O'Connor v Zentai - [2011] FCAFC 102

FEDERAL COURT OF AUSTRALIA
O’Connor v Zentai [2011] FCAFC 102

Citation: O’Connor v Zentai [2011] FCAFC 102

Appeal from: Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385

Parties: THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL and THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON v CHARLES ZENTAI, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON

File number: WAD 1 of 2011

Judges: NORTH, BESANKO AND JESSUP JJ

Date of judgment: 16 August 2011

Corrigenda: 1 November 2011
24 February 2012

Catchwords:
EXTRADITION – Legislation providing for staged process of determinations by different functionaries – Ultimate decision by Minister whether person to be surrendered for extradition – Whether Minister obliged to re-consider a circumstance previously determined – Whether person was “accused” of an offence in Requesting State or merely wanted for questioning or investigation – Relevance to power to order surrender.

EXTRADITION – Construction of international treaty – Treaty requirement that offence in relation to which extradition sought be an offence in Requesting State at time of relevant acts and omissions – Whether requirement satisfied if those acts or omissions constituted an offence, whether or not that in relation to which extradition sought.

EXTRADITION – Legislation providing separate categorical and discretionary bases for refusing surrender of person for prosecution in other State – General discretion also reposed in decision-maker – Whether separate bases to be considered individually or in combination – Effect of general discretion.

ADMINISTRATIVE LAW – Legislation specifying circumstances in which Minister must, or may, refuse request for extradition, and providing also for general discretion – No obligation to give reasons – Minister in receipt of lengthy advice – Whether advice represented Minister’s reasons – Whether Minister failed to take account of considerations of which he was bound to take account – Whether trial Judge determined matters which were for the Minister – Whether Minister’s decision so unreasonable that no reasonable Minister would have made it.

ADMINISTRATIVE LAW – No express statutory requirement to give reasons – Whether obligation to give reasons to be implied.

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Extradition Act 1988 (Cth)
Extradition (Republic of Hungary) Regulations 1997 (Cth)
Judiciary Act 1903 (Cth)

Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Craig v South Australia (1995) 184 CLR 163
Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer (1995) 185 CLR 528
Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416
Foster v Minister for Customs and Justice
(2000) 200 CLR 442
Government of Belgium v Postlethwaite [1988] 1 AC 924
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
In re Ismail [1999] 1 AC 320
Khanv Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Toohey; Ex Parte Meneling Station Pty Ltd
(1982) 158 CLR 327
Rey v Government of Switzerland [1999] 1 AC 54
R (Al-Fawwaz) v Governor of Brixton Prison
[2002] 1 AC 556
Saville v Healthcare Complaints Commission
[2006] NSWCA 298
Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
TheCommonwealth v Tasmania [1983] 158 CLR 1
Vasiljkovic v Commonwealth (2006) 227 CLR 614
Zentai v Republic of Hungary (2008) 234 CLR 599
Zentai v Republic of Hungary (2009) 180 FCR 225

Date of hearing: 16 - 17 May 2011

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 217

Counsel for the Appellants: Mr S Lloyd SC with Ms H Younan

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the Respondents: Mr M McCusker QC with Dr V Priskich and Dr P Johnston

Solicitor for the Respondents: Fiocco’s Lawyers

FEDERAL COURT OF AUSTRALIA
O’Connor v Zentai [2011] FCAFC 102
CORRIGENDUM

In paragraph 60 of the Reasons for Judgment of Justice Besanko, in the first sentence, the reference to ‘Art 5(2)(a)’ should read ‘Art 2(5)(a)’.
In paragraph 61 of the Reasons for Judgment of Justice Besanko, in the first and second sentences, the reference to ‘Art 5(2)(a)’ should read ‘Art 2(5)(a)’.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:
Dated: 2 November 2011

FEDERAL COURT OF AUSTRALIA
O’Connor v Zentai [2011] FCAFC 102
CORRIGENDUM

In para 214 of the reasons of Jessup J given on 16 August 2011, delete the words “evidentiary trial” and insert the words “evidentiary trail”.

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup.
Associate:
Dated: 24 February 2012

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 1 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS
First Appellant

COMMONWEALTH ATTORNEY-GENERAL
Second Appellant

THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
Third Appellant

AND:
CHARLES ZENTAI
First Respondent

BARBARA LANE
Second Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Third Respondent

JUDGES:

NORTH, BESANKO AND JESSUP JJ

DATE OF ORDER:

16 AUGUST 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The appeal be allowed in part.
2.Orders 2A and 3 made by the primary Judge on 10 December 2010 be set aside.
3.Order 4 made by the primary Judge on 10 December 2010 be varied by omitting all words and punctuation after “him” and by substituting therefor the following:
to determine, according to law, whether the applicant is to be surrendered to the Republic of Hungary in relation to the offence of war crime referred to in the extradition request made by the Republic of Hungary in its letter dated 23 March 2005.

4.The appeal otherwise be dismissed.
5.The parties have leave to file and serve written submissions on the question of costs in accordance with the following timetable:
(a) within 14 days – any party who seeks a costs order against another party;
(b)within a further 14 days – a party against whom a costs order has been sought, by way of response to the submissions filed and served under (a); and
(c)within a further 7 days – a party who claimed costs under (a) and whose submission in that behalf was the subject of a response under (b), by way of reply to that response.

6.For a period of 28 days, or should an application be made to the High Court for special leave to appeal, for a period of 49 days:
6.1the order set out in paragraph 4 of the orders made by McKerracher J on 10 December 2010 in Federal Court proceeding No. WAD 220 of 2009, as varied by this court, be stayed; and
6.2the orders made by McKerracher J on 16 December 2009 in Federal Court proceeding No. WAD 220 of 2009 whereby:
(a)the warrant issued by the second respondent, a Magistrate of the State of Western Australia, dated 20 August 2008 pursuant to subsection 19(9) of the Extradition Act 1988 (Cth), committing the first respondent to imprisonment in Hakea Prison, Canning Vale, Western Australia was stayed until further order of the Court;
(b)the first respondent was admitted to bail upon the conditions set out in Schedule 1 to the order,
shall remain in force.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 1 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS
First Appellant

COMMONWEALTH ATTORNEY-GENERAL
Second Appellant

THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
Third Appellant

AND:
CHARLES ZENTAI
First Respondent

BARBARA LANE
Second Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Third Respondent

JUDGES:

NORTH, BESANKO AND JESSUP JJ

DATE:

16 AUGUST 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
NORTH J

I agree with the reasons for judgment of Jessup J and the conclusions he reaches on the grounds of appeal and the notices of contention save for the reasons and conclusions concerning ground 4 of the original application. I would reject ground 4 and consequently would allow the appeal.
Jessup J has set out the relevant facts, the statutory and treaty provisions, the reasons of the primary judge and the contentions of the parties on the appeal. It is not necessary to repeat that material except for the purpose of ease of reading these reasons, and for the purpose of emphasis in some instances.
THE CONSTRUCTION ISSUE
Ground 4 raises an issue of construction of Art 2.5(a) of the Treaty on Extradition Between Australia and the Republic of Hungary (the Treaty) which provides:
5.Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a)it was an offence in the Requesting State at the time of the acts or omissions constituting the offence;
The appellant contends that the proviso in Art 2.5(a) requires that the conduct constituting the offence for which extradition is sought must have constituted an offence in Hungary at the time when the acts were done.
The first respondent, on the other hand, contends that Art 2.5(a) requires that the very offence in respect of which extradition is sought must have been an offence in Hungary at the time when the acts were done.
The wrongful conduct alleged against the first respondent occurred in 1944. It is alleged that, as a member of the Hungarian Royal Army, the first respondent captured a young Jewish man, Peter Balazs. It is said that he dragged Peter Balazs back to the barracks where he, Captain Mader and First Lieutenant Nagy assaulted Peter Balazs. Peter Balazs died of his injuries. Then it is alleged that the first respondent, Mader and Nagy dumped the body in the Danube River.
The war crimes offence for which Hungary seeks the extradition of the first respondent was introduced in 1945, that is to say, after the alleged criminal conduct of the first respondent.
However, under Hungarian law at the time when the alleged conduct occurred, it would have constituted the offence of murder under Art 278 of the Hungarian Criminal Code.
THE PRINCIPLES OF CONSTRUCTION OF EXTRADITION TREATIES
The principles which govern the construction of treaties derive from the Vienna Convention on the Law of Treaties (the Vienna Convention) and from the common law.
Article 31(1) of the Vienna Convention provides that a treaty should be interpreted in good faith and that the ordinary meaning is to be given to the terms of the treaty in their context and in the light of the object and purpose of the treaty.
Extradition treaties are 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. Thus, extradition treaties should be accorded a broad and general construction so far as the text permits in order to facilitate extradition: Government of Belgium v Postlethwaite [1988] 1 AC 924 (Postlethwaite); In re Ismail [1999] 1 AC 320, 326-327; Rey v Government of Switzerland [1999] 1 AC 54; R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556.
In Postlethwaite Lord Bridge said at 947 in relation to the interpretation of extradition treaties:
[I]t must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose.
In TheCommonwealth v Tasmania [1983] 158 CLR 1 Deane J said at 261:
International agreements are commonly “not expressed with the precision of formal domestic documents as in English law”. The reasons for this include the different importance attributed to the strict text of agreements under different systems of law, the fact that such agreements are ordinarily “the result of compromise reached at the conference table” and the need to accommodate structural differences in official languages: see Wynes, Legislative, Executive and Judicial Powers in Australia, 5th ed. (1979), p. 299.
There is something curious about the debate concerning the meaning of Art 2.5(a) in this case. The Treaty is an agreement between Australia and Hungary. These contracting parties agree on the construction of their agreement which holds that the circumstances of the first respondent fall within the terms of the Treaty. Article 31(3)(a) of the Vienna Convention provides that any subsequent agreement between the parties regarding the interpretation of the Treaty or the application of its provisions shall be taken into account, together with the context. The first respondent, who was not a party to the agreement, is thus forced to contend that those who made the agreement used words which bear a meaning which is the opposite of the meaning which the parties intended.
Whilst still considering the general approach to the construction of the Treaty, it should be noted the Treaty was concluded in both English and Hungarian, “both texts being equally authentic”. The Hungarian text was not placed before the Court and no argument was raised which depended on the Hungarian version of the Treaty. However, the fact that the Treaty is equally authentic in both languages underscores the need to avoid a construction which is overly literal and to give due recognition to the extradition context and to the object and purpose of the Treaty. What follows seeks to establish the ordinary meaning of the words of the Treaty in the context and by reference to the object and purpose of the Treaty.
THE TERMS OF THE TREATY
Article 1 establishes the central obligation of the parties to the Treaty, namely, the obligation to extradite a person from their territory. The obligation arises when that person is wanted for prosecution or has been convicted of “an extraditable offence against the law of the other Contracting State”.
Art 2.1 and Art 2.2 provide:
ARTICLE 2
EXTRADITABLE OFFENCES
1.For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2.For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a)it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b)the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
Article 2.1 has two related components. Its central concept is that extraditable offences are offences against the law of both Contracting States. Then it confines extraditable offences to those which attract a minimum specified level of punishment. From the outset it is made clear by Art 2.1 that the way in which an offence is described in either of the Contracting States is not material. Article 2.1 defines extraditable offences as offences “however described”.
Article 2.2 explains how it is to be determined whether an offence is an offence against the law of both Contracting States. This is the role of the opening words, “For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States.” Article 2.2(a) then provides that it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology. Article 2.2(b) provides that the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
There is thus an obvious and express linkage between Art 2.1 and Art 2.2. The concept of an offence against the law of both Contracting States is a concept introduced by Art 2.1. Article 2.2 states that it has the purpose of identifying those characteristics of the laws of each of the Contracting States which qualify them as laws of both of the Contracting States. Further, Article 2.2(a) has the effect of amplifying the reference in Art 2.1 that the extraditable offences are offences “however described” under the laws of both Contracting States.
Articles 2.1 and Art 2.2 implement the policy of dual criminality in this Treaty. That is to say, those Articles only oblige the Contracting States to extradite persons whose alleged conduct is against the laws of both countries.
But Art 2.1 and Art 2.2 have a further purpose. Article 2.1 provides a definition of extraditable offences, “For the purposes of this Treaty … ”. By reason of the linkage of Art 2.2 with Art 2.1, the provisions of Art 2.1 are part of the definition of extraditable offence for the purpose of the Treaty. Article 2.1 and Art 2.2 together define generally for the purposes of the Treaty what constitutes an extraditable offence. In so doing they address the characteristics of the laws of each of the Contracting States.
It is against that setting that the ordinary meaning of Art 2.5 must be considered. That Article is concerned with whether there is any limitation on the time after the commission of the offence when extradition might be granted. The starting point of Art 2.5 is 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. That general position is then confined by a proviso which requires reference to the state of the law in the Requesting State at the time of the alleged conduct. The proviso is obviously concerned to implement the principle that a person should not be subject to criminal liability unless the conduct was unlawful where and when it was done.
The phrase “the offence in relation to which extradition is sought” in the opening words of Article 2.5 is a reference to the extraditable offence under the law of the Requesting State. As Art 2.1 provides for a definition of extraditable offence for the purposes of the Treaty, the definition in Article 2.1 is applicable to the interpretation of the meaning of the offence referred to in the opening words of Art 2.5.

