Attorney-General for the Commonwealth v Tse

[1998] HCATrans 58

IN THE HIGH COURT OF AUSTRALIA

Registry  No C13 of 1997

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE COMMONWEALTH

Appellant

and

RONALD TSE CHU-FAI

First Respondent

THE GOVERNOR OF THE METROPOLITAN RECEPTION AND REMAND CENTRE

Second Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 5 MARCH 1998, AT 10.20 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friends, MR M.A. WIGNEY and MS N.E. ABADEE, for the appellant.  (instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR I.A. SHEARER and MR D. JORDAN, for the first respondent.  (instructed by Deacons Graham & James)

GAUDRON J:   I hold a certificate from the Deputy Registrar who certifies that he has been informed by the Office of the Crown Solicitor for New South Wales, solicitor for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing of this appeal and will abide by any order of the Court save as to costs.  Yes, Mr Bennett.

MR BENNETT:   If the Court pleases. Your Honours, although my learned friend seems to have destroyed vast numbers of trees in the preparation of this case and we have destroyed substantially less, the case really concerns a very short point of statutory construction. Would your Honours please look at section 5 of the Extradition Act 1988. Your Honours see that “extradition country” is defined as:

(a) any country.....that is declared by the regulations to be an extradition country;

(b) any of the following that is declared by the regulations to be

an extradition country:

(i) a colony, territory or protectorate of a country;

(ii) a territory for the international relations of which a country is responsible -

What has been held in this case is that there is some sort of bright line distinction between the concepts described in paragraph (b) and the concept described in paragraph (a) and in particular that there is some sort of concept called “part of a country” or “integral part of a country” which is necessarily excluded by some form of osmosis from paragraph (b) even if otherwise included, and that is the proposition which I come to this Court to rebut.

What his Honour held was that, because Hong Kong was part of China, it could not fall within either paragraph (b)(i) or (ii) of the definition.  I should show your Honours also section 8, which needs to be looked at in the same context.  That is dealing with a totally different problem.  Your Honours will appreciate that extradition applies when a person commits an offence in one place and is in another place.  Section 8 is concerned with, in a sense, the meaning of “place” in the phrase I have just put to the Court.  It says:

For the purposes of the application of this Act in relation to a country -

Then the same phrases that appear before, but it adds a ship or aircraft of a country -

are, except in the case of a colony, territory or protectorate that is an extradition country, each deemed to be part of the country.

So that if one has no treaty with a particular colony of another place but has a treaty with the country itself, then extradition works if the offence is committed in that colony or if the person is found in that colony, one way or the other.

KIRBY J:   The purpose of subsection 8(1), therefore, is that unless you can fit yourself within the:

colony, territory or protectorate -

you are deemed to be part of China.

MR BENNETT:   For that purpose, yes.  But it would not be in this case because, here, this is a colony, territory or protectorate that is an extradition country, although that depends on the first definition, which is the issue in the case.  May I go back a step now.  There are in the world, I suppose, hundreds - particularly if one goes into history for 20 or 30 years - of relationships which have existed between two places where the government in one place has a degree of control in the other place.  Every one is a little bit different in relation to the degree of control exercised and the extent of independence exercised by the other place.

We see, in Australia, itself, of course, examples of that.  The Commonwealth Government cannot make a law saying that it is an offence to commit murder in the streets of Sydney.  We have parts of Australia which are - which have a degree of autonomy from the Central Government in certain respects.  We have also internal territories, self-governing territories - we used to have internal territories that were not self‑governing territories - and we have external territories with varying degrees of self‑government.

In the world one sees a far wider range of possible relationships, from the French system under which colonies are simply treated as if they are part of the metropolitan country, and one hopes in that way to avoid international decolonisation campaigns, one has military bases.  If one takes Guantanamo Bay in Cuba, no doubt it is Cuban territory but for practical purposes the writ of the United States runs there.  One has a huge range of categories.  One has the Channel Islands and Isle of Mann, which would take days to explain.  Indeed, if one looks at the 4th edition of Halsbury under the heading “Commonwealth”, there is a section which deals with vast numbers of places and describes the differing degrees of relationships which existed in relation to them.

The point of that is this:  if one is devising an extradition Act which is going to authorise the legislature to enter into agreements which facilitate extradition, and we know from cases like Barton v The Commonwealth the importance to the Commonwealth of extradition being available as a mutual remedy between countries, between places, what drafting device is one going to use that covers all the possibilities.  What we submit is that the legislature has done its best; has attempted to do that, and has succeeded.  What one ought not to do is analyse each word in this definition in some careful way to construct a distinction between something which is an integral part of a country - to use the phrase in the basic law, and the phrase which my friends seize on in their submissions - a place having some lesser relationship.  What these definitions set out to do, we would submit, is cover every possible relationship that one can have, and not to create some gap in the middle.

One only has to ask oneself what would be the reason for a gap in the middle.  What would be the reason for saying if you have a distant relationship, that is all right.  If you are a country itself, that is all right.  But, if there is a close relationship so that you are in fact part of the country, you fall through the gap.

Let me give another more practical example.  There is no doubt, under this section, that if the United States Government were to say that Puerto Rico, an American territory, could enter into extradition agreements with foreign countries Australia, under this section, could enter into an extradition agreement with the Government of Puerto Rico.  Yet, on the decision of his Honour in this case, if the American Constitution were to be changed or the American Government were to be able to say, for some reason, by some delegation process, that extradition arrangements should be negotiated with the 50 States instead of with Washington, then we could not enter into an extradition agreement with California.  “Because”, my friend would say, “that is an integral part of the United States, therefore, it is not within these definitions.”

KIRBY J:   Why would we want to enter into an agreement with California?  We would enter into an agreement with a country, the United States.  That is the scheme of the Act.

MR BENNETT:   Your Honour, in my respectful submission, the scheme of the Act is to facilitate the entry into extradition agreements with such places, to use a neutral word, as are empowered to enter into extradition agreements.

KIRBY J:   What is the history?  Is there any case that sets up the history of extradition, because one notion of it is an agreement between sovereigns? 

MR BENNETT:   It is, your Honour, ultimately.  This is clearly ‑ ‑ ‑

KIRBY J:   The sovereign in this case is, indubitably, China.

MR BENNETT:   I will be submitting that for present purposes it is not.  The definition itself belies  ‑ ‑ ‑

KIRBY J:   That was the whole point of the transfer of sovereignty, was it not?

MR BENNETT:   Your Honour, I will come to the basic law if I may in a few minutes.  May I just deal with your Honour’s first question.  Certainly, originally extradition was between sovereigns.  A long time ago the concepts of the numerous types of relationship I have described probably did not exist or existed only in the sense of perhaps a State being a vassal State of another.

What this Act is doing is saying that is not the case.  One can make an extradition treaty with a colony, territory or protectorate of a country.  There was, in fact, an extradition treaty with Hong Kong when it was a colony.  We could, if the government chose, have an extradition treaty with the Falkland Islands which are clearly a colony.

KIRBY J:   There is no problem then because it clearly fits within “colony”?

