Oates v Att-Gen Commonwealth

[2003] HCATrans 595

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S431 of 2002

B e t w e e n -

ANTONY GORDON OATES

Appellant

and

THE ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 MARCH 2003, AT 10.17 AM

Copyright in the High Court of Australia

MR J.E. GRIFFITHS, SC:   If your Honours please, I appear with my learned friend, MS S.E. PRITCHARD, for the appellant.  (instructed by Michell Sillar)

MR A. ROBERTSON, SC:   May it please the Court, I appear with my learned friends, MR S.B. LLOYD and MR G.A. HILL, for the respondents.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Griffiths.

MR GRIFFITHS:   Thank you, your Honour.  Your Honour, I propose to deal with the following four primary issues which are raised in the appeal.  The four primary issues as we see them are as follows:  the relationship between Part IV of the 1988 Extradition Act and any executive power to request extradition from Poland, being a country with whom we have an extradition treaty.  I also propose under this first issue to deal with the effect of section 11(3) of the 1988 Extradition Act, which, as your Honours will appreciate, we consider to be a pivotal provision.  In the context of those first set of issues, I also propose to deal briefly with the Barton Case.

The second area that I will turn to then deal with, albeit briefly, your Honours, is the question whether the source of the power to make the request for Mr Oates’ extradition was a statutory power, in other words, under section 40 of the Extradition Act or, alternatively, an exercise of the executive power.  I will deal with that issue relatively briefly because, as your Honours will have gathered, the distinction, for our part, is not critical to the disposition or disposal of this appeal, because whether the source of the power be statutory or executive power, our fundamental submission is that that power is controlled or limited by section 11(3) of the Act.

The third area that I will then turn to is the question whether the lawfulness or validity of the Attorney’s request for extradition is to be tested by reference to the legal elements of the specified offences in that request and their relationship with the crimes or offences listed in Article 3, as was the approach adopted by the joint advice, or is that test rather one to be carried out by reference to the alleged acts or omissions of the appellant, in other words, inviting more of a factual inquiry.

KIRBY J:   That third one only arises in response to a particular answer to the first and second one.

MR GRIFFITHS:   Only if there is a ‑ ‑ ‑

KIRBY J:   It arises in consequence of a particular answer to the first and second one?

MR GRIFFITHS:   Yes, it does indeed, your Honour.  The fourth area that I will deal with, your Honours, is the question of discretion which fits in the same category, Justice Kirby, as the point that you just made and I will have something briefly to say by way of emphasis to that which is contained in our written submissions on the matters of alleged delay and the Anshun point which are put against us insofar as relief is concerned.

Your Honours, can I go back then and commence with some submissions concerning the relationship between Part IV of the 1988 Act and the exercise of power in this case to make the request.  I need to commence by reference to the relevant provisions of the 1966 Extradition Act, if I can use that shorthand expression, as those provisions were in force at the time of the Barton Case.  Your Honours will see that we have handed up a bundle of additional material and that material includes a four‑page summary of relative changes or amendments to provisions which were the subject of this Court’s decision in Barton and, similarly, extracts from legislation post-Barton which has a bearing on the issues raised in this appeal.

Behind that memorandum, which is simply a summary of what appears thereunder, are some ten tabs which contain those relevant extracts of changes to the relevant provisions, so that your Honours can trace through – we hope conveniently – the evolution or development of the 1966 Act, both pre and post Barton, and also the 1988 Act as well. 

HAYNE J:   Before you dive into those waters, can I just understand the argument at a rather more general level, because there is a deal of detail here and I am not sure that I have grasped the general thrust of it.  As I understand this limb of the argument, it is a contention that the power to seek extradition is restricted by the Extradition Act.  Is that the first step? 

MR GRIFFITHS:   Yes, your Honour. 

HAYNE J:   The second step is that the relevant restriction is provided by section 11(3).  Is that right? 

MR GRIFFITHS:   That is the relevant restriction, that is correct. 

HAYNE J:   That invites attention through a chain of legislation, does it not, to whether there is a limitation on the operation of the Order in Council that was made for the purposes of the old Imperial Acts.  Is that right? 

MR GRIFFITHS:   Yes, your Honour. 

HAYNE J:   So the critical question for this branch of the argument is, as I understand it, what in the Order in Council restricts the making of a request.  Is that right? 

MR GRIFFITHS:   That is correct, your Honour. 

HAYNE J:   Can you summarise for me what is said to be the restriction in the Order in Council that is relevant? 

MR GRIFFITHS:   The restriction is an implied restriction in terms of the making of a requisition – to use the traditional language; in the modern language, a “request” – a restriction that such a request can only be made in respect of a crime or offence which is listed in Schedule 3. 

HAYNE J:   That is, the restriction is both one which restricts the obligation of the foreign State to render the person but is also a restriction on the making of a request. 

MR GRIFFITHS:   Yes, indeed, that is correct, your Honour, and in respect of the second point that you make, we would use as our springboard to that argument the interrelationship between section 11(3) of the 1988 Act and section 40 of 1988 Act which, of course, as your Honour will appreciate, deals with the making of a request by the Attorney.

HAYNE J:   Does it follow from this branch of your argument that all of the conditions that the requested State would have to consider before delivering the person are restrictions upon the making of the request by Australia for the rendering of that person?