As explained earlier, there is a linkage between Art 2.1 and Art 2.2. Article 2.2(b) requires that the totality of the acts and omissions of the person whose extradition is sought shall be taken into account. Applying this provision to the construction of Art 2.5 means that the reference to “the offence in relation to which extradition is sought” includes a reference to the acts and omissions which constitute the offence for which extradition is sought. It then follows that the reference to ‘it’ in the proviso also includes a reference to the acts and omissions which constitute the offence. This is the ordinary meaning of the words of Art 2.5 in their context.
Applied to the circumstances of the present case this construction would ask whether the acts which constitute the war crime offence alleged against the first respondent were acts made criminal under the law applicable in Hungary when the acts were committed. The acts alleged to have been committed by the first respondent in 1944 constituted the crime of murder under Hungarian law. On this construction, the proviso to Art 2.5(a) was satisfied and there is no time limit on the extradition of the first respondent.
The object and purpose of the Treaty is to ensure that people are called to account for their wrong doing. The text of the Treaty construed or proposed by the appellant supports this objective. The construction advocated by the first respondent would not advance that objective.
The construction proposed by the first respondent would mean that the offence for which extradition is sought must have existed in terms when the acts were done. On this view, it is immaterial that another offence existed at the time which made that conduct criminal.
This construction elevates form over substance. It is inconsistent with the objective of the Treaty. For instance, in relation to the dual criminality requirement, formal correspondence between the offences in both Contracting States is not required provided the conduct in question is criminalised in both countries. There is no reason in principle why the Treaty would adopt a different approach to the issue of the time limitation on extradition.
Indeed, if Art 2.1 and Art 2.2 do not apply to the interpretation of Art 2.5, there is a strong argument that the Treaty positively excludes those considerations from the interpretation of Art 2.5. Then, the provision in Art 2.2(a) that differing descriptions of offences do not matter, and the absence of that provision in Art 2.5, would mean that such differences do matter in relation to Art 2.5. And when considering the question of time limitation for the grant of extradition, the Court would be concerned with comparing descriptions of offences for identicality rather than assessing whether the acts committed fell within the current offence for which extradition is sought.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Associate:
Dated: 16 August 2011

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 1 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS
First Appellant

COMMONWEALTH ATTORNEY-GENERAL
Second Appellant

THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
Third Appellant

AND:
CHARLES ZENTAI
First Respondent

BARBARA LANE
Second Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Third Respondent

JUDGES:

NORTH, BESANKO AND JESSUP JJ

DATE:

16 AUGUST 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
BESANKO J

This is an appeal from orders made by a judge of this Court on 15 November 2010. The primary judge published two sets of reasons for those orders: his principal reasons are contained in Zentai v Honourable Brendan O’Connor (No 3) (2010) 187 FCR 495, and the reasons relating to particular orders which he made including orders as to costs are contained in Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385.
I have had the advantage of reading the reasons for judgment of Jessup J. I agree with his Honour’s reasons and conclusions with respect to grounds 5, 5A, 6, 9, 10, 11 and 12, and have nothing further to add. I agree with his Honour’s conclusions with respect to grounds 3 and 4, but wish to express my own reasons for reaching those conclusions.
GROUND 3
Under subsection 22(2) of the Extradition Act 1988 (Cth) (“the Act”) the Attorney-General or, in this case his delegate, the first appellant, was required to determine, after the first respondent became an eligible person, whether he was to be surrendered in relation to a qualifying extradition offence.
The expressions “eligible person” and “qualifying extradition offence” are defined in subsection 22(1). Those definitions in turn refer to earlier sections in the Act. Subsection 22(3) sets out a number of conditions which must be met before the decision‑maker under subsection 22(2) can determine that an eligible person is to be surrendered in relation to a qualifying extradition offence.
Subsections 22(1), (2) and (3) provide as follows:
(1) In this section:
eligible person means a person who has been committed to prison:
(a) by order of a magistrate made under section 18; or
(b)by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.
qualifying extradition offence, in relation to an eligible person, means any extradition offence:
(a)if paragraph (a) of the definition of eligible person applies—in relation to which the person consented in accordance with section 18; or
(b)if paragraph (b) of the definition of eligible person applies— in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).
(2)The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3)For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
(a)the Attorney-General is satisfied that there is no extradition objection in relation to the offence;
(b)the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;
(c)where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable;
(i)the person will not be tried for the offence;
(ii)if the person is tried for the offence, the death penalty will not be imposed on the person;
(iii)if the death penalty is imposed on the person, it will not be carried out;
(d)the extradition country concerned has given a specialty assurance in relation to the person;
(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:
(i)surrender of the person in relation to the offence shall be refused; or
(ii)surrender of the person in relation to the offence may be refused;
in certain circumstances—the Attorney-General is satisfied:
(iii)where subparagraph (i) applies—that the circumstances do not exist; or
(iv)where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f)the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
Regulations in relation to the Republic of Hungary have been made under s 11 of the Act. Those regulations are the Extradition (Republic of Hungary) Regulations 1997 and they commenced on 25 April 1997. The Regulations provide that the Republic of Hungary is declared to be an extradition country (reg 3) and that the Act applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (reg 4), a copy of which is set out in the Schedule (“the Treaty”).
Subsections 11(1), (1A), (1B) and (1C) of the Act provide as follows:
(1) The regulations may:
(a)state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b)make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
(1A)The regulations may provide that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
(1B)Regulations may be made under both subsections (1) and (1A) in relation to a specified extradition country.
(1C)For the purposes of subsections (1) and (1A), the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.
Section 6 of the Act contains a definition of “extraditable person”. For the purposes of this case it is sufficient to note that the definition includes a requirement that the person is “accused” of having committed the offence in respect of which the warrant for his arrest is in force.
A magistrate considering the issue of a warrant for the arrest of a person must be satisfied that the person is an extraditable person (s 12) as must the Attorney-General in deciding whether to give a notice under s 16. By contrast, a magistrate determining eligibility for surrender under s 19 need not address whether the person is an extraditable person (Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (“Kainhofer”)). Nor is that matter expressly referred to in s 22 of the Act.
The nature and provenance of Attachment C is described in the reasons for judgment of Jessup J (at [83]). The author of the document addresses the general discretion to surrender in s 22(3)(f) of the Act. It was in the context of that discretion that the author considered the representations made to the decision-maker by the first respondent. One of those representations was to the effect that the first respondent’s extradition was sought for the purposes of his interrogation about possible involvement in the offence rather than for prosecution. That representation was based for the most part on the information contained in a letter from the leader of the Military Panel in Hungary dated 17 March 2009. Clearly, the information in that letter was provided after the determinations made under ss 12, 16 and 19 respectively. The author of Attachment C sets out the arguments of the first respondent and the response of the Republic of Hungary, and the comments of the Department, which comments include references to the reasons for judgment of Gummow J in Kainhofer concerning the meaning of “accused” within the definition of extraditable person. The author of Attachment C provides advice to the effect that it is open to the Minister to be satisfied that the first respondent is a person who is accused within s 6 of the Act, and that therefore the first respondent’s allegation should not be afforded such weight in the exercise of the decision-maker’s discretion as to refuse surrender.
The primary judge considered whether the first respondent was accused of an offence rather than wanted for interrogation. He noted that the information that supported the first respondent’s argument that he was wanted only for interrogation came to light in 2009 and that this was after the Minister, as delegate of the Attorney-General, had decided to give a notice under s 16 of the Act. He noted the provisions of the Act and Treaty which were relevant to the question of whether the first respondent was a person who is accused (Act s 6; Treaty Arts 1 and 5 (2)(a)). The primary judge appeared to reject the argument that he could determine that the earlier decisions under ss 16 and 19 were nullities because the first respondent was not a person who is accused within s 19(2) of the Act.
The primary judge found that the first respondent was not “accused” for the purposes of the Act. He held that the Minister’s determination that the first respondent be surrendered was a nullity. As I read the primary judge’s reasons he did so on two alternative grounds, the first going to the Minister’s power and the second going to his discretion.
As to the first ground, the primary judge held that because the first respondent as a matter of fact was “not ever capable” of being found an “eligible person” under s 19(2) of the Act, the Minister had no power to make a determination for his surrender for extradition under s 22 of the Act. Having regard to the terms of subsections 19(1) and (2) it seems to me that it is implicit in the primary judge’s reasoning that he held that the first respondent was not an eligible person within s 19(2) because he was not capable of being an extraditable person within s 16 of the Act.
In my respectful opinion, in adopting this approach the primary judge erred. It is not a condition of the decision-maker’s power in subsection 22(2) that he or she consider and determine matters which were relevant at earlier stages of the process which ultimately leads to the surrender or release of a person. It is not a condition of the power in subsection 22(2) that the decision-maker under that subsection be satisfied of the matters which condition the exercise of the power in s 16. The power in subsection 22(2) is not dependent on a jurisdictional fact that the relevant person be an accused person for the purposes of the Act. The conditions for the exercise of the power in subsection 22(2) are set out in the section itself and, in particular, subsections 22(2) and (3) and they do not include whether the first respondent was an accused person for the purposes of the Act. In my respectful opinion, the primary judge erred in deciding that it was necessary or open to him to decide whether as a matter of fact the first respondent was an accused person for the purposes of the Act. That was not a jurisdictional fact for the purposes of the power in subsection 22(2).
As to the second ground relied on by the primary judge, he held that the Minister’s discretion miscarried. He considered that a requirement that the Minister consider any new material which was relevant to whether a person was an extraditable person within s 6 of the Act should be implied into s 22. He referred to the decision in Minister for Aboriginal Affairs v Peko‑Wallsend Limited (1986) 162 CLR 24 and found that the Minister ignored the new material, that is, the material which came to light in 2009. He said that the Minister approved the surrender of the first respondent despite actual or constructive knowledge that he was not an “extraditable person” and in doing so defeated the purpose of the Act.
The primary judge was clearly aware that Attachment C contained details of the information which came to light in 2009. It would seem then that to conclude that the Minister ignored the information he must have considered that the information was so compelling that the Minister’s decision to surrender the first respondent could not have been made unless the Minister ignored the information. Indeed the primary judge had earlier made a finding of fact that the first respondent was not “accused” for the purposes of the Act.
In my respectful opinion, in adopting this approach the primary judge erred. Two distinct matters need to be identified, namely, an obligation to consider a relevant matter when making a decision and an obligation to consider the most current information available to the decision-maker with respect to a relevant matter.
In my opinion, there is nothing in the subject-matter, scope or purpose of the Act which supports the conclusion that the decision-maker under subsection 22(2) is bound to consider whether the eligible person as that expression is defined in subsection 22(1) is an extraditable person within s 6 of the Act. In fact, as the authorities show, the structure of the Act supports the conclusion that the decision-maker is not required to do that. The obligation to consider the most current information available to the decision-maker only attaches to a matter which the decision-maker is bound to consider. The primary judge erred in concluding that the Minister had failed to take into account a relevant consideration.
However, that is not the end of the matter. The decision-maker under subsection 22(2) has a general discretion under subparagraph 22(3)(f) to determine whether surrender should take place and the decision-maker cannot exercise that general discretion in a way which gives rise to Wednesbury unreasonableness. Depending on the circumstances of a particular case that may mean that a failure to consider, or consider properly, new information which is relevant to whether surrender should take place could lead to the invalidity of the decision. However, that result would follow because there was Wednesbury unreasonableness not because of a failure to consider a matter.
I do not need to explore these issues of the proper approach any further because I am satisfied that based on the information in Attachment C it would be open to a decision-maker to conclude that the first respondent was an accused person for the purposes of the Act. In those circumstances there can be no Wednesbury unreasonableness. If, contrary to my view, the matter should be analysed in terms of an obligation to take into account a relevant matter, there is nothing to suggest that the Minister did not consider the information which came to light in 2009 and reach a view that the first respondent was an accused person within the provisions of the Act. As I have said, that was a view that was reasonably open to him.
In Kainhofer, Gummow J discussed in some detail the question of when a person is a person who is accused. His Honour considered that there is a distinction between a person wanted for prosecution on the one hand and a person against whom there were on foot “merely inquiries preliminary to the institution of a prosecution”, or who was subject to inquiries “as to whether a prosecution should be instituted” on the other (at 563). His Honour said (at 564):
The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution.
In this case the information which came to light in 2009 included a statement that there was at present no criminal proceeding against the first respondent before the Military Panel of the Metropolitan Court and that following presentation of the first respondent to the Budapest Military Prosecutor’s Office, the Military Prosecutor’s Office will decide on the basis of the available evidence whether or not to bring a charge against him.

