follow, I would allow the appeal against the primary judge’s finding that the Minister’s decision was unreasonable, but would otherwise dismiss the appeal, as well as the first respondent’s notices of contention.
indonesian conviction and other events LEADING to extradition request
143 On 13 November 2002, in Indonesia, the first respondent, whose name then was Adrian Kiki Ariawan, was convicted in absentia, that is to say, in his absence, by the Central Jakarta District Court (District Court) for the offence of corruption contrary to Art 1 para (1.a) Indonesian Law No 3 Year 1971 on Combating Corruption Crime and sentenced to life imprisonment and ordered to pay a fine.
144 The period of criminal conduct the subject of the conviction was between 1989 and 1998, during which period the first respondent worked for Bank Surya in Indonesia in a senior position, including for at least five years as the President Director.
145 Another former official of the bank, Mr Sutrisno, was also convicted of the same corruption offence at the same time by the District Court.
146 At the time of his conviction in absentia the first respondent was living in Australia, in Perth, Western Australia and, indeed, two days prior to his conviction had been granted Australian citizenship. The first respondent had first arrived in Australia on 25 July 1999.
147 On 16 August 1999, soon after his arrival in Australia, he received a Certificate of Good Conduct issued by Indonesian Police.
148 On 22 November 1999, the first respondent registered his Perth address with the Indonesian Consulate in Perth.
149 In March 2000, the first respondent travelled to Indonesia, before returning to Australia.
150 On 18 October 2000 a summons was issued to, though not personally served on, the first respondent by the Indonesian prosecutor as part of an investigation into the collapse of Bank Surya. This appears to have been the first legal step in proceedings against him in Indonesia. However, media reports concerning the collapse of Bank Surya had first been published in Indonesia in April 1998, following the declaration by the Indonesian Government in April 1998, that Bank Surya was a “suspended bank” and an order was made on 4 August 1998 requiring Bank Surya to stop business operations.
151 A further summons was issued to the first respondent by the Indonesian prosecutor on 7 February 2001, but again not personally served on him.
152 On 4 April 2002, notices of the summons to the first respondent were placed in Indonesian media outlets.
153 On 16 May 2002, the District Court ordered the public prosecutor to resummons the first respondent with a view to him appearing in the court to answer the charges against him on 21 May 2002. On 21 May 2002, the District Court ordered the first respondent to be resummoned when he did not appear to answer the earlier summons.
154 It seems a copy of this last summons to the first respondent was sent to the village where the first respondent had previously lived, as on 28 May 2002, a letter from the Village Head notified the prosecutor and the District Court that the first respondent no longer resided at the address to which the summons had been sent.
155 On 30 May 2002, the District Court further ordered that the first respondent be resummoned to appear on 25 June 2002 and that advertisements be published in four newspapers.
156 On 25 June 2002, the Chief Judge of the District Court again ordered the prosecutor to resummon the first respondent to appear on 8 July 2002 and that notices of the summons be published in four Indonesian newspapers.
157 On 8 July 2002, the prosecutor asked the judge to proceed with the trial of the first respondent and the reading of the indictments in his absence. The judge then decided that the trial would proceed on 24 July 2002 in the first respondent’s absence.
158 On 15 July 2002, the prosecutor’s office issued a further summons to the first respondent to appear on 24 July 2002. Again, this was not personally served on him.
159 On 24 July 2002, the trial of the first respondent commenced in the District Court in his absence.
160 It appears from the materials before this Court that at no material time was the Indonesian prosecutor or the District Court made aware of the information held by the Indonesian consulate in Perth, Western Australia, that, as of 22 November 1999, the first respondent was resident in Perth.
161 Then, as noted above, on 13 November 2002, the first respondent was convicted in absentia of the offence of corruption of which he was charged and sentenced to life imprisonment, with a fine, although, as noted below, it seems the conviction and sentence was not formally published until 28 November 2002.
162 It appears, coincidentally, that on 14 November 2002, the day after the conviction was recorded, the first respondent changed his last name, in Western Australia, from “Adrian Kiki Ariawan” to “Adrian Adams”. His Perth address, however, appears to have remained unchanged as of that date.
163 On 28 November 2002, the decision of the District Court was formally published in an Indonesian newspaper and an announcement of the decision was also placed on information boards in all government offices of the Central Jakarta District.
164 It also appears that, at all material times, the Indonesian prosecutor proceeded with the prosecution of the co-accused, Mr Sutrisno, who, as noted above, was convicted of the same offence as the first respondent at the same time.
165 Mr Sutrisno later appealed to the High Court in Indonesia against his conviction and sentence. The appeal was dismissed. However, the appeal was apparently treated under Indonesian law as binding both the appellant and the first respondent. In this regard, a letter was later sent from the Ministry of Law and Human Rights of the Republic of Indonesia dated 11 May 2010 to the Australian Attorney-General’s Department (noted at p 209 of Mr Corbould’s affidavit, made 26 May 2011 and filed on behalf of the Minister in this proceeding), which advised that:
…in the deadline provisioned under the law, both the Public Prosecutor and Adrian Kiki Ariawan did not file an appeal, so the decision of the High Court was final and binding.
166 The High Court decision dismissing the appeal, while dated 2 June 2003, was notified to the prosecutor on 16 June 2003 and published through an announcement in the District Court and in a newspaper circulating in Indonesia on 1 July 2003. As in the case of the initial conviction and sentence, however, the first respondent was not served with the appeal process or advised of the dismissal of the appeal proceeding.
167 Soon after, on 3 July 2003, the head of the Central Jakarta District Prosecution Office issued a Memo of Decision Execution Order and the first respondent was declared by Indonesia to be a “fugitive”. It appears that until this point he was not declared a fugitive by Indonesia.
168 On 16 December 2004, the first respondent again changed his last name, in Western Australia, from “Adams” to “Adamas”. However, his Perth address appears to have continued to remain unchanged as of this date.
169 On 20 December 2004, the Central Jakarta District Prosecution Office sent a letter to Interpol requesting assistance to locate and arrest the first respondent. Following the publication of an Interpol “Red Notice” on 17 January 2005, it appears Australian authorities became aware that a person matching the first respondent’s description was located in Australia.
extradition proceeding in australia
170 On 26 November 2008, an Indonesian warrant was issued for the arrest of the first respondent. Soon after, on 28 November 2008, Indonesia made a formal extradition request of Australia for the surrender of the first respondent.
171 In this regard, at material times Australia and Indonesia were parties to an extradition treaty done at Jakarta on 22 April 1992 (Treaty). Subsequent to that date, by the Extradition (Republic of Indonesia) Regulations 1994 (Cth) (Regulations) dated 20 December 1994 and made under the Extradition Act, Indonesia was declared to be an extradition country (reg 4) and the Act was stated to apply to Indonesia subject to the Treaty (reg 5), a process provided for by s 11 of the Act.
172 By Art 1(1) of the Treaty, each of Indonesia and Australia agreed to extradite to the other, in accordance with the provisions of the Treaty, any persons who are wanted for prosecution or for the imposition or enforcement of a sentence in the Requesting State for an extraditable offence.
173 By Art 2(1)(20), extraditable offences include: stealing; embezzlement; fraudulent conversion; fraudulent false accounting; obtaining property, money, valuable securities or credit by false pretences or other forms of deception; receiving stolen property, any offence involving fraud.
174 On the same day as the extradition request was made by Indonesia, a warrant was issued pursuant to the Act by a magistrate in Western Australia and the first respondent was provisionally arrested in Perth.
175 On 18 September 2009, another magistrate in Western Australia determined pursuant to the Act that the first respondent was eligible for surrender to Indonesia and issued a warrant under s 19(9) of the Act committing him to prison to await surrender or release pursuant to an order under s 22(5) of the Act.
section 22 of the extradition act
176 The Extradition Act is the source of Australian law relating to extradition of a person from Australia to a requesting state. However, by s 11 the Act enables regulations to be made that state that the Act applies subject to limitations, conditions, exceptions or qualifications agreed in a treaty with a requesting state. Section 11(1C) states that, for the purposes of subs (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”. This is the form of words that was used in reg 5 of the Regulations to make the Act subject to the Treaty.
177 At material times the first respondent was an “eligible person” as defined in s 22(1), a magistrate having made an order under s 19(9) committing him to prison, and there being a “qualifying extradition offence” in relation to the first respondent as an eligible person, as defined in s 22(1), in that there was an extradition offence as defined in s 5 of the Act (being an offence against the law of Indonesia for which the maximum penalty is imprisonment for a period of not less than 12 months and in relation to which a similar penalty would apply for a similar offence in Australia).
178 As a result, at material times, by s 22(2), the Minister (acting with the delegated authority of the Attorney-General), was required to determine whether the first respondent should be surrendered to Indonesia. In exercising this power, however, the Minister was constrained by s 22(3), in that an eligible person “is only to be surrendered” 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 speciality 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.
179 In this particular instance the factor or circumstance referred to in s 22(3)(e) was made relevant because the Act was subject to limitations contained in the Treaty. In turn, the Treaty provided for bars or potential bars to extradition in relation to the following matters:
Article 4 – political offences.
Article 5 – extradition of nationals.
Article 6 – double jeopardy.
Article 7 – death penalty.
Article 8 – rule of speciality.
Article 9 – exceptions to extradition.
180 Article 9, in particular, provides as follows:
1. Extradition shall not be granted in any of the following circumstances:
(a) where the person sought has acquired exemption from prosecution or punishment by reason of lapse of time or other lawful cause according to the law of either Contracting State in respect of the act or omission constituting the offence for which extradition is requested;
(b) where the act or omission constituting the offence for which extradition is requested is of a kind that, under the law of the Requested State, constitutes an offence only against military law;
(c) where the person whose extradition is requested is liable to be tried by a court or tribunal that is especially established for the purpose of trying his case or is only occasionally, or under exceptional circumstances, authorised to try such cases or his extradition is requested for the purpose of his serving a sentence imposed by such a court or tribunal;
(d) where the Requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions; or
(e) where the Requested State has substantial reasons for believing that the person whose extradition is requested will be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
2. Extradition may be refused in any of the following circumstances:
(a) where an investigation is in progress or a prosecution is pending in the Requested State in respect of the offence for which the extradition of the person is requested;
(b) where 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 requested, the extradition of that person would be unjust, oppressive or incompatible with humanitarian considerations;
(c) in the case of a person convicted and sentenced in respect of an offence, less than six months of the sentence of imprisonment or any other form of deprivation of liberty imposed in the Requesting State for the offence for which extradition is requested remains to be served, taking into account the serious nature of the offence;
(d) if the competent authorities of the Requested State have decided in the public interest to refrain from prosecuting the person for the offence in respect of which extradition is requested; or
(e) where the offence for which extradition is requested is regarded under the law of the Requested State as having been committed in whole or in part within that State.
181 The Act, by s 22(3), also provides bars or potential bars to extradition, as follows:
Paragraph (a) – if there is a proper “extradition objection”.
Paragraph (b) – to prevent torture.
Paragraph (c) – to avoid the death penalty.
Paragraph (d) – in relation to speciality assurances.
182 The nature of an “extradition objection”, to which s 22(3)(a) refers, is explained by s 7(a)-(e) of the Act:
Paragraph (a) concerns a “political offence”, which expression is further defined by s 5 of the Act.
Paragraph (b) concerns the purpose of the surrender being for “prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country”.
Paragraph (c) is concerned with whether a person on surrender may be “prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions”.
Paragraph (d) concerns whether the offence is under military law.
Paragraph (e) is concerned with whether the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia or has undergone the punishment provided by the law of that country or Australia in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence – which has to do with double jeopardy.
183 To the extent there is an inconsistency between a bar in the Act and one in the Treaty, given that the Act by s 11 is made subject to the Treaty, it would seem the Treaty provisions would prevail over the operation of the Act. It is not necessary on this appeal to determine this issue, although it might be said that inconsistency should not readily be found, and compatibility should be strived for, given that each bar or potential bar is designed to protect the life or liberty of a requested person and such protections should not be disregarded in the face of ambiguous provisions (see Coco v The Queen (1994) 179 CLR 427 at 437).
First respondent’s representations to the minister
184 In written representations made on his behalf to the Minister, the first respondent objected to his extradition to Indonesia under s 22 of the Act on various grounds which raised extradition objections and Art 9 of the Treaty, as follows:
Pursuant to s 7(b) and s 7(c) of the Act on the basis that he has been and will be prejudiced if he were extradited to Indonesia on account of his Chinese ethnicity.
On the basis that he was prejudiced at his trial in the District Court and in the High Court appeal in Indonesia on account of his race, namely that he was not aware of the trial that proceeded in his absence and no efforts were made to locate him in Australia, that Indonesia’s legal system prejudices and scapegoats people of Chinese ethnicity and that an appeal was brought by the prosecution to ensure he has no further rights of appeal.
That the length of the term of imprisonment imposed on him in his absence demonstrated Indonesia’s prejudice against him as a person of Chinese ethnicity.
On the basis that his extradition was required for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions, thus engaging Art 9(1)(d) of the Treaty.
That if he were surrendered to Indonesia to serve a sentence of life imprisonment in relation to the extradition offence, he would be placed at an unacceptable risk of contracting HIV/AIDS and so subjecting him to torture or to cruel, inhuman or degrading treatment or punishment, thus engaging Art 9(1)(e) of the Treaty and s 22(3)(b) of the Act, and that this would also constitute a violation of Australia’s obligations under Art 7 of the International Covenant on Civil and Political Rights (ICCPR), which was opened for signature 16 December 1966, 999 UNTS 171, and entered into force 23 March 1976.
That having regard to his age and ethnicity and character, the circumstances of his case should preclude extradition having regard to Art 9(2)(b) of the Treaty.
That the circumstances of his trial and conviction in the District Court and the High Court in his absence were unjust or incompatible with humanitarian considerations thus engaging Art 9(2)(b), and that he was unlikely to be granted a fair hearing at any future proceedings in Indonesia under an extraordinary legal review process known as Peninjauan Kembali (PK) provided for under Art 263 of the Indonesian Criminal Procedure Code.
That the sentence of life imprisonment was “unduly excessive” compared with sentences customarily imposed for similar offences in Australia, thus engaging Art 9(2)(b) of the Treaty.
That the unacceptable exposure to risk of HIV/AIDS in Indonesian prisons was incompatible with humanitarian considerations, thus engaging Art 9(2)(b) of the Treaty.
The lapse of time since the offending conduct had occurred also made it unjust, oppressive or incompatible with humanitarian considerations to extradite him, thus engaging Art 9(2)(b) of the Treaty.
the department’s section 22 submission and minister’s determination
185 On 3 December 2010, the Minister, who had been authorised to exercise the functions of the Attorney-General under the Act, was provided with materials by the Attorney-General’s Department – which the Minister in these proceedings has called “the s 22 submission” – for his consideration in determining whether the first respondent should be surrendered to Indonesia.
186 The s 22 submission provided to the Minister by the Department was stamped “Casework-in-confidence” and comprised a covering memorandum of three pages identifying, amongst other things, key issues, the departmental analysis and recommendation and background information that referred to the following attachments:
Attachment A – the warrant proposed to be issued under s 23.
Attachment B (Att B) – an “Analysis of grounds of refusal”.
Attachment C – the s 19 warrant.
Attachment D – the text of the Indonesian offence provision.
Attachments E1, E2 and E4 – representations made on behalf of the first respondent.
Attachment E3 – Indonesia’s response.
Attachment F – a statement of the Indonesian prosecutor.
Attachment G – a chronology of summons/notification process.
Attachment H – advice from Professor Tim Lindsey.
Attachment I – advices from the Office of International Law.
187 By reason of the Minister’s claim to privilege over certain materials, only portions of the covering memorandum and Attachments A to I were subsequently disclosed to the solicitors for the first respondent and filed in these proceedings.
188 The covering memorandum stated the “key issue” to be:
Whether to surrender Ariawan to Indonesia pursuant to Indonesia’s request for his extradition.
189 The “AGD Analysis” set out in the covering memorandum noted that:
In order to make a determination under s 22 of the Act, you must be satisfied that, having regard to the circumstances, Ariawan should be surrendered to Indonesia in relation to the extradition office. While Ariawan has made extensive representations as to why he should not be surrendered for your consideration, the Department considers that, for the reasons in the attached analysis, it is open to you to be satisfied that the requirements under the Treaty and statutory preconditions under the Act for surrendering Ariawan to Indonesia are met.
190 The recommendation of the Assistant Secretary, International Crime Cooperation Central Authority set out in the covering memorandum recommended that the Minister:
(i) …read Attachment B and determine under s 22(2) of the Act that Ariawan be surrendered to Indonesia, and
…
(ii) if you agree to (i), that you sign and date the warrant at Attachment A under s 23 of the Act for the surrender of Ariawan to Indonesia for the extradition offence stated in the warrant.
(Emphasis in original.)
191 On 17 December 2010, the Minister indicated his approval of the recommendation in para (i), by circling “Approved”, rather than the alternatives “Not Approved” or “Discuss”, and by circling “Signed” in relation to para (ii), rather than the alternatives “Not Signed” or “Discuss”, and by affixing his signature where indicated on the first page of the memorandum.
192 The Minister also wrote on the bottom of the first page of the memorandum:
I want to be briefed personally in this matter by relevant AGD officer ASAP on Friday 17th Dec.
There is no evidence, however, to establish that the Minister received a personal briefing from a relevant officer of the Department before approving the surrender and signing the warrant for surrender. In light of this lack of evidence and the fact the Minister circled “Signed” rather than “Not signed” or “Discuss” suggests no such briefing occurred, and the parties have at all times proceeded on this basis.
193 In Att B to the covering memorandum, comprising some 53 pages, the Department dealt with topics under headings that included: extradition objections under s 22(3); mandatory grounds for refusal of extradition; discretionary grounds for refusal under Art 5 and 9(2) of the Treaty; general discretion to surrender; and “submission conclusion”. Aspects of Att B are referred to in more detail below.
194 As to the first respondent’s objections to extradition relying on Art 9(2)(b) of the Treaty, Att B stated at [255]-[256]:
255. For the reasons set out above, the Department considers that Ariawan’s claims in respect of his personal circumstances, the fairness of his trial generally and prejudice on the basis of his Chinese ethnicity, his conviction in absentia, the length of the sentence of imprisonment imposed on him and his limited appeal rights and the risk of HIV/AIDS in prison in Indonesia do not, individually, mean his extradition would be unjust, oppressive or incompatible with humanitarian considerations so as to warrant the exercise of your discretion to refuse surrender. The Department acknowledges that it is open to you to afford some weight to the assertions that Ariawan’s trial was not conducted in accordance with, and his sentence is excessive by, Australian standards. However, the Department considers the fact that it will be open to Ariawan to apply for a PK review of the Indonesian court decision on his return to Indonesia substantially attenuates the consequences of his conviction in absentia.
256. Taking into account the totality of the circumstances of this case including:
• the very serious nature of the bank fraud/corruption offence of which Ariawan has been convicted
• Indonesia’s interest in pursuing those responsible for the commission of major corruption crime in Indonesia
• Ariawan’s personal circumstances
• the circumstances of Ariawan’s conviction in absentia
• the length of the sentence of imprisonment imposed upon him
• the nature of the appeal rights available to Ariawan
• differences in the conduct of criminal justice processes in Australia and Indonesia
• the lapse of time since the offending conduct occurred, and
• the level of risk of exposure to HIV/AIDS in Jakarta prisons
the Department considers it open to you to conclude that it would not be unjust, oppressive or incompatible with humanitarian considerations to determine to surrender Ariawan to Indonesia.
195 Finally, at [272] to [274] Att B concluded:
272. The Department considers that you can be satisfied that the requirements of section 22 for surrendering a person are met in this case.
273. The Department has analysed the matters raised on behalf of Ariawan in opposition to his surrender and considers that the relevant matters which are open to you to consider in exercising your discretion, including those prescribed in the Treaty, do not warrant the exercise of your discretion to refuse Ariawan’s surrender to Indonesia.
274. Having regard to the interests of Indonesia and Australia’s obligations under the Treaty to extradite persons who are the subject of an extradition request made by Indonesia in accordance with the Treaty, and the preceding examination of grounds on which the surrender might be refused, we recommend that you exercise your discretion to grant the request for Ariawan’s extradition and determine that Ariawan should be surrendered to Indonesia.
judicial review
196 The first respondent, in light of the Minister’s s 22 determination and the issue of the surrender warrant under s 23 of the Act, applied to the Federal Court of Australia on 20 December 2010 for a declaration that the s 22 decision was void and of no legal effect, and an order quashing the s 22 decision and the surrender warrant issued under s 23, as well as an order for his release from custody.
197 The primary judge rejected a number of grounds of the judicial review application but upheld two grounds, to the effect that the Minister took into account irrelevant considerations and failed to regard relevant considerations when considering the application of Art 9(2) of the Treaty to the first respondent’s circumstances, and acted unreasonably in making his s 22 determination and so in issuing the warrant under s 23.
198 ICCPR grounds: The primary judge dealt first with grounds 1 and 2 of the judicial review application which alleged, in effect, that the Minister:
(1) made an error as to his jurisdiction by disregarding a relevant consideration in that in making the decision he failed to have regard to the fact that Australia is a party to the ICCPR and was obliged to consider whether the treatment by Indonesia giving rise to the extradition request contravened or is inconsistent with the provisions of the ICCPR, particularly Art 14(3)(d) of the ICCPR and international law, in that he, having been tried in absentia, had lost his right recognised by the ICCPR and international law to examine witnesses and obtain the attendance of witnesses on his behalf; and
(2) made an error as to his jurisdiction by disregarding a relevant consideration in that in making the decision having regard to the obligations under the ICCPR and international law, failed to have regard to the fact that the trial of the first respondent in absentia other than where the first respondent would, if extradited to Indonesia have an unfettered right to a retrial.