MR GRIFFITHS:   We do not have to go that far.  We say that the condition or limitation to which I have applied in terms of the making of the request is such a condition.  It is a condition which is capable of being litigated in Poland but it is a condition which is also capable of being litigated in this country because of the terms of section 40 and 11(3).

HAYNE J:   It is the double litigation which underpins the difficulty which this argument might present.  If, for example, the question of double criminality fell to be determined both by a Polish court and an Australian court in the context of a request that this man be extradited to Australia, the question arose whether the conduct for which he is sought would constitute a crime according to Polish law.

MR GRIFFITHS:   Yes.  We do not seek, of course, to argue any issue of dual criminality in this appeal.

HAYNE J:   I understand that, but it seems to me to be the consequence of the argument that you are ‑ ‑ ‑

MR GRIFFITHS:   I might need to reflect a little more on whether that concession was too hastily made about the capacity of the issue of power to make a request other than in respect of an Article 3 offence to a matter which was capable of litigation in both jurisdictions.

HAYNE J:   Because on reading the Order in Council, an impression which is available is that it is concerned to cast obligations on the State to whom the request is made; it is not concerned to confine the requests that the requesting State makes.

MR GRIFFITHS:   I understand what your Honour puts to me in that regard and I will take you in due course to some relevant provisions of the treaty, particularly Article 10 and the reference to foregoing stipulations, and it is our submission that the reference therein to foregoing stipulations includes the implied limitation or condition to which I have made reference.

GUMMOW J:   But why would you make the implication?

MR GRIFFITHS:   On the basis, your Honour, otherwise that the treaty will not hang together well if a requesting State is in a position to make a lawful request in respect of an offence other than that which is in Article 3.

GUMMOW J:   What do you mean by “lawful”?  Lawful according to what system?

MR GRIFFITHS:   Lawful according to Australian law.

GUMMOW J:   Australian municipal law.

MR GRIFFITHS:   Australian municipal law, and the provision which attracts the operation of Australian municipal law, in our respectful submission, is section 40 coupled with section 11(3).  Section 11(3) in essence, of course, provides that in a case such as we have here at present where there is a treaty and no regulation has been made which affects the making of that treaty, or not at the relevant time, where that situation obtains, the Act applies.  So it applies in terms of all of its relevant provisions subject to limitations, conditions, exceptions or qualifications as are created by the relevant Order in Council.

KIRBY J:   You will no doubt explain it, but if one looks at it just as a matter of general principle, there would seem to be a distinction between obligations that princes take on in relation to each other and now the nation State and simply requests that are made outside those obligations.  I realise what you say is how it locks into Australian law, but one would think one has to look at this problem from the point of view of international law generally.  In that area States can bind themselves to do certain things, but in harmony between States they can also ask that favours be done, and that is done all the time.

MR GRIFFITHS:   Yes.  What your Honour puts to me is not challenged.  What we would put, however, is that the request that was made in this particular instance was not a request made in the context of comity between nations and relations between princes of the sort that your Honour just described, but was plainly a request made with the 1934 treaty specifically in mind and a request which was made of necessity, we say, pursuant to section 40 of the Extradition Act.

GLEESON CJ:   Nothing turns on what was going on in the mind of the Attorney-General, does it?  If he had a power, the question is whether his conduct fell within the power.

MR GRIFFITHS:   Yes, that is correct, your Honour, but I was simply responding to Justice Kirby’s suggestion ‑ ‑ ‑

KIRBY J:   But the Chief Justice’s question highlights the point that he may have mistaken the source of his power, but if he had the power it does not matter.

MR GRIFFITHS:   Absolutely, your Honour, but to the extent that your Honour is suggesting that he had the power and that being a reference to executive or prerogative power, it is our submission that even if that be the case, that power itself has been limited by operation of section 11(3).

GLEESON CJ:   Your argument, right or wrong, amounts to this, does it not, that by the law of Australia the Attorney-General may only make a request of Poland with which Poland is by international law obliged to comply?

MR GRIFFITHS:   That is correct, your Honour.

GLEESON CJ:   Although Barton is authority for the proposition that if we had no extradition treaty with Poland a different result would follow.

MR GRIFFITHS:   That is precisely correct, your Honour, and we do not go any higher than Barton – we do not need to go any higher than Barton.

GUMMOW J:   But what is the sense of it?  What is the sense of having such a system that you advocate, from the point of view of Australia’s interests?

MR GRIFFITHS:   Well, they are Australia’s interests that also need to be gauged, in our respectful submission, by what the Parliament has stipulated in section 11(3) and section 40 and ‑ ‑ ‑

GUMMOW J:   That comes down to the question of construction of 11(3) and 40.

MR GRIFFITHS:   Indeed, but they are the points that attract Australian municipal law considerations ‑ ‑ ‑

GUMMOW J:   I should tell you, I cannot see at the moment why section 40 is other than facultative.  The Attorney-General did not have a power at common law; it is a question of prerogative and there are questions as to who is the correct organ to exercise the prerogative.  Section 40 would make it clear, it is the Attorney.

MR GRIFFITHS:   Well, what your Honour has put is effectively what ‑ ‑ ‑

GUMMOW J:   In other words, it is facultative, not prescriptive, like that other section in the first round of this litigation in this Court turned out to be, you might remember, facultative, not prescriptive.