On the other hand, the Minister had before him the warrant for the arrest of the first respondent issued by the Republic of Hungary and that warrant referred to a grave suspicion against the first respondent. Furthermore, the Minister had evidence from the Republic of Hungary that a grave suspicion was the same as a well-founded suspicion and that under continental law, criminal proceedings are started when a well-founded suspicion (probable cause) of committing an offence arises. The cases make it clear that in construing terms which relate to the criminal procedure of other countries, extradition statutes and treaties are to be given a broad and generous construction and one that involves a reasonable cosmopolitan interpretation (Kainhofer at 533 per Brennan CJ, Dawson and McHugh JJ; at 564 per Gummow J; Re Ismail [1999] 1 AC 320; Asztaslos v Szekszard City Court, Hungary [2011] 1 WLR 252 at 263-266 [37]-[49].
In light of the material to which I have referred and to which Jessup J refers (at [92]-[94]) it was open to the Minister to reach the conclusion that the new information did not alter the first respondent’s status as a person who is accused for the purposes of the Act.
The primary judge should have rejected Ground 3 of the Grounds of Review and the orders he made cannot be sustained on this ground. In the circumstances I do not need to consider in this context whether the orders the primary judge made and, in particular, the declaration in paragraph 2A, could be sustained even if the appellants had not been successful with respect to this ground.
GROUND 4
Article 2 of the Treaty is entitled “Extraditable Offences” and is in the following terms:
ARTICLE 2
EXTRADITABLE OFFENCES
1.For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2.For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a)it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b)the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
3.Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, foreign exchange control or other revenue matter extradition may not be refused on the ground that the law of the Requested State does not impose the same kind of tax or duty or does not contain a tax, duty, customs, or exchange regulation of the same kind as the law of the Requesting State.
4.Where the offence has been committed outside the territory of the Requesting State extradition shall be granted where the law of the Requested State provides for the punishment of an offence committed outside its territory in similar circumstances. Where the law of the Requested State does not so provide the Requested State may, in its discretion, grant extradition.
5.Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a)it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and
(b)the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.
The first respondent put to the Minister that the offence for which his extradition was sought was not an “extraditable offence” because it did not meet the requirements of Art 2(5)(a) of the Treaty. The offence allegedly occurred on 8 November 1944 and the law under which it is intended to prosecute the first respondent was originally created in 1945 under section 11 paragraph 5 of Law-Decree No. 81/1945 (“1945 Decree”). The 1945 Decree operates retrospectively so that the alleged conduct of the first respondent occurring at an earlier time is punishable under the Decree. The first respondent put to the Minister that the offence for which his extradition is sought was not an offence in the Republic of Hungary at the time of the acts or omissions constituting the offence.
The first respondent’s submission is dealt with in Attachment C. The author of that document notes that the Republic of Hungary asserted that the first respondent’s conduct would have constituted the offence of “murder” in Hungary at the time of the alleged conduct under Art 278 of Act V of 1878 of the Hungarian Criminal Code and would therefore have been criminal at the time the conduct allegedly occurred. The author of Attachment C expresses the view that as long as the conduct constituted an offence at the time it was carried out art 2(5)(a) did not preclude extradition.
The primary judge construed Art 2(5)(a) as requiring that the actual offence for which extradition was sought be an offence at the time of the act or omissions constituting the offence. The primary judge said that that was not the case in the matter before the Minister and therefore it was not open to him in the exercise of his s 22 discretion “to surrender for extradition a person when the offence of which the person was ‘suspected’ (not charged) did not exist at the relevant time”.
The first matter to be addressed is the source of the obligation on the decision‑maker under subsection 22(2) to consider whether the provisions of Art 5(2)(a) have been satisfied. The Full Court of this Court in Zentai v Republic of Hungary (2009) 180 FCR 225 at 231 [32] and 241 [76] suggested that there was such an obligation without identifying its precise source. The author of Attachment C put the matter between discussion of the mandatory grounds for surrender in Art 3(1) of the Treaty and discussion of the discretionary grounds for surrender in Art 3(2).
In my opinion the obligation to consider whether the provisions of Art 5(2)(a) of the Treaty are met arises by reason of the fact that the definition of extraditable offences is effectively part of the limitations, conditions, qualifications or exceptions in the Treaty which the decision-maker must consider under subsection 22(2)(e) of the Act. Furthermore, although there may be room for differences in result in applying the proper construction of Art 5(2)(a) to the facts, the proper construction itself is a question of law and an erroneous construction by the decision‑maker will result in a jurisdictional error. I reject the appellant’s contention that as long as the decision-maker adopts a construction reasonably open to him or her there is no jurisdictional error.
The proper construction of Art 2(5)(a) of the Treaty is not free of difficulty. If one considers only the text of Art 2(5)(a) then the text supports the first respondent’s construction because the pronoun “it” is a reference back to the expression “the offence in relation to which extradition is sought”. If one considers the text of Art 2(5) as a whole then again it seems to provide some support, albeit limited, for the first respondent’s construction. Article 2(5)(b) deals with the criminality of the conduct in the Requested State and the time at which that is to be determined. The fact that the paragraph uses the expression “the acts or omissions alleged” and that the same expression could have been used at the beginning of paragraph (a) if the intention of the parties to the Treaty was that suggested by the appellants, supports the first respondent’s construction.
The other provisions in Art 2 must also be considered. Article 2(1) deals with a particular feature that extraditable offences must bear and identifies a requirement which is also contained in the Act (s 5). I do not think the use of the words “however described” in Art 2(1) bears upon the proper interpretation of Art 2(5)(a). It is addressed to the particular matter in Art 2(1). Article 2(2), (3) and (4) relate to the double criminality requirement which finds expression in Art 2(5)(b). It mandates a broad and flexible approach to that requirement. The extent to which it mandates a different approach from that discussed by the High Court in Riley v The Commonwealth of Australia (1985) 159 CLR 1 may be debated, but the point is that it is not addressed to a comparison between an offence in the Requesting State at the time the acts or omissions were carried out and the offence for which the Requesting State seeks extradition. That, it seems to me, is quite a different matter. 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.
In interpreting the provisions of the Treaty I must have regard to the principles of interpretation applicable to treaties. The Vienna Convention on the Law of Treaties provides a general rule for the interpretation of treaties in Art 31 as follows:
1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a)any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b)any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3.There shall be taken into account, together with the context:
(a)any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b)any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c)any relevant rules of international law applicable in the relations between the parties.
4.A special meaning shall be given to a term if it is established that the parties so intended.
I refer also to Art 32 without setting it out.
In England it seems to be generally accepted that extradition treaties are to be given a broad and generous construction so far as the text permits it in order to facilitate extradition: In re Ismail [1999] 1 AC 320 at 327 per Lord Steyn.
The Court was not referred to any authority of the High Court which has adopted the approach taken by Lord Steyn. On the one hand, extradition does involve a deprivation of liberty and disruption of lives: Riley v The Commonwealth of Australia (1985) 159 CLR 1 at 15 per Deane J. On the other hand extradition does not involve a determination of guilt or innocence and is not part of the criminal justice system: s 3 of the Act; Vasiljkovic v The Commonwealth (2006) 227 CLR 614 at 629 [33]-[34] per Gleeson CJ. I am disposed to think that the approach suggested by Lord Steyn is no different from the purposive approach laid down in Arts 31 and 32 of the Vienna Convention. The approach laid down in Arts 31 and 32 is the approach I must take (The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 222-223 per Brennan J; Riley v The Commonwealth of Australia (1985) 159 CLR 1 at 15 per Deane J; Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349 per Dawson J; at 356-357 per McHugh J).
The Act contains a statement of objects (s 3) but they are expressed broadly and I do not think that they provide direct assistance in terms of the issue of construction raised in this case. The Treaty contains a statement in Art 1 of the “Obligation to Extradite” and it is in the following terms:
The Contracting States undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for prosecution by a competent authority for, or has been convicted of, an extraditable offence against the law of the other Contracting State.
I do not think this article supports a broader construction of Art 2(5)(a) because it is expressed to be “subject to the provisions of this Treaty” and because the undertaking is referred to in terms of an “extraditable offence” and that clearly directs attention to Art 2.
I have hesitated before rejecting the appellants’ construction of Art 2(5)(a) of the Treaty for two reasons. First, in a case such as the present I do not think that the appellants’ construction would be seen as frustrating the broad purposes of the Treaty or indeed as not advancing the broad purposes of the Treaty. Secondly, I do not think that there must be a precise identification between the offence in the Requesting State at the time of the acts or omissions and the offence for which extradition is sought. I would interpret the Treaty as allowing for minor variations such as changes in the name of the Act or Decree and changes so as to bring the language up to date. My approach means that there will be two tests, one a broader test which is applied when considering the double criminality requirement and a quite narrow test where consideration must be given to whether the requirement in Art 2(5)(a) is satisfied.
Despite these considerations I think the text of Art 2(5)(a) is sufficiently clear and that, subject to the minor qualification I have identified, extradition under the Treaty and the Act may only take place where the offence for which extradition is sought is the offence at the time the acts or omissions were carried out.
It follows then that the Minister applied an erroneous construction of the provisions of the Treaty and that that gave rise to a jurisdictional error. Furthermore, it seems to me that it can be said in this case that had the proper construction of Art 2(5)(a) been adopted the decision under subsection 22(2) would have been that the first respondent was not to be surrendered. That is because the offence for which extradition is sought, namely, war crime, was not an offence in the Republic of Hungary in November 1944.
With respect to the orders made by the primary judge, I agree with the conclusions of Jessup J concerning orders 2A, 3 and 4 and I agree with the orders his Honour proposes for the disposition of the appeal.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.
Associate:
Dated: 16 August 2011

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 1 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS
First Appellant

COMMONWEALTH ATTORNEY-GENERAL
Second Appellant

THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON
Third Appellant

AND:
CHARLES ZENTAI
First Respondent

BARBARA LANE
Second Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
Third Respondent

JUDGES:

NORTH, BESANKO AND JESSUP JJ

DATE:

