Commonwealth Minister for Justice v Adamas - [2013] HCA 59

HIGH COURT OF AUSTRALIA
FRENCH CJ,
HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
COMMONWEALTH MINISTER FOR JUSTICE APPELLANT
AND
ADRIAN ADAMAS & ANOR RESPONDENTS
Commonwealth Minister for Justice v Adamas
[2013] HCA 59
18 December 2013
P50/2013
ORDER
1.Appeal allowed.
2.Set aside order 1 of the orders of the Full Court of the Federal Court of Australia made on 15 February 2013 and, in its place, order that:
(a)the appeal to that Court be allowed; and
(b)the orders of the Federal Court of Australia made on 15 March 2012 be set aside and, in their place, order that the application to that Court be dismissed.

On appeal from the Federal Court of Australia
Representation
J T Gleeson SC, Solicitor-General of the Commonwealth with S B Lloyd SC and H Younan for the appellant (instructed by Australian Government Solicitor)
G R Donaldson SC with A K Sharpe for the first respondent (instructed by O'Connor Lawyers)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Commonwealth Minister for Justice v Adamas
Extradition – Surrender determination by Attorney-General or Minister – Where respondent convicted by Indonesian court in his absence and sentenced to life imprisonment – Where Minister required to be satisfied that surrender would not be "unjust, oppressive or incompatible with humanitarian considerations" within meaning of extradition treaty between Australia and Indonesia – Whether Minister's satisfaction required to be based upon "Australian standards" of fair trial.
Words and phrases – "Australian standards", "surrender determination", "unjust, oppressive or incompatible with humanitarian considerations".
Extradition Act 1988 (Cth), ss 10(1), 11, 22.
Extradition (Republic of Indonesia) Regulations 1994 (Cth), Schedule.
Extradition Treaty between Australia and the Republic of Indonesia, Art 9(2)(b).

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ.
Introduction

The Minister for Home Affairs and Justice ("the Minister") made a determination under the Extradition Act 1998 (Cth) ("the Act") that Mr Adrian Adamas, an Australian citizen, be surrendered to the Republic of Indonesia to serve a sentence of life imprisonment for an offence against Indonesian law of which he was convicted in his absence by an Indonesian court.
The outcome of this appeal turns on whether the Minister acted on a correct interpretation of Art 9(2)(b) of the Extradition Treaty between Australia and the Republic of Indonesia ("the Treaty"), as given force by the Act, in being satisfied, for the purpose of making that determination, that the surrender of Mr Adamas would not be "unjust, oppressive or incompatible with humanitarian considerations".
Contrary to the conclusion of the primary judge in the Federal Court (Gilmour J)[1] and of a majority of the Full Court of the Federal Court (McKerracher and Barker JJ, Lander J dissenting)[2], the interpretation on which the Minister acted was correct.
[1]Adamas v O'Connor (No 2) (2012) 291 ALR 77.
[2]O'Connor v Adamas (2013) 210 FCR 364.
The Act and the Treaty

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCA 59
Decision Date: 18 December 2013

CaseChat Overview and Summary

The Commonwealth Minister for Justice appealed to the High Court of Australia against a decision of the Full Court of the Federal Court of Australia concerning the extradition of Mr Adamas to the Republic of Indonesia. Mr Adamas, an Australian citizen, had been convicted in his absence by an Indonesian court and sentenced to life imprisonment for corruption offences. The Minister was required to determine whether surrendering Mr Adamas would be "unjust, oppressive or incompatible with humanitarian considerations" under the extradition treaty between Australia and Indonesia.

The central legal issue before the High Court was whether the Minister, in assessing whether surrender would be unjust, oppressive, or incompatible with humanitarian considerations, was obliged to apply "Australian standards" of a fair trial. The courts below had held that such Australian standards were determinative of the Minister's assessment.

The High Court reasoned that while Australian standards are relevant considerations when assessing whether surrender would be unjust, oppressive, or incompatible with humanitarian considerations under Article 9(2)(b) of the treaty, they are not determinative. The Court distinguished the present case from previous decisions where the application of Australian standards was implicit or required by specific regulations. The High Court concluded that the Minister was not obliged to confine his considerations to Australian standards and that the courts below had erred in their interpretation of the treaty and the Act.

Consequently, the High Court allowed the Minister's appeal, set aside the orders of the Full Court of the Federal Court, and ordered that Mr Adamas's application to the Federal Court be dismissed.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside order 1 of the orders of the Full Court of the Federal Court of Australia made on 15 February 2013 and, in its place, order that:

(a) the appeal to that Court be allowed; and

(b) the orders of the Federal Court of Australia made on 15 March 2012 be set aside and, in their place, order that the application to that Court be dismissed.

