FEDERAL COURT OF AUSTRALIA
MINISTER FOR JUSTICE (COMMONWEALTH)
ACTING MAGISTRATE MICHAEL PRICE (and another named in the Schedule)
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs, to be fixed in a lump sum.
3. If the parties agree on a lump figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders on or before 4 pm on 30 August 2018.
4. In the absence of any joint minute of proposed order, pursuant to paragraph 3 of these orders:
(a) on or before 4 pm on 6 September 2018, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.
(b) on or before 4 pm on 13 September 2018, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
5. In the absence of any agreement having been reached on or before 20 September 2018, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MORTIMER, WIGNEY AND LEE JJ:
1 This proceeding is an appeal from the orders of a single judge of this Court made on 10 November 2017 under s 21(2) of the Extradition Act 1988 (Cth). By those orders the primary judge confirmed the order of the third respondent (a magistrate acting in his personal capacity for the purposes of s 19 of the Extradition Act), and dismissed an application for judicial review under s 39(B) of the Judiciary Act 1903 (Cth). As we explain below, the judicial review application related to a notice given under s 16 of the Extradition Act by the then Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, the second respondent to the appeal.
2 The present appeal was commenced on 27 November 2017. The notice of appeal of this date was filed on behalf of the applicant by a solicitor. Shortly after the appeal was listed for hearing, the appellant’s solicitor filed a notice of ceasing to act and the appellant, who was being held in custody at the Long Bay Jail/Correctional Centre in New South Wales, became unrepresented. As the time approached for him to comply with the Court’s timetable for the filing of material in relation to the appeal, he contacted the Court and, referring to his circumstances, asked whether he was able to be provided with a referral for pro bono legal assistance. On considering the matter, the Court determined to make a referral to counsel for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). That referral was accepted, and subsequently the current solicitors on the record for the appellant agreed to act on his behalf and to instruct counsel who had accepted the referral pursuant to r 4.12. The Court expresses its gratitude to counsel and to the appellant’s solicitors for their assistance in this appeal, both to the appellant and to the Court.
3 As a result of the appellant securing legal representation the scope of his appeal altered. Appropriately, and in a way the Court commends, the first, second and fourth respondents (being jointly represented and the active contradictors on the appeal) have consented to the reframing of the appeal on behalf of the appellant, and have cooperated significantly in the preparation of the papers necessary for the appeal. This cooperation has meant that the appeal hearing has not been delayed, and all issues that should appropriately be raised on the appellant’s behalf and decided have been raised.
4 The notice of appeal now contains seven particularised grounds, although as the appellant acknowledges in his written submissions the primary error, from which he contends the other errors flow, is the “manner in which the Money Laundering Offence has been disregarded”.
5 For the reasons set out below the appeal must be dismissed.
6 The details of the background to this appeal are comprehensively set out in the reasons for decision of the primary judge: see Liem v Republic of Indonesia  FCA 1303. We do not repeat them here save for where it is necessary to provide context to the appeal or it is necessary to address the grounds of appeal.
7 The extradition request, which was made of Australia by Indonesia on 23 January 2017, concerned a series of events occurring in Indonesia between February 2011 and 2015. Those events gave rise to allegations in the extradition request to the effect that the appellant is alleged to have obtained some 134 cheques, totalling the equivalent of approximately AUD $13 million, from an Indonesian company of which he was described as the “President Director”. It is alleged in the charges filed in Indonesia that the appellant has used the proceeds of those cheques for himself or for his own benefit. We return to the details of the allegations which are said to support the extradition request below.
8 A provisional arrest warrant was issued for the appellant on 28 October 2016, and he was arrested on 19 December 2016. An Indonesian arrest warrant was not issued until after the appellant’s arrest in Australia: namely on 27 December 2016. The formal request for extradition under the Extradition Treaty between Australia and the Republic of Indonesia (done at Jakarta on 22 April 1992)  ATS 7 was made by Indonesia on 23 January 2017, and some four days later on 27 January 2017 a notice was issued under s 16 of the Extradition Act. This notice was subject to challenge in the proceedings before the primary judge under s 21 and on this appeal.
9 On 18 May 2017, the third respondent, a magistrate in the State of New South Wales, conducted a hearing pursuant to the terms of s 19 of the Extradition Act. The third respondent made a determination on the same day that the appellant was eligible for surrender in accordance with the terms of s 19 of the Extradition Act. On 31 May 2017, the appellant appealed pursuant to s 21 of the Extradition Act, and (as we have noted) also invoked s 39B of the Judiciary Act.
10 There was no dispute as to the primary judge’s jurisdiction to deal with both claims, and that is what his Honour did. His Honour conducted a hearing of the matter in August 2017 and as we have noted on 10 November 2017 his Honour pronounced orders and delivered reasons affirming the magistrate’s decision under s 19 of the Extradition Act and dismissing the appellant’s judicial review application.
The appeal to this Court
11 As before the primary judge, the appellant has invoked this Court’s jurisdiction under the Extradition Act, and its supervisory jurisdiction under s 39B of the Judiciary Act. Section 39B was relied upon in relation to a challenge to the s 16 decision. Section 21 of the Extradition Act was relied on for review of the s 19 magistrate’s decision.
12 In Cabal v United Mexican States (No 3)  FCA 1204; 186 ALR 188 at , French J (as his Honour then was) stated, relevantly:
In addition to the application for review under s 21, judicial review of the magistrate’s order was sought under s 39B(1A) of the Judiciary Act 1903. The grounds upon which that review is sought are largely subsumed in the grounds for review under s 21. Given the scope of that review as a rehearing de novo, nothing in my opinion is to be gained by entering upon any separate consideration of the grounds raised in support of the judicial review.
13 His Honour appears to recognise the existence of the Court’s jurisdiction under s 39B to review a decision made under s 19 of the Extradition Act, but in the circumstances in Cabal, considered there was an overlap with the case put by Mr Cabal under s 21 of the Extradition Act. Here, there is some overlap in relation to the s 19 decision, but the challenge to the s 16 decision could only be brought under the Judiciary Act.
14 The grounds of appeal to this Court centre, as the appellant submitted, on the treatment at each stage of the extradition process to date of what is called “the money laundering offence”. This is the offence identified in the extradition request, the s 16 notice and the s 19 surrender determination as (using this language or similar):
Money laundering contrary to Articles 3 and 4 of the Law Number 8 Year 2010 on the Prevention and Eradication of Money Laundering.
15 The extradition request, the s 16 notice and the s 19 surrender determination also concerned another alleged offence, namely:
Embezzlement contrary to Article 374 of the Indonesian Criminal Code.
16 The argument put forward on behalf of the appellant is that the money laundering offence has been erroneously treated as an “extradition offence” within the terms of the Extradition Act and the Extradition Treaty with Indonesia, when it was not capable of being so treated. This gives rise, it is contended, to three of the grounds of appeal directed at the s 16 notice: namely grounds 1A, 5A and 6, which contend:
1A. The Court erred in failing to find that the Third Respondent erred in determining that the offence of “Money Laundering contrary to Articles 3 and 4 of the Law Number 8 Year 2010 on the Prevention and Eradication of Money Laundering” (Money Laundering Offence) was an extradition offence for the purposes of the Extradition Act 1988 (Cth) (Act).
5A. The Court erred in failing to find that the Purported Notice was invalid.
6. The Court erred in not finding that the Third Respondent acted without jurisdiction because the notice issued under section 16 of the Act by the Second Respondent was issued outside of jurisdiction and a nullity.
17 The appellant contends there are further errors in the way the money laundering offence was treated in the statement of conduct, which constitutes one of the mandatory supporting documents to which a s 19 magistrate or judge must have regard, in determining whether a person is eligible for surrender in accordance with s 19 of the Extradition Act. The appellant also alleges that the inadequacy of the statement of conduct led to errors in the assessment of the existence of dual criminality in relation to the money laundering offence. These errors give rise to grounds 2, 2A, 2B and 3 of the notice of appeal, which contend (omitting the particulars):
2. The Court erred in holding that the “duly authenticated statement in writing setting out the conduct constituting the offence” required by section 19(3)(c)(ii) of the Extradition Act 1988 (Cth) and provided by the First Respondent, satisfied the requirement in section 19(2)(c) of the Act that, “if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia”.
2A. The Court erred in failing to find that the Third Respondent erred in finding that, if the conduct of the Appellant constituting the Money Laundering Offence had taken place in the State of New South Wales, that conduct would have constituted extradition offences in relation to that part of Australia.
2B. The Court erred in failing to find that the Third Respondent erred in finding that, if the conduct of the Appellant constituting the Embezzlement Offence had taken place in the State of New South Wales, that conduct would have constituted extradition offences in relation to that part of Australia.
3. The Court erred in holding that the extradition request contained a “statement in writing setting out the conduct constituting the offence” required by section 19(3)(c)(ii) of the Extradition Act 1988 (Cth).
18 The amended notice of appeal seeks a variety of relief, some in the alternative. It seeks the setting aside of the orders of the primary judge, the quashing of the decision of the s 19 magistrate and consequential orders pursuant to s 21(2A) of the Extradition Act that the appellant be released from custody. It also seeks orders in the nature of prerogative relief in relation to the decision and the notice under s 16 of the Extradition Act. The appellant also seeks, in the alternative, an order in the nature of habeas corpus requiring his release, and in the further alternative an order in the nature of mandamus directing the relevant authorities (whether the Attorney-General or the Minister for Justice) to cause the appellant to be released from prison.
19 Given the responsible position adopted by the respondents and their consent to the amendments to the notice of appeal on 24 May 2018, the Court made orders granting leave to the appellant to file the amended notice of appeal and it was on the amended notice of appeal that the matter proceeded. The Commonwealth Attorney-General was also joined by consent as the fourth respondent to the appeal, given that the present second respondent (the Minister for Justice for the Commonwealth) is not a portfolio which currently exists and, importantly, given the relief sought in relation to the s 16 notice, for which the Commonwealth Attorney-General is the repository of the power under s 16.
20 Before turning to summarise the parties’ arguments and set out the resolution of the appeal, it is necessary to set out the relevant provisions of the legislation.
relevant legislative provisions
21 There are, as the Court in Harris v Attorney-General (Commonwealth)  FCA 621; 52 FCR 386 at 389 described, four stages under the Extradition Act, all of which must be successful, before a person will be forcibly extradited. There are also, at each of these stages, provisions providing for a person to consent to her or his extradition but those provisions are not material to the appeal and need not be considered further. The four stages are:
(a) the commencement of the extradition process (see s 12 and s 16);
(b) the arrest and remand or bail of a person (see s 15);
(c) the determination of whether a person is eligible for surrender (s 19 and s 21);
(d) the discretionary decision of the Attorney-General of whether a person, if eligible, should be surrendered (s 22).
