Minister for Home Affairs of the Commonwealth & Ors v Zentai

[2012] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P56 of 2011

B e t w e e n -
MINISTER FOR HOME AFFAIRS OF THE COMMONWEALTH
First Appellant
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Second Appellant
MINISTER FOR JUSTICE OF THE COMMONWEALTH
Third Appellant
and
CHARLES ZENTAI
First Respondent
BARBARA LANE

Second Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON

Third Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 MARCH 2012, AT 10.20 AM

____________________

MR S.B. LLOYD, SC: May it please the Court, I appear with MS H. YOUNAN, for the appellants. (instructed by Australian Government Solicitor)

MR G.R. KENNETT, SC: May it please the Court, I appear with MR P.W. JOHNSTON and MS V.M. PRISKICH, for the first respondent. (instructed by Fiocco’s Lawyers)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR M.J. WAIT, for the Attorney‑General for the State of South Australia, intervening. (instructed by Crown Solicitor (SA))

FRENCH CJ: Thank you. Yes, Mr Lloyd.

MR LLOYD: By way of a housekeeping matter, I believe there has been filed in the Court consent orders changing the names of the first and third appellant. We apprehend that the preferred approach of the Court is that the names of Commonwealth Ministers, or for that matter, Ministers, be the title of their portfolio, rather than their personal names. There are consent orders to that effect and there is an amended notice of appeal that we would seek leave to file. I should indicate that while we have followed that practice, which we apprehend to be the correct practice, it does lead to the curious result in this case that the first appellant and the third appellant are the same person because he holds two portfolios.

FRENCH CJ: Mr Lloyd. Yes, there will be orders in those terms, Mr Lloyd.

MR LLOYD: Thank you, your Honour. There is one issue on the appeal and that is whether or not the court below erred in construing Article 2 of the Extradition Treaty between Australia and Hungary ‑ ‑ ‑

HEYDON J: Mr Lloyd, could you just speak up a bit please?

MR LLOYD: Sorry. There is one issue on the appeal; that is whether or not the court below erred in construing Article 2 of the Extradition Treaty between Australia and Hungary.

The ground of review – this seeks to challenge an adverse finding that was made on ground 4 of the original application which can be found in the appeal book on page 13. There was also one issue on a notice of contention, that is whether or not the Minister made a jurisdictional error in failing to give reasons for his decision under section 22, and that is an evolution of ground 12 which can be found in the first volume of the appeal books on pages 26 to 27.

I will address these issues in turn. As to the appeal, I will divide my submissions up under four topics: the first is how the question of the treaty construction arises for consideration of the Court in this matter; the second are relevant principles of treaty construction; the third turns to seek to apply those principles to Article 2 and then the fourth, to the extent that it is not already apparent, are submissions where we seek to identify errors in the judgment of the court below.

Going then to how the construction issue arises, if we ask to the Court to have a look at, or at least briefly note, section 11 of the Extradition Act, it makes provision for the regulations to be made which makes the Act apply:

subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty ‑ ‑ ‑

GUMMOW J: Sorry, which subsection are you reading from?

MR LLOYD: Section 11(1)(a):

being a treaty, a copy of which is set out in the regulations -

Then 11(1C) states a formula that can be used in the regulations to, in effect, have that effect. Regulation 4 of the Extradition (Republic of Hungary) Regulations 1997 invokes that formula and then the relevant way that it bites is in section 22 of the Extradition Act. Under section 22(3) it says:

the eligible person is only to be surrendered in relation to a qualifying extradition offence if . . .
(e)where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that -

and then it is one of two things, either the person must not be surrendered or may be refused. Then the Attorney‑General has to be satisfied of either the conditions that require non‑surrender exist or that the conditions that would justify the exercise of discretion exist. So that, in effect, requires the Minister to have a look at the Treaty. That is what happened in this case.

Then, I propose to give the Court appeal book references to five documents that pertain upon the facts of this case. The first is the arrest warrant that was contained with the extradition request. It can be found in volume 1 of the appeal book starting at page 142. It may be seen on that page, at the bottom of 142 over to 143, that the offence is said to be:

due to the war crime referred to in Section 165 of the Criminal Code –

which is a 1978 Criminal Code. There is also a reference there to section 11 of a 1945 decree being “Act VII of 1945”. I will explain how that works in just a moment. It becomes clearer as one looks through the arrest warrant. From about halfway down page 143 there is then a description of the alleged conduct of Mr Zentai. I will not read it, but that goes over the page.

CRENNAN J: Now, the offence for, for example, dual criminality purposes is the offence you have described at the bottom of page 142 and the top of page 143. Is that right?

MR LLOYD: Yes. Well, your Honour, it is for dual criminality purposes. That is the offence for which extradition is sought. It is complicated in this way that Hungary like, I am instructed, other civil law countries, has a habit whereby they sort of repeal aspects of the criminal law and then re‑enact them in a later criminal law and that is what is done here. So section 165, in effect, re‑enacts the 1945 offence. So the substantive offence, in a sense, is the 1945 offence, albeit that it was probably repealed and its force subsists under the 1978 law.

CRENNAN J: But then on about point 7 of page 143 the acts and conduct constituting the offence occurred, as I read it, on 8 November 1944.

MR LLOYD: That is so and I note that that is made abundantly clear by the Republic of Hungary who know the terms of the Treaty and know that extradition will not be given in respect of something which is a purely – or we would say a purely retrospective offence when something was not criminal at all. Nonetheless, knowing that it is retrospective they sought extradition. Those are the events, the ones of 1944.

Over the page, although this is not particularly relevant, from the middle of 144 to 145 there is a reference to an earlier proceeding against Mr Zentai, but he was not in custody at that point in time and it ultimately lapsed. Then on the middle of page 145, line 30, there is said to be a word‑for‑word text of the 165 – of the 1978 Act and it is somewhat difficult to pass, but it says:

A special legal rule (Decree No. 81/1945 (II.5.) ME, enacted by Act VII of 1945, amended and complemented . . . shall provide for other war crimes.

There is then a reference to section 11 of the 1945 decree, which we apprehend is picked up in the 1978 Criminal Code and the text of that begins on the last line of page 145 over to line 20 on page 146. The punishments for that offence are noted on about line 25. Then at line 30 there is a reference to the “temporal effect” of the PJD. I should indicate that the PJD is a reference to the 1945 decree. That is made clear about line 41 on page 145. So back to page 146, from 30 to about 40, there is an indication that that decree was given an operation that predated the date of the making of the decree.

BELL J: I am sorry, where is that?

MR LLOYD: So, from line 30 on page 146. It says that:

the word‑for‑word text of which is as follows: “The crimes described in the present Decree may also be punished even in the case if the action was already completed upon the enactment of the Decree ‑ ‑ ‑

CRENNAN J: Yes.

FRENCH CJ: Is it possible to speak sensibly in terms of the elements of the offence created by the decree as set out at the bottom of 145 and over to 146? There seem to be alternative offences created, one relating to international legal rules, another relating to treatment of “the population of the reannexed territories barbarously”, et cetera, and the third relating to instigation, perpetration or being an accomplice in “unlawful execution or torture of persons”.

MR LLOYD: Yes, well, our case is very much that because of the difficulties experienced over years in identifying elements of foreign offences, often with translational questions, the focus, we say, on the Treaty is entirely upon the conduct alleged in the warrant and so what one does, for example ‑ ‑ ‑

FRENCH CJ: So that is a practical difficulty informing interpretation of the Treaty.

MR LLOYD: Well, not the interpretation of the Treaty, but as a practical difficulty in terms of if one had to identify the elements of the requesting state’s offence ‑ ‑ ‑

FRENCH CJ: Yes.

MR LLOYD: ‑ ‑ ‑ that is a difficulty.

FRENCH CJ: You say that is a reason for going to the actual conduct as constituting the offence, rather than the legal construct.

MR LLOYD: That is so.

FRENCH CJ: So it goes to the interpretation of the Treaty.

MR LLOYD: It has that significance. All I am saying is that the terms of this particular offence do not inform the interpretation of the Treaty, but they do explain why the Treaty is in its form.

FRENCH CJ: You say that the practical difficulty of interpreting foreign laws ‑ ‑ ‑

MR LLOYD: That is so.

FRENCH CJ: ‑ ‑ ‑ supports your construction.

MR LLOYD: That is why in Article 2.2 it says you can, in effect, disregard the elements of the offence. You can disregard the name or title of the offence and you should look at the totality of the actual omissions alleged. I will come to the Treaty. I just want to take the Court through the ‑ ‑ ‑

HEYDON J: What do you actually say are the words creating the crime? Are you relying on what the Chief Justice called “the third part” – in other words, “unlawful execution or torture of persons” in Hungary?

MR LLOYD: Well, we apprehend that is what Hungary relies upon.

HEYDON J: There seems to be something a little strange in applying the earlier parts to what actually happened. One Hungarian maltreats another Hungarian. The second Hungarian was not a prisoner of war. It was not really occupied territory. Do you rely on those last words rather than the earlier words?

MR LLOYD: We apprehend the Hungarian Government relies upon the last words ‑ ‑ ‑

HEYDON J: Yes.

MR LLOYD: ‑ ‑ ‑ but there may be all kinds of Hungarian case law that explains that, but we say we do not have to trouble ourselves with that. It is enough that we are satisfied that the conduct – the totality of the actual omissions if done in Australia – would be an offence of the relevant level of criminality. Also, that is 2(5)(b). Then in relation to 2(2)(a), we just have to be satisfied, we say, that the acts or omissions constituted an offence.

As I am about to show the Court, that was an inquiry. Because the extradition request does not itself mention that he could have been prosecuted for murder, what we say is there was an inquiry made to see that it falls within our construction of 2(5)(b) which is to say, well, your extradition request makes it clear that this decree was entirely retrospective but we say was it otherwise an offence. Can you just clarify that it was otherwise an offence?

CRENNAN J: But is it really a dual criminality point, which seems to be the way you are putting it, because that is an inquiry into a cognate offence in the requested state. But is not the issue here whether or not there was another offence in the requesting state, other than the one in the international arrest warrant, in relation to which the same acts or conduct would be relevant – would be sufficient for making out the other offence. In other words, the inquiry is focused on offences in the requesting state, is it not, rather than the correspondence between an offence in the requesting state and an offence in the requested state?

MR LLOYD: I entirely accept that the issue of construction in this case is about 2(5)(a), which raises the issue your Honour says, and not whether it is an offence in Australia. However, Article 2 deals with both issues and we say ‑ ‑ ‑

CRENNAN J: Yes, I appreciate that.

MR LLOYD: We say Article 2 should be read as a whole and, for that matter, the Treaty should be read as a whole.

CRENNAN J: Whereas Justice Jessup made the very distinction that you have accepted can be found in Article 2 between those two different tasks - what I will call for convenience the “dual criminality task” and the task of checking whether acts and conduct in the requesting state could amount to an offence other than the offence set out in the international arrest warrant.

MR LLOYD: That is so, your Honour. So, chronologically, the next step after receiving this request was the Minister – or the next relevant step – was the Minister issued a section 16 notice. There is in the book at page 275 a copy of the submission to the then Minister pertaining to the issue of section 16 notice. On page 279, at paragraph 23, the last dot point the Department advises that:

relevant treaty requirements have been met -

That is, I accept, a little bit vague, but there is, on page 282, an attachment to that submission which explains the matter in more detail, starting with the relevant passage on page 284, paragraph 17. It sets out Article 2(5), both (a) and (b). In relation to (a) it says at 18:

Article 2(5)(a) needs to be considered as Zentai is being charged under legislation that was enacted after the time of the conduct constituting the offence.

So right from the beginning my client was on to that issue and we say it can properly be inferred that an inquiry was made of Hungary because at the end of paragraph 19 there is a sentence which says:

Despite the application of section 1 –

That is of the 1945 Decree –

Hungary have noted that Zentai’s alleged conduct would have constituted an offence of murder in Hungary under Article 278 of Act V ‑ ‑ ‑

GUMMOW J: Where are you reading from, Mr Lloyd?

MR LLOYD: It is the last three lines of paragraph 19 on page 285. So the point that I get from that is that after receipt of the extradition request my client has made an inquiry of Hungary about whether or not the conduct alleged was an offence at the time, albeit not the offence mentioned in the extradition request.

CRENNAN J: So this bears on a subsequent agreement point, in terms of the construction?

MR LLOYD: It does.

CRENNAN J: Do we have, in our materials, what I will call the primary materials in relation to what Hungary was indicating or the subsequent agreement between the contracting states?

MR LLOYD: We have some, which I will take the Court to. We do not have the note referred to in paragraph 19. It was before the section 21 appeal and the appeal to the Full Federal Court from that, but it was not before the courts below in this stream of litigation, so it is not in the book. But we say that that is enough to make the point that an inquiry was made, a response given and I will come to the next response.

Paragraph 20 then notes that my client’s advisers are saying that is enough to meet the requirements of 2(5)(a) so we say that clearly shows the view of the Treaty adopted at the very earliest stage by the Executive Government because a section 16 notice was issued. So that is that step. There is then a section 19 decision and an appeal from that and one may apprehend that Mr Zentai was not confident of his prospects on the appeal because prior to the result he sent a submission to the Minister under section 22 of the Extradition Act which, of course, is not invoked until the end of the section 21 process.

That starts on page 53, so this is the submission of Mr Zentai and the relevant aspects start on page 58 and this I simply draw to the Court’s attention, as it were, for completeness, but from 58 through to 64 there is a discussion in which Mr Zentai advances a case that he is not being sought consistently, or that he should not be surrendered because of Article 2(5)(a). Then that note was apparently sent to the Hungarian Government for comment and on page 190 of the appeal book there is the response of the Hungarian Government, and at the bottom of page 191 your Honours can see a heading “Allegation that the offence is not an extradition offence because of the operation of Article 2(5)(a) of the Treaty”.

There is then various discussion. I note from about line 20 on page 192 there is further discussion and reference there to other offences that are relied upon, and then at line 30 they say that:

Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that it was an offence in the Requesting State at the time of the acts or omissions constituting the offence.
Taking into account the above, it can be established that the action committed by Zentai was an offence even at the time of its commission.

We say, again, the Republic of Hungary’s construction of the Treaty is the same as our construction of the Treaty and that shows agreement.

CRENNAN J: When you say “our construction” of the Treaty, you mean as evidence in documents provided to the Minister?

MR LLOYD: And acted upon by the Minister in issuing the section 16 notice and in issuing the section 23 warrant.

FRENCH CJ: Is this actually an agreement or are you putting it up as state practice?

MR LLOYD: Well, at the very least we say it is state practice that tacitly or implicitly reveals agreement and I use those words because they were accepted in a judgment of this Court in Ibrahim - it is not in the list - but it is 204 CLR 1 at paragraph 140 in the judgment of Justice Gummow where Article 31(3)(b) was said to be engaged or able to be engaged by state practice which shows “tacit or implicit agreement”. We say at the very least it is that, but we also it is actual agreement because we are agreeing. They are saying something and we have the same view, and two parties to a two‑party agreement both have the same view, that is, we say agreement as well.

CRENNAN J: Just on the practice point, would not practice normally suggest, well, first, consistency in relation to a number of occasions so that both number – repeat occasions and consistency will give rise to a practice? Can you tease a practice out of one instance?

MR LLOYD: Well, we say in a sense here there is more than one instance. I mean, there is only one person, but there is Hungary making the request so that shows their practice. There is Australia issuing, or the Minister issuing, a section 16 notice. That is an act of an executive practice. So is the issuing of a section 23 notice an act of practice, so that is three instances of state practice. In any event, we say that if one was trying to establish a norm of customary international law you might be looking for a lot of state practice and a lot of opinio juris. When one is looking for state practice for the purposes of Article 31(3)(b) one is looking for practices that show the intention of the parties as to the proper construction of the Treaty, and we say that what is here is enough to establish that.

GUMMOW J: This notion of double criminality in the statute does not have any element in it as to the method of adjudication in the requesting state of that criminality. It talks about offences but it seems silent as to how they are prosecuted.

MR LLOYD: I think that is so, your Honour.

GUMMOW J: So with a composite system where there is no – it would permit extradition to a country which had no separate judicial system, would it not?

MR LLOYD: If Australia entered into a treaty and it became an extradition country I think it would, yes, your Honour.

GUMMOW J: It just talks about offences; it does not say how they are punished.

MR LLOYD: That is so.

GUMMOW J: This offence of murder, if it was an offence in November 1944 by Mr Zentai when he was a member of the Royal Hungarian Army, would have been punished, if at all, by a military tribunal, would it not? Does that not appear from page 192, line 40? It would have been what we call a service offence.

MR LLOYD: Yes, that may be so, your Honour.

GUMMOW J: If it had been committed in Australia it would have been, or may not have been, within the military structure.