MR GRIFFITHS:   Yes.  Your Honour used the word “facultative”, which is not dissimilar to the notion of machinery provision, which is the way which Justice Jacobs described section 21 of the 1966 Act, and I might add that the dissenting judgment of Justice Conti in the Full Federal Court also came to the conclusion for which we contend, namely that section 11(3) operates, even if section 40 is regarded as a machinery provision and not necessarily the conferral of power.

HAYNE J:   Saying 11(3) operates simply drives you back to what is it in the Order in Council that achieves this result for which you contend.

MR GRIFFITHS:   Yes, absolutely, your Honour.  I understand that I have to confront that question and identify the relevant restriction limitation, qualification or condition in the Order in Council which impacts upon, under Australian municipal law, the Attorney’s request.  I understand that and I will come to that in due course.

KIRBY J:   Could you just help me in a little matter that interests me. This use of “prerogative” which is thrown around in these cases, the only time “prerogative” is actually used in the Constitution is in section 74, I think. I may be wrong in that, but that is in relation to the Privy Council, which is the Queen’s prerogative, one might say, her Imperial function, British function. How does “prerogative” come into the talking of the Commonwealth, which is a different constitutional entity? I realise the Crown is mentioned there, but it really has to be an implied right from the Constitution of the Executive Government of the Commonwealth, does it not? It may be that you look to the prerogative of the Crown for guidance as to what that right will be, but I just question whether it is correct to talk in terms of prerogative, except insofar as you are using Orders in Council of the monarch.

MR GRIFFITHS: Yes. We have tended – perhaps not universally –ourselves to favour the notion of executive power rather than prerogative power by reference not to section 74 but section 61.

GUMMOW J:   That makes it even clearer, does it not, because section 40 tells who is the relevant officer for exercising these executive powers. 

MR GRIFFITHS:   Why is that, your Honour? 

GLEESON CJ:   Section 40 says that the Minister for Finance cannot do it. 

MR GRIFFITHS:   No, that is correct.  It identifies that the only person who is able to exercise the power – even if it be assumed for the moment that the power in question is the executive power – is the Attorney.  But to make that concession or to even accept Justice Gummow’s terminology of section 40 being purely machinery or facultative, it does not dispose of the matter.  It does not dispose of the matter because of section 11(3).  As your Honours will have gathered, the appellant and Justice Conti, in his dissenting judgment, place particular emphasis on important and significant dicta ‑ ‑ ‑

GUMMOW J:   Just to answer the question you asked me, if you look at section 61, it says:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor‑General –

Right? 

MR GRIFFITHS:   Indeed. 

GUMMOW J:   And there are questions as to the relevant Ministers in that activity.  But then 51(xxxix) is a power which has been used to specify what we find in section 40.  That is how it works in terms of the constitutional structure. 

MR GRIFFITHS:   Yes.  I accept that, your Honour, but, as I say, it still, on my submission, requires that consideration be given to the Parliament’s clear statement in section 11(3), which continues the effect of section 9 of the 1966 Act as imposing relevant limitations, restrictions, and so on.  As I indicated, we do place heavy reliance on what the former Chief Justice said in the Barton Case because our respectful submission is, notwithstanding that there is some change in language in section 40 – the equivalent provision of section 21 of the 1966 Act – the dicta of the Chief Justice is equally applicable. 

Your Honours, in the legislative material that I have handed to you, I am not taking you to each of the tabs.  We have put all the tabs in for the sake of completion, but if I could just take your Honours though to tab 3, your Honours see a copy of the Extradition (Foreign States) Act 1966‑1973, which is the form of the 1966 Act at the time that Barton was decided. 

GUMMOW J:   What do we get out of this?

MR GRIFFITHS:   What I am going to take your Honour through is highlight what the relevant provisions in the 1966 Act were, which were, of course, before the High Court when Barton was decided, and put to your Honours that despite some change in language, the Chief Justice’s dicta is equally applicable to the 1988 Act – the relevant dicta is equally applicable.

KIRBY J:   Would it not be helpful for us to be told what the dicta are before we plunge into seeing whether or not it has addressed the same statutory language or comparatively the same?

MR GRIFFITHS:   Certainly, your Honour. If your Honours have (1974) 131 CLR 477. Your Honours need scarcely reminding that this case involved a request – and I pause there because there was some controversy as to whether it was a request which was properly characterised as a request for extradition or, rather, a request to detain pending a request for extradition, a distinction which two members of the Court found to be determinative, Justices McTiernan and Menzies. The second point I wish to emphasise, of course, as your Honours would appreciate, that it was a request in respect of a non‑treaty State, so to that extent, quite distinct from what we have here.

To answer your Honour Justice Kirby’s request that the dicta of the Chief Justice upon which we rely be identified, if your Honours go to page 487 at about point 9 of the page, the former Chief Justice referring to the third of three questions that he had posed – in fact they were questions which were posed by a single Judge of the Court – asked:

How, if at all, has the Act impinged upon the prerogative of the Crown to seek and accept the surrender of a fugitive?  Doubtless, the prerogative to do so from a foreign state to which the Act applies has been wholly displaced.

GUMMOW J:   I know he said that.  So, what is the reasoning for saying that?

MR GRIFFITHS:   The reasoning for saying that, in our respectful submission, is that his Honour was satisfied – and correctly satisfied, in our respectful submission – that in circumstances where there is an extradition or treaty relationship between Australia and another State, the prerogative in respect of extradition has been entirely displaced and is governed exclusively by the 1966 Act.