16 AUGUST 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
JESSUP J

This is an appeal from orders made by a single Judge of the court on 10 December 2010, for reasons which his Honour gave both on 2 July 2010 and on the date of the orders. The proceeding at first instance arose out of a determination made on 12 November 2009 by the first appellant, the Minister for Home Affairs (“the Minister”), as delegate of the second appellant, the Attorney-General, that the first respondent, Charles Zentai (“the respondent”), be surrendered for extradition to the Republic of Hungary (“Hungary”) pursuant to s 22(2) of the Extradition Act 1988 (Cth) (“the Act”). The respondent challenged that determination under s 39B of the Judiciary Act 1903 (Cth). That challenge was successful, the primary Judge ultimately granting relief in the nature of certiorari in relation to the determination of 12 November 2009, making corresponding declarations, and requiring, by mandamus, the Minister to determine that the respondent not be surrendered to Hungary and to order the release of the respondent.
THE FACTS IN OUTLINE
In the Australian context, the circumstances relevant to the present appeal commenced with a letter dated 23 March 2005 from the Hungarian Ministry of Justice to the Attorney‑General seeking the extradition of the respondent from Australia to Hungary for the purpose of prosecution under an arrest warrant issued on 3 March 2005 by a Military Judge of the Military Division of the Budapest Metropolitan Court. The offence for which the respondent was wanted in Hungary was a “war crime” alleged to have been committed in 1944, and described by Hungary in the following terms:
… a war crime violating section 165 of Act IV of 1978 of the Hungarian Criminal Code in conjunction with section 11, paragraph 5 of Law-Decree No. 81/1945 (II.5) ME on People’s Jurisdiction enacted by Act VII of 1945, amended and complemented by Decree No. 1440/1945 (V.1.) ME (1 count).
The Hungarian arrest warrant, as translated into English, identified the war crime in question as follows:
A person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad.
As set out in the reasons of the primary Judge, the circumstances said to sustain the prosecution of the respondent were as follows:
1.[The respondent] was a soldier in the Hungarian Royal Army attached to a unit stationed at Budapest.
2.Whilst on patrol duty [the respondent] captured Mr Peter Balazs (a young man of Jewish origin).
3. [The respondent] dragged Mr Balazs back to the unit's army post.
4.[The respondent] and two other soldiers (Captain Mader and First Lieutenant Nagy) assaulted Mr Balazs over a number of hours. Mr Balazs died of his injuries.
5.[The respondent], Captain Mader and First Lieutenant Nagy weighted Mr Balazs' body and threw it into the Danube River.
On 8 July 2005, four events took place in consequence of the receipt of the extradition request from Hungary. First, a Magistrate issued a provisional warrant for the arrest of the respondent under s 12(1) of the Act, which provides as follows:
(1) Where:
(a)an application is made, in the statutory form, on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person; and
(b)the magistrate is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate shall issue a warrant, in the statutory form, for the arrest of the person.
Paragraph (b) of this subsection called up the definition of “extraditable person” in s 6 of the Act which, to the extent presently relevant, provides as follows:
Where:
(a) either:
(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act;
….
(b)the offence or any of the offences is an extradition offence in relation to the country; and
(c)the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.