MR LLOYD: Well, I think, your Honour, if it was committed in Australia, if a murder was committed by an Australian soldier in Australia, it could well and probably would be prosecuted in a civil court.

GUMMOW J: But not necessarily?

MR LLOYD: No, I accept it would be an offence under the DefenceForce Discipline Act as well.

GUMMOW J: Is that was Cox and Bevan was all about?

MR LLOYD: Yes, that is so.

GUMMOW J: They were hung as a result of a military procedure, were they not?

MR LLOYD: That is so. They may have also been ‑ ‑ ‑

GUMMOW J: So, when we talk about double criminality, we have to sort of not get ourselves into a box, it seems to me.

MR LLOYD: I do not take issue with that, your Honour. The next step is the submission to ‑ ‑ ‑

GUMMOW J: So, when we are talking about double criminality in 1944, service personnel murders somebody, what is the double criminality under our law? I do not think it is just the statutory law of murder in the particular State or Territory where this happened in Australia. I may be wrong.

MR LLOYD: I do not recall – I can have a look for it – ask my junior to have a look for the finding as to double criminality here – but I think it was murder. It was attributed to murder in the State of Western Australia, I think.

GUMMOW J: Of whom, by whom, you see. What level of abstraction are you looking at – to use that expression yet again – in looking at these questions? Otherwise, it just becomes some sort of academical tournament it seems to me, imprecise academical tournament.

MR LLOYD: That is so. We say that one has to look at the acts or omissions. Now, I accept that there is an issue as to the level of specificity of the acts or omissions that one has to take into account. We say that necessarily it cannot take into account, for example, location because it would not work if that was one of the acts or omissions is killing someone at a particular location. Whether or not it takes into account your status – whether status is an act or omission – we say, it is not clear that it is. It is really what you did in terms of physical acts or physical non‑acts. At page 176 ‑ ‑ ‑

GUMMOW J: It just seems to me there is insufficient attention in this case, so far, to the circumstances that existed in Hungary in November 1944 and in Australia in November 1944.

MR LLOYD: In Australia in November 1944?

GUMMOW J: Yes. We were at war, too. On the other side, as it happened.

MR LLOYD: Indeed. The test in Article 2(5)(b) requires one to assess it at the time of the request, not at the time of the events, but I will come to the terms of the Treaty shortly. Just to finish off the factual picture, on page 176 of the appeal book is the submission to the Minister under section 22 pertaining to the possible exercise of the power to surrender. It is very difficult to read but, fortunately, I only need to say that the analysis of substance is in what is referred to attachment C on that page. Attachment C, happily, is much clearer. It starts on page 220. The relevant part of attachment C is at page 233.

FRENCH CJ: Why is this all so hard to read? It is not dealing with just Hungarian documents here. We are dealing with documents from the Australian Government Attorney‑General’s Department.

MR LLOYD: Yes, I cannot answer why that is so difficult to read.

FRENCH CJ: It is just not an acceptable standard for an appeal book.

MR LLOYD: I accept that, your Honour. If it would be of assistance to the Court I can ask my solicitor, in conjunction with the respondent’s solicitor, to work together to replace the pages that are difficult to read.

FRENCH CJ: I think that would be helpful.

MR LLOYD: On page 233 the attachment addresses the Article 2(5) issue. There is some background in paragraphs 89 through 93. Paragraph 94 notes the advice received from Hungary about “murder” and we say that the advice of a foreign country is enough to sustain that as a factual finding. It is open to the Minister to find that he was eligible to be:

constituted the offence of ‘murder’ –

Then in paragraph 95 there is a rejection in the advice of Mr Zentai’s construction of Article 2(5). In paragraphs 96 and 97 there is an explanation of the Department’s view. In paragraph 98 there is a reference to this aspect being on a “‘model’ extradition treaty” prepared by the Department of Foreign Affairs and Trade. Then in paragraph 99 there is a reference to the process by which the Extradition Treaty was approved by the Joint Standing Committee on Treaties and ultimately that fed into it becoming the regulation which is before the Court and it taking effect. We say it is significant there that the Department gave advice as far back as 1996 that 2(5)(a) turns upon the conduct, which is the subject of the extradition and it must constitute an offence so ‑ ‑ ‑

FRENCH CJ: The Joint Standing Committee on Treaties, is this an interdepartmental committee, is it?

MR LLOYD: It is a parliamentary committee.

FRENCH CJ: I see, all right.

MR LLOYD: If it is of any assistance to the Court we have a copy of the report of that committee, but it was not before the courts below, although it might be seen as extrinsic material to the regulation which itself contains the Treaty which we are construing - if the Court would be assisted by that. But it does not say much different than what is said in this paragraph, which is to show that the Department in advising the committee expressed the view that Article 2(5)(a) turns upon the conduct and it being ‑ ‑ ‑

CRENNAN J: Would you describe that technically as true though, or not really?

MR LLOYD: No, because the Treaty itself had been entered at that stage.

CRENNAN J: Been entered at that stage.

MR LLOYD: It had not come into force, but it had been entered at that stage.

CRENNAN J: Very well.

FRENCH CJ: The regulation had been made at that stage?

MR LLOYD: The regulation had not been made.

FRENCH CJ: No, it was made after consideration by the Joint Standing Committee?

MR LLOYD: That is so, after the committee gives it the tick the regulation is then made and then the Treaty came into force in 1997.

FRENCH CJ: The regulation was subject to the usual disallowance ‑ ‑ ‑

MR LLOYD: That is so. I mean, we refer to this for two reasons. One is to indicate – I mean, it could be seen potentially as an aspect of state practice, but perhaps more importantly it is put against us that our view is somehow convenient or self‑serving or made for the purposes of this case. We say that my clients have taken this view consistently from very shortly after the Treaty was entered into and before it came into force in Australia throughout ‑ ‑ ‑

CRENNAN J: I suppose one problem, and it is just a possibility, is that the language of the committee’s advice and so on would seem to suggest an amendment might have been required to (5)(a) when you compare (5)(a) with (5)(b), that is to say you have to deal with the fact of the ordinary meaning of an offence in (5)(a) by way of contrast with the verbiage of “the acts or omissions would” in (b).

MR LLOYD: I will come to how we construe ‑ ‑ ‑

CRENNAN J: I mean, the point I am trying to make, I think, is this. It looks like what you are saying, this consistent view about what (5)(a) meant, raised an issue which never went anywhere of possible amendment.

MR LLOYD: Well, what happened was the advice was given as to what the Department had thought was the proper construction of 2(5)(a) and then the Treaty was given effect to in the regulation on the basis of the Department’s advice. Now, I cannot put it any higher than that but really we at least say ‑ ‑ ‑

CRENNAN J: Was there any consideration given to the different verbiage in (a) and (b) in the context of taking that view of the construction of (a)? Perhaps it does not matter but ‑ ‑ ‑

MR LLOYD: I can provide the committee report, but it is very brief. It simply notes “The Department, in effect, said that” and that is all the report really says. There is not a discussion between the language between paragraph (a) and (b). Then paragraph 100 of this document on page 234 notes the consistency of the views between the Hungarian Government on construction and the Australian Government. We say that that is, again, evidence of agreement and when then the advice is given ‑ ‑ ‑

FRENCH CJ: Well, without trivialising it you can say they would say that, would they not, in the sense that the request would be futile if 2(5)(a) did not bear that construction?

MR LLOYD: Well, that is so, but having them having made the request for extradition they are then binding themselves, we say, to a construction of the Treaty which Australia would be entitled to rely upon if ever we wanted to do it. It would be hard for them to say, “That is not the right construction” when we say, “Well, we sent Mr Zentai to you, we shared that view, you told us that view”. If we were in the International Court of Justice having an argument with Hungary they would say, “We have both agreed as to the view. You should not come to this Court and try and step away from it.” So we say that the agreement is a weighty matter where two parties to an agreement both agree. It is significant.

CRENNAN J: Well, you are saying binding on both of them - to test whether it is a subsequent agreement it is an agreement you would say which is binding on both of the contracting states.

MR LLOYD: Well, we say the Treaty is binding and the agreement as to terms is a matter to be taken into account in construing the Treaty.

FRENCH CJ: But it really goes not much further than this does it, that Hungary makes a request which can only be acceded to upon the construction of Article 2(5)(a) for which you contend, and Australia acquiesces in that request?

MR LLOYD: Accedes to it, yes.

FRENCH CJ: Well, accedes to the request, I am sorry. That is the beginning and the end of it in a sense surrounding documentation because one of the premises upon which the request is made must be your construction of 2(5)(a).

MR LLOYD: Yes, your Honour, we accept that and that is why we say that shows their underlying view and is built into their state practice. Our underlying view is built into our state practice. That is all I have to say on the first topic of how we get to the treaty construction. On the question of the principles pertaining to treaty construction I note that a convenient place to find the relevant bit of the Vienna Convention is in volume 2 at pages 510 to 511 of the appeal book.

GUMMOW J: Article 31, is it?

MR LLOYD: Article 31.

GUMMOW J: Well, we have looked at Article 31 from time to time, have we not?

MR LLOYD: Indeed.

GUMMOW J: What comes out of the Court’s interpretation of Article 31?

MR LLOYD: Sorry, what comes out of the cases?

GUMMOW J: What comes out of this Court’s decisions interpreting Article 31?

MR LLOYD: We think the most detailed exposition is in the judgment of Justice McHugh in Applicant A 190 CLR 225. Perhaps on the way to getting to Justice McHugh’s judgment if I note that the then Chief Justice Brennan on page 231 at the first full paragraph on that talks about an “holistic approach to interpretation” that is required taking a consideration of the text and the object and purpose of the treaty. This was not a case where 31(3) was engaged, but we would say because 31(3) says that consideration of state practice and state agreement is to be done together with the consideration of the context, that that is all to be done at one stage.

Justice McHugh’s more detailed consideration perhaps begins at the bottom of page 251. There is then a setting out of Article 31. There is a discussion of different views in the first full paragraph on page 253. In the second full paragraph his Honour says there is “no clear” Australian position. His Honour then offers his view, which is to adopt the opinion of Judge Zekia of the European Court of Human Rights, where he stressed that “a holistic approach was required”. There is then a quote, which has an italicised mention of something called a “single combined operation”, and a further quote, the second sentence of which is:

When all elements are put together and considered compositively, to my mind the combined effect lends greater force to the correctness of the opinion submitted.

Judge Zekia again is said to be “an ordered yet holistic approach”. There is then some reference to what the International Law Commission says, which seems to be of a similar view.

CRENNAN J: I think the background to this, it might be fair to say, is there was a lot of debate in international circles about whether one aspect of Article 31 had primacy over other aspects. The debate took the form about whether or not the original meaning took special primacy. I think, “holistic” in that context really referred to taking into account all the elements of Article 31, not ignoring (4), for example, or invoking (4) to clearly contradict (1). That was the sort of debate – the terms of the debate – that was had in the background. Sorry, not invoking (4), yes, at the expense of (1).

That was the kind of debate where “holistic” came into prominence which, I think, meant – but correct me if I am wrong – no more than that all the elements of Article 31 were to be taken into account because Article 31 represented, as many articles in treaties do, a kind of compromise between people who had different views about the principles of construction which ought to apply.

MR LLOYD: I do not disagree with that, your Honour. Perhaps the only reason I come to this is because my friend’s submission seeks to put 31(3) in some kind of lesser significance. We say, it all goes into the pot and one does not start with what the words mean and then look at context, and then look at objects, and then look at state practice, and see if the later ones somehow negative the early ones. One says, one works out what the words mean after having a proper consideration of the context, the objects and the subsequent state practice and agreement and then, in light of all of that, identifying what the means are.

So the words have, I accept, a measure of primacy but it is to be done in one single combined operation rather than in a sequential approach. I had apprehended – perhaps wrongly, perhaps my friend will say I have misapprehended him – but I had apprehended their submission suggesting that it is done sequentially ordered is that it gave much more emphasis to ordered as if 31(3) comes later. It comes later in a chronological respect because it is a subsequent practice – or subsequent agreement – but if the issue of construction has not been addressed at the time, the first time the issue of construction comes up, we say the Court should have regard to all of those matters in working out what the meaning is. That is all we say, I think ‑ ‑ ‑

CRENNAN J: Do you frame your 3(a) argument also under (4)?

MR LLOYD: We have not, no. We have not sought to put on evidence in a sense of travaux or something of that kind. I think we apprehend that our subsequent agreement and subsequent practice – it would be unusual if that necessarily engaged (4) because then (3) would largely be defunct. So, no, we do not engage (4). We are not looking for a special meaning.

FRENCH CJ: Sorry, Mr Lloyd, Article 31 of the Vienna Convention is dealing with the interpretation of treaties generally. In this case, we are dealing with the interpretation of an extradition treaty. I am just looking at Riley v The Commonwealth in the judgment of Justice Deane – that is (1985) 159 CLR 1 at page 15.

MR LLOYD: Yes, I am not sure if I have that here.

FRENCH CJ: It is in the context of double criminality, but he makes the general point in the last paragraph that:

Treaties dealing with a specific subject, such as extradition, must also be construed in the light of any particular principles of international law and of any particular standards accepted by the member states of the international community in relation to that subject. Thus, for example, it is a well‑recognized standard of the international community, though not binding as a rule of international law, that extradition – with its attendant deprivation of liberty and disruption of lives – should only be requested or granted in case where the alleged offence is a serious one –

Now, I know he is focusing upon one particular issue there, but there seems to be a subtext which is surely relevant to the construction of an extradition treaty that its construction is informed not just by the general principles to which the Vienna Convention refers but also to the fact that this does impact in a significant way on the liberty of the individual.

MR LLOYD: I do not deny that, your Honour, but I am not seeking ‑ ‑ ‑

FRENCH CJ: So it is a question of if you have a constructional choice on a treaty is that choice to be informed by considerations of the kind to which Justice Deane referred in Riley?

MR LLOYD: We do not say no, although we would say that to the extent that the Court would have regard to such things they are consistent with our construction. For example, if one has regard to what other international instruments say in relation to this kind of issue, both the Rome Statute dealing with the jurisdiction of the International Criminal Court and the ICCPR operate in the same way as we say this Treaty operates.

Now, I should say ‑ my friends say, but they use different language, they do not use the language you use, that shows that we have departed from what happens in other treaties because we use different language, but the outcome, the sort of underlying practices we say are the same; of course, we say on our construction we achieve the same result.

Obviously, each of those other treaties are dealing with different things. One is dealing with the jurisdiction of the court, our treaty is dealing with extradition but it raises the same issue about whether or not something was an offence at the time, whether the conduct constituted an offence at the time. So to the extent that it is appropriate to have regard to broader legal principles, we say that those broader principles are not inconsistent with our construction but quite the reverse.

CRENNAN J: Well, the point in the Rome Treaty about no crime without a law, one of the principles raised is that the definition of a crime needs to be strictly construed and if there is ambiguity the construction should favour the person being prosecuted or investigated. Does that have any resonance with the argument here in terms of what a reference to “offence” means?

MR LLOYD: Well, that is presumably - what happens in that instance is if somebody is being prosecuted in the International Criminal Court and they say “What happened was not a crime, what I did was not a crime at the time I did it? There was ambiguity about the law that applied at that time” the court would, no doubt, take that into account and ‑ ‑ ‑

CRENNAN J: I know it is a different point. I am just raising with you whether the whole contest here raises ambiguity, in terms of ordinary meaning?

MR LLOYD: We accept that Article 2(5)(a) has a measure of ambiguity to it. We say it should be construed to give effect to a number of things. One, the broad legal principles, which we say are consistent with what we advance. Secondly, the objects of the Treaty and I was about to take the Court to the decision of the House of Lords in In re Ismail [1999] 1 AC 320 which deals with construction of extradition treaties which are perhaps also relevant to your Honour the presiding judge’s question about how one interprets extradition treaties.

I note just in passing at page 324 at letter E the article of that Convention is Article 1. The obligation is broadly similar to Article 1 of the present Treaty, but the relevant discussion is at the bottom of page 326, the last two lines:

Next there is the reality that one is concerned with the contextual meaning of “accused” in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition –

Then there are two other cases cited there that support that proposition –

That approach has ‑ ‑ ‑

GUMMOW J: This is all happening within the European Union, is it not?

MR LLOYD: That is so, but ‑ ‑ ‑

CRENNAN J: The subject matter is the differences between the criminal procedures in the United Kingdom and in civil law jurisdictions.

MR LLOYD: Well, that is also so, but the principle that extradition treaties should be accorded a broad and generous construction was said, not only in this case, but also in the earlier decision in Postlethwaite.

GUMMOW J: It might have been an idea to look at Oates v Attorney‑General (Commonwealth) 214 CLR 496 at 512 to 513.

MR LLOYD: I am afraid, your Honour, I do not have a copy of that handy.