KIRBY J:   This is the purest dicta, because his Honour has already acknowledged that it is not a request under the statute.

MR GRIFFITHS:   That is correct, your Honour.

KIRBY J:   However, you say such an experienced judge as Chief Justice Barwick and clever lawyers thought that it had bumped it out.

MR GRIFFITHS:   Absolutely, your Honour, and not only ‑ ‑ ‑

KIRBY J:   All right.  You have that notch on the board.

MR GRIFFITHS:   Thank you, your Honour.

KIRBY J:   You have a bit more problems with Justice Mason and Justice Jacobs, I think.

MR GRIFFITHS:   Yes, I will come to them.  We just mention that not only an experienced judge but perhaps a judge who was uniquely placed to understand the practicalities of these matters.

KIRBY J:   He had been the federal Attorney‑General so he would have been not unfamiliar with extradition law.

MR GRIFFITHS:   Yes, indeed.  Then the second aspect appears in the next sentence:

The Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined.

GLEESON CJ:   So that means that if, since 1932 or whatever was the date of this treaty with Poland, both Australia and Poland had enacted legislation to make it a crime to attempt to hijack an aircraft – I do not imagine that was in the 1932 treaty – then Australia could not lawfully, according to Australian law, request Poland to extradite a person for the offence of attempting to hijack an aeroplane.

MR GRIFFITHS:   If the only relevant instrument were the treaty that your Honour described, the answer to your Honour’s question is yes.  That is not to say, however, that it would not be within the capacity of Australia to alter that situation by reference to the power to make regulations under section 9 of the 1966 Act or, alternatively, under the current Act a regulation under section 11.

An old treaty, if I can use that expression, is not set forever in stone but in the absence of a relevant regulation modifying or amending the operation of the treaty by reference to an additional crime or offence being listed, the sort that your Honour just described to me, is something that can occur under section 11 but section 11(3) of the Extradition Act makes unambiguously plain that until such time as such a regulation is made and there is a treaty under an Order in Council, the Act applies subject to limitations, et cetera, in that treaty.  The language is very clear.

KIRBY J:   Would such a regulation still be valid though the alleged offence had already occurred?  Take, for example, some offence relating to the use of anthrax, which is a new problem.  Now, the offence happens.  Do you say under section 11 the regulations can be altered to permit a request to be made even though the offence is already completed?

MR GRIFFITHS:   There may be an issue, your Honour, about – if your Honour is putting to me would it be possible to make a regulation that operated retrospectively in respect of conduct that already had occurred, there may well be a real issue about that.

KIRBY J:   But the changing nature of crime, the developing nature of international crime, seems to be a good reason of principle why you would, as it were, keep the flexibility of the implied powers.

MR GRIFFITHS:   Absolutely, your Honour.  What your Honour and the Chief Justice have put to me are matters that have plainly been uppermost in the minds of the Parliament in relevant amendments to both the 1966 Act and the 1988 Act in terms of the definition of “extraditable crime” or “extradition offence”, where under those Acts the Parliament has moved towards the eliminative method of defining what crime or offences are able to be the subject of extradition from the enumerative method, which was the method that was employed in this old Act.

But the fact that that for historical reasons happened to be the method that was employed in the 1934 treaty is, from a legal viewpoint, neither here nor there.  The power exists for a regulation to be made which relevantly modifies, adds to or completely replaces the 1934 treaty but, until such action is taken, 11(3) unambiguously provides as I have described.

GUMMOW J:   There is a whole argument, is there not, that 11, of which 11(3) is but a part, is talking about what happens here, extraditing people from Australia.  Is there not an argument about that?

MR GRIFFITHS:   With respect, that is not an argument that we would accept because there is ‑ ‑ ‑

GUMMOW J:   Well, 11(4) certainly suggests it.  It talks about “surrender to the extradition”.

MR GRIFFITHS:   It does, indeed, your Honour, and it talks specifically about ‑ ‑ ‑

GUMMOW J:   Is there any other provision in 11 that talks about “extradition from” as distinct from “to”?

MR GRIFFITHS:   Not expressly.

GUMMOW J:   All right.

HAYNE J:   Which brings us back to this implication you would have us make in the treaty.  All of this argument is premised upon the unstated premise that there is a relevant limitation on making requests.  Where do we find it?

MR GRIFFITHS:   Yes, but with respect, I did not understand that to be the point Justice Gummow was putting.

GUMMOW J:   It is.

HAYNE J:   It is exactly the point, as I understood it.

MR GRIFFITHS:   I understood Justice Gummow was suggesting that 11(3) may have been limited in its operation to aspects of a treaty relating to extradition from Australia and not extradition to Australia.  That, of course, was a distinction which commended itself to a majority of the Full Court.

KIRBY J:   Though apparently not pressed and argued.

MR GRIFFITHS:   Not argued, and as we understand it, your Honour, not pressed by the Commonwealth.

GUMMOW J:   It is now, and it is a question of law, so huffing and puffing about it will not help much.

GLEESON CJ:   Mr Griffiths, just before you leave what Chief Justice Barwick said in Barton, could I direct your attention to one of the reasons he gave for what he said which appears on page 487 in the paragraph commencing with the words “The second matter”.