MR BENNETT:   Yes, but why would one wish in defining those areas to exclude the possibility that because of some division in a federal structure or a confederation there was a desire to permit separate extradition treaties.  Suppose the members of the European Union were to, under a treaty, declare that they were a single indissoluble country but that the individual former countries which were the constituent members like the States of Australia which continued to have power to enter into extradition treaties.  Why should not we in that situation; why should not the executive be free to enter into extradition treaties with the individual countries?  Why should the executive be permitted to enter into one with Puerto Rico but not with California assuming, in both cases, that the United States Government declares internally that the appropriate organ for extradition treaties is to be in the one case Puerto Rico and in the other case California?

GAUDRON J:   In that situation that you last postulate, are you talking of territories of the country or a territory for the international relations of which a country is responsible?

MR BENNETT:   As your Honours will see, our primary submission is that we fall under paragraph (ii), although we have a secondary submission that we are within paragraph (i), and the submission that we are within paragraph (ii)  ‑ ‑ ‑

GAUDRON J:   Of what?  I am looking at paragraphs ‑ ‑ ‑

MR BENNETT:   I am sorry, subparagraph (ii) of paragraph (b) of the definition.

GAUDRON J:   Yes, thank you.

MR BENNETT:   The reason we are within that, we would submit, is that the word “territory” in that sentence, is simply not a term of art.  It clearly does not have the same meaning it has in subparagraph (i), because if it did, it would add nothing to subparagraph (i).

GAUDRON J:   I am just wondering why it is even there.  If you are a territory of a country, you are a territory of a country.

MR BENNETT:   We would submit, as I say, it is not, in this context, a term of art.  What is being said is, that the word “territory” in paragraph (ii) could have meant - could have said, and, perhaps, more accurately should have said “place”.  It is intended to be a colourless word; to use the modern metaphor, a vanilla word.  It is a word not intended to do anything more than be the vehicle for getting across the key words which are for the international relations of which a country is responsible.  So, we say that it covers parts of a country.  But we say, secondly, that even if it does not, the relationship between Hong Kong and China, which is a sui generis relationship there ‑ ‑ ‑

GUMMOW J:   You are using “territory” then in (b)(ii) in some fairly geographical sense.

MR BENNETT:   Yes, your Honour.

GUMMOW J:   Areas of the earth’s surface do not have international relations.  Political institutions have international relations.

MR BENNETT:   But a country may, because of its internal divisions of power, say, if it so chooses, that some part of it, or some entity of it, or some place having a relationship greater or more distant with it, may enter into an extradition treaty, as has been done here, where, of course, the documents which your Honours will see, the basic law and so on, particularly permit extradition treaties, but there is simply no reason for restricting it.  Indeed, your Honour, if one applies this to Australia in reverse, if one assumes this was a section of an Act in another country and we were dealing with Australia, there would be some real problems on the judgment below because it has been said, of course, in Berwick v Gray 133 CLR 603, and I have nine copies of that for your Honours, that external territories are part of Australia.

What my friend submits is, what the trial judge has held is that being part of a country in some way is a concept which is inconsistent with and different from the concepts in paragraph (b).

Your Honours can see it in two places:  in the judgment of the Chief Justice, Sir Garfield Barwick at page 605, at the beginning of the second paragraph of his judgment, simply says:

In my opinion, Norfolk Island is part of the Commonwealth.

Justice Mason, as he then was, at page- - -

KIRBY J: But this is talking of a constitutional territory. Norfolk Island is a territory under our Constitution. Hong Kong is not a territory under the Chinese Constitution; it is part of ‑ ‑ ‑

MR BENNETT:   No, I am not comparing Norfolk Island to Hong Kong, your Honour.

KIRBY J:   I just think it is wrong to take a passage out of a judgment which is talking of our constitutional arrangements and try to make some point concerning an entirely different statutory context.

MR BENNETT:   No, I am not making a point about Hong Kong at the moment.  The point I am making is in relation to the submission which is put against me, that there is some rigid distinction between on the one hand a territory of a country or a colony or protectorate or anything else and, on the other hand, part of the country.  The whole basis of his Honour’s judgment is that these are two totally different concepts; you are one or the other, you cannot be both.

KIRBY J:   He is talking in the context, Mr Bennett, he is talking in the context of this Act.

MR BENNETT:   Yes, your Honour.

KIRBY J: He is not talking of general terms or in the context of our Constitution. It is an utterly different context with an utterly different history and utterly different purposes.

MR BENNETT:   Yes, your Honour, the purposes of history are different, but one searches for analogies in statutory construction and what this does show is that as far as our law is concerned and our use of English is concerned, we do not treat the concept of “part of a country” and the concept of “territory” as if they were mutually inconsistent.  That is all I get our of this, and just- - -

GUMMOW J:   What is put against you is that (b)(i) is talking about colonies, territories and protectorates as understood in international law and that (b)(ii) is talking about something which does not amount to a territory in the ordinary international law sense but which, although it has a certain measure of its own control of its affairs and so on and so forth, nevertheless it does not conduct its own internal relations, and there are such situations.

MR BENNETT:   Yes, there are, but- - -

GUMMOW J:   And putting all that together, there is a universe in the definition.

MR BENNETT:   We submit that the second category is a little wider than that.  I will be submitting, when I get to the basic law, that Hong Kong comes within even what your Honour has put to me.  But, the more general submission we make is that it is not intending - that definition is not a definition which is there for the purpose of limiting in some way the huge range of possibilities which exist around the world of greater or lesser relationships.

GUMMOW J:   There is an issue of fact in all this, and I do not know quite what the answer is.  Is the People’s Republic of China wholly responsible for the international relations of the present region of Hong Kong.

MR BENNETT:   Your Honour uses the word “wholly”.

GUMMOW J:   Yes.

MR BENNETT:   The answer is not a yes or no to that, your Honour.

KIRBY J:   Responsible.  It is responsible.  It may not exercise it entirely, on the material.

MR BENNETT:   I will come to that, too, when I come to the basic law.  But, at the moment what I am doing is making the general proposition about the Act.  I have not yet got to what Hong Kong is.  The point I wish to stress is that there are no bright lines in this area.  There is certainly no bright line between something that is part of a country on the one hand, and is a colony protectorate or territory on the other.  These passages in Berwick v Gray illustrate that it is perfectly permissible under our own Constitution to say that one can be an external territory and yet part of Australia.

GUMMOW J:   It is hard to see what Berwick v Gray has to do with anything.  It just appears to be a quite inapt forensic analogy.

MR BENNETT:   What is put here is, because it is part of China, because that phrase is used, it cannot be within (b)(ii).  That is what is put against us.  And, cannot be within (b)(i).  We submit that the two concepts can exist happily side by side.

KIRBY J: The submission is supported by the history of how this came in from the Commonwealth Extradition Act where the territory for the international relations of which a country is responsible was a particular category of Commonwealth nations on the path to self‑determination and complete independence.

MR BENNETT:   I will come to that, your Honour, as an alternative argument, because that is the argument that leads to the certificate being admissible, and I will come to that as a different aspect.             What we submit at the moment is that it is simply a broad phrase, and it is not a phrase which should be construed by taking the word “territory” and putting that in some sort of strait‑jacket.

KIRBY J:   We just ignore the history of the origins of the phrase.