GUMMOW J: “[L]egislation is construed”, et cetera. The actual decision in that case is that there was “no ambiguity”, but the Court was not blessing the sort of generalised statements in some of these English cases and there was a citation of Riley as well, you will notice. We really do not expect the Commonwealth to come here referring, in the first instance, to what has been said in the United Kingdom these days.

MR LLOYD: Yes. Well, re Ismail was a decision with the House of Lords as is the decision in Postlethwaite, which at page 947 also deals with, we say, broader questions of the construction of extradition treaties:

the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would “hinder the working and narrow the operation of most salutary international agreements.” The second principle is that an extradition treaty is “a contract between two sovereign states and has to be construed as such a contract.

KIEFEL J: Where are you reading from, Mr Lloyd?

MR LLOYD: At letter B on page 947.

It would be a mistake to think that it had to be construed as though it were a domestic statute –

Then that idea is also repeated at letter D -

the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose.

GUMMOW J: Is there nothing in the Cabal litigation that touches on this?

MR LLOYD: I do not believe so, your Honour.

FRENCH CJ: I think at first instance on the review I looked at some of the authorities relevant to interpretation of treaties and their relevance to the interpretation of the Act and the regulations.

MR LLOYD: I think the Postlethwaite decision has been cited in the Federal Court on numerous occasions favourably. There is also a passage in Justice Deane’s judgment in Tasmanian Dams 158 CLR 1. The relevant passage is actually set out in our written submissions but it is on page 261, which again is expressed in general terms in relation to treaties. In the middle of that page:

International agreements are commonly “not expressed with the precision of formal domestic documents –

That was a point made by Justice North in dissent about there is two official languages to this treaty and so there is some ‑ ‑ ‑

FRENCH CJ: Well, the problem is, is it not, if you have a treaty which is not expressed with precision, as many treaties are not, and that treaty contains in one of its provisions a construction or choice between two constructions, one of which would result in somebody being arrested, locked up and then sent overseas to be tried, and another of which would not, is it enough simply to say that treaties are often expressed imprecisely and because the other country makes the request and we accede to it therefore we interpret the treaty on the basis that the request and the accession to the request are contextual supports for the construction? It says the person should be locked up and sent overseas.

MR LLOYD: We say that one should construe extradition treaties in the same way as other treaties to achieve the purpose and the purpose – it is innate in extradition treaties that you are going to lock people up and send them overseas. That is the purpose and to achieve the purpose, in this case, the preamble talks about the suppression of crime. The suppression of crime is achieved by having people face charges that countries want to charge them with. It is not achieved by ‑ ‑ ‑

FRENCH CJ: Maybe this is an area where precise language is really required – or more precise language than we are confronted with at the moment.

MR LLOYD: Well, in my submission, having regard to – well, I will take the Court very shortly to the Treaty itself.

FRENCH CJ: Yes.

MR LLOYD: But having regard to the agreement between the parties which shows the construction – that is it should be a very strong guide because Hungary is entitled to rely, as is Australia, on our joint expectations and understandings of that, that the purpose is the suppression of crime. It is not to avoid putting people in gaol and exposing them to extradition processes. We say that those objects are achieved by a construction that we proffer and it is also consistent with other international norms pertaining to the idea that somebody can be required to face charges – even retrospective charges – so long as the conduct was unlawful at the time it was done even if the charge has changed.

FRENCH CJ: But we are not talking about a cause. This is a request – an accession to a request feeding into the interpretation of a treaty which is given domestic statutory effect by section 11 of the regulation.

MR LLOYD: Well, that is so. It is given domestic, but it also has international effect. We still have obligations with Hungary ‑ ‑ ‑

FRENCH CJ: Yes.

MR LLOYD: The construction that this Court reaches on the Treaty, we say, should be done by reference to international law norms. Australia has to meet its international obligations. It would be of no assistance if the Court applied principles of statutory construction appropriate to Australian domestic legislation if Australia’s international obligation is to extradite then it places the Australian Government in an invidious position where it agrees with the Hungarian Government. If the approach of this Court is to apply norms different to what would be applied in the International Court of Justice, there is then a possibility of conflict.

KIEFEL J: But it is not correct simply to say that Australia’s obligation is to extradite. Under Article 1 it is to extradite in relation to an extraditable offence. Article 1 cannot be left out of this equation.

MR LLOYD: I accept that, your Honour. That is so. If the approach which the Australian and the Hungarian Governments both agree is the correct approach, and if that as a matter of international law is the correct approach, then Australia is under an obligation to extradite Mr Zentai.

KIEFEL J: But how does an agreement overcome the provisions – the objects of domestic legislation which under section 3(c) is:

to enable Australia to carry out its obligations under extradition treaties.

The obligations are set by the terms of the treaties as properly construed.

MR LLOYD: Well, I accept that entirely, and as properly construed ‑ ‑ ‑

KIEFEL J: I just do not see how an agreement of this nature can alter that.

MR LLOYD: We do not say it alters it at all. We say that the subsequent practice, or subsequent agreement, confirms the correct understanding as to what has always been the obligation in the Treaty and that is the obligation which, under the Extradition Act and under the Treaty, we are obliged to give effect to. We are not saying – it is not part of our case that we have changed the meaning.

KIEFEL J: I mean, that is a circular argument, is it not, because if the agreement is simply giving effect to what was obviously intended at the outset, that the obvious intention would appear from a proper construction of the Treaty, the agreement would be beside the point.

MR LLOYD: If that were so, Article 31(3) would be beside the point. I mean, obviously there is some possibility that a subsequent practice or subsequent agreement as to construction is not there to change. It is not an agreement which says delete this word and insert some other words. We do not say that would be picked up at all by Article 31(3), nor would we say ‑in relation to one of my friend’s arguments about the ambulatory nature ‑ we would not say it was picked up by the Extradition Act.

If there was an agreement which actually just changed the terms of the Treaty or something to that effect – if we say, here is evidence to show that both sides of this Treaty have at all times, so far as we can tell, wholly consistently approached the construction in a given way, it is a matter of weight. We accept that Article 31(3), as my friend says, goes to weight. He says it should not be given much weight. We say that the agreeable views of two States in relation to a treaty should be given a lot of weight.

FRENCH CJ: I mean, if there were a formal variation to the Treaty there would be an amendment to the regulation, I imagine.

MR LLOYD: They would only take effect once the regulation gave them effect.

FRENCH CJ: Yes.

CRENNAN J: May I just test what you are saying for a moment by reference to the decision of his Honour Justice Jessup in a passage to be found at page 561 of the appeal book? It is paragraph 153 of his Honour’s judgment. His Honour is talking about:

the necessary correspondence with the offence in the Requesting State by reference to which the obligation to surrender would arguably arise, namely, the offence for which the person is wanted for prosecution . . . That offence is a known, fixed, entity throughout the whole exercise –

because that is the offence stated on the international arrest warrant. I know you debate whether his Honour is right in that sentence but if you just bear with me for a moment. His Honour then gives an example, he says:

Suppose a person had been convicted in the Requesting State of offence A.

Now, applying that to the facts here that would be the war crime as provided for in the 1945 legislation –

The authorities of the Requested State would then consider whether that offence corresponds (within the meaning of Arts 2.1 and 2.2) with any one of their own offences I, II, III, etc. It would be quite outside their remit under the Treaty to consider whether their offence II –

murder, say, in this example –

corresponds with offence B –

murder –

in the Requesting State. Neither would it be within their remit to conjecture that offence A and offence B in the Requesting State would both be committed by engaging in the same conduct. The only question would be whether there was an offence in the Requested State that had the required degree of correspondence -

Now, are you saying that the subsequent agreement and the subsequent practice means that as a requested state on any occasion receiving a request from Hungary, Australia would be required to see whether there was an offence other than the one stated in the international arrest warrant which could be engaged in by committing the same acts?

MR LLOYD: I think the short answer is yes. The slightly longer answer is we do not say it is because of the state practice or the subsequent agreement, we say that is the proper construction of the Treaty. Even before this putative person was convicted that was also the position. It has been the position at all times that what we would do, we would not extradite the person even if the person had been convicted of the war crime unless they satisfied us that at the time the war crime was committed, assuming the war crime offence had not been enacted at that time, then what he was convicted of was an offence ‑ ‑ ‑

CRENNAN J: But you could even leave aside war crimes. You are saying that the proper construction of (a) is that on every occasion when Australia receives a request it would be obliged to inquire of Hungary whether there are other offences other than the ones stated in the international arrest warrant which the same acts could give rise to. Is that not right?

MR LLOYD: Well, not the plurality of what your Honour says. What is correct is what happened in this case, which is if somebody asks for extradition in respect of an offence which is retrospective in the sense that the conduct happened before the offence was enacted, then what we are required to do before we can extradite is be satisfied that at least at the time the conduct was committed there was an offence, and that is what we did. We wrote to them – well, we at least know they wrote back to us, which infers we asked them and they told us, “Yes, it was the offence of murder”. So that is exactly right. That is what we were required to.

CRENNAN J: That means one cannot rely on the offence as stated in the international arrest warrant.

MR LLOYD: Your Honour says “cannot rely upon it”. That is what he is to be prosecuted for and that is relevant for many purposes under the Act and under the Treaty, but in order to meet 2(5)(a), we say it is necessary to do this additional step only when the offence has that retrospective action.

CRENNAN J: Yes, I understand that is part of the argument.

MR LLOYD: Now, in probably 99 per cent of the cases, the offence, if not higher, the offence would have been enacted prior to the conduct and then ‑ ‑ ‑

CRENNAN J: You do not have that complication, yes.

MR LLOYD: ‑ ‑ ‑ it does not ever arise. But I do not want to suggest that it never arises. As shown in the facts of this case where Hungary has re‑enacted the earlier criminal law, I am instructed that that is not uncommon in civil law countries. So let us assume it was slightly different. It was not a war crimes offence, it was just, say, an offence of fraud in 1950. The offence is done in 1960. Then in 1990 they repeal the offence of fraud and they put in a new offence of deceit, obtaining moneys by deceit, which overlaps.

They have in their law, and I am instructed this is a common enough sort of example, something that says, “If the offence at the time was more beneficial, you can be prosecuted under that but otherwise, if the new offence is more beneficial to the accused, you get prosecuted under the new offence”.

Now, if you assume that sort of circumstance and assume that the new offence is more beneficial, the only offence that the person who committed fraud could be prosecuted with in the requesting state is the new offence of receiving money through deceit. They cannot be prosecuted for the other one because the other one is not more favourable.

Now, they come to Australia and they say “We want to extradite him for this new 1990 offence”, we say, “Well, hang on, that was not an offence at the time” and they say, “But we used to have fraud”. On their construction, that person goes scot‑free. What the extradition treaty does is allow everyone off in relation to a country that has this process of re‑enacting with, perhaps, changes, they go scot‑free.

On our construction, so long as it was an offence at the time the conduct was done, it is caught which, from the perspective of my client – not that it, perhaps, counts for anything – is perhaps a greater concern than the risk relating to there being a significant number of other Second World War war criminals, but it has a broader importance than just the obscure facts of this case.

BELL J: Is there any requirement that the offence be of comparable severity on this argument?

MR LLOYD: No. We do not have that aspect directly but it does come up in the convention in Article – I will take the Court to it when I get to the Convention which is very soon – Article 3(2)(f). The Attorney has a discretion not to extradite if the penalty would be unjust. If the subsequent offence manifestly – assume a country re‑enacts a criminal law and in re‑enacting it, makes the new law much more severe and does not have a provision in their law that says if it is more severe you can be prosecuted under the old law but you are just stuck under the more severe new law then we say the Attorney has the capacity to not extradite under Article 3(2)(f).

BELL J: Yes.

HEYDON J: This war crimes offence was punishable, at worst, by death. Correct?

MR LLOYD: At the time in – I think the other people accused were sentenced to death.

HEYDON J: What was the penalty for murder under the Hungarian Code?

MR LLOYD: I perhaps should say – I do not think there is any evidence before the Court, but my instructions are that it was at the time death, but, neither of them are death now. I think they are both imprisonment for life or, I think, the war crimes is strangely expressed as 10 to 15 years or life. I think I have probably said everything I want to say about construction of the Treaty and our agreement.

I should say some things, just to cover them off. The respondent takes issue with us relying upon the subsequent agreement – in part, because it is said that we were trying through executive action to change the content of domestic law. We say, on our construction, that is not what we are trying to do. We are trying to say what the Treaty always meant. That is how Article 31(3) is to be used. Agreements that just, actually, change the meaning are not engaged by 31(3) and are not picked up in that way.

KIEFEL J: I know that you have used the word “agreement” but it is probably more correct, is it not, in terms of the facts that you have taken us to, to call it a common view. There is not actually a meeting of minds about this.

MR LLOYD: Well, not in the sense that there is a formal document, which is one of my friend’s other complaints but ‑ ‑ ‑

KIEFEL J: But, it is a view of how the Treaty operates in the case of Australia before implementation – in the case of Hungary after this particular case arose as to how it might operate and that is it. It has neither been a matter where accord has been managed in terms of a discussion and agreement, nor has it been acted upon in the past.

MR LLOYD: I gave the Court earlier the reference to Ibrahim at paragraph 140 where it was said to be a State practice revealing “tacit or implicit agreement” and we say that that ‑ ‑ ‑

KIEFEL J: That would usually be by conduct.

MR LLOYD: We say there was conduct. They made the request. By making a request in these circumstances that can only be consistent with our construction so that they know that they will then be faced with the same obligations if Australia made a request under the Treaty. That shows their conduct, and our accession and our section 16 notices is our conduct.

KIEFEL J: Yes, I see what you mean.

HEYDON J: In Australian law you do not need accord to make a valid contract. What is the position in relation to international treaties?

MR LLOYD: I am sorry, your Honour?

HEYDON J: In Australian law it is not necessary that there be a meeting of the minds and Mr Justice Holmes had a similar view, for example. What is the position with international treaties?

MR LLOYD: I might seek some instructions on that. My junior is very knowledgeable in these matters, as is my client, perhaps they will – I do not want to say something for which I will be taken to. Just before leaving the question of the State practice or agreement, my friend says in his submissions at 33 that not much weight should be given to it because the Treaty has been made part of domestic law. We say that that is incorrect, that what has been made part of domestic law is the Treaty. So if on its proper construction, under and including the Vienna Convention, Australia is obliged to extradite, because on its proper construction these are extraditable offences to which no exception applies. Under international law then the Act is made subject to that obligation and so to that extent we take issue with my friend’s submissions in that regard.

It is also said, I think, that the agreement has not been reflected in either a considered statement or a considered or public statement. As to whether or not it was considered, we say there is no evidence, but in any event we say that there is nothing in Article 31(3) that says it has to be public. If it was unambiguously clear, but a private agreement between States, it would be equally applicable. One would expect that if there was to test that an absolutely clear‑cut agreement as to what was intended between Australia and Hungary, they would be entitled to rely upon that agreement in any international dispute with Australia, and so there is, we say, no basis for that. I go now to the Convention, which is to be found in the regulations, the Extradition (Republic of Hungary) Regulations.

GUMMOW J: What is the source of the regulation making power again?

MR LLOYD: Section 11(1)(a). Then starting with the Treaty which is the schedule to the regulation, we say the objective is stated in the preamble, being:

DESIRING to make more effective the co‑operation of the two countries in the suppression of crime by concluding a treaty on extradition –

There is then Article 1. I am not saying it is irrelevant to the purpose or object, but we do not say that it is the principal place where one finds it in the sense that it is the principal operative provision, it is the obligation to extradite. It is subject, we accept, to two issues. One is that it is subject to the provisions of the Treaty and the other is that it applies only in relation to extraditable offences. So, for our view, Article 1 does not really inform much what is an extraditable offence or what is the ambit of the provisions to which the Treaty or the obligation is subject; that is to be found elsewhere, but we say the object is principally to be found in the preamble. Going then to Article 2 ‑ ‑ ‑

GUMMOW J: Just before you leave that, regulation 4 of these regulations, does that really reflect 11(1)(a)?

MR LLOYD: It reflects 11(1C). So, 11(1C) says that if it is done in a particular form then it is taken to come within 11(1)(a).

GUMMOW J: So that leaves it for the reader to fossick around and work these things out? That is part of our problem that brings us here today actually.

MR LLOYD: To work things out in terms of ‑ ‑ ‑

GUMMOW J: This paragraph (1C), yes.

MR LLOYD: Yes, I mean, it seems that (1C) was just put in for ease of drafting of the regulation.

GUMMOW J: Or lazy drafting.

MR LLOYD: I will not comment on that. Article 2 is headed:

EXTRADITABLE OFFENCES

GUMMOW J: What are the limitations and qualifications to the Extradition Act, if any, to be found in the Treaty?

