FEDERAL COURT OF AUSTRALIA

Zentai v Republic of Hungary [2009] FCA 284

EXTRADITION - application for review of magistrate's determination on eligibility for surrender to an extradition country pursuant to s 19 Extradition Act 1988 (Cth) - function of magistrate - whether Extradition Treaty with Hungary affects the determination of eligibility for surrender - whether Treaty modifies the meaning of “extradition offence” in s 5 of the Extradition Act - whether Treaty modifies s 19 so as to require magistrate to consider whether the offence in respect of which extradition is requested was an extradition offence.

Extradition Act 1988 (Cth), ss 3(a), 5, 6, 7, 10(4), 11, 12, 15, 16, 19, 21(2), 22, 23

Extradition (Republic of Hungary) Regulations 1997

Hungarian Criminal Code Act IV of 1978, s 165   

Bennett v United Kingdom(2001) 179 ALR 113 discussed

Brock v Minister for Justice and Customs (2007) 243 ALR 315 cited

Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 referred to

Federal Republic of Germany v Parker (1988) 84 FCR 323 cited

Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 referred to

Kainhofer v DPP (No 2) (1996) 70 FCR 184 applied

Oates v Attorney-General of the Commonwealth (2002) 118 FCR 544 cited

Papzoglou v Republic of the Philippines(1997) 74 FCR 108 applied

Republic of South Africa v Dutton (1997) 77 FCR 128 cited

Singh v USA (1997) 77 FCR 280 cited

Snedden v Republic of Croatia [2009] FCA 30 cited

Todhunter v United States of America(1995) 57 FCR 70 cited

Zoeller v Federal Republic of Germany (1989) 90 ALR 555 not followed

CHARLES ZENTAI v REPUBLIC OF HUNGARY and BARBARA LANE

WAD 178 of 2008

GILMOUR J

31 MARCH 2009

PERTH

THE COURT ORDERS THAT:

1.                  The order of the second respondent made pursuant to s 19(9) of the Extradition Act 1988 (Cth) on 20 August 2008 be confirmed.

2.                  The application dated 20 August 2008 be dismissed.

3.                  The applicant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     The Republic of Hungary, made a request to the Attorney-General of the Commonwealth for the extradition of Mr Charles Zentai, who is alleged to have committed a war crime in Budapest on 8 November 1944.  Hungary alleges that in the afternoon of that day, as a member of Horse-Drawn Train Division 1 of Corps 1 of the Hungarian Royal Army, while providing patrol service with the aim of capturing Jewish people in hiding, Mr Zentai dragged a young Jewish man, Peter Balazs, to his unit’s army post where along with two other soldiers he assaulted the young man as a result of which he died later that evening.  It is further alleged that the applicant, with the two other soldiers, fixed ballast to the body of Peter Balazs which they then threw into the River Danube.  

2                     The offence allegedly committed by the applicant was the war crime established by s 165 of the Hungarian Criminal Code Act IV of 1978 in conjunction with s 11 para 5 of Law-Decree No 81/1945 (II.5) ME on the Peoples Jurisdiction enacted by Act VII of 1945 amended and complimented by Decree No 1440/1945 (V.1.) ME (“the war crime”). 

3                     It is no part of the extradition process to determine the guilt or innocence of the person whose extradition is sought: s 3(a) Extradition Act 1988 (Cth) (“the Act”).

4                     A written notice dated 8 July 2005 was issued by the Attorney-General under s 16(1) of the Act addressed to a magistrate (the Notice).  The Notice set out as the “extradition offence” the terms of the war crime. 

5                     An extradition hearing under s 19 of the Act took place before the second respondent, a magistrate, in Perth, Western Australia on 18 August 2008.  Section 19(1) of the Act confers the statutory jurisdiction on a magistrate to determine whether the applicant is eligible for surrender to an extradition country in relation to an extradition offence.  On 20 August 2008, the second respondent determined that the applicant was eligible for surrender and, pursuant to s 19(9) of the Act, by warrant in statutory form, ordered the applicant to be committed to prison pending the determination by the Attorney-General of the Commonwealth, pursuant to s 22 of the Act, as to whether or not he was to be surrendered to Hungary.