Secondly, the respondent was arrested pursuant to the s 12 warrant and remanded on bail, subject to conditions, pursuant to s 15(2) of the Act.
Thirdly, the Attorney-General issued a notice under s 16 of the Act, subss (1) and (2) of which provide as follows:
(1)Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.
(2) The Attorney-General shall not give the notice:
(a) unless the Attorney-General is of the opinion:
(i)that the person is an extraditable person in relation to the extradition country; and
(ii)that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or
(b)if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.
Fourthly, proceedings were commenced in relation to the respondent under s 19 of the Act, subs (1) of which provides as follows:
(1) Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d)the magistrate considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
It does not appear what stage the s 19 proceedings had reached by 6 February 2006, but, on that day, the respondent commenced proceedings in this court challenging the validity of the functions conferred on State Magistrates under the Act. That challenge was ultimately taken to the High Court, where it was determined adversely to the respondent on 23 April 2008: Zentai v Republic of Hungary (2008) 234 CLR 599.
On 20 August 2008, the s 19 Magistrate determined that the respondent was eligible for surrender to Hungary, and committed the respondent to prison pursuant to s 19(9) of the Act, which provides as follows:
(9)Where, in the proceedings, the magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate shall:
(a)by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22 (5);
(b)inform the person that he or she may, within 15 days after the day on which the order in the warrant is made, seek a review of the order under subsection 21 (1); and
(c)record in writing the extradition offence or extradition offences in relation to which the magistrate has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.
On the same day, the respondent applied for a review of the s 19(9) order pursuant to s 21 of the Act. That review was heard and determined by a Judge of the court, and ultimately (on 8 October 2009) by the Full Court on appeal, adversely to the respondent: Zentai v Republic of Hungary (2009) 180 FCR 225.
The Magistrate’s order under s 19(9) of the Act triggered the operation of s 22, the provisions of which are central to the present appeal. To the extent relevant, those provisions are:
(1) In this section:
eligible person means a person who has been committed to prison:
(a) by order of a magistrate made under section 18; or
(b)by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.
qualifying extradition offence, in relation to an eligible person, means any extradition offence:
(a)if paragraph (a) of the definition of eligible person applies - in relation to which the person consented in accordance with section 18; or
(b)if paragraph (b) of the definition of eligible person applies - in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).
(2)The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3)For the purposes of subsection (2), 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:
(i)surrender of the person in relation to the offence shall be refused; or
(ii)surrender of the person in relation to the offence may be refused;
in certain circumstances – the Attorney-General is satisfied:
(iii)where subparagraph (i) applies – that the circumstances do not exist; or
(iv)where subparagraph (ii) applies – either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f)the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
As will be noted, the s 19(9) order made the respondent an “eligible person” as defined, and required the Attorney‑General to determine whether the respondent was to be surrendered to Hungary. In the present case, that task fell to the Minister, as delegate of the Attorney‑General.
On 6 November 2009, the (or a) First Assistant Secretary, International Crime Co-Operation Branch, of the Attorney‑General’s Department forwarded a written submission to the Minister in which it was recommended that he determine, under s 22(2) of the Act, that the respondent be surrendered to Hungary, and that he sign a warrant for the respondent’s arrest under s 23 of the Act. There were 12 attachments to that submission, seemingly covering everything that might be relevant under s 22. One of those, Attachment C (“Att C”) was a detailed departmental advice on the statutory criteria – both categorical and discretionary – that arose for consideration under s 22. In ways that will appear below, Att C played a significant part in the primary Judge’s resolution of the questions that came before him. In the absence of any reasons for the Minister’s determination which were available to the respondent, in a number of respects his Honour resorted to Att C as a kind of inferential facsimile of what the Minister’s reasons most probably were.
On 12 November 2009, the Minister determined that the respondent was to be surrendered to Hungary, pursuant to s 22 of the Act. This was done by circling the word “approved” as it appeared at the foot of the First Assistant Secretary’s submission. On the same day, the Minister (again acting as the delegate of the Attorney‑General) issued a warrant for the surrender of the respondent into the custody of Hungarian police officers, pursuant to s 23 of the Act, which provides:
Where the Attorney-General determines under subsection 22 (2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section.
THE PLACE OF THE TREATY IN THE SCHEME OF s 22
As appears from the extract from s 22 of the Act set out above, subs (3) thereof contemplates that the Act may apply in relation to a country “subject to a limitation, condition, qualification or exception” that either requires or permits the surrender of the person concerned in certain circumstances. Such an application of the Act would arise because of s 11, subs (1) of which provides as follows:
(1) The regulations may:
(a)state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b)make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
In relation to Hungary, there were regulations which made a statement of the kind contemplated by para (a) of this provision. They were the Extradition (Republic of Hungary) Regulations (“the regulations”), reg 4 of which provided:
4.The Extradition Act 1988 applies in relation to the Republic of Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary (a copy of which is set out in the Schedule).
The treaty referred to in reg 4 of the regulations was the Treaty on Extradition Between Australia and the Republic of Hungary (“the Treaty”), set out in the Schedule to the regulations. In the circumstances of the present case, the following provisions of the Treaty were relevant, or potentially relevant, because of the operation of s 22(3)(e) of the Act:
ARTICLE 1
The Contracting States undertake to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for prosecution by a competent authority for, or has been convicted of, an extraditable offence against the law of the other Contracting State.
ARTICLE 2
1.For the purposes of this Treaty, extraditable offences are offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Where the request for extradition relates to a person convicted of such an offence who is wanted for the enforcement of a sentence of imprisonment, extradition shall be granted only if a period of at least six months of such penalty remains to be served.
2.For the purpose of this Article in determining whether an offence is an offence against the law of both Contracting States:
(a)it shall not matter whether the laws of the Contracting States place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;
(b)the totality of the acts or omissions alleged against the person whose extradition is sought shall be taken into account and it shall not matter whether, under the laws of the Contracting States, the constituent elements of the offence differ.
….
5.Extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence in relation to which extradition is sought was committed, provided that:
(a)it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and
(b)the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.
ARTICLE 3
….
2. Extradition may be refused in any of the following circumstances:
(a)if the person whose extradition is sought is a national of the Requested State. Where the Requested State refuses to extradite a national of that State it shall, if the other State so requests and the laws of the Requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person in respect of all or any of the offences for which extradition has been sought may be taken;
(b)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;
…
(f)if the Requested State, while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case, including the age, health or other personal circumstances of the person whose extradition is sought, the extradition of that person would be unjust, oppressive, incompatible with humanitarian considerations or too severe a punishment.
THE RESPONDENT’S GROUNDS AT FIRST INSTANCE
On 4 December 2009, the respondent commenced the proceeding from which the present appeal arises. He sought certiorari, and corresponding declarations, with respect to the Attorney‑General’s notice of 8 July 2005 under s 16 of the Act, the Magistrate’s decision of 20 August 2008 under s 19 of the Act and the Minister’s determination of 12 November 2009 under s 22 of the Act. For the purpose of the challenge to the s 19 decision, the respondent joined the Magistrate to his proceeding, and she is now the second respondent in the present appeal. Also a respondent to the initiating proceeding, and joined as the third respondent to the present appeal, was the Western Australian Officer in Charge, Hakea Prison, but nothing further needs to be said in relation to this party.
The respondent’s case at first instance was based on 13 specific grounds, each of which was particularised in terms that were both factual and argumentative. The primary Judge’s reasons were organised around these grounds, and the parties’ cases on appeal have been likewise. It is convenient, then, to lay out the nature of the respondent’s case, and the content of his Honour’s reasons, by reference to the respondent’s grounds.
Omitting Grounds 7 and 8, which were decided adversely to the respondent below and as to which he makes no contention in the present appeal, the respondent’s grounds were as follows:
1.The Second Respondent, acting through his delegate, the Minister for Justice and Customs of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an “extraditable person”, and made a jurisdictional error, in deciding to issue, and issuing, pursuant to s.16 of the Act, a Notice of Receipt of Extradition Request (the s.16 Notice) on 8 July 2005.
Particulars
(a)According to information provided on 17 March 2009 by the leader of the Military Panel of the Budapest Municipal Court (“Military Panel”) and accepted as correct by the Hungarian Government, the extradition of the Applicant is only sought for the purposes of preliminary investigation about his involvement in the alleged war crime, and there is no indictment currently before the Panel charging him with the alleged offence.
(b)As the proceedings instituted in the Military Panel are essentially investigative and preliminary and not at a more advanced state involving the laying of any charge, the Applicant is not a person who is “accused” (within the meaning of s.6(a) of the Act) of having committed the alleged offence of war crime in relation to which the Republic of Hungary's request for extradition was made.
(c)The statutory requirement that an “extraditable person” be “accused” of a relevant extradition offence is not met by equating it with expressions such as “wanted for prosecution”, or being “suspected of committing” the relevant offence.
(d)The Applicant therefore is not and never was an “extraditable person” within the meaning of, and for the purposes of, the Act.
(e)As the Applicant was not an “extraditable person” when the Extradition Request was made by the Republic of Hungary to the Australian Government, the Second Respondent should not have acted upon the Extradition Request by issuing the s.16 Notice. To do so was beyond his statutory power.
(f) The s.16 Notice was therefore unlawful and void.
2.The order made on 20 August 2008 by the Third Respondent, after conducting eligibility proceedings under s.19 of the Act, pursuant to s.19(9) of the Act, committing the Applicant to imprisonment in Western Australia, was beyond jurisdiction, unlawful and void.
Particulars
(a)Eligibility proceedings under s.19 of the Act cannot be conducted unless, as required by s.19(1)(b) of the Act, the Attorney-General has directed “a notice under s.16(1)” to a magistrate.
(b)By reason of the matters particularised in the preceding Ground, the s.16 Notice directed to the Third Respondent on 8 July 2005 by the Second Respondent, purportedly pursuant to s.16(1) of the Act, was unlawful and of no legal effect.
(c)Therefore the Applicant should not have been found to be an “eligible person”, and the Third Respondent had no power or jurisdiction to conduct proceedings under s.19 of the Act, or to make the order, on 20 August 2008, pursuant to s.19(9) of the Act, committing the Applicant to prison.
3.The Minister (First Respondent) made an error of law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was capable of being surrendered under the Act, and made a jurisdictional error, in finding that the Applicant was an “eligible person” within the meaning of s 19(2) of the Act, and for the purposes of s 22 of the Act in relation to an extradition offence of war crime established by s 165 of the Hungarian Criminal Code Act IV of 1978 in conjunction with s 11 para 5 of Prime Minister's-Decree No 81/1945 (II.5) ME on the Peoples Jurisdiction enacted by Act VII of 1945 amended and complemented by Decree No 1440/1945 (V.1.) ME (“war crime”).
Particulars
(a)       The Applicant repeats Particular 1(a).
(b)       The Applicant repeats Particular 1(b).
(c)       The Applicant repeats Particular 1(c).
(d)       The Applicant repeats Particular 1(d).
(e)In apparently concluding that the Applicant satisfies the definition of an “extraditable person”, and hence “eligible person”, the Minister failed to have proper regard to the legal distinction between preliminary investigative process and the more advanced state of affairs where charges are laid or are imminent, and was inferentially misled to an incorrect understanding of the relevant legal concept of “accused” by the reference in Departmental Attachment C (para 262; also para 190) to the Australian High Court authority of Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer [1995] HCA 35; (1995) 185 CLR 528 which is cited for the proposition that extradition legislation must be construed so as to recognize differences between the common law and continental systems of criminal law, but omitting reference to the passage from Gummow J in Kainhofer (at [88]), cited in the Applicant’s Supplementary Submission dated 26 October 2009, in which his Honour made the above relevant distinction is made. [sic]
(f)As the Applicant was not an “extraditable person” when the request for his extradition was made to the Australian Government, proceedings against him under the Act were and are contrary to the requirements of the Act and should not have been commenced, and he should not have been found to be an “eligible person” by the Magistrate for the purposes of sub-ss 19(2) and (9) of the Act.
(g)As the Applicant was incapable of being found to be an “eligible person” under sub-s 19(2) of the Act the Minister had no power to make a determination for his extradition under s 22 of the Act.
(h)In consequence, the Minister’s determination that the Applicant should be surrendered for extradition is not authorised by law and is a nullity.
4.The Minister further erred in law and made a jurisdictional error, in determining that the Applicant was eligible to be surrendered under s 22 of the Act, in relation to a “qualifying extradition offence” of war crime, and that determination was not authorised by the Act and was a nullity.
Particulars
(a)By virtue of Article 2 paragraph 5(a) of the Extradition Treaty between Australia and the Republic of Hungary 1995 (“Extradition Treaty”), as incorporated into the Act under of s 11 of the Act and the Extradition (Republic of Hungary) Regulations 1997, the alleged war crime was not an offence under Hungarian municipal law at the time (8 November 1944) when the conduct constituting the offence is alleged to have occurred.
(b)“War crime” was not made an offence under the Hungarian Criminal Code until legislation of Hungary enacted by Decree No 81/1945 (1945 Decree) which was purportedly given retrospective effect in Hungary by s 1 of the 1945 Decree.
(c)Relative to extradition requests by the Republic of Hungary, the effect of Article 2 paragraph 5(a) of the Extradition Treaty is that conduct which was not a criminal offence under Hungarian law at the time the conduct occurred is not an “extradition offence”, as defined by s 4 of the Act.
(d)Unlike other international instruments such as the European Convention on Human Rights 1950 (ECHR), the International Covenant on Civil and Political Rights 1966 (ICCPR) and the Rome Statute establishing the International Criminal Court (where non-retrospectivity clauses are qualified by an exception in the case of war crimes) the Extradition Treaty contains no such exception.
(e)The alleged offence is therefore not an “extradition offence”, and is therefore not an offence in relation to which the Minister may, under s 22 of the Act, order that the Applicant be surrendered to Hungary.
5.The Minister erred in law, in failing to give proper, realistic and genuine consideration to whether, in the exercise of the discretion conferred by Article 3 paragraph 2(a) of the Extradition Treaty, he should refuse extradition, having regard to the fact that the Applicant is a national of Australia, and all other relevant factors. Alternatively, his decision not to refuse extradition was one which no Minister, acting reasonably and giving consideration to those facts could, in the proper exercise of his discretion, make.
Particulars
(a)The Minister had a duty, imposed by Paragraph 2(a) of Article 3, to give primary consideration to the fact that the Applicant is an Australian citizen and national, given that Hungary may request Australia to submit the case to competent authorities in Australia, to consider whether to prosecute the Applicant in Australia.
(b)The Minister fettered the exercise of his discretion and disabled himself from properly and genuinely considering its exercise and the factors relevant to it, purportedly on the ground of a long-standing “policy” that Australia will not refuse extradition on the basis of Australian citizenship alone.
(c)The Minister further fettered the exercise of his discretion by giving undue precedence to Australia’s obligation, under the Extradition Treaty, to respond to the Republic of Hungary's extradition request, without having a balanced or any regard to Australia's other obligations and responsibilities under that Treaty to the Applicant, as an Australian citizen.
(d)In so doing, the Minister failed to take into account the fact that Australia has a primary obligation to afford diplomatic protection to the Applicant, as an Australian national, and to save him from undergoing foreign criminal procedures unnecessarily, if either a Hungarian request is made under Article 3 paragraph 2(a), or Australia of its own motion considers whether, as an Australian national resident in Australia, the Applicant can and should be prosecuted under Australian law for the alleged war crime.
(e)The Minister further failed to satisfy himself as to whether Australia or Hungary had primary responsibility for prosecuting the Applicant, given that the Applicant had ceased to be, by force of Hungarian law applicable in 1944-1945, an Hungarian national, having failed to return to Hungary in response to an official summons to do so.
(f)The Minister should have had regard and failed to have regard to the fact that Australia has a primary obligation to afford the Applicant diplomatic protection, to prevent any unnecessary or disproportionate distress and disruption that his extradition would occasion if removed from Australia; or to the question of whether, as an alternative to Hungarian proceedings, the Applicant might be investigated and (if thought appropriate) prosecuted for the alleged war crime under Australian war-crimes legislation.
5A.The First Respondent erred in law and fact and made a jurisdictional error in deciding that there was no basis for finding that the competent Australian prosecuting authorities, the Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP), had not, within the meaning of, and for the purposes of Article 3(2)(b) of the Extradition Treaty, decided to refrain from prosecuting the Applicant for the alleged offence in respect of which extradition is sought, thereby failing to give relevant and proper consideration under section 22 of the Act to whether Australia as the Requested State should refuse to surrender the Applicant for extradition.
Particulars
(a)According to paragraphs 112, 116 and 117 of Departmental Attachment C the AFP, having accepted a referral concerning an allegation of a war crime, considered the possibility of prosecuting the Applicant for an offence under the War Crimes Act 1945 (Cth) and sought advice from the CDPP regarding whether such a prosecution could be initiated in Australia. Upon receiving advice from the CDPP that in the absence of any testimony from living witnesses to support the documentary evidence the CDPP was unable to conclude that there was a prima facie case to support a prosecution under the War Crimes Act, the AFP determined not to proceed further.
(b)Having regard to the exchange of information between the AFP and the CDPP and its outcome, there was in the circumstances an actual or constructive refraining by Australia’s competent authorities from prosecuting the Applicant and Article 3(2)(b) of the Treaty was therefore engaged.
(c)The First Respondent wrongly took into account the view of the Department (paragraph 118 of Departmental Attachment C) that the decision of the AFP to take no further action did not constitute a “refraining” since it did not entail a positive decision not to prosecute the Applicant, thereby misdirecting himself on the legal meaning of “refrain” in Article 3(2)(b).
(d)By concluding that there had not been a relevant refraining, he failed to consider, as required by Article 3(2)(b), whether he should exercise his discretion, acting on behalf of Australia, to refuse the Hungarian Request and thereby committed a jurisdictional error.
6.The Minister further erred in law, misdirected himself on a fundamental matter regarding whether in the terms of Article 3 paragraph (2)(f) of the Extradition Treaty the Applicant’s extradition would be unjust, oppressive, and incompatible with humanitarian considerations, failed to take into account relevant considerations which he was bound to consider, and failed to properly exercise his jurisdiction under s 22 of the Act.
Particulars
(a)The Minister failed to satisfy himself of the capacity of the Military Division to provide procedures consistent with Australia’s and Hungary’s international obligations under Article 14 of the ICCPR with its two protocols and other relevant instruments, to ensure a fair trial if the Military Division were to charge and prosecute the Applicant for the offence of war crime.
(b)By virtue of s 11 and sub-paragraphs 22(3)(e)(i), (ii), (iii) and (iv), and 22(3)(f) of the Act, the Minister is required to have regard to the considerations specified in Article 3 paragraph 2(f) of the Extradition Treaty, namely, whether in the relevant circumstances it would be unjust, oppressive, and incompatible with humanitarian considerations to extradite the Applicant.
(c)In issuing the international arrest warrant for the Applicant’s extradition to Hungary, the Republic of Hungary relied on the minutes and records of statements made in criminal proceedings before the Hungarian People’s Court in 1946-1947 by the defendants and various witnesses in the trials of a Captain Mader and Lieutenant Nagy, which apparently will be the foundation on which any prosecution of the Applicant will be based. (Departmental Attachment C, para 33).
(d)So far as is known (and it is not contradicted by the Republic of Hungary) the relevant prosecution witnesses, on whose statements the Hungarian military prosecution authorities will apparently rely, are either no longer alive or are not available for examination.
(e)The Applicant has made submissions to the Minister that, if the Hungarian military prosecution authorities intend to rely on documentary evidence of Captain Mader, Lieutenant Nagy, and other witnesses including Jozsef Monori, Pal Marko, Zoltan Imre, and Janos Mahr, the Minister must be satisfied that the Applicant will have an opportunity to confront and question the witnesses, as required by Article 6 of the ECHR and Article 14 of the ICCPR, failing which to extradite the Applicant to Hungary would be unjust and oppressive within the meaning of Article 3 paragraph 2(f) of the Extradition Treaty.
(f)The Minister has also failed to discharge his responsibility of requiring the Hungarian Government to satisfy him that the Applicant will not be subjected to an unfair and unjust trial.
(g)The Hungarian authorities have failed to give an assurance that statements recorded by the People’s Court in 1946-1947, coerced by torture, including any by Lieutenant Nagy, would not be produced as evidence in proceedings before the Military Panel, contrary to Article 15 of the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 1984 (CAT)
(h)It is a fundamental requirement of a fair trial in accordance with the above international instruments that the Applicant should have the opportunity and ability to question the above‑named witnesses as to whether their statements were voluntary or coerced by threats of torture, induced by promises of leniency, are consistent with other statements by relevant witnesses, or reliable and credible, particularly given that to a large extent the statements are those of alleged accomplices or based on hearsay.
(i)The Republic of Hungary has declined to provide any specific details about whether the named witnesses are alive and available to be called in any proceedings against the Applicant, failed to inform the Applicant or the Australian Government of any alternative procedures for the testing of the voluntariness, reliability, credibility and veracity of the statements of those witnesses, and has given the Minister no assurance as to how, the Military Panel would be able to provide fair procedures and a fair trial if it were to prosecute the Applicant.
(j)The Republic of Hungary has, further, refused and failed to inform the Applicant or the Minister how the Applicant would be able to have a fair trial in accordance with international standards, when he will be unable to access relevant official documentary evidence (destroyed in the time elapsed since 1944) about the movement of his unit of the Royal Hungarian Army that would enable him to establish that he was not in Budapest at the time of the commission of the alleged offence in Budapest.
(k)The Minister, in the absence of such information and assurances and without making any further enquiry, has made his determination that the Applicant should be surrendered for extradition, apparently because the Military Panel is bound by the provisions of the ECHR and ICCPR and that it is therefore not for the Australian Government to enquire into or make judgments about whether the Military Panel and its procedures will, in fact, be able to comply with the international standards for a fair trial (Departmental Attachment C paras 103, 219).
(l)In that regard, the Minister has been misled by the selective reference in the Departmental Attachment C (para 33, dot point 7 and para 190) to the decision of this Honourable Court in Mokbel v Attorney-General for the Commonwealth (2007) 162 FCA [sic — FCR] 278 at [58]-[59], said to be authority that in accordance with the principle of comity a degree of respect is to be accorded by a requested country to the laws and institutions of another country, but omitting reference to Snedden v Republic of Croatia [2009] FCA 30 (a decision of the Full Federal Court to which the Applicant referred in his Supplementary Submissions to the Minister dated 26 October 2009) in which the contrary proposition was stated, namely that Australian court may, in an appropriate case, determine that a country requesting the extradition of an Australian citizen cannot provide a fair and unbiased trial in the event of extradition, and if so, that extradition must be refused.
(m)The Minister, in accepting that “comity” prevents him from considering whether, having regard to the particular evidentiary problems presented by the non-availability of key witnesses, the procedures of the Military Tribunal are actually capable of affording the Applicant a just and fair trial in accordance with relevant international standards has fettered his discretion and abdicated his responsibility to address that question.
(n)The Minister has in that regard asked himself the wrong question: the issue is not whether the Military Division is capable of providing a fair trial because it is bound by the ECHR and ICCPR; it is whether the Hungarian authorities can provide assurances to the Australian Government as to how they can, in fact, afford a fair trial to the Applicant in accordance with the ECHR and ICCPR in all the circumstances.
(o)The Minister has further erred in law and taken into account an irrelevant consideration, namely, that if the Hungarian authorities and the Military Panel fail to comply with the relevant international standards, the Applicant could appeal pursuant to procedures open, under Hungarian law, with the ultimate prospect of appealing to the European Court of Human Rights, and has concluded that he therefore has no responsibility to satisfy himself, before making a decision to extradite, that the Applicant will be able to be afforded a fair trial, complying with the relevant international standards.
Particulars
(oa)Further, the statement in Departmental Attachment C, paragraph 202, that advice received from the Attorney-General’s Department's Office of International Law (OIL) (which is summarised in unredacted form in paragraphs 204 and 205 of that Attachment) suggests that there is “no information that establishes that the Military Panel would not be capable of providing a fair trial”, and in paragraph 204 that: “We are not aware of any information to suggest that Hungry does not propose or is unlikely to provide [the respondent] with a fair trial”, is inconsistent with the highly qualified advice given by the OIL that for a trial to be fair the Military Panel could only have regard to documentary evidence that was unsupported by viva voce evidence so long as the documentary material was not the sole or decisive evidence.
(ob)The First Respondent has therefore acted on a legally incorrect view of the apparently unsupported documentary evidence on which the Republic of Hungary proposes to rely (if a trial were to be instituted), and consequently, in the special circumstances of this case, erred in failing to take into account the fact that Hungary has not been able to produce any relevant live witnesses whose testimony would allow testing of the 1940's documentary records, given that the records cannot, in accordance with international standards of fairness, constitute the sole or decisive evidence for the prosecution.
(p)Contrary to the statement in the Departmental Attachment C, para 210, (that there is no evidence to suggest that Hungary will not afford the Applicant the protections and rights contained in its procedures and practices) there is evidence that the Military Panel, when issuing the international arrest warrant relating to the Applicant in 2005, failed to consider whether the statements and records of the People's Court were capable of being used in any criminal proceedings consistently with the Republic of Hungary’s obligations under the ECHR and ICCPR, or whether a prosecution could comply with the requirement of a fair trial according to the standards of the ECHR and ICCPR. The Minister has, in the result, failed to take into account a relevant consideration, namely, that the Military Panel has already failed to comply with the relevant international standards.
(q)The Minister, in relying on Departmental Attachment C, has apparently also been induced to misconceive the nature of the Applicant’s submissions regarding the need to confront prosecution witnesses, given that there is objective evidence that the Hungarian prosecution authorities may be incapable of producing critical prosecution witnesses, whose evidence is proposed to be relied on.
(r)The Minister has also failed to have regard to a relevant factor, namely Australia’s own international legal obligations under the ICCPR, irrespective of any other obligations of non-refoulement, not to surrender the Applicant, an Australian national, for extradition where there is objective evidence that he may not be afforded a fair trial, and a real risk that there will be a violation of Australia’s international undertakings because of its failure to comply with Article 14 of the ICCPR.
….
9.The Minister erred in law, and committed jurisdictional error, by failing to take into account relevant considerations when considering whether, in accordance with Article 3 paragraph 2(f), it would be oppressive and incompatible with humanitarian considerations to surrender the Applicant for extradition, given his advanced age (88) and his ill health.
Particulars
(a)The Minister failed to give real and genuine consideration to whether,
(i)        given the Applicant’s age and medical condition, and
(ii)given the Hungarian Government’s concession that the Applicant is only wanted in the first instance for investigation,
there are relatively more appropriate alternatives (which would give full force and effect to “humanitarian considerations”) to surrendering him for extradition to Hungary, such as permitting the Hungarian authorities to conduct their enquiries in Australia, or, if requested by the Hungarian Government, asking the Australian prosecuting authorities to consider whether to charge the Applicant under the Commonwealth Criminal Code.
(b)The Minister further erred in evidently deciding to give greater effect to the fact that any anguish, stress and seriously adverse health impacts upon the Applicant resulting from his extradition, and possible lengthy incarceration in a foreign country, should be “balanced” against the seriousness of the offence and interest of the international community in having a suspected World War II criminal tried before Hungarian courts.
(c)In so doing, the Minister failed to take into account the fact that the Applicant is an Australian national who is entitled to the presumption of innocence, and that the relevant interests of the international community could, proportionately and appropriately, be satisfied by such alternatives.
10.The Minister has also committed a jurisdictional error by taking into account, in his reasoning process, an inaccurate and misleading impression created in Departmental Attachment C, para 214, to the effect that the Minister should have little, if any, regard to the fact that the Applicant would be disadvantaged in his defence, if he were to be charged, by the long passage of time, because the relevant Hungarian authorities were unaware of the Applicant’s presence in Australia until brought to their attention in 2004 by the Simon Wiesenthal Centre (whereupon they responded quickly) and further, (impliedly) that this delay was due in part to the fact that the Applicant had changed his name from Steiner to Zentai, thus preventing the Hungarian authorities from seeking his arrest and extradition at an earlier date.
Particulars
(a)The Applicant changed his name from Steiner to Zentai prior to World War II and was officially known by that name by all relevant Hungarian authorities thereafter including, relevantly, in proceedings before the People’s Court.
(b)Any delay in pursuing an investigation and prosecution of the Applicant for the alleged war crime cannot be attributed to the Applicant, who lived openly in Western Australia from 1950 under the name of Zentai, by which he had been known when he left Hungary.
(c)His presence in Western Australia was known in the 1980s to the family of Peter Balazs, the victim of the alleged war crime, who claim to have brought it to the attention of a person associated with the Simon Wiesenthal Centre, which was therefore in a position to inform Hungarian or Australian authorities of the Applicant’s presence in Australia at that time.
(d)The Minister made a jurisdictional error by only taking into account (Departmental Attachment C paras 273-279) the fact that the Hungarian authorities have acted in good faith since 2004, without having regard to the earlier opportunities that the Hungarian Government could have had if Hungarian authorities or other informants and agencies had acted more diligently in the past, and by failing to take into account, and give proper weight to, the enormous prejudice to the Applicant occasioned by the delay.
(e)The Minister has, also, apparently taken into account, as a reason not to refuse surrender, the wrong and misleading statement of fact (Departmental Attachment C, para 275) that the Applicant “has lived under the false assumption that [he is] no longer wanted for prosecution”.
11.For the reasons stated in the above grounds, the Minister’s decision was so unreasonable that it went beyond his jurisdiction under s 22 of the Act and is a nullity and of no legal effect.
12.The Minister further erred in law, and failed to comply with a fundamental legal requirement, by refusing to provide to the Applicant a statement of his relevant findings and the reasons for his determination under s 22 of the Act, in consequence of which his determination is a nullity and of no legal effect.
Particulars
(a)Section 22 of the Act requires the Minister, in exercising his statutory discretion and powers, to make various findings and to be satisfied regarding matters specified in that section.
(b)By necessary implication, for the purpose of judicial review of his decision, if requested by the person subject to the order for extradition, the Minister must provide a statement of relevant findings and reasons.
(c)On 17 and 19 November 2009, the Applicant’s solicitors requested the Attorney-General’s Department to provide a statement of the Minister’s reasons for decision. By letter dated 20 November 2009 the Department replied that no such statement would be provided.
(d)The refusal constitutes a failure to comply with the Act, and therefore of itself vitiates the Minister’s decision, and is a ground for quashing it.