MR LLOYD: Well, we accept that, at least for the purposes of section 22(3)(e) of the Act, that the constraints on extradition and the discretionary powers to refuse extradition are picked up and they are matters about which the Attorney‑General should reach a state of satisfaction, and so relevantly, Article 3.1 says:

Extradition shall not be granted in any of the following circumstances –

If any of (a) to (f) were applicable that would engage section 22(3)(e)(i). (ii) deals with discretionary capacities to refuse relief; that is 22(3)(e)(ii). Article 3(2) contains a number of discretionary matters, and I noted before in answering a question of your Honour Justice Bell, Article 3(2)(f) allows the Attorney to refuse extradition if relevantly:

the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.

FRENCH CJ: Given that Article 2(5) imposes necessary conditions on the obligation to extradite, those necessary conditions are picked up in 22(3)(e), is that right, and then plug into the decision‑making process under 22?

MR LLOYD: Yes, that is common ground. I will come to (5) in a second, but we accept that the constraints in (a) and (b) of 2(5) are constraints on extradition.

FRENCH CJ: Yes, but that is how they work, through (e).

MR LLOYD: That is so. If I go back to Article 2.1, it talks about:

extraditable offences are offences however described –

So that is the first indication that the Treaty is not interested in any corresponding nomenclature in matters of that kind –

which are punishable under the laws of both Contracting States by imprisonment for –

specified periods. So what it is looking at is offences that meet a standard of criminality as indicated by severity of punishment. We say that this Treaty is an example of what is sometimes called in the international law literature an eliminative method and it is to be contrasted with the enumerative method. The enumerative method is one that I recall was in Oates; that was that the Polish Treaty had a list of offences in a murder, fraud, whatever. This one does not look at that. It just looks at is it serious enough, is it imprisonment for one year or more, so it is quite a different approach. Then that is reinforced in Article 2.2 which talks about:

For the purposes of this Article –

I note it does not say for the purposes of Article 2.1, or it does not say for the purposes of Article 2.5(b) – for the purposes of this article –

in determining whether an offence is an offence against the law of both Contracting States –

It does not say, as would be consistent with Justice Jessup’s construction, in determining whether an offence is an offence against the law of the requested state. That is how his Honour Justice Jessup read it. Then (a) in effect makes irrelevant the nomenclature or categories of offences or things of that kind. Paragraph (b) gives emphasis to and requires to be taken into account “the totality of the acts or omissions alleged”, and then to not be taken into account “the constituent elements of the offence”. So we say that this applies throughout the article.

FRENCH CJ: The words in “determining whether an offence is an offence against the law of both Contracting States” does that apply to a consideration of whether the necessary conditions in (5)(a) and (b) are met? Is that a different exercise?

MR LLOYD: We say it does apply to both (a) and (b) and that gives some significant ‑ ‑ ‑

FRENCH CJ: In other words, in thinking about whether you have satisfied the necessary conditions under (5), are you determining whether the offence is an offence against the law of both contracting states or are you asking a different question?

MR LLOYD: Well, the difficulty is that strictly speaking there is nothing in the Treaty that requires you to determine whether an offence is an offence against the law of both contracting states. Under Article 2.1, it requires a close question which is whether or not an offence is punishable in both contracting states. Under Article 2(5)(a), it looks at an offence of the requesting state and under Article 2(5)(b), it looks at the offence in the requested state.

We say, and this is a matter of issue between us, that when at 2, the chapeau to 2 talks about the law of both contracting states, both should be understood in the sense of both individually and together. So, if for the purposes of this article you need to look at what is an offence or whether something is an offence – then in both, in the sense of either – either and both - then (a) and (b) apply as opposed to the notion that it only applies where you are looking at both. The difficulty is ‑ ‑ ‑

CRENNAN J: I think, though, that the Chief Justice’s question to you has raised an issue about the differences between 2 which is dealing with dual criminality and 5 which is dealing with limits on retrospectivity. The question is why would one somehow be applied to the other when the subject matter is rather distinct?

MR LLOYD: Well, 2(5)(b) is dual criminality. It is not just limits on retrospectivity. If anything, it is the reverse. It requires that something be an offence ‑ ‑ ‑

CRENNAN J: But (a) and (b) are both part of a proviso in relation to retrospectivity.

MR LLOYD: That is so, and the proviso in (b) requires one to undertake the usual test of assuming that the acts or omissions were done in Australia, relevantly, or the relevant State of Australia, whether or not those acts constituted an offence. We say that 2.2 informs the approach of the whole article. That is what it says it does for the purposes of this article. It does not say it is doing ‑ ‑ ‑

CRENNAN J: Well, what is the “it” in (a)? Is the “it” in (a) a reference back to the offence in relation to which extradition is sought?

MR LLOYD: Are you talking in 5(a)?

CRENNAN J: Yes, 5(a). I am talking about what does “it” refer to?

MR LLOYD: It is a reference back to the offence in relation to which extradition is sought, but, on our view, the expression “the offence in relation to which extradition is sought” embraces and includes the totality of the acts or omissions constituting that offence and that is shown by a number of things. One is that it is talking about when the offence was committed. That is when those acts or omissions or done.

FRENCH CJ: The “it” must be the circumstance, must it not? That the laws of the contracting states place the acts or omissions constituting the offence or that they do not. In other words, those two sets of alternative circumstances shall not matter – shall not matter whether one is in place or the other.

MR LLOYD: Your Honour is asking me about 2(a)?

FRENCH CJ: Yes, yes. I am sorry have I ‑ ‑ ‑

MR LLOYD: I think Justice Crennan was asking me about 5(a). That is what I apprehended your Honour was asking me about, the “it” in 5(a), as opposed to the “it” in 2(a). I agree that the “it” in 2(a) is just as a word the circumstance. The “it” in 5(a) links to the word or the expression:

the offence in relation to which extradition is sought –

Our point is that that expression is not talking, as my friends have it, solely about the offence as enacted, not apropos of any conduct. But we say it is referring to the offence constituted by the totality of the actual omissions referred to in 2(b). So read in that way the question was whether it was an offence at the time that those acts constituting the offence happened, the question is one as to whether or not, we say, that conduct constituted an offence at that time. So that is why we say that it is construed properly, including by reference to the terms, by reference to the acts or omissions.

Now, I will address a number of other matters, but if I can just say we get that in part from 2(b) which we say applies to the whole of the Treaty and efforts to determine whether an offence is an offence which is against the law of both contracting states. I accept that we read that as either or both contracting states, but I note that Justice Jessup reads it as the requested state, which we think does more violence to the construction than our approach. One gets assistance from reading both in that way when one looks at 2.1. It says:

extraditable offences are offences however described which are punishable under the laws of both Contracting States –

Now, we say that has to be looked at practically. It is not talking about an offence, which when conduct happens is actually a law against the law, that conduct is, at that time, against the law of both Hungary and Australia. It is talking about the acts or omissions constituting the conduct. So when one is looking at the laws of the two contracting states to see if it is punishable, one is not limiting the whole Extradition Treaty to only acts or omissions that constitute offences in both contracting states, but really it has to be looked at as meaning either or both.

In that way 2.2 has the same kind of meaning which allows it to have an application to 2.5. Not much is obtained from 2.3 and 2.4, save in the mention that where the Treaty refers to “Requested State” and “Requesting State” it does so clearly. So that if Article 2.2 was really only about the law of the requested state, one might have thought that that is the language that would have been used there.

Then going to Article 2.5 we say we get support from the notion that it is not just the offence as enacted, but the offence as constituted by the acts and conduct from the notion that it is part of a longer phrase which talks about identifying a time when the offence was committed, which refers one immediately to the acts or omissions and we say that when the chapeau is understood in that way, the ‘it’ which refers to the offence, is also to be understood as referring to the acts or omissions, so it is asking whether those acts or omissions constituted an offence.

Then it is said against me and I think Justice Besanko gives significance to the fact that the opening words of (b) talk about “the acts or omissions alleged” and those words are not in (a), and that is relied upon. But we say that first of all the reference to “acts or omissions” is in the latter part of (a) in any event, but the main point we make is that in relation to (b), it is dealing with putative acts or omissions that are assumed to take place in Australia as opposed to the actual acts or omissions alleged that are embraced in the chapeau, which could just as easily explain the difference in language.

Now, in terms of the notion that the expression “the offence in relation to which extradition is sought” can be understood more broadly than, as the respondent would have it, being just the legal enactment, I draw the Court’s attention to a number of other uses in the Treaty where similar expressions are used. The first one is in Article 3.1, which deals with another instance where:

Extradition shall not be granted in any of the following circumstances . . .
(d)if final judgment has been passed in the Requested State or in a third state in respect of the offence for which the person’s extradition is sought –

Now, if a person is extradited for fraud in Germany or in Hungary, and that person has been convicted of an offence under Australian law that is not the same offence as the fraud in Hungary. It arises on the same facts and omissions perhaps, and for the double jeopardy safety to work properly the expression “the offence for which the person’s extradition is sought” we say needs to embrace the notion of the totality of the acts or omissions constituting that offence. In that way the protection against double jeopardy works properly so that if you have been convicted, or acquitted for that matter, of an offence on materially the same facts one gets the protection. If that expression is construed narrowly then it does not work in that way.

CRENNAN J: So you would say take murder, for example, of conviction or acquittal in Western Australia based on the same acts and conduct would be covered by (d)?

MR LLOYD: We say it would.

CRENNAN J: Yes.

MR LLOYD: If this expression in this ‑ ‑ ‑

CRENNAN J: In other words, there is the protection for the person whose extradition is sought. That is what this is about.

MR LLOYD: Indeed. If Mr Zentai was convicted of murder in Australia out of the same events then we say this would be a good defence for him. Now, I think my friend says well, the expression “the offence for which a person’s extradition is sought” means something different in 3.1(d) to what it means in 2.5 and ‑ ‑ ‑

CRENNAN J: But you say it would translate into an extradition objection, as distinct from the defence, yes.

MR LLOYD: Yes. I do accept that there are some expressions in the Treaty where some expressions similar to this probably are referring only to the offence, but there are plenty where that is not so and another one is in 2(b) where extradition may be refused:

if the competent authorities of the Requested State have decided to refrain from prosecuting the person for the offence in respect of which extradition is sought -

That expression “the offence in respect of which extradition is sought”. Again, if a prosecuting authority has said we have decided not to prosecute him for an offence arising out of the same facts, albeit that it is a different offence, it is an offence under Australian law and maybe has some materially different elements, that is something which we say would be engaged but only if the notion of the offence is not limited to the legal construct but to the acts and omissions.

The same point – I will not labour it but I just draw the Court’s attention to 3.2(d) and (e) where again we say similar expressions are used and they can be, we say, construed as we have. We say the Minister did not err in approaching Article 2(5)(a) on the basis that what it requires on its proper construction is that the offence, in the sense of the totality of the acts or omissions alleged, was an offence in the sense of was constituted criminal conduct in Hungary at the time that that conduct was undertaken or engaged in. Now, on that view, the approach of the majority in the court below was wrong. I might just take the Court briefly to where we say the errors are.

GUMMOW J: Just before you do that, just assume that what had happened was that there was no treaty but that there had been a declaration that Hungary was an extradition country, which is one way these things can be done, is it not?

MR LLOYD: That is so.

GUMMOW J: So the Act applied without this regulation structure. Would there then have been any equivalent provision to 2(5)?

MR LLOYD: There would not have been a constraint at all under the Act. As long as the matter fell within the definition of “extradition offence” under the Act, or “extraditable offence”, extradition offence ‑ ‑ ‑

GUMMOW J: There is reference in the Act to timing, is there not, looking at 10.3, I think, but it is in the double criminality idea, is it not?

MR LLOYD: That is so. There is no equivalent of 2(5)(a), so that would not be a constraint on extradition, but there is an equivalent to 2(5)(b).

GUMMOW J: So, for example, when you go to 16(2)(a)(ii), you ask if the conduct for which surrender is sought had taken place in Australia at the time at which the extradition request is received, that seems to be the temporal hinge there.

MR LLOYD: That is so. It is the same as Article 2(5)(b).

GUMMOW J: That is different from 2(5). Is it?

MR LLOYD: The proviso of 2(5)(b) requires that the conduct, whenever it happened, would have constituted an offence in the State of Australia on the date that the extradition request was received.

GUMMOW J: But there is no equivalent 2(5)(a)?

CRENNAN J: In the Act.

MR LLOYD: No, we say, there is no equivalent in the Act of 2(5)(a). That would not be a constraint on extradition under the Act alone.

GUMMOW J: So that is a qualification within the meaning of 11(1)(a) by these regulations of what otherwise would be the operation of the Act. I am just trying to locate the structure of all of this.

MR LLOYD: I think that is right, your Honour. It is a constraint. We would otherwise have been able to do it, but the constraint is not as broad as the respondent contends, we say. I should have said one further thing before leaving the Treaty, and that is Article 12 which is the rule of speciality. It is a rule, as your Honours would know, which limits the ability of the requesting state to prosecute the extradited person, save for certain offences – normally, the extradition offence. But I note that under Article 12.1(a):

an offence for which extradition was granted or any other extraditable offence of which the person could be convicted upon proof of the facts upon which the request for extradition was based –

So if, in a given case, a person was extradited for murder but was also capable of being prosecuted for a war crime on the same facts then, so long as the war crime did not have a higher penalty, they could be extradited – sorry, they could be prosecuted – even without it having been in the extradition request. Ultimately, what we get from this is just to show that the whole tenor of the Treaty is one directed to the underlying facts for the offence and not just on legal constructs or names or elements of offences.

GUMMOW J: Well, 7(d) bears upon this to some degree. There would be an extradition objection if assuming, as stated there, it would have constituted a military but not an ordinary criminal law offence in Australia.

MR LLOYD: That is so, but that has its own limitations. That was addressed in this case and there is no issue pending in relation to the military aspect of it. In the decision of the court below – I will take the Court first to the reasoning of Justice Besanko on ground 4 which commences on page 507 in volume 2 and the relevant paragraphs are in paragraph 62 and following. In relation to 62, his Honour notes that there is a link between the pronoun “it” and:

the expression “the offence in relation to which extradition is sought”.

We do not take exception with that, but where we say his Honour erred was in failing to appreciate that that expression is more than, as my friends would have it, the legal construct, but it also includes the underlying acts or omissions. In the second part of 62, his Honour seeks – I think his Honour puts it as limited support for the respondent’s construction from the fact that 2(5)(a) and (b) starts with different languages. I have already put our explanation for that. In paragraph 63 at about line 30 his Honour says:

Article 2(2), (3) and (4) relate to the double criminality requirement which finds expression in Art 2(5)(b).

We say it is not so limited. We do not deny that it has some function to play in relation to 2(5)(b), but bearing in mind what Article 2(2) does, in a sense, it does not have the hugest role to play because Article 2(2) says one does not look at the categories or offences, the category of which the offence is in, one does not look at the elements of the offence, one does look at the totality of the acts or omissions.

Now, when one look at 2(5)(b) it already says you have to look at the acts or omissions and at no point does it even ask you to look at the categories or elements of the offence. So to that extent it does not have the most significant role and so we say it has a broader role to play including in 2(5)(a) and the chapeau of 2(5) and so we say his Honour erred in that regard. Then in the last sentence of paragraph 63 his Honour says:

The double criminality requirement requires a comparison between the offence in the Requesting State which is the subject of the warrant for arrest and an offence against the laws of the Requested State.

Well, strictly speaking, 2(5)(b) requires one to look at not the offence in the requesting state, unless the offence in the requesting state means the conduct. That is what it says. So, somewhat ironically his Honour uses “offence in the requesting State” much as we would use it to refer to the conduct, and so that is an example of it having the natural meaning that we say is attributed to it. It is not an exaggerated or ridiculous meaning. His Honour Justice Besanko even uses it in the same fashion.

We respectfully accept what his Honour says in paragraph 66, the second paragraph of paragraph 66 in which his Honour adopts what Lord Steyn says as being the same approach as Articles 31 and 33 of the Convention. At the bottom in paragraph 67 his Honour is discussing the objects of the Act and then goes on to look at the obligation in the Treaty. What we his Honour does not do is talk about the object in the preamble to the Treaty in construing it. So that is one aspect of Article 31 that his Honour does not give weight to.

His Honour also does not refer to or give weight to what we say is the state practice – subsequent practice or subsequent agreement in Article 31(3), that they are omissions of significance. In paragraph 69 in the second half of that his Honour acknowledges that there might need to be some fudging if the requesting state has changed the law a little bit. If it was a little change then it is okay. We say that there is nothing really in the Treaty to support the little change hypothesis, but really our construction deals with both smaller and large changes and we say his Honour is incorrect in that respect.