6                     By reason of s 11, the Act applies in relation to extradition requests by Hungary subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty on Extradition between Australia and the Republic of Hungary concluded on 25 October 1995, (“the Treaty”) a copy of which is set out in the Schedule to the Extradition (Republic of Hungary) Regulations 1997 (“the Regulations”).

7                     The provisions of Art 2 para 5 of the Treaty are central to the applicant’s contention that, for the purposes of performing her function and powers under s 19 of the Act the magistrate was required, first, in order to be satisfied that she had “jurisdiction”, to enquire as to whether the alleged war crime was an “extradition offence”.  The magistrate did not do this. Article 2 para 5 provides as follows:

Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:

(a)        it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and

(b)        the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.

8                     The war crime was not, in terms, an offence in November 1944.

The Application

9                     The applicant, pursuant to s 21 of the Act, seeks a review of the second respondent’s determination of 20 August 2008.  Section 21(2) of the Act confines the power of the review court to confirming or quashing the order of the magistrate; the matter cannot be remitted to the magistrate - Zoeller v Federal Republic of Germany (1989) 90 ALR 555 at 563 and Brock v Minister for Justice and Customs (2007) 243 ALR 315 at 321.  Where a review process undertaken by a court concerns, as is the case here, an issue arising under s 19(2) of the Act, that review is undertaken by way of a  rehearing: Republic of South Africa v Dutton (1997) 77 FCR 128 at 136; 147 ALR 310 at 317.  Section 21(6)(d) of the Act prescribes that the review court shall have regard only to the material before the magistrate: Zoeller at 582; Brock v Minister for Justice and Customs at 321; Snedden v Republic of Croatia [2009] FCA 30 at [18].

10                  The application is supported by the affidavit of Denis Barich, the applicant’s solicitor, sworn on 20 August 2008.  It includes the grounds for review.  

The Statutory Framework

11                  The expression “extradition offence” is defined in s 5 of the Act to mean:

(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.

12                  The expression “extraditable person” is defined in s 6 as follows:

Where:

(a)        either:

            (i)         a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; 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.

13                  Under s 12(1) of the Act an extradition country may apply to a magistrate for the arrest of a person and if the magistrate is satisfied that the person is an extraditable person, the magistrate shall issue a warrant for the arrest of that person.  An “extraditable person”, by virtue of s 6, includes a person with respect to whom a warrant is in the force for that person’s arrest in relation to an offence against the law of another country.

14                  Under s 15 the arrested person is brought before a magistrate to be remanded in custody or released on bail pending the conduct of proceedings under, relevantly, s 19 of the Act.

15                  The extradition country may then make an “extradition request”.  This is defined in s 5 of the Act to mean a request, in writing, by an extradition country for surrender of a person to the country relating to the person to the Attorney-General who may give a notice to a magistrate that such a request has been received.  

16                  By s 16(1) of the Act, upon receipt of such a request, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.  The Attorney-General shall not give the notice under s 16(1) unless he or she is of the opinion, amongst other things, that the person is an extraditable person in relation to the extradition country.

17                  Under s 19(1), where the Attorney-General has given a notice under s 16(1), and the extradition country applies for proceedings to be conducted in relation to the person, “the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence for which surrender of the person is sought by the extradition country”.  

18                  In determining, in accordance with s 19 of the Act, whether the applicant is eligible for extradition the magistrate performs an administrative, and not judicial, function and acts in his or her personal capacity as persona designata, not as a member of the Magistrates Court of Western Australia.  

19                  A person is only eligible for surrender under s 19(2) of the Act if the supporting documents in relation to the offence have been produced to the magistrate and the magistrate is satisfied that, if the conduct of the person constituting the offence in the extradition country had taken place in the part of Australia where the proceedings are being conducted, and at the time when the extradition request was received, the conduct would have constituted an extradition offence in relation to Australia.  If the person satisfies the magistrate that there are substantial grounds for believing that there is an “extradition objection” within the meaning of s 7 in relation to the offence, the person is not eligible for surrender.