I would make the following observations about this extract from Att C. First, the view put before the Minister was that the Australian authorities had not (or not yet) decided to refrain, but, if the Minister were to take a different view of the matter, the considerations to which he might usefully pay regard in the exercise of his discretion were also canvassed (in para 119). Accordingly, both limbs of subpara (iv) of s 22(3)(e) were covered. Secondly, the facts as such were laid out before the Minister, so that he might either be satisfied or not from what he made of those facts. It was not as though Att C served up to the Minister a simplified conclusion, shielding him from the actual facts. Thirdly, it would have been apparent to the Minister that the whole of the prosecution authorities’ consideration of the matter had been played out between 17 January and 30 March 2005, a period of about 2½ months. And fourthly, it would also have been apparent that the Federal Police had received advice that the evidence then available to it was insufficient to make out a prima facie case against the respondent.
It was following these aspects of the advice given to the Minister that Att C recorded the view that Art 3.2(b) was concerned with a situation in which the authorities had “substantively considered a matter and taken a positive informed decision to refrain from prosecuting the person”. This is the closest that Att C went, relevantly, to opining on a question of law as to the scope of the Treaty, and it was an opinion with which, I am bound to say, counsel for the respondent did not fully come to grips in their submissions on the present appeal – at least if we were to understand that it was the respondent’s case that Att C invited the Minister to address a question which was the wrong one as a matter of law. In their outline, counsel accepted that the Treaty was “certainly predicated on a ‘decision’ by the AFP and the CDPP”. It was said that that had to be “approached in a practical way appropriate to a criminal investigative process” (emphasis in original) and that the decision did not have to “take a particular form such as being in writing”. It was said that the advice of the CDPP “though apparently expressed as contingent on the existence of further evidence was conclusive in its effect”. In none of this, or the associated passages in the outline, can I find any clear challenge to the test of what constitutes a decision to refrain put before the Minister in Att C.
Neither did I understand counsel for the respondent, in their oral submissions, to advance anything more than a tangential attack, if that, on the proposition in Att C as to the scope of Art 3.2(b) of the Treaty. They referred to the relevant passage in Att C, and proceeded to defend his Honour’s conclusion of fact that a decision must have been made in circumstances where the CDPP had advised that there was no available evidence that would sustain a prosecution, and the Federal Police had not pursued its investigation any further. But the issue before the court was not whether the authorities had decided to refrain, but whether, in being satisfied that they had not (if that was, indeed, the way the Minister proceeded), the Minister misdirected himself in the sense of asking the wrong question or the like. So far as I can see, the respondent’s case below, and on appeal, was concerned wholly with the factual issue which was for the Minister, not the court.
That brings me back to how the primary Judge in fact disposed of Ground 5A. As mentioned above, his Honour was faced with a situation in which the Minister had been advised as to the existence or otherwise of the relevant circumstance for the purposes of s 22(3)(e), but had also been advised as to the considerations that might influence his discretion if the relevant circumstance were found to exist. The Minister provided no reasons for his determination, but “approved” the advice which had been tendered to him. As the primary Judge pointed out, so long as that residual discretion might in any event have been exercised adversely to the respondent, there was no way, on the evidence, that he might infer that the Minister even formed the view that the Australian authorities had not decided to refrain, much less misdirected himself in doing so. Indeed, the primary Judge recognised that, even notwithstanding what he described as “an accumulation of errors” in Att C, it remained open to the Minister, in his discretion, to order the surrender of the respondent. In their submissions on the appeal, counsel for the respondent came very close to accepting that there was no answer to his Honour’s conclusion in this respect. For my own part, I consider that the conclusion was unexceptionable.
For the above reasons, I am not persuaded that the primary Judge’s disposition of ground 5A involved any error on his Honour’s part. I would reject the respondent’s contention to the contrary.
GROUND 6
In his reasons of 2 July 2010, the primary Judge described this ground as “substantially more challenging than some” for the respondent. For my own part, with respect to those involved, I found the greatest challenge in understanding, from the submissions made on behalf of the respondent, how an error of the kind that would sustain mandamus or certiorari was said to have been made by the Minister in his determination under s 22 of the Act. In those submissions, counsel did not challenge his Honour’s observation that the topic of the respondent’s prospects of getting a fair trial in Hungary was the subject of a “reasonably fulsome” analysis in Att C. Neither did counsel submit that that analysis was based upon a legally incorrect appreciation of the question to be answered under Art 3.2(f) of the Treaty as made relevant by s 22(3)(e) of the Act. Although they foreswore any attempt at merits review, counsel’s submissions went little beyond the very merits‑rich, rather discursive, particulars that were subjoined to the ground itself (see para 89 above).
The respondent’s case at least involved the proposition that, in considering the matter of injustice and oppression arising under Art 3.2(f), the Minister “failed to take into account relevant considerations which he was bound to consider”, thereby invoking the principle articulated by Deane J (sitting as a single member of the Federal Court) in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375:
[T]he ground of failure to take into account a relevant consideration would only be made good if it was shown that the decision-maker had failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.
This passage was approved by Mason J in Peko-Wallsend (162 CLR at 39), his Honour emphasising the word “bound”, and by Brennan J in the same case (162 CLR at 55-56). It was also approved, by way of a footnote, by Gleeson CJ and McHugh J in Foster v Minister for Customs and Justice (2000) 200 CLR 442, 452 [22], their Honours proceeding to quote with approval also the following statement by Brennan J in Peko-Wallsend (which was part of the passage to which I referred) (200 CLR at 452 [22]):
The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power.
To these authorities I would add only a reference to the judgment of the NSW Court of Appeal judgment in Saville v Healthcare Complaints Commission [2006] NSWCA 298, [55]:
To invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters, the consideration of which is mandated by law: see generally Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]–[23] (Gleeson CJ and McHugh J) and at [45] (Gaudron and Hayne JJ): see also at [102] (Kirby J), dissenting but not in relation to this principle.
It was less clear what were the considerations that the Minister was alleged to have failed to take into account. In terms, Art 3.2(f) of the Treaty required the Minister to consider the nature of the offence, the interests of Hungary, and the age, health and personal circumstances of the respondent. But the respondent’s challenge to the Minister’s determination under Ground 6 was not concerned with any of those things. It was concerned, rather, with what was said to be the unlikelihood of the respondent getting a fair trial in Hungary, especially given the matters to which I have referred in para 109 above. That, I accept, is something which the Minister may well have taken into account in considering whether extradition would be unjust or oppressive, but the Act did not require him to do so in the sense of it being an essential precondition to the valid exercise of the power arising under s 22. The matter can be tested this way: if neither the respondent nor anyone else had raised any doubts about the fairness of the trial which lay in prospect in Hungary, would the Minister’s failure to consider the matter before making an affirmative determination under s 22(2) have invalidated that determination? Clearly not.
The issue about the prospect of a fair trial in Hungary was, in my view, no more than a factual circumstance which became relevant before the Minister because the respondent raised it. To say that is in no sense to depreciate the importance of the consideration; and it is not to suggest that, the consideration having been raised by the respondent, the Minister was at liberty to ignore it. But his obligation to consider it arose, in my view, more by way of the need to observe the principles of natural justice by turning his mind to what had been put by the respondent than because, by the terms or implications of the Act itself, the power under s 22 could not be validly exercised without adverting to the consideration.
In their oral submissions on behalf of the respondent, his counsel emphasised the allegation, which he had made in his representations to the Minister, that there were no living witnesses who could give such evidence as would be necessary to convict the respondent of the offence for which he was wanted by Hungary. The implication was that the Minister had no choice, in effect, but to infer that the Hungarian prosecutors proposed to rely on statements previously made by deceased persons, and that his conclusion that the extradition of the respondent should not be refused because of the circumstance referred to in Art 3.2(f) was so obviously unreasonable as to make it almost self‑evident that he had not given proper, genuine and realistic consideration to the point. I would not accept that submission. As pointed out by the primary Judge, the treatment of the subject in Att C was fulsome. It would do that treatment a disservice were I here to take the course – not adopted by his Honour below – of setting out selective extracts from it. Having read the attachment, and assuming, as the respondent did in his submissions, that the Minister read it and was guided by it, I would have no hesitation in agreeing with his Honour that the proposition that the Minister failed to have regard, or to give the appropriate level of consideration, to the question whether extradition would be unjust or oppressive because of the unlikelihood of the respondent getting a fair trial in Hungary was quite unsustainable on the facts.
For the above reasons, I would reject the respondent’s contentions made in relation to Ground 6.
GROUND 9
As I understand the primary Judge’s reasons in upholding Ground 9, it was suggested not that the Minister had omitted consideration of any particular fact or circumstance, considered as an individual entity, but that he had, rather, in considering the matter of oppression and incompatibility with humanitarian considerations under Art 3.2(f) of the Treaty, failed to weigh on the scales the possibility of what his Honour described as a “more appropriate alternative”, namely, submitting the respondent’s case to the Australian prosecuting authorities for such action as they may care to take, as contemplated, in the case of an Australian national such as the respondent, by para (a) of the same subarticle. The sense in which his Honour upheld Ground 9, then, was not that conveyed by the terms of the ground itself. It was that conveyed by the submission made on behalf of the respondent below which his Honour recorded in para 336 of his reasons: see para 113 above.
In my opinion, his Honour’s disposition of Ground 9 in the way I have described could be supported only if, in addressing the questions arising under Art 3.2(f) of the Treaty, the Minister was bound to consider, in the case of an Australian national, whether prosecution here would be a more appropriate alternative having regard to humanitarian considerations, the prospect of the respondent being oppressed by extradition, and the like. With respect to his Honour, I cannot accept that the Minister was so bound, in the Peko-Wallsend sense. Neither the Act nor the Treaty itself set up such an obligation. The questions which the Minister was bound to take into account were those stated in Art 3.2(f). To answer them did not require the Minister to revisit Art 3.2(a). Indeed, in drafting para (f) of the subarticle, the Contracting States appear to have turned their minds to the other matters that might properly be placed on the discretionary scales alongside age, health, etc – “while also taking into account the nature of the offence and the interests of the Requesting State” – which, if anything, strengthens the conclusion that the Minister was not bound to place what his Honour described as the subart 2(a) option also on those scales.
I would add two further observations about the construction of Art 3.2 of the Treaty. The first is to repeat what I have set out at paras 171-172 above: the subarticle is, in my view, concerned with discrete questions, and does not require the Requested State to consider two or more of them in combination if none of them considered as a separate entity yields the conclusion that extradition should be refused. The second is to observe that the question which arises under para (f) of the subarticle is whether the extradition of the person would be unjust etc. With respect to his Honour, I consider that, for the Minister to have infected his consideration of that question with the issue of whether the respondent could be tried for the same offence in Australia would have amounted to a misdirection. The problem needs only to be contemplated from a perspective which is the opposite of that taken by the respondent in the present case. Might the inability of Australian prosecutors to proceed against a person in relation to conduct for which he or she was wanted by another State properly be taken into account as favouring a negative answer to the question whether the extradition of that person would be unjust etc under Art 3.2(f)? I do not think so. It would be irrelevant to that question. So too, in my view, was the respondent’s nationality, and the assumed availability of an alternative prosecutorial path here, irrelevant to the Minister’s consideration of the injustice etc of his extradition to Hungary.
I would also accept the submission made on behalf of the appellants that there was no evidentiary basis for the primary Judge to have held that the Minister ignored the option of declining surrender but referring the respondent for prosecution in Australia. As mentioned in para 181 above, the subject was well-covered in Att C. That coverage was done under the rubric of the general discretion which arose under s 22(3)(f) of the Act, and, for reasons which I have explained above, appropriately so. If Att C itself were to be accepted as a comprehensive reflection of the way the Minister organised the various circumstances in his own mind in coming to the discretionary judgment which s 22 required, the inference that he had ignored what his Honour described as the Art 3.2(a) option was, in my view, not open under the terms of the attachment. The authors of Att C did not ignore such an option and, had he been minded to go no further than to echo the thinking in the attachment, neither would the Minister.
For those reasons, I consider that the appellants’ challenge to the primary Judge’s treatment of Ground 9 should be upheld.
GROUNDS 10 AND 11
In the respondent’s Notice of Contention, these grounds were dealt with together. The following contention was made:
His Honour should have upheld Grounds 10 and 11 of the Further Amended Grounds of Review. He should have held that, in the absence of further explanation, the First Appellant’s decision must be taken to have been affected by wrongly taking into account an accumulation of seriously erroneous information, incorrect legal advice and other considerations, not limited to those under the Extradition Act 1988 (Cth)(“the Act”) to which he was entitled to have regard, and was so unreasonable that he had failed to properly discharge his function under section 22 of the Act.
The submissions made on behalf of the respondent reflected that contention.
Something should be said, at the outset, about the consequences of combining Grounds 10 and 11 as the respondent has done. Ground 10 was an attack on the Minister’s decision insofar as it depended on para 214 of Att C (see para 89 above). There, the authors of Att C were dealing with the question which arose under Art 3.2(f) of the Treaty, as made relevant by s 22(3)(e)(iv) of the Act. They did so because of a specific submission which had been made on behalf of the respondent, namely, that the passage of time since the occurrence of the events which gave rise to the allegations made against him would, as a matter of fair inference, by then have led to the unavailability of evidence which might be essential to his defence. According to that submission (as recounted in Att C), the result would be that the respondent would not get a fair trial, and that his extradition would be unjust etc within the terms of Art 3.2(f). The gist of para 214 of Att C was that, “having regard to the other circumstances of the case, in particular the nature of the offence and conduct involved”, the Minister could be satisfied that “the effect of the passage of time would not make extradition so oppressive or unjust as to warrant the exercise of [his] discretion to refuse surrender”.
In terms to which I have referred at para 117 above, the primary Judge rejected Ground 10 as advanced before him. No attempt was made by the respondent on the present appeal to demonstrate that his Honour had been in error to do so. In particular, no attempt was made to challenge his Honour’s observation that the mistake – if mistake it were – about the timing of the respondent’s change of name was a factual error which could not sustain the case for certiorari being advanced on his behalf. Neither was any attempt made to displace the inference which his Honour drew that it was “improbable” that this mistake “tipped the discretionary balance” against the respondent. In these circumstances, the challenge to his Honour’s disposition of Ground 10, considered in its own right, must be rejected.
Although not so stated in terms, the discretion the exercise of which was challenged under Ground 11 could only have been that arising under s 22(3)(f) of the Act. It was not concerned with the mandatory or discretionary bases for refusing surrender set out in the Treaty (save possibly in the sense that the Minister might, under s 22(3)(f), have chosen to re-visit some of the factual matters raised also in the context of the Treaty). As advanced on appeal, Ground 11 has effectively subsumed Ground 10, as is apparent from the following passages in the respondent’s outline:
The Respondent contends that the primary judge should have upheld Grounds 10 and 11 of the Grounds of Review and held that, in the absence of further explanation, the First Appellant’s decision must be taken to have been affected by wrongly taking into account an accumulation of seriously erroneous information and incorrect legal advice (including about the Respondent’s change of name). As such, the First Appellant’s decision was so unreasonable that he had failed to properly discharge his function under s 22 of the Act.
And:
For the purposes of this Appeal, the Respondent combines his objections under Grounds 10 and 11, adopting the Department’s unfounded incorrect comments about his name and identity as a specific illustration of the kind of errors that permeated Attachment C.
As I read these submissions, we are to understand that Ground 10 is no longer being advanced as a ground said to be capable, in itself, of sustaining a successful challenge to the Minister’s consideration of issues arising under s 22(3)(e)(iv) of the Act, but rather is to be taken as an instance of a number of errors that, together, would justify the view (as stated elsewhere in the respondent’s outline) that the Minister’s determination generally was “flawed by illogical and irrational conclusions to such a degree and was so manifestly unreasonable that it cannot stand as a proper and genuine discharge of his responsibilities under the Act.” Or, as counsel for the respondent put it in their oral submissions, Ground 10 was now being used as a “spear carrier” for the “wider issues” raised in Ground 11.