If I turn to Justice Jessup’s reasons which begin, in respect of ground 4, on page 557. At paragraph 149 his Honour does there refer to the preamble in relation to the objects, but then his Honour says:

But the court is not at liberty simply to take whatever steps appear to be appropriate to give effect to that object –

We do not say that a court is at liberty to do that but we say a court should, when faced with ambiguity, choose the one which gives greater effect to the objects. At paragraphs 150 and 151, his Honour addresses Article 1. I have already said that it does not really cast much light on it because the words of it have these exceptions, either subject to the provisions of the Treaty or inbuilt into the expression “extraditable offence”. So it really does not cast light on the ambit of the exceptions or of the meaning of “extraditable offence”. In paragraph 152 there is a sentence at about line 10 where his Honour says:

Plainly, the person concerned is not wanted for prosecution in the Requested State and has not been convicted there.

His Honour is talking about Article 2.1. It is not clear how important this part of his Honour’s analysis is but, of course, the Treaty does deal with situations where there is an offence which is literally an offence in both Hungary and Australia and the person might have been prosecuted in Australia for the offence. As I have indicated under Articles 3.1(d), 3.2(b) and 3.2(e), there can be instances so to the extent that his Honour says plainly that is the position, that is not always the position, even if it is true in this case.

We have taken issue with his Honour’s analysis which also is premised upon the idea that there is this one known fixed entity, that the offence is “a known, fixed, entity” in paragraph 153. We say that is not part of what the Treaty says. It does not talk in that way. There is obviously an offence for which extradition is sought. In that sense, it is known, but there is nothing in the Treaty which says “and no other offence in that country is or could possibly be relevant”.

On our construction it is appropriate in the limited circumstances of Article 2(5)(a) to look to see whether or not the conduct was an offence under another offence. It is simply to remove that as a hurdle to extradition and that, in a sense, we say Article 153 assumes that there is only one question, as his Honour put it. We say if you take our construction that is not correct, but nothing otherwise flows from his Honour’s construction which compels his Honour’s conclusion.

In paragraph 154 that is where his Honour sort of reads down Article 2.2 as if it was only about the laws of the requested state, even though the chapeau refers to the laws of both contracting states. In paragraphs 155 and 156 his Honour derives the notion that Article 2.2 does not require one to look at offences different from the one subject to the request and 156 talks about no need to search the statute books of the requesting state.

But again, all of this, we say, assumes the correctness of his Honour’s analysis. It flows from his Honour’s construction, but it does not support it, we say. Similarly, in 157 at about line 30, well the first part of 157 his Honour makes the observation that “If, what I have contended to the court was the correct construction we might have done so in better terms.”

That can often be said of many different instruments, but we say is not a consideration that carries a great deal of weight for Article 2.2 and, as I have indicated, the tenor of the Treaty is to focus upon conduct and not formal things like names or categories or constituent elements of the legal construct. Then in the second half of 157 his Honour says:

The terms they did use reveal, in my opinion, a preoccupation not just with the criminality of the relevant acts or omissions, but with the actual offence in respect of which the person is wanted for prosecution.

GUMMOW J: I think we can all read, Mr Lloyd.

MR LLOYD: Sorry, your Honour. We say that, as I have indicated, there are a number of provisions of the Treaty which indicate that that expression or references to “the offence for which someone is sought” goes beyond the so‑called actual offence. Also, in 157 his Honour says he has reached this view:

in the context of the article as a whole –

but not, we say wrongly, in the context of the Treaty as a whole, having regard to the broader provisions I have taken the Court to. His Honour has a similar point at 159 about minor variations being able to be addressed within the scope of his Honour’s construction, but even that seems inconsistent with his Honour’s construction that the matter is one fixed known entity.

Also his Honour, like Justice Besanko, gives no weight or significance to the tacit or implicit agreement between the parties as to the construction. At the end of 158 he talks about the views of the contracting states but does not refer to a matter which we say his Honour should have had regard to. That is all I seek to say in relation to the appeal.

GUMMOW J: Now, these regulations were made in 1997, I see. The date of the Treaty itself is 1995. I suspect Australia now has, and this is one of them, extradition treaties with a number of former totalitarian countries in Europe in, of which Hungary would be one, made after the collapse of Communism. Is there any evident practice of inserting in those extradition treaties with countries which, under their totalitarian systems, might be expected to have had retrospective criminality, something like 5(a)?

MR LLOYD: My instructions are, and I believe the Court would have, I think, an affidavit in the special leave application in which somebody gave evidence about the number of treaties which were in the same or similar terms. So part of the justification for the matter being a matter of general importance was that it is used.

GUMMOW J: Well, perhaps you might let us have a note about that.

MR LLOYD: Certainly.

FRENCH CJ: If you were unsuccessful on the constructional point, if the constructional position for which the respondents contend is maintained, does the Minister have anywhere to go under section 22 other than to decline surrender?

MR LLOYD: Well, I think the approach of the majority was that it would be remitted to the Minister to make a decision but on the view that it is a construction of the Treaty as declared by the Court. That would then require us to go back to Hungary and see if they are able to establish, which we do not apprehend is possible, that somehow that the war crime for which he has been charged was the law or something that was only a minor variation as Justice Besanko and ‑ ‑ ‑

FRENCH CJ: So, you say this is not a case for prohibition; there is still some sort of ‑ ‑ ‑

MR LLOYD: There is a theoretical possibility, yes, your Honour. I proposed to address the notice of contention in reply principally, but because the notice of contention arose after we did our submissions‑in‑chief, it is only addressed very briefly in our submissions in reply. If I just say five matters about it. The first is that insofar as the argument proceeds by way of an analogy with the so‑called incontestable tax cases, which are referred to in paragraph 40 of my friend’s submissions, we say that there is no analogy here. Those cases are about characterising something as being a tax or not a tax. The Extradition Act is a law with respect to external affairs. I do not think there is any dispute or issue about that.

In relation to the cases referred to in my friend’s submissions at 39 and 41 which seek to draw an analogy between the conferral of broad discretionary powers that could be used to contravene a constitutional guarantee, such as could be used to in a way to effect protection under section 92 so as to require that there be processes that make the provision or

the decisions appropriately transparent, we say that there is no constitutional guarantee at stake under section 22. Certainly none have been asserted, so we say there is no relevant analogy.

Insofar as the argument is put in paragraph 39 that legislation may not confer unexaminable power, we say, section 22 is not unexaminable and the mere fact that I am the appellant – or on the side of the appellant – is indication of the fact that the decision was really quite examinable. If my client is successful on the appeal, it is not because the decision was unexaminable, just that the construction apparently adopted by the Minister was not incorrect. We also say, in any event, that the Court, this Court and other courts exercising jurisdiction akin to 75(v), have ample capacity to ensure that things are examinable by subpoenas and notices to produce and interrogatories and the like.

The fourth observation is that, insofar as my friend seeks to draw an implication from section 75(v) of the Constitution, that requires reasons to be given in relation, it seems, to the exercise of decision‑making power to which section 75(v) applies - that is in paragraphs 42 and 43 of his submissions - we say that there is no support for such a proposition in the authorities. We respectfully adopt the written submissions of the Attorney‑General of South Australia in that respect. We say that there is no need for such an implication to be drawn.

Then, finally, even if, as my friend contends, section 22 of the Extradition Act should be read as carrying with it a statutory obligation by implication to give reasons, then the only relief that this Court, or any court, would be able to give is to order the giving of reasons as indicated by this Court in Palme. Mr Zentai is not after reasons. He wants to say that the decision is invalid because ex post facto reasons were not given, so, ultimately, at some point became invalid. We say, even if there was an implied obligation, it would only sound in a duty to give reasons. It would not sound in the invalidity of the decision to surrender. May it please the Court, they are my submissions.

FRENCH CJ: Thank you, Mr Lloyd. Mr Kennett.

MR KENNETT: Your Honours, it is not in dispute, at least now, that if it be right, as the Full Court held, that the Minister proceeded on a wrong construction of Article 2.5(a) of the Treaty, then it follows that the Minister did not have the state of satisfaction required by section 22(3)(e) of the Act and, therefore, that his decision to order the surrender of my client to Hungary was beyond power.

It is also not in dispute – at least at a very general level – that the exercise of statutory construction, or the exercise of treaty construction, I should say, is one that is governed principally by Article 31 of the Vienna Convention as discussed by this Court in Applicant A. The judgments in Applicant A seek to emphasise, as my friend has emphasised, that the required analysis is a holistic one and not a hierarchical one. The judgments also emphasise, we would say, that the text has a degree of primacy and that what one is doing at the end of the day is construing a text.

Could I just mention a couple of passages in the judgments in Applicant A which we rely on in that regard? Firstly, if your Honours have that case, at page 240 of the report, the judgment of Justice Dawson, his Honour refers, towards the top of the page, to Article 31 of the Vienna Convention and then says that:

Under that rule, the starting point must be the text of the treaty -

and then refers to the text often being couched in general terms and for that reason:

technical principles of common law construction are to be disregarded –

But, nevertheless the starting point, as his Honour says, is the text.

FRENCH CJ: What is a technical principle, as distinct from another kind of principle?

MR KENNETT: Yes, your Honour, I think what is meant by that is that one would not pull down ones copy of Pearce and Geddes and go through the presumptions of statutory construction that are listed in that book. One would not use a common law text like that as the starting point. I take it that that at least mainly what is meant by eschewing technical principles of construction. At page 255 of the report beginning at about point 3, the paragraph that begins with word “Second”, Justice McHugh refers to:

taking the text as the starting point is consistent with the basic principle of interpretation that courts should focus their attention on the “four corners of the actual text” . . . The text of the treaty, being the starting point . . . necessarily has primary in the interpretation process.

Then again, further down that page at about point 7 his Honour refers again to:

The need to give the text primacy –

The last passage in Applicant A that I wanted to refer your Honours to is on page 277 in the judgment of your Honour Justice Gummow, the paragraph that begins “It is necessary” where your Honour says that:

Regard primarily is to be had to the ordinary meaning of the terms used therein, albeit in their context and in the light of the object and purpose of the Convention.

Your Honour refers to the capacity to have recourse also to the travaux.

GUMMOW J: Is there any distinction between bilateral and multipartite treaties?

MR KENNETT: Not in terms of principle, we would say, although there may be – different considerations may have greater or lesser weight in those two situations. So, for example, the text of a multilateral treaty is more likely to be seen to represent a compromise between multiple parties. It might have to be read in that light and the travaux, in terms of debates of an international convention, or something of that kind, may take on more importance in that light. But the essential principle, at least as couched in Article 31, is one that is framed so as to relate to treaties of both kinds.

GUMMOW J: It seems to me that a bilateral tax treaty might be one thing, but the Refugees Convention might be another?

MR KENNETT: That is certainly obviously true, your Honour, at least at one level. In a bilateral tax treaty one would at least assume that there are two parties, they have sat down together over a long period and they are talking substantially the same language, achieved a deep insight into each other’s systems of law, and one might expect therefore ‑ ‑ ‑

GUMMOW J: If they are talking about money they are likely to be specific.

MR KENNETT: Yes, and one is talking about money and possibly large sums thereof, and so one I suppose expects in those cases that there will be a degree of precision which one perhaps does not expect to see in a multilateral treaty like the Refugees Convention. As to the holistic or hierarchical approach to treaty construction, my friend I think summed it up by saying that all of the considerations in Article 31, they all go into the pot, which is an acceptable description as far as it goes, but we would say that it is difficult intellectually to apply all of those considerations at the same time.

Some kind of sequence in their application is unavoidable, we would say, and the proper sequence is the one advocated by Justice Finkelstein in the case which we quoted in our written submissions which is that one starts with the text. The exercise is holistic in the sense that one would not leave the issue without having at least asked the question, for example, whether paragraph (3) of Article 31 has something to say, so one would not say the text is clear, therefore end of story.

FRENCH CJ: Well, that is just another word for having regard to context, is it?

MR KENNETT: That might be a way of putting it, your Honour, yes, and it has some similarity with the modern approach that this Court takes to statutory construction. One does not simply begin and end with the text; one starts with the text and one does not leave the question without considering whether the context something to say, whether the object has something to say, whether subsequent agreements have something to say. But, unless one has some kind of sequence of questions of that sort then one does throw everything into the pot at the same time and have a completely impressionistic exercise which we say is not what is intended. Hence, we say the text is the starting point and the capacity of other considerations to influence the meaning of the text in its context is limited to what can be done without doing violence to the text.

FRENCH CJ: Well, the common ground with statutory interpretation is text, context and purpose. Then there is the general proposition that terms in an international treaty or convention should be interpreted broadly, but that would be subject to the particular subject matter, for example, a tax treaty of the kind that – or perhaps something to do with the definition of crimes or liberty.

MR KENNETT: Yes, that would be right. The main difference between the statutory construction exercise and the treaty construction exercise is – perhaps, two main differences. One is the recognition that some treaties are drafted in very different circumstances and may represent compromises, may include diffuse language in order to achieve compromise. One has to recognise that. One also has to recognise that the people who are negotiating the treaty and drafting it may not have a copy of Pearce and Geddes at their elbow and cannot be taken to have been proceeding according to the common law on presumptions of construction.

GUMMOW J: What we are construing is a legislative instrument, is it not? It is the regulations.

MR KENNETT: Yes. What we are construing, ultimately, is a legislative instrument.

GUMMOW J: No, initially. We are construing the regulations which is a legislative instrument perceived to be an assumption that because the legislative instrument schedules its treaty, that insofar as there is any conflict between the Vienna Convention, the ordinary rules of interpretation of legislative instruments manifested in the Interpretation Act, and so on, insofar as there is any disconformity, the Vienna Convention somehow applies. I do not understand it.

MR KENNETT: The legislative instrument ‑ ‑ ‑

GUMMOW J: We are not sitting in an international court construing some treaty. We are construing some municipal legislation.

MR KENNETT: I certainly accept that.

GUMMOW J: Being a legislative instrument.

MR KENNETT: Your Honour, and the legislative instrument, regulation 4, provides that the Act applies subject to the Treaty ‑ ‑ ‑

GUMMOW J: Yes.

MR KENNETT: That is, invoking the facility provided by section 11(1C) of the Act which my friend referred to. What that tells us is that the regulations are to be taken to be doing that which is provided for by 11(1)(a) ‑ ‑ ‑

GUMMOW J: Yes.

MR KENNETT: ‑ ‑ ‑ stating that the Act applies in relation to a specified country subject to limitations, conditions and so forth necessary to give effect to the Treaty.

GUMMOW J: All I am asking you is how does Article 31 of the Vienna Treaty intrude into this?

MR KENNETT: Because one has to ask, in that construction exercise, what are the limitations, qualifications, et cetera, necessary to give effect to the Treaty? When one comes more particularly to section 22, the power which the Minister was purporting to exercise, the Minister had to be satisfied under paragraph 3(e) that situations in which the surrender was required to be refused by reason of section 11 did not arise.

GUMMOW J: But 11(1)(a) is talking about limitations, et cetera, upon what would otherwise be the operation of the Act, is it not?

MR KENNETT: Yes.

CRENNAN J: For example, Article 31 of the Vienna Treaty could have been made part of the relevant regulation, but was not.

MR KENNETT: It certainly could have. The way in which the Vienna Convention comes in, and I do not think there is any dispute between my friend and me about this, is that ‑ ‑ ‑

GUMMOW J: There might not be any dispute between you, but I for one have to write a judgment.

MR KENNETT: Of course, your Honour. I am not suggesting our agreement binds you, but I am just noting that you might not hear a different story about this from Mr Lloyd.

GUMMOW J: But I am afraid reason is not stilled by some agreement down at the Bar table.

MR KENNETT: No. Section 22(3)(e) requires the Minister to ask himself whether there are any circumstances that require surrender to be refused because of section 11. Section 11 draws attention to the limitations, et cetera, required to give effect to the Treaty. So one needs to understand what it is that is necessary to give effect to the Treaty, what the Treaty calls for, provides for.

The Court tells us in Applicant A that when we need to know the meaning of a treaty, including where the treaty has been adopted as part of domestic law, then we go to the Vienna Convention. That is how we say we get there. One gives the treaty, in its domestic application, the meaning that it would be given if it needed to be construed as a matter of international law.

I wanted to say something about three aspects of the inquiry that is posed by Article 31. The first of those is the ordinary meaning of the text of Article 2.5(a) of the present Treaty in its context. The second matter is the objects and purposes of the Treaty, and the third matter is the question of subsequent agreements of the parties.

As to the ordinary meaning, if one begins with Article 2.5(a) of the Extradition Treaty, as a matter of ordinary language we would say it is just inescapable that the “it” at the beginning of paragraph (a) is referring back to the offence that is referred to in the chapeau and the question that paragraph (a) is asking is whether that offence was an offence at a particular time.

That, we say, is a question about the state of the law in the requesting state at a particular time. The time is identified by reference to the acts or omissions constituting the offence, which might perhaps more precisely have been framed in terms of alleged acts or omissions or something of that kind, but the reference to “acts or omissions” is used in paragraph (a) to identify a time and the question that is being asked about that time is a question about the state of the law.