20                  Under s 19(9) of the Act where the magistrate determines that the person is eligible for surrender to the extradition country, the magistrate shall commit the person to prison to await surrender under a surrender warrant or release pursuant to an order under s 22(5). 

21                  If the magistrate makes an order under s 19(9) the extraditable person becomes an “eligible person” by virtue of s 22(1) of the Act.  Under s 22(2) the Attorney-General then determines whether the eligible person is to be surrendered. The Attorney-General must be satisfied concerning certain conditions specified in s 22(3).  These include that there is no extradition objection, that on surrender the person will not be subjected to torture, or where, because of s 11, the Act applies in relation to the extradition country subject to a limitation or exception that requires surrender be refused.  If the Attorney-General determines that the eligible person is not to be surrendered, the Attorney-General, pursuant to s 22(5), shall order the release of the person.  If the Attorney-General determines that a person is to be surrendered in relation to an extradition offence, the Attorney-General shall, in accordance with s 23, issue a warrant for the surrender of the person to an extradition country.

22                  The different stages of the extradition process within the framework of the Act were summarised by the Full Federal Court in Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 389.  The Full Court observed:

The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand; (3) Determination by a magistrate of eligibility for surrender; (4) Executive determination that the person is to be surrendered.  In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional arrest warrant under s 12(1) or by the giving of a notice under s 16(1).  Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19.  Where a person is on remand under s 15 and the Attorney-General has given notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender.  If eligibility is so determined by the magistrate, a provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.

THE ACT and the EXTRADITION TREATY

23                  By virtue of s 11(1)(a) of the Act, regulations may state that the 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.  Relevantly, Hungary is declared to be an extradition country pursuant to regulation 3 of the Regulations.  By virtue of s 5 of the Act any country “that is declared by the regulations to be an extradition country” is an “extradition country” for the purposes of the Act.

24                  Section 11(1C) of the Act provides that for the purposes of sub-s (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.” By virtue of regulation 4 of the ons, the Act applies in relation to the Republic of Hungary “subject to the Treaty.”  Regulation 4 provides: “The [Act] applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (a copy of which is set out in the Schedule).”  The effect of the regulations is to import the terms of the Treaty into the municipal law: Todhunter v United States of America (1995) 57 FCR 70 at 76.  This is subject to the provisions of s 11(6) of the Act. 

25                  Section 11(6) of the Act provides that for the purpose of determining whether a person is eligible for surrender under s 19(1) “no limitation, condition, qualification or exception otherwise applicable under this section … has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).” 

The Determination of the Magistrate

26                  The hearing before the second respondent was the third stage in these extradition proceedings; that is, a determination under s 19 of the Act as to whether the applicant was eligible for surrender.  

27                  The second respondent held that she was confined to considering the matters specified in s 19(1) and (2) and could not, in determining eligibility for surrender, have regard to any other matter falling outside the ambit of those provisions.  In particular the second respondent held that she could not go behind or examine the Notice so long as it appeared on its face to comply with the requirements in s 16.  The magistrate, in effect, noted that once she had been satisfied about the existence of the conditions specified in s 19(1) she was required to have regard to the requirements of s 19(2) only and was not required to consider any of the terms of the extradition treaty.

28                  The second respondent rejected the applicant’s submission that the alleged conduct did not constitute an extradition offence on 8 November 1944 for the purposes of the Act and the Treaty, holding that the Attorney-General had already determined, pursuant to s 16 of the Act, that the applicant was an extraditable person in relation to the extradition country and that a s 19 hearing proceeds on the basis that a person is an extraditable person as defined in s 6 of the Act.