The difficulty with these submissions is that they depend upon the premise that the advice tendered to the Minister in Att C was infected by all of the errors that were alleged elsewhere in the respondent’s case, and then some. In my assessment of Att C, in only two respects was it legitimately open to criticism: first, in proposing that the offence in relation to which the respondent was wanted for prosecution was an offence in Hungary in 1944, and secondly, in mistaking the timing of the respondent’s change of name. As to the first, it is true that, in the view I take, the Minister asked himself the wrong question, thereby opening a door to extradition which, had he considered the correct question, might well have remained closed. But an affirmative answer to the correct question was in the nature of a mandatory pre-condition to the making of a surrender determination under s 22(2) of the Act rather than of a circumstance which might be placed on the discretionary scales under para (f) of subs (3). As to the second, the matter was, as I have said, appropriately dealt with by the primary Judge in his disposition of Ground 10. It had neither the importance not the intrinsic relevance to justify an indictment of the Minister in anything like the sweeping terms used in the respondent’s submissions.
With respect to Ground 11 as such, the following submission was made in the respondent’s outline on appeal:
His Honour erred in law first, by treating the irrationality objection as part of the Wednesbury claim. It was a separate ground concerning how the Minister arrived at his conclusion and whether he was precluded from making a realistic and genuine evaluation of the merits of surrendering the Respondent. Secondly, his Honour impliedly accepted that attainment of the Wednesbury standard is reserved only for the most extreme and rarest of cases to the extent that the standard is virtually unobtainable.
In the light of the terms of Ground 11, the submission that the primary Judge made the first error alleged in this passage cannot be accepted. The ground was concerned with that, admittedly uncommon, category of legal error known as Wednesbury unreasonableness. It is clear from his Honour’s reasons that he read Ground 11 in this sense. Those reasons provide no basis for the suggestion, now made, that the case put before his Honour had two elements as proposed in the passage set out above. Indeed, it was his Honour, in para 375 of his reasons, who said that the Minister’s decision under s 22 of the Act was not “sufficiently irrational, capricious or so unreasonable that no reasonable person could have made it so as to satisfy a ground of review on a Wednesbury unreasonableness basis”. It was this passage which was said to have demonstrated his Honour’s misunderstanding of the respondent’s case, but, so far as I can see, it fairly reflected the terms of Ground 11 itself.
When, during the course of oral submissions on appeal, it was asked of junior counsel for the respondent (who had the carriage of the argument in relevant respects) whether application had been made to amend Ground 11 so that it might be seen to travel beyond the unreasonableness aspect, he responded:
It didn’t so much require amendment, we say, ... because it’s the weasel word “unreasonable” there and the intention is to cover both irrationality plus a Wednesbury unreasonableness. It’s looking to process an outcome and certainly if there were – your Honour’s point may be well taken that in terms of the ground itself it might have been read as a purely Wednesbury ground and not a rationality ground. But in terms of the way the submissions were made which were directed at the potential for what was said in attachment C to divert the Minister from making his decision on a properly understood basis as the jurisdictional error, that was also – we directed that as an irrationality ground. …. [W]e’re talking here about a process of decision making where there are errors that prevented the decision maker coming to – performing the statutory task of making the correct decision and it’s in that sense. So we would say that perhaps it was not made sufficiently clear to his Honour, but we’re saying that even if Honour came to the conclusion that we didn’t reach the great heights of establishing a Wednesbury breach, on a fair reading of the negative assertions that constantly are putting up in attachment C, the Minister was not able to give full consideration to the merits of his decision.
I would make three observations about this response. First, for counsel to seek to give the language of his own client’s ground a meaning beyond that which it naturally carried on the footing that it employed a “weasel word” – thereby implying that it had a plasticity of meaning that could be turned to advantage as the occasion required – was a conspicuously inadequate basis upon which to challenge the reasons of the primary Judge. Secondly, no attempt was made on behalf of the respondent to give content to the high‑level, tendentious, submission that something other than Wednesbury unreasonableness was implicit in the “terms of the way the submissions were made” below. And thirdly, had some other thing been implicit in those submissions, his Honour would have been entirely within his rights to have rejected it on the basis that no application had been made to amend Ground 11.
As to the second error alleged in the passage set out in para 208 above, in oral submissions junior counsel for the respondent expressed the point by way of the rather challenging metaphor that, in dealing with “Wednesbury evaluation”, the primary Judge “set up a pole vault rather than a high jump”. The Wednesbury aspect of administrative law is, of course, not entirely free of contention, but I do not consider this to be a case which calls for a consideration of how unreasonable a decision needs to be before it should be held to be invalid on that ground. Neither do I think that his Honour’s reasons proceeded by reference to a perceived need to cross some especially high bar, save possibly where he recorded a concession apparently made on behalf of the respondent: “[The respondent] has accepted that invalidity on the Wednesbury grounds is extremely limited and that the impugned decision must be verging on absurdity.” But it is because I agree with his Honour that, on any view, Wednesbury unreasonableness was not established in relation to the exercise of the Minister’s discretion under s 22(3)(f) of the Act that I would reject the respondent’s contention challenging his Honour’s rejection of Ground 11. In doing so, I would see no need to consider any general question as to the Wednesbury test.
Lest there be any misunderstanding, I would add that, making due allowance for the two aspects to which I have referred in para 207 above, there is no respect in which I would characterise the advice given to the Minister in Att C as unreasonable, irrational, or anything of the sort. Self‑evidently, Att C was the result of a meticulous analysis of the facts and law that bore upon the making of the Minister’s decision under s 22. In its structure, organisation and content, I consider that Att C was unobjectionable as a memorandum intended to lay out the various considerations, and the submissions and responses that had been received, which were proper to be taken into account. The notion that the Minister’s decision, to the extent that it relied on Att C, was sufficiently unreasonable or irrational to constitute invalidating error was, in my view, a conspicuously improbable one.
I would reject the respondent’s contention made in relation to his Honour’s disposition of Grounds 10 and 11.
GROUND 12
Under this ground, the respondent submitted that the primary Judge was in error not to have held that s 22 of the Act and s 39B of the Judiciary Act (and, to the extent necessary, s 75(v) of The Constitution), acting together, gave rise to an implied statutory obligation to give reasons. While accepting that there was no common law obligation upon an administrative decision‑maker to give reasons, the respondent submitted that such an obligation might yet be implied from the principle of the rule of law, respect for human rights and protections and the need to make effective the supervision of administrative action for which ss 39B and 75(v) provide.
In my view, these submissions should not be accepted. The fact that ss 39B and 75(v) invest the courts to which they refer with a supervisory jurisdiction does not imply that persons who would be subject to that supervision must generate, and presumably maintain, a documentary evidentiary trial by reference to which the supervision might be the more conveniently exercised. The constitutional writs are available for those cases in which an excess or deficiency of power may be established by evidence in the conventional way. As Dixon J said in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, 360 (in a passage cited by the primary Judge in the present case):
[The Commissioner’s] decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.
To give s 22 of the Act, and ss 39B and 75(v), their intended operation, it is not necessary to imply the existence of quasi‑legislative obligations which the legislature itself has not chosen to create. It is not enough to construct an argumentative case that such an obligation might well advance the circumstances of persons, such as the respondent, seeking to invoke the latter two provisions.
Further, in the Australian federal context, the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) constitutes a comprehensive treatment of the obligation of Ministers and other administrative decision‑makers to give reasons for their decisions. This is not the place to consider whether the ADJR Act is generally codifying, but in the case of the Act it is. By s 13(1) of the ADJR Act:
Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
Upon such a request having been made, the person who made the decision must provide his or her reasons within 28 days. A “decision to which [s 13] applies” is “a decision to which [the ADJR] Act applies”, and a decision of the latter character does not include “a decision included in any of the classes of decisions set out in Schedule 1”: ADJR Act, ss 13(11) and 3(1). A class of decision set out in Schedule 1 is “decisions under the Extradition Act 1988”. The legislature has, therefore, specifically turned its mind to whether reasons must be given for decisions made under the Act, and has decided that they need not be. In these circumstances, it is, in my view, quite impossible for the respondent to succeed on a submission that, as a matter of implication, s 22 of the Act requires the decision‑maker to provide the reasons for his or her determination under subs (2) of that section.
Ground 12 was quite without substance and was rightly rejected by the primary Judge.
DISPOSITION OF THE APPEAL
I would allow the appeal to the extent only of setting aside orders 2A and 3 made by the primary Judge on 10 December 2010, and of varying order 4 consistently with the view expressed above in connection with Ground 4. I would otherwise dismiss the appeal. I would lay out a timetable for the parties to make such written submissions as they may be advised on the question of costs.