199 The primary judge noted Art 14(3)(d) and 14(3)(e) of the ICCPR (which were referred to in Att B), which provide as follows:
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
. . .
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
200 The primary judge found that these grounds were misconceived. While the primary judge was of the opinion that the Minister was obliged to take into account Australia’s obligations under the ICCPR “and in particular that the applicant’s trial and conviction in absentia contravened or was inconsistent with Arts 14(3)(d) and 14(3)(e) of the ICCPR”, he held the Minister did not disregard this relevant consideration. The primary judge noted that unlike the case of Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, this was not a case where denial of procedural fairness was alleged. Rather, the primary judge found that the real complaint was that the Minister did not exercise his discretion under s 22 in favour of the first respondent.
201 Ethnic considerations grounds: The primary judge also found that ground 5 of the judicial review application failed, which raised s 7(b) and (c) objections to extradition essentially on the grounds of ethnic prejudice, as the appeal ground constituted, in substance, an impermissible challenge to the merits of the decision, not its legality. His Honour noted that these objections were subject to the Treaty and that Art 9(1)(d) provided that extradition shall not be granted if Australia has “substantial grounds” for believing that Indonesia’s request was made “for the purpose of prosecuting or punishing the person on account of his race…”. His Honour found there was no evidence of such substantial grounds or that the Minister held such a belief. In those circumstances, the primary judge found there was no extradition objection and no basis under the Treaty for refusing surrender on that ground.
202 HIV/AIDS ground: Similarly, the primary judge found that ground 6, which complained that the Minister had failed to consider whether the high incidence of HIV/Aids in Indonesian prisons would constitute torture or cruel or inhuman or degrading treatment or punishment and so a reason for refusing surrender, was not supported by the material. His Honour noted that s 7 and s 22(3) of the Act do not mention “cruel, inhuman or degrading treatment or punishment” and that, while s 22(3)(e) mentions torture, torture was not alleged.
203 His Honour considered that Art 9(1) was not engaged because no substantial reasons existed for the relevant belief and so was not open to challenge the determination as a matter of discretion under Art 9(2) or under s 22(3)(f). His Honour said it could not be a jurisdictional error to surrender the first respondent merely because there are non-substantial reasons to suspect or believe the first respondent would be subject to cruel or inhuman or degrading treatment or punishment.
204 Conviction in absentia grounds: The primary judge also considered grounds 3 and 4 of the judicial review application which concerned the first respondent’s claim that because of the in absentia conviction and appeal dismissal and the fact the first respondent has no present right of further appeal or retrial, his extradition would be unjust, oppressive or incompatible with humanitarian considerations for the purposes of Art 9(2)(b) the Treaty.
205 The primary judge expressly accepted, at [43]-[44] of his reasons, and as a matter of common ground, that in considering whether a person should be surrendered, the Minister was required under s 22(3)(e) of the Act and Art 9(2)(b) of the Treaty to consider, whilst also taking into account the nature of the offence and the interests of Indonesia, whether, in the circumstances of the case, including the age, health or other personal circumstances of the application, the extradition would be “unjust, oppressive or incompatible with humanitarian considerations”. The primary judge also accepted that Art 9(2)(b) of the Treaty was a limitation, condition, exception or qualification to the Act, within the meaning of s 11. His Honour noted an extradition “may be refused” in such a circumstance.
206 The primary judge also noted that by s 22(3)(e) of the Act, for the purposes of s 22(2), an 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.
207 His Honour noted that Art 9(2)(b) is one of the discretionary grounds for refusal of surrender and that, by virtue of s 22(3)(e)(ii) and (iv), even a conclusion that extradition would be unjust, oppressive or incompatible with humanitarian considerations does not “mandate a decision not to surrender”.
208 The primary judge then considered the circumstances leading to the conviction of the first respondent in absentia. The primary judge, at [51], stated that it was “by no means clear” why the Indonesian prosecutor determined to try the first respondent both in his absence and without his knowledge and later joined an appeal, again in his absence, and without his knowledge, to an appeal brought by his co-accused. His Honour noted that trials of persons upon criminal charges in absentia are not common in Indonesia but they do occur. His Honour’s observation that it was “by no means clear” why, this appears to follow from his Honour’s observations at [50], concerning the move by the first respondent in July 1999 to travel to Australia to live with his wife and family, and the fact that he had advised the Indonesian Consulate in November of that year of his Perth residential address and that he had received a Certificate of Good Conduct from the Indonesian police, as well as the fact that he had openly travelled back to Indonesia in March 2000.
209 It may be said, in passing, that if one takes those factual matters in the chronological order in which they in fact occurred, as set out above, noting that the Certificate of Good Conduct issued by the Indonesian police was not in fact issued until August 1999, after the first respondent had relocated to Australia in July 1999, there is no particular reason to suggest that the Indonesian prosecutor was aware that the first respondent had relocated to Australia. There is no particular reason why the Minister on considering the matters he was required to deal with under the Act relating to surrender, would have concluded that the Indonesian prosecutor had been “wilfully blind” to the relocation of the first respondent to Australia or that there were reasonable grounds for thinking that the Indonesian prosecutor had such knowledge. Indeed, the subsequent events, detailed above, including that some years later Indonesia alerted Interpol and eventually discovered that the first respondent was located in Australia, lead to a different conclusion. One would be reluctant to conclude that Indonesian Authorities would have gone to such trouble over such a period of time to locate the first respondent if they earlier had some inkling as to his presence in Australia.
210 Be that factual matter as it may, the primary judge formed the view that, while it would be open to the first respondent, if he were extradited to Indonesia, to seek “an extraordinary legal review” of his conviction, known as Peninjauan Kembali (PK) under Art 263 of the Indonesian Criminal Procedural Code, the PK review does not come close to substituting for a right to a trial de novo or a full right of appeal for his initial conviction. His Honour, at [60], considered this PK review fell well short of what under Australian law would be regarded as fair or just. He noted that the PK review process was “discretionary” and made no provision for testing evidence already given at the trial in absentia by cross-examination of witnesses. Such evidence would not constitute “new circumstances” for the purposes of Art 263. The primary judge was also unclear as to whether the first respondent would have access to transcript of the evidence given at the trial. He noted the facts relating to the case go back at least 10 years or more. He noted there is no right for such an applicant to call witnesses. Finally, his Honour noted that if there were no retrial, in effect, the life sentence to which the first respondent was currently subject, meant just that:
I am informed by counsel that ‘life’ in Indonesia in this context is to be taken literally.
211 The primary judge accepted the submission of the first respondent that the Minister misdirected himself as to the test to be applied in determining whether the first respondent’s extradition would be unjust, oppressive or incompatible with humanitarian considerations, thereby took an irrelevant consideration into account, or that alternatively, it was unreasonable for the Minister to have exercised his discretion to not refuse extradition. His Honour stated that in each case “jurisdictional error” was committed.
212 In coming to those conclusions, the primary judge considered the Att B analysis provided to the Minister. His Honour noted that at [185] of Att B it was stated that:
… although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of [the first respondent’s] conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations. (Emphasis added.)
213 The primary judge, at [69], said that the analysis included the observation that Indonesia had advised that the case fell within those circumstances in which an in absentia conviction are not commonplace and only occur for certain offences, which include corruption, the analysis added at [189] that in this respect “the trial cannot be said to have been unfair under Indonesian law”.
214 His Honour ultimately considered Att B in this area to be “confused and confusing”. His Honour noted, at [75], two errors:
Firstly, at [185] of the analysis, the Minister was informed that he may take guidance from Australian law, when the Minister was required to apply Australian law.
Secondly, at [199] of the analysis, the comment couched the submission concerning a person’s entitlement to be present at their criminal trial, made on behalf of the first respondent, as a “claim” when it is not, but rather it is a right subject only to limited exceptions, which are not here relevant, and it is the law of Australia.
215 The primary judge found, at [76]-[81], that the Minister thereby took into account irrelevant considerations, namely:
Firstly, as to the application of Indonesian law, to the effect that it could not be said to have been an unfair trial by reason of the absence of the first respondent alone; an analysis compounded by the further statement at [201]-[202] that the Australian legal principle that no person shall be convicted of a crime except after a fair trial “according to law” meant “conducted according to law in Indonesia” (emphasis in original). His Honour considered this misconceived the question. The question was whether Australian standards are met and not those of another country.
Secondly, that the Minister may take guidance from Australian case law relating to running a fair trial when the Minister was obliged to apply Australian law.
Thirdly, by relying on the reasoning from the United Kingdom in R v Jones (Anthony) [2002] UKHL 5; [2002] 2 Cr App R 128 (Jones).
Finally, the Minister’s failure to take into account the correct legal test as articulated in Bannister v New Zealand [1999] FCA 362 (Bannister) that it is Australian standards and not those of another country that must be considered. His Honour stated that:
Nonetheless, as an objective fact, I find that he did not judge the question of injustice, oppression or incompatibility with humanitarian standards according to Australian standards. This was something which he was bound to do in the Peko-Wallsend sense. He did not turn his mind to the correct question and thereby failed to exercise the power conferred upon him by the Act but rather acted outside that power.
216 The primary judge then considered whether the Minister’s decision was legally flawed in the sense that it was unreasonable, because it was illogical and irrational. His Honour noted that the first respondent contended that, according to the test in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, the Minister’s decision to not refuse to surrender the first respondent was so unreasonable that it went beyond his jurisdiction – that it was “illogical and irrational”. His Honour, at [84], accepted that the scope for a challenge based on Wednesbury unreasonableness is extremely limited with success being exceptional, as noted in Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48; (2003) 200 ALR 447 at 473, [100]. His Honour considered that nonetheless it is open in an appropriate case.
217 The primary judge considered the relationship of the Wednesbury unreasonableness test with concepts of illogicality and irrationality as discussed by members of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [40] (Gummow A-CJ and Kiefel J) and [121]-[131] (Crennan and Bell JJ). His Honour concluded that the critical question “whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”, should not receive an affirmative answer that is lightly given.
218 The primary judge then stated, at [89], of the resolution of the reasonableness issue that:
… it turns on whether the [first respondent], if surrendered to Indonesia, is likely to receive a fair trial and if not whether, in those circumstances, the Minister’s implied finding that his extradition would not be unjust or oppressive or incompatible with humanitarian considerations is unreasonable or the exercise of his discretion not to refuse surrender is likewise unreasonable such as to constitute jurisdictional error.
219 The primary judge considered the finding to be implicit because, as he explained at [90]:
The applicant (first respondent) had requested written reasons.
While the Minister was not obliged to provide reasons he did not do so but did provide the first respondent’s solicitors with a redacted copy of the Department’s submissions to the Minister (essentially Att B).
This included the first respondent’s submissions and the Department’s comments on them.
The Department recommendation was that the Minister surrender the first respondent to Indonesia.
220 The primary judge accepted that the Department’s reasons do not constitute the Minister’s reasons and therefore he did not know whether the Minister found that, taking into account the circumstances of the first respondent’s conviction in absentia, his surrender would not be unjust, oppressive or incompatible with humanitarian considerations. The primary judge, however, inferred from Att B that “this was his conclusion and his discretion to not refuse surrender proceeded from that conclusion”.
221 The primary judge then, in effect repeating findings made earlier in relation to the relevant considerations discussion, considered, at [91], that the PK review process fell well short of what constitutes an appeal or retrial in Australia. This, his Honour stated, “is indisputable”. His Honour added that it follows on from the trial and appeal conducted in absentia, “a notion which, generally, is quite foreign to our jurisprudence”. His Honour then discussed cases and principles that underlie the view that the trial of an indictable offence must generally be conducted in the presence of the accused under the Australian legal system. His Honour also noted the right to that effect is reflected by Art 14(3)(d) of the ICCPR.
222 The primary judge, at [92], then noted that nonetheless the Departmental advice in Att B was that “on balance, bearing in mind all the circumstances including Australia’s obligations to Indonesia under the Treaty, (and) the seriousness of the offending of which [the first respondent] has been convicted, it remains open to you to order his surrender to Indonesia”. His Honour then stated:
The first circumstance, whilst relevant, needs to be seen in light of the provision of that Treaty which contemplates that surrender may be refused where extradition would be unjust, oppressive or incompatible with humanitarian considerations (Art 9(2)(b)). The second circumstance begs the question posed by the first circumstance: injustice, oppression and incompatibility with humanitarian considerations.
223 Following a discussion of the Full Court decision in Bannister, the Full Court decision in New Zealand v Moloney [2006] FCAFC 143; (2006) 235 ALR 658 (Moloney) and the decision of the New South Wales Court of Appeal decision in Binge v Bennett (1988) 13 NSWLR 578 (Binge v Bennett), and also after making reference to the House of Lords judgment in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 (Kakis), the primary judge concluded at [95] that the PK review process would not deliver a fair trial or appeal by Australian standards.
224 His Honour also noted that Bannister and Moloney were both concerned with the proper construction of s 34(2) of the Extradition Act, which falls within Pt III of the Extradition Act which specifically deals with extradition from Australia to New Zealand. His Honour, at [96], noted that s 34(2)(c), unlike s 22(3)(e)(ii) and (iv) of the Act, “mandates” the release of the person whose extradition is requested where relevant injustice or oppression to that person is made out. His Honour considered that accordingly the question remained as to whether the discretion exercised by the Minister to not refuse extradition, was unreasonable. His Honour considered the answer to the question was that the decision was unreasonable, for the following reasons, expressed at [96]:
The trial and subsequent appeal were conducted in absentia and “were not fair by Australian standards”. His Honour’s findings in that regard were prefaced by the adverb “self evidently”.
The PK review process would not deliver a fair appeal or retrial to the first respondent by Australian standards and that was unjust and oppressive and also incompatible with humanitarian considerations.
That while a case may arise where, despite such a finding, it would nonetheless not be an unreasonable exercise of discretion for the Minister to not refuse extradition, that was not this case. The first respondent faced imprisonment for the rest of his life following a trial and appeal conducted in his absence and without his knowledge.
225 The primary judge, at [97], noted that while Art 11(2)(b) of the Treaty contemplated that a request might be made for extradition of a person convicted in their absence, he did not consider this took the matter any further. His Honour considered that this might cover the position where, for example, a person were to avoid being charged or attending a trial where he had been charged in the requesting state. The primary judge considered, at [97], the material before the Court did not show that the first respondent had absconded from Indonesia. The primary judge also considered, at [98], that the Treaty was silent as to the position where a person is not only convicted in absentia but then has an appeal heard and dismissed in absentia.
226 In these circumstances, the primary judge, at [99], held:
The Minister was in error in not finding that the first respondent’s extradition would be unjust, oppressive or incompatible with humanitarian considerations.
These were jurisdictional facts and the Minister’s conclusion in respect of them was unreasonable in the Wednesbury sense.
He had difficulty in seeing how, reasonably, the Minister could have concluded otherwise and that he took into account the wrong legal test for what constitutes such matters.
If he had applied the correct test it was “almost inconceivable” that he would not have concluded that the extradition of the first respondent would be unjust, oppressive or incompatible with humanitarian considerations.
The consequent exercise of the Minister’s discretion in not refusing to surrender the first respondent was in turn unreasonable.
grounds of appeal in this court and notices of contention
227 The Minister appeals the decision of the primary judge on seven grounds, as follows:
1. In inferring that the Minister relied upon matters set out in Attachment B, which matters the learned trial Judge found irrelevant (Reasons at [66]), the learned trial Judge erred in fact and law by taking into account and relying upon only the facts that:
1.1 the Minister read Attachment B;
1.2 the Minister did not provide reasons; and
1.3 the Minister declined to refuse extradition;
and his Honour erred in fact and law by failing to consider whether the Minister was likely to have reasoned in accordance with those parts of Attachment B which the trial Judge held to be confused and confusing and failing to find that the Minister was not so likely (Reasons at [75]).
2. Alternatively, in finding that the Minister took account of irrelevant considerations in respect of trials in absentia, the learned trial Judge erred in law by relying solely on Australian case and statute law concerning the domestic criminal trial process in Australia (Reasons [76]-[77]) and ruling that Indonesian law and other foreign law were irrelevant, when the trial Judge should have applied Australian community and the international community’s standards to the question whether extradition of a person convicted in absentia would be unjust, oppressive or incompatible with humanitarian considerations; and accordingly erred in law in finding that:
2.1 the ‘first consideration’ was irrelevant (Reasons at 76]);
2.2 the ‘second consideration’ was irrelevant (Reasons at [78]);
2.3 the ‘third consideration’ was irrelevant (Reasons at [79]);
2.4 international comparisons were irrelevant (Reasons at [80]); and
2.5 only Australian law is relevant (Reasons at [81]).
3. After correctly posing the relevant question, namely whether it was open to different conclusions from different but not unreasonable minds whether extradition would be unjust, oppressive or contrary to humanitarian considerations for the purposes of Article 9(2)(b) of the Extradition Treaty between Australia and Indonesia done at Jakarta on 22 April 1992 (the Treaty) (Reasons at [88]), the learned trial Judge erred in law by failing to address that question, and erred in law by addressing instead the question whether the trial Judge considered extradition would be unjust, oppressive or incompatible with humanitarian considerations (Reasons at [96]).
4. In finding that extradition would be unjust, oppressive or incompatible with humanitarian considerations for the purposes of Article 9(2)(b) by reason of the trial in absentia (Reasons at [96]), the trial Judge erred in law and in fact by failing to have regard to, alternatively failing to accord sufficient weight to, the following:
4.1 the nature of the offence, namely the corrupt diversion of more than Rp 1.5 trillion;
4.2 the interests of Indonesia, including its combat of corruption;
4.3 the fact that, before conducting a trial in absentia, the Indonesian authorities declared the First Respondent a fugitive from justice, and the fact that there was no evidence from which to infer that such a declaration was itself unfair;
4.4 the fact that the First Respondent left Indonesia by a means that did not include Indonesian record, under the First Respondent’s passport, of his departure;
4.5 the fact that the circumstances of the collapse of Bank Surya and the ensuing difficulties of the Indonesian Central Bank were widely publicised before the First Respondent entered Australia;
4.6 the fact that Article 11 of the Treaty expressly contemplates extradition of persons convicted in absentia;
4.7 the fact that a trial in absentia of a declared fugitive may be not unjust;
4.8 the fact that trials in absentia are not common in Indonesia and occur only in limited circumstances for certain offences, including corruption, where the defendant cannot be found (Reasons at [69]);
4.9 the fact that a ‘PK’ hearing ameliorates injustice that might be perceived to result from a trial in absentia;
4.10 the fact that, even in Australia, trials may be held in absentia where an accused, having appeared, deliberately absents himself (Reasons at [71]); and
4.11 the fact the standards to be applied are not exclusively those of Australian case and statute law (see above in respect of Appeal Ground 2).
5. By inferring that the Minister decided that extradition would not be unjust, oppressive or incompatible with humanitarian considerations (within the meaning of Article 9(2)(b)) (Reasons at [90]) and that therefore (without more) the Minister decided to extradite (Reasons at [90]), the learned trial Judge erred in fact and law because:
5.1 there was no direct evidence of the Minister’s reasons for not disallowing extradition;
5.2 if Attachment B was ‘confused and confusing’ (reasons at [75]) there was no proper basis for the trial Judge to have inferred that the Minister adopted the contents of that document as his own reasoning; and
5.3 the Minister may have had other possible reasons, relevant to injustice, for deciding to extradite; namely:
5.3.1 the Minister may have reasoned that extradition would not be unjust, oppressive or incompatible with humanitarian considerations, but reasoned further that, if he was wrong in that respect, nevertheless, for reasons not disclosed in Attachment B, he would have extradited under s 22(3)(e)(iv) of the Extradition Act 1988 (Cth) (the Act); or
5.3.2 the Minister may have reasoned under s 22(3)(e)(iv) of the Act that extradition would be unjust, oppressive or incompatible with humanitarian considerations, but that, because of other considerations, he would not refuse extradition notwithstanding.
5.4 There was no basis for preferring the trial Judge’s inference over either competing inference.
6. If, which is not admitted, it was unjust, oppressive or incompatible with humanitarian considerations for the purposes of Article (9)(2)(b) to extradite the First Respondent, and if, which is not admitted, the Minister should have so decided, the learned trial Judge erred in law and in fact in finding that a decision to extradite notwithstanding was unreasonable (in the Wednesbury sense), because:
6.1 the Treaty expressly contemplated extradition of persons convicted in absentia;
6.2 the Treaty expressly provided that the question whether extradition would be unjust, oppressive or incompatible with humanitarian considerations for the purposes of Article 9(2)(b) is a discretionary, not a mandatory, consideration;
6.3 subparagraph 22(3)(e)(iv) of the Act provides that the Minister may, in his discretion, decline to refuse extradition notwithstanding that extradition would be unjust, oppressive or incompatible with humanitarian considerations for the purposes of Article 9(2)(b);
6.4 the availability of a ‘PK’ hearing; and
6.5 the matters in Appeal Ground 4 above.
7. In deciding that the First Respondent did not know that his trial was proceeding, and in relying on that finding in respect of unreasonableness, (Reasons at [51]), the learned trial Judge erred in law and in fact in that:
7.1 there was no evidence capable of supporting that finding; and
7.2 despite opportunity, no evidence was given to the Minister from the First Respondent on that question.
228 The grounds of appeal tend to overlap. In the Minister’s written outline of submissions on the appeal, in the section providing an overview of the appeal grounds, it is said that all seven grounds of appeal relate to the question whether extradition would be “unjust, oppressive or incompatible with humanitarian considerations” and that the sole basis for the primary judge’s rulings in respect of “this matter” were that the first respondent had been tried in absentia with limited right to challenge his conviction or sentence of life imprisonment.