Grounds for review

29                  The applicant submits the following grounds for review:

1          The second respondent failed to determine whether she had jurisdiction under s 19 of the Act to determine whether Article 5(2)(a) of the Treaty modified the operation of the Act, with the result that the Applicant is only eligible for extradition to Hungary, if the conduct alleged to commit the extradition offence actually constituted an offence in Hungarian law at the time it was alleged to have occurred, namely, on 8 November 1944.

2          By virtue of s 19(1) of the Act, the second respondent could only exercise jurisdiction to commence eligibility proceedings under s 19 of the Act to determine the eligibility of the applicant for extradition to Hungary if there was a specific offence in existence at the time that the conduct alleged to constitute that offence occurred.

3          The offence created by Decree No 81/1945(II.5) ME on People's Jurisdiction (Act VII of 1945) (V.1) ME did not exist and have effect in Hungarian law on 8 November 1944.

4          With respect to the issues referred to in paragraphs 1, 2 and 3, the second respondent concluded that the Decree had retrospective effect for the purposes of the Act and consequently, she dismissed the construction of the Act and the Treaty submitted by the applicant.

5          The second respondent erred in law in that she should have held that:

a.      She was required to determine whether she had jurisdiction to conduct the eligibility proceedings;

b.      By virtue of the modified operation of the Act effected by Article 5(2) of the Treaty and the Regulations she was precluded from proceeding to make an order that the Applicant was eligible for extradition as the Warrant does not disclose that at the time of the alleged offence there existed a law in the Republic of Hungary making the offence referred to in paragraph 8(a) of my affidavit unlawful; and

c.      That, on a proper construction of the Act and Treaty, the Decree did not have retrospective effect for the purposes of the Act;

d.      In all the circumstances, the second respondent accordingly should have made an order dismissing the Application for Surrender for Extradition to the first respondent.

The Applicant’s Submissions

30                  The applicant, in his written submissions, contendsthat to identify, for the purposes of the Treaty, an extraditable offence upon which a request for extradition may be based regard must be had to Article 2 of the Treaty.

31                  The applicant submits that Art 2 para 5 affects the primary operation of the Act’s provisions by altering the definition of “extradition offence” in s 5 of the Act to exclude certain offences and, accordingly, it has a significant effect on the operation of s 19 of the Act, including s 19(2)(c) regarding double criminality.

32                  By virtue of Art 2 para 1 of the Treaty extraditable offences “are” offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty.  Article 2 then addresses the way in which conduct alleged to have been committed by the person whose extradition is sought, satisfies, or, impliedly, fails to satisfy the constitutive elements that make that conduct an offence, at the relevant times, in both Hungary and Australia: Art 2 para 2 of the Treaty. 

33                  The applicant submits thatfor temporal purposes, by reason of Art 2 para 5, extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence to which extradition is sought was committed, provided that:

(a)        it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and

(b)        the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.

34                  The applicant then submits thatin accordance with that Treaty provision extradition may be granted pursuant to the Treaty irrespective of when the offence in relation to which extradition is sought was committed subject, however, to the extent that its operation is modified by the proviso that the “extradition offence” must have been an offence in Hungary at the time of the acts or omissions constituting the offence took place.

35                  The warrant in support of Hungary’s extradition request discloses that:

(a)        The specific extradition offence in relation to which the Requesting State seeks the applicant’s extradition (“the specified offence”), as described in that warrant is a war crime as referred to in s 165 of the Criminal Code of Hungary (Act IV of 1978) and s 11, para 5 of Decree No 81/1945(II.5) ME on People’s Jurisdiction (Act VII of 1945), amended and complemented by Decree No 1440/1945 (V.1) ME;

(b)        The specified offence was allegedly committed on 8 November 1944;

(c)        On 3 March 2005 the Military Division of the Budapest Metropolitan Court issued a warrant for the arrest of the Applicant;

(d)        The punishment for the offence is imprisonment for life or imprisonment from 10 to 15 years.

36                  The specified offence, namely, the war crimewith which the applicant is charged was originally created in 1945.

37                  It was by reason of the 1945 decree that the acts which the applicant is alleged to have carried out at a prior time, were effectively deemed to be an offence and became subject to criminal liability and punishment ex post facto, even though the particular statutory offence did not exist on 8 November 1944.