If one goes to paragraph (b) it is fairly clearly asking a different question. It is asking a hypothetical question about whether particular acts or omissions would be against the law, not of the requesting state but of the requested state. So the construction that is being advanced for the respondent below and is advanced here is clearly the right construction, we would say, as a matter of ordinary language of paragraph 5 of Article 2. If one broadens the inquiry to take in the context that is provided by the other provisions of Article 2 then one comes to a little more complexity because there is a question about the role of Article 2, paragraph (2) that needs to be resolved.

GUMMOW J: What do you say is the mischief against which paragraph (a) of Article 2.5 might guard?

MR KENNETT: We say it guards against a person being deprived of their liberty and sent overseas to answer the charge of an offence which was not an offence at the time it was alleged to have been committed.

GUMMOW J: But what happens if the conduct constituting the offence would constitute some other denominated offence, which is unchanged?

MR KENNETT: Perhaps two elements to that, your Honour. Could I firstly, as a first step, say that if the conduct that is alleged constitutes some other offence which is still on the statute book, then there is no reason ‑ ‑ ‑

GUMMOW J: Not is still on, has always been.

MR KENNETT: Has always been on, we are not aware of any reason why the requesting state cannot seek extradition on the basis of that other offence.

GUMMOW J: But it has to seek it on the basis?

MR KENNETT: Has to seek it, yes. Now, there may be cases, and the present case might be one where the other offence is as serious as the offence in terms of penalty as the offence in which, in relation to which extradition has been sought, but there could be other cases, and Justice Jessup referred to the temptation to view matters of construction though the limbs of the particular instance which one needs to try to avoid.

There could be other cases where a relatively minor offence is on the statute book at the time when the acts were done and it has been overtaken or supplemented retrospectively by the creation of some far more serious offence. Things happen in the States of Australia from time to time where governments react to a particular kind of crime, assaults on police or drive‑by shootings, by introducing new and far more serious penalties than apply for some other crime into which the same conduct might have fallen.

CRENNAN J: Well, the international arrest warrant could have cited both offences, one that did not exist at the time and the one that did exist at the time and has continued to exist.

MR KENNETT: Yes, and then ‑ ‑ ‑

CRENNAN J: Then the acts in conduct could have been tied to both offences.

MR KENNETT: Could have been the same, yes.

FRENCH CJ: That might be a convenient moment, Mr Kennett. We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ: Yes, Mr Kennett.

MR KENNETT: Your Honours, there is a second stage of my answer to Justice Gummow’s question before lunch which I did not get to and which I do not want to forget - that is, what is the position, on my construction of the Treaty, where an offence that existed at the time of the relevant acts is no longer on the statute book of the requesting state.

In those circumstances, we would say that it would be necessary to consider as a matter of substance and not mere form whether the offence for which the person is now sought to be extradited is the same as the offence that existed at the earlier time. If it cannot be said to be the same offence as a matter of substance then the consequence would be that the person would not be able to be extradited. This is assuming that there is no other offence in play for which they could be charged.

It would not necessarily follow that the person would be, as my friend put it before lunch, off scot‑free; he or she would still face consequences as a result of being suspected of an offence in the requesting country, for example, not being able to visit that country without risk of being arrested. So scot‑free is an overstatement but the position would be we accept that extradition would not be possible.

We would note also in connection with that analysis that I have suggested whether it is the same offence as an earlier offence that was in existence, the comparison that is required – and this is something that can be said generally about Article 2.5(a) – is between two creations existing at different points in time of the same legal system; that is, two offences under the law of the same country, and that comparison does not present the same kinds of challenges as the dual criminality comparison presents. So there will very likely not be the difficulty with equating elements of an offence here to elements of an offence in another country that my friend referred to in his oral submissions.

Now, having dealt with that, I would like to go quickly to the structure of Article 2 of the Treaty and go through it paragraph by paragraph beginning with paragraph 1.

BELL J: Mr Kennett, just before you do that, can I just take up one further submission that was put against you, and that related to the effect of Article 12 stating the “Rule of Speciality”? As I understand the argument against you, it is the mischief is better identified in the way that the Minister identifies it; that is, the mischief with which Article 2.5 is concerned by reference to the conduct given the capacity of the requesting state to prosecute one for an offence other than that for which extradition was granted in the circumstances set out.

MR KENNETT: We say that Article 12 supports our view of the Treaty. Not in an overwhelming kind of way, but we would say that Article 12, and paragraph (a) of it in particular, tends to confirm our position that extradition is necessarily sought for specific nominated offences and that the Treaty treats that nominated offence as something existing in a different sphere of discourse to the conduct. So that Article 12(a) says that once you have been extradited there are limits on the offences for which you can be tried. You can be tried for the extradition offence and you can also be tried for other offences, of which the person could be convicted upon proof of the facts on which the request for extradition was based, assuming that these offences have a lesser penalty.

So it is at this stage, we would say, when extradition has already happened, that the Treaty begins to call for some inquiry into whether the conduct alleged would also constitute other offences. It is at that stage, it is at the stage of compliance with the rule of speciality that one begins to wonder about that question, rather than at the earlier stage of whether there is an extradition offence.

BELL J: What would be the reason for that?

MR KENNETT: The reason, as we apprehend it, is a concern for – and because this is a process in which liberty is at stake and it is a process connected with criminal proceedings, there is a concern for that which is alleged and that which is to be the basis for action against somebody to be very specifically stipulated. The person who is sought to be extradited should not be placed in a position where the ground is shifting and they do not know, at the beginning and at the end of the process, what is the matter that they need to be concerned about and to address.

BELL J: I suppose the matter that I am taking up with you is on a view where extradition is subject to a treaty such as the present treaty, there are, as I understand it, more restrictions imposed than would be the case if the country were a declared extradition country. One can look at Article 2.5(a) in that light as an additional restriction imposed on a country such as this with whom we have a particular treaty, but the value of that restriction seems significantly watered down by the treatment of the rule of speciality.

MR KENNETT: In a practical sense, that is right. I think I observed before lunch that we do not know of any reason why – if, as we understand is the case, Hungary takes the view that what is alleged against Mr Zentai constitutes murder then we know of no reason why his extradition could not be sought for that crime, and if he were extradited then the rule of speciality would, on its face, permit other charges arising from the same facts, but extradition has not been sought for that crime and he takes the point.

If I could go to Article 2, 2.1, paragraph 1 of Article 2 refers to “extraditable offences”. Paragraph 1 is the core provision of the definition of extraditable offences which is relevant for the purposes of Article 1. Paragraph 1 of Article 2 refers to “offences however described”, which we would suggest really does no more than reflect the fact that this is, as my friend put it, an eliminative rather than an enumerative form of Extradition Treaty. So when it says, “offences however described” what that means is the parties are not making a list of offences. The parties are instead defining a class of offences. The offences in that class are those which are punishable under the laws of both contracting states by imprisonment for a specified time. So there is a requirement of seriousness and a requirement of dual criminality.

Article 2 then is expressed to apply for the purpose of – I am sorry, paragraph 2 – is expressed to apply for the purposes of the article but it applies in determining a particular question. The question is:

whether an offence is an offence against a law of both Contracting States.

That clearly, we would say, refers back to the test posed in paragraph 1, whether the offence is punishable under the laws of both states. What paragraph 2 does is postulate that there is an offence and asks a question about that offence, the question being a question relating to dual criminality. Justice North in the court below, and my learned friend in this Court, seek to read the reference to the law of both contracting states as really meaning either contracting state so as to make paragraph 2 applicable more broadly. We say that is just plainly not – that is just inconsistent with the question to which paragraph 2 is directed. Paragraph 2 is directed at the issue that needs to be resolved for the purpose of paragraph 1, that being the issue of dual criminality. If one looks at paragraphs (a) and (b) of Article 2.2, both of those subparagraphs calls for attention to be given and comparisons to be made between the laws of the two contracting states.

So we say that this is a provision. Yes, it is part of the definition of an extraditable offence, but it relates only to a specific issue that arises in that definition, that issue being the question of dual criminality. If one then goes to paragraph 5, we have discussed paragraph (a). It, of course, is not related to dual criminality. Paragraph (b) sets up perhaps an additional dual criminality requirement, but in any event, paragraph (b) is framed in terms which mean that it does not need any help from paragraph 2.2. What I mean by that is paragraph 2.5(b) in itself speaks of “acts or omissions” and asks, in a broad practical way, whether those acts or omissions would constitute an offence; that is, any offence against the law of the requested state.

So it does not require any provision along the lines of paragraph 2 to allow it to have effect, so that paragraph 2 can be seen, we would say, as directed solely at the question posed by paragraph 1, and when paragraph 2 refers to “both Contracting States” it means both contracting states, it does not mean either contracting state.

FRENCH CJ: What is the purpose of the distinction for which you contend between the term “offence” as used in 2.5(a) and “acts or omissions constituting the offence” as used in 2(a), 5 being concerned with retrospectivity? I am looking for a policy if you like in favour of your construction as you seek to advance it.

MR KENNETT: The dual criminality test gives rise, as my friend pointed out, to problems because one has to compare offences under two systems of law which may be quite different, and so paragraph 1 speaks in terms of offences, which we say are creations of the law, and asks the person who has to apply the Treaty to identify offences punishable under the law of two different countries and to analyse them together. That may not be easy because of differences between the two countries and so one has paragraph 2, which for that purpose allows one to disregard the particular ways in which the different legal systems categorise things or describe things, to disregard those things and look, among other things, at the totality of the acts or omissions alleged against the person.

So, when one is asking the dual criminality question one needs to go beyond the legal definition of the offence to cope with the challenges created by different systems of law, but when one is addressing the question of retrospectivity for the purpose of 5(a) that challenge does not arise because, as I said, the comparison is between two creations of the same system of law.

FRENCH CJ: I suppose offences can be retrospective, acts or omissions cannot.

MR KENNETT: Yes, offences are, we would say ‑ ‑ ‑

FRENCH CJ: If you were looking at it from the point of view of the legal construct you can legally construct an offence, retrospectively. Acts or omissions are a matter of history.

MR KENNETT: That is right, yes.

KIEFEL J: In the context of retrospectivity paragraph (a) might be looking, by reference to the words “the acts or omissions” to the event upon which time fastens, and the offences are judged by event or events.

MR KENNETT: We would say that is right, your Honour. It uses the acts or omissions as a way of identifying the time at which the issue needs to be ‑ ‑ ‑

KIEFEL J: So in that sense it may have a different operation to acts or omissions used for the comparative, the contrast in (b).

MR KENNETT: Yes, we accept that.

GUMMOW J: Can you just look at Article 2.2 for a minute? It says:

For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States –

Where else in this article is that to be determined?

MR KENNETT: In paragraph 1 and perhaps in paragraph 5, although as I said, paragraph 5 does not create the same difficulties as paragraph 1 does, the same difficulties of comparison. So, in substance ‑ ‑ ‑

GUMMOW J: It is really the first sentence of Article 2.1, is it?

MR KENNETT: Yes.

FRENCH CJ: Or 2.2 just gives content to that.

MR KENNETT: To that sentence. We acknowledge that it is expressed to apply for the purpose of the article, but we also stress that it is expressed to be directed at a single issue and that is the issue that is posed by the first sentence of 2.1.

HEYDON J: Do you distinctly deny that Article 2, paragraph 5 is also relevant? I did not quite understand your submission in that regard. One moment you seemed to accept that Article 2.5 is relevant to Article 2.2, but then a little later you withdraw that proposition.

MR KENNETT: Article 2.5(b) might be seen as dealing with a question which is within the coverage of 2.2, that is why I hesitate, but because 2.5(b) is framed in terms of acts or omissions and a very broad question about whether hypothetically they would be criminal, one has to wonder whether 2.2 has any work to do there; that is why I seem as if I am hedging my bets on 5(b). At any rate, 5(a) is the core of the debate between us and we say that 2.2 has no application to that. It does not define any phrase for the purpose of 5(a).

BELL J: One is concerned in Article 5 in determining whether an offence is an offence against the law of both contracting states, is one not, because one is looking at whether it was an offence in the requesting state at a certain time and one is looking at whether or not the acts or omissions would be an offence against the law of the requested state?

MR KENNETT: One is certainly looking at both issues, but they are distinct issues, we would say.

BELL J: Yes.

CRENNAN J: Well, I mean, animating (a) possibly is the idea that there is a presumption against retrospectivity.

MR KENNETT: Yes.

CRENNAN J: In relation to criminal law, that is. If you look at the International Covenant on Civil and Political Rights, Article 15, paragraphs 1 and 2 distinguish between that presumption against retrospectivity in paragraph 1 but then make an exception, it would seem, in relation to war crimes.

MR KENNETT: Yes.

CRENNAN J: Now, is that part of the context to which we should pay attention in terms of construing 5(a)?

MR KENNETT: Well, the former provision is certainly part of the context, the general presumption against retrospectivity.

CRENNAN J: Well, that distinguishes it to some extent from Article 2.2, the dual criminality aspects.

MR KENNETT: Yes. It is a different question, we would say. The general antipathy in international law, at least among states that are signatories to the human rights instruments, the general antipathy against retrospectivity is part of the background, we would say, to 2.5(a) and would favour giving it a broader reading rather than a narrower one. There is a carve out for war crimes in the ICCPR and this case happens to be about war crime, but the issues of construction in this case need to be resolved on the basis that it is not limited to war crime. The Treaty does not include any such exception.

CRENNAN J: I suppose on one view war crimes could have been accepted from part (a) of the proviso. That would be a possibility, I suppose.

MR KENNETT: It would have been a simple matter to include an exception and the parties have chosen not to.

CRENNAN J: Yes.

FRENCH CJ: Now, 5 is not expressed as an interpretive provision, whereas 2 is. I suppose you could say of 5(b) at least that it preserves dual criminality, notwithstanding a retrospective offence in the requested state.

MR KENNETT: Yes, I think that is right.

FRENCH CJ: Whether it logically plugs in to 2(b) may be academic, I suppose.

MR KENNETT: Yes. So that 2.2 is expressed to be definitional in nature, but 2.5 also operates by way of a qualification or amplification of 2.1, so that the two provisions stand in the same relationship to 2.1, and both of them feed into the general concept of an extraditable offence. So that when Justice North in the court below – and I will just give your Honours the reference rather than going there – at paragraphs 24 to 25 of his Honour’s reasons on page 497 of the appeal book his Honour treats paragraph 2.2 as in some way defining the reference as a definition controlling the words in 2.5 which refer to the offence.

We say, firstly, 2.5 just does not use the phrase “extraditable offence” which is defined by 2.2. But also, we say, that reasoning, with respect, misunderstands the relationship between these clauses because both of them, 2 and 5, are both elements of an overall definition and they both qualify or amplify 2.1.

Now, having stepped through Article 2, could I commend to your Honours, Justice Jessup’s – without going through it again – Justice Jessup’s analysis of it at paragraphs 152 to 158 of his Honour’s reasons where his Honour goes through a series of careful steps which, we say, properly describe the internal structure of Article 2.

I should, perhaps, just go to paragraph 154 of the reasons on page 562 of the appeal book by way of a response to a charge levelled against his Honour by my learned friend. Justice Jessup was described in my friend’s submissions as having treated the reference to both contracting states as really meaning only the requesting state. If one looks at paragraph 154, his Honour repeatedly refers to the “Requested” and “Requesting States” in that paragraph when discussing the effect of 2.2(a). It is clear, we would submit, that his Honour correctly saw paragraph 2.2 as being a provision that assists with the comparison between the two states for dual criminality purposes.

Now, I have mentioned Article 12 – I do not need to go back to that. Article 3 – there are references which my friend took the Court to in Article 3 – the use of the word “offence” in, perhaps, a different sense from that which I have been submitting that it has in Article 2 and that perhaps creates some degree of difficulty for my argument but we would say that Article 3 is dealing with circumstances of the extraditee – circumstances which may lead to extradition being refused either necessarily or on a discretionary basis and that is a different exercise from what Article 2 is doing, which is defining a class of offences.

So, that it is true that the word “offence” is used in a different sense in a couple of places in Article 3 to the way in which I say Article 2 uses it, but that should not be understood to detract from what can be seen to be a reasonable degree of internal consistency within Article 2.

That completes what I wanted to say about the provision itself and the context in which it is found. As to the objects or purposes of the statute, if I could go briefly to Justice North’s reasons in the court below at page 494 of the appeal book at paragraph 11 his Honour states in very broad terms the purpose of extradition treaties as a whole and makes reference to the English cases, some of which at least the Court has been taken to.

Now, we would say that if this is intended to suggest that extradition treaties are somehow in a special category and to be construed in a different way to other treaties then no reason appears to have been given for that. We do not see any explanation in his Honour’s reasons and we are not aware of any reasons in the English cases that have been referred to.