229 It is here said that grounds 1 and 2 relate to the primary judge’s ruling “that the Minister decided that extradition would not be unjust etc by international standards, including the standards of Indonesia”. Ground 1 is said to contest the primary judge’s inference that the Minister did so decide and that ground 2 contests the primary judge’s ruling “that the test turns on conformity with Australian criminal law and criminal justice process”.
230 It is then said that grounds 3 to 6 contest the primary judge’s ruling “that the Minister’s decision to extradite was unreasonable”. Ground 3 is said to allege that the primary judge “decided whether the extradition would be unreasonable, instead of examining whether a decision to extradite was so irrational that no reasonable person could have made the decision”. Ground 4 is said to contest the primary judge’s finding that extradition would be unjust etc. Ground 5 is said to contest the primary judge’s finding that the Minister decided that extradition would not be unjust. Ground 6 is said to contend that even if the Minister did decide that extradition would be unjust, and allowed surrender notwithstanding, such a decision was not unreasonable. Ground 7 is said to allege that the primary judge “erred in positively deciding, and relying upon the fact, that Mr Adamas did not know of charges against him and his imminent trial”.
231 As argued on the appeal, the grounds of appeal raise three broad issues:
(1) Whether the primary judge was right to find that the Minister relied on the s 22 submission, in particular Att B;
(2) Whether the primary judge was right to find that the Minister failed to take into account a relevant consideration, namely whether extradition of the first respondent to Indonesia would be unjust by Australian criminal law standards having regard to the in absentia conviction in Indonesia;
(3) Whether the primary judge was right to find that the s 22 decision to surrender the first respondent to Indonesia was unreasonable in that it met the Wednesbury test for unreasonableness.
232 The first respondent resists each ground of appeal and also relies on two notices of contention. In the first notice of contention, the first respondent contends that the primary judge’s decision should also be upheld on the following ground rejected by the primary judge:
1. Having correctly found that the Appellant was obliged to take into account Australia’s obligations under the International Covenant on Civil and Political Rights (‘ICCPR’) and, in particular, that the First Respondent’s trial and conviction in absentia contravened or was inconsistent with Articles 14(3)(d) and 14(3)(e) of the ICCPR, His Honour should have upheld Grounds 1 and 2 of the First Respondents Grounds of Review dated 7 September 2011.
His Honour erred in law in
(a) failing to hold that the Appellant disregarded a relevant consideration, namely, that the surrender of the First Respondent to the Republic of Indonesia would constitute a violation of Australia’s obligations under the ICCPR; and
(b) failing to hold that whether a decision to surrender an eligible person would involve a breach by the Australian government of its obligations under a treaty to which Australia is a party, or alternatively a failure by the Australian government to fulfil or perform its obligations under a treaty to which Australia is a party, is not a matter to which the Minister is required to consider in exercising his discretion under s 22(3)(f) of the Extradition Act 1988 (Cth).
233 In the second notice of contention, the first respondent contends that:
1. (to the extent that [99] of the primary judge’s judgment is not to this effect) his Honour ought to have found that, to the extent that the Minister’s decision involved him being satisfied (in terms of section 22(3)(iv) of the Extradition Act 1988) that the circumstances provided for in Art 9(2)(b) of the Treaty did not exist in respect of the First Respondent, and that accordingly, surrender of the First Respondent should not be refused, the decision was unreasonable.
2. (to the extent that [99] of the primary judge’s judgment is not to this effect) his Honour ought to have found that, to the extent that the Minister’s decision involved him being satisfied (in terms of section 22(3)(iv) of the Extradition Act 1988) that the circumstances provided in Art 9(2)(b) of the Treat did exist in respect of the Respondent, but nevertheless surrender of the First Respondent should not be refused, the decision was unreasonable.
minister’s reliance on attachment b
234 Minister’s submissions: The Minister notes that he is not obliged to provide reasons for a s 22 determination and in this case did not do so. The Act does not require reasons for a s 22 decision. There is no other statutory obligation to do so.
235 The Minister further submits that the submission prepared by the Department and provided to the Minister for the purposes of making his decision under s 22 does not constitute a statement of the Minister’s reasons: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (Ex parte Palme) at 224 [40); Brock v Minister for Home Affairs [2010] FCA 1301 (Brock) at [68]-[75].
236 The Minister accepts, however, that the primary judge was entitled to regard the whole of the s 22 submission (including Att B) in determining what material was before the Minister, and whether it could support the inference that the Minister had applied the wrong test or was not “in reality” satisfied of requisite matters: as in Ex parte Palme at 218 [16] and 219 [20].
237 The Minister further submits that the s 22 submission:
Should be read as a whole and parts should not be taken out of context; Ex parte Palme at 221 [28];
An error in it does not itself constitute reviewable error or render the decision invalid: McHugh Holdings Pty Ltd v Director General Communities NSW [2009] NSWSC 1359 at [41]; Oates v Attorney-General (Cth) [2001] FCA 84; (2001) 181 ALR 559 at [133]; Brock.
238 The Minister notes that the decision-making power under s 22 includes requirements that the decision-maker be “satisfied” about certain matters, and submits that this requires the decision-maker to reasonably be so satisfied and consequently the question on judicial review is whether the decision-maker “reasonably could have” attained that satisfaction: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 532 [73].
239 The Minister says that therefore the s 22 submission must not be taken as the Minister’s reasons. It must not be assumed that the Minister made any particular error that might be identified in the document. Further, it should not be assumed that any aspect of the advice, which the primary judge considered “confused and confusing”, comprised the Minister’s decision-making process. Further still, it should not be assumed that the Minister received legal advice if it is not before the Court.
240 The Minister submits judicial review of the process by which the Minister came to his decision is not a review of the advice to him, unless the inference is clear that no correct reasoning process was possible. In this case, the Minister contends, it is possible, for example, that the Minister considered extradition would be unjust etc, yet notwithstanding that he should not refuse surrender, as provided for by s 22(3)(e)(iv). That process would not entail the errors found by the primary judge at [40]-[82] of his reasons.
241 First respondent’s submissions: The first respondent, as noted above, accepts a number of the broader propositions put on behalf of the Minister to the effect that there is no obligation under the Extradition Act or more generally for the Minister to give reasons for a s 22 determination or separately to provide a statement of reasons and that a briefing paper, such as Att B, should not, without more, be accepted either as indicating the basis upon which the Minister made a s 22 determination or a statement of reasons for so doing. Nonetheless the first respondent draws attention to decisions such as de Bruyn v Minister for Justice and Customs [2004] FCAFC 334; (2004) 143 FCR 162 at [71] where the Court noted that the proceeding before it was conducted on the basis that a briefing paper given to the Minister contained the Minister’s reasons for decision.
242 The first respondent also notes that invariably “constitutional” reviews of the exercise of power under s 22 and s 23 of the Extradition Act proceed on the basis that the briefing paper comprises reasons and refers in this regard to Rivera v Minister for Justice [2007] FCAFC 123; (2007) 160 FCR 115 and Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 (Foster) (for example at [35]).
243 The first respondent submits that to accept the broader submissions made on behalf of the Minister would comprise an unacceptable reasoning process. First, it must be assumed that the Minister had reasons for making the decision. Secondly, it cannot be assumed by the Court that the reasons are those expressed in the briefing paper. Thirdly, if there is an error, it must be assumed that the Minister’s decision was not based on it. Fourthly, as a consequence of the third proposition, the Court must conclude that if any error of law is disclosed in the briefing paper, it was disregarded by the Minister; and that the Minister did not have regard to any irrelevant consideration expressed in the briefing paper. Further, that to the extent that the briefing paper fails to identify and address all relevant considerations that, nonetheless, in arriving at his decision, the Minister had regard to them. The first respondent submits that the adoption of this reasoning process would result in the conclusion that decisions made under s 22 of the Act are not subject to review pursuant to s 75(v) of the Constitution and s 39B of the Judiciary Act 1903 (Cth).
244 Consideration: As the authorities relied on by the parties indicate, the circumstances in which a public official such as a Minister makes a statutory decision where he or she has been provided with materials by a departmental or other adviser will usually affect an assessment of whether or not the public official has relied on particular information or advice in making the decision. In some circumstances the materials may not constitute advice but merely information and the question might then be whether the public official has regarded that information for the purpose of satisfying some statutory requirement that they regard information of that kind when making the decision. In other circumstances the question may be whether the public official, in effect, acted in accordance with a recommendation given for particular reasons advanced. In some circumstances it may well be that what is contained in something called a “briefing note” or the like, should be treated with a degree of caution in response to the proposition that the public official decided something or did something because of what was contained in such a document or for the reasons there expressed. In other words, what is contained in a document needs to be considered with a reasonably close eye, and also needs to be assessed in context and in light of the document as a whole, before a conclusion is reached that the public official should be taken to have relied on material in a particular document or made a decision for the reasons recorded in the document.
245 In Rashid v Minister for Immigration & Citizenship [2007] FCAFC 25 (Rashid) at [16]-[19], the Full Court (Heerey, Stone and Edmonds JJ) noted that if evidence founds a conclusion as to what in fact were the reasons in any case, despite a decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review. The Full Court noted that whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact and that commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aids-memoire and the like recording advice to the decision-maker or documents recording the decision-maker’s own preliminary thoughts or working notes. However, the Court noted these documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question. The Full Court went on to find that having regard to a letter of the delegate of the Minister, which referred to “a criterion”, the evidence showed only one statutory criterion was considered and no mention was made of another, relevant criterion. Thus, it had not been established that the delegate in fact had in mind non-satisfaction of any criterion other than the one stated in the letter. This was critical to the outcome of that appeal.
246 In O’Connor v Zentai [2011] FCAFC 102; (2011) 195 FCR 515 (Zentai) at [182], Jessup J (with whom North J agreed, save in respect of ground 4) noted that it may be one thing to infer from a briefing note, which in that case his Honour called Att C (and which was in a form and had an apparent purpose similar to Att B here):
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.
247 Besanko J, at [50], utilised the information in Att C to form a view that he was satisfied that based on the information contained in it, it would be open to a decision-maker to conclude a certain fact.
248 In the present case, the circumstances are that the covering memorandum, being the first page of the s 22 submission, contained an express recommendation as to what determination the Minister should make, which recommendation was accepted and signed off on by the Minister. The covering memorandum went on in pages 2 and 3 to refer to the attachments to the document including Att B. Attachment B contained a detailed analysis made by the Attorney-General’s Department in support of the recommendation, which recommendation was accepted by the Minister. The analysis contained, in the main, clear propositions as to factors that the Minister could consider when determining whether the extradition of the first respondent to Indonesia would be unjust, oppressive or incompatible with humanitarian considerations.
249 The primary judge in all of these circumstances considered it was open to him to infer that the Minister relied on Att B. In my view, it was not only open to the primary judge to draw this inference but also reasonable in all of the circumstances that he should have done so. Good public administration in relation to the execution of duties and responsibilities cast upon public officials such as the Attorney-General (or his delegate) under s 22 of the Extradition Act ordinarily results in the Attorney-General’s Department providing a submission to the Attorney or his delegate of the type provided to the Minister here for consideration, as cases such as Zentai and this case show. The materials are provided so that the Attorney or delegate can be appropriately informed and advised before making a s 22 determination. The Attorney or Minister may choose to discuss a recommendation as well – a course, as noted, apparently not taken here. The inference open to be drawn is that the Minister accepted that the recommendation made to him on the basis it was supported by the advice detailed in Att B. No other inference is reasonably open.
250 Thus, if it can be demonstrated that any particular guidance provided in Att B was relevant and apparently significant to the recommendation made, but wrong, or a relevant matter was not addressed, then plainly there would be a case for considering that the exercise of the Minister’s power miscarried by reason of jurisdictional error.
251 That the primary judge described part of the s 22 submission as “confused and confusing” does not affect this conclusion. His Honour’s comments in that regard related to a particular paragraph and approach in the analysis, not the key analysis which he later impugned.
252 In reviewing Att B, however, as noted above, it is necessary to consider carefully the terms of the analysis provided, what is said in it, as well as what is not said, and to consider the analysis in its totality before drawing any final conclusions about the terms of any advice or analysis provided.
253 In the circumstances, the challenge made to the decision of the primary judge on the basis of the reliance grounds must fail.
relevant and irrelevant considerations: the in absentia conviction
254 Minister’s submissions: The Minister says the primary judge rested his decision on the proper question being that stated at [74] of his reasons:
whether extraditing the applicant to Indonesia would, in the circumstances, be unjust, oppressive or incompatible with humanitarian considerations judged by the standards of Australian domestic criminal law. (Emphasis added).
The Minister notes that, at [75] and [77], his Honour said that this followed from Bannister and other cases.
255 The Minister says that the expression “incompatible with humanitarian considerations” imports a humanity perspective; it is discordant with a legal perspective. The expression “humanitarian” does not appear in the Criminal Code Act 1995 (Cth) for example, except in reference to war crimes constituted by attacks on persons engaged in humanitarian endeavours: s 268.36 and s 268.79; and offences as to charges of assisting an enemy: s 80.1AA. That is to say, even though conviction in absentia does not conform to Australian criminal law, still the question of compatibility with humanitarian considerations is unresolved.
256 The Minister further submits that, in a similar way, the concept of “oppressive” is not strictly legal. It is referable to the particular circumstances of the eligible person. It arises only when it would be oppressive in the particular circumstances (but not necessarily in cases otherwise indistinguishable). The Minister refers to Kakis at 782-3 (Lord Diplock).
257 Finally, the Minister contends that on the question whether the sentence was unjust etc, the Minister was informed that the applicable standard was Australian standards and refers to what appears in Att B at [243].
258 As a general proposition the Minister contends that it is not correct that Australian criminal law is the sole applicable standard for assessing fairness (or similar concepts) in the context of extradition. The Minister argues, first, that the Treaty and the Extradition Act foreclose certain such applications of Australian criminal law, in particular, trials in absentia and life sentences. That is to say, while trial in absentia is generally unavailable for serious offences in Australia, the fact of trial in absentia in Indonesia is plainly not a fact that excludes extradition. The authorities on the applicable standard all deal with other issues, that is to say, issues not directly determined by the Extradition Act and applicable treaty.
259 Secondly, the Minister contends that application of Australian criminal law as the criterion of fairness would undermine extradition treaties in general and seriously compromise the foundations of extradition, namely the concepts of reciprocity, comity and respect for differences in other jurisdictions. The Minister says he was correctly informed in this regard at [215]-[221] of Att B that referred to relevant authority.
260 The Minister makes a number of critical submissions in relation to the determination of the standard that applies when questions of unjustness etc arise. In essence, the Minister submits that the standard of “unjust, oppressive or incompatible with humanitarian considerations” that appears in Art 9(2)(b) and referred to inferentially by s 22(3)(e)(iv), do not constitute a jurisdictional fact but rather fall to assessment by the Minister.
261 The Minister first draws attention to the way the Extradition Act operates:
The Act takes effect in respect of particular foreign states often, but not always, subject to treaty.
Treaties typically reflects certain concerns, for example about reciprocity as well as certain types of offence.
Treaties are agreements to extradite but with express exceptions: Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 (Vasiljkovic) at [7] Gleeson CJ.
By s 11(1) the Act is subject to any “limitations, conditions, exceptions or qualifications” provided for by the Regulations, which in turn pick up the relevant Treaty.
Thus, a provision of a Treaty is a limitation etc.
In this case Art 9(2)(b) provides a limitation by enabling the Minister to refuse extradition in certain circumstances including that in (b).
By s 22(3)(e)(iv) of the Act an eligible person is only to be surrendered if the Minister is satisfied either that the circumstances, in this case, of Art 9(2)(b) do not exist or that they do exist “but that nevertheless surrender of the person in relation to the offence should not be refused”.
Thus, the Minister may extradite in any circumstances relevant to Art 9(2)(b), if satisfied that extradition would not be unjust or satisfied that it would be unjust but that nevertheless surrender should not be refused.
The Minister also draws attention to s 10(1) of the Act which provides that:
(1) Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence. (Emphasis added).
262 The Minister says s 10(1) shows that extradition is contemplated, not only in cases where a conviction has been made in absentia, but also where such a conviction is “final”, that is, not open to rehearing or retrial.
263 The Minister submits a person is “convicted in the person’s absence” for the purposes of s 10(1) regardless of the reasons for absence and in this regard refers to Hellenic Republic v Tzatzimakis [2003] FCAFC 4; (2003) 127 FCR 130 (Tzatzimakis) at [24] (Black CJ), at [62] (Hill J) and at [86] and [93] (Finkelstein J). The Minister submits this is a legislative choice which entails the abandonment of earlier distinctions between “final” convictions and those convictions that may be reheard after extradition, as noted by Hill J at [34].
264 The Minister further notes the person convicted in absentia is dealt with under s 19(3)(a) as if he were merely accused in the requesting state and is not treated as if convicted as he would otherwise be under s 19(3)(b).
265 The Minister submits that s 10(1) has consequences also in respect of the Regulations and thus, the Treaty: see Tzatzimakis at [17]-[24] (Black CJ); [31] (Hill J).
266 The Minister submits that Wiest, E.A v The Director of Public Prosecutions [1988] FCA 778; (1988) 23 FCR 472 (Wiest) is authority for the proposition that s 10(1) has no other legislative implication for the Act. Thus, the fact that a person has been convicted in absentia bears on the process by which a magistrate decides if the person is or is not eligible for surrender, and consequently on the supporting documents which are required to be produced to the magistrate, but does not otherwise bear on the person’s eligibility. However, Tzatzimakis held that the words in s 10(1) mean what they say. The Minister says this observation should also include the words “for the purposes of this Act” that appears in s 10(1).
267 The Minister notes that s 10(1) takes effect in the context of a “shift” in Australia's stance from requiring prima facie evidence of guilt to a “no evidence” standard, as discussed in Vasiljkovic, a policy that is evident in s 19(3) of the Act and Art 11 of the Treaty.
268 As a result the Minister submits the legislative choice is that a person convicted in absentia is processed as if merely charged and accordingly may be eligible for extradition and extradited regardless of the incidence of that conviction in absentia.
269 The Minister submits it is the abandonment of the previous distinction concerning final and other conviction and the use instead of the s 10 deeming device that imply that the absence or quality of a rehearing in Indonesia is no bar to extradition. That is to say, given that a person who has been convicted finally in absentia can be eligible for surrender provided that a certain process is followed and given that that process is followed, the Act cannot properly be interpreted to allow the Minister to be satisfied that extradition should be refused (whether because unjust etc or otherwise) merely on the fact that the person has been convicted finally in absentia.
270 The Ministers says that, to put the same point more generally, given such eligibility, it would require very clear words in the Treaty before the Treaty could be interpreted to provide that trial in absentia was, without more, so profoundly offensive that no exercise of discretion to extradite could be reasonable.
271 The Minister then draws attention to Art 11(2)(b) of the Treaty, which provides for the request for extradition to be accompanied, if a person has been convicted in his absence of an offence, by judicial or other document, authorising the apprehension of the person and other information.
272 The Minister says it follows that the Treaty with Indonesia specifically contemplates extradition of a person convicted in absentia.
273 The Minister also draws attention to other aspects of the Treaty which he submits imply that extradition lies regardless of a person having been convicted in absentia and regardless of the prospect of rehearing in Indonesia. For example, in cases where specific principles of law, important to Australia are to stand against extradition, the Treaty so specifies. Article 4 dealing with political offences, Art 6 dealing with double jeopardy, Art 7 dealing with death penalty, Art 9.1(a) dealing with expiry of limitation period, Art 9.1(b) dealing with military offences, Art 9.1(c) dealing with trial otherwise than by ordinary courts and tribunals, Art 9.1(d) dealing with impermissible purposes relating to race, religion, nationality or political opinions and Art 9.1(e) dealing with cruel, inhuman or degrading treatment or punishment are specifically referred to by the Minister.
274 The Minister says that by contrast the Treaty does not exclude extradition in cases of trial in absentia or of sentence of life imprisonment. It makes no distinction between convictions in absentia with the right of retrial and those without. Further, Art 11(2)(b) also provides that, where a person has been convicted in absentia, the documentation that must accompany a request is for extradition is to comprise “a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence”. No mention is made of any document evidencing the conviction despite applying expressly the convictions in absentia. The Minister says this is in contrast to Art 11(2)(c) and (d) which provide that a request for extradition in cases of convictions not in absentia must include documentary evidence of the conviction and sentence or intention to sentence. The Minister submits this distinction is consistent with s 10(1) of the Act.
275 The Minister submits that the Act, Regulations and Treaty are inconsistent with any view that a final conviction in absentia, without more, is incompatible with any reasonable Minister allowing extradition.
276 The Minister also seeks to draw important distinctions in respect of the process and the standard by which the Minister is to assess whether extradition would be unjust etc for the purposes of Art 9(2)(b):
First, it is the Minister who is to make this assessment, not the Court. Under the Constitution the Court’s role is to assess the process by which the Minister so decided, not to decide the question itself.
Secondly, the Minister’s task is executive, not judicial and it is not part of Australia’s criminal justice system. It is to enable adjudication in a foreign place, according to that country’s law. The Minister accordingly is not required to examine and apply Australian criminal law and procedure in his assessment whether extradition would be unjust etc. Rather, the Minister is to apply the Minister’s judgment to the question. That is a moral and pragmatic standard not a legal one.
Further it is manifest from Art 9(2)(b) that the question cannot be assessed by the yardstick of Australian criminal law. The question whether extradition would be unjust etc, is to be considered by the Minister “while also taking into account the nature of the offence and the interests of the Requesting State...”. That is to say, the question is not whether extradition would be unjust etc, but whether it would be unjust etc also taking into account the nature of the offence and the interests of the requesting state. This therefore precludes the Art 9(2)(b) question being addressed from a purely Australian perspective, whether legal or moral.