I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.
Associate:
Dated: 16 August 2011

Citation:		O’Connor v Zentai [2011] FCAFC 102
Appeal from:		Zentai v Honourable Brendan O’Connor (No 4) [2010] FCA 1385
Parties:		THE HONOURABLE BRENDAN O'CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL and THE FORMER MINISTER FOR JUSTICE AND CUSTOMS, THE HONOURABLE CHRISTOPHER MARTIN ELLISON v CHARLES ZENTAI, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON
File number:		WAD 1 of 2011
Judges:		NORTH, BESANKO AND JESSUP JJ
Date of judgment:		16 August 2011
Corrigenda:		1 November 2011 24 February 2012
Catchwords:		EXTRADITION – Legislation providing for staged process of determinations by different functionaries – Ultimate decision by Minister whether person to be surrendered for extradition – Whether Minister obliged to re-consider a circumstance previously determined – Whether person was “accused” of an offence in Requesting State or merely wanted for questioning or investigation – Relevance to power to order surrender. EXTRADITION – Construction of international treaty – Treaty requirement that offence in relation to which extradition sought be an offence in Requesting State at time of relevant acts and omissions – Whether requirement satisfied if those acts or omissions constituted an offence, whether or not that in relation to which extradition sought. EXTRADITION – Legislation providing separate categorical and discretionary bases for refusing surrender of person for prosecution in other State – General discretion also reposed in decision-maker – Whether separate bases to be considered individually or in combination – Effect of general discretion. ADMINISTRATIVE LAW – Legislation specifying circumstances in which Minister must, or may, refuse request for extradition, and providing also for general discretion – No obligation to give reasons – Minister in receipt of lengthy advice – Whether advice represented Minister’s reasons – Whether Minister failed to take account of considerations of which he was bound to take account – Whether trial Judge determined matters which were for the Minister – Whether Minister’s decision so unreasonable that no reasonable Minister would have made it. ADMINISTRATIVE LAW – No express statutory requirement to give reasons – Whether obligation to give reasons to be implied.
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) Extradition Act 1988 (Cth) Extradition (Republic of Hungary) Regulations 1997 (Cth) Judiciary Act 1903 (Cth)
Cases cited:		Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Craig v South Australia (1995) 184 CLR 163 Director of Public Prosecutions (Cth) & the Republic of Austria v Kainhofer (1995) 185 CLR 528 Ex parte Hebburn Ltd (1947) 47 SR (NSW) 416 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Government of Belgium v Postlethwaite [1988] 1 AC 924 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 In re Ismail [1999] 1 AC 320 Khanv Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 11 December 1987) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 Rey v Government of Switzerland [1999] 1 AC 54 R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1 AC 556 Saville v Healthcare Complaints Commission [2006] NSWCA 298 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 TheCommonwealth v Tasmania [1983] 158 CLR 1 Vasiljkovic v Commonwealth (2006) 227 CLR 614 Zentai v Republic of Hungary (2008) 234 CLR 599 Zentai v Republic of Hungary (2009) 180 FCR 225
Date of hearing:	16 - 17 May 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	217
Counsel for the Appellants:	Mr S Lloyd SC with Ms H Younan
Solicitor for the Appellants:	Australian Government Solicitor
Counsel for the Respondents:	Mr M McCusker QC with Dr V Priskich and Dr P Johnston
Solicitor for the Respondents:	Fiocco’s Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 1 of 2011

JUDGES:	NORTH, BESANKO AND JESSUP JJ
DATE OF ORDER:	16 AUGUST 2011
WHERE MADE:	MELBOURNE

JUDGES:	NORTH, BESANKO AND JESSUP JJ
DATE:	16 AUGUST 2011
PLACE:	MELBOURNE