On the other hand the proposition that these treaties are to be construed broadly and generally may be intended to be no more than an application of the ordinary principle that one construes a treaty in the light of its objects. That does seem to be the place in which the English cases at least started. That is the position in Re Arton, which is extracted at pages 946 to 947 of Postlethwaite’s Case, and your Honours were taken to Postlethwaite’s Case before lunch, [1988] 1 AC 924. There is an extract from Arton’s Case which certainly speaks in terms of, conventionally we would say, construing the treaties in light of their ‑ ‑ ‑

CRENNAN J: The context was dual criminality though, was it not?

MR KENNETT: Yes. I think that is true and the context in Ismail is whether a person is accused, and that is another ‑ ‑ ‑

CRENNAN J: Civil and common law systems.

MR KENNETT: ‑ ‑ ‑ another context in which difference between common law systems and other systems create a need to be flexible and cosmopolitan. That is certainly right. But if all that these cases are saying is that one construes the treaties in the light of their objects then what follows is that one needs to ascertain with a bit of care what are the objects of the particular treaty and then ask the question whether those objects point to a particular construction of the provision in question.

Now, the preamble to the present Treaty of course says that the parties desire to make more effective the co‑operation of the two countries in the suppression of crime by concluding a treaty on extradition. So what the parties are seeking to do is make their co‑operation more effective and the way that they seek to do it is by concluding a treaty.

If one takes those words at face value they do not assist very much, we would submit, in designating an object or in indicating what the construction would be of any of the detailed provisions of the Treaty. To discern the Treaty’s objects one needs to identify at least in broad terms what it seeks to do in its operative provisions, which is why Justice Jessup in a paragraph to which I think my friend took your Honours, went to Article 1, which of course is the core obligation in the Treaty, the obligation to extradite, but Article 1 of course is expressed to be subject to the provisions of the Treaty and expressed to apply to extraditable offences so in order to find the scope of the obligation one ends up back in Article 2, which is where one started.

One also has to have regard, of course, to the protections included in Article 3.1 and 3.2 and when one has regard to those protective provisions, 2.5(a) and the provisions of Article 3.1, we would say it becomes reasonably clear that the object of the Treaty is really to strike a balance between the suppression of crime, on the one hand, by making accused persons face trial and making convicted persons serve their sentences, and on the other hand, the protection of various basic freedoms and that the precise nature of that balance or the point at which that balance has been struck can be understood only by analysing the detailed provisions of the Treaty itself.

FRENCH CJ: It is a bit hard to talk about a purpose in terms of striking a balance. The purpose is extradition. It is extradition subject to appropriate conditions.

MR KENNETT: Extradition in certain circumstances and subject to certain conditions, yes. But the point that I am seeking to make is that consideration of the object of the Treaty certainly does not reveal an intention on the part of the parties to extradite everybody in all circumstances. Once that is recognised then the object of the Treaty does not provide very much, if any, assistance in the construction of its terms.

We would say that what is more useful is observations such as that in Riley’s Case which your Honour the Chief Justice pointed out this morning, indicating that provisions in a treaty of this kind should be construed against the background of international norms or assumptions that apply to the subject matter and part of those norms and assumptions is respect for fundamental freedoms, including the protection of liberty. So one gets to a position somewhat analogous to the statutory construction provision, which ‑ ‑ ‑

FRENCH CJ: We have the joint judgment in Oates’ Case, to which I think Justice Gummow referred to.

MR KENNETT: Yes, which in its terms is talking about the statute, but the same concerns, we would submit, are applicable in the construction of a treaty to the extent that that is a different or separate exercise. That is what I wanted to say about the objects of the Treaty. The final matter in relation to the appeal that I wanted to say something about is the subsequent agreement of the parties. There are four points to make about this and I am going to make them in a different order from the way we made them in our written submissions at paragraphs 31 to 34.

Firstly, when Article 31.3 of the Vienna Convention speaks of subsequent agreements and practices, it speaks of agreements regarding the interpretation of application of the Treaty’s provisions, or practices that establish an agreement concerning interpretation. So what is to be taken into account pursuant to this provision is agreements about the meaning of the Treaty’s text, that is, the construction of the existing text.

An agreement which sought to establish – which, of course, the parties to a treaty are free to conclude – but an agreement which sought to establish new or different rights to amend the Treaty in some way, would be in a different category. I do not understand the Minister’s position to be to deny that proposition.

Further, the agreements that are relevant for the purposes of Article 31.3 are agreements which shed light on the choice that is to be made between constructions of the text and we would say that is a choice between constructions which are otherwise available consistently with the primacy of the text that the judgments in Applicant A spoke about.

Hence, the commentators to whom we have referred in our written submissions at – I have just lost track of the reference – but the article which is on our list of authorities – I do not ask your Honours to go to it, but it is by Sorel and Boré‑Evino. The learned authors of that article refer in paragraph 42 to subsequent agreements of the parties being more in the order of confirmation rather than assertion and that, I suppose, echoes a familiar proposition of statutory construction. It is footnote 9 of our written submissions where that commentary is referred to.

The proper role of subsequent agreements in practice, we would say, is to confirm an interpretation or to assist in the selection between what are otherwise available interpretations of the words that have been used in their context, not something that can broaden the debate out into constructions that would not otherwise be viable.

The second point that we make about subsequent agreements is that Article 31.3 refers to such agreements being taken into account and that raises a question about the weight that is to be given to such matters. If the subsequent agreement is put forward as evidence of what the parties to the Treaty intended to do when they made the Treaty, that is, as a kind of parol evidence and then – and this is what we understand to be the Minister’s position – then the weight that one gives to evidence of that kind would, one would think, be normally somewhat less than the weight one would give to the travaux which are at least a contemporaneous expression of intention.

The weight to be given to such evidence would always be subject to the general proposition that the best indication of what the parties intended to do would normally be what they actually did, that is what they put in the text of their treaty, and that is especially so when there are only two parties. If the subsequent agreement were being put forward as a gloss on the words of the Treaty intended to identify some new meaning that the parties, on further reflection, preferred, then that would raise significant additional problems, but that is not, as I understand it, how my friend puts the case and I do not propose to say anything more about that possibility.

We would also say that however one understands the status of a subsequent agreement, the weight that can properly be given to it must depend to some extent on the nature and the subject matter of the Treaty, and so here we have a bilateral agreement which, given its subject matter, was clearly made in contemplation of its terms being incorporated, at least possibly incorporated into domestic law, as there is a mechanism for doing in Australia, and made in contemplation of its terms having an effect on the rights of individuals.

In the context of a treaty of that kind we would say the parties to it should not lightly be assumed to have intended that the operation of the treaty would be subject to later definition or tweaking by informal, in this case at least, informal agreements between officials or as a result of an accumulation of practice which the individuals affected by the Treaty may know nothing about.

Our third point is that the existence of an agreement or a practice which is said to affect the construction of a treaty and therefore to affect the obligations that arise under statute would need to be established to the satisfaction of the court, the court charged with identifying and enforcing those obligations. They are matters of statutory fact as Justice Brennan described it in Gerhardy v Brown. The rules of evidence might not apply with all their strictness but, nevertheless, it is a matter that needs to be proved.

It is not enough to show that there was something before the Minister pointing to it or that the Minister had a view about it; the court would need to be able to identify the agreement or practice for itself and the evidence of the existence of the agreement in the present case is somewhat sparse and unsatisfactory and further, obviously involves a significant element of bootstrapping. We have the parties to the Treaty effectively ‑ ‑ ‑

GUMMOW J: You keep talking about interpretation of treaties. It is a fundamental proposition which we emphasised in Vasiljkovic 227 CLR 614, paragraphs 49 and 50. The Executive has no power to dispose of people by providing for their removal from Australia. It requires a statutory backing. We are construing a statute which happens to have this treaty and a regulation, and you keep starting at the wrong end, it seems to me.

MR KENNETT: Your Honour, we have started ‑ ‑ ‑

GUMMOW J: There is a very fundamental constitutional proposition at stake here. Your client cannot be removed from this country, absent some statutory mandate and the debate is to the existence of the statutory mandate.

MR KENNETT: We absolutely accept that, your Honour. The reason we are now at the Treaty is that the statute, through the regulations, incorporates it and Applicant A tells us ‑ ‑ ‑

GUMMOW J: I know, but it does not necessarily incorporate anything else, and I will not repeat myself.

MR KENNETT: Well, it does not incorporate anything external to the Treaty that one might say had an influence on the Treaty’s application.

FRENCH CJ: If you had an agreement between the Government of Hungary and the Government of Australia, some sort of signed note, after the enactment of regulation 4 it is said that the parties agree that Article 2.5(a) means X. Now, that could have one of two effects. It could change the meaning of Article 2.5(a) or it could simply be a restatement of what the existing and proper meaning is. It cannot, however, change, can it, the statutory operation of regulation 4 in applying Article 2.5(a) to the operation of the Extradition Act. That would have to be done by a further regulation.

MR KENNETT: Yes, that is certainly right, yes. If the note is said to be an explanation of the meaning of the existing article, then we have a debate along the lines of our present debate about what the existing article means.

GUMMOW J: You need a statutory mandate. That engages Chapter III, and that is why we are here.

MR KENNETT: Quite, your Honour.

GUMMOW J: Because it arises under 76(ii) of the Constitution.

FRENCH CJ: The question then is, is there any difference in concept between a note of agreement about what Article 2.5(a) means and a request and accession said to reflect such an agreement? In other words, does it not raise precisely the same problem?

MR KENNETT: Fundamentally, your Honour, yes. The note and accession raises the additional problem of proof of what is the agreement, how are we to know what it is ‑ ‑ ‑

FRENCH CJ: We are just talking at the level of principle at the moment.

MR KENNETT: But in principle, yes, the same problem arises. If the additional note or the additional agreement says henceforth we want Article 2.5(a) to mean this, then that is something which on no view – I think my friend accepts this – on no view would the regulations and the Act pick that up and it would be ‑ ‑ ‑

FRENCH CJ: Then the further question is, and the question is whether this is an extrapolation or just an expression of the same problem, assuming that the subsequent practice at the level of which it is being put, request and accession reflecting an agreement is about nothing more than interpretation, does it have any play at all upon the interpretation of 2.5(a) unless it is given statutory backing?

MR KENNETT: Well, this is where we come back again to the chain of the statute, the Treaty and the principles of treaty construction. If we start from the point that there is a statue which incorporates a treaty ‑ ‑ ‑

FRENCH CJ: Well, Article 31 of the Vienna Convention is not in regulation 4, is it?

MR KENNETT: No.

FRENCH CJ: It is not applied by regulation 4.

MR KENNETT: But the way we have proceeded ‑ ‑ ‑

FRENCH CJ: The common law is applied, of course, we apply the common law and there are principles of interpretation which are perhaps not all that different in many respects from important elements of Article 31.

MR KENNETT: But the way we understand things to work is we have a statute which needs to be construed, part of what the statute does is incorporate a treaty.

GUMMOW J: No. It provides for the making of a regulation.

MR KENNETT: Part of what the regulation does is to provide that the effect of the statute is to be influenced by a treaty.

GUMMOW J: It would be beyond the regulation‑making power to achieve some of these consequences it seems to me, but anyhow.

MR KENNETT: With the Treaty having been incorporated in that way into the statutory criteria for the Minister to apply we need to understand what the Treaty means and we have a dispute about what the Treaty means in that context. Applicant A tells us in a situation like that we need to open up the Vienna Convention and that is how we get to Article 31.3 of the Vienna Convention.

Now, if the subsequent agreement of the parties is able to be given weight consistently with those principles as an aid to construction of the existing Treaty and the obligations that arise under it then it would feed in that way to the rights and duties that arise under the statute. But if it is a subsequent amendment or refinement or gloss on the Treaty then it would not. I think what your Honour Justice French, the Chief Justice, put to me is right and then we would be outside the scope of anything that would be taken up by the regulation. In the light of that discussion and in the light of the way ‑ ‑ ‑

GUMMOW J: You see, Applicant A, if you look at page 272, in 190 CLR, it is treating a definition of the term “refugee” in the statute and the statute said it had:

the same meaning as it has in Art 1 of the Convention -

not surprising that that can draw in Article 31 of the Convention on treaties. This is rather differently done, and it was against that background that all those things were said in Applicant A and a number of other refugee cases.

MR KENNETT: It is differently done but we have argued this case at all levels on the basis that nevertheless ‑ ‑ ‑

GUMMOW J: Well, if you want to argue against what might be your client’s interests, that is up to you.

MR KENNETT: In the light of the discussion that we have just had about the position of a subsequent agreement or practice that would purport to change the effect of a treaty, I do not think I need to say anything about what was going to be my fourth point on subsequent agreements and that is the point that we make at paragraph 31 of the written submissions. I understood my friend to be saying that if the subsequent agreement or practice amounted to a change or an amendment then it just would not be taken up by the regulation and so the problem that we have identified in paragraph 31 of the written submissions would not arise.

So, for those reasons – for the reasons I have indicated – we say that the ordinary meaning of Article 2.5(a) in its context and to the extent that it needs to be understood to understand the Minister’ statutory obligations, that ordinary meaning is not overcome or effectively, we would say, by any subsequent agreement or practice of the two parties to the Treaty.

That concludes what I wanted to say about the issues arising in the appeal which leaves me with the issue raised by the notice of contention which is, as my friend said, an evolution of what was ground 12 in the original application. This is the proposition that the decision of the Minister is vitiated by the Minister’s refusal to provide reasons.

This argument does not seek to say anything about the position at common law referred to in Osmond’s Case, nor is it put as an implication arising solely from section 75 of the Constitution, although section 75 is a very important part of the context in which we say the implication does arise. It is no doubt true ‑ ‑ ‑

FRENCH CJ: What do you mean by the statement in paragraph 10, “conditioned by an obligation to give reasons”? Does that mean a kind of feasible validity?

MR KENNETT: I am sorry, your Honour, paragraph?

FRENCH CJ: Paragraph 10 of your notice of contention.

MR KENNETT: I am sorry, yes.

FRENCH CJ: In other words, if you ask for reasons and the Minister does not give them, the decision evaporates?

MR KENNETT: Yes, your Honour, in effect.

HEYDON J: You have an obligation to give reasons. It is not a question of asking for them. You have to give them at the start.

MR KENNETT: Well, your Honour, the way we framed it in paragraph 43 of our written submissions was as an obligation to give reasons when somebody asks for them. It is put against us by the Commonwealth in writing that that makes everything conditional and uncertain. If that is a difficulty, then the solution to the difficulty is to omit the qualification, which we do not need, rather than to omit the fundamental proposition.

FRENCH CJ: So if the decision is made, unaccompanied by reasons, it is invalid?

MR KENNETT: Yes, yes. That is where we get to and I would like to try and chart the steps by which we get there, although they are in the written submissions. We accept that section 75(v) is, in its terms, merely a conferral of jurisdiction, but it has, nevertheless, been accepted as playing a very important role in the constitutional structure. We also note that the conferral of jurisdiction on this Court by section 75 can give rise to implications, which have substantive effects. An example of that is in Mewett’s Case 191 CLR 471, which I have arranged to be given to your Honours.

Between pages 545 and 551 your Honour Justice Gummow and Justice Kirby discussed the significance of section 75(iii) and held that the existence of the traditional – or what was seen as the traditional – Crown immunity doctrine was precluded in Australia in federal jurisdiction by that provision. That is an example of how the conferral of an entrenched jurisdiction in this Court can have implications for the existence of legal doctrines and the construction of provisions which lie elsewhere.

The other thing that we are not seeking to do is to ask the Court to create new constitutional doctrine based on what one might say are the dictates of good administrative practice. It certainly often is regarded as a good thing for decision‑makers to give reasons, but that is not the basis of our argument. We seek to build our argument on a starting point, which is that the Commonwealth Parliament is a Parliament of limited powers which cannot recite itself into power and nor can it delegate to any official power that is without limit.

To that proposition we add the point that the limits on legislative and executive power are legal limits, enforceable by this Court and other courts exercising federal jurisdiction. They are not merely matters of convention or practice and that judicial enforceability of the limits on power, of course, is entrenched by section 75(v).

So we effectively take the Communist Party Case and add Marbury v Madison. These strands were drawn together by Justices Gummow and Kiefel in the Minister v SZMDS 240 CLR 611, relevantly at paragraphs 23 to 25 on pages 620 to 621, particularly paragraph 25 where the considerations that have just been referred to are said to have:

added significance where the law in question is made by a legislature of limited powers. Thus, in Australia a jurisdictional fact may also be or include a constitutional fact.

Then there is a reference to the Communist Party Case. Then their Honours touch on the matter again on page 625 of the report, particularly at paragraph 42. Leading up to that paragraph in paragraph 40 there is reference to the case of SGLB and the critical question identified there is whether a determination – that the Minister was satisfied about criteria being met:

whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

Then paragraph 41 refers to some Federal Court cases that had taken up that formulation. Then paragraph 42 says that the Minister had urged that that:

line of authority should be disowned –

and your Honours said that that position taken by the Minister gave:

insufficient weight to the importance of s 75(v) of the Constitution in ensuring that the legislative expression of jurisdictional facts in terms of satisfaction or opinion of a decision maker does not rise higher than its source.