38                  Accordingly, the applicant submits, heis not eligible for extradition to Hungary in relation to the extradition offence.

39                  The applicant submits that the provisions of the Treaty operate in relation to the Act in the following way:

(a)        The Act is to be interpreted in the light of its objects.  One of the principal objects of the Act according to section 3(c) of the Act is to enable Australia to carry out its obligations under extradition treaties.  This includes observance of and compliance with reciprocal obligations under the present Treaty.

(b)        The proviso to Article 2, para 5(a) should be read strictly as removing from the category of extraditable offences, offences that did not have legal force in Hungarian law so as to create liability to punishment at the time the “offence” was said to have taken place.  Regarding the strict construction of provisos see Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79, per Aickin J [11-15]; Minister of State for the Army v. Dalziel [1944] HCA 4; (1944) 68 CLR 261, at 274-275 (Latham CJ).

(c)        Section 19(2) states the eligibility requirements for surrender and corresponds to Article 3 of the Treaty concerning "exceptions to extradition."  The exceptions there listed comprise "limitations, conditions, qualifications or exceptions” that are rendered applicable to the proceedings by reason of section 11(6) of the Act.  Section 11(6) is, in other words, to be construed in light of Article 3.  By virtue of section 11(6) no limitation, condition, qualification or exception otherwise applicable under section 11 “…has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in para 19(2)(a), (b), (c) or (d).”  The matters to which a magistrate may have regard under para 19(2)(a), (b), (c) or (d) therefore comprise considerations to which a magistrate must have regard in the course of exercising her jurisdiction under subsection 19(1).

(d)        Section 11(6) does not, however, preclude the magistrate from having regard to the matters arising under Article 2 of the Treaty where they go to the magistrate’s jurisdiction.  Article 2 is relevantly headed “Extradition offences” thereby establishing what is an extradition offence for the purposes of the Treaty and hence, the Act.  Subject to section 11(6) the effect of Article 2 of the Treaty in defining the elements of a relevant “extradition offence” is to provide the foundation for the jurisdiction of a magistrate under section 19(1) of the Act and is therefore relevant to the determination of whether the Applicant is to be extradited.  It prescribes the offence(s) in respect of which an extradition request can properly be sought.

(e)        Whether there is a valid extradition offence is therefore a threshold matter that goes to the existence of the jurisdiction under section 19(1) itself.  To the extent that s 11 incorporates Article 2, para 5 of the Treaty it is of the essence of that jurisdiction that an offence was in existence at the time when the relevant conduct occurred. That matter is not therefore, in terms of section 11(6), “a limitation, condition, qualification or exception” relating to “any matter other than a matter set out in para 19(2)(a), (b), (c) or (d)”.

40                  The applicant accepts that in expressly confining matters to which, when exercising jurisdiction, the magistrate can properly have regard under s 19(2) of the Act.  Section 11(6) by implication removes from the magistrate’s consideration other matters such as the age or health of the person or whether the person will be tried in a competent tribunal in accordance with the requirements of the Treaty.  Those matters, the applicant submits,may be taken into account by the Attorney-General when making the final decision relating to surrender under s 22 of the Act, but those exclusions do not absolve the magistrate from determining the fundamental requirement that there be an extradition offence in terms of the Act, as substantively modified by the Treaty.

41                  The applicant submits that the existence of an “extradition offence” is not co-terminus with a person being an “extraditable person”. While a s 19 magistrate is not competent to revisit the question of whether a person is an extraditable person for the purposes of ss 12 and 16 of the Act, the magistrate, nonetheless, must consider whether the relevant offence is an “extradition offence” and is, accordingly, one for which the person could be eligible for surrender.  