22 On receipt of an extradition request from a requesting state, the Attorney-General (or a Minister authorised to act in the place of the Attorney-General) must form an opinion about whether the person subject to the extradition request is “an extraditable person” before issuing a notice under s 16. Section 16 of the Extradition Act provides:
16 Notice by Attorney-General
(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received.
Person must be extraditable person in relation to extradition country
(2) The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.
(3) As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:
(a) a copy of the notice; and
(b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
(4) A notice given under subsection (1) is not a legislative instrument.
23 The phrase “extraditable person” is defined in s 6 of the Act:
6 Meaning of extraditable person
(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.
24 Critically, it will be noted that to be an extraditable person, the person must be accused or convicted of having committed a “extradition offence”, which is defined in s 5 of the Extradition Act:
extradition offence means:
(a) in relation to a country other than Australia—an offence against a law of the country:
(i) for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months; or
(ii) if the offence does not carry a penalty under the law of the country—the conduct constituting which is, under an extradition treaty in relation to the country, required to be treated as an offence for which the surrender of persons is permitted by the country and Australia; or
(b) in relation to Australia or a part of Australia—an offence against a law of Australia, or a law in force in the part of Australia, for which the maximum penalty is death or imprisonment, or other deprivation of liberty, for a period of not less than 12 months.
25 The next relevant provision is s 19, which relevantly provides:
19 Determination of eligibility for surrender
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate or eligible Federal Circuit Court Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d) the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:
(a) the supporting documents in relation to the offence have been produced to the magistrate or Judge;
(b) where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate or Judge of any other documents—those documents have been produced to the magistrate or Judge;
(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and
(d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.
(3) In paragraph (2)(a), supporting documents, in relation to an extradition offence, means:
(a) if the offence is an offence of which the person is accused—a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant;
(b) if the offence is an offence of which the person has been convicted—such duly authenticated documents as provide evidence of:
(i) the conviction;
(ii) the sentence imposed or the intention to impose a sentence; and
(iii) the extent to which a sentence imposed has not been carried out; and
(c) in any case:
(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.
(9) Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall:
(a) order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:
(i) surrender under a surrender warrant or temporary surrender warrant; or
(ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5);
(b) inform the person that he or she may, within 15 days after the day on which the order under paragraph (a) is made, seek a review of the order under subsection 21(1); and
(c) record in writing the extradition offence or extradition offences in relation to which the magistrate or Judge has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.
(9B) An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form.
26 To understand the dual criminality requirement, set out in s 19(2)(c), it is necessary to have regard to the terms of s 10 of the Extradition Act, and in particular the phrase used in s 19(2)(c): “the conduct of the person constituting the offence”. Sections 10(2) and 10(3) relevantly provide:
(2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
(3) In determining for the purposes of paragraph 7(d) or 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:
(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions—regard may be had to all or to only one or some of those acts or omissions;
(b) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.
27 If a s 19 magistrate or judge determines that a person is eligible for surrender to the extradition country, then the person has a right to apply for review of that decision to this Court (under the Extradition Act) or to a Supreme Court of a state. Section 21 of the Extradition Act provides:
21 Review of magistrate’s or Judge’s order
(1) Where a magistrate or eligible Federal Circuit Court Judge makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:
(a) in the case of an order under subsection 19(9)—the person; or
(b) in the case of an order under subsection 19(10)—the extradition country;
may, within 15 days after the day on which the magistrate or Judge makes the order, apply to the Federal Court for a review of the order.
(2) The Federal Court may, by order:
(a) confirm the order of the magistrate or Judge; or
(b) quash the order.
(2A) If the Federal Court quashes the order, it must:
(a) in the case of an order under subsection 19(9)—order the release of the person or the discharge of the recognisances on which bail was granted; or
(b) in the case of an order under subsection 19(10)—order that the person be committed to prison or (subject to subsection (2B)) released on bail, to await:
(i) surrender under a surrender warrant or temporary surrender warrant; or
(ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5).
(2B) The Federal Court must not release a person on bail under paragraph (2A)(b) unless there are special circumstances justifying such release.
(2C) An order committing a person to prison under paragraph (2A)(b) must be made by warrant in the statutory form.
(3) The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court.
(4) The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court is made.
(5) The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.
(6) Where the person or the extradition country:
(a) applies under subsection (1) for a review of an order; or
(b) appeals under subsection (3) against an order made on that review; or
(c) appeals to the High Court against an order made on that appeal;
the following provisions have effect:
(d) subject to section 21A, the court to which the application or appeal is made shall have regard only to the material that was before the magistrate or Judge;
(e) if an order for the release of the person (whether or not on bail) has been made under subsection 19(9) or (10), or subsection (2A) of this section—the court to which the application or appeal is made may order both:
(i) if the person was released on bail—the discharge of the recognisances on which bail was granted; and
(ii) the arrest of the person;
(i) if an order for the release of the person has not been made; or
(ii) the person has been arrested under an order made under paragraph (e);
the court to which the application or appeal is made may:
(iii) order that the person be kept in such custody as the court directs; or
(iv) if there are special circumstances justifying such a course, order the release on bail of the person;
until the review has been conducted or the appeal has been heard;
(g) if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences—the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.
28 In relation to some of the central contentions on behalf of the appellant, it is also important to explain the relationship between the operation of the Extradition Act and the international agreements on which the Extradition Act is based. Section 11 of the Extradition Act provides:
11 Modification of Act in relation to certain countries
(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.
(2) For the purposes of subsections (1) and (1A), but without otherwise affecting the generality of that subsection, the reference in paragraphs (1)(a) and (b) and subsection (1A) to this Act applying subject to limitations, conditions, exceptions or qualifications is deemed to include a reference to this Act applying subject to a modification to the effect that a number of days greater or less than the 45 days referred to in paragraph 17(2)(a) applies for the purposes of that paragraph.
(3) Until the regulations make provision as mentioned in subsection (1) in relation to an extradition country, being a foreign state to which paragraph (c) of the definition of extradition country in section 5 applies, this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications to which the former Foreign Extradition Act, in its application in relation to the extradition country as a foreign state, was subject by virtue of section 9 of that Act, but only to the extent that they are not inconsistent with limitations, conditions, exceptions or qualifications provided for by regulations under subsection (1A).
(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.
(5) For the purposes of subsection (4):
(a) a reference to the sufficient evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in a part of Australia, would be sufficient to:
(i) justify trial of the person in relation to an offence against a law in force in the part of Australia;
(ii) justify committal of the person for trial in relation to such an offence; or
(iii) establish a prima facie case that the person committed such an offence; and
(b) a reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, 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.
(6) For the purpose of determining under subsection 19(1) whether a person is eligible for surrender in relation to an extradition offence for which surrender of the person is sought by an extradition country, no limitation, condition, qualification or exception otherwise applicable under this section (not including a limitation, condition, qualification or exception having the effect referred to in subsection (4)) has the effect of requiring or permitting a magistrate or eligible Federal Circuit Court Judge to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).
29 As we have noted above, the extradition treaty between Australia and the Republic of Indonesia was done at Jakarta on 22 April 1992. Section 11 is given effect with respect to Indonesia through the Extradition (Republic of Indonesia) Regulations 1994 (Cth).
30 Section 5 of the Regulations provides:
The 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 (being the treaty a copy of the English text of which is set out in the Schedule).
31 The appellant’s arguments centre on the terms of Art 2 of the Treaty. Article 2(1) provides:
1. Persons shall be extradited according to the provisions of this Treaty for any act or omission constituting any of the following offences provided the offence is punishable by the laws of both Contracting States by a term of imprisonment of not less than one year or by a more severe penalty:…
32 The rest of Art 2 then sets out, specifically, a list of offences for which extradition may be granted (subject to dual criminality requirements). Thus the Extradition Treaty with Indonesia adopts what the High Court described in Minister for Home Affairs v Zentai  HCA 28; 246 CLR 213 at  as the “enumerative method” of identifying extraditable offences.
33 In Art 2(1)(20) the embezzlement offence is set out. The appellant correctly recognises that there is no doubt the embezzlement offence is an extradition offence for the purposes of the Extradition Act.
34 However, the money laundering offence is not set out expressly in the list in Art 2 of the Treaty. If it is to be classified as an extradition offence, the appellant contends, that could only have been achieved under the terms of Art 2(2) of the Treaty, which provides:
2. Extradition may also be granted at the discretion of the Requested State for any other act or omission constituting an offence if the offence, according to the laws of both Contracting States, is one for which extradition can be granted. …
35 The appellant contends money laundering should not be regarded as falling within Art 2(2).
the parties’ arguments in summary
The appellant’s arguments
36 As we have noted above, the appellant’s arguments depend on the proposition that the money laundering offence is not capable of being an “extradition offence” within the meaning of the Act. If that proposition is correct then, the appellant submits, all the decisions about the appellant at each stage of the extradition process to date (that he was an “extraditable person” and that he was eligible for surrender under s 19) must fall, because one of the two offences on which this decision-making was based is not properly an “extradition offence”. Relying on Project Blue Sky Inc v Australian Broadcasting Authority  HCA 28; 194 CLR 355, the appellant contends that the s 16 notice and the s 19 warrant must fall (and the s 21 review should have been allowed by the primary judge) because the error about the money laundering offence infects the whole of the s 16 notice, and the whole of the s 19 determination. The appellant submits the decisions under the scheme to date cannot be saved by the application of the concept of severance. The respondents did not submit there could be any severance of one aspect of the s 16 notice, or the s 19 determination, from the others.
37 The importance of the appellant’s arguments to his possible fate in Indonesia should not be understated. The embezzlement offence carries a maximum penalty of five years’ imprisonment. The money laundering offence carries a maximum of 20 years’ imprisonment. If the appellant is extradited only on the embezzlement offence, he will have the benefit of the specialty provisions in the Extradition Act (see ss 22(3)(d) and 22(4)) and in the Treaty (see Art 8) and, although Australia’s consent can be sought to depart from a specialty assurance, the general operation of the specialty provisions would mean the appellant could not be exposed to a trial in Indonesia on the money laundering offence if it was not one of the offences for which he was extradited.
38 The appellant contends that since the money laundering offence was not one of the offences listed expressly in Art 2(1) of the Treaty, then it could only become an extradition offence if the discretion in Art 2(2) was exercised. He contends there is no evidence the discretion was considered, let alone exercised. The respondent accepts no such discretion has been exercised, so this issue can be put to one side. Either the money laundering offence falls within Art 2(1), or it does not. These arguments cover grounds 1A, 5A and 6.
39 The second tranche of arguments put by the appellant concern the statement of conduct which formed part of the supporting documents before the s 19 magistrate.
40 As we have noted above, in s 19(3)(c)(ii) a statement of the conduct constituting the extradition offence must form part of the supporting documents before the s 19 magistrate or judge.
41 The appellant submits, relying on Fox J in Linhart v Elms  FCA 416; 81 ALR 557 at 575 that the statement of conduct performs at least two functions: to enable the determination of dual criminality, and as a critical part of the material on which the scope of the speciality assurance is to be ascertained.
