Attorney-General for Cth v Chu-Fai

[1997] HCATrans 395

IN THE HIGH COURT OF AUSTRALIA

Registry  No C12 of 1997

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH

Applicant

and

RONALD TSE CHU-FAI

First Respondent

THE GOVERNOR OF THE METROPOLITAN RECEPTION AND REMAND CENTRE

Second Respondent

Application for removal

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 22 DECEMBER 1997, AT 11.01 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, Solicitor-General for the Commonwealth:   Your Honour, I appear with MR M.A. WIGNEY, for the applicant Attorney.  (instructed by the Australian Government Solicitor)

MR D. JORDAN:   May it please the Court, I appear for the first respondent.  (instructed by Deacons Graham and James)

HIS HONOUR:   I should indicate that I have from the Deputy Registrar a certificate dated 18 December 1997 in which he states that he has been informed that the second respondent does not wish to be represented at the hearing of the motion for removal and will abide by any order of the Court save as to costs.  Yes, Mr Solicitor.

MR GRIFFITH:   Your Honour, this is an application under section 40(2) of the Judiciary Act by way of notice of motion dated 17 December.

HIS HONOUR:   There is an affidavit in support, is there?

MR GRIFFITH:   Yes, your Honour.  There is one of Sukhpal Singh.

HIS HONOUR:   Of 5 December?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   Yes, I have read that.

MR GRIFFITH:   Your Honour, there has also been filed submissions which were filed on Friday afternoon.  I apologise they did not ‑ ‑ ‑

HIS HONOUR: I have read the them. 

MR GRIFFITH:    ‑ ‑ ‑attach the draft minutes of order which your Honour now has and the notice of appeal.

HIS HONOUR:   I have them now

MR GRIFFITH:   But, your Honour, there are also filed submissions from the first respondent.  Has your Honour those?

HIS HONOUR:   Yes, a whole volume of them.

MR GRIFFITH:   Written submissions, your Honour.  The written ones, I think, are the best part for our purposes because ‑ ‑ ‑

HIS HONOUR:   Let me just ask Mr Jordan, Mr Solicitor.  What is the attitude of the respondent to this removal application?

MR JORDAN:  In short, your Honour, the first respondent accepts that in relation to the interpretation of section 5(b) of the Extradition Act there may be significant public interest given the direct consequences of the interpretation of that Act upon Australia’s relations with China.  However, the first respondent does not concede to removal within the terms of section 40(4).  Having said that, the first respondent also does not directly oppose the application but draws to the attention of the Court the obviously pending decision in the Court of Appeal ‑ ‑ ‑

HIS HONOUR:   I do not know if it is pending.  It has been initiated.

MR JORDAN:   Yes.  And also an equivalent question being dealt with in pending proceedings in the Federal Court.

HIS HONOUR:   In the Federal Court, yes, I saw that.  Can I just ask you this, Mr Jordan.  Am I right in thinking that - you mentioned the Act, but is it not really implicit, or explicit, in your client’s position that the Extradition (Hong Kong) Regulations No 123 of 1997 are invalid, at least in their application to your client?

MR JORDAN:   Yes.

HIS HONOUR:   That is what I thought.  Do you say they were invalid when they were made on 28 May, to come into effect on 29 June?

MR JORDAN:   Strictly speaking, they probably were valid as at 29 June because at that stage Hong Kong was still an extradition country under the ‑ ‑ ‑

HIS HONOUR:   Was still a British Crown colony.

MR JORDAN:   Yes, that is right.  But the position changed as of 1 July 1997.

HIS HONOUR:   What do you say is the effect of that change on the validity of the regulations?

MR JORDAN:   The effect of the change is that once Hong Kong was resumed in an exercise of sovereignty by China, with which Australia has no extradition treaty, Hong Kong - or as they refer to it, the Hong Kong Special Administrative Region of China - ceased to be an extradition

country within the meaning of the Act because it became simply a part of China.

HIS HONOUR:   There is a submission bound up in that, is there not, as to extradition country.  An extradition country is a polity, to use that expression, that has been declared by regulations.  That is right, is it not?

MR JORDAN:   Yes, that is right.

HIS HONOUR:   And there is this declaration by these regulations we have just been discussing.  So do you not have to interpret the definition in section 5 in the consequential regulation-making power as subject to some defeasance at some later stage if something else happens which brings about a change?

MR JORDAN:   Yes.  I mean, in our submission, it is simply this:  one of the purposes of the Extradition Act as set out in section 3 of the Act is to codify the law of extradition.  That is, to provide some form of protection from a unilateral exercise by the executive of its executive power under section 61 to extradite as referred to in Barton v The Commonwealth and in your Honour’s judgment in Ditfort.  Given that, it is our submission that the regulations, as in any other delegated legislation, must not be ultra vires the primary legislation.