42                  Finally, the applicant submits that if s 11(6) of the Act excludes consideration of Art 5 para 2, it leaves no role for that Article to play in the determination of eligibility, which is itself predicated on the existence of an extradition offence.  To ignore that requirement renders the applicant liable to coercive restrictions on his civil liberties once the magistrate makes a committal order.  It would be extraordinary, says the applicant, if, given the specificity of the Treaty on this aspect of retrospectivity the matter is left to the ultimate determination of the Attorney-General under s 22 of the Act at the end of the extradition process.

Reasoning

43                  In Director of Public Prosecutions v Kainhofer (1995) 185 CLR 528 at 537, consideration was given to the jurisdiction of a magistrate exercising functions under s 19 of the Act.  In the joint judgment of Brennan CJ and Dawson and McHugh JJ (with whom Toohey J agreed), it was held that the conditions of jurisdiction prescribed by s 19(1) must be satisfied and then consideration must be given to the compliance of the supporting documents with the requirements of s 19(2)(a) and (b).  Then the character of the conduct of the person constituting the offence or equivalent conduct must be ascertained under sub-s (2)(c) and finally the magistrate must decide whether the person has shown any substantial grounds for believing that there is an extradition objection in relation to the offence under sub-s (2)(d) at p 537.

44                  However, their Honours concluded at p 538 that the power of a s 19 magistrate did not extend to the reviewing of the satisfaction of the original magistrate or of the opinion of the Attorney-General as to whether the person is an extraditable person.  Significantly their Honours said at p 539:

The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice.  Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made.  Treating the order of remand and the giving of the notice as valid, the s 19 magistrate must proceed on the footing that the person whose surrender is sought is an extraditable person and that the case falls within either par (a)(i) or par (a)(ii) of s 6. It would be a curious interpretation of s 19 to attribute to a s 19 magistrate the power to find that the person is not an extraditable person when the s 19 magistrate's authority depends on the contrary hypothesis. In the administrative sequence, that issue is committed only to the consideration of the magistrate under s 12(1) and the Attorney-General under s 16.

The function of the s 19 magistrate under sub-s (2)(a) of s 19 is concerned solely with the correspondence between the “supporting documents in relation to the offence” produced to the magistrate and the description of "supporting documents" in sub-s (3).  The “offence” referred to in sub-s (2)(a) is the offence referred to in sub-s (1), namely, “the extradition offence or extradition offences for which surrender of the person is sought by the extradition country”.  Given that the person is an extraditable person, “the offence” in s 19(2)(a) must be taken to be either an offence “that the person is accused of having committed” or an offence of which the “person has been convicted”.  (Emphasis added)

45                  In this case no question arises as to whether the magistrate was in error in being satisfied as to any of the matters set out under s 19(1) or (2) of the Act.  The issue is whether Article 2 para 5 of the Treaty operates upon s 19(1) so as to require the magistrate to consider whether, as a matter of law, the offence, namely the alleged war crime, was an extradition offence within the meaning of the Act.  In my opinion the reasoning in Kainhofer is apt to the present case.  The opinion of Attorney-General, necessarily formed under s 16(2)(a)(i) of the Act and prior to giving the Notice under s 16(1), that the applicant is an “extraditable person” is not reviewable under s 19 by the magistrate.  Neither, in my view, is the related opinion of the Attorney-General reviewable that the offence articulated in the extradition request is an “extradition offence” for the purposes of the Act.  Before forming the opinion that a person is an “extraditable person” the Attorney-General, by reason of s 6(b) of the Actmust be satisfied that the offence is an “extradition offence”.  

46                  Furthermore and for the particular purposes of s 19 of the Act “extradition offence” referred to there is, by virtue of s 10(4) of the Act, the extradition offence to which the notice relates.  Section 10(4) provides:

A reference in this Act to an extradition offence for which surrender of a person is sought by an extradition country is, in relation to a time after the Attorney-General has given a notice under subsection 16(1) in relation to the person, a reference to any extradition offence to which the notice (including the notice as amended) relates.

The Notice in this case expresses the extradition offence to be the alleged war crime.  