42 The focus of the appellant’s challenge in these grounds is again on the money laundering offence. He submits that the facts in the statement of conduct which might go to one or both of the money laundering or embezzlement offences have been conflated so that the statement is “vague and general” and “disorganised”, in a way which means it cannot meet the statutory requirements for a conduct statement. He relies on McDade v United Kingdom  FCA 1868 (a decision of the Full Court) at  (Kenny J, with whom French J and Marshall J agreed) and Harris 401-402.
43 The appellant contends that the s 19 magistrate erroneously proceeded on an assumption that all of the conduct set out in the conduct statement was the conduct constituting an offence (as opposed to the conduct constituting the two offences together), and undertook the dual criminality analysis on that basis. He contends the correct question posed by the Act in s 19(2)(c) is whether the conduct constituting each offence meets the dual criminality test. He accepts there are many authorities to the effect that a statement of conduct, whether constituted by one or more documents, can be used to establish the elements of more than one extradition offence, but he submits (relying on McDade at first instance: McDade v United Kingdom  FCA 1341; 166 ALR 683 at ) if the Court cannot distinguish the conduct constituting each offence in the documents which are said to form the conduct statement, then the statutory requirements will not be met.
44 The appellant contends that in the conduct statement there is an insufficient factual link between the 134 cheques and any monies the appellant used at any time. There is a statement by one Mr Donny (Attachment C to the Extradition Request at (h) 68-71) but this evidence only relates to “more than 20 transactions totalling about 70 million rupiah (at 70 )”, being approximately AUD $6,500, which is a small portion of what the appellant is alleged to have derived from the 134 cheques. The appellant also relies on the fact that he is alleged to have obtained the monies mostly in cash, because the cheques were cash cheques. The appellant contends that to the extent it is alleged that the appellant obtained the monies by transferring them to another bank account, there is no statement of fact relating to the monies being transferred to the bank account identified by Mr Donny.
45 The flaws in the statement of conduct in relation to the money laundering offence are said by the appellant then to infect the dual criminality exercise the s 19 magistrate was required to undertake. The appellant contends the s 19 magistrate did not attempt to identify dual criminality for the money laundering offence. He further contends that although the primary judge did do so (at ), by reference to s 400.9(1) and (1A) of the Criminal Code Act 1995 (Cth), there was an insufficient basis in the statement of conduct for this exercise to be undertaken, and it could not be undertaken just by a comparison of offences without a sufficient factual basis in what was before the s 19 magistrate.
46 These arguments concern grounds 2, 2A, 2B and 3 in the notice of appeal.
The respondents’ arguments
47 The respondents who appeared at the hearing (namely, the Republic of Indonesia, the Minister for Justice and the Commonwealth Attorney-General) contend that the appellant’s first set of arguments about whether money laundering is an extradition offence is misconceived because it was no part of the s 19 magistrate’s function to consider whether the offences were extradition offences.
48 Relying on Director of Public Prosecutions (Commonwealth) v Kainhofer  HCA 35; 185 CLR 528 at 537-9, the respondents submit that the s 19 magistrate is confined to considering the matters specified in ss 19(1) and (2) and must proceed on the basis that if the order of remand under s 15, and the s 16 notice, are not invalid on their face, the person is an extraditable person and the orders are valid.
49 Alternatively, the respondents submit the appellant was and remains an extraditable person in relation to both the money laundering and embezzlement offences. They submit that Art 2(3) of the Treaty informs the interpretation of Art 2 as a whole, and means it is possible to see the money laundering offence as within Art 2.
50 The respondents then submit:
Accordingly, by operation of Article 2(3), it does not matter that “money laundering” does not appear in the list of offences in Article 2(1) (at least in those terms). What matters is whether the conduct alleged against Mr Liem – howsoever described or charged in the foreign jurisdiction – falls within the list of offences in Article 2(1).
51 Referring to the terms of Art 2(1)(20), which lists the offences of “stealing; embezzlement; fraudulent conversion; fraudulent false accounting; obtaining property, money, valuable securities or credit by false pretences or other form of deception; receiving stolen property, any offence involving fraud”, the respondents submit that rather than focusing on the “label” of the charged offence (ie, “money laundering”), the real focus should be on the conduct allegedly engaged in by Mr Liem. They submit that the conduct involved in money laundering fits comfortably within the conduct in Art 2(1)(20).
52 The respondents also contend that it is “inescapable” that the appellant’s alleged conduct was fraudulent and to focus on this kind of conclusion or characterisation is “consistent with the object of the Treaty, … being “the repression of crime”.
53 On the statement of conduct grounds, the respondents contend that there is no need to divide the conduct up between the offences for which extradition is sought. They contend that the supporting documents before the s 19 magistrate gave enough particularity to ensure that the requested state and the person whose surrender is sought are left in no doubt as to the basis upon which the request is made, referring to Timar v Republic of Hungary  FCA 1518 at .
54 As to dual criminality, the respondents submit that the correct comparison is between the conduct itself and the offence under the law of NSW. The respondents contend that complete correspondence between the alleged Indonesian offence and the elements of an offence under Australian law is not required, relying on Harris at 411D-E; Zoeller v Federal Republic of Germany  FCA 802; 23 FCR 282 at 292-300. The respondents submit the primary judge approached the matter correctly at  of his Honour’s reasons where he said:
…there is little reason to doubt that if Mr Liem had engaged in the conduct described in the extradition materials at the time the request was made, he would have committed both of the offences relied upon by the respondents [being fraud and breach of director’s duties].
resolution of the appeal
The extradition offence argument
The role of the statutory concept of “extradition offence”
55 The appellant is correct to identify the central role played by the statutory concept of “extradition offence” in the scheme created by the Extradition Act. Structurally, the legislative scheme defines “extradition offence” by reference to a particular severity of punishment: see the definition in s 5(a)(i), unless the less usual circumstances in (ii) apply. The nature of the offences for which extradition may be sought are, generally, left to agreement under the relevant bilateral treaties. So, in the case of Indonesia, it is Art 2 of the Treaty which defines the kind of offences that will be considered extraditable offences.
56 The need for a person to be an “extraditable person” conditions in express terms the exercise of powers at the first two stages of the extradition process, but not thereafter. A magistrate or eligible Federal Circuit Court judge is authorised to issue an extradition arrest warrant under s 12 of the Act where she or he is satisfied, amongst other matters, the person is an “extraditable person”. So too, if a person has not waived her or his extradition under s 15A, the power of the Attorney-General (or her or his delegate) to use a notice under s 16 of the Act is also conditioned by the requirement to have formed an opinion the person is an extraditable person: see s 16(2).
57 At the next three stages of the extradition process (where extradition is contested) – s 19, s 21 and s 22, the status of a person as an extraditable person is an operating premise, but, having been established earlier in the extradition process, a person’s status as an extraditable person is not required to be reconsidered or reviewed at these stages. The distinctions in the use of the concept of “extraditable person” at the different stages under the Extradition Act were explained by the plurality in Kainhofer at 538. The consequence is, the plurality said, that the powers as conferred are:
…exercisable by different repositories in sequence, but none of them authorises the repository of a power to review the exercise of a power by another repository earlier in the sequence.
58 Gummow J took the same approach at 553-554:
That the person be an extraditable person is not specified in s 19(2) as a necessary condition of eligibility for surrender and the making of an order by the magistrate under s 19(9) committing the person to prison to await surrender.
59 The same point was made by the Full Court in Harris at 400-401.
60 In Kainhofer, the plurality contrast the role of the concept of “extradition objection” – which is part of the statutory task at all three key stages – s 16, s 19/21 and s 22. The consequence of that statutory concept featuring as a condition of the exercise of power at each stage is, the plurality said (at 538):
…on each occasion the repository of the relevant power makes an independent determination of the issue on which the existence of that power depends.
61 Although at the s 19 stage and at the s 21 stage neither the magistrate or eligible Federal Circuit Court judge, nor a judge of this Court, are required to revisit that characterisation as part of their statutory tasks, that is not to suggest that there is nothing a person subject to an extradition request can do about the question whether she or he is within the statutory concept of an “extraditable person”. The plurality in Kainhofer recognised this at 538-539:
Of course, prohibition or mandamus may go to an officer of Commonwealth who exercises power under the Act but the amenability of decisions under ss 12(1) and 16 to judicial review does not expose those decisions to review by a magistrate who conducts administrative proceedings under s 19.
62 The plurality also recognised at the s 19 stage a magistrate (or now, an eligible Federal Circuit Court judge) would not be bound to accept a s 16 notice that was on its face invalid: at 539.
63 Plainly, the straightforward option is to challenge the s 16 notice by way of judicial review under the Judiciary Act. If that is done, such a proceeding may or may not (depending on decisions about interlocutory relief and the respondents’ attitude) affect the progress of proceedings under s 19. At the s 21 stage, as was done here (and subject to questions such as time limits, and discretionary factors) there is nothing to prevent a person seeking to invoke the Court’s jurisdiction under s 21 and under s 39B of the Judiciary Act.
64 The appellant submitted that Australian administrative law had moved some considerable way since the decision in Kainhofer, and it was appropriate to see a valid s 16 notice as a precondition to any jurisdiction arising under s 19 or s 21, so that, for the purpose of determining her or his own jurisdiction, a magistrate or eligible Federal Circuit Court judge could decide the validity of a s 16 notice. That argument would appear to follow the line of authority including: Re Adams and the Tax Agents’ Board (1976) 1 ALD 251 per Brennan J, approved in Saitta Pty Ltd v Commonwealth  FCA 1546; 106 FCR 554 at ; Minister for Immigration and Border Protection v Singh  FCAFC 183; 244 FCR 305 at .
65 If the appellant had persuaded us of the invalidity of the s 16 notice because the Attorney-General’s opinion that he was an extraditable person was not lawfully formed, then it may have been necessary to consider what, if anything, the s 19 magistrate could or should have done in relation to the s 19 proceedings. However, we are not persuaded the formation of the Attorney-General’s opinion miscarried on the basis the appellant contends, so the argument need not be pursued. The argument would, in any event, have a significant hurdle to overcome by way of the passages from Kainhofer to which we have referred. Our conclusion means we also do not need to determine the appellant’s submissions that the text, context and purpose of s 6 and the definition of “extraditable person” should be found to create a jurisdictional fact, rather than being a matter on which a state of satisfaction (or, relevantly to s 16, an opinion) is formed by the relevant repository of the power.
The extradition offences with which the appellant is charged in Indonesia
66 The statements of the Indonesian offences with which the appellant has been charged are found in the statement of conduct.
67 The embezzlement offence is contained in Art 374 of the Indonesian Criminal Code (with original spelling):
Embezzlement commited by any person who has possession of the property on account of his personal service or of his profession or for monetary compensation, shall be punished by a maximum imprisonment of 5 (five) years.