MR BENNETT:   No, your Honour, of course not.  The history is that if one goes back to the earlier Acts, the definitions were in different form.  These words were taken from a section which corresponded to section 8 which was dealing with a rather different purpose.  The authorities under sections like section 8 give a very wide definition to the word “territory”, and I will come to that in due course.

The passage in the judgment of Justice Mason, as he then was, is at page 608 where, at about point 5 just after the first reference to Spratt v Hermes, his Honour says:

Special considerations affected those Territories which were held under mandate from the League of Nations or under trusteeship from the United Nations but, with this qualification, it is my opinion, in conformity with the views expressed by Barwick CJ and Menzies J in Spratt v Hermes that external Territories form part of the Commonwealth of Australia and that, in consequence -

section 51(ii) applies. So, one has, we would submit, a clear statement there that there is not a mutually exclusive relationship between the two concepts.

Having said that, may I turn to the structure of Hong Kong under the basic law. I invite your Honours to go to our materials. The starting point is page 6. This is Article 31 of the Constitution of the People’s Republic of China.

KIRBY J:   China is not a Federation.

MR BENNETT:   And your Honour sees the - I am sorry, your Honour?

KIRBY J: The Constitution is not a federal Constitution.

MR BENNETT: No, your Honour. Article 31 provides - - -

GAUDRON J:   This document, I take it, is, what, evidence that was before the judge at first instance?

MR BENNETT:   Yes, this is all in evidence, your Honour.

GAUDRON J:   It is evidence, yes.

MR BENNETT: Your Honour will see that Article 31 provides that:

The state may establish special administrative regions when necessary.  The systems to be instituted in special administration regions shall be prescribed by law enacted by the National People’s Congress in the light of the specific conditions.

That is the general power.  One then comes to the joint Sino-British declaration, which commences at page 19.

KIRBY J:   Are there other special administrative regions in China?

MR BENNETT:   Not yet, your Honour, although I understand it is proposed that Macau will be one.  I am not sure about Tibet.  I am not sure if it is in that category.

KIRBY J:   Do we have an extradition arrangement with Macau?

MR BENNETT:   I think we have one with Portugal, your Honour, which includes it. 

KIRBY J:   Macau was the place from which, into China, an Australian citizen was reportedly taken without legal process.  That, at least, occurs to me as one reason why one insists upon arrangements with a country, because then you can be sure that the laws of the country will be observed.  You know what sort of country you are dealing with.

MR BENNETT:   Your Honour, first, with respect, one cannot possibly take judicial notice of that sort of event.

KIRBY J:   Well, I have put that case out of mind but that is the possibility that insists upon the dealing between sovereign States in respect of the country.

MR BENNETT:   If one has an extradition treaty with a weak country, a country that is weak militarily, a stong neighbour may send its army in to seize the person.  That is not a reason for saying that one cannot extradite to that country.  It may be a discretionary reason for the executive not finally to extradite, but that is hardly a matter relevant to the construction of legislation.  Macau, as I say, at the moment is not a Special Administrative Region at all.  That is what proposed, as I understand it, when the corresponding arrangements have taken place with Hong Kong take place with Portugal and Macau.  The Sino-British joint declaration commences on page 19 and it sets out a number of matters in paragraph 3 as to the relationship after the restoration of Hong Kong.  Article 3 says:

The Government of the People’s Republic of China declares that the basic of the People’s Republic of China regarding Hong Kong are as follows:

(1) Upholding national unity and territorial integrity and taking account of the history of Hong Kong and its realities, the People’s Republic of China has decided to establish, in accordance with the provisions of Article 31 -

and the Hong Kong SAR.

(2)  The Hong Kong Special Administrative Region will be directly under the authority of the Central People’s Republic of China.  The Hong Kong Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People’s Government.

(3)  The Hong Kong Special Administrative Region will be vested with executive, legislative and independent judicial power -

(4)  The Government of the Hong Kong Special Administrative Region will be composed of local inhabitants, the chief executive will be appointed by the Central People’s Government on the basis of the results of elections to consultations to be held locally.

I will show your Honours, in due course, that there is no power in the Chinese Government to remove the chief executive during his term.

GUMMOW J:   Are we being invited to construe this instrument?  It is a very invidious task for us to be construing this agreement between two other foreign powers.

MR BENNETT:   Your Honour is not being asked to construe it, your Honours are being asked to look at it and see whether it fits within a definition in an Australian Act. 

GUMMOW J:   By what criteria do we construe it?  And we are inviting to construe to it.  We have to construe it before we then match it to the definition in the Australian Act.

MR BENNETT:   Your Honour, I do not think there is any particular ambiguity in it which your Honour will need to construe, it is rather a matter of my simply showing your Honours all the elements of separateness or of independence which apply to Hong Kong, with a view ultimately to submitting that it is within the broad range covered, either by the word “colony, territory or protectorate” or by the words “territory of the international relations of which a country is responsible.”  That is my purpose in going through it.  I will not go through all of it, I will do it fairly fast.  Your Honours will see there is then a series of matters as to which it will be able to do.  In paragraph 10 - - -

GUMMOW J:   But there is a question as to whether this agreement between Britain and China has been observed by China, I suppose.

MR BENNETT:   There was no such issue raised in this case, your Honour.  We are not concerned with that.  We are concerned with the fact  ‑ ‑ ‑

GUMMOW J:   Why do we look at what the British agreed with the Chinese?  Why do we not look at the present situation?

MR BENNETT:   Only because of the extent to which it is incorporated by reference in the basic law which I will come to in a moment.  I will do this fairly quickly, your Honour.

GUMMOW J:   I am not questioning whether it is quick or slow.  It is more significant than that.

GAUDRON J:   I think it really comes to the point why do we determine what it is when it comes to your constitutional point, does it not?

MR BENNETT:   It is not a constitutional point, your Honour. 

GAUDRON J:   No.  You have given notice of a constitutional point.

KIRBY J:   I think that is the opposition, is it not?

GAUDRON J:   The point is, why do we determine what it is as distinct from the Executive Government?

MR BENNETT:   I will certainly come to that point in due course.  That is an independent argument I will be putting to your Honours.

GAUDRON J:   Yes.

KIRBY J:   You have left that whine till last.  On one view that would be a solution to the whole thing.  You just tender a certificate.  End of matter.

MR BENNETT:   I did, your Honour, and it was rejected.

KIRBY J:   Subject to the Constitution.

MR BENNETT:   I did, your Honour.  It was rejected and one of my grounds of appeal is that it was rejected and for that reason I felt it more appropriate to put the general argument before putting the specific one.  I mean, if your Honours prefer me to deal with it in the other order I will deal with it in that order.

GAUDRON J:   I think it is a matter for you, is it not, but there is a problem , is there not, in asking a court to construe for any purpose either the basic law of China or its constitution or this treaty?

MR BENNETT:   I suppose, forensically, your Honour, if this exercise has the result of confirming your Honour’s views that it is inappropriate, that will no doubt support me when I get to the certificate.

GUMMOW J:   Well, that depends on the text of the certificate; other abbreviated form of certificate.

MR BENNETT:   Yes.  In any event, subparagraph (10) on page 24 provides that:

Using the name of “Hong Kong China:, the Hong Kong Special Administrative Region may on its own maintain and develop economic and cultural relations and conclude relevant agreements with states, regions and relevant international organisations.