Background

Background to the litigation

Bearing also on the interpretation of Art 9(2)(b) of the Treaty is s 10(1) of the Act. Section 10(1) provides and, when the Treaty was done in 1992, provided:"Where a person has been convicted in the person's absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence."The significance of s 10(1) for Art 9(2)(b) of the Treaty lies in its express contemplation of the Act applying to the extradition of a person who has been convicted in his or her absence of an offence against the law of an extradition country even where the conviction is a final conviction. The Treaty does not, as do some extradition treaties to which Australia is a party, contain a provision to the effect that a person convicted in his or her absence is not to be extradited unless the Requesting State gives assurances that the person will have an opportunity to put forward a defence[17]. The consequences of a person being deemed by s 10(1) not to have been convicted, but to be accused, of an offence are confined to the nature of the supporting documents required to be produced to the magistrate determining eligibility for surrender: a warrant for arrest rather than a document providing evidence of conviction and sentence[18]. [17]For example Art 12 of the Treaty on Extradition between Australia and the United Mexican States; Art 6 of the Treaty on Extradition between the Government of Australia and the Government of the Republic of Argentina.[18]Sections 19(2)(a) and 19(3)(a) and (b).Facts Mr Adamas, then an Indonesian citizen and then known as "Adrian Kiki Ariawan", was between 1989 and 1998 the President Director of Bank Surya. Mr Bambang Sutrisno was then the Vice President Commissioner of Bank Surya. Mr Adamas moved to Australia in 1999 and became an Australian citizen in 2002. Mr Adamas and Mr Sutrisno were in 2002 each tried and convicted in their absence by the Central Jakarta District Court of an offence against Art 1(1.a) of Indonesian Law No 3 Year 1971 on Combating Corruption Crime. Each was sentenced in his absence to life imprisonment. The conduct of Mr Adamas and Mr Sutrisno found to give rise to each offence involved misusing funds of Bank Surya for their own purposes, leading to serious liquidity problems for Bank Surya, and then engineering the extension of discount facilities to Bank Surya by the Indonesian Central Bank, leading to extensive losses by the Indonesian Central Bank and therefore to the finances of the Republic of Indonesia. Mr Sutrisno appealed against his conviction to the High Court of Jakarta. That appeal was taken under Indonesian law also to be made on behalf of Mr Adamas. The High Court of Jakarta dismissed the appeal in 2003. In 2008, Indonesian authorities issued a warrant for the arrest of Mr Adamas and the Republic of Indonesia formally requested his extradition. Also in 2008, a magistrate issued a provisional arrest warrant on application made on behalf of the Republic of Indonesia. In 2009, following arrest and remand of Mr Adamas, another magistrate determined his eligibility for surrender and, by warrant, ordered that he be committed to prison to await surrender or release.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ (dissent)

The primary judge and the majority in the Full Court were therefore wrong to hold that the Minister was obliged to apply Australian standards in assessing whether surrender of Mr Adamas to the Republic of Indonesia would be unjust, oppressive or incompatible with humanitarian considerations within the meaning of Art 9(2)(b) of the Treaty as given force by s 11 of the Act. Mr Adamas relied upon statements in previous cases that he submitted supported this aspect of the reasoning of the courts below. Those statements were made in materially different circumstances. Bannister v New Zealand[34] concerned a judicial determination of whether "it would be unjust, oppressive or too severe a punishment to surrender [a] person"[35] to New Zealand. Foster v Minister for Customs and Justice[36], though it concerned a determination by a Minister, concerned a standard for determination in reg 7 of the Extradition (Commonwealth Countries) Regulations (Cth) and not a bilateral treaty. The application of Australian standards is implicit in both of those circumstances[37]. In assessing whether extradition of a person is "unjust, oppressive or incompatible with humanitarian considerations" within the meaning of Art 9(2)(b) of the Treaty, Australian standards are appropriate to be taken into account. Australian standards cannot, however, be determinative of that assessment.[34](1999) 86 FCR 417.[35]See s 34(2) of the Act.[36](2000) 200 CLR 442; [2000] HCA 38.[37]Bannister v New Zealand (1999) 86 FCR 417 at 430 [26]; Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 458 [43].Conclusion The Minister acted on a correct interpretation of Art 9(2)(b) of the Treaty. The Minister was not obliged to apply Australian standards and would have been wrong to confine his consideration to the application of Australian standards. It follows that the Minister's principal argument in the appeal must be accepted and that Mr Adamas's argument that the Minister's decision was unreasonable cannot succeed. The Minister does not seek to disturb the orders for costs made by the primary judge or by the Full Court. Accordingly, the appropriate orders to be made are as follows:1.Appeal allowed.2.Set aside order 1 of the orders of the Full Court of the Federal Court of Australia made on 15 February 2013 and, in its place, order that:(a)the appeal to that Court be allowed; and(b)the orders of the Federal Court of Australia made on 15 March 2012 be set aside and, in their place, order that the application to that Court be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.