HIS HONOUR:   That is right, but that then turns on the meaning of the primary legislation.

MR JORDAN:   That is right.

HIS HONOUR:   And this temporal question that I have been discussing with you, does it not?

MR JORDAN:   Yes, it does.

HIS HONOUR:   And that is bound up in this matter too.

MR JORDAN:   It is.

HIS HONOUR:   Thank you.  I am not sure it is expressed in the draft notice of appeal, it is fleshed out.

MR GRIFFITH:   Really, your Honour, the draft notice is attached for historical interest because, firstly, your Honour, we do not seek to turn this into a practically consent order under section 40(4). 

HIS HONOUR:   No, I understand that.

MR GRIFFITH:   But the other matter that has emerged, your Honour, is that it seemed from the three page judgment of the primary judge that this issue of the executive certificate has perhaps not been treated in the way that it deserves, certainly by attention of this Court, and your Honour, if we could leave the notice of appeal on one side, your Honour, and indicate that the points which we now identify as those of primary interest is to whether the executive certificate should be regarded as either conclusive or, failing that, of particular relevance.  This is an issue which your Honour touched upon in Ditfort and in the recent International Law in Australian Federalism, a volume of Mr Lindell ‑ ‑ ‑

HIS HONOUR:   Yes, I have read Mr Lindell’s article.

MR GRIFFITH:    ‑ ‑ ‑he summarises at pages 195 and 196 in a way that we would accept for the purpose of this application to say, well, there is an argument either it is conclusive, your Honour, or otherwise having a particular relevance.  That seems to be an issue which, to put it neutrally, your Honour, has been neglected down below.  It seems to us, logically, your Honour, that one should come into the appeal to get to the essence of it through the issue of how the certificate is to be regarded.

HIS HONOUR:   Yes.

MR GRIFFITH:   And if the certificate is regarded, as it may well be regarded on authority at the moment, your Honour, as conclusive, that will have one result.  Of course, now, your Honour, the first respondent raises the Chapter III response which could be one of several responses.  This is indicated by Mr Lindell’s article to the issue of conclusiveness.  One has a discrete issue there, your Honour, that does seem to be a constitutional issue and then, your Honour, one has the issues that your Honour touched upon as to the proper construction of section 5, particularly paragraph (ii), and the relationship of the continuing operation of the regulations after 30 June.  At that stage, your Honour, one has undoubtedly an interesting, we would submit, important case, probably a constitutional one, as we see it.

HIS HONOUR:   Yes.  Now, I would be minded to order a removal of the whole of the cause pending in the New South Wales Court of Appeal.  The question then is what happens, it being here?

MR GRIFFITH:   Your Honour, we were proposing - we had a shot at it - to consider questions - - -

HIS HONOUR:   Just before that.  It is a question of what should be done under section 18, I suppose, of the Judiciary Act, rather than attempt at this stage to - the first point, I suppose, is that there is no disputed issues of fact.

MR GRIFFITH:   No, your Honour.

HIS HONOUR:   That is so, is it not, Mr Jordan?

MR JORDAN:   Yes, it is, your Honour.

HIS HONOUR:   That being so, I would be presently minded, under section 18, to direct that the whole of the cause be argued before a Full Court.

MR GRIFFITH:   I would have thought it could be disposed of, yes, your Honour.

HIS HONOUR:   In other words, in a practical sense, the hearing here would be in place of and superior to, in a doctrinal sense - - -

MR GRIFFITH:   But there might be residual questions that could be remitted for their final order.

HIS HONOUR:   The Court of Appeal.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   There might be.

MR GRIFFITH:   But as for a court of appeal.

HIS HONOUR:   On the alternative, if there is a process now of seeking to winkle out every possible subsidiary legal issue, that might not be possible and some might appear - - -

MR GRIFFITH:   Your Honour, that is what concerned me in drafting up the three questions that ‑ ‑ ‑

HIS HONOUR:   That is right.

MR GRIFFITH:   But we did wish to make it clear, your Honour, that the certificate is now in the ring in the way it was not appropriately down below.

HIS HONOUR:   Yes.  I would also have to give you a direction that an amended notice of appeal be filed.

MR GRIFFITH:   Of course, your Honour, yes.

HIS HONOUR:   So that it is all laid out.  The other question would be the giving of 78B notices.

MR GRIFFITH:   Your Honour, I think we can offer to do that because then one does not have to be given to us and we can do it easily enough.

HIS HONOUR:   Yes.  The only other question would be timing.  The February list is full but there is some prospect - I cannot say a certainty but there is some prospect of March.

MR GRIFFITH:   Yes, your Honour.  If we work back from March, probably then we could offer written submissions by the ides of March or so.

HIS HONOUR:   Yes.  Just pardon me a minute, Mr Solicitor.  Have you another copy of your draft minutes?  It is the one thing I cannot lay my hand on at the moment.