And the various matters of that sort.  Then there is an elaboration document, which I will not take your Honours through, which commences on page 26, and that refers to such things as establishing international aviation agreements and matters of that sort.

Finally, one gets to the basic law at page 50, and your Honours see its status is demonstrated on page 52, it is a Decree of the President of the People’s Republic, where the basic law is declared.

KIRBY J: So this is made pursuant to the Constitution for the People’s Republic of China.

MR BENNETT:   Yes, your Honour, and then it is adopted by the Seventh National People’s Congress on page 53.  On page 55, it starts with a proposition which my learned friend relies on very heavily:

The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.

No doubt, if an extradition agreement had been negotiated between Norfolk Island and the United States under some power delegated to Norfolk Island under section 122 of the Constitution, it would be argued in the corresponding case in the United States that the statement of Sir Garfield Barwick that it was part of Australia in some way prevented it falling within the relevant words.

KIRBY J: The idea of Norfolk Island having a treaty with another country is antithetical to the Constitution, it would seem to me.

MR BENNETT: Your Honour, I think section 122 is a plenary power under which the Commonwealth could, if it chose, provide that Norfolk Island could enter into extradition treaties.

KIRBY J:   We do not have to decide that today.

MR BENNETT:   No, your Honour does not.  Article 2:

The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication -

Article 5 preserves:

The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged -

Article 13, which is relevant to section 5(b)(ii) says:

The Central People’s Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region.

So, we say that squarely makes it a place, using the neutral word for the moment, for the international relations of which a country is responsibility.  So, unless the word “territory” in some way excludes and is inconsistent with a place which - as to which the general proposition in paragraph 1 of the basic law applies, we fall within that.  Then Article 14 is defence.  Article 16 gives it executive power of its own administrative affairs.  Article 17 gives it legislative power.  Article 19 gives it:

independent judicial power, including that of final adjudication.

Then Articles 82, 85 and 88 deal with that, but your Honours need not go to that.  Article 22 says that:

No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which the Hong Kong Special Administrative Region administers on its own in accordance with this Law.

So, interference is prohibited.  Article 106 deals with independent finances, 108 is independent taxation, 110 is independent monetary and financial policies, and it is interesting in that it uses the word:

The Government of the Hong Kong Special Administrative Region shall, on its own, formulate monetary and financial policies -

It is a very high degree of self‑government.  Article 114 makes it a free port; 115 deals with free trade; 116 makes it a:

separate customs territory.

It is interesting that the word “territory” is used there, although, no doubt, it is a translation of some Chinese word.  The external affairs are dealt with by Articles 150 to 157, and your Honours see, in particular, 150:

as members of delegations of the Government of the People’s Republic of China, participate in negotiations at the diplomatic level directly affecting the Region -

Now, a State which is part of Australia could not do that.  A territory could not do that in Australia.  Article 151:

The Hong Kong Special Administrative Region may on its own, using the name “Hong Kong, China”, maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organizations in the appropriate fields -

KIRBY J:   But why do you say a territory could not do what is provided in 150, it be a member of a delegation of Australia?  It is not uncommon for federal delegations to include State or other people.

MR BENNETT:   Yes.  The concept of participating at the diplomatic level is the concept which goes a little further than that.

KIRBY J:   But that is the delegation that is participating at the diplomatic level and it is, in my experience, not unknown for State participants to go along and take part.

MR BENNETT:   They certainly would not have diplomatic immunity or be at the diplomatic level in that - it is really what the words “diplomatic level” mean, I suppose.  Then 152 deals with participating “in international organisations or conferences” and:

The Central People’s of Government shall take the necessary steps to ensure that the Hong Kong Special Administrative Review.....shall continue to attain its status in an appropriate capacity in international organisations of which the People’s Republic is a member.....-

The Central People’s Government shall.....facilitate its continued participation -

in those organisations.  Article 153 provides that:

International agreements to which the People’s Republic of China is not a party, but which are implemented in Hong Kong may continue to be implemented in the Hong Kong Special Administrative Region. 

That is what would happen, I suppose, with this treaty.  There is no extradition treaty with China but there is with Hong Kong.

KIRBY J:   I think that might also refer to the International Covenant on Civil and Political Rights to which, I may be wrong, China is not a part but Britain rendered Hong Kong in some way attached to it.

MR BENNETT:   I am not sure, your Honour, but that may well be right.  I will not take your Honours through the rest.  What your Honours have seen is sufficient to demonstrate that, first of all, in a general sense, it is a place for international relations of which China is responsible, but that it is a place which is given the authority to negotiate international agreements.  This particular international agreement was negotiated, as your Honours can see from the evidence, with the approval of the People’s Republic of China, but the relevant party is Hong Kong.

GUMMOW J:   Your trouble was that you did not then make fresh regulation.

MR BENNETT:   This regulation was made in anticipation ‑ ‑ ‑

GUMMOW J:   And run the risk of disallowance of a fresh regulation.

MR BENNETT:   Your Honour, we did.  The regulation was made on the 27th or 29th of June, and it was made clearly in anticipation of the change that was going to take place on 1 July.

GAUDRON J:   I am sorry, I do not follow that.  There was in fact a new regulation made?  Removing Hong Kong and then reinserting it in the schedule?

MR BENNETT:   I will just find that for your Honour.

McHUGH J:   I thought it was made in May.

HAYNE J:   To commence on 29 June.  It is the respondent’s materials, 209.  No doubt it is in four other places in the material as well.  There is at least one.

MR BENNETT:   I am indebted to your Honour.

McHUGH J:   It is 28 May.

MR BENNETT:   Yes, it is at page 209 of my learned friend’s materials.  It is made specifically - the regulations commence on 29 June, so they were to commence two days before ‑ ‑ ‑

GUMMOW J:   Exactly.

MR BENNETT:   Yes, but it is clear - on page 210:

the Government of Hong Kong, having been duly authorised to conclude this Agreement by the sovereign government which is responsible for its foreign affairs -

It is clearly intended to be the agreement ‑ ‑ ‑

GUMMOW J:   But the Government of Hong Kong there referred to is the British colonial administration.

HAYNE J:   As appears at page 223 where the instrument was done at Hong Kong in 1993, or am I mistaken in that respect?

MR BENNETT:   Yes, that is when it is initially done, yes.  That is when the initial agreement was made.

HAYNE J:   You say “initially made”.  Was it later made?

MR BENNETT:   Yes.  I should hand your Honours then a further bundle which contains these.

KIRBY J:   Your tree destruction is only in instalments.

MR BENNETT:   Yes, apparently, your Honour.  Your Honours see what was done - the Extradition (Commonwealth Countries) Regulations are set out at the beginning and your Honours see they include the colony of Hong Kong.  There are regulations at the end, the second‑last page, No 122 of 1997, which says:

commence on 29 June 1997.....

Omit “Hong Kong”.

So what happened was that on that date Hong Kong was taken out of this list ‑ ‑ ‑

GUMMOW J:   It used to say “colony of Hong Kong”.  Was that changed at some stage?

MR BENNETT:   I think it was, your Honour.  My recollection is that at some point between 1967 and 1997 the colony ‑ ‑ ‑

GUMMOW J:   Well, we have to be informed.  We have two books full of material.  It seems to be in your material 1988, No 281.