Thus in applying his judgment on a matter of extradition to a foreign state, the Minister is entitled to take into account international and Indonesian views on the question and he is so entitled at both stages – on the question under Art 9(2)(b) and on the question whether that question holds sway in his final exercise of discretion.
The Minister accepts that it may well be an error to assess whether extradition would be unjust etc by reference solely to Indonesian standards, because that might deprive Art 9(2)(b) of substance and would be inconsistent with Art 9. However, it is not an error to have regard to Indonesian interests and law, including whether relevant Indonesian law seriously departs from international or Australian standards.
Moreover, the Art 9(2)(b) question is specific to the case at hand, namely the extradition of the first respondent. It cannot be confined to the moral or jurisprudential question at large whether trials in absentia are satisfactory; that question has been resolved by the Parliament and addressed in s 10 of the Act and in the Regulations. Nor can the Minister’s decision be confined to the question whether the extradition is fair or fair to the person.
Additionally, there are sound reasons for the executive to retain specific and general discretions not open to court review on merit. The Minister refers to Vasiljkovic at [27] (Gleeson CJ).
Finally, on judicial review, when assessing Wednesbury unreasonableness claims, the Court must address the question in light of those matters. It is not the Court’s role to decide whether the circumstances referred to in Art 9(2)(b) of the Treaty existed or not.
277 The Minister further submits that of the precedent decisions considered by the primary judge, none concerned trial in absentia and none considered Art 9(2)(b) of the Treaty.
278 The Minister renews his submission that it is not correct that Australian criminal law is the solely applicable standard for assessing fairness in the context of extradition. The Minister refers to the terms of the Act and in particular s 10(1).
279 The Minister refers to the obligations Australia has concerning international comity and practices, for example, what was said in Tzatzimakis at [49] by Hill J.
280 The Minister notes that the primary judge relied on Moloney at [93], Perry v Lean (1985) 63 ALR 407 (Perry v Lean) at [77] and Foster at [77], each of which refers to Re Henderson, Henderson v Secretary of State for Home Affairs and Another [1950] 1 All ER 283 (Re Henderson). The Minister notes Re Henderson is also cited in Foster v Senator Amanda Vanstone [1999] FCA 1447.
281 The Minister notes the Australian cases referring to Re Henderson cite the reasons of Tucker LJ. The Minister, however, notes that Jenkins LJ who concurred made observations, at 288, that the Court must assume that a trial in a foreign country will be properly conducted.
282 The Minister also notes that in Foster only Gaudron and Hayne JJ mentioned the applicable standard, at [43]: as follows
The other question which arises is what is the standard which the words ‘unjust or oppressive or too severe a punishment’ set? Unjust or oppressive by what measure? Too severe by what measure? The answer must be that the value judgment which the expression requires is to be made according to Australian standards…not the standards of any other country. It requires consideration of how the offence or offences for the prosecution of which the extradition is sought would be viewed in this country. Is surrender of the eligible person for that offence, or those offences, unjust or oppressive or too severe a punishment? The precise nature and content of that inquiry may require further consideration in an appropriate case but little or no argument about that was called for or was directed to it in this matter and we say nothing more about it.
283 As to Bannister, the Minister notes that the Full Court, at [26], stated:
We conclude that it is appropriate, in considering whether, ‘for any other reason’ it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive.
Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar.
284 The Minister notes, however, that the Full Court went on, at [27], to assess the “community standard” by reference to High Court authority on the particular question, disapproving of the approach approved by the New Zealand Court of Appeal in R v Accused [1993] 1 NZLR 385. The Minister submits that this should not be taken to mean the High Court precedent dictates the community standard.
285 The Minister refers to a range of leading cases touching on the question of the right to a fair trial in a foreign country from the United Kingdom, Canada and Hong Kong, as well as the United States, and contends these authorities support the view that the extradition rules in those countries recognise that there may well be differences between trial processes in foreign countries from the reciprocating state which, nonetheless, will not be an impediment to extradition being ordered. For example, in Re Kindler and Minister of Justice; Amnesty International, Intervener (1991) 84 DLR (4th) 438 (Re Kindler), McLachlin J (with whom La Forest, L’Heureux-Dubé and Gonthier JJ agreed) stated at 488:
Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodate differences between our system of criminal justice and the systems in place in reciprocating states. The simple fact is that if we were to insist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate. Canada, unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser.
286 Her Honour, at 494, further observed:
As discussed above, an effective extradition process is founded on respect for sovereignty and differences in the judicial systems among various nations. Canada displays confidence in the fairness of the justice systems of other nations by entering into treaties with them. If Canada is to be assured of co-operation when it seeks extradition from states whose laws may not conform exactly to ours, it must be prepared to reciprocate.
287 In the earlier Canadian Supreme Court decision of The Republic of Argentina v Mellino [1987] 1 SCR 536 (Mellino), La Forest J (with whom Dickson CJ and Beetz, McIntyre and Le Dain JJ agreed) said, at [32]:
Nor is an extradition judge empowered to weigh the ultimate issue of whether delay will affect the trial of the action in the foreign country. The treaty places Canada under an obligation to surrender the fugitive for trial in the requesting country where such issues are to be considered. The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition and our courts have over many years made it abundantly clear that an extradition judge should not give effect to any suggestion that the proceedings are oppressive or that the fugitive will not be given a fair trial or give proper weight to the evidence.
288 The Minister notes that North J relied on Mellino in McCrea v Minister for Customs & Justice [2004] FCA 1273; (2004) 212 ALR 297 at [35], which decision was upheld on appeal in McCrea v Minister for Customs and Justice [2005] FCAFC 180; (2005) 223 ALR 552.
289 The Minister further submits that the Minister’s assessment of the Art 9(2)(b) question cannot be made solely or specifically by reference to the standards of the Australian community. Rather, the Parliament has placed responsibility for this issue in the Minister’s judgment as the representative of the Australian community. The connection with the standards of the Australian community is representative and derivative, not direct – although the Minister notes what their Honours Gaudron and Hayne JJ said in Foster to the effect that the matter may require further consideration.
290 The Minister submits that Australian community standards could only be ascertained by a plebiscite and this itself might offend Australian judicial standards. As it is standards may vary from State to State.
291 Most importantly, the Minister submits the Art 9(2)(b) question is highly specific to the circumstances of the particular case and ascertaining the community’s standard is impossible otherwise and as represented by the Minister. There is no evidence about what the attitude of the Australian community to the extradition of a person in the circumstances of the first respondent is.
292 Further, because the Australian community standard is subject to the nature of the offence and the interests of Indonesia, it cannot exclusively reflect the community’s moral judgment in any event.
293 The Minister points out there are a number of treaties with other countries that have similar text to the Treaty in question here with Indonesia.
294 The Minister points out that two treaties specifically provide that a person convicted in absentia shall not be extradited unless the requesting state gives assurances that the person will have an opportunity to put forward a defence. These treaties – with United Mexican States and Republic of Argentina – do not include text similar to that which appears in the Treaty with Indonesia.
295 First respondent’s submissions: On behalf of the first respondent, it is submitted that because the Act and the Treaty between Australia and Indonesia contemplate extradition of persons convicted in absentia it does not carry with it the conclusion that extradition of a person convicted in absentia could never be unjust, oppressive or incompatible with humanitarian considerations.
296 As to the Treaties between Australia and the United Mexican States and the Republic of Argentina, it is submitted on behalf of the first respondent that these are irrelevant. It is said that the basis upon which the executive enters into treaties is not justiciable and it cannot be contended that the terms of one bilateral treaty has a bearing upon the meaning of another treaty; especially in circumstances where neither of those two mentioned treaties include a discretionary ground of refusal based upon injustice or oppression.
297 On behalf of the first respondent it is submitted that, contrary to the Minister’s submissions, it is not contended that conviction in absentia simpliciter, that is to say of itself, would preclude extradition.
298 What is said on behalf of the first respondent is that it is the “extraordinary circumstances” of the first respondent that were before the Minister, the circumstances of his conviction in absentia and the fact that he has no right of retrial or appeal upon extradition to Indonesia.
299 Senior counsel for the first respondent submits the leading authority is Foster and says it is binding on the Court, although it is also acknowledged that only Gaudron and Hayne JJ considered the question concerning what the standard is, which the words “unjust or oppressive or too severe a punishment” (used in the particular statute there considered) set.
300 The first respondent also relies on the observation of Tucker LJ in Re Henderson, at 287, which was relied upon by Jacobs J in Perry v Lean which plainly sought to draw a comparison between proceedings in a foreign country concerned with the processes in the country of origin.
301 Senior counsel further submits that Bannister can only be understood as a decision where the “value judgment” of whether surrender for trial in New Zealand would be unjust or oppressive was made solely according to Australian standards, not the standards of any other country. Two issues arise from the submissions; first, the proper construction of Art 9(2)(b) of the Treaty; and, second, how Australian law, by the Extradition Act and Art 9(2)(b), accommodates in absentia convictions in the Requesting State, if at all.
302 The first respondent submits that not only would extradition be unjust by Australian standards, but it would also be contrary to standards of international law. In this the first respondent points to Art 14(3)(d) of the ICCPR which relevantly provides that a person has a right to be tried in his or her presence.
303 The first respondent also points to Art 14(3)(e) of the ICCPR which relevantly provides that an accused person has a right to examine witnesses and to call witnesses on the same terms as those called by the prosecution.
304 The first respondent accepts that under Art 14(3)(d) of the ICCPR, to which both Australia and Indonesia are parties, the person’s right to be tried in their presence is not absolute but the only circumstances in which a trial may be held in the absence of the accused are first, where the accused is present during part of a trial but is removed due to disruption, secondly, where the accused has been informed of the trial before it takes place but declines to exercise his or her right to be present and, thirdly, where there is an unfettered right to a retrial.
305 The first respondent submits that international law requires that in order to comply with Art 14(3)(d) necessary steps must be taken by the prosecution to summon accused persons in a timely manner and to inform them beforehand of the date and place of trial and to request their attendance: United Nations Human Rights Committee, General Comment no. 32, Article 14, Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32.
306 The first respondent says he was not informed of the trial before it took place and did not decline to be present and that compliance with municipal law service and notice requirements did not satisfy the Art 14(3)(d) requirement. There is nothing in the evidence to suggest that he had absconded from Indonesia or was aware that the trial had occurred in his absence.
307 The first respondent submits that it is also instructive to regard decisions dealing with the equivalent provision of Art 6 in the European Convention for the Protection of Human Rights and Fundamental Freedom, which was opened for signature 4 November 1950, 213 UNTS 221 and entered into force 3 September 1953 (European Convention). Attention is drawn to Colozza v Italy, Application No 9024/80 ECHR (12 February 1985) (Colozza), where the European Court of Human Rights held that the applicant had not waived his right to appear. Reference is also made to Shkalla v Albania, Application No 26866/05 ECHR (10 May 2011) (Shkalla), where the Court ruled on the requirements for compliance with the information provisions. In the course of doing so, at [70], the Court observed:
The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to avoid prosecution.
The Court also held that the accused did not have an effective right to apply for a retrial and therefore there had been a violation of Art 6 of the European Convention.
308 The first respondent also refers to a number of other European Convention cases where the importance of notification of trial was considered to be significant and not complied with, including Somogyi v Italy, Application No 67972/01 ECHR (18 May 2004) (Somogyi); T v Italy, Application No 14104/88 ECHR (12 October 1992) (T v Italy) and Sejdovic v Italy, Application No 56581/00 ECHR (1 March 2006).
309 The first respondent also notes that it might be considered instructive that the Extradition Act 2003 (UK) requires the Court to consider whether the requested person was convicted in his presence or absence and, if convicted in his absence, the Court must determine if the accused is entitled to a retrial.
310 The Minister’s reply: The Minister contends that “authority and logic” are against the proposition that the Requesting State must succeed in giving actual notice to a person in every case before proceeding to trial in absentia. It is submitted that logic is against it because accused persons often avoid actual service and may avoid the appearance of deliberately avoiding service.
311 Thus, the Minister contends, the question is were Indonesia’s efforts to give notice sufficient to allow the Minister to be satisfied that the question of service did not render extradition unjust or did not render extradition so unjust etc that the Minister’s exercise of discretion was unreasonable. The Minister also says it may validly be part of that question to ask whether there was cause for the Indonesian authorities to know or assume that the first respondent was already removed from the jurisdiction and would not receive actual service, implying a lack of good faith. In this regard, the Minister submits that there was no such evidence and on the contrary:
There was no record of the first respondent having used his passport to leave Indonesia.
The village head did not have a forwarding address or knowledge of his emigration.
Apart from the village head the inference is clear that no person informed the authorities that he was abroad.
The very fact of continued Indonesian efforts at service evidences a lack of knowledge of the authorities that he had emigrated.
312 The Minister submits there is no requirement under international law that actual knowledge of trial must be shown before an extradition can be reasonably countenanced. There is no requirement for the Minister to separately investigate the question. Rather, the Minister was obliged only to consider representations and evidence from the first respondent and assess that against other available information, including information provided by Indonesia. He gave no direct evidence to the Minister on the matter.
313 The Minister further notes that the first respondent does not assert that the fact of trial in absentia in itself made the Minister’s decision unreasonable.
314 On the question whether other treaties or conventions deem trials in absentia unacceptable, the Minister submits that if the question in point is treaties binding on Australia, then only the Treaty and ICCPR are relevant, but that if the question is the attitudes of the international community to in absentia trials, then all the treaties and conventions referred to by the first respondent may be relevant, but the relevance is contrary to the ruling made by the primary judge.
315 In that regard, the Minister submits that so far as the submission that the trial in absentia of the first respondent was contrary to the ICCPR because, absent a right to a retrial or deliberate obstruction, trials in absentia may only proceed where a defendant has actual knowledge of the charges, however, the correct position is more accurately stated to be that Art 14 of the ICCPR requires the Requesting State to have taken necessary steps to inform an accused of proceedings in a timely manner and seek their attendance. This does not require actual knowledge to be established.
316 The Minister submits the consistent position of the Human Rights Committee is that trials in absentia may proceed without the defendant having actual knowledge of the proceedings, provided that due steps have been taken to inform him of the proceedings: Mbenge v Zaire, Communication No 16/1977 HRC (25 March 1983) (Mbenge) at [14.1]. The Minister says that in Mbenge the Committee accepted there must be limits to the efforts which can duly be expected, at [14.2]. See also Maleki v Italy, Communication No 699/1996 HRC (15 July 1999) (Maleki v Italy) at [9.4].
317 The Minister says that to the extent the first respondent relies on the academic opinion of Jordash W and Parker T, “Trials in Absentia at the Special Tribunal for Lebanon” (2010) 8(2) J Int Criminal Justice 487 at 491, it should be noted the authors were defence lawyers who had practised before international criminal tribunals, and who argue that Maleki v Italy creates a requirement that a defendant must be informed of the charges in person. The Minister says this is not correct and the Committee’s reasoning emphasises that an onus lies on the State to inform the accused in a timely manner of the proceedings, which should not be taken to mean that a State cannot discharge its onus by taking necessary steps, which may fall short of establishing actual knowledge.
318 The Minister says the Human Rights Committee in its 2007 General Comment No 32 on Art 14 of the ICCPR when it said:
In the case of trials in absentia, article 14, paragraph 3(a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings.
The Minister says that in Salikh v Uzbekistan, the Committee reiterated that “there must be certain limits to the efforts that can reasonably be expected of the competent authorities with a view to establishing contact with the accused”: Salikh v Uzbekistan, Communication No 1382/2005 HRC (30 March 2009) (Salikh v Uzbekistan), [9.5].
319 The Minister contends that the material before him disclosed that “all due steps” had been taken: six summonses were issued between 18 October 2000 and 15 July 2002. The Indonesian District Court did not assume that the first respondent had knowledge, merely by reason of the initial summons. It twice requested reissue of summonses and caused advertisements to be placed in newspapers and at the Court building and delayed the trial to allow these things to occur. The Minister submits the efforts made in Indonesia in this regard far exceeded those in Maleki v Italy and Mbenge and it was difficult to identify what further efforts Indonesian authorities and the District Court could reasonably have made to inform the first respondent in this case. The Minister says it is not legitimate to insist that the authorities should have lodged an Interpol notice prior to the proceedings and there is no evidence that Indonesian authorities knew that the first respondent had left Indonesia. It was only after the red notice was issued by Interpol that his whereabouts was discovered.
320 The Minister further submits that to the extent that the first respondent relies on jurisprudence of the European Court of Human Rights for the contention that actual knowledge is required before a trial in absentia may proceed, this should not be influential as:
The European Court of Human Rights issues judgments interpreting the European Convention and not the ICCPR.
Neither Australia nor Indonesia is a party to the European Convention or bound by its jurisprudence.
The views of the European Court may provide useful guidance but do not address the ICCPR.
In the interpretation of Australia’s and Indonesia’s obligations under the ICCPR, the Committee’s statements must be preferred to those of the European Court in relation to Art 6.
321 Although the Committee’s views are not binding on States Parties, the Committee was created under Art 28 of the ICCPR, and comprises independent experts whose functions include issuing comments to States Parties on appropriate measures to implement their obligations.
322 Finally, the Minister submits that to the extent that the first respondent relies on the fact that he will not have the right to a retrial upon surrender to Indonesia, the Committee has not attached a fresh-trial condition in relation to trials in absentia for the purpose of compliance with Art 14 of the ICCPR.
323 Consideration - Decision-making process required by s 22(3)(e) and Art 9(2)(b): Article 9(2)(b) of the Treaty applies in relation to the exercise of the Minister’s power under s 22 of the Extradition Act because, by s 22(3)(e)(ii) and (iv), the Treaty provision is one by which the surrender of the first respondent in relation to the offence “may be refused”, and so the Minister is required to be satisfied “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”.
324 The “circumstances” referred to in para (iv) are the circumstances to which Art 9(2)(b) refers. Those circumstances are to be identified by reference to the full text of Art 9(2)(b) but, in short, may be described as where Australia, as the Requested State, while taking into account the nature of the offence and the interests of Indonesia, as the Requesting State, considers that, in the circumstances of the case, the surrender of the first respondent to Indonesia “would be unjust, oppressive or incompatible with humanitarian considerations”. (For the sake of convenience, I will hereafter abbreviate this compendious phrase, unless otherwise indicated, to the expression “would be unjust”.)
325 In this, Art 9(2)(b) is different from provisions such as s 34(2) of the Act (considered in Bannister) and reg 7 (considered in Foster) which do not require the decision-maker to take account of the nature of the offence or the interests of the requesting state when deciding if the circumstances of the case extradition would be unjust. If the words, “while also taking into account the nature of the offence and the interests of the Requesting State” did not appear in Art 9(2)(b), the Treaty provision would in substance be identical with those other provisions and, in my opinion, would be subject to the principles enunciated in Bannister and Foster, to which I turn below.
326 The inclusion of the words, “while also taking into account the nature of the offence and the interests of the Requesting State” in Art 9(2)(b), changes the nature of the value judgment to be formed and the process by which it is to be formed. This is because the nature of the offence and the interests of the Requesting State must be taken into account in the process. The way in which Art 9(2)(b) is drafted suggests that, while “the circumstances of the case” may be considered the primary factor to be regarded, the nature of the offence and the interests of the Requesting State must also be taken into account before the decision-maker makes a final value judgment as to whether extradition would be unjust. In doing so, the decision-maker must inevitably engage in a balancing or weighing of these factors and while the starting point is “the circumstances of the case” that may lead to a consideration that extradition would be unjust, it cannot be said that any one factor has been accorded pre-eminence in the balancing or weighing process.
327 Thus, in my view, in considering whether the extradition of the requested person would be unjust, the “circumstances of the case” is not the sole factor to be considered by the decision-maker and the nature of the offence and the interests of the Requesting State must also be taken into account; and it is required of the decision-maker to balance or weigh those various factors in forming a value judgment as to whether extradition of the requested person would be unjust.
328 What must be recognised is that the parties to the Treaty, Indonesia and Australia, have agreed that extradition may be refused in circumstances where the decision-maker on behalf of the Requested State weighs the circumstances of the case, including matters personal to the person whose extradition is requested, with less personal or non-personal considerations concerning the nature of the offence and the interests of the Requesting State. Thus, while it may at first blush appear to the decision-maker that extradition would be unjust – because in a case such as the present the person to be extradited was convicted of the extradition offence in the Requesting State in absentia – when account is taken of the nature of the offence and the interests of the Requesting State the decision-maker make a different value judgment. The process by which a value judgment is formed may not be easy, because the personal considerations that might be raised, on the one hand, may not be easily weighed against the non-personal considerations of the nature of the offence and the interests of the Requesting State, on the other. Nonetheless, by Art 9(2)(b) of the Treaty, that is the value judgment that Australia and Indonesia have agreed needs to be made in each case, and to which application of the Extradition Act is subject.
329 Accordingly, subject to what is stated below, it would not be correct to say that the point in the present case is “whether extraditing the applicant to Indonesia would, in the circumstances, be unjust, oppressive or incompatible with humanitarian considerations judged by the standard of Australian domestic criminal law” (see [74] of the primary judge’s reasons), if one were thereby intending to suggest this is the sole point, or that the other factors mentioned in Art 9(2)(b) are not relevant to the judgment to be made.