MR GRIFFITHS:   Yes, your Honour.

GLEESON CJ:   He seemed to treat the word “requisition” as meaning the same as “demand” and if, on that approach, it fits in with his proposition that where there is a treaty you can only, under the terms of the 1966 Act, make a demand for the extradition of a person in circumstances where the treaty obliges the other party to extradite.  But the word “requisition” has now been abandoned and we are dealing with the word “request”.  Where does that leave the reason that Sir Garfield Barwick gave on page 487?

MR GRIFFITHS:   Can I say the following things in response to that.  The first is to note that at about point 2 of the page the Chief Justice refers to these matters as being small matters.  The second point that we would emphasise is that the distinction between “request” and “requisition”, while one which was the subject of comments that your Honour has drawn my attention to, is ‑ ‑ ‑

GUMMOW J:   And later in Trimbole too.

MR GRIFFITHS:   Well, that is where I am heading, your Honour, but I am heading there with a different consequence.  If your Honours could go to Trimbole 155 CLR 186 – as I recall, Justice Gummow may have had some involvement in this case, yes. This is another case involving the 1966 Act rather than the 1988 Act, but your Honours will see from page 191 of the judgment reference to one of the grounds challenging the requisition in this case was the difference in language between “request” and “requisition”:

The final argument is that under s. 21 of the Act, the Attorney-General may make a requisition to a foreign state for the surrender of a person, and that the Attorney-General in the present case made a request, but not a requisition.

At the bottom of the page:

It is doubtful whether this point would have been regarded as a good one in the more literalistic days of the eighteenth century, but it certainly is of no validity at the present time when the courts prefer substance to mere form.

GLEESON CJ:   But this was under the 1966 Act which referred to “requisition”.

MR GRIFFITHS:   That is correct, your Honour.

GLEESON CJ:   We are dealing now with the construction of the 1988 Act which has changed the word “requisition” to “request”.  What is the significance of the change?

MR GRIFFITHS:   There is no significance in the change, in our respectful submission.  The notion of “request” is simply a more modern term, a more modern nomenclature to replace the older traditional language of “requisition”.

GLEESON CJ:   So it still means demand?

MR GRIFFITHS:   It is still a demand, in our respectful submission. 

McHUGH J: What is the significance in section 3 of the 1988 Act that codifies the law in relation to the extradition of persons from Australia but it merely facilitates the making of requests for extradition by Australia to other countries?

MR GRIFFITHS:   Relevantly, no particular significance.  We accept that Part IV of the 1988 Act deals with the making of requests and facilitates the making of requests, but it does not just stop there because that description of facilitating the making of requests is a description which has to be looked at in the context of relevant provisions in the Act and, in particular, section 11(3).

It is of course a point that Justice Lindgren relied upon in contrasting the provisions of the 1966 Act with the 1988 Act, but there is nothing, your Honours, in our respectful submission, in any of the extrinsic material, the explanatory memorandum or the second reading speech which would suggest that it was the Parliament’s intention in the 1988 Act to reverse or overturn any of the dicta of Chief Justice Barwick to which I have taken the Court.

McHUGH J:   That is almost a mystical way of lawmaking, is it not?

KIRBY J:   It is a big fiction which we have knocked on the head many times.

MR GRIFFITHS:   I understand that and I make ‑ ‑ ‑

KIRBY J:   As though they are sitting there reading everything we have to say, especially - - -

MR GRIFFITHS:   I understand what your Honour has put to me.  The submission that I am making to your Honours though is that Barton was decided in 1974.  There are amendments made to the 1966 Act in 1985 - and this is the material I wanted to take your Honours to - which impact upon the definition of “extraditable crime” in section 21 of the 1966 Act and then there are changes that are relevantly made to the language of section 40 of the 1988 Act.  But if any of those changes had been intended to bring about a dramatically different position to that which the former Chief Justice found, albeit in dicta, we accept, in Barton, one would have expected that there would be some reference in the extrinsic material to that intended change.  Not only is there no such reference but, on the contrary, as your Honours will see from the second reading speech, which was on our list, the second reading speech of 14 December 1987, Senator Tate in the Senate ‑ ‑ ‑

GUMMOW J:   Is that 9 December?

MR GRIFFITHS:   I have 14 December, your Honour.  My learned friend has a copy of the Attorney’s speech in the House of Representatives, which is in substantially similar terms - it is dated 28 October 1987.  My copy of Senator Tate’s speech, the Minister for Justice, in the Upper House is dated 14 December 1987.

GLEESON CJ:   We do not seem to have that.

HAYNE J:   This is a search for something that you tell us we will not find in there, so what are we doing?

MR GRIFFITHS:   What I am doing, your Honour, is simply indicating that if there had been an intention to depart from what Chief Justice Barwick found in Barton, one would have expected some reference to it.

HAYNE J:   You tell us it is not here.

MR GRIFFITHS:   It is not there, your Honour.

KIRBY J:   This is scraping the bottom of the barrel, Dr Griffiths.  I mean, you have some dicta by the Chief Justice, it was not necessary for the case, it was only his dicta, the two other Justices who referred to it do not say the same thing, and you are saying that the Parliament has to turn its attention to the dicta before it changes the law.  It is just not the way laws are made and the Court has said so many times, so you are grasping at insubstantial things when there are important issues in this appeal.