MR BENNETT:   Yes.  Your Honour sees about three-quarters of the way through the material there is a schedule to the 1988 regulations in which it is there described as “Hong Kong”, which replaced that earlier table.

KIRBY J:   Were these deemed to continue under the new Act, were they, when the Acts were consolidated?

MR BENNETT:   I am sorry, your Honour?

KIRBY J:   Were these regulations deemed to continue under the new Act when the Commonwealth and Foreign States Acts were amalgamated?

MR BENNETT:   They were, your Honour.  It would take me a moment to find the legislative chart which achieves that result but I can do that.  I think that is done by the  ‑ ‑ ‑

KIRBY J:   Is there some short history of all this?  It came in under the Commonwealth Regulation Act but then was deemed to continue under the consolidated Act.

MR BENNETT:   I am just finding that for your Honour at the moment.  I think  ‑ ‑ ‑

GUMMOW J:   They just made Statutory Rule 281, did they not, of 88?

MR BENNETT:   It is traced through, your Honour, in Mr Singh’s affidavit which appears at page 87 of our materials and your Honours see in paragraph 5 on page 88 he sets out the early history and then he says:

As a Commonwealth country participating in the Commonwealth Scheme, Australia promulgated the Extradition (Commonwealth Countries) Regulations 1988 (“the 1988 regulations”).  The 1988 regulations applied Australia’s Extradition Act.....to some 60 Commonwealth countries, territories, protectorates and colonies, including Hong Kong.

Then he said:

I was involved in the steps leading up to.....an extradition treaty.

In paragraph 9 he says:

The PRCG was involved in the negotiation and conclusion of the Surrender Agreement as follows.

He sets out the relationship of the People’s Republic and the negotiations and he says, this is paragraph 10:

Article 21 of the Surrender Agreement provides that it will enter into force 30 days after the day on which the Parties have notified each other that they have complied with their respective requirements.....  When the Agreement was signed Hong Kong had no extradition legislation of its own.

It was then the Fugitive Offenders provisions.  Then it:

enacted its own extradition legislation.

Then he describes how it was brought into force.  Then there is a Hong Kong Order in Council on 6 May and there is the Hong Kong government’s notice annexed and he says:

Australia’s domestic requirements.....were satisfied by making the Extradition (Hong Kong) Regulations.....on 28 May 1997.

He has applied it to Hong Kong and:

On the same day the Governor‑General.....made the -

other regulation I have just shown your Honours -

which remove Hong Kong from the list of countries.....Both sets of regulations commenced on 29 June 1997 on which date, consistent with Australian practice, is the date the Surrender Agreement would come into effect between the two jurisdictions at the international level.  Australian practice is to bring an extradition treaty into force within Australian law on the same day that the treaty enters into force between Australia and the treaty partner -

There is then an explanation as to the various notes passing between Hong Kong and Australia as to why the particular date was chosen when the 30 days ran.

KIRBY J:   I may not have followed this completely.  Is there a reciprocal agreement between Hong Kong and the territory, as you call it, and Hong Kong and Australia to extradite people that Australia wants?

MR BENNETT:   Yes.

KIRBY J:   Where do we find that?  Is that mentioned in this affidavit?

MR BENNETT:   It is in the treaty and it is mentioned at the end of paragraph 10 of the affidavit, where in line 5 on page 90, if your Honour has page 90 open.

KIRBY J:   Yes, I see it.

MR BENNETT:

The Hong Kong legislation, the Surrender of Fugitive Offenders Ordinance 1997 came into effect in Hong Kong on 25 April 1997.  Hong Kong made an Order in Council applying the Ordinance to Australia on 6 May 1997.

KIRBY J:   I see; all that was done under British sovereignty.

MR BENNETT:   Yes, your Honour.  The effect of the basic law is that legislation in force continues, as one would expect.

KIRBY J:   Unless presumably altered by the new Legislative Council.

MR BENNETT:   Yes, your Honour.  The formal steps are all described in this affidavit with the document.

KIRBY J:   Have countries which have been included in the scheme - foreign countries, leave aside Commonwealth countries - that are the subject of the Act ever been, as it were, decommissioned?  In other words, presumably you can make regulations and then you can unmake them, if, for example, one reaches a view that standards of justice are not acceptable.  Has that ever occurred in the history of Australia’s dealings with extradition States.

MR BENNETT:   I am sure it has, your Honour, and one can probably trace it by comparing the list of - one can see it within the Commonwealth.  One could find it, I suppose, by comparing the list at the beginning of the documents I just handed up, which is the 1967 list, with the list appearing ‑ ‑ ‑

KIRBY J:   Take, for example, Uganda during Idi Amin’s regime.  Would they have been removed from the list of extradition States?

MR BENNETT:   I do not know the answer to that question, your Honour, but it is an obvious example of - I have not checked through whether there were any - yes, your Honours will see Pakistan is listed on the front of this.

KIRBY J:   That was because it left the Commonwealth.

MR BENNETT:   Yes, and it is not listed in the schedule to the 1988 regulations.  Whether it is treated as a foreign country with which there is a treaty in some other area I do not know.

KIRBY J:   It is back in the Commonwealth now.

MR BENNETT:   Whether there are other specific examples I am not sure, but no doubt that can be traced if your Honour wishes that.  This treaty, like all extradition treaties, has a provision saying it can be terminated by either side on notice, and that is a normal provision.

GUMMOW J: The reason why I asked you all these questions, Mr Bennett, is at what particular time does one judge satisfaction of a criteria of a particular definition of “extradition country” in section 5? When this agreement was made, in 1993; when these regulations were made, come into effect two days before the handover of sovereignty or some later date?

MR BENNETT:   Your Honour, my friend would have to say that these were valid when passed on 29 June and then ceased to be valid.

GUMMOW J:   Well they clearly would have been, I suppose, because it would fit within the structure, Britain was responsible, et cetera.

MR BENNETT:   Yes.  He would have to say, no doubt, that the Hong Kong ceasing to satisfy the word “territory” has the effect that the regulations ceased to be valid.  He would have to say that.  Our simple submission is that the- - -

GUMMOW J:   Your simple submission when they were made, this was a territory for which Great Britain was responsible and end of problem.

MR BENNETT:   Well that is a very simple solution, your Honour, and it is not one we would eschew.  But taking it to the next step, we also submit that having seen the degree of independence given to Hong Kong under the basic law that, notwithstanding the rhetoric which uses words like “integral part of China”, which really we say is nothing more than what appeared in the High Court judgments I have taken your Honours to about Norfolk Island, it does not matter whether one says internally, “This is part of China or it is not part of China”.  That is not a term of art,  It is simply a statement of political conclusion which may or may not be right in a legal sense.  What is the question is whether we fall within these words and there is simply no reason for excluding it from these words merely because it is part of a country.

GUMMOW J:   You say “fall” not “fell”.

MR BENNETT:   Yes, your Honour.  I do not need to address your Honours on “fell”.  I have made the submission on that.  It is a short sharp submission and it is right or it is wrong.  So we submit, first, it is valid when made but, secondly, it falls squarely within those words.

HAYNE J:   Can a place or polity - I do not distinguish for the moment between them - be declared an extradition country without there being an extradition treaty?