So the ultimate constitutional foundation of all this becomes important in the definition of the contours of decision‑making powers that are conferred on officials. So, we say in paragraph 39 of the written submissions, on the basis of that analysis an unreasoned decision is a decision which offends, among other things, the principle in the Communist Party Case and the Parliament could not confer on a Minister the power to make an unreasoned decision for that reason. One can see the same kind of analysis in the ‑ ‑ ‑

FRENCH CJ: An unreasoned decision does not equate to a decision – I am sorry, let me put it again. A decision for which reasons are not provided is not thereby an unreasoned decision.

MR KENNETT: There is another link – there is another step that I need to take and it is a novel step and I am going to come to it in a moment. One can see the same kind of thinking as in SZMDS in the incontestable tax cases and one of those is on my list, MacCormick’s Case 158 CLR 622.

FRENCH CJ: That is about legislative power, is it not?

MR KENNETT: It is. Yes, in a direct sense, that is right. At 639, from about point 7 on page 639, the Court notes:

A further submission was made by the plaintiffs that –

the particular tax there was –

an incontestable tax and for this reason is beyond the power of the Parliament . . . The principle which lies behind the doctrine is a more general one of elementary constitutional law –

so not something particular to the tax power, but something arising from elementary constitutional principles.

Their Honours refer back to the Hankin’s Case, which in turn referred back to the Communist Party Case, and the passage goes through to about point 3 on page 641, and I will not read it all, but it ends with a reference to Giris v The Commissioner, and what Justice Kitto said in that case to the effect that an:

“incontestable tax” in the sense in which it is used in Hankin and Brown “refers to a tax provided for by a law which, while making the taxpayer’s liability depend upon specified criteria, purports to deny him all right to resist an assessment by proving in the courts that the criteria of liability were not satisfied in his case”.

So, the concern there is once again with the conferral of a power whose results cannot be tested or cannot be questioned in the courts.

FRENCH CJ: The absence of an obligation to provide reasons does not render the power unexaminable – or the exercise of the power unexaminable, I am sorry.

MR KENNETT: That is true, but the next step in my argument, and this is the step that is novel, is to say that an unexplained decision should be regarded as being in the same category as an unreasoned decision. This is because if the decision‑maker has the capacity, and I do not suggest that decision‑makers always have this ability, but if the decision‑maker has the ability to make the decision‑making process into a black box, as it were, data goes in, decision comes out with no hint about what went on in between, so that compliance with his or her jurisdictional limits cannot be tested, then he or she also acquires de facto the capacity, consciously or not, to dispense with those limits.

HEYDON J: I do not understand that. If someone makes a decision and no reasons are given cannot that person be served with a subpoena ad testificandum and made to tell a Federal Court judge on oath what the reasons were, in answer to non‑leading questions admittedly, until the decision‑maker is declared hostile?

MR KENNETT: There may be that capacity.

HEYDON J: Well, that is the end of point 9, is it not? The provision of reasons is not necessary for the enforcement of limits. There are other means. Mr Lloyd itemised some other ones.

MR KENNETT: There are other means by which evidence can be accumulated about that which was before a decision‑maker and about procedural steps which were taken. Without getting into the decision‑maker’s mind the Court does not have the full picture and therefore cannot, in a complete sense, ascertain whether jurisdictional limits have been complied with.

We gain some support from some statements of Justice Mason and Justice Brennan in Cunliffe’s Case, which we have given references to in written submissions, where their Honours appear to regard the capacity to obtain reasons and challenge a decision is necessary for the validity of the conferral in very broad terms of a decision‑making power. We recognise that there was an implied freedom at issue in that case. Nevertheless, this supports the point that the practical capacity to test the validity of a decision by reference to a full account of why it was made can, at least in some circumstances, be relevant to the understanding of the scope of the power and thus to its validity on constitutional grounds.

We do not suggest that, as I conceded, the provision of reasons is necessary to permit judicial review to occur. The present case, of course, is an example to the contrary, but we do say that without access to the decision‑maker’s mind – and access to an account of what was considered and what was thought to be important – the success or failure of particular grounds of review will often come to depend on what inferences can be drawn from partial evidence and the lack of evidence with particular matters.

FRENCH CJ: I suppose another answer might be that you cannot – does not necessarily support your constitutional proposition, that you cannot in a practical sense commence a judicial review proceedings asserting jurisdictional error in a speculative way.

MR KENNETT: No, no.

FRENCH CJ: And that often the courts will deny the aid of the ‑ unless you use something like preliminary discovery, I suppose.

MR KENNETT: Yes, that is right. A partial answer to what your Honour Justice Heydon put to me may be that one cannot subpoena the Minister.

FRENCH CJ: WA Pines v Bannerman is a good example of that.

MR KENNETT: Yes. One cannot subpoena the Minister and bring him to court against his will to give evidence unless one has already started the case, and one cannot start the case without at least some indication of a ground. The availability of many grounds of review and their success or failure will, in the absence of reasons, depend on what inferences can be drawn from the lack of evidence of what was considered, and that is a situation that we say is inimical to Parliament and the Executive being kept within their proper bounds by this Court and other courts. If the decision‑maker’s action presents an inscrutable face, then all that the Court can really do is conduct a very limited type of inquiry referred to by Justice Dixon in Avon Downs. There cannot be any consideration of whether, for example, irrelevant considerations were taken into account in reaching a decision which on its face might appear not to be unreasonable.

HEYDON J: Does not the Administrative Decisions (Judicial Review) Act distinguish between cases where there is a statutory obligation to give reasons in cases where there is not? Does not that legislation rest on a negation of your present argument?

MR KENNETT: It assumes the absence of any underlying obligation.

HEYDON J: Was it not based on a report one of the authors of which was Sir Anthony Mason, another one Mr Ellicott?

MR KENNETT: Yes. The argument that I am putting is consciously a novel one.

HEYDON J: It is rapidly devaluing your primary argument, I must say.

MR KENNETT: The last point that we would seek to make about this is that the way we put the argument results, if it be right, in the provision of reasons being a true condition on the exercise of power and thus distinguishable from a separate express duty to give reasons such as the one considered in Palme’s Case, so it would not be something that could be enforced by mandamus. The Minister would not be under any enforceable obligation to write a statement of reasons. It would just be that if he did not there would be consequences for the validity of that which he had done by way of a decision.

CRENNAN J: What about a point put against you by the intervener? That is to say, that you are not making any challenge to Public Service Board of New South Wales v Osmond (1986) 159 CLR 656?

MR KENNETT: Osmond talks about ‑ ‑ ‑

CRENNAN J: You are not asking us to overrule that case?

MR KENNETT: Osmond talks about the common law position and we do not say that it is wrong. The argument that we seek to construct applies only in the federal sphere and proceeds from the limited nature of the Commonwealth Parliament’s powers. Those are the submissions on the notice of contention, if the Court pleases.

FRENCH CJ: Thank you, Mr Kennett. Mr Solicitor, we will not need to trouble you on the contention point, or you, Mr Lloyd.

MR LLOYD: Thank you, your Honour. I will give the Court a couple of references. The first thing I should say is I have provided to the Court a one page extract from our summary of argument. In the footnotes there is a reference to countries that have similar treaties in similar terms. Can I just say that it is not – and perhaps your Honour did not, but insofar as your Honour Justice Gummow asked for a list of totalitarian countries with which we have agreements, this is apropos a more general response as to the countries with which we have agreements.

HEYDON J: Apart from Switzerland they all seem totalitarian.

MR LLOYD: Your Honour Justice Gummow also asked me about the approach to the dual criminality question as to how it was approached. That can be seen on page 221 of the appeal book at paragraph 8 and the acts or omissions were thought to be “murder, manslaughter, grievous bodily harm or assault”.

Your Honour also asked about section 7(d) of the Act. That is addressed at the time of the section 16 notice on page 284 in paragraph 14. We say that, in effect, the military law objection deals with offences that are purely military, so desertion, that kind of thing, but not things that can have a civil character as well.

FRENCH CJ: The warrant in this case was issued incidentally by the Military Division of the Metropolitan Court, I think, was it not?

MR LLOYD: That is so; part of the civil court structure, but there is a military part within the civil court structure. Your Honour Justice Gummow has this morning, but also with my friend, queried I think the common approach of both sides as to the relevance of Article 31. We say that section 11(1)(a) allows the making of regulations to, in effect, give effect to a bilateral Extradition Treaty, now insofar as that Treaty requires something different to the Act, so it is an ability to, in effect, make the Act subject to the Treaty. The Treaty then has to be inserted into the regulation, but the intention is to give effect to the Extradition Treaty. That is also picked up in section 3(c) of the Act.

So the question then is which talks about obligations under treaties. Those obligations are as between nations. They are governed by international law, and insofar as they are written treaties, they are governed by the Vienna Convention, and that brings in Article 31, the full ambit of it we say because one can only construe what our international obligations are by knowing what they are at international law, where the obligations arise.

FRENCH CJ: Section 11 contemplates a modification which is by way of constraint on the powers otherwise conferred under the Act, is that right?

MR LLOYD: Yes.

FRENCH CJ: That comes from the words “limitations, conditions, exceptions or qualifications”?

MR LLOYD: Yes.

GUMMOW J: “as are necessary”.

MR LLOYD:

as are necessary to give effect to a bilateral –

that is so. So we say one has to work out what, first of all, the bilateral treaty obliges us to do, and then to the extent that it is different and imposes a limitation upon the Act, one then works it through that way, but the Treaty, we say, has to be construed in accordance with international law because that is what we are giving effect to, the obligations under that Treaty.

FRENCH CJ: When you look at the power conferred on the Minister by section 22 to make a determination, that power is subject to whatever conditions, qualifications, et cetera, imposed by regulation imported from the Treaty.

MR LLOYD: That is so. I just note, as an example, I think in Tasmanian Dams, the World Heritage Conservation Treaty or agreement or convention was a schedule to the 1983 Act, nonetheless, the Court was content to apply Article 31 there and that was even in a context where the convention predated Article 31 but because Article 31 was seen to be, in effect, a restatement of the law.

FRENCH CJ: Was the convention in that case given statutory effect, or was the statute giving effect to the convention and for constructional purposes?

MR LLOYD: The statute was intended to give effect to it, but the convention was in a schedule to ‑ ‑ ‑

FRENCH CJ: Yes, but that does not give statutory effect to the convention, just putting it in a schedule. I think the ICCPR was in a convention to the original Human Rights Act.

MR LLOYD: No, I accept that, but one of the issues was whether or not the Act was giving effect to, and it was supported because it was giving effect to the convention.

FRENCH CJ: Yes, that is how the external affairs power was invoked.

MR LLOYD: Then your Honour the presiding judge has raised an issue as to construction about, in effect, raising the issue as to the impact that an Extradition Treaty might have, and how it should be construed in terms of ambiguity having regard to the impact upon liberty. We say the Treaty is a treaty between States. It has no direct impact upon liberty, although obviously consequentially, it can. If there were two constructions of the Treaty and one of them was inconsistent with the international obligations of one or other party under the ICCPR or some such thing, we entirely accept that the Court would appropriately say why we should construe it consistently with international obligations, including international obligations relating only to international humanitarian law. We say that treaties such as the ICCPR are designed to prevent depravation of liberty without lawful authority. We say this Treaty gives lawful authority, so that that does not inform relevantly any construction issue of an Extradition Treaty of this kind.

My friend, in his submissions ‑ as I understood my friend’s submissions, said that Article 2.2 relates to 2.1. That seems to be an abandonment of Justice Besanko’s reasoning who saw it as relating to 2.5 and 2.3 and 2.4. It may or may not also be an abandonment of Justice Jessup’s reasons, but I note that it is actually an embracing Justice North’s reasoning who took that view at paragraphs 20 to 25 of his Honour’s reasons, appeal book pages 496 and 497, his Honour saw 2.2 as informing 2.1, but then saw them, in effect, both being picked up into 2.5 in the notion of the offence in relation to which the extradition is sought. His Honour saw that as being an offence of the kind that 2.1 and 2.2 are informing, which got to the same position that we got to in any event. Your Honour Justice Crennan made some observations about Article 15.1 and 15.2 of the ICCPR. In relation to Article 15.1, it provides that:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.

So, if an offence was, say, a war crime under international law but not under domestic law, it is entirely consistent with the person subsequently for there to be retrospective national law, and then prosecute them for the war crime so long as the international law provision applied at the time. In relation to Article 15.2, this is not a war crimes exception. It says:

Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Now, “the general principles of law recognised by the community of nations” means laws generally adopted so laws against murder, rape, whatever, all the normal array of criminal laws and so, in such a case, even if you were being prosecuted under a new offence for a law of a kind which finds itself within the general principles of law recognised by the community of nations that allows for retrospectivity. So we say that that is the construction of that provision which is entirely consistent – or at least, very largely consistent – with our approach.

In relation to Article 31.3, my friend says it can assist between constructions otherwise available but it is not, I think, a starting point. We say that a construction taken by my clients and by Hungary – even it is not the respondent’s preferred construction – it is a construction which at least one judge of the court below thought was available so it is an available construction. It is also a construction that two nations have independently adopted. So as long as it is available then 31.3, we say, is available to us to assist as between those two, even on my friend’s view. We, in any event, say that one can look at the state practice and agreement at an earlier stage to identify other possible constructions in any event, but even on my friend’s construction we say that is enough.

HEYDON J: Just going back, you do not say that Article 15.1 of the ICCPR positively supports your case, do you? You are not arguing what happened in November 1944 ‑ ‑ ‑

MR LLOYD: We are not saying that there was an international law obligation which allowed it to be done. Well, it may well be that there was an international one but that is not how we have put the case.

HEYDON J: Which defendant at Nuremberg was punished for a crime against a German citizen?

MR LLOYD: I am sorry, your Honour?

HEYDON J: Was any defendant at Nuremberg or Tokyo punished for a crime against a German or a Japanese citizen?

MR LLOYD: I do not know, but it is possible that they were in relation to German Jews, I would suspect, but I do not know.

CRENNAN J: Just in passing only, at page 192 at about point 5 of the page there is a reference – it is rather hard to read but in terms of the Acts corresponding to:

action that had been made punishable criminal offences earlier. Some of them were covered by the provisions of Act V of 1878 on the Criminal Code.

I take it that is a reference to murder –

Some other acts were covered by Sections 113 to 119 of Act II of 1930 on the Military Criminal Code, which acts were covered by International treaties related to The Geneva and The Hague Conventions on the laws of war, and were promulgated by Acts prior to World War I and World War II.

But your point, I take it, in answer to Justice Heydon is you are not making that any part of your case.

MR LLOYD: Yes, I mean, it may well be that it was, in fact ‑ ‑ ‑

CRENNAN J: You are referring, as you put it, as I apprehend it, that you are relying on the general principles of law recognised by nations as distinct from customary international law or treaties of the kind that are referred to at that part of the appeal book.

MR LLOYD: I think Hungary would say that they were entitled to pass a retrospective law in 1945 because it was consistent with previous international law and consistent with the ICCPR. That is really all I wanted to say about 15.1. So that to that extent it is not like they are in breach of the ICCPR, not that this Court is being asked to rule on whether Hungary is in breach of anything anyway, but it is just to the extent to which my friend relies upon Article 15 as being somehow adverse to our construction, we just say it is not adverse to our construction and that 15.2 is not really an exception, nor of the kind we would suggest that because we did not have something like 15.2 that informs the construction of Article 2.5(a).

We just say it is another convention that existed in a multilateral way which is doing different things to what our convention does and ours is consistent with the underlying policy of it, but the fact that we have different language is not and should not have been a basis for construing it in one way. I should say, to be fair, the decisions of the judges in the majority in the court below did not rely upon that, whereas the decision of Justice McKerracher at first instance gave significant weight to the fact that there was not so‑called an exception of that kind, which ‑ ‑ ‑

CRENNAN J: In (a)?

MR LLOYD: In (a), which I infer was impliedly rejected by the majority judges in the court below who did not reason in that way. My friend at one point talked about the rights of individuals. We make the simple point that a person does not have a right to not be extradited, and to that extent the Extradition Act does not interfere with any relevant right. My friend says we need to prove the practices or agreements. We say in the material that I have taken amply proves the views of both of the contracting states. May it please the Court, they are our submissions.

FRENCH CJ: Yes, thank you, Mr Lloyd. The Court will reserve its decision. The Court adjourns until 9.45 tomorrow morning for pronouncement of orders.

AT 3.47 PM THE MATTER WAS ADJOURNED

[2012] HCATrans 82

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