330 It should also be observed that the value judgment required by Art 9(2)(b) (the “double layer of satisfaction” as it was described in Foster) is a different kind of decision-making from that required by the alternative decision-making process provided for by s 22(3)(e)(iv). Subparagraph (iv) provides that where subpara (ii) applies (as it does here) then the Attorney-General must be “satisfied that the circumstances do not exist or that they do exist but nevertheless surrender of the person in relation to the offence should not be refused”. In the present case, no question arose on the basis of the analysis in Att B provided to the Minister that the circumstances did exist but nonetheless should not be refused. The analysis provided by Att B was that the Minister could be satisfied that the circumstances do not exist – that is to say, that extradition would not be unjust. Therefore, there is no evidentiary basis from which to infer that it is possible that the Minister decided that the circumstances did exist but decided nonetheless that surrender should not be refused, as the Minister submits may have been the case.
331 What might be said, by way of summary about the operation of s 22(3)(e) and Art 9(2)(b), is that the Minister at all material times was possessed of a broad function to achieve a certain level of satisfaction. He could, even if he were to consider, by reference to the circumstances of the case, that extradition of the first respondent to Indonesia would be unjust, on the basis of the first respondent’s conviction in that country in absentia, nonetheless ultimately not be satisfied that it would be unjust to surrender him to Indonesia taking into account the nature of the offence and the interests of Indonesia. On the face of it, that is what Att B informed the Minister he could do, along with the advice that it was open for him to achieve that level of satisfaction. The question remains, however, whether Australian standards were required to be considered in the process and, if so, whether they were relevantly regarded in the process.
332 The question of Australian standards: There remains the question, raised by Bannister and Foster, as to whether the Attorney-General (or delegate) must, in relation to Art 9(2)(b), regard relevant circumstances of the case said to suggest extradition of the requested person could be unjust by reference to Australian standards, or whether the Attorney-General or delegate may or should regard international law or other, even personal standards of what is just, not necessarily informed by Australian standards. While under Art 9(2)(b), in my view, the decision-maker must weigh the circumstances of the case (including the personal circumstances of the requested person) with the nature of the offence and the interests of the Requesting State in order to consider whether extradition would be unjust, in considering whether, having regard to the circumstances of the case, extradition would be unjust, the standards of Australia must be regarded. The inclusion in Art 9(2)(b) of the factors of the nature of the offence and the interests of the Requesting State do not alter the force of the analysis in Bannister and Foster that, when the question of any injustice arising from the circumstances is assessed, it must be assessed from an Australian perspective against Australian standards, not by any other perspective or standards that do not form part of Australian law. I turn now to those two authorities.
333 In Bannister, the Full Court of this Court (Spender, Kiefel and Dowsett JJ) considered an appeal against the decision of the primary judge made under the Extradition Act that extradition to New Zealand of the appellant on rape and sexual assault charges was permissible. Part 3 (then as now), made special provision for extradition of a person from Australia to New Zealand. By s 34(1) (then as now) a person was obliged to be surrendered to New Zealand (if the qualifying requirements were met) unless, under subs (2), a magistrate was satisfied by the person that because:
(a) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;
(b) if that offence is an offence of which the person is accused – the accusation was not made in good faith or in the interests of justice; or
(c) a lengthy period has elapsed since that offence was committed or allegedly committed;
or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand…
334 Bannister was charged in New Zealand in early 1998 in relation to events alleged to have occurred many years earlier in 1975. The charges asserted two of rape and two of indecent assault which were described as “representative”. In other words, each of the matters alleged against Bannister were not the subject of separate detailed charges but were, in effect, foreshadowed by “representative” charges. A magistrate refused extradition under s 34(2) on the basis that Bannister would suffer a considerable hardship if he were surrendered to New Zealand, having regard to the lapse of time and his personal circumstances. That decision was reversed on review by the primary judge. On appeal under the Act to the Full Court of the Federal Court, the Full Court took exception to the representative nature of the charges. It considered the laying of representative charges to be a discredited practice no longer followed in Australia by a ruling of the High Court. As a result, the Full Court concluded, at [29], that in circumstances where New Zealand proposed to proceed upon the four counts as representative charges it would be “unjust or oppressive” to return Bannister to New Zealand to answer the charges.
335 In coming to that conclusion, the Full Court accepted that the circumstances in which extradition might be considered “unjust, oppressive or too severe a punishment” to justify surrender were broad and cited with approval Binge v Bennett where Mahoney JA, in the New South Wales Court of Appeal, at 596, said of the expression “unjust or oppressive” in the context of the Service and Execution of Process Act 1901 (Cth) (SEPA), that:
I do not think that, so understood, they exclude matters going to, for example, the nature and incidents of the justice system to which the person in question is to be returned or to the circumstances or mode of his treatment pending trial in that system. It may well be, for example, that those words, used in the context in which they are used in other countries, would authorise an inquiry by the court as to whether the state of the justice system or the facilities of it in the country to which the person was to be returned were such as to fall within these provisions…
336 The Full Court further noted, at [19], that Mahoney JA had also observed:
What is unjust or oppressive must be judged according to the society in which in Australia we now live. That society and its standards may be open to criticism. It may in some respects, require change. But the context in which these words should be understood is the context of the Australian Federation as it exists from time to time.
337 The Full Court also noted, with apparent approval, that in Perry v Lean, where the Full Court of the Supreme Court of South Australia considered the same SEPA provision considered in Binge v Bennett, Jacobs J had stated, at 411:
the reported cases in which that section has been successfully invoked recognize that the question arising under that section, namely whether ‘extradition’ is unjust or oppressive, is not to be answered by deciding whether it is unjust or oppressive to charge the defendant. The question is whether it would, on the particular facts of the case, be unjust or oppressive to remove the accused into the jurisdiction of the court in which the charge has been preferred.
338 For the Full Court in Bannister the only issue was whether it would be unjust, oppressive or too severe a punishment to surrender Bannister to New Zealand in the circumstances outlined, where Australian criminal law would not countenance a representative charge.
339 In Foster, the United Kingdom had requested the extradition of Foster for certain offences involving fraud. He had spent a substantial period of time in custody in Australia pending extradition and submitted to the Minister, who exercised the s 22 power in place of the Attorney-General, that it was unlikely that he would be sentenced to any additional term if extradited to and convicted in the United Kingdom and so his extradition would be unjust or oppressive or too severe a punishment. The Minister rejected his submissions for release and issued a warrant for his surrender to the United Kingdom. Regulation 7 of the relevant Extradition (Commonwealth Countries) Regulations 1988 (Cth) provided that a person otherwise eligible to be extradited from Australia:
shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of:
(a) the trivial nature of the offence;
...or…
(b) any other sufficient cause;
it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person…
340 The Court (Kirby J dissenting) held that the Minister was not bound to undertake detailed investigations of the likely sentence which might be imposed if the applicant were convicted in the United Kingdom before concluding that she was not satisfied that it would be unjust or oppressive or too severe a punishment to surrender him.
341 Gleeson CJ and McHugh J, in a joint judgment, noted s 22 and s 23 of the Act (as well as s 11 which had the effect of making s 22 subject to reg 7, just as it makes the Act subject to the Treaty in the present case). Their Honours then stated, at [7]:
There is a double layer of satisfaction involved in s 22(3)(e) and reg 7. The section provides that the eligible person is only to be surrendered if the Attorney General (or Minister) is satisfied that circumstances engaging a limitation, condition, qualification or exception to surrender contained in the Regulations do not exist. Regulation 7 provides for such a limitation. It prohibits surrender if the Attorney-General (or Minister) is satisfied that it would be unjust, oppressive or too severe a punishment. Therefore, in order to surrender a person the Attorney-General (or Minister) must be satisfied that he or she is not satisfied that it would be unjust, oppressive or too severe a punishment. Since what is involved is the state of satisfaction, or lack of satisfaction, of the one decision-maker, what is critical is whether the decision-maker is satisfied of a matter referred to in reg 7. Applying the Act and Regulations to the present case, the Minister was obliged to ask whether she was satisfied that, by reason of the trivial nature of the appellant’s alleged offences or by reason of any other sufficient cause, it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person. If the answer to that question were in the negative, then she would be satisfied that the circumstances referred to in s 22(3)(e)(iii) did not exist, and the qualification imposed by s 22(3)(e) upon the extent of her powers under ss 22 and 23 would not operate to inhibit their exercise.
342 Gaudron and Hayne JJ, in a joint judgment, agreed with the judgment of Gleeson CJ and McHugh J that the appeal should be dismissed. At [38], their Honours also agreed with Gleeson CJ and McHugh J that the consequence of the provision of the “double layer of satisfaction” of the one decision-maker is that a critical question for the decision-maker is whether he or she is satisfied of the matter or matters referred to in reg 7. Their Honours added:
But the provision of the double layer of satisfaction is important in that it reveals that the prohibition on surrender for which s 22(3)(e) provides (the Minister is satisfied that specified circumstances do not exist) is, in the present case, a prohibition which is founded upon a state of satisfaction. Section 22(3)(e) does not depend directly upon any conclusion about some question of fact or law. The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ. The engagement of s 22(3)(e) in this case depends, therefore, upon the judgment reached by the Minister. Is the Minister satisfied that she has not reached a particular value judgment?
(Emphasis in original.)
343 Gaudron and Hayne JJ then went on, at [41], to suggest that the expression “unjust or oppressive or too severe a punishment” as it appeared in reg 7 would be better understood as providing a single description of the relevant criterion which is to be applied rather than as three distinctly different criteria. Their Honours suggested this for three reasons: first, the fact that the terms used are qualitative descriptions requiring assessment and judgment; secondly, because the use of the words “too severe” suggest a need for comparison with some standard of punishment that is regarded as correct or just or, at least, not too severe; and thirdly, because considerations which may contribute to the conclusion that something is “unjust” will overlap with those that are taken into account in considering the other two descriptions. Thus, it would be artificial to treat the three ideas as rigidly distinct. Their Honours then added that the questions which then arise are what is the standard which is embodied in these words and what is the subject of the application of that standard?
344 At [42], their Honours dealt with the second question first, and doubted that the inquiry can be confined to whatever may be seen as the direct and immediate consequences of surrender of the eligible person. They added that, in at least some cases, it may be that attention may have to be directed to what will happen to the eligible person after surrender, including not only the probable nature and duration of detention pending trial, but also the punishment that would be meted out to the eligible person if convicted of the extradition offence. Their Honours then added:
That is, it may be necessary, in some cases, to consider whether the punishment which would be imposed on conviction, in combination with factors such as incarceration in both countries (before extradition and before trial), involuntary transportation, and the expense and difficulty of defending a trial in the foreign country, would lead to a disproportionately heavy burden of punishment being imposed on the eligible person.
Their Honours observed, however, that it was not necessary to decide what are the kinds of cases in which such considerations might arise and, given the generality of the words employed in reg 7, it would be unwise to attempt to do so in any exhaustive way.
345 Gaudron and Hayne JJ then addressed the first question they considered arose as to the standard set by the words “unjust or oppressive or too severe a punishment”. Their Honours posed the question and provided the answer as follows:
Unjust or oppressive by what measure? Too severe by what measure? The answer must be that the value judgment which the expression requires is to be made according to Australian standards [footnote 27], not the standards of any other country. It requires consideration of how the offence or offences for the prosecution of which the extradition is sought would be viewed in this country. Is surrender of the eligible person for that offence, or those offences, unjust or oppressive or too severe a punishment? The precise nature and content of that inquiry may require further consideration in an appropriate case but little or no argument about that was called for or was directed to it in this matter and we say nothing more about it.
346 Footnote 27 in this passage contains a reference to La Forest AW, Extradition to and from Canada, (3rd ed, Canada Law Book Inc, 1991) at p 241. By reference to Ex parte Bennett (1974) 17 CCC (2d) 274 (Ont HCJ) the learned author of that text, at p 241, submitted that the question whether a person should be surrendered from Canada, having regard to the terms of the Fugitive Offenders Act RSC 1985 (Fugitive Offenders Act) – which Act was modelled on the Fugitive Offenders Act 1881 (Imp) – which by s 16 provides that a court has the power to refuse surrender in cases in which it would be “unjust” to do so, should depend primarily on the seriousness with which the crime is regarded in Canada, not in the foreign country. This observation was made in the context of an analysis of the then Canadian Fugitive Offenders Act which did not include a dual criminality test for extradition in respect of Commonwealth countries which would require in effect that the offence for which it was proposed a person should be extradited to a foreign country reflected a similar offence in Canada, a feature of which the author was critical.
347 While his Honour was in dissent in the result, the judgment of Kirby J in Foster should also be noted. His Honour, at [60]-[67], provided a concise account of the history of Australian extradition legislation from colonial times when the Imperial Fugitive Offenders Act 1881 (1881 Imperial Act) applied and under which, by s 10, a court could discharge the fugitive in the following circumstance:
Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to…all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period
348 So far as reg 7(1) was concerned, Kirby J stated certain propositions which, together with his textual analysis of reg 7, led him to conclude the Minister should have regarded likely United Kingdom sentencing outcomes in the appellant’s circumstances. His Honour noted, at [85], that extradition is a very serious imposition on the person involved and so should be given meaning “in a way that upholds the important purposes” that the regulations and s 22 of the Act were designed to secure. His Honour observed that the safeguards in the Act and the regulations acknowledge that the “principle of interjurisdictional comity which the process of extradition maintains must be secured by procedures, and by the application of rules, which protect a person subject to an extradition application”. In that regard, Kirby J noted, at [86], that:
Those who are extradited from Australia are ordinarily subjected to initial detention in Australia, removal under restraint, frequently over a long distance, detention in the extradition country, subjection to that country's judicial process with costs that may not be recoverable, laws and customs that may be different in significant respects from those of Australia, custodial institutions that will sometimes be sub-standard, and all this ordinarily at a considerable distance from family and friends. In a world of increased mobility, interactive technology and new forms of criminality, extradition represents an essential response to the characteristics of contemporary crime. But it is a response which is subject to recognised checks which, in Australia, are set forth in the Act and the Regulations. Where those checks have not been accurately observed, at least in a case in which the Minister having the power of determination is obliged to observe them, it is the duty of the courts to set aside a decision which has miscarried and to require a lawful decision to be made which observes the protections put in place by, or under, the law enacted by the Parliament.
349 After a further discussion about the nature or level of the punishment to be imposed or that might be imposed in a foreign country, Kirby J, at [97], observed that reg 7 must be given meaning in the context of its application to a wide range of Commonwealth countries which now “have significantly different approaches to criminal offences and punishment”. His Honour considered that the meaning of reg 7(1) could not be ascertained by reference solely to its application where the requesting country is the United Kingdom. His Honour observed that in some Commonwealth countries, punishments which are short of torture may be imposed (such as punitive birching) which may reasonably satisfy the Minister, in all the circumstances, that it constitutes too severe a punishment to surrender the eligible person.
350 As a result, Kirby J differed from the majority in that he reached the view, at [98], that it was appropriate in all the circumstances for the Minister to achieve the necessary state of satisfaction by reference to information concerning punishment that might be applied in respect of the appellant in the United Kingdom. But it was clear from his Honour’s analysis that the criminal law and sentencing circumstances that might prevail in a requesting state will necessarily be compared and contrasted with those that obtain in Australia when questions are raised whether extradition of a person would be unjust. Indeed, at [93], Kirby J expressly dealt with the argument as to whether the level of punishment might be “too severe a punishment” by “Australian standards”. In that same paragraph he referred to the question whether surrender might, “according to Australian standards”, be “unjust or oppressive or too severe a punishment” because the punishment likely to be imposed is extremely modest.
351 I should also note that, at [99], Kirby J treated the consideration of the “too severe a punishment” criterion as separate and distinct from the criterion or criteria of “unjust or oppressive”. At [92], Kirby J expressly stated that meaning must be given to the entire phrase “too severe a punishment to surrender”, noting that considerations of injustice or oppression stood alone. The latter observation by Kirby J, with respect, is important when one turns to the phrase “unjust, oppressive or incompatible with humanitarian considerations” in Art 9(2)(b). It may be accepted that case law since the 1881 Imperial Act may be said to support the view that the phrase “unjust or oppressive or too severe a punishment” should be treated as a composite, single criterion, as Gaudron and Hayne JJ suggested in Foster. However, the separation in Art 9(2)(b) of the words “unjust” and “oppressive” by a comma, and the addition of the words “or incompatible with humanitarian considerations” suggest that while there may be overlap between the three aspects mentioned, they should not be treated as constituting a single criterion for the purposes of the Treaty or the Act. So too does an appreciation (drawn from the discussion in Aughterson EP, Extradition: Australian law and procedure (The Law Book Company Limited, 1995) at pp 171-172) that the phrase “incompatible with humanitarian considerations” appears only to have been included in Australian treaties from the mid-1980’s and was intended to have its own scope.
352 It is also appropriate to record some of the attempts that have been made over the years to define the expressions “unjust” and “oppressive” as they have appeared in fugitive offenders legislation. For example, in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782-783, Lord Diplock considered “unjust” as directed to the risk of prejudice to the accused in the conduct of the trial itself, and “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration, accepting that there was room for overlap. For my part, having regard to the authority of Foster, Lord Diplock’s dicta in relation to the use of these words in the Fugitive Offenders Act 1967 (UK) might be considered unduly limited in the Australia legislative context. As noted, in Binge v Bennett the ordinary meaning of these words was considered to have a “broad connotation”. That approach was adopted in Bannister by the Full Court. In the text by Aughterson, at pp 157-171, the author collects a number of authorities that reasonably support the author’s conclusion that extradition may be considered unjust or oppressive not only due to the trivial nature of the offence and where an accusation is not made in good faith or in the interest of justice, but also for any other sufficient cause, which might include the passage of time that has past since the offences are alleged to have occurred, the health of the person sought, hardship likely to arise through extradition, the likelihood of conviction, prison conditions in the requesting state, the prospects of a fair trial, the issue of natural justice and the gravity of the offence. All this serves to underline the observation of Sugerman JA in Ex parte Klumper [1967] 1 NSWLR 161; (1967) 10 FLR 169, in the context of the then applicable SEPA, that it would be “presumptuous” to try to foresee all the combinations of circumstances that would fall within the category of “unjust or oppressive”.
353 In relation to “humanitarian considerations”, Aughterson observes that (noting that his book was published in 1995) a number of treaties allow an exception to extradition where surrender would be inconsistent with humanitarian considerations. The author refers, at p 171, to an article by Anderson L, “Protecting the Rights of the Requested Person in Extradition Proceedings: An Argument for a Humanitarian Exception” (1983) 4 Mitch YBI Legal Stud 153 at 154, where three types of humanitarian claims were suggested as appropriate: that the trial in the requesting state will be, or was, unfair; that the awaiting punishment will be excessive or cruel; and that the requesting country will be unable, or does not intend, to protect the requested person from assassination attempts. Aughterson proffers the view, at p 172, that it would seem that the exception also takes account of the personal circumstances of the fugitive. He adds that given that treaties should be interpreted on broad principles of general acceptation it appears that such provisions (like Art 9(2)(b) of the Treaty) should encompass both the personal circumstances of the fugitive as well as the wider issues suggested by Anderson. Nonetheless, Aughterson also expresses the view, at p 172, that an exception of this nature in a treaty concerning “humanitarian considerations” overlaps with others including discrimination, injustice or oppression and cruel or unusual punishment and so may be relied upon where the treaty or regulation in question is silent as to those other issues.
354 In my view, the concept of “humanitarian considerations” may well go beyond circumstances in which the terms “unjust” or “oppressive” may be relevant. The word “humanitarian” is defined by the Shorter Oxford English Dictionary (5th ed, Oxford University Press Inc, 2002) (SOED) as follows:
noun…2 A person concerned with human welfare; a person advocating or practising humane action; a philanthropist.
…
adjective. Of, pertaining to, or holding the views of a humanitarian.
In the Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005) it is defined as:
adjective 1. having regard to the interests of all humankind; broadly philanthropic. 2. relating to ethical or theological humanitarianism.
noun 3. someone who professes ethical or theological humanitarianism. 4. a philanthropist.
The SOED suggests that “humane” now means “characterized by sympathy with or consideration for others; compassionate; benevolent”, and the Macquarie Dictionary defines “humane” relevantly as “characterised by tenderness and compassion for the suffering or distressed”.
355 The concept of “humanitarian considerations” should be considered an extremely broad concept, therefore, that may, depending on the circumstances of the case, go beyond the notion of a particular circumstance being “unjust” or “oppressive”. Notions of compassion, for example, may well introduce a broader range of circumstances that a person faces that may be considered a basis for refusing surrender. So too might the wider set of considerations identified in the article by Anderson.
356 What is common, however, to the decision of the Full Court in Bannister and the judgments of Gaudron and Hayne JJ and Kirby J in Foster, in my view, is that the question of what might be considered “unjust, oppressive or too severe a punishment” if extradition of the requested person were to be permitted, is necessarily to be assessed by way of a value judgment, but a value judgment to be informed by reference to Australian standards. In Bannister the relevant Australian standard concerning representative charges was to be found in the criminal law of Australia. In Foster, apart from Kirby J, the Court found no investigation of likely United Kingdom sentences was required of the Minister and she was fairly able to make the value judgment required of her on the materials she had before her.
357 While the authorities of Bannister and Foster suggest that the circumstances of the case that may make it unjust for the requested person to be extradited should be assessed by reference to Australian standards, it is not immediately obvious that the factors of the nature of the offence and the interests of the Requesting State are to be, or indeed can easily be, measured against Australian standards. Nonetheless, it might be said that because each factor must be considered by Australia by virtue of Australian law, each factor, or the weight to be accorded it, will inevitably be regarded from an Australian perspective.
358 In Bannister the relevant Australian standards were relatively easily identified by reference to what was required by Australian (criminal) law in relation to the laying of representative criminal charges against an accused person. It may not be so easy in other circumstances to identify the relevant Australian standards against which a particular consequence of extradition might be measured. But in many cases it will not be difficult objectively to identify a relevant statutory or general law, practice or sentencing regime applicable under Australia’s criminal justice system against which can be measured the circumstances in which a requested person is likely to find themselves in the Requesting State, should they be extradited.