68 The money laundering offence is contained in Arts 3 and 4 of Law Number 8 Year 2010 on Money Laundering Crime Prevention and Eradication:
Article 3 of the Law Number 8 Year 2010 on Money Laundering Crime Prevention and Eradication:
“Anyone, who places, transfers, forwards, spends, pays, grants, deposits, takes to the abroad, changes the form, changes to the currency or securities or other deeds towards the Assets of which are recognized or of which are reasonably alleged as the result of criminal action, as set forth in Article 2 section (1) with the purpose to hide or to disguise the origin of Assets, shall be subject to be sentenced due to the criminal action of Money Laundering with the imprisonment for no longer than 20 (twenty) years and fine for no more than Rp10.000.000.000 (ten billion rupiah)”.
Article 4 of the Law Number 8 Year 2010 on Money Laundering Crime Prevention and Eradication:
“Anyone, who hides, or disguises the origin, source, location, purpose, transfer of right or the truly ownership of the Assets that are known by him or of which are reasonably alleged as the result of criminal action, as set forth in Article 2 section (1), shall be subject to be sentenced due to the criminal action of Money Laundering with the imprisonment for no longer than 20 (twenty) years and fine for not more than Rp5. 000.000.000 (five billion rupiah)”.
69 The statement of conduct also refers to Art 2 of Law Number 8 Year 2010, but as we understand it this is not itself an offence provision, but is rather definitional in terms of what constitutes the “Assets” referred to in the two offence provisions.
70 The focus of the appellant’s arguments on the first set of grounds was on the element in Art 3 and 4 of hiding or disguising the origin of “Assets”. He contends there is nothing in the statement of conduct referable to this element, which is the essence of money laundering.
Money laundering as an extradition offence
71 It may be accepted, as the appellant submitted, that the Attorney-General, as part of determining under s 16 whether or not a person is an extraditable person, must form an opinion (see s 6(b)) whether the warrant in force against a person relates to an offence “or any … offences” that is an extradition offence, or extradition offences. In other words, where an extradition request, and an extradition warrant nominate more than one offence as an extradition offence, the presence of the words in s 6(b) “or any of the offences” empowers the Attorney-General to form an opinion that only one, or some, of the offences nominated meet the definition of “extradition offence” in the Act and in the relevant Treaty.
72 The respondents pointed to the terms of Art 2(3) of the Treaty, which provide:
For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a) it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b) the totality of the acts or omissions alleged against the person whose extradition is requested shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
73 Although they expressed it differently, and perhaps with different qualifications that are not in our opinion presently material, each of the appellant and the respondent accepted that by operation of s 11(1)(a), read with s 11(1C), a treaty such as the Extradition Treaty with Indonesia in the schedule to the Regulations was capable of affecting the operation of the Extradition Act by making the application of the Act subject to limitations, conditions, exceptions or qualifications necessary to give effect to the terms of the bilateral extradition treaty: see generally Commonwealth Minister for Justice v Adamas  HCA 59; 253 CLR 43 at . In this way, a bilateral extradition treaty is “given force” by s 11, but only insofar as the text of the treaty which appears in the relevant schedule to the relevant regulations: see Adamas at .
74 The respondents appeared to submit that Art 2(3) was a “qualification” to which the operation of the Act, and in particular, the definition of “extradition offence” in the Act was subject. If that is so, the opening words of Art 2(3) (“in determining whether an offence is an offence against the law of both Contracting States…”) indicate the subject-matter of Art 2(3) is the requirement of dual criminality. Determining dual criminality is one of the tasks reposed in the s 19 magistrate, and on this Court in any s 21 review. The appellant does raise an argument about dual criminality on this ground, but it arises really only as a consequence of his argument about money laundering not being within Art 2(1) on any view.
75 We accept that, in determining dual criminality, Art 2(3) could be seen to operate as a qualification on the way the terms of s 19(2)(c) need to be understood for the purposes of conserving extradition offences under Indonesian law. As the respondents submitted, the approach it embodies is one which has been articulated in Australian law in relation to dual criminality: see Riley v The Commonwealth  HCA 82; 159 CLR 1 at 17-18:
The preferable view – and that which commands general acceptance – rejects the need for precise correspondence between labels or between the constituent elements of identified legal offences under the criminal law of the requesting and requested states and defines the principle of double criminality in terms of substance rather than technical form. On this view, the requirement of double criminality is satisfied if the acts in respect of which extradition is sought are criminal under both systems even if the relevant offences have different names and elements: O’Connell, op.cit., vol. 2, p. 723. This view places primary emphasis upon the acts constituting the offence alleged against the accused in the warrant rather than upon general theoretical correspondence between the legal elements of the offence which he is alleged to have committed against the law of the requesting state and some offence recognized by the law of the requested state.
76 The terms of Art 2(3) are also closely reflected in s 10(3) of the Extradition Act, which provides:
(3) In determining for the purposes of paragraph 7(d) or 19(2)(c) whether, if conduct constituting an extradition offence in relation to an extradition country, or equivalent conduct, had taken place in Australia or in a part of Australia at a particular time, that conduct or equivalent conduct would have constituted an offence of a particular kind in relation to Australia or the part of Australia, the following provisions have effect:
(a) where the conduct or equivalent conduct consists of 2 or more acts or omissions—regard may be had to all or to only one or some of those acts or omissions;
(b) any difference between the denomination or categorisation of offences under the law of the country and the law of Australia, or the law in force in the part of Australia, as the case requires, shall be disregarded.
77 Section 10(3) is also plainly directed at the dual criminality aspect of the extradition process.
78 We are confirmed in our view by the terms of Art 2(2) of the Extradition Treaty with Indonesia. This is the discretion the Contracting States have agreed to retain to extradite their nationals for offences other than those covered by Art 2(1). In its express terms Art 2(2) maintains the requirement for dual criminality even if this discretion is exercised, by using the phrase “according to the laws of both Contracting States”. Art 2(3) then clarifies, at least in two respects, what this phrase means and how dual criminality is to be approached. Art 2(1) also employs the phrase “the laws of both Contracting States” and again, it does so in the context of emphasising the need for dual criminality.
79 We do not accept that Art 2(3) has any particular role to play in the anterior question of whether money laundering contrary to Arts 3 and 4 of Law Number 8 Year 2010 is an “extradition offence” within the meaning of s 5 of the Act, read with the Extradition Treaty with Indonesia. That question falls to be decided by the terms of Art 2(1) of the Treaty, given it is common ground that Art 2(2) is not in issue.
80 The appellant submits that the presence of Art 2(2) is relevant, however, in that its presence suggests the text of Art 2(1) should not be read overly expansively. That is, where an offence is not an extradition offence within Art 2(1), the Contracting States have agreed a mechanism whereby further or different offences can be incorporated. That submission should be accepted. That is not to suggest there is any binary choice being made between a “wide” and a “narrow” approach to the text of Art 2(1). It simply means that the Court should approach the interpretation of Art 2(1) in the context of it not being exhaustive of potential extradition offences, depending on the exercise of discretion by the Requested State.
81 The interpretation of Art 2(1), and Art 2(1)(20) in particular is to be undertaken according to established principle. In Adamas at - the High Court said:
32. Article 9(2)(b) of the Treaty as set out in the Schedule to the Regulations is nevertheless to be interpreted for what it is: a provision of a treaty. As a provision of a treaty, its text is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of the Treaty. If that meaning were to be ambiguous or obscure or manifestly absurd or unreasonable, recourse could be had to supplementary means of interpretation.
33. In the specific context of the interpretation of the provision of a bilateral extradition treaty, the Supreme Court of the United States long ago observed:
“In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations, and the good faith of treaties, as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them.”
34 Interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of the Treaty, the expression “unjust, oppressive or incompatible with humanitarian considerations” in Art 9(2)(b) of the Treaty admits of no relevant ambiguity. The expression encapsulates a single broad evaluative standard to be applied alike by each Contracting State whenever that Contracting State finds itself in the position of the Requested State. The standards applied within each Contracting State are relevant to its application, as are international standards to which each Contracting State has assented, but none is determinative.
82 Neither party suggested the terms of Art 2(1)(20) were ambiguous or obscure so that recourse to extrinsic material was required, and neither party referred the Court to any such material.
83 These established principles remain at a level of generality which provides little assistance to the concrete task of interpreting a treaty provision such as Art 2(1) and Art 2(1)(20) in particular.
84 Nevertheless, we note the following factors:
The purpose of the Treaty, as expressed in its Preamble is to “make more effective the cooperation of the two countries in the repression of crime and specifically, to regulate and thereby promote the relations between them in matters of extradition”;
The general aim of the “repression of crime” has been implemented in the parties’ agreement by listing offences of a specific character, or which have specific attributes, and electing not to list others (it can be inferred);
The list in Art 2(1) is wide ranging, including offences against the person, against the State, property offences, public safety offences, offences involving international law and drug offences;
A number of offences in the list, and outside para (20), involve dishonesty: perjury, counterfeiting and forgery;
A number of offences in the list, and outside para (20), involve financial offences: offences in relation to the law of bankruptcy and insolvency and offences “against the law relating to companies”;
Sub-article (33) includes aiding and abetting any of the list of 32 offences above, indicating an intention on the part of the Contracting States to expand the categories of extraditable offences to any person whom the criminal law classifies as involved in those offences.
85 Sub-article (20), unlike many of the other sub-articles, does not limit itself to a particular offence (such as burglary, piracy) or a generalised description such as “an offence against the law relating to companies”. Rather, and unlike most of the other sub-articles (except perhaps (27)) it combines a list of offences into the one sub-article. Some are specific offences (“embezzlement”, “stealing”), some may be specific offences (“fraudulent false accounting”), some may be descriptions covering a number of individual offences (“obtaining property, money, valuable securities or credit by false pretences or other form of deception”) and some appear intended to pick up an unspecified range of offences with a particular character (“any offence involving fraud”).
86 In interpreting the text of Art 2(1), and Art 2(1)(20) in particular, it must always be recalled that the Extradition Treaty with Indonesia needs to use language (in English and also in Indonesian – see the signing clause of the Treaty) that will fairly cover and incorporate the criminal law operating under two very different legal systems.
87 The respondents submit that money laundering is fairly seen to be within the description of “any offence involving fraud”. They submitted a central component of any fraud is deception, and the offence of money laundering is essentially about deception. They noted Art 2(1)(20) (amongst other parts of Art 2(1), was relied on in the briefing to the Minister for the purposes of the s 16 decision.
88 In an attachment to the briefing note to the Minister, the Minister was advised of the following “extraditable offences” under Art 2:
The following offences are prescribed offences in Article 2 of the Treaty:
(a) an offence against the law relating to forgery or against the law relating to uttering what is forged
(b) stealing; embezzlement; fraudulent conversion; fraudulent false accounting; obtaining property, money valuable securities or credit by false pretences or other form of deception; receiving stolen property, any offence involving fraud, and
(c) any offence against the law relating to companies.