47                  In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 a Full Court of this Court held at 303-4 that in order to determine whether a person was “eligible for surrender” the magistrate was required to determine, amongst other things, whether the offence was one which qualifies as an “extradition offence”.  In my opinion Zoeller, on this point, has been impliedly overruled by Kainhofer and for that reason I would not follow it.  I am conscious that Katz J in Bennett v United Kingdom (2001) 179 ALR 113 at [6], which was decided after Kainhofer, followed Zoeller on this point.  As his Honour observed, however, no argument was mounted that Kainhofer by implication overruled Zoeller in this respect and he did not consider the merits of such an argument.

48                  I apprehend that the applicant accepts the application of Kainhofer generally to cases concerning s 19 of the Act.  However, the applicant says that his is a unique case and it is the modification, at least, of s 19 by Article 2 para 5 of the Treaty which renders his position unique. 

49                  The answer to this submission is, in my opinion, found in the provisions of s 11(6) of the Act which provides:

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 to be satisfied of any matter other than a matter set out in paragraph 19(2)(a), (b), (c) or (d).

50                  As a Full Court of this Court held in Papzoglou v Republic of the Philippines (1997) 74 FCR 108 at 140, s 11(6) of the Act makes clear that whatever the proper construction of s 19(2) of the Act, the matters that a magistrate has to consider in proceedings to determine eligibility for surrender under s 19(2) do not include restrictions or limitations arising under a treaty.  In my opinion, the same necessarily applies to the application of s 19(1) of the Act.

51                  The applicant sought to distinguish the terms of the treaty relied upon in Papzoglou from Article 2 para 5 which is relied upon in this case.  He submits that the treaty provision that was sought there to be incorporated in the s 19 process was a treaty provision that required the requested state to take into account the question of whether the extradition of the person would be unjust, oppressive, incompatible with humanitarian considerations, or too severe a punishment.

52                  I do not accept this submission, to the effect that s 11(6) is directed only to the operation of s 19(2)(a)-(d).  In terms it governs the whole of s 19 and, in particular, is directed to the determination under s 19(1) by the magistrate as to eligibility for surrender of the person in relation to the extradition offence.

53                  I observed earlier, at [31]-[32] above, that the written submission of the applicant, concerning the effect of Art 2 para 5 of the Treaty upon the Act, was that it altered the definition of “extradition offence” in s 5 to exclude, in this case, an offence which was not an offence at the time the acts or omissions constituting the offence took place.  In oral argument the applicant appeared to focus his submission rather on the effect Art 2 para 5 was said to have upon the matters to be considered by the magistrate under s 19(1) of the Act. 

54                  Nonetheless, there is some support to be found for the applicant’s earlier written submission in the observations of O’Loughlin and Whitlam JJ in Oates v Attorney-General of the Commonwealth (2002) 118 FCR 544 at [25]. 

55                  However, even if this submission were made good it could not, in my opinion, affect the result in this case.  I have already noted the binding effect of the opinion of the Attorney-General expressed in the Notice, that the applicant is an extraditable person.  It was open to the applicant to have sought review under s 39B of the Judiciary Act 1903 (Cth) of the Attorney-General’s decision to issue the Notice under s 16(1) of the Act: Kainhofer at pp 538-539.  He did not do so. 

56                  Article 2 para 5 of the Treaty may operate in respect to s 16 and may also operate upon the exercise of the discretion of the Attorney-General under s 22(3)(e) of the Act.  This is at the fourth phase of the extradition proceedings which are yet to occur: Todhunter v United States of America at p 75; Papzoglou at p 130.

57                  Accordingly, contrary to the submission of the applicant, Art 2 para 5 may have work to do in modifying the Act other than in respect to s 19.  It is unnecessary for me to advance an opinion in these respects.

Conclusion

58                  It is my determination that the applicant is a person eligible for surrender within the meaning of s 19(2) of the Act in relation to an extradition offence.  The war crime constitutes the extradition offence.  The order made by the second respondent pursuant to s 19(9) of the Act ought be confirmed by order, pursuant to s 21(2)(a) of the Act. 

59                  The application should be dismissed with costs.

Associate:

Dated:         31 March 2009