MR BENNETT:   I think the answer to that question is yes, your Honour.  The Act applies to any country which is declared by regulations to be an extradition country.  One could declare a country to be an extradition country without having a treaty with it, if one chose to do so.  I am reminded the whole Commonwealth scheme is not a treaty-based scheme, with individual treaties, in the majority of cases.

HAYNE J:   And thus the authority to negotiate a treaty or questions of succession of rights or obligations under treaties are not matters that bear upon who or what is an extradition country.

MR BENNETT:   That is so, your Honour.  That is so. 

KIRBY J:   Can I ask, did you, below, Mr Bennett, argue the point that has been raised by Justice Gummow’s question; that is to say that whatever may be the position now, the regulations having been made at a time when Hong Kong was a colony, the regulations are valid and it is pursuant to those regulations that the respondent is to be extradited?  I do not remember seeing that point.  It may ‑ ‑ ‑

MR BENNETT:   No, your Honour, no one argued that point below either way; it was simply not ‑ ‑ ‑

KIRBY J:   Do you embrace it now?

MR BENNETT:   Yes, your Honour. 

GUMMOW J:   It was certainly drawn to your predecessor’s attention at the time of the removal application, I can assure you.

MR BENNETT:   Yes.

KIRBY J:   I did not see it in your written submissions. 

MR BENNETT:   No, it is not there, your Honour.

KIRBY J:   I am not saying that it is not a good point or not available to you, but it just came as something of a surprise to me.

MR BENNETT:   Yes.  Your Honour ‑ ‑ ‑

KIRBY J:   Because the terms of our Act, which is what we must be faithful to, talks in terms of a country which is declared by the regulations to be an extradition country.  Prima facie, that would mean by the regulations at the time they were made.

MR BENNETT:   Yes.

KIRBY J:   Because at what other point of time can one fix the adjectival clause?

MR BENNETT:   Yes.  It is a short, sharp point, your Honour, which does not seem to have been argued below, which should have been in our submissions, and which - I think it seems to have been assumed below that if the condition precedent was no longer present as at 1 July or thereafter the regulations in some way ceased to be operative.

GUMMOW J:   That may be a question.

MR BENNETT:   Yes.  We would have thought that was a matter for my learned friend to raise, in the sense that ‑ ‑ ‑

KIRBY J:   It may be there is then a question of definition as to whether Hong Kong, as so described, is the same Hong Kong.  I mean, in the old regulation it was “Colony of Hong Kong” in the Statutory Rules and then that was taken out and instead “Hong Kong” was inserted.  What is there now?

MR BENNETT:   There is an entity which is entitled to call itself Hong Kong.  Which is the Hong Kong Special Administrative Region.

KIRBY J:   I have not kept up the actual amendments to statutory rules.  I have got up to the end “omit Hong Kong”.  Where is the rule that puts Hong Kong back?  And I want descriptions.

MR BENNETT:   Your Honour, that is the one I took your Honours to in my learned friend’s materials, 209 in my friend’s materials.  As a simple matter of statutory construction, it could hardly have been the legislative intention, bearing in mind the timing of this and bearing in mind the extrinsic materials referred to in Mr Singh’s affidavit, that this would merely be operative for two days so clearly Hong Kong was intended ‑ ‑ ‑

GUMMOW J:   There is no legislative intention.  It was an executive intention, Mr Bennett, not a legislative intention.

MR BENNETT:   Yes, executive intention.  Clearly the executive intention must have been that the word “Hong Kong” would cover what was to come into existence in two days.

GUMMOW J:   It says Hong Kong is declared to be an extradition country.  Now, even you do not desert that, or do you?

MR BENNETT:   I do, yes.  As defined in the Act.

GUMMOW J:   I see.

MR BENNETT:   That is simply a defined phrase.  The definition clearly ‑ ‑ ‑

GUMMOW J:   Presumably, if you define something to be a country which you still have to make good the fact that it fits within - that is to say Hong Kong as distinct from the colony of Hong Kong which previously appeared ‑ you still have to establish that that falls within the definition which picks up the territory ‑ ‑ ‑

MR BENNETT:   Well, your Honour, there are two steps to that.  The phrase “the colony of Hong Kong” went out by 1988 when that schedule I showed your Honour said “Hong Kong” instead of the “colony of Hong Kong”.  By 1988 it was described as “Hong Kong”.  The fact that it changes its status, we would say, is simply a matter of, I suppose in one sense, the law of State succession but one frequently has situations where, as one saw in Yugoslavia recently, where there is a succession from one country to a new country which takes over certain matters from the old.  Here, there was a new arrangement which incorporated all its existing legislative and treaty obligations and preserved them in the way your Honours have seen in the basic law.

Clearly, this regulation was passed with the intention of it governing the new entity after two days.  The phrase “Hong Kong”, we would submit, is eminent.  There is no doubt, as a matter of construction, of what it refers to.  I do not understand my learned friend to submit to the contrary.  That is not the basis of his argument.

Your Honours, we refer, in our submissions, to the dictionary definition of “territory”, which is, of course, a very wide definition.  It refers to:

“1. any tract of land; region or distinct” ... 3. any separate tract of land belonging to a nation ...”

We do put, in the alternative, the two submissions; the one that the word “territory” in (b)(ii) applies to the whole range of relationships and is not intended to be specific as to any one of them, and that one does not get taken out of that range of relationships merely because one is, in one sense, part of a country, as Norfolk Island is with Australia.  And the second way we put it is that even if one has something which is totally part of a country, like Los Angeles or California, there is no reason why a country should not, if it chooses, delegate the extradition‑making power to subsidiary sections of the country.  If foreign countries are prepared to recognise that, and if they want to do it that way, what is the policy reason that it should be prohibited?  We would submit that this definition is intended to simply cover the whole range, the dozens of - - -

GAUDRON J:   Well, in your submission, though, what does “territory” mean in (b)(i)?

MR BENNETT:   That is the part of the argument I am going to come to.  So far as the (b)(ii) argument is concerned, of course, I am prepared to concede that it has a narrower meaning in (b)(i).  When I get to my (b)(i) argument, I submit that the combination of the three is intended to be a wide phrase, covering any relationship between a place and a country.

GAUDRON J:   Does your argument, though, not really come to this, that it is to be read as though the paragraph were a single paragraph, “a colony, territory or protectorate including a territory for the international relations of which a country is responsible.”?

MR BENNETT:   The difficulty with that is, your Honour, that they are treated differently when one gets to section 8, because, your Honours, section 8(1) has the same pair, separated by paragraph letters, and then it say:

except in the case of a colony, territory or protectorate that is an extradition country, each deemed to be part of the country.

GUMMOW J:   Yes, but section 8 has an operation in relation to later sections of the Act, does it not?

MR BENNETT:   Yes, it does.  It is for a different purpose.

GUMMOW J:   Yes.

KIRBY J:   The phrase “of a country” at the end of (b)(i), does that govern “colony, territory or protectorate of a country”, in other words, colony of a country, territory of a country, or protectorate of a country?

MR BENNETT:   Yes, your Honour.  Yes, it must do, your Honour, yes.  We accept that.

KIRBY J:   One would give “territory” in that context a meaning which was apt for the collection “colony” and “protectorate”.