89 Whether or not the Minister received correct advice on this question was not put by the respondents as a matter which could save the Minister’s s 16 decision if it were otherwise affected by an error that deprived the Minister of the authority to determine the appellant was an extraditable person. That was a correct approach: the question is one for the Court.
90 Even within Australian law, let alone in the context of a treaty dealing with both Indonesian and Australian law, what is intended to be conveyed by the use of the word “fraud” varies. In SZFDE v Minister for Immigration and Citizenship  HCA 35 at , a case about fraud in a public law context, the High Court said:
Professor Hanbury described the common law and equity as having “quarrelled over the possession of the word ‘fraud’ like two dogs over a bone, off which neither side was sufficiently strong to tear all the meat”, and said that the word fraud applied “indifferently to all failures in relations wherein equity set a certain standard of conduct”. Hence the attachment of the term “fraud” to the exercise of powers of appointment, and of other powers, such as those of company directors, in a fashion of which equity disapproved.
91 In the criminal law context, the use of the word “fraudulently” in an offence provision is sometimes taken to be equivalent to the use of the word “dishonestly”: see for example, in relation to s 173 of the Crimes Act 1900 (NSW), what was said by the High Court in Macleod v The Queen  HCA 24; 214 CLR 230  (Gleeson CJ, Gummow and Hayne JJ):
The Court of Criminal Appeal in Glenister reviewed the authorities construing s 173 and cognate provisions and concluded that the term “fraudulently” in this context has a meaning interchangeable with “dishonestly”. That construction has been adopted in relation to analogous provisions in other Australian jurisdictions. It is consistent with the conclusion of four members of this Court in Spies v The Queen concerning the offence created by s 176A of the Crimes Act. It was there held that, to establish that a director had “defraud[ed]” any person in his or her dealings with the company in contravention of s 176A, it was necessary to prove that the accused had used “dishonest means” to prejudice the rights or interests of that person.
92 In Peters v The Queen  HCA 7; 192 CLR 493 at 508 (also referred to in McLeod at ), Toohey and Gaudron JJ described “fraud” (in the context of the crime of conspiracy to defraud the Commonwealth) as ordinarily involving:
…the intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that other person at risk or prejudicially affects that person in relation to “some lawful right, interest, opportunity or advantage”, knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests.
93 An offence, like the money laundering offence with which the appellant has been charged, which is constituted by acts or omissions that involve hiding or disguising the origin or source of assets that are reasonably alleged to have resulted from criminal activity, can be described as “involving fraud” without doing any violence to the ordinary usage of that phrase. The same can be said in relation to money laundering offences under the Criminal Code Act 1995 (Cth). As the primary judge explained in his reasons at :
…designed to capture dealing with money that is the product of criminal activity without needing to show participation in that prior illegal conduct…[referring to s 400.9(1) and (lA) of the Criminal Code (Cth)]… Those provisions make it an offence to deal with money or other property where it is reasonable to suspect that the money or property is the proceeds of crime.
94 In our opinion, there is likely to be more than one aspect of Art 2(1)(20) that could comprehend money laundering: the three identified in the Ministerial briefing note were appropriate inclusions.
95 We are conscious, as the appellant submitted, that the application of both the Extradition Treaty with Indonesia and the Extradition Act occurs in circumstances where an individual is being deprived of her or his liberty, and may be returned to Indonesia against her or his will. It also involves a process in which no judgment is made by Australia as the requested state, and by Australian decision-makers or courts, about the person’s guilt in relation to any of the alleged offences. The very important, and fundamental, nature of the interests at stake for the individual who is subject to an extradition request are properly to be seen as part of the context in which Art 2(1) is to be interpreted: see generally Cabal (No 3) - (French J). However the interpretation of Art 2(1) we have adopted is a straightforward one, and it does not give undue weight to the interests of the Contracting States as against the interests of the individual subject to the extradition process.
The statement of conduct argument
96 The question here is whether the statement of conduct is deficient, in a way which causes it to be outside the statutory concept of a statement of conduct, because it does not allege, specifically, any facts which can be identified as correlating to the elements of the offences in Art 3 and 4 of Law 8 of Year 2010 where those offences require a person to “hide or disguise” assets (assuming, as the appellant accepted, “assets” include money).
97 As a mandatory component of the statutory definition of “supporting documents” in s 19(3), the production of a statement of conduct that falls within the terms of s 19(3)(c)(ii) of the Extradition Act, is a precondition to a person being eligible for surrender in relation to an extradition offence or offences. Recently in Matson v United States of America  FCAFC 57 at , the Full Court described the requirements for a statement of conduct:
The relevant principles in relation to the requirement in s 19(3)(c)(ii) of the Extradition Act are well-settled. The statement of the conduct that is required for the purposes of s 19(3)(c)(ii) must “lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other”: Truong v The Queen (2004) 223 CLR 122; (2004) 78 ALJR 473 at . A bare statement of the offence will not suffice: De Bruyn v Republic of South Africa (1999) 96 FCR 290 at ; McDade v United Kingdom  FCA 1868 at . The statement must speak with “sufficient specificity, clarity and coherence to serve its purpose”: Griffiths v United States of America  FCAFC 34; (2005) 143 FCR 182 at . The requirement will not be met if the statement is “so vague and general or so disorganised that the relevant acts and omissions cannot be reasonably identified”: McDade at . Whether a statement satisfies the requirement is essentially “a matter for practical judgment and assessment, not for over zealousness in discerning deficiencies”: Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 294.
98 The statement of conduct performs a central role in the s 19 task, being the point of the extradition process under the Act where a determination of the existence, or non-existence, of the dual criminality requirement is made. The dual criminality requirement is, in turn, the foundation for ascertaining the scope and content of the specialty assurances generally required before a person is surrendered: see s 22(3)(d).
99 In Linhart at 582, Gummow J sets out a description of the function of a conduct statement. His Honour was describing the terms of the Extradition (Foreign States) Act 1966 (Cth), the predecessor to the current Act, but the function of a conduct statement, and the role of the conduct statement provisions in the legislative scheme, has not changed:
The function of the duly authenticated statement in writing setting out all the acts or omissions, in respect of which the surrender of the person is requested (sub-subpara (C)), is to enable adequate consideration of the question of whether extradition is sought in respect of extradition crimes satisfying the requirement of “double criminality” as reflected in s. 4(1A) and (1B). In this regard, s 17(6A) has the effect that whilst the magistrate is obliged to take into account any evidence properly adduced by the fugitive, the fugitive is not entitled to adduce and a magistrate is not entitled to receive evidence to controvert an allegation that the fugitive has committed an act or omission in respect of which the surrender is requested. Further, the statement setting out all the acts or omissions in respect of which the surrender is requested, serves, in conjunction with the statement in writing setting out the description of the offence, to assist determination of whether the speciality provisions of s 13 of the Act are applicable.
100 We accept, as the appellant submits, that the word “offence” in the phrase “statement of conduct constituting the offence” must be understood to mean the extradition offence, for which extradition is sought. That is clear from both s 10(3) and the chapeau to s 19(2), as the appellant submits. Thus, if there is more than one extradition offence in respect of which a person’s extradition is sought, the statement of conduct must set out the conduct constituting each extradition offence, and it must do so in a way which is consistent with the authorities collected by the Full Court in Matson, to which we have referred.
101 When the purpose of the statement of conduct is recalled, this must be so. First, for specialty protection to operate the statement of conduct must set out the conduct constituting each extradition offence. An extradited person does not enjoy the benefit of a specialty assurance if, on “proof of the conduct constituting any surrender offence” she or he could be convicted of another offence for which the penalty is the same or shorter than the extradition offence: see s 22(4)(d)(ii). A “surrender offence” in s 22 is an extradition offence in respect of which the Attorney-General has determined a person should be surrendered: see the definition in s 5. The only point in the extradition process where the statement of conduct is examinable, and operates as a precondition to a person being determined eligible for surrender, is at the s 19 (and the s 21 review) stages.
102 Second, the same observation can be made about the role of the conduct statement in the ascertainment of dual criminality. Again, at the surrender stage, and aside from any arguments which conceivably could be put to engage the residual discretion in s 22(3)(f), the Attorney-General is not required to satisfy himself or herself of dual criminality: that aspect of the extradition task has occurred at the s 19 and 21 stages.
The statement of conduct in relation to the appellant
103 Before the s 19 magistrate, Indonesia relied on both the extradition request (which was the basis for the Minister’s s 16 decision), and the attachments to that request. All were, as we understand the evidence, “duly authenticated”, or at least there was no challenge they were not “duly authenticated”. There were three attachments to the extradition request itself: two were not in dispute in the s 19 proceeding but one – Attachment C – was the subject of submissions on behalf of the appellant. It was contended that Attachment C could not properly be accepted as part of the supporting documents, and even if it could that its contents did not constitute a statement of conduct for the purposes of s 19(3)(c)(ii), forming part of the conduct statement produced to the s 19 magistrate by Indonesia.
104 Attachment C was described by Indonesia to the s 19 magistrate, accurately, as an Indonesian national police investigator’s progress report, being “a report of the criminal case against the respondent compiled by the Indonesian national police”. It contained a summary, with considerable detail, of what 9 witnesses would say about the appellant’s conduct, his company’s rules and policies, and a series of financial transactions.
105 The summary of the appellant’s conduct given in the extradition request was contained in the primary judge’s reasons at , but should be reproduced here:
Statement for alleged conduct done by Ronny Liem
15. Ronny Liem is the Director of PT. Indonesia Konsorsium Investama (PT. IKI), a stock trading company, from 2011 until 2015, pursuant to Notarial Deed Number 134 dated 29 May 2006, issued by Public Notary Edison Jingga, SH.
16. Sometime between 25 February 2011 and 10 April 2015, Ronny Liem as the President Director of PT. IKI, instructed Marlin (a Financial Staff of PT. IKI) and Vinewati (Accountant of PT. IKI) to gradually deliver to himself 134 papers of cheque.
17. Ronny Liem ordered Marlin and Vinawati to issue those cheques without going through the procedure that has been determined by PT. IKI, such as financial control and consultation.
18. In 2015, it was found that Ronny Liem has cashed those cheques and he never pay for it to PT. IKI. According to Financial Division, the PT. IKI has suffered a big loss amounted Rp.131,995,995,000 (one hundred thirty one billion nine hundred ninty [sic] five million and nine hundred ninety five thousand rupiah).
19. Ronny Liem used the PT. IKI’s money for his personal purposes and according to further investigation it as known that those funds were used for establishing his new businesses.