MR GRIFFITHS:   Absolutely, there are, your Honour, and I will not press the matter other than if I may be permitted to say that the second reading speech acknowledges that the Bill does amend extradition laws.  There is a suggestion in Justice Conti’s dissenting judgment that there was a statement that there were no changes and his Honour was correct in referring to a particular paragraph of the second reading speech.  We accept that there were changes, but what the second reading speech is significant for is the fact – and I quote – the second paragraph says: 

As the Bill is substantially a consolidation of existing laws I propose, in this introduction, to concentrate upon changes to the current laws.

So the changes are being expressly addressed, and no reference in any of that discussion to ‑ ‑ ‑

McHUGH J:   But what about the last paragraph of the speech, where the Attorney said: 

As I stated at the beginning of this speech, this legislation is the result of a comprehensive review of the efficacy of the current extradition laws.  It embodies much of the wisdom of our courts which has been gleaned from judgments . . . It seeks to recognise modern problems and to resolve them ‑ ‑ ‑

MR GRIFFITHS:   That passage your Honour has put to me simply confirms that which I think we are all agreed upon, and that is that extrinsic material of this sort is rarely conclusive.  We do not suggest that it is conclusive or determinative in this instance; we simply refer to it for the purpose that I have just described, that it contains no clear identification of any intention to change the law in a way which would alter Chief Justice Barwick’s dicta. 

If your Honours go behind tab 3 where we were, which is the 1966 Act at the time of Barton and if your Honours go to page 11 in handwriting in the top right‑hand corner – these pages are consecutively paginated in handwriting – your Honours see that at the time of Barton, section 20 defined an “extraditable crime” as: 

an offence (wherever committed) against the law in force in Australia or in a part of Australia, being an offence that –

(a)  is described in Schedule 1;

and Schedule 1 was effectively an enumerative list.  Section 21 dealt with the Attorney’s power to make a requisition to that State for the surrender of the person and section 23 dealt with the principle of speciality.  The notion of “extraditable crime” is reflected also, almost in terms, in the 1966 Act, in the definition of “extradition crime”, which was the relevant concept for the purposes of extradition from Australia, as opposed to to Australia, with which Part IV was concerned.  The definition of “extradition crime” is to be found in section 4(1)(a). 

If your Honours could also turn to Part II, at page 10A, your Honours see Part II of the 1966 Act deals, under the heading “Application of Act”, with provisions of some importance to this appeal, particularly 9(1) and 9(2).  Section 9(1) provides that where you have an Order in Council such as we have here with Poland, then: 

this Act applies in relation to that state. 

Subsection (2): 

If the operation of the Order was subject to any limitations –

et cetera, then provision in the remaining subsections of 9 for regulations to be made to effectively undo the operation of section 9(1). 

Now, those were the provisions, as I say, that were in force at the time of the Barton Case.  I have taken your Honours to the dicta upon which we rely of the Chief Justice at the bottom of pages 487 to 488.  I have made reference to Justices McTiernan and Menzies taking the view that section 21 had no application at all to the request to Brazil because it was not a request made pursuant to section 21, as their Honours found at page 489 at about point 7.

Your Honours will also see at the bottom of page 490 in that joint judgment, however, in the context of the distinction between the concept of unlawfulness and invalidity of a request that the two Judges in question relevantly recognised the possibility that there could be a statutory prohibition which might operate to restrict the power or lawfulness of the Government of Australia asking another country to take some step associated with surrendering a person to Australia.  The recognition that a statute could bear upon that power is again repeated by their Honours at page 491 in the first full paragraph:

Accordingly we are satisfied that unless statute, either expressly or by necessary implication, has deprived the executive of part of its inherent power, it may make such requests as it considers proper for the assistance of other states in bringing fugitive offenders to justice.

GUMMOW J:   Now, section 40, as one might expect, simply fixes upon offences against Australian law, which is later explained to include State law:

of which the person is accused or of which the person has been convicted –

Right?

MR GRIFFITHS:   Yes.

GUMMOW J:   And it talks about making a request to a country.  It does not use the phrase “extradition country”.

MR GRIFFITHS:   Absolutely, your Honour, and that was one of the reasons why we are going through this exercise.

GUMMOW J:   But 11(3) does.

MR GRIFFITHS:   But 11(3) does.

GUMMOW J:   Yes.  Well, all of it suggests that 11 is talking about something different to 40.

MR GRIFFITHS:   Yes.  With respect, the point that your Honour has emphasised ‑ ‑ ‑

GUMMOW J:   An extradition country is a country wanting someone back there, not somewhere in which we want to get somebody back.

MR GRIFFITHS:   In our respectful submission, section 11(3) is not confined in that ‑ ‑ ‑

GUMMOW J:   We are worried about the laws of Australia.  We are not concerned in section 40 to mimic or parse them in some sort of way.  Why would we be?

MR GRIFFITHS:   We are, with respect, concerned with the laws of Australia because section 11(3) provides that:

Until the regulations make provision as mentioned in subsection (1) ‑ ‑ ‑

McHUGH J:   Yes, but the whole context of 11(3) supports the proposition that it is concerned with extradition to other countries.  Section 6 is talking about an “extraditable person”, section 7 deals with an “extradition objection”, section 8 clearly deals with the country seeking extradition, so does section 9, so does section 10.  Then in section 11 you have various provisions such as subsection (4), subsection (5) and so on talking about sufficiency of evidence.  The whole section seems to be concerned with protecting people against being extradited from Australia to a foreign country.