MR BENNETT:   Yes.  Your Honour, I appreciate the force of that and I will come to that when I get to the argument based on paragraph (i).  I should remind your Honours of the decision of the House of Lords in Schtraks v Government of Israel (1964) AC 556. That concerned the word “territory” in a slightly different context. It concerned the word “territory” in a context corresponding to paragraph 8, where it talked about a person committing an offence in the “territory of a country”. So there, of course, it clearly includes part of the country; it is a country’s territory. So it is a different meaning of the word “territory”. But what is interesting about that case is that it involved the question whether that phrase applied to an area of land which was de facto in the control of a foreign country but not recognised by the British Government as being de jure in its control.

The offence there had been committed in Jerusalem, the British Government did not recognise Jerusalem as part of Israel and the extradition treaty said “If the offence is committed in the territory of the foreign country” and the court held that “territory”, for that purpose, included an area over which there was de facto control.  So it is an example of the way the word “territory” can be used and we would submit it is but only an illustration of the types of relationship one is concerned with, but it also shows that the word, in a context such as section 8, can be used in a very wide sense.

In paragraph g on page 4 of our submissions we have referred to the articles of the basic law which make China responsible for the international relations of Hong Kong, and I will not say any more about that.  The second part of the argument is the argument based on the certificate and what we put here is this:  we tendered a certificate which is set out in his Honour’s judgment and is also at page 3 of the appeal book, and your Honours see it is a very short simple certificate:

that the Hong Kong Special Administrative Region of the People’s Republic of China is a territory for the international relations of which the People’s Republic of China is responsible.

That was rejected, and the ratio of the rejection is at line 45 on page 4.  The meaning of the expressions:

is a matter for the Court and not for the Executive.

The certificate, ultimately, is rejected. 

We have referred in our materials - and I will not take your Honours to the detail of them - to a number of international instruments which use the composite phrase, “territory for the international relations of which a country is responsible”.  It appears in various documents.  The most useful one is the footnote which was summarised in the article by Fawcett (1949) BYBL, which is set out in our submissions.  I will give your Honours the page in a moment.  The meaning, of course, of technical terms is a question of fact rather than law.  The meaning of ordinary English words is a question of fact.  If I can show that this is a composite, technical phrase then it would seem to follow that it is a matter on which one could have evidence, such as a certificate of this nature.

The footnote which is referred to appears at page 150 of our bundle in the article.  On the left‑hand page in the middle of the page there is the statement:

Since 1945 the spate of multilateral treaties has brought new uses for the clause and new formulations.

The old form appears in one thing; a new form was used in another.

Enumeration of the classes of overseas or dependent territories was dropped and they were defined simply as territories for which some state has ‘international responsibility’ -

and it gives an example:

Each government accepting this Charter does so in respect of its metropolitan territory and of the other territories for which it has international responsibility -

et cetera.  Then, there is a reference on the next page to the article in Gatt:

‘Each government accepting this Agreement does so in respect of its metropolitan territory and of the other territories for which it has international responsibility -

The footnote at the bottom refers to the Genocide Convention, which refers to:

all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible -

and there is a string of other similar phrases in other treaties:

territories for which it has international responsibility.....territories for which it has international responsibility -

and there is another one which refers to what is said to be the:

not very intelligible distinction between territories for which a contracting state ‘has international obligations’ and ‘any or all non‑self‑governing territories for which it is responsible -

So, in one form or another, phrases of this nature are phrases which are used in treaties in relation to countries which are making treaties, and need to deal with one form or another of a relationship with some other area which may be a close or a distant relationship.  We submit, in that situation, it is something which it is appropriate for the government to answer rather than the Court.

I have referred, by the way, to Hope v Bathurst City Council, as authority for the proposition that the meaning of technical words is fact and the meaning of English words is law.  A better case for that proposition is the decision of the Federal Court.  It is Federal Commissioner of Taxation v Hamersley Iron(1980) 48 FLR 134 at 157, in the Supreme Court of Victoria, a decision of Justice Gobbo. That is perhaps a clearer example than Hope.

HAYNE J:   Well, what is the technical meaning of these words that you assert?

MR BENNETT:   I do not need to answer that, your Honour, because, as a matter of factual evidence, I produce a Minister’s certificate which says it includes Hong Kong.

HAYNE J:   Exactly.  You elide two questions and slide over them.  You slide between the technical meaning of the words and their application to a particular fact circumstance and you seek to elide the two propositions.  What is the technical meaning of the words for which you contend?

MR BENNETT:   The technical meaning, your Honour, we would submit, is a place which has a greater or lesser degree of autonomy which has some relationship with a country under which that country is responsible for its foreign affairs. 

HAYNE J:   Sounds perilously like the ordinary English meaning of the words, Mr Bennett.

MR BENNETT:   Well, your Honour, what is not part of the definition is a requirement, an exclusion which says the moment one crosses some magic line of being part of a country, it cannot apply.  That is the issue between us.  We say there is no particular meaning to be given to the words “part of a country.”  If there is, we say this is a distant enough relationship not to fall within it, notwithstanding that one may say for political purposes or for all sorts of other purposes that the one is part of the other.  I return, at risk of being monotonous on the subject, to Judges of this Court who have said that a territory of Australia is part of Australia.  They are simply not - - -

Seventhly, my learned friend referred to a number of paragraphs of the basic law and I only want to refer to these very briefly because, in each case he read the bit which favoured his client’s case and cut short before a bit which was important to balance it.  There are just three of those I want to mention very quickly:  the first is, Article 48(8) on page 62 of our materials.  One of the powers and functions of the Chief Executive is:

To implement the directives issued by the Central People’s Government -

but it goes on to say:

in respect of the relevant matters provided for in this Law;

It limits it.  Article 158, my learned friend read the words:

The power of interpretation of this Law shall be vested in the Standing Committee of the National People’s Congress.

But the qualification of that is at the end where it goes on to say:

The Standing Committee of the National People’s Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

And it goes on - I will not read it all - to express some other qualifications and similarly, in section 159, in relation to amendment, where it says the National People’s Congress has the power of amendment, but again there are qualifications, including the last one:

No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong -

which are those set out in the preliminary document, which of course contained reference to the agreement with the United Kingdom.  So we submit, when one looks at those they do not go as far as my learned friend submits.

GUMMOW J:   There are, however, sever restraints on justiciability, under Article 19, are there not?  Who is the ultimate arbitrator of these things?  In particular, the phrase, “act of state”.

MR BENNETT:   Yes, I suppose one should look at that before relying on precedents from Hong Kong about certificates.  The power is, we would submit, a wide power of final adjudication.  Obviously it is not 100 per cent autonomy, but it is not 100 per cent subservient.  It is somewhere between, which we say is what brings one within the words. 

Eighthly, my learned friend referred to the phrases where Hong Kong is described as a Chinese territory.  We simply point out that one might well have described the Falklands as British territory and, in many ways, many of these places, as I said with Algeria, are described as part of the other country while remaining territories of it.