MR GRIFFITH:   Yes, I have, your Honour.

HIS HONOUR:   What date for any amended notice of appeal, Mr Solicitor?

MR GRIFFITH:   Your Honour, the problem this time of the year it would be appreciated it be no earlier than 23 January.

HIS HONOUR:   And the Attorney’s submissions.

MR GRIFFITH:   Your Honour, I said the ides of March.  Of course, that is too late for March.  I was going to offer your Honour 13 February but that is Friday, the 13th.  I do not know whether that is a good omen either.  That would give two clear weeks before the March sittings for the respondent’s submissions.

HIS HONOUR:   Yes.  And the 78B notices with the submissions, I suppose.  Would that be appropriate?

MR GRIFFITH:   No, we would get them out with the notice of appeal, your Honour.

HIS HONOUR:   All right.

MR GRIFFITH:   Unless your Honour feels it necessary to order the 78B, your Honour, it could be taken that that will be done as of course.

HIS HONOUR:   All right.  And the first respondent’s submissions?

MR GRIFFITH:   Your Honour, perhaps the 27th.

HIS HONOUR:   Is that convenient?

MR JORDAN:   Has your Honour a specific hearing date in mind or simply the March sittings?

HIS HONOUR:   Just the March sittings.  That is not certain, but you must be ready on that expectation.

MR JORDAN:   Yes.  Assuming the applicant’s submissions were provided to us by the 13th, I see no difficulty with 27 February.

HIS HONOUR:   Is that a Friday?

MR JORDAN:   It is.

HIS HONOUR:   And reply?

MR GRIFFITH:   Your Honour, I do not know whether we need a reply.

HIS HONOUR:   I would not have thought so.

MR GRIFFITH:   Our submissions will be full.  If there was something hand-upable, we would do a short minute of it.

HIS HONOUR:   Now, what is the time estimate?

MR GRIFFITH:   I initially thought it would be under a day, but it seems to me that it has two issues:  one ‑ ‑ ‑

HIS HONOUR:   Yes, a day to a day and a half.

MR GRIFFITH:   I think it is closer to that, your Honour.  I would expect, with our written submissions, we also would file a bundle of materials.  Firstly, the materials which are recited in the judge’s judgment down below, which were produced, and secondly, your Honour, it may well be useful to refine further a bundle of materials of the sort which were given in rather inelegant form to your Honour over the weekend as to the background literature.

HIS HONOUR:   Yes.

MR GRIFFITH:   There are quite a few articles that are worth looking at.

HIS HONOUR:   Yes.  Would you anticipate those materials would come forward with the submissions?

MR GRIFFITH:   They would come with the submissions.

HIS HONOUR:   Likewise you, Mr Jordan?

MR JORDAN:   Yes.  And if, for example, the applicant could provide the first respondent with a copy of their bundle of the 13th, that will obviously reduce any duplication.

HIS HONOUR:   That is right.  I am worried about duplication.  There is already some.

MR JORDAN:   So if we know what is in their bundle, we do not need to put it in.

HIS HONOUR:   All right.

MR GRIFFITH:   Your Honour, I am sure we would be able to indicate by early in February what we were putting in the bundle so that the respondent would know what was coming.  But there is no need to order that.

HIS HONOUR:   No.  I will simply say “its submissions and bundle of materials”.  Now, will you be led on the appeal?

MR JORDAN:   Yes.  David Jackson QC and Greg James QC.

HIS HONOUR:   Thank you.

MR GRIFFITH:   Your Honour, this is my last appearance in office so I do not know what is happening with the Commonwealth’s team.

HIS HONOUR:   Whatever the Commonwealth does for the appearance on the appeal, there should be some consultation as to division of time and so on in a sensible fashion.

MR GRIFFITH:   Of course, your Honour.  I am sure it will be peak representation to match a team like that, your Honour.

HIS HONOUR:   These are the orders I propose:

(1)  Order under section 40 of the Judiciary Act that the whole of the cause pending in the New South Wales Court of Appeal, being Appeal No CA40841 of 1997, be removed into this Court.

(2)  Direct that the cause be argued before a Full Court.

(3)  Order that the appellant file and serve any amended notice of appeal on or before 23 January 1998 and his submissions and bundle of materials on or before 13 February 1998, and that the first respondent file his submissions and bundle of materials on or before 27 February 1998.

(4)  Costs of the removal application be costs in the cause.

(5)  Certify for counsel.

MR GRIFFITH:   We are indebted to the Court for sitting to deal with this matter.

HIS HONOUR:   Thank you.  Does that deal with it all?

MR GRIFFITH:   It does, your Honour.

MR JORDAN:   Thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  The Court will now adjourn sine die.

AT 11.23 AM THE MATTER WAS CONCLUDED