HAYNE J:   The central thesis of your contention is that the courts of Australia should pass upon the extent of the obligations of a foreign State.  The central plank of your argument is that the Australian courts should determine whether the State of Poland is bound to return this man.  Now, why should the courts of Australia determine the extent of the obligations of a foreign State as a matter of implication from an Order in Council?

MR GRIFFITHS:   For the simple reason, your Honour, that what we ask the Court to do is to not rule on the obligations of a foreign State but rather to rule upon limitations and restrictions that apply to the exercise of power under the 1988 Extradition Act, an Australian law, by the Attorney.  It is the Attorney who is ‑ ‑ ‑

HAYNE J:   Because you say that the relevant restriction on the Attorney is that the Attorney may not request except where the foreign State is bound.

MR GRIFFITHS:   That is correct, your Honour, and we put that proposition on the basis of 11(3) and, with respect, do not accept that 11(3) is confined – that 11(3) is simply a one‑way street operating only in respect of ‑ ‑ ‑

HAYNE J:   I wait with baited breath for us to go to the Order in Council and find this implication on which the whole of this argument is presently hanging, Mr Griffiths, but we will come to it in due time no doubt.

MR GRIFFITHS:   Your Honours, insofar as the change in language to which Justice Gummow refers, what section 40 does, as his Honour has indicated, is strip away the notion of extraditable crime, which was evident in section 21, and it is evident that section 40 was intended to apply to requests for extradition not only in respect of treaty States but also in respect of non‑treaty States – we accept that – and that section 40 achieved that result may well be partly explained by the submission that was put to the Court by the Commonwealth in the Barton case. If your Honours go to 131 CLR at 499, your Honours see in the judgment of Justice Mason reference to:

The Solicitor‑General submitted that authority for the making of the request . . . to Brazil . . . was given by s. 21 of the Commonwealth Act which enables the Attorney-General to make a requisition to a foreign state for the surrender of a person accused or convicted of an extraditable crime.

So there is a little of an irony in that, the submission being made power to request detention, pending extradition, was a power to be found in section 21.  That argument was rejected by the High Court.  It is rejected in the judgment of the Chief Justice, in terms of the dicta that I have taken the Court to.  It is rejected by Justice Mason, if your Honours see at page 499 at about point 7 of the page, his Honour’s inability to read Part II in a way which would lend itself to that submission, and Justice Jacobs, similarly, at page 507.  At about point 5 of the page, his Honour says:

On behalf of the Australian Government it has been submitted that Pt IV of the Act –

that is extradition to Australia –

applies to all extradition from foreign states whether or not there is a treaty within s. 9 or within s. 10 –

et cetera.  Your Honours then see at the beginning of the next paragraph:

In my opinion it is quite clear that Pt IV of the Act deals only with extradition from foreign states with whom there is an extradition treaty effective either under the previous legislation –

And his Honour further down the page gives particular emphasis to the importance of the “plain effect” of sections 9, 10 and 11 of the 1966 Act, and his Honour concludes that Part IV is to be given:

an application limited to circumstances where such a treaty exists and pursuant to ss. 9 and 10 the Act is thereby expressed to apply.

The 1988 Act in the new formulation appears to give effect to that submission, but nevertheless, even though section 40, we accept, contemplates a request being made to both or either a treaty or a non‑treaty State still, in our respectful submission, leaves the issue of section 11(3) operating in respect of the exercise of that power.

GUMMOW J:   Are you going to get to the treaty?

MR GRIFFITHS:   I am going to the treaty, your Honour.  The treaty, of course, is to be found at page 37 of appeal book 1.  If I could draw your Honours’ attention to Article 1 at page 38:

The High contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused . . . offences enumerated in Article 3 –

Article 3:

Extradition shall be reciprocally granted for the following crimes or offences when they are punishable in accordance with the laws of both the High Contracting Parties –

Your Honours see the list, your Honours see point 19 is the relevant provision.  Your Honours, since we are here, at page 40, also see after point 29 reference to:

Extradition is also to be granted for participation in any of the aforesaid crimes or offences –

Your Honours will appreciate from my learned friend’s submissions that the point is made that that language alone is sufficiently wide to ‑ ‑ ‑

GUMMOW J:   I am sorry, where are you?

MR GRIFFITHS:   I beg your pardon, your Honour, page 40 ‑ ‑ ‑

GUMMOW J:   Yes.

MR GRIFFITHS:   Just below point 29 of Article 3, there is a paragraph which starts, “Extradition is also to be granted”.

GUMMOW J:   Thank you.

MR GRIFFITHS:   Your Honour, I am dealing with this because it is convenient to deal with it ‑ ‑ ‑

GUMMOW J:   Yes, I see.

MR GRIFFITHS:    ‑ ‑ ‑although it is a little aside from the fundamental direction which I am taking.  Our learned friends suggest that the reference to “participation” in that context is sufficiently broad to cover or include in the list of offences conspiracy to defraud.

HAYNE J:   What does the expression “participation  . . . before . . . the crime is committed” encompass?

MR GRIFFITHS:   Any relevant form of secondary or assessorial liability as opposed to inchoate liability in the form of ‑ ‑ ‑

HAYNE J:   Would it include attempt?