20. Indonesia National Police has conducted examination of witnesses to 8 (eight) persons, which are: Mr. Abu Hermanto (Shareholder), Mr. Gooi Whuang Pheal alias Clement Gooi (Consultant), Mr. Marlen (Financial), Ms. Vinawati (Accounting), Ms. Suci Rusdiyati (Bank Officer), Mr. Hansen (Bank Officer), Mr. Donny (Receiver), Mr. Agus Sukoco (staff). Based on witnesses’ statements and the foregoing evidence as to the suspect Ronny Liem, there is strong allegation of embezzlement and money laundering as defined by Article 374 Indonesian Criminal Code, and Article 3 and 4 Law Number 8 of 2010 on Money Laundering Crime Prevention and Eradication.
21. The police investigation report is attached (ATTACHMENT C).
106 It can be seen that the key allegations of conduct against the appellant are that:
As President and Director of a company, he instructed staff members to “gradually deliver” him 134 cheques from the account of the company of which he was a director;
He did so without following procedures determined by the company;
He cashed those cheques and did not repay the money to the company; and
He used the cash proceeds for “personal purposes” when, it is alleged, the money belonged to the company.
107 There may have been a real question whether or not what was in the extradition request alone would have been sufficient, and whether if that is all there was before the s 19 magistrate, the dual criminality assessment may well have miscarried. However, there was more detail in Attachment C. The issue is: how did Attachment C add to or fill out the allegations made in the extradition request? At , the primary judge helpfully summarised the contents of Attachment C by reference to what each of the nine witnesses alleged:
The police report then describes the nature of the evidence that nine witnesses are able to give. That narrative may be briefly summarised as follows:
(1) The evidence of the first witness is that of the “President Commissioner” and shareholder of the company who had recruited Mr Liem because of his experience in a “future trading company”, being the business of the company. He is able to give evidence that the authority to expend cash or incur [expenses] rested with the Board of Directors, including Mr Liem. He can describe the procedure that was required to be adopted. He can give evidence that the required procedure was not complied with by Mr Liem.
(2) The second witness is a financial consultant with the company and can give evidence, inter alia, that when Mr Liem requested the 134 cash cheques, he said he would furnish and complete the necessary documents and approvals in accordance with company procedure but had never done so. He can also give evidence about the authority to expend cash or incur [expenses] that rested with the Board of Directors, including Mr Liem, and describe the procedure required to be adopted.
(3) The third witness worked in the finance department of the company and, along with other formal details, can give evidence about the extent of the loss to the company based on a summary by the finance and accounting department supported by an independent auditor’s report.
(4) The fourth witness is also from the finance department of the company and can provide further details of the reporting requirements in relation to expenditure and the absence of the obtaining of any payment approval prior to the 134 cheques being drawn. It seems that he can produce the internal records of the company.
(5) The fifth witness worked in the accounting department of the company and describes the way in which Mr Liem had obtained the payment of the cheques without complying with company procedures.
(6) The sixth witness was a head teller at one of the banks involved, whose responsibilities included supervising payment transactions and the withdrawal and transfer of money by customers. The witness can give evidence about bank records in relation to the transactions.
(7) The seventh witness also worked at one of the banks and can produce the account opening records for an account opened by Mr Liem. He can also produce bank account statements for 89 transactions.
(8) The eighth witness was a former co-worker of Mr Liem who had worked with him in the past at another company. He can give evidence of receiving money from Mr Liem over 20 transactions that were given to him to manage and run a business in South Jakarta.
(9) The ninth witness worked at the company, with his main duties being to deliver documents and perform transactions upon the instructions of the company accountant. He is able to describe how a number of the cheques were disbursed and can produce a number of documents.
108 From the primary judge’s summary, and from Attachment C itself, it is clear that the only statements in Attachment C which contain any allegations about what the appellant did with the cheques he is alleged to have used, beyond converting some of them to cash, are the statements made in the summary of the evidence of the eighth witness. The eighth witness is the gentleman named in Attachment C as Mr Donny.
109 The appellant’s key argument is that, for a statement of conduct constituting the offence of money laundering (independently, as the appellant submits and we accept, from a statement of conduct constituting the offence of embezzlement), and looking at the elements of the Indonesian offence in Art 3 of Law Number 8 of 2010, it is necessary for there to be a statement of the “acts and omissions” of the appellant about what he did with the cheques or, perhaps, their proceeds. In other words, where, the appellant rhetorically asks, is the statement of acts and omissions concerning how the appellant:
(a) “[P]laces, transfers, spends, pays, grants, deposits, takes to abroad, changes the form, changes to the currency or securities or other deeds”;
(b) Did so “towards the Assets”, which are reasonably alleged to be the result of criminal action. Article 2 defines “Assets”, and we understand the appellant does not challenge the respondents’ submissions that the cheques are alleged to be the proceeds of embezzlement, being the criminal action;
(c) Did so with the purpose to hide or disguise the origin of the “Assets”.
110 Article 4 of Law Number 8 of 2010 confirms that an act or omission of that offence (assuming it to be a separate offence from Art 3, which it would appear to be) is that a person:
…hides, or disguises the origin, source, location, purpose, transfer of right or the truly ownership of the Assets.
111 The appellant contends that the allegations in the summary of the evidence of Mr Donny are the only part of Attachment C which deal with what the appellant is alleged to have done with the 134 cheques. Mr Donny’s evidence is that he was employed by the appellant to run a café called “Café X9”. His evidence is that he received, as a bank transfer, more than 70 million rupiah from Mr Liem in “more than 20 transactions”, for Mr Donny to “run and manage the business Café X9”.
112 We note however that witness 6’s statements go to the cashing of the cheques, and also to transfers of some of the cheques to other accounts. Witness 7’s evidence also goes to the disbursement of some of the cheques (89 in total), the majority of which were converted to cash.
113 The appellant also submits that Mr Donny gave evidence of only “more than 20 transactions totalling about 70 million rupiah”, being approximately AUD $6,500, whereas the allegations against the appellant in relation to the 134 cheques involve a total sum of more than AUD $13 million (see the primary judge’s reasons at ). The appellant also submits that Mr Donny’s evidence was not about any cash transactions, but only bank transfers of funds to be used at the café. The appellant also notes that the bank account identified by Mr Donny is not the bank account that features in any of the other allegations against the appellant, in terms of where he directed the proceeds of the cheques be transferred. He submits there is no clarity in Attachment C, nor in the extradition request, about whether only part of the 134 cheques are alleged to have been laundered, and if so how, or whether all of them are alleged to have been laundered and if so how.
114 In those circumstances the appellant contends it is not possible to understand and identify, nor was it possible for the s 19 magistrate to understand and identify, what were the acts and omissions alleged by Indonesia to constitute the money laundering offence. The appellant submits the error revealed in the primary judge’s reasons appears at , where his Honour finds:
While it is fair to say that the conduct description in the request and in the police witness evidence summary is not as clear or concise an account of Mr Liem’s conduct as it might have been, there is little difficulty in discerning the essential nature and extent of what he is alleged to have done. The information was ample to meet the necessary statutory description of a “statement in writing setting out the conduct constituting the offence[s]”.
115 Although counsel recognised it was a relatively small point, the appellant submits that the conflation of the acts and omissions in the conduct statement, and their treatment as if there was only one extradition offence, is also apparent from the terms of the warrant and determination issued under s 19(9). The warrant and determination is stated by the s 19 magistrate, in his letter to the then federal Attorney-General, to “record in writing the extradition offences for which we have determined Ronny Liem eligible for surrender”. In paragraph (c) of the warrant, the s 19 magistrate records:
I am satisfied that, if the conduct of Ronny Liem constituting the offence in relation to the Republic of Indonesia had taken place in the State of New South Wales, being the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to Ronny Liem was received, that conduct would have constituted extradition offences in relation to that part of Australia.
116 We have emphasised the singular, in the first line, to which counsel drew the Court’s attention. We also note that no New South Wales offences are set out. Whether or not this was a mandatory requirement, no New South Wales offences are set out in the s 19 magistrates’ reasons either, although the s 19 magistrate refers to the Republic of Indonesia’s submissions that dual criminality was established by reference to provisions of s 192E of the Crimes Act 1900 (NSW) or, variously, ss 104 or 184 of the Corporations Act 2001 (Cth).
There is nothing in the statement of conduct setting out the acts of the appellant in relation to all 134 cheques that falls within the description in [109(a)] above;
There are no acts or omissions alleged concerning the element of “hiding or disguising”; and therefore even if both the terms of the extradition request at - and Attachment C are taken and read together, as the appellant accepts the authorities require, their contents do not constitute a sufficient statement of the “acts and omissions” constituting the money laundering offence, and – independently – the acts and omissions constituting the embezzlement offence.
The extradition request and Attachment C, even if taken together, conflate the acts and omissions for each of the two Indonesian offences in a way which renders the statement of conduct too disorganised, and too unclear, to satisfy the threshold set in the authorities. The conduct statement could not enable a s 19 magistrate, performing her or his task conscientiously, to identify the acts and omissions constituting each offence, and in particular the acts and omissions constituting the money laundering offence. Rather, the effect of the two documents, presenting a narrative without any attention being paid to the existence of two extradition offences, read with the s 19 magistrates’ reasons and the terms of the extradition warrant, indicate there was no separation at all of the acts and omissions for each extradition offence.
The appellant recognises that the Court in McDade (at first instance and on appeal) seem to have been faced with a similar situation, in that the conduct statement was in a narrative form. However, there the judges decided they were able to match up, by identifying particular paragraphs, which allegations of acts and omissions went to each of the extradition offences (see, for example Carr J at first instance at -, and Kenny J on appeal at .
118 The respondents had two responses to these arguments.
119 The first was it was unnecessary to “delve into the detail” of the conduct statement, or work out which conduct relates to which offence. They relied on what was said in McDade at first instance at , and on appeal at . At first instance Carr J said:
In view of that concession made by counsel (in my view properly) it is not necessary for me to decide whether there should have been a separate document comprising the relevant statements for each charge. The question is whether it is necessary to segregate the charges in the statement ie separately to set out the acts or omissions by virtue of which each offence is alleged to have been committed. I think that to impose such a requirement would be to put a gloss on the statutory provision. However, I acknowledge that if a particular statement were so badly organised that it was not reasonably possible to discern the acts or omissions relevant to any particular charge, then the document might not constitute a statement setting out the acts or omissions constituting the offences.
120 And on appeal, Kenny J said at :
There is, I think, no such requirement. What is required is, as I have said, a clear and coherent statement of the actual acts and omissions that are said to constitute the relevant offences. Certainly, the statement must speak with sufficient specificity to permit the magistrate charged with conducting proceedings to discharge the tasks required of him, but, in my opinion, it may do so without setting out separately and repetitively each act and omission relied on in relation to each offence.