359 The circumstance of the in absentia conviction and Australian standards: In the present circumstances the first respondent submits, as he represented to the Minister, that the circumstances in which he will find himself, if extradited to Indonesia, would make his surrender to Indonesia unjust by Australian standards. This, he says, is because he has already been convicted of the extraditable corruption offence and sentenced to life imprisonment in Indonesia in his absence and without having been served with any process, not having absconded from Indonesia having been charged, and being bound by a decision of an appeal court in Indonesia dismissing an appeal against the conviction following a proceeding conducted in his absence.
360 The question of extradition for an in absentia conviction in a requesting state has a long and vexed history in Australian law and, indeed, in public international law. In this case, it is to the Extradition Act and the Treaty that attention must be directed. There is no relevant principle of customary international law concerning in absentia convictions relied upon. Further, while the ICCPR has been ratified by Australia and Indonesia, it has not been transformed into Australian municipal law by a law of the Commonwealth.
361 There is nothing in the Extradition Act or the Treaty which prevents Australia surrendering to Indonesia a person who has been convicted in Indonesia of an extraditable offence in their absence. In this regard, s 10(1) of the Act, in a provision headed “Interpretative provisions relating to offences”, provides:
(1) Where a person has been convicted in the person’s absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.
362 As the Minister submits, this provision shows that extradition may occur in circumstances where a person has been convicted in absentia. The reference to “whether or not the conviction is a final conviction” no doubt accommodates a variety of circumstances in which, in the requesting state, an in absentia conviction may not be considered a “final conviction” because a retrial or appeal or other review process is provided for by the law of that country. For the purposes of the Extradition Act, however, in the case of an in absentia conviction (whether final or not) the person is deemed not to have been convicted but to be accused of the offence. Nonetheless, as discussed below, the expression in s 10(1) “convicted in the person’s absence”, has given rise to both a conceptual and factual debate – although it is not an issue relevant to the disposition of this appeal.
363 Ordinarily under s 19(2), when a determination of eligibility for surrender is made by a magistrate, the person will only be eligible for surrender in relation to an extradition offence if the supporting documents in relation to the offence are produced to the magistrate (including any relevant regulations or treaty provisions governing extradition), the magistrate finds that the equivalent conduct would have constituted an extradition offence in Australia and the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. No part of the process of determining eligibility for surrender under s 19 involves the magistrate inquiring into the weight of the evidence in support of the offence in relation to which extradition has been requested or any factor deriving from the in absentia nature of the conviction. However, s 11(4) provides:
(4) Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19(2) unless the prima facie evidence test is satisfied.
364 The effect of that provision is that where the provision in the regulation or the treaty would mean that a person is not eligible for surrender unless the sufficient evidence test is satisfied, then that requirement shall instead be taken to have the effect that the person is not to be surrendered unless the prima facie evidence test is satisfied. The prima facie evidence test is defined by s 11(5)(b) by reference to the provision of evidence that, if the conduct of the person constituting the extradition offence had taken place in Australia, it would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court in relation to the offence. In the result, the prima facie evidence test is not required in relation to the extradition offence in the case of the first respondent.
365 So far as the Treaty is concerned, Art 11 deals the topic of ‘Extradition procedural and required documents’. Article 11(2)(b) provides that the request for extradition shall be accompanied:
(a) if a person has been convicted in his absence of an offence – by a judicial or other document, or a copy thereof authorising the apprehension of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence;
366 It is plain then that both the Act and the Treaty contemplate that a person may be extradited having been convicted in absentia in Indonesia. But this does not mean that the fact of an in absentia conviction requires the Requested State to surrender the requested person without more. The other terms of the Act and the Treaty which may provide a bar to extradition continue to apply. That this is so is borne out by an examination of authorities dealing with in absentia claims. There is also a separate question, raised by the first respondent’s notice of contention, whether Australia has obligations under international law, at least under the ICCPR, where extradition is sought of a requested person who has been convicted in absentia, which must be regarded under s 22(3)(f) of the Act.
367 As the judgments of all members of the Full Court in Wiest disclose, the extradition of persons convicted in absentia in a requesting country has long been viewed with a degree of circumspection, if not suspicion, under British law and Australian law. Extradition legislation in Australia at different times has made specific provision in relation to requests for extradition on the basis of an in absentia conviction in the requesting country.
368 Section 26 of the Extradition Act 1870 (Imp) (1870 Imperial Act) initially provided that the terms “conviction” and “convicted” did not include or refer to a conviction which under foreign law was a conviction for “contumacy”, but the term “accused person” included a person so convicted for contumacy. In Athanassiadis v Government of Greece [l971] AC 282 (Athanassiadis) the House of Lords discussed the nature of a conviction for contumacy, noting that it was unknown under British law. However, their Lordships noted that under French law a judgment par contumace is annulled if the person to whom it relates is arrested or surrenders himself so that it is exactly the same as if no proceedings had been taken against him, and then he undergoes his trial for the offence with which he was charged. Section 26 of the 1870 Imperial Act secured this result.
369 In that light, the Extradition (Foreign States) Act 1966 (Cth) (Extradition Act 1966) contained s 4(3) in the following terms:
For the purposes of this Act, a person shall be deemed not to have been convicted of an offence against the law of, or of a part of, a foreign state where the conviction is, under that law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against that law.
Thus, as Gummow J (with whom Sheppard J agreed) noted in Wiest, at 511, s 4(3) in its original form secured the same result as s 26 of the 1870 Imperial Act.
370 A fresh s 4(3) was inserted in the Extradition Act 1966 by s 5 of the Extradition (Foreign States) Act 1973 (Cth), and removed the reference to conviction for contumacy and provided instead:
(3) Where –
(a) a person has been convicted in his absence of an offence against the law of, or of a part of, a foreign state; and
(b) the conviction is not a final conviction,
then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence.
371 As may be seen from this provision, the concept of a “final conviction” became relevant. As Gummow J noted in Wiest, at 511, if a conviction was final then the fugitive, under this provision, would be dealt with as a person convicted of the offence.
372 Section 4(3) was then further amended by the Extradition (Foreign States) Amendment Act 1985 (Cth) so that it then provided, as s 10(1) of the Extradition Act now provides:
Where a person has been convicted in the absence of the person of an offence against the law of, or of a part of, a foreign state, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence.
Again, as Gummow J noted in Wiest, at 513, this new s 4(3) operated whether the conviction was or was not a “final conviction”. In either case (not just those where the conviction lacks finality) the person was deemed not to have been convicted of the offence in question, and is deemed to be accused of that offence.
373 In Wiest, Gummow J, at 513, also noted that s 4(3) deems a state of affairs to exist “for the purposes of this Act”. His Honour noted a number of relevant operative provisions of the Extradition Act 1966 which he considered to be crucial in that case. In particular, his Honour noted the operation of s 17(6)(a) of the Extradition Act 1966, as it then applied, which he considered drew a distinction between “persons” and “fugitives”. His Honour considered the distinction may, in a given case and, depending upon the identity of the State requesting extradition, be drawn in regulations envisaged by s 10 and s 11 of the Extradition Act 1966, which may impose requirements (for example, retrial) as to the treatment of the fugitive on his or her return. His Honour noted, however, at 513, that this was not done in the case of reg 11(2) of the Extradition (Federal Republic of Germany) Regulations 1985 (Cth) to which the Act had been made subject by s 11 of that Act in that case. His Honour also noted in passing that the legal system of a requesting state may not envisage and may indeed forbid the granting of a fresh trial to a person convicted in absentia.
374 In the result, by reference to the then operative 1966 legislation, Gummow J in Wiest, at 513, considered that in its operation in relation to s 17(6)(a), s 4(3) achieved the result that mere proof of conviction which resulted from trial in absentia of the fugitive may not be a sufficient indication that the fugitive has committed an extradition crime. What was required was that documentation which has to be produced in the case of a fugitive accused of an extradition crime, or that is to say, the foreign warrant of arrest, a description of each offence and the penalty applicable, and a written statement of all the acts or omissions in respect of which the surrender of the fugitive is requested were required to be produced.
375 Gummow J further considered, at 513-514, that the phrase “for the purposes of the Act”, in s 4(3), did not mean, as the appellant had submitted, that all documents referred to or required by the Extradition Act 1966, beginning with the requisition for surrender, must identify and treat the convicted fugitive as if he were an accused and that s 4(3) was not designed to ensure that the requesting state seeking a fugitive who has been convicted in absentia must request extradition for trial, rather than to serve a sentence.
376 Gummow J, at 514, then observed this:
The question of the extradition to a foreign State of a fugitive, convicted in absentia, to serve his sentence rather than to stand a retrial, poses issues as to the acceptability to Australia of the system of criminal justice in that State. These issues are to be determined by the government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive under s 18A in exercise of the discretion there given the Attorney-General. The exercise of that discretion involves s 18A(1)(c) as a pre-condition, and s 18A(1)(d) as prohibitions. And the exercise of the discretion may involve more than a consideration of those matters: see Atkinson v United States Government [1971] AC 197 at 232-233, 235, 239, 247; Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 278, 281, 282, to which I have already referred.
377 Gummow J thereby emphasised that it remained open for Australia, through a treaty with a particular foreign State to deal with a question of extradition for in absentia convictions (of one type or another).
378 Gummow J then went on, at 514, to consider the effect to be given to the concept of trial in absentia expressed in the form of words taken in the 1985 and in the 1973 forms of s 4(3), respectively “Where a person has been convicted in the absence of the person” and “where…a person has been convicted in his absence of an offence”. It is the latter formulation that now substantially appears in s 10(1) of the current Extradition Act. In this regard, Gummow J stated, at 514-515:
It is a requirement of the common law as understood in England and Australia that the prisoner be present throughout his trial for an indictable offence if he is in custody: Lawrence v The King [1933] AC 699. There may not be such a requirement at common law where the offence is a misdemeanour: R v Jones (No 2) (1972) 56 Cr App R 413 at 418-419. The right to be present is waived if, in the course of the trial and whilst on bail, the accused absconds or escapes from lawful custody; the judge then has a discretion to continue the trial or to discharge the jury: R v McHardie [1983] 2 NSWLR 733.
His Honour, at 515, also referred to similar authority in the United States concerning the constitutional guarantee of due process.
379 Consequently, at 515, Gummow J concluded that in light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of conviction in absentia as involving conviction in the absence of the accused, where his absence was the “result of conduct on his part which amounted to a voluntary waiver of his right to be present”. His Honour further noted that the “history behind the present s 4(3) and the foreign legal concepts of conviction for contumacy and final jugement iteratif defaut” showed that the concern of British and Australian legislatures has been with foreign legal systems “which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights”.
380 Notwithstanding that Gummow J expressed this to be “the better view” he also noted that the proceedings had been conducted on the footing that s 4(3) did apply and it was not then appropriate to depart from that course.
381 Sheppard J agreed with the reasons of Gummow J and added additional comments of his own. He appreciated that the view he had taken of s 4(3) did not give it “substantial significance” and that it followed that there would be cases where people are in fact tried and convicted in their absence in the requesting state who will not have an opportunity of being heard in defence of the charge, either in the requesting state or in Australia. His Honour accepted that the position was not always so and that until the amendments to the Act which were effected in 1985 came into force, the magistrate was required to be satisfied by evidence of a prima facie guilt of the fugitive and the fugitive was entitled to lead evidence. His Honour noted that since the amendments no evidence was required and that the requirement had been replaced by a requirement only for a duly authenticated statement setting out the acts or omissions in respect of which the surrender of the person was requested.
382 Burchett J, by contrast, having regard to the same legislative history adverted to by Gummow J, considered, at 500, it would make perfect sense of the latest amendment made to s 4(3) to understand it as intended to put those persons included in the provision in the same position as those already covered, whose extradition could only be sought by a foreign state in order to put them on their trial. In the result, his Honour put a particular construction on the words “shall be deemed not to have been convicted” to mean, as explained at 501, that they cannot authorise the acceptance of a requisition and the issue of an Attorney-General’s notice for the purpose of his extradition as a convict to serve his sentence. Burchett J accepted, however, that the additional words in the provision “but shall be deemed to be accused of that offence” complicated this construction. But, having regard to the legislative history his Honour considered, at 502, that to construe the provision as authorising a requisition for the purpose of enforcing a conviction in relation to a person deemed not to have been convicted, the provision would become inherently contradictory. Ultimately, at 502, Burchett J considered that:
To authorise the arrest of an individual, not because he has broken an Australian law, but at the request of another country, is an awesome assertion of the power of the State over people within its borders. Under the rule of law, it cannot be done - and the courts have a duty to see to it that it cannot be done - except by express and unambiguous statutory provision.
383 In Tzatzimakis the appellant requesting state, Greece, required the extradition of the first respondent. On 7 November 1990, the first respondent had been arrested with a quantity of heroin in his possession. He made a number of incriminating statements. Two alleged co-offenders and the respondent were charged with purchasing, possessing and selling heroin. He was “provisionally detained” following an appearance before an examining magistrate in Greece. He was then released from custody and summoned to appear before the Court of Appeal in Greece on 4 October 1991 to face trial. He failed to appear at the trial although his mother attended. She said that her son had received written and verbal threats and was afraid to come to court and requested an adjournment, which the Court granted. Formal notice of the adjournment was not given to the first respondent because, according to the Court, the date of the hearing was notified to his mother. On the adjourned date, 24 January 1992, the first respondent again failed to appear. The Court then ordered the trial proceed in his absence. He was convicted and sentenced to a period of imprisonment.
384 The question raised on the appeal in Australia was whether the magistrate was correct in holding the respondent was not a “convicted” fugitive for the purposes of the Extradition Act. That decision was based on the expression used in s 10(1), “a person has been convicted in the person’s absence”. If he was convicted in his absence, then the materials required to be produced under s 19 were not produced and the magistrate’s s 19 determination was made in jurisdictional error.
385 Finkelstein J, at [69]-[81], recounted the history of how English and Australian law has dealt with a conviction par contumace and noted the discussion in Wiest. At [81], Finkelstein J stated that in Australia, Parliament decided that a person who has suffered a final conviction in his absence should be placed in the same position as a person convicted par contumace. Accordingly, the Extradition (Foreign States) Amendment Act 1985 (Cth) included a new s 4(3) that became s 10(1) in the current statute.
386 Finkelstein J, at [82], noted that there were two views on the meaning of s 10(1) expressed in Wiest. On the one hand, there was the “obiter opinion” of Gummow J, with whom Sheppard J agreed, that a person who is voluntarily absent from his trial is not a person who has been convicted in his absence and, on the other hand, the opinion of Burchett J to the opposite effect. Finkelstein J found himself unable to agree with Gummow J and stated a different view both as regards the two propositions and the conclusion. His Honour first examined what in ordinary usage is meant by a trial in absentia and stated that in most civil law countries an accused is entitled, but not obliged, to attend his trial. If he does not attend he may be convicted in his absence. His Honour asked whether the reason for the absence could be considered a material matter. He noted that the circumstances in which there may be a trial in absentia differed to some extent from country to country. Using the French Code of Criminal Procedure of 1958, his Honour noted that a French court might proceed to judgment in the absence of the accused in at least the following circumstances:
(a) if the accused has not been arrested;
(b) if the accused has not appeared at his trial; and
(c) if after arrest, the accused has escaped. That is to say, there might be a judgment par contumace (a judgment in absentia) rendered in the accused’s absence though absence was voluntary.
387 Finkelstein J, at [85], noted that the predecessor to the Code was the Code d’Instruction criminelle de 1808 (1808 Code), which was a prototype for the civil world and for this reason most civil law countries make provision for trials in absentia.
388 That brief examination led Finkelstein J, at [86], to the conclusion that, in the discourse of civil lawyers, expressions such as “a conviction in the accused’s absence” and “trial in absentia” are applied without regard to the reason for the accused’s absence. His Honour then considered, at [88], that the result is the same when considered from the viewpoint of a common law lawyer and that trials in absentia are not unknown in English criminal law. His Honour considered, at [89], that even now a trial may proceed in the accused’s absence. Putting to one side in absentia trials for summary offences provided for under statute, his Honour considered a criminal case begins when the accused has been arrested and charged, at which point the Court assumes jurisdiction over the accused. He stated that a fundamental principle at common law is that an accused has a right to be present at the trial, but this is not an unqualified right. The trial may proceed in the accused’s absence in exceptional circumstances, perhaps even without an arraignment. His Honour noted that in Jones the Law Lords regarded these as instances of a trial which takes place in the accused’s absence; the issue in that case being whether a criminal trial could proceed after the defendant had absconded. Finkelstein J viewed Jones as a case where the House of Lords considered whether, in all the circumstances, a fair trial had occurred in the face of the deliberate absconding of the accused.
389 Finkelstein J, at [90], noted that under the Extradition Act 1989 (UK) a fugitive can avoid extradition if he satisfies two conditions:
(a) that the “conviction was obtained in his absence”; and
(b) that “it would not be in the interests of justice to return him on the ground of that conviction”: s 6(2).
390 Finkelstein J challenged the proposition advanced by Gummow J at p 515 of Wiest, that the history behind s 4(3) and foreign legal concepts of conviction for contumacy and final jugement iteratif defaut show that the concern of British and Australian legislatures has been with foreign legal systems which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights. Finkelstein J considered that history and those concepts led him to a different conclusion. He said that his analysis showed the objects of those systems was to allow for trials in absentia whether or not the facts disclosed voluntary waiver. He also considered the history was not concerned so much with the foreign legal systems but with the nature of the “conviction” which gave rise to the request for surrender.
391 Finkelstein J then, at [93], concluded that he had not hesitation in saying that when a person has been convicted after a trial of which he has had notice, but has refused to attend, that person has been convicted in his absence. His Honour noted difficulties both with the words “conviction” and “absence”. In the result, at [95], Finkelstein J reached the view that the first respondent had been convicted in his absence, when one regarded history and paid attention to foreign legal systems.
392 Black CJ also examined the history of s 10(1). At [16], his Honour considered that to discover the objects of s 10(1), which operates as a deeming provision “for the purposes of the Act”, the obvious starting point was the other provisions of the Act in respect of which it was intended to take effect. In particular, he identified s 19(3)(a) and (b), although he then observed that it was not apparent what policy objectives s 10(1) serves if viewed only in the light of s 19(3)(a) and (b), given that “supporting documents” are defined so as to include “in any case” a duly authenticated statement in writing setting out a description of the offence and penalty applicable. However, at [17], his Honour noted that s 10(1) might have a potentially substantial operation by reference to treaty provisions and regulations that dealt with exceptions.
393 His Honour noted, at [20], that at the time the Extradition Act was enacted there were treaties between Australia and non-Commonwealth countries which made provision for a person “convicted in his absence of an extraditable offence” such as to attract the exercise of the regulation making power under s 11.
394 Black CJ then observed, at [24], that the diverse circumstances in which s 10(1) might have effect, as regulations were made applying the Act and treaties were concluded with countries with widely differing legal systems, suggested that the provision had a broad general object of removing previously relevant distinctions between different types of convictions in a person’s absence. His Honour considered no object emerged that would suggest that a special or technical meaning was intended. Rather, the potentially diverse circumstances under which s 10(1) might operate pointed to an intention that the expression should be interpreted according to ordinary English usage.
395 Hill J also considered whether a person who has deliberately absented themselves from a trial of which they have had notice is properly described as a person who “has been convicted in the person’s absence of an offence”. His Honour, at [36]-[42], also considered Wiest. His Honour noted Finkelstein J’s criticisms of the majority view but, at [44], expressed his agreement with what Gummow J had said in Wiest that the concern in the United Kingdom and in Australia in the context of extradition law was with extraditing persons to countries where convictions had been obtained against persons who were convicted in absentia without their having been given a fair trial. Hill J noted that the English 1988 amendments were designed precisely to ensure that there should be no extradition where a conviction had been obtained in absentia if it were not in the interests of justice to return the convicted person to the foreign state on account of the conviction. Hill J, at [45], added:
I do not think it likely that the concern of the extradition law in England or Australia was with cases such as in Wiest where a person had voluntarily absconded during a trial in which he was represented. Indeed, that question does not seem at all to have been a matter to which attention has ever been directed. Rather the history makes it clear that attention was focused on the distinction between a judgment par contumace where the conviction would be set aside and a new trial ordered where the person was returned to the extradition country and a conviction that had become final where extradition would not result in a new trial.
(Emphasis in original.)
396 After further discussion concerning the criticisms made of some of the analysis of Gummow J in Wiest, at [50], Hill J considered there was a real issue whether for the purposes of the Extradition Act and the policy underlying it, and having regard to international comity and practice, a person should be treated as having been convicted in his or her absence when that person waives his or her right to be present at the trial.
397 Hill J also discussed the House of Lords decision in Jones. In the result, following that discussion, at [60], his Honour noted that the House of Lords were not construing the language of a statute in the context of extradition, as was required in the case before the Full Court. His Honour, at [61], distinguished the circumstances of the appellant from that of Mr Wiest, who had absconded from the trial at which he had been represented. He considered the first respondent in the instant case was never personally present at any time during his trial, except through his mother. He had, however, been served with court process and, though he had notice of the date of the trial, he was never represented by anyone. No question arose of waiver of the right to be present at the trial. His Honour considered the case was simply one of which it could be said that the respondent deliberately absented himself from the trial and was not present throughout that trial whether in person or through a legal representative.
398 In these circumstances, for Hill J it was appropriate to treat the expression “has been convicted in the person’s absence of an offence” as not having any technical meaning. He found the respondent was convicted in his absence. He was arrested and examined in the presence of a lawyer. He was served with a warrant of appearance. The document which recorded the date of hearing and charges laid against him was given to him. He was present on the date recorded as the date of the hearing but the case was not heard that day and adjourned. Thereafter he did not appear. At no time after the trial actually commenced was he in court. Mere non-attendance does not amount to a waiver of the right to attend at a trial. It could not be said that he attended through some agent as it might have been said in the case of Wiest.