Ninthly, your Honour Justice Gummow asked my learned friend about the law under which Mr Tse is alleged to have committed an offence and whose law that was.  And, of course, that is the laws of the Colony of Hong Kong as it was.  He can be tried for it because Article 8 of the basic law picks up the laws previously enforced ‑ ‑ ‑

GUMMOW J:   When you say pick up, that is an exertion of a fresh sovereign and different sovereign rule.

MR BENNETT:   It is, your Honour, but there is no reason why that should not be so in relation to extradition.

KIRBY J:   And the law has not been changed since with any effect on the respondent?

MR BENNETT:   No one has suggested that it has, your Honour.  We are not dealing with political matters, we are dealing with ‑ ‑ ‑

GAUDRON J:   That is a question for another day if it arises.

MR BENNETT:   Yes, your Honour. Coming to the certificate, there are three matters. Tenthly, my learned friend refers to section 52. Of course, what section 52 throws up is that it would be open under section 52 for a certificate to state that the country of Ruritania is party to a specified treaty and that might involve certifying that Ruritania was a country within the meaning of the Act. So, even the certificates contemplated by that section could involve questions which would otherwise be regarded as questions of law of the type referred to here.

KIRBY J:   But the suggestion is that in a Code which deals with certificates that one would have expected that if the legislature had intended a certificate of the Attorney-General on a matter like this to be relevant, it would have so provided.

MR BENNETT:   We would submit this section is dealing with - it is purely an evidentiary convenience provision.  It is dealing with a different sort of problem to the sort of certificates that governments provide to courts in relation to the status of foreign countries.  This is dealing with facilitation of proof.  That is made clear by the fact that the certificates under that section are not conclusive; they are merely prima facie.  So it is pure facilitation of proof.

KIRBY J:   Is not the point Justice Hayne made obvious, that the executive can certify to matters of executive action but it cannot certify courts out of their function?

MR BENNETT:   Your Honour, it becomes a question of defining the function in relation to the particular matter.  The wording of this certificate is:

certify that the Government of Australia recognises that - - -

GUMMOW J:   So what? 

MR BENNETT:   I am sorry, your Honour?

GUMMOW J:   Suppose it does?  Why does that answer any question under these definition sections in this Act?  The question is whether the executive is acting according to law in taking charge of this man and putting him in custody and ultimately handing him over.  These things are not done by the executive, they are done by statute.

MR BENNETT:   Because, your Honour, in relation to what is - - -

GUMMOW J:   These things are not done by the executive, they are done by statute.

MR BENNETT:   Because, your Honour, in relation to what is a foreign State, and what is a foreign territory, and what the status of it is, what Australia recognises is what the Act refers to, and what the Act is picking up.

GUMMOW J:   Well, that is the question.

MR BENNETT:   That is the question.  That question is anterior to the certificate, I accept that.  My learned friend refers to Shaw Saville and to Duff.  We would simply submit that it is ultimately a question of looking at the type of thing the certificate goes to.  Shaw Saville was very much a question of fact.  It was whether a particular naval vessel was engaged in military activities at the time, or not.  That is a much clearer question of fact than the question of what is the status of a foreign government, which, we would submit, is a matter for recognition in the Executive Government.

Finally, my learned friend gave the example of a certification in relation to conclusiveness, saying that Australia recognises the government of Ruritania, and Mr Smith as the Chief Minister of Ruritania, and there is then evidence that three days later the entire government was lined up and shot.  It is a dramatic example but, of course, it conceals rather than makes his point because, in that example, the certificate merely establishes what the situation was at the date of the certificate; it does not establish the situation three days later, when they are shot. 

Presumably, therefore, one would say the certificate is correct, but the issue before the Court is a different one, namely, the situation today and, if there is evidence, that would no doubt be relevant.  But if the government certificate post‑dated the ministry being lined up on the wall and shot, then, your Honour, we would submit the certificate would be conclusive, and it would not be a matter where it could be contradicted by evidence, although, in the particular factual situation, no doubt something else would be done.

Finally, as I am standing up, your Honour Justice Gummow asked my friend a question about whether China could take away a degree of independence.  My learned friend said, “Unlike the Cook Islands, all the independence, all the matters in the basic law could be taken away by China”.  Your Honour, we would submit that there is not a great deal of difference between the situation with Hong Kong and the Cook Islands in that respect.  China could not take it away in a manner which was consistent with international law.  It has entered into a treaty not to do so.  I suppose a country can invade another country and take away its freedoms but that does not mean that the country is not independent.  If one can take it away with a breach of international law  ‑ ‑ ‑

GUMMOW J:   A breach of a treaty with Britain.

MR BENNETT:   A breach of a treaty with Britain, yes.

KIRBY J:   There are suggestions, I do not want to go into this, that the abolition of the old Legislative Council was in breach of the treaty.  That was certainly done.  We do not know anything about this in terms of the evidence but it can happen.  I do not just refer to this case.

GAUDRON J:   It might be a question if something of the kind did happen, whether it remained a territory for the purposes of the definition.

MR BENNETT:   It might be.

GAUDRON J:   That might be the  ‑ ‑ ‑

MR BENNETT:   The day before Iraq invaded Kuwait, Kuwait was independent but it may well be that it did not have a strong expectation of remaining independent de facto for very long.  The fact that someone commits an act against it which is contrary to international law - it was suggested to me a moment ago that it was merely contrary to a treaty but, of course, the primary rule of international law is pacta sunt servanda, that a treaty must be observed.

So there would be a breach by doing that and we would submit that, and no doubt New Zealand could amend the Cook Island legislation and there would then be a question of the de facto situation of whether or not it was able to resume control, but that cannot be the determinant of whether a country falls on one or other side of the line.  I am just reminded in relation to the continuation of the common law that there is included in my learned friend’s materials at pages 54 and following a decision of the High Court of Hong Kong Special Administrative Region Court of Appeal which holds, among other things, that the common law is adopted by the Administrative Region by the provisions of the basic law, that the legal effect of proceedings commenced under an indictment before that date are preserved by the basic law after that date.  So continuity in that sense has certainly been upheld within the independent judicial system.

GUMMOW J:   It depends what you mean by continuity, but it is already quarter to 5.

MR BENNETT:   Yes.  If the Court pleases, those are my submissions.

GAUDRON J:   Yes, thank you, Mr Bennett.

MR BENNETT:   I am sorry.  Your Honours, there is one matter I have been asked to mention and I am sorry about the time.

GAUDRON J:   Well, please be brief.

MR BENNETT:   I will be very brief.  Your Honours, I just wanted to say that, of course, the time the Court takes to write its judgment is entirely a matter for the Court and, of course, one would not seek to say anything about that except to say that ‑ ‑ ‑

GAUDRON J:   Well, there is perhaps no necessity to say anything about it in that case.

MR BENNETT:   Except to say that it is a matter of great urgency from my client’s point of view.

KIRBY J:   The respondent is at large, is he?

MR BENNETT:   He is, your Honour, yes, subject to undertakings.

KIRBY J:   Yes, but he has a home and various other links with Australia.  He is not a transient.

MR BENNETT:   I was more concerned with the general principle and the possible need to enact legislation if there is an adverse decision, but it may take time and that is the problem.

GAUDRON J:   Yes, thank you.

MR BENNETT:   If the Court pleases.

GAUDRON J:   The Court will consider its decision.

AT 4.48 PM THE MATTER WAS ADJOURNED