121 The second response was that it was no part of the s 19 function, nor the primary judge’s function under s 21, nor this Court’s function on appeal, to examine what offences with which Indonesia chooses to charge Mr Liem: that remains a matter solely for Indonesian authorities, in accordance with relevant domestic criminal laws and procedures. Neither under s 19, nor s 21, nor on appeal, is the task to try and match up the elements of the Indonesian offences with the acts and omissions alleged against Mr Liem in the conduct statement, to see if there are acts and omissions going to each element of the Indonesian offences. Rather, the task is to measure the acts and omissions in the conduct statement against relevant Australian criminal offences which qualify as extradition offences and to see whether what is in the conduct statement, if it had occurred in the relevant part of Australia, would have constituted an offence against the law of Australia which qualifies as sufficiently serious to be an extradition offence.
122 We reject the respondents’ first response, but accept their second response. We turn to explain why.
The respondents’ first response
The s 19 magistrate’s decision
123 We note that initially before the primary judge there was a ground of review that the s 19 magistrate had failed to give reasons. The ground was not pressed before the primary judge, but it is understandable why the point was raised.
124 To test the respondents’ contentions about whether it is unnecessary to “delve into the detail”, we return to the s 19 magistrate’s decision. His Honour gave a decision ex tempore, on the same day as the hearing. These were his reasons:
HIS HONOUR: This application seeks to focus on the eligibility for surrender in accordance with the provisions of the Commonwealth Extradition Act for Mr Liem. Mr Lawrence of counsel appears on behalf of the applicant, Mr Liem, and Mr Glover of counsel appears on behalf of the respondent or the Republic of Indonesia. Both have provided written submissions or statements in accordance with a previously directed court timetable. The respondent’s submissions or argument are supported by no less than 13 authorities which have been handed up. The applicant relies on those authorities, in addition to a further four, being specifically Bennett v The Government of the United Kingdom (2000) FCA 916, Linhart v Elms (1988) FCA 205, Assange v The Swedish Prosecuting Authority (2011) EWHC 2849 and Prabowo v The Republic of Indonesia (1995) 61 FCR 258.
By consent, the Court has taken the position of taking a stepping off point, as it were, so far as para 60 of the respondent’s written submissions are concerned. The applicant seeks to satisfy the provisions of s 19 of the Extradition Act more essentially, or more especially, so far as it relates to subs (2)(a). The supporting documents in relation to the offence have been produced to the magistrate. Those documents include what might be described as the formal documents, attachment A identification type documents, attachment B and more pertinently attachment C. Within attachment C is a document headed progress report, a document of some 96 odd pages.
Counsel on the applicant relies on the written submissions, which happens to be 86 paragraphs. The respondent’s submission coincidentally cover some 87 paragraphs. The conduct, the respondents submit, would align, as it were, if convicted in the State of New South Wales with (1) an offence or offences under the provisions of s 192E of the New South Wales Crimes Act 1900 or s 104 of the Corporations Act. The terms of those two sections are set out within paras 65 and 73 of the respondent’s submissions. The supporting documents defined in ss 19(3)(a) through to (c) specifically 19(3)(c)(ii) require a statement in writing setting out the conduct constituting the offence or offences.
Attachment C in the supporting documents is challenged. A direct comparison with the New South Wales or Australian Courts, in this instance, is not to be made. The material submitted by the respondent as duly authenticated statements of the conduct constituting the offence is submitted to the Court under the provisions of s 19(2)(b). Annexure C is headed Progress Report, 96 pages in length. It speaks extensively of generating reports and interrogation reports and a confiscation report or reports, as the case may be. Essentially, it constitutes an extrapolation or distillation of written statements, more especially p 64 through to 67 and schedules set out on p 89 identifying cheques and their disbursements.
This document offers a conclusion on p 96 of the document identified as annexure C. Turning to the applicant’s submission, the Court notes with approval, specifically paras 5, 6, 7, 8 and 9. The applicant in para 15 submits that failure to describe sufficient conduct such as to satisfy the 12 months imprisonment aspect or regime in New South Wales and/or Australia the Court notes para 19 of the self same submissions and submits it is fatal to not stipulate the essential offence in elements alleged.
In para 35, it submits irregularity in providing a police investigator’s report as being contrary to the Act. In para 57, it submits again in relation to annexure C. It is not a conduct statement. It is submitted that with some authority the Court could make that determination specifically on two decisions, De Bruyn and Bennett. The McDade decision “requires a clear coherent statement of the actual acts and/or omissions to constitute the offence”. The relevant acts or omissions are the elements or ingredients of the offence and not the particular evidence that is supposed to be proved thereby.
The requirement is essentially that the magistrate is satisfied, one way or the other, whether the conduct said to constitute the offence would constitute an extradition offence had it taken place in Australia. A document will not meet the requirements if it is so vague, general or disorganised that the acts or omissions cannot reasonably be identified. Turning to para 50, the statement does not state conduct to satisfy the elements of a New South Wales offence. In para 52, the conduct statement manifestly fails to allege conduct. Paragraph 55 identifies or submits a want or absence of the element of mens rea.
Specifically, in relation to para 62, it is submitted that no inferences arise from the material therein. Paragraph 69, more particularly, that mens rea should not be drawn from the available material. In para 79, the submission “approving me of the decision of Weinberg J in Timar v The Republic of Hungary”. The test must be whether the document relied upon meets all the essential elements of each offence for which surrender is sought. It clearly identifies the provisions of the foreign law creating an offence and the maximum penalty. As to the dual criminality request, it is simply submitted that it is not met.
For the respondent’s part and focusing initially on the eligibility for surrender component or aspect, the Court does not cavil with, specifically or expressly, paras 1 through 60 in the submissions which includes an encapsulation of the alleged offending behaviour in Indonesia or, more particularly, as identified in paras 58 through to 63. That conduct would, on the respondent’s submissions, translate to offending behaviour or offences in New South Wales specifically under 192E of the New South Wales Crimes Act and/or 184 of the Corporations Law.
GIVEN THE NATURE OF THE PROCEEDING BEING CONDUCTED HERE TODAY, THE COMPETING SUBMISSIONS TOUCHING SPECIFICALLY ON THOSE ASPECTS PERTINENT TO MR LIEM AS THEY TOUCH UPON S 19, THE COURT WOULD ULTIMATELY MAKE TWO DETERMINATIONS; FIRSTLY, THAT MR LIEM IS ELIGIBLE FOR SURRENDER AND THAT THE SUPPORTING MATERIAL OR, MORE SPECIFICALLY, ANNEXURE C, WHILST NOT ACCORDING WITH NEW SOUTH WALES AND/OR AUSTRALIAN PRACTICE OR PRACTICES, NEVERTHELESS ACCORDS WITH THE REQUIREMENTS OF THE SECTION AND I PROPOSE TO ADDRESS MR LIEM ACCORDINGLY.
125 The reasons recite the material and the submissions, but contain no analysis at all. There is simply a conclusion in the capitalised part that what is in Attachment C is sufficient, and the appellant is eligible for surrender. There is not even a finding, let alone an explanation for that finding, of what Australian or New South Wales offences should be identified for the purposes of s 19(2)(c). The Court might infer the s 19 magistrate accepted Indonesia’s arguments, but these matters should have been the subject of express findings.
126 It is difficult for this Court, in exercise of its appellate function in review of the primary judge’s orders, to be satisfied the s 19 magistrate understood, or correctly applied the principles about the approach to dual criminality, and how the s 19 magistrate used the extradition request and Attachment C to reach his conclusions on dual criminality. Decisions under the Extradition Act involve exercises of public power in serious circumstances, affecting the liberty and future of an individual. They are not to be approached lightly, or superficially. The appellant was entitled to a far more reasoned explanation of why the s 19 magistrate decided he was eligible for surrender than he received. However, given the nature of the s 21 review, the appellant received a full and careful reconsideration of his claims by the primary judge, and it is the decision of the primary judge with which this Court is principally concerned.
127 We respectfully agree with the observations of Weinberg J in Timar at , on which Indonesia had relied before the primary judge. In Timar Weinberg J stated:
It must also be recognised, however, that documents emanating from countries with which Australia has extradition arrangements will often be drafted in language and style which is very different from our own, and perhaps less than perfect from our perspective. Whether or not those documents can be said to meet the requirements of the Act is, as Gummow J observed in Wiest [Wiest v Director of Public Prosecutions (1988) 23 FCR 472], a matter for practical judgment. Such documents must, in my opinion, be read fairly, and not perversely.
128 This approach is particularly appropriate in considering the structure of the conduct statement, being the extradition request and what is described as “Attachment C”, the police report.
129 Accepting this approach, the authorities nevertheless demonstrate that this Court on a s 21 review, and in its appellate function, may well “delve into the detail” of a conduct statement. It is incumbent upon the s 19 magistrate to do the same. The s 19 magistrate must understand enough about the acts and omissions alleged against an individual, for each extradition offence, to be able to compare those alleged acts and omissions with the Australian offence or offences relied upon by the requesting state to satisfy the dual criminality requirement. The s 19 magistrate (and this court on a s 21 review) must undertake that task for the conduct constituting each extradition offence, upon which the requesting state relies.
130 As we have noted, it is difficult on the evidence to be satisfied the s 19 magistrate undertook this task in the way he was required to do. However the primary judge certainly did undertake it, at - in respect of the content of the conduct statement, and then how the acts and omissions alleged satisfied dual criminality at - in relation to s 192E of the Crimes Act, and at - in relation to s 184 of the Corporations Act. Those sections provide:
(1) A person who, by any deception, dishonestly:
(a) obtains property belonging to another, or
(b) obtains any financial advantage or causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty: Imprisonment for 10 years
184 Good faith, use of position and use of information—criminal offences
Good faith—directors and other officers
(1) A director or other officer of a corporation commits an offence if they:
(a) are reckless; or
(b) are intentionally dishonest;
and fail to exercise their powers and discharge their duties:
(c) in good faith in the best interests of the corporation; or
(d) for a proper purpose.
Note: Section 187 deals with the situation of directors of wholly-owned subsidiaries.
Use of position—directors, other officers and employees
(2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly:
(a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or
(b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation.
131 His Honour then added (at ) that he was also satisfied that the conduct statement revealed allegations which would satisfy, at least, the domestic money laundering offence in ss 400.9(1) and (lA) of the Criminal Code 1995 (Cth).
132 Accordingly, we do not accept the respondents’ first response as an answer to the appellant’s second argument on appeal. Looking at the detail of the conduct statement is essential. However, nor do we consider the second ground of appeal can succeed on the basis that, in this case, the conduct statement was so disorganised or insufficient as to preclude the requisite task under s 19 of ascertaining dual criminality from occurring. The primary judge was correct to see the conduct statement as sufficient to enable the s 19 magistrate and the Court to ascertain whether dual criminality existed.
133 Recalling the second function of a conduct statement as providing the foundation for a specialty assurance, it might be added that, if the statement fails to articulate some acts or omissions for the purpose of Indonesian law, one might consider this to be to the advantage of the person extradited in the courts of the requesting State, not to her or his disadvantage.
The respondents’ second response
134 The respondents’ second response is supported by authority and should be accepted. That means the appellant’s second argument on appeal must fail on this aspect as well.