399 The result, therefore, was that all three judges in Tzatzimakis considered that the primary judge was right to conclude that the respondent was not a person “convicted in his absence” and so the material placed before the magistrate under the Extradition Act was deficient.
400 Accepting that the decisions of the Full Courts in Wiest and Tzatzimakis are not directly relevant to the resolution of this appeal, what they provide is a clear exposition of how s 10(1) of the Extradition Act came to be expressed in its current form and what the significance of that form is. What Wiest left to one side, but which Tzatzimakis decided and applied, was in what circumstances, for the purposes of s 10(1), it could be said of a person that they had “been convicted in the person’s absence of an offence”. While that issue is not raised in this appeal, Wiest and Tzatzimakis emphasise that the Extradition Act, in combination with regulations or treaties, may address the question of in absentia convictions. Each of the decisions, or at least some of the judgments in each case – principally those of Gummow and Sheppard JJ in Wiest and that of Hill J in Tzatzimakis agreeing with the propositions identified by Gummow J in Wiest – also emphasise the concern that Australian law has belied over a long period in relation to the extradition of persons to requesting states for in absentia convictions.
401 The Treaty in the case on appeal does not create any express bar or potential bar on account of an in absentia conviction of the requested person in the Requesting State, as for example does the Extradition Act 2003 (UK) referred to in the first respondent’s submissions. However, in my view there is and can be little doubt that the circumstance of an in absentia conviction of the requested person in the Requesting State may, depending on the circumstances, be a relevant circumstance of the case required to be considered by Australia under Art 9(2)(b) of the Treaty. As stated above, while there is no bar to the extradition of a requested person who has been convicted in their absence in the requesting state, that does not mean the extradition of a person convicted in absentia must automatically be authorised under the Act.
402 In this case, Att B was formulated on the understanding that the in absentia conviction of the first respondent in Indonesia was a factor relevant to the Minister’s consideration of the circumstances of the case and whether, pursuant to Art 9(2)(b) of the Treaty, the first respondent should be surrendered to Indonesia. The question that arises in a case such as the present, is what decision-making process, if any, is required under Art 9(2)(b) of the Treaty when a relevant circumstance raised for the decision-maker’s consideration is the in absentia conviction of the requested person in the Requesting State. On the one hand, as discussed above, this circumstance may be assessed by the decision-maker by reference to international obligations or subjectively or impressionistically, or, on the other hand, by reference to Australian standards. In my view, for the reasons set out above, the circumstance created by s 22(3) and Art 9(2)(b) must be considered by reference to Australian standards. That does not necessarily mean that, every time a requested person has been convicted in their absence in the Requesting State, their extradition would be unjust. Rather, it is necessary, in my view, for the decision-maker to regard the circumstances in which the in absentia conviction was recorded in the Requesting State and then to assess, by reference to Australian standards, whether the conviction so secured might be said to be unfair. In the light of that assessment the decision-maker, for the purposes of Art 9(2)(b), must then take account of the nature of the offence and the interests of the Requesting State in finally forming a value judgment as to whether the extradition of the requested person would be unjust. It is accepted, as noted above, that the ultimate weighing or consideration process leading to the forming of this value judgment may be difficult, but that does not detract from the requirement to consider the circumstances of the case in relation to any in absentia conviction by reference to Australian standards, against which those other factors of the nature of the offence and interests of the Requesting State must then be weighed.
403 In making the value judgment called for by Art 9(2)(b), where an in absentia conviction in the Requested State is drawn to the decision-maker’s attention, in my view the decision-maker must necessarily consider the circumstances of that conviction and identify the Australian law and practice in relation to an in absentia conviction for a like offence. In particular, the following decision-making process is required:
First, the decision-maker should identify whether it would be possible for a person to be convicted in their absence under Australian law or practice of an offence of the type of which the person was convicted in their absence in the Requesting State.
Secondly, if it is possible in Australia for a person to be convicted in their absence of such an offence, the decision-maker should identify the circumstances in which this may occur.
Thirdly, the decision-maker should inquire whether the conviction in absentia in the Requesting State occurred in circumstances the same as or similar to the circumstances in which a person could be convicted for such an offence in absentia in Australia.
404 If, as a result of these steps, it were to be ascertained, for example, that under Australian law or practice the conviction of a person for the type of offence for which they were convicted in their absence in the Requesting State could not be recorded by a court unless the person had first been personally served with initiating process, or by a substitute method, or having been served had deliberately chosen to avoid a trial or hearing at which charges would be heard, then it would be necessary to ascertain the circumstances of the in absentia conviction in the Requesting State. If the requested person was, for example, not served in the Requesting State with initiating process before the conviction was made, and there was no material to support the view that the person had deliberately avoided service, or that the person, having been served with the process, deliberately avoided a trial, then on the face of it the in absentia conviction in the Requesting State would be unfair by Australian standards because it could not occur in Australia in such circumstances. It would be irrelevant in such circumstances that the authorities in the Requesting State may have conducted reasonable steps to personally serve the requested person with the originating process.
405 Similar steps would also be necessary where the in absentia conviction in the Requesting State is not incompatible with Australian standards, but where there is no right to an appeal or a retrial in the case of the in absentia conviction in circumstances where a retrial or an appeal would ordinarily be available under Australian law or practice.
406 It would also be appropriate, in a case such as the present where the question of the sentence imposed in the Requesting State is raised by the requested person, to consider whether the sentence imposed in absentia (and in a case such as the present confirmed on appeal in absentia) would be considered excessive by Australian sentencing standards.
407 By such a decision-making process a person convicted in absentia in Indonesia may be extradited from Australia, as the Treaty by Art 11 and the Act by s 10 recognise. But neither of those provisions mandate extradition where a person has been convicted in absentia in the Requesting Country, and it remains necessary to Australia to consider, under Art 9(2)(b), whether, having regard to the Australian standards, extradition would be considered unjust before balancing or weighing the other factors referred to in Art 9(2)(b).
408 The Att B analysis: In this case Att B took some of these steps but, in my view, failed adequately to consider (save in respect of the sentence imposed) what the position by Australian standards was in respect of a number of matters against which standards the Indonesian law or practice concerning in absentia convictions and appeals could be compared to the Australian standards in order to ask the right question about whether extradition would be unjust.
409 In Att B, the principal analysis of the relevance of the in absentia conviction in Indonesia was provided at [185]-[214] (although much of the text between [205] and [214] has been redacted to protect the privilege of the Minister in that material):
Departmental Comment
Introduction
185. The analysis below addresses the right to a fair trial and fairness of Ariawan’s conviction in absentia by reference to Indonesian law, Australian law (including case law on extradition to New Zealand) and international law. In summary, the analysis below concludes that:
• Ariawan has not established that he has been prejudiced by reason of his race such that his extradition would be unjust, oppressive or incompatible with humanitarian considerations
• …
• …
• …
• although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of Ariawan’s conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations.
Conviction in absentia
186. It is clear that Ariawan was convicted in his absence in Indonesia. Ariawan claims that his conviction and sentence are a result of prejudice on the part of Indonesian authorities on account of his Chinese ethnicity.
187. Ariawan’s claim of prejudice on account of his ethnicity is discussed above in the analysis of an extradition objection under s 7(c) of the Act. The Department does not accept that the circumstances of Ariawan’s trial in absentia and the fact that the trial proceeded in Ariawan’s absence itself establishes that he has been prejudiced because of his Chinese ethnicity.
188. The Department notes that Australia’s extradition Treaty with Indonesia expressly provides for extradition where a person has been convicted in their absence. Article 11(2)(b) sets out the documents that must accompany a request for extradition for a person who has been convicted in their absence.
189. In terms of the general unfairness or otherwise of Ariawan’s conviction in absentia, it is clear that such convictions are not commonplace in Indonesia and only occur under Indonesian law in certain limited circumstances for certain offences, which include corruption. Indonesia has advised Ariawan’s case fell within those circumstances and that his trial took place in accordance with Indonesian law. In this respect, the trial cannot be said to have been unfair under Indonesian law by reason of Ariawan’s absence alone.
190. As mentioned at paragraphs 77-78 above, Professor Lindsey has advised that… The Jakarta District Court considered it appropriate to proceed on this basis in Ariawan’s case, and Indonesian authorities have advised the summons procedure was conducted in an ‘optimum and proper manner’ (see page 3 of Attachment E3). In this respect, it appears that the decision to proceed with the criminal trial against Ariawan in his absence was in accordance with Indonesian law.
191. The Department is not in possession of any information which positively establishes that Ariawan was aware of the proceedings in Indonesia and chose to deliberately absent himself. However, it is open to you to draw inferences about Ariawan’s awareness of the circumstances from the following facts:
• Ariawan worked for Bank Surya in a senior position, including for at least a five year period as the President Director, and would have been likely to have some awareness of the dire financial position of the bank before he arrived in Australia in 1999 as it had been declared a ‘suspended bank’ in April 1998 and ordered to cease operations in August the same year
• The Bank was the recipient of Bank Indonesia Liquidity Assistance while Ariawan occupied the position of President Director
• Indonesian media commenced reporting on Bank Surya’s collapse and potential criminal investigations in 1998.
192. The Department separately notes that Ariawan changed his legal name in Australia which took effect from the day after the District Court handed down its decision on 13 November 2002.
193. In the Department’s view, given the above and in light of the publicity surrounding the criminal investigations in relation to the Bank’s managers, it is somewhat difficult to accept that Ariawan had absolutely no knowledge of at least the law enforcement interest in him.
194. The case law on waiving one’s right to be present in the context of extradition for convictions in absentia and, specifically whether a person's voluntary absence means they have in fact waived their right to be present, is not settled. However, in accordance with recent case law, the more relevant question is not whether a person has voluntarily absented himself or waived his right to be present at his trial, but whether, in all the circumstances, the trial that did take place can be regarded as fair despite the fact that the defendant was not in attendance. In Hellenic Republic v Tzatzimakis [2003] FCAFC 4, Hill J notes (at [53]) that the decision of the House of Lords in Jones v R [2002] UKHL 5 provides a useful discussion of the European and common law position regarding trials in absentia. In that case, Lord Rodger noted (at [55]) that the European Court of Human Rights, in dealing with cases where the right to a fair trial under Article 6 of the European Convention on Human Rights is said to have been breached, in particular in circumstances where a person has been convicted in their absence, ‘has been at pains’ to emphasise that it is not the court’s function to elaborate a general theory in this area (of convictions in absentia), recognising that states have different rules of procedure and the means by which they secure a fair trial in the absence of the defendant will also vary. Indeed, Finkelstein J later noted in Tzatzimakis (at [83]) that in many civil law countries an accused is entitled but not actually obliged to attend his trial and that, if he has notice but does not attend, he may be convicted in his absence.
195. In accordance with the views of the House of Lords in Jones, what is important in a trial that has occurred in a person’s absence is that the trial in the whole of the circumstances was fair, including that the trial judge exercised proper discretion in determining to proceed with the trial, the conduct of the trial itself (and if relevant, directions to the jury) and that the person has an opportunity to appeal the conviction both in fact and law (per Lords Bingham at [6], Hoffman at [20] and Rodger at [76]).
196. The Department notes that Indonesia and the Australian Embassy in Jakarta has provided information about the appeal process which would be available to Ariawan, discussed below at paragraphs 225-235.
Australian case law on the right to a fair trial
197. As a preliminary point, the Department notes that convictions in a person’s absence are rare in Australia and generally only occur for summary offences or where the defendant has deliberately absented himself from proceedings after having appeared initially.
198. In seeking to rely on case law concerning extradition from Australia to New Zealand, Ariawan appears to equate his conviction in absentia and the surrounding circumstances with an unfair trial and, on this basis, submits that his extradition should therefore be refused.
199. In relation to what might constitute an unfair trial, Ariawan has asked you to consider Australian case law on the right to a fair trial in domestic proceedings in Australia which, he claims, includes the right to be present. In Dietrich the High Court held that the right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. Mason CJ noted that ‘[t]he right is manifested in rules of [Australian] law and of practice designed to regulate the course of the trial’ (at [7]) but that ‘[t]here has been no judicial attempt to list exhaustively the attributes to a fair trial’ (at [8]).
200. In terms of the application of Australia's international obligations, Mason CJ went on to note that ‘[r]atification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed’ (citations omitted) (at [17]).
201. Deane J also noted that ‘[t]he fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law’ (at [1]) (Department’s emphasis).
202. Applying this principle in (the applicant’s) case, on the basis of information provided by Indonesia, it appears that the trial was conducted according to law in Indonesia.
Australian law relating to extradition to New Zealand
203. Australia’s Extradition Act contains a separate simplified regime which governs extradition of persons from Australia to New Zealand. This regime is commonly known as a ‘backing of warrants’ scheme where a magistrate indorses a NZ warrant thereby authorising the execution of the warrant in Australia by an Australian police officer. A magistrate then issues a surrender warrant for the person. The Attorney-General plays no part in this regime. Extradition objections and other statutory requirements contained in the Extradition Act applying to extradition requests from other countries do not apply to this regime. Under s 34(2) of the Extradition Act a magistrate must issue a surrender warrant unless the person satisfies the magistrate that it would be ‘unjust, oppressive or too severe a punishment to surrender the person to New Zealand’. This statutory ground for refusing extradition to New Zealand is broadly similar to Article 9(2)(b) of the Treaty which provides that extradition may be refused where is would be ‘unjust, oppressive or incompatible with humanitarian considerations’.
204. While the case law concerning extradition between Australia and New Zealand as cited by Ariawan above is not directly applicable in the circumstances of his case, it is open to you to take into account Australian judicial consideration of circumstances in which a trial may be said to be unjust or unfair, and where extradition to New Zealand may have been refused on such grounds.
410 At [185], the analysis sets out to address the “right to a fair trial and fairness of [the first respondent’s] conviction in absentia by reference to Indonesian law, Australian law…and international law”. The Minister was told in the last bullet point in [185] that:
although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of Ariawan’s conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations.
(Emphasis in original.)
The analysis to support this advice is to be found in the paragraphs that follow [185].
411 The topic of “Conviction in absentia” is discussed particularly at [186]-[196] of Att B. The discussion in some of these paragraphs deals not just with the question of conviction in absentia, but also with conviction on the basis of prejudice against the first respondent on account of his Chinese ethnicity: for example, at [186] and [187].
412 The analysis in [189] makes it clear that, in terms of general unfairness or otherwise of the conviction in absentia, “it is clear that such convictions are not commonplace in Indonesia”. The point seemingly being made here is that, according to Indonesian law, the trial that secured the convictions in absentia cannot be said to have been unfair. Indeed this is the precise conclusion in the last sentence of [189] where it is stated:
In this respect, the trial cannot be said to have been unfair under Indonesian law by reason of Ariawan’s absence alone.
This analysis may be considered generally relevant, but it says nothing about how the conviction would be assessed according to Australian standards.
413 The subsequent discussion, particularly that at [194], does not deviate from this focus on the fairness of an in absentia conviction. In that paragraph reference is made to case law where the point of the discussion is to the effect that in absentia convictions are not necessarily to be considered unfair. Whatever the merits of the discussion in the analysis at [194] and [195], the analysis simply does not enter upon any discussion as to how an in absentia conviction for an offence, such as that the first respondent had been convicted of in his absence in Indonesia, would be considered by Australian standards.
414 Attachment B then specifically deals with the topic, “Australian case law on the right to a fair trial” at [197]-[202]. At [197], as a “preliminary point”, it is noted that convictions in a person’s absence are “rare in Australia” and generally only occur for summary offences or where a defendant has deliberately absented himself from proceedings after having appeared initially. The point is then made in [198] that the first respondent “appears to equate his conviction in absentia and the surrounding circumstances with an unfair trial and, on this basis, submits that his extradition should therefore be refused”. The point is made at [199] that the first respondent has relied on Australian case law, including decisions such as Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 in the High Court, to say that his trial was unfair because he was entitled to appear at it. The analysis at [200] and [201] is to the effect that the extent of a person’s right to a fair trial under Australian law has not been exhaustively determined by case law.
415 However, nowhere in the analysis at [197] to [202] is it said, or able fairly to be implied, that by Australian standards the conviction of a person in their absence of an offence such as that for which the first respondent had been convicted in his absence in Indonesia, would not only be “rare”, but could not happen unless the person personally charged had absconded to avoid trial. Indeed, the opposite conclusion might be drawn from the analysis provided, namely, that because a person’s right to a fair trial has not been exhaustively determined by Australian case law, it cannot be said with any degree of assurance that an in absentia conviction of such an offence in Australia, where they had not been personally charged and had not absconded to avoid trial having been charged, would be considered unjust.
416 The only thing said explicitly on the question in Att B, is in [202], where the analysis is that:
Applying this principle [namely that a person should not be convicted of a crime except after a fair trial according to law as noted by Deane J in Dietrich]…on the basis of information provided by Indonesia, it appears that the trial was conducted according to law in Indonesia. [Emphasis in original.]
This statement again leaves unaddressed the question of fairness according to law in Australia.
417 It is apparent from those passages that there has been no attempt in Att B to address directly or expressly whether, according to Australian standards, the convictions of the first respondent in Indonesia in absentia in the particular circumstances described, for the offence in question, would be considered unjust by Australian standards.
418 In the subsequent discussion, at [203]-[204], under the heading “Australian law relating to extradition to New Zealand” the position is no further advanced, save to observe obliquely, by reference to Australian case law concerning s 34(2) of the Extradition Act, that it is “open” to the Minister to “take into account Australian judicial consideration of circumstances in which a trial may be said to be unjust or unfair, and where extradition to New Zealand may have been refused on such grounds”. That observation, in my view, is tantamount to saying that such Australian judicial consideration may also be disregarded.
419 Again, nothing is said in the analysis of the New Zealand cases in this passage to suggest that under Australian criminal law and practice the in absentia conviction of a person of an offence of the type for which the first respondent had been convicted in his absence in Indonesia in the particular circumstances described above where the person had not been served with the initiating process can hardly be imagined, let alone possible.
420 The only analysis thereafter provided in Att B that appears to address directly the assessment of the in absentia conviction of the first respondent by Australian standards in the particular circumstances described, is in the section of the analysis headed, “Conclusion on Article 9(2)(b)” at [255] and [256], as follows:
255. For the reasons set out above, the Department considers that Ariawan’s claims in respect of his personal circumstances, the fairness of his trial generally and prejudice on the basis of his Chinese ethnicity, his conviction in absentia, the length of the sentence of imprisonment imposed on him and his limited appeal rights and the risk of HIV/AIDS in prison in Indonesia do not, individually, mean his extradition would be unjust, oppressive or incompatible with humanitarian considerations so as to warrant the exercise of your discretion to refuse surrender. The Department acknowledges that it is open to you to afford some weight to the assertions that Ariawan’s trial was not conducted in accordance with, and his sentence is excessive by, Australian standards. However, the Department considers the fact that it will be open to Ariawan to apply for a PK review of the Indonesian court decision on his return to Indonesia substantially attenuates the consequences of his conviction in absentia.
256. Taking into account the totality of the circumstances of this case including:
• the very serious nature of the bank fraud/corruption offence of which Ariawan has been convicted
• Indonesia’s interest in pursuing those responsible for the commission of major corruption crime in Indonesia
• Ariawan’s personal circumstances
• the circumstances of Ariawan’s conviction in absentia
• the length of the sentence of imprisonment imposed upon him
• the nature of the appeal rights available to Ariawan
• differences in the conduct of criminal justice processes in Australia and Indonesia
• the lapse of time since the offending conduct occurred, and
• the level of risk of exposure to HIV/AIDS in Jakarta prisons
the Department considers it open to you to conclude that it would not be unjust, oppressive or incompatible with humanitarian considerations to determine to surrender Ariawan to Indonesia.
421 It will be observed that, in [255], reference is made at the outset to the personal circumstances claimed by the first respondent as well as the “fairness of his trial generally” and also “his conviction in absentia”. It is then stated:
The Department acknowledges that it is open to you to afford some weight to the assertions that Ariawan’s trial was not conducted in accordance with, and his sentence is excessive by, Australian standards.
422 The observation is then made that, by virtue of the process called PK review available in Indonesia, some attenuation of the consequences of the in absentia conviction may be possible in Indonesia.
423 The point is again, however, that in this conclusion the analysis does not plainly identify the in absentia conviction of the first respondent in the circumstances described in which he was convicted in absentia in Indonesia would not be countenanced by Australian law and practice, let alone be considered possible. The analysis simply is that “some weight” may be given to the “assertions” that the trial was not conducted in accordance with Australian standards and the sentence was “excessive” by Australian standards. In my view, this is, at best, an equivocal statement that has the effect of understating or downplaying the significance of Australian standards relating to in absentia convictions for offences of the type which the first respondent had been convicted in Indonesia in the circumstances described. It leaves open the possible view that an in absentia conviction in such circumstances in Australia could be countenanced or considered possible and fair by Australian standards, when plainly it would not be.
424 This point is confirmed when [256] is considered, as it provides no particular emphasis to the fact that the in absentia conviction of the first respondent in Indonesia in the circumstances described would be considered unjust by Australian standards.
425 In the event, the Minister was not unequivocally advised that in the course of forming a value judgment as to whether the first respondent’s extradition to Indonesia would be unjust he may regard the various factors listed in Art 9(2)(b), but that when considering the in absentia conviction circumstance he needed to ask if it would be considered unjust by Australian standards, which plainly it would be, before concluding by weighing of all the relevant factors and making a final value judgment.