MR GRIFFITHS:   It would not include attempt, in our respectful submission.  More particularly, it does not include conspiracy for the reason that I just gave but, in addition, strengthened by the fact that there are two, of course, references in Article 3, and other points of Article 3, to the inchoate crimes of conspiracy being relevant extraditable offences, namely in respect of murder and revolt.  So we do not accept that “participation” is there as some sort of catchall in order to apply the notion of inchoate liability for conspiracy to each and every one of the crimes above.

HAYNE J:   That is, it is a narrower class than that identified in item 35 to schedule 1 of the Extradition (Foreign States) Act 1966 (Commonwealth) which referred to “aiding, abetting, counselling or procuring commission of, being an accessory before or after the fact to, or attempting or conspiring to commit an offence”.

MR GRIFFITHS:   Indeed, your Honour.  Now, returning then to the treaty, your Honours see in Article 7 at page 41 a stipulation that:

A fugitive criminal shall not be surrendered if the crime or offence in respect of which his surrender is demanded –

is one “of a political character”.  Article 9 then contains certain stipulations regarding the making of a “requisition for extradition” and, more particularly, who is the relevant party to make such a requisition and to whom that requisition should be made, as well as providing in Article 9 for requirements for particular evidence to accompany the requisition in order that the dual criminality provision can be appropriately addressed by the requested State.

GLEESON CJ:   Could I interrupt you to ask you a question relating to the background of this matter. Mr Oates has been before the courts in Poland on a number of occasions.

MR GRIFFITHS:   Yes, he has.

GLEESON CJ:   Have they ruled that Poland has extradition obligations in respect of him under this treaty?

MR GRIFFITHS:   They have recently ruled that the more recent treaty, not the 1934 treaty in respect of which this request was made, is under Polish law, the relevant treaty.  That is a ruling that was delivered about a fortnight ago, and since your Honour has asked, it might assist ‑ ‑ ‑

GLEESON CJ:   I do not want to take you off the course of your argument.

MR GRIFFITHS:   No, it is perfectly – I thought the question would come, your Honour, so we took the liberty of preparing a chronology.  My learned friend has not seen this before, although he did see a similar one which was handed to the Full Court.  If I could hand to your Honours a chronology of Polish proceedings since the judgment of the primary judge in this appeal.

GLEESON CJ:   In all events, the Polish Government is ready, willing and able to send him back.

MR GRIFFITHS:   As matters stand at present ‑ ‑ ‑

GLEESON CJ:   You mean until September?

MR GRIFFITHS:   Well, no.  If your Honour goes to the last of the pages, to paragraph 14, that is the judgment I was referring to.  It is a judgment of the Supreme Court of Poland.  I am instructed that only oral reasons were delivered.

KIRBY J:   Is this the Constitutional Court of Poland?

MR GRIFFITHS:   It is the equivalent of this Court.  I understand that there is a separate ‑ ‑ ‑

KIRBY J:   I thought your client did have a case earlier in the Constitutional Court of Poland.

MR GRIFFITHS:   I believe that there was, your Honour, but this is a different court.

KIRBY J:   I know Judge Walecki of that court.

MR GRIFFITHS:   The Supreme Court became involved by way of a remitter to it, although it seems a rather unusual choice of language, given its primacy in the hierarchy but if your Honour sees paragraph 13 of the chronology, the Court of Appeal in Gdansk:

ordered that the question regarding which Treaty should apply be remitted to the Supreme Court of Poland at Warsaw –

which resulted in the oral judgment that is the subject of paragraph 14.

KIRBY J:   I do not see in this chronology the reference to the Constitutional Court of Poland, but my clear recollection was that your client went to that court and had a win.  I may be wrong.

MR GRIFFITHS:   Your Honour is correct and the reason why it is not in this chronology is because this chronology is limited, your Honour, to proceedings since the judgment of his Honour Justice Lindgren.  What your Honour refers to is proceedings taken by Mr Oates successfully in a court in Poland.  It may well have been the Constitutional Court in which he was successful in establishing that his detention in Poland for some six months, pursuant to the request which is the subject of these proceedings, was unlawful.

KIRBY J:   That is right, and he received an apology from the Government of Poland for that.

MR GRIFFITHS:   Yes, and he was content to rely upon that apology.  Your Honour, that is referred to in the judgment of ‑ ‑ ‑

KIRBY J:   Yes, I have read it.  Justice Heydon draws my attention to an earlier chronology which says that this was on 24 May 1997 and it was described as the Supreme Court of Poland, so apparently it is the same…..  Anyway, do not worry about it; it does not seem to be relevant.

MR GRIFFITHS:   Yes.  Justice Heydon may well be looking at pages 61 and 62.

HEYDON J:   Yes.

MR GRIFFITHS:   Yes, the bottom of page 61, going over to page 62.  Let me make that clear.  The last five lines of paragraph 14 of our chronology is our language.  I should make that clear.  We intended to convey that by using the “NB”, note well.  It is effectively a submission, but it foreshadows what might happen over in Poland.  It is not an aspect of any ruling that is made by the Supreme Court of Poland.

Your Honours, if I could go back then to Article 10.  Article 10 provides:

If the requisition for extradition be in accordance with the foregoing stipulations, the competent authorities of the State applied to shall proceed to the arrest of the fugitive.

“Foregoing stipulations”, in our