135 As we have sought to explain above, the appellant’s argument invites the court to examine the terms of Arts 3 and 4 of Indonesia’s Law Number 8 of Year 2010, to identify the elements of each offence, and then to examine the statement of conduct to see if there are acts and omissions alleged which go to each element of the Indonesian offences. The appellant submits that is part of the task required under s 19(2), read with s 10(3), in determining whether a statement of the conduct constituting the offence has been produced.
136 The respondents rely principally on Rahardja v Republic of Indonesia  FCA 639 at - (Tamberlin J):
The next matter raised concerns the alleged insufficiency of the supporting documents. The applicants submits that in order to render a person eligible for surrender s 19(2)(a) requires that the “supporting” documents in relation to the “offence” must be produced. These documents are defined in s 19(3). This section requires the production of a warrant or duly authenticated copy of the warrant for the “arrest of the person for the offence”. An additional requirement under s 19(3)(c)(ii) is the provision of “a duly authenticated statement in writing setting out the conduct constituting the offence for which extradition is sought.” The submission developed on this wording is that the “offence” has not been properly identified in the documents. In support of this argument attention is drawn to Article 8 of the Treaty, which when read with s 22 of the Act, requires that a person extradited shall not be detained for any offence committed before the extradition other than the offence for which the extradition was granted. It is said that proper identification of the offence for which extradition is sought is necessary to ensure that his provision is compiled with. This distinction is said to be separate from that of establishing dual criminality.
The warrants relate to an offence under the Indonesian Banking Law. With respect to the first warrant it is said that neither the date, place or time of the alleged offence is specified, nor is the particular conduct from which it can be discerned how the warrant relates to the conduct alleged in the Statement of Acts and Omissions. It is said an examination of the Statement of Acts and Omissions does not assist the respondent because although it purports to allege one offence it in fact discloses three separate offences committed on three separate dates. It is also said that the language used in the warrant improperly alleges two offences under Article 49 cl 1(a) of the Indonesian Law. In relation to the second warrant it is said that it is similarly defective. Further in respect of the offence in the second warrant it is said that the wording failed to specify which Indonesian Banking Law the Bank is alleged to have contravened.
It is therefore submitted that the warrants and statements of alleged conduct failed to identify the “offence” for which the extradition is sought with sufficient precision. It is said that it is unclear which offences ground the two warrants and there is doubt as to the basis on which the request for extradition has been made. This amounts to non-compliance with the requirements for supporting documents under s 19(2)(a).
In my view there is no substance in these submissions. Whether a s 19(3)(c)(ii) statement adequately sets out the conduct constituting the offence is a matter of practical judgment: see McDade v United Kingdom (1999) FCA 1868 at par 13-17. In this case the conduct is sufficiently identified. There is no requirement that there should be a separate statement of the conduct constituting each offence.
The contention that the offences are duplicitous is a matter for Indonesian law and is not a matter for this Court.
137 In Linhart, at 587, Foster J contrasted the obligation on a requesting state to produce (as part of the supporting documents) a statement of conduct, and the obligation to produce a description of each offence in respect of which the surrender of the person is sought. The latter requirement is now found in s 19(3)(c)(i). This distinction is important in understanding why we reject the appellant’s arguments about the statement of conduct. So is the next passage in Foster J’s reasons (at 587):
It is clear that considerably more is required to be placed before the magistrate under sub-subpara (C) than under sub-subpara (B). The question is what factual detail do the words of this item require in the statement? For instance, is it necessary to allege all primary facts from which an inference of fraudulent intent might be drawn at a hearing of the charge or, conversely, is it sufficient merely to allege, in terms, the fraudulent intent? It is clear that the document is a very important one. Upon the material contained in it, the magistrate will determine, (inter alia) whether an “extradition crime” has been sufficiently demonstrated to produce satisfaction that the accused is liable to be surrendered to the requesting State. If that be so, he is further liable to be committed to prison by the magistrate to await the Attorney-General’s warrant. Although the proceedings before the magistrate are in no way equivalent to a trial of the offence, nor indeed, even to committal proceedings, they, nevertheless, involve the liberty of the subject. It is, in my view, in every way reasonable, that sub-subpara (C) should be read as placing a definite onus upon the requesting State to produce clear allegations of fact to support the basic proposition that on those facts or their equivalent, the accused would have committed an offence under Australian law in the relevant part of Australia.
138 This passage from Foster J’s reasons illustrates the connection between the purpose of a conduct statement, and the focus in the authorities on the clarity of a conduct statement, including what kinds of detail – in terms of alleged acts and omissions – it should contain. The connection is so that the s 19 magistrate or judge can perform the dual criminality exercise. In other words, there must be sufficient particularity to ascertain whether the alleged acts and omissions constitute a crime in Australia. The function is not to ascertain whether the alleged acts or omissions constitute a crime in the requesting state: here, Indonesia. That will be a matter for the Indonesian courts, subject only to exceptional circumstances such as where an individual might allege charges have been fabricated for an improper purpose and the absence of any correlation between the conduct statement and any criminal offence in the requesting state goes to prove such a contention. That is not this case.
139 Here, the appellant invites the Court to examine the conduct statement to determine whether it sufficiently sets out the acts and omissions necessary to constitute the Indonesian offences under Arts 3 and 4 of Law Number 8 Year 2010. That was no part of the s 19 magistrate’s function, nor the primary judge’s function on review and there is no error in their respective failures to embark on that task. If the conduct alleged against the appellant is defective in Indonesian law in relation to the money laundering offence, that will be a matter for the Indonesian courts. The extent of the specialty protection the appellant will have in Indonesia may also be relevant – but those will all be matters to be determined in Indonesia, if the appellant is eventually surrendered.
140 We are confirmed in this view by what French J (as his Honour then was) said in Cabal (No 3) at -. The decision related to two individuals whose extradition was sought by Mexico, in relation to a number of extradition offences. In this part of what were extensive reasons on a wide range of challenges made on the s 21 review by Mr Cabal, and Mr Pasini, French J was dealing with an argument that the statements of the conduct constituting the offences produced pursuant to s 19(3)(c)(ii) were not valid statements for the purposes of the Extradition Act. The basis for that contention was that where the statement of conduct purported to relate to a particular offence or offences, the statement included conduct relating to two or more offences. French J said at :
It was submitted for Mexico that the proposition in McDade does not extend to requiring the magistrate to allocate particular facts alleged in the statement of conduct to particular offences against the law of the requesting country. That task would, it was said, involve the magistrate in deciding which facts were necessary to make out an offence against the foreign law and whether the facts alleged were sufficient for that purpose. In this connection it is appropriate to refer to what the Full Court said in Zoeller (at FCR 300; ALR 357):
The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed, is for the purpose of the proceedings before the magistrate, proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law.
The clarity, coherence and specificity required of the statement relates to “the actual acts and omissions which are said to constitute the offence”. This is a reference to the description of the conduct set out, not its relationship to the offence alleged in the requesting country. That relationship is asserted and must be accepted by reference to what is set out in the statement of offence. The comment in the judgment of Kenny J in McDade that, in that case, it was “not difficult to relate each charge to that part of the statement which narrates the relevant alleged conduct” does not set out a general principle that it is necessary to do so.
141 At -, French J continued:
In the present case the magistrate applied the correct test as enunciated above saying at (p 39 of the reasons):
It is clear from the authorities that an Extradition magistrate is not intended to undertake the task of seeking to match a local offence to the offence for which extradition is sought, but rather to look to the conduct set out in the statement of conduct contained in the supporting documentation produced in order to determine whether, had that conduct occurred in Victoria at the time when the extradition request was received, would the elements of an offence punishable by a penalty of imprisonment for 12 months or more have been made out.
Taking as they do, the threshold point that various of the statements, by virtue of their aggregation of conduct constituting the offences, do not link particular elements of that conduct to particular offences against Mexican law, the applicants say they are incapable of discerning whether dual criminality is established. Consistently with that logic, they do not traverse the actual allocation of conduct to offences against Australian law which the magistrate has carried out.
Mexico in its written submissions has offered a detailed justification of the allocation of the conduct in the statements to offences against Australian law. These offences involve contraventions of s 232 of the Corporations Law and ss 74, 81 and 82 of the Crimes Act 1958 (Vic). I do not propose to replicate that exercise. It is not suggested that the conduct set out cannot be identified with breaches of relevant Australian law. The point taken by the applicants is that it is not possible to discern which parts of the conduct in each statement of conduct relate to the asserted offences against Mexican law. The step is not a necessary one. Paragraphs 40 and 41 of the amended application do not therefore make out a ground of review.
142 In asking the Court to examine whether in the statement of conduct there are allegations of acts and omissions which are sufficient to correlate to the elements of the Indonesian money laundering offence (and in particular the “disguising” element), the appellant asks the Court to embark on a task which s 19 does not require.
143 Even if it were necessary to be able to identify the parts of the statement of conduct that address the elements of the money laundering offence, we find that the statement of conduct, while perhaps not ideal, would nonetheless satisfy that requirement. Having regard to the relevant principles concerning statements of conduct, it is open to read those parts of Attachment C which summarise Mr Donny’s evidence as addressing the element of “hiding or disguising” that is present in the Indonesian money laundering offence.
144 In fact, the appellant’s submissions, summarised at , go beyond merely challenging whether the statement of conduct adequately sets out the conduct constituting the money laundering offence, and in substance amount to challenging whether the facts contained in the statement are capable of making out the charge.
145 While it is not possible from his reasons to know exactly what the s 19 magistrate did or did not do, we are confident the primary judge did not embark on this task, and was correct not to do so.
The dual criminality argument
146 Grounds 2A and 2B of the amended notice of appeal contend in the absence of a conduct statement compliant with s 19(3)(c)(ii), read with s 10(3), there was insufficient material on which the dual criminality analysis could be carried out for either the money laundering offence, or the embezzlement offence and therefore there was no basis on which the s 19 magistrate could find that the conduct said to constitute either offence would have constituted an extradition offence in any part of Australia.
147 It will be apparent that these grounds must fail because the premise on which they are based (of a legally insufficient statement of conduct) has been rejected.
resolution of the judicial review APPLICATION
148 Insofar as grounds 1A, 5A and 6 challenge the validity of the s 16 notice, they must be rejected for the reasons we have given above in relation to the appellant’s first argument concerning whether the money laundering offence is capable of being an extradition offence.
149 The appeal must be dismissed. The Court repeats its gratitude to counsel for the appellant, and to the instructing solicitor for the appellant, for their assistance to the appellant and the Court. The appeal was conducted in a highly efficient and effective manner, and the arguments which were raised were substantial.
150 The respondents sought their costs if the appeal was dismissed. The parties will be given an opportunity to agree on the question of costs, failing which the process under the Court’s Practice Note about lump sum costs will need to be followed.
NSD 2067 of 2017