426 It is not at all clear to me whether the Minister’s s 22 determination might have been different if the Australian standards concerning the fairness of in absentia convictions of an offence of the type the first respondent had been convicted of in his absence in Indonesia, had been clearly set out in Att B. What is clear to me, however, is that the failure to address these factors clearly in Att B carries with it the real risk that the Minister was constructively misled about the decision-making process required of him under s 22(3) and Art 9(2)(b). Rather than the Minister asking whether the in absentia conviction in Indonesia was apparently unjust by Australian standards, and then, taking into account the nature of the offence and the interests of Indonesia, making a final value judgment as to whether extradition of the first respondent to Indonesia would be unjust, the first step concerning Australian standards was compromised.
427 I acknowledge that the question of in absentia convictions in a requesting state is a vexed one under Australian extradition law. There is no doubt that there are a number of countries with whom Australia has extradition treaties whose systems of criminal justice are different from those in Australia and where the trial processes and sentencing regimes are different from those that operate in Australia. That does not mean extradition must be refused. The Treaty between Australia and Indonesia by Art 9(2)(b) enables Australia and Indonesia to weigh competing factors when deciding whether extradition should be considered unjust. The bar to an extradition that would be unjust has been at the root of extradition law in Australian law since at least the passage of the Imperial Fugitive Offenders Act 1881. This factor is designed not only to preserve Australia’s own sense of what is just, but also designed, as emphasised by Kirby J in Foster, to protect the interests of individuals whose extradition has been sought. It requires Australian standards, reflected in relevant law or practice, to be regarded. In my view, notwithstanding the Minister’s reliance on the Canadian authorities of Re Kindler and Mellino, Australian standards are directly relevant to the exercise of judgment about what is unjust, oppressive or incompatible with humanitarian considerations, as the dicta of Gaudron and Hayne JJ in Foster suggests. Doctrines of international reciprocity cannot be relied upon to undermine the requirement to regard these concerns by reference to Australian standards under Australian law. In my view, there was a failure here, reflected in the s 22 submission given to the Minister, to fully appreciate the nature of the assessment required under the Extradition Act and Art 9(2)(b) where the requested person has been convicted in absentia in the Requesting State.
428 For these reasons, I consider that the Minister constructively failed to take into account relevant considerations by assuming the s 22 submission correctly informed him as to his decision-making task when it did not ask whether the in absentia conviction of the first respondent in Indonesia in the circumstances described would be considered unjust by Australian standards, for the purpose of finally deciding whether the Minister was satisfied, taking into account the nature of the offence and the interests of Indonesia, that the surrender of the first respondent would be unjust, oppressive or incompatible with humanitarian considerations.
429 For these reasons, the Minister’s appeal on the in absentia grounds must fail.
unreasonableness grounds
430 Minister’s submissions: The Minister accepts that in addressing the question of Wednesbury unreasonableness, the primary judge made no error in setting out the correct test in his reasons, at [83]-[87]. The Minister submits that to constitute an unreasonable decision, in the Wednesbury sense the impugned decision must be “verging on an absurdity”. In particular, the Minister refers to what Gummow A-CJ and Kiefel J said in SZMDS, at [40], (citing Gummow and Hayne JJ said in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12, at [37]-[38]) namely:
the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds
431 The Minister submits that where there is no prohibition against surrender, but rather there is statutory contemplation of surrender in the circumstances, and the decision-maker exercised a statutory discretion, a Wednesbury unreasonableness challenge cannot succeed.
432 The Minister further submits that because the “satisfaction” required by s 22, when read with Art 9(2)(b), is in respect of matters described in qualitative terms which call for value judgments about which reasonable minds may differ, a challenge for Wednesbury irrationality is difficult to sustain.
433 The Minister also points to the circumstance identified in Art 9(2)(b) where a question of unjustness is to be assessed “also taking into account the nature of the offence and the interests of the Requesting State” and submits in effect that no, or insufficient, regard was paid to these two factors.
434 The Minister further contends that no regard was had to the fact that Indonesia had declared the first respondent a fugitive after his trial and conviction.
435 The Minister also, by ground 7, challenges the assumption or finding by the Court that the first respondent was ignorant of the charges against him.
436 First respondent’s submissions: In the first respondent’s outline of submissions in response to those of the Minister, the first respondent submits that when regard is had to [99] of the reasons of the primary judge, his Honour’s conclusion is evident. That is, having regard to the facts of the case, no rational or logical decision-maker could have come to the conclusion that extradition of the first respondent would not be unjust or oppressive or incompatible with humanitarian considerations.
437 Consideration: In dealing with the grounds of appeal that raise the relevant/irrelevant grounds considerations, the proper construction of s 22(3), read with Art 9(2)(b) of the Treaty, has been discussed at some length. In the course of so doing I have emphasised that, in my view, the Minister in determining whether the first respondent should be surrendered to Indonesia, was entitled, in effect, to weigh the factors of the nature of the offence and the interests of the Requesting State with the circumstances of the case (principally the in absentia conviction circumstances) in forming a value judgment whether extradition of the first respondent would be unjust.
438 To the extent that the primary judge determined that the surrender decision made by the Minister under s 22 of the Extradition Act was unreasonable on Wednesbury unreasonableness grounds because, as explained at [96] of his reasons:
the trial and subsequent appeal were conducted in absentia and “were not fair by Australian standards”;
the PK review process would not deliver a fair appeal or retrial to the first respondent by Australian standards and that was unjust or oppressive and also incompatible with humanitarian considerations; and
that while a case may arise where, despite such a finding, it would nonetheless not be an unreasonable exercise of discretion for the Minister to not refuse extradition, that was not this case: the first respondent faced imprisonment for the rest of his life following a trial and appeal conducted in his absence and without his knowledge,
it seems to me the primary judge failed sufficiently to accept that it was open to the Minister, before finally forming the value judgment that extradition would be unjust, to take account of the nature of the offence and the interests of Indonesia.
439 In other words, the exercise of the s 22 determination power by the Minister is not open to challenge on the grounds of it being an unreasonable decision, in the Wednesbury sense, where the factors that must be regarded by the Minister before deciding that extradition would be unjust include not only the circumstances of the case (including the in absentia conviction) but also the nature of the offence and the interests of Indonesia.
440 As I have explained above, the value judgment to be formed and the weighing process permitted and required by the terms of Art 9(2)(b) may not be an easy one, but it is the process that the parties to the Treaty have agreed and to which the Act is subject.
441 To the extent then that primary judge confined his assessment of whether or not the Minister’s decision to surrender the first respondent to Indonesia was unreasonable on the grounds expressed in [96] and [99] of his reasons, I consider that the primary judge erred, as the Minister contends. These grounds of the appeal should be upheld.
442 Nothing in the further, second notice of contention set out above and relied on by the first respondent indicates a different conclusion. It is not open to this Court to say, whether to the extent the circumstances provided for in Art 9(2)(b) did, or did not, exist in respect of the first respondent, that the decision made was unreasonable. That remains a matter for the Minister.
443 However, as I have found in relation to the relevant and irrelevant considerations grounds of appeal above, the Minister, in the course of exercising the s 22(3) power, having regard to the circumstance described in Art 9(2)(b) of the Treaty, constructively failed to have proper regard to whether the in absentia conviction of the first respondent in Indonesia was unfair by Australian standards. For this reason, the exercise of the s 22 power miscarried by reason of the jurisdictional error involved in so doing.
444 In these circumstances, the challenge in ground 7 to the further positive finding by the primary judge that the first respondent was unaware of the charges and proceedings against him or unaware of their likelihood and relied on this finding in the course of the unreasonableness finding, falls away as an issue. It might be observed, however, in passing that perhaps the most that could be said in the circumstances, on the information before the primary judge, was that there was no evidence that the first respondent knew of the proceedings against him or was aware of their likelihood. The record and the process of evidence taking in the proceeding below did not, in my view, otherwise address the question of what the first respondent positively either knew or was aware.
notice of contention: breach of iccpr
445 First respondent’s submissions: The first respondent notes that the primary judge held that the Minister was obliged to take into account Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR) and that the first respondent’s trial and conviction in absentia contravened or was inconsistent with Art 14(3)(d) and Art 14(3)(e) of the ICCPR; and that he had a legitimate expectation that the ICCPR would be considered by the Minister. The first respondent also notes that the primary judge held that the Minister did not disregard the consideration, which was expressly referred to in Att B.
446 The first respondent also notes, however, that the primary judge held that Australia’s obligations under the ICCPR are not one of the circumstances to which the Minister is required to have regard under s 22(2).
447 While agreeing that the primary judge found that the Minister was required to take into account Australia’s obligations under the ICCPR and whether the surrender of the first respondent would place Australia in breach of those obligations, the first respondent contends that the Minister disregarded the relevant consideration for the following reasons:
(1) The advice in Att B concerning Australia’s international obligations relating to a fair trial was redacted. Therefore, the Court does not know whether the Minister was advised that by surrendering the first respondent, Australia would or would not violate its international obligations.
(2) If the Minister was advised that by surrendering the first respondent, Australia would be in violation, it is unreasonable that the Minister would have determined that surrender was appropriate.
(3) If the Minister was advised that surrender would not place Australia in breach that advice was wrong and the Minister must have disregarded a relevant consideration.
448 The first respondent further submits that whether surrender would involve a breach of Australia’s international treaty obligations was a circumstance the Minister was required to consider in exercising his discretion under s 22(3)(f) of the Extradition Act, being a provision which gives the Minister a general discretion to refuse surrender. The first respondent had a legitimate expectation the Minister would take into account whether surrender would involve a breach of Australia’s international treaty obligations and so this is an issue which should have been addressed in the departmental advice as a relevant circumstance to be considered under s 22(3)(f) by the Minister.
449 The first respondent says that by surrendering him to Indonesia, Australia will breach its obligations under the ICCPR because, first, by ratifying the ICCPR and the First Protocol, Australia has agreed to guarantee to all persons within its territory the rights contained in the Covenant; and the first respondent is present in Australia and an Australian citizen.
450 Secondly, in respect to the interaction between the ICCPR and extradition, the Human Rights Committee has stated that:
If a State party extradites a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant. [Footnote 16] Kindler v Canada Communication No. 470/1991 UN Human Rights Committee [13.1]
In this case the first respondent submits his rights have already been violated by Indonesia and surrender will reinforce the violation because he does not have a right to a retrial. Thus, this is not a case of assessing risk. The first respondent refers to Soering v The United Kingdom, Application No 14038/88 ECHR (7 July 1989) (Soering), where the Human Rights Committee observed that Contracting Parties to the Convention have responsibility for “all and any foreseeable consequences of extradition suffered outside their jurisdiction”, at [86], and that a decision by a Contracting State to extradite a fugitive may constitute a breach of the responsibility of the State under the Convention at [91]. The first respondent says it is clearly a foreseeable consequence of extraditing him that his rights under the Covenant will be violated. The first respondent accepts that a trial in absentia is permissible in certain circumstances – for example, where the accused is present during the trial but disrupts the proceedings or has been informed of the trial but declines to be present and where the accused is entitled to a retrial – but says those circumstances do not exist in this case. The first respondent refers to a number of instances where rulings have been made as to whether a trial in absentia was permissible having regard to the exceptions, none of which need to be cited for present purposes.
451 Thirdly, in determining whether authorities have properly and sufficiently informed an accused of the trial the Minister has referred to Salikh v Uzbekistan, where the State party failed to make sufficient efforts to notify the accused, a position the appellant says is unlike this case where the Indonesian authorities did make efforts to notify the first respondent. The first respondent says, however, that the jurisprudence of the Human Rights Committee in the European Court of Human Rights is clear and that notification of a prosecution is a “legal act of such importance that it must be carried out with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused’s rights” and “vague and informal” knowledge will not suffice: Shkalla at [70]; Somogyi at [56]; T v Italy; Colozza v Italy at [28].
452 The first respondent notes that the Minister submits that Australia’s non-refoulement obligations do not include obligations with respect to the rights under Art 14 of the ICCPR and instead Australia’s obligations extend only to the rights under Art 6 and Art 7, referring to Kwok v Australia, Communication No 1442/2005 HRC (23 October 2009) (Kwok v Australia). The first respondent says the Human Rights Committee in this case did not need to consider whether a violation of Art 14 could be encompassed within Australia’s non-refoulement obligations, at [9.8]. The first respondent notes the Minister relies in part on [12] of the United Nations Human Rights Committee, General comment no. 31 [80], The nature of the general legal obligation imposed on State Parties to the Covenant 29 March 2004 CCPR/C/21/Rev. 1/Add. 13, but says this does not restrict non-refoulement obligations solely to Art 6 and Art 7 and that the test is whether there is a real risk of irreparable harm.
453 The first respondent also refers to Soering where the main issue concerned the potential violation of Art 3 of the European Convention in relation to the death penalty but which also responded to the claim that Art 6 of that Convention was violated because of the absence of legal aid in Virginia, where the requested person would be returned following extradition, and observed that, at [113]:
The right to a fair trial in criminal proceedings, as embodied in Article 6 (art. 6), holds a prominent place in a democratic society… The Court does not exclude that an issue might exceptionally be raised under Article 6 (art. 6) by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.
The first respondent notes that Soering was referred to in Regina v Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant) [2004] UKHL 26 at [9]-[10] by Lord Bingham as constituting authority for the principle that convention rights in relation to a fair trial may be relied on in “foreign cases” – that is cases where it is claimed that the conduct of a State in removing, by expulsion or extradition, a person from its territory will lead to a violation of the person’s convention rights in another territory and that in such cases “it must be shown” that the person has suffered or risks suffering a fragrant denial of a fair trial in the receiving state, at [24].
454 The first respondent submits that Australia’s non-refoulement obligations include the extradition of a person who has or will suffer a flagrant violation of a right to a fair trial. If the first respondent is extradited to Indonesia he will be permanently deprived of his fundamental right to be tried in his presence and to examine and cross-examine witnesses as required under Art 14.
455 Minister’s submissions: The Minister first notes that the Treaty in this case has been given effect in Australian law under the Extradition Act. Thus, the Act and Treaty provides for extradition of persons convicted, including “finally” in absentia and thus, extradition in such a case is not inconsistent with Australia’s obligations under the ICCPR.
456 The Minister also notes that it is not in issue that the Minister was advised on the question of Australia’s non-refoulement obligations, but that the first respondent submits the Minister must have been advised that surrender of the first respondent would not breach those obligations. The Minister notes the primary judge found the Minister did not disregard the ICCPR in his reasons, at [37].
457 Thus, the Minister says it is not the first respondent’s case that the Minister failed to consider whether Australia breached its non-refoulement obligation.
458 By those facts the Minister says the notice of contention and grounds of review 1 and 2 before the primary judge were defeated as to the process of reasoning: see the primary judge’s reasons at [27]-[28].
459 The Minister says the first respondent instead contends that surrender would breach the non-refoulement obligation and that the Minister disregarded that fact: which is contention (a). The Minister says this is merely a complicated way of saying that the Minister was wrongly advised on the point. In other words the first respondent seeks the drawing of an inference as to the content of privileged advice and a ruling that the inferred advice was wrong.
460 The Minister further submits that, even if it were the fact that extradition would breach Australia’s non-refoulement obligations under the ICCPR, it is still not shown how this would result in success for grounds of review 1 and 2. Neither of those grounds relied on Wednesbury unreasonableness.
461 The Minister further contests the first respondent’s contention that Australia’s non-refoulement obligation under the ICCPR extends to prohibiting the extradition of a person whose right to a fair trial under Art 14 has been breached in the Requesting State. The Minister says this is incorrect as a matter of international law, without conceding that any breach has in fact occurred.
462 The Minister says non-refoulement obligation is not explicit in the ICCPR, unlike the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was opened for signature 10 December 1984 and entered into force 26 June 1987 which contains an express non-refoulement obligation in Art 3, but Australia accepts that it is implied under Art 2 in conjunction with the most serious breaches of human rights being Art 6 (the right to life) and Art 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment). Article 2 of the ICCPR relevantly provides that:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The Minister emphasises the words “within its territory and subject to its jurisdiction”.
463 The Minister says the basic principle accepted by Australia is that the obligations in the ICCPR are primarily territorial. States are required to guarantee ICCPR rights to persons within their territory and subject to their jurisdiction, but are not required to ensure compliance by other States and other jurisdictions. Exceptionally, in the context of Art 6 and Art 7, Art 2 has been read to incorporate a non-refoulement obligation in circumstances where a State proposes to remove a person from its jurisdiction and there is a real risk that his or her rights under those Articles will be violated in the receiving jurisdiction. This constitutes a limited and extraordinary exception to the general jurisdictional position under Art 2.
464 The Minister notes there are State Parties to the ICCPR, notably the United States of America, which do not accept the existence of non-refoulement obligations at all, even in relation to those fundamental rights. While Australia has accepted a non-refoulement obligation in relation to Art 6 and Art 7, it has repeatedly asserted that such an obligation does not extend to Art 14, for example in A.R.J. v Australia Communication No 692/1996 HRC (28 July 1997) (A.R.J. v Australia), [4.12] and C v Australia, Communication No 900/1999 HRC (28 October 2002) [4.11]. The Minister submits the Committee has consistently declined to rule on the question when raised by applicants in individual communications, as for example in A.R.J. v Australia; Kwok v Australia [9.8]; Judge v Canada, Communication No 829/1998 HRC (5 August 2002) (Judge v Canada); Alzery v Sweden, Communication No 1416/2005 HCR (25 October 2006) [11.9].
465 The Minister submits there are cogent reasons for maintaining the current scope of the non-refoulement obligation. The fact that human rights might not be as well respected in another State, as in Australia, should not of itself give rise to a non-refoulement obligation. This would deprive the primarily territorial scope of Art 2 of real meaning by effectively requiring Australia to ensure that the full extent of rights in the ICCPR is guaranteed to persons within another jurisdiction. See also the comments Judge v Canada, Individual Opinion (Chanet).
466 The Minister says that the first respondent asks the Court to find that a non-refoulement obligation arises in relation to Art 14 on the basis that the Committee has not ruled it out and that this is wholly the wrong approach, the definitive point being that the Committee has never stated that such an obligation exists. The Minister says this is critical because the implied nature of the obligation means that its scope should not be readily extended, so rather a domestic court should look to the practice of the Committee and State Parties to the ICCPR and refrain from interpretation which would create new obligations to which the parties have not consented.
467 The Minister says that a fortiori on judicial review the Court should assess the reasonableness of the Minister’s discretion in a manner that is consistent with Australia’s recognised obligations under international law, the interpretation of which is guided by relevant Committee commentary and jurisprudence.
468 Furthermore, the only point at which the question might arise is under the general discretion in s 22(3)(f) of the Extradition Act, which discretion is subject to s 10 and to the Treaty. This contemplates extradition of persons convicted finally in absentia without distinction as to the service of notice and rights of review.
469 In addition, the Minister submits extending the obligation to other rights in the ICCPR would, in effect, deprive States of their sovereign right to deport unlawful non-citizens and severely hamper State’s ability to comply with obligations under bilateral extradition treaties. In this the Minister refers to the view of human rights law experts within the United Nations Human Rights Council, UN Human Rights Council: Report of the Working Group on Arbitrary Detention, 9 January 2007, A/HRC/4/40 para 46.
470 The Minister submits that in summary the first respondent asks the Court to:
articulate new international law in disregard of the disinclination of the Committee itself to do so; indeed in a manner which has been expressly rejected by States Parties to the ICCPR and other international experts; and
rule that it was unreasonable in the Wednesbury sense for the Minister to fail to appreciate that (new) law and to fail to exercise his discretion on that basis to refuse surrender.
471 The Minister submits that all this is tantamount to ruling that the Minister has acted unreasonably in making a decision that is consistent with the jurisprudence of the Committee (being the treaty body that State Parties to the ICCPR look to for guidance on the interpretation of their obligations under the Covenant).
472 The Minister submits it is not open to the Court to take this approach, further for the reasons set out in relation to appeal ground 6 the Court should not rely on the jurisprudence of the European Court of Human Rights.
473 Consideration: As noted in relation to the submissions of the first respondent, the advice received by the Minister in Att B concerning Australia’s international obligations relating to a fair trial was redacted. It is not possible to say therefore what that advice was or whether the Minister was advised that by surrendering the first respondent Australia would or would not be in violation of its international obligations.
474 The way the first respondent deals with that factual circumstance, in pressing the notice of contention, is by assuming on the one hand that the Minister was advised that Australia would be in violation of its obligations or, on the other hand, that it would not be, the latter advice being demonstrably wrong. The first respondent points out that at least under s 22(3)(f) the Minister would be able to consider Australia’s compliance with international treaty obligations even if they are not referred to expressly in s 22(2).
475 The contention of the first respondent is that his rights have already been violated by Indonesia and that the act of Australia surrendering him to Indonesia will put Australia in breach of its non-refoulement obligations under Art 14 of the ICCPR.
476 I am satisfied that the submissions made on behalf of the Minister concerning Australia’s non-refoulement obligations under the ICCPR are well based and that no different position should be adopted by reason of decisions such as Soering made by the European Court of Human Rights.
477 I accept in particular that there is, at this point in time, at best disputed opinion as to whether Australia has any non-refoulement obligations with respect to the rights under Art 14 of the ICCPR, for the reasons advanced on behalf of the Minister.
478 It has not been demonstrated by the first respondent that the Minister failed to have regard to the international obligations Australia has under the ICCPR.
479 For these reasons, the grounds advanced in the notice of contention must fail.
conclusion and orders
480 For the reasons given above, the appeal should be dismissed and the appellant should pay the first respondent’s costs. The notice of contention should also be dismissed and the first respondent ordered to pay the appellant’s costs in respect of it.
I certify that the preceding three hundred and forty-four (344) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
Associate:
Dated: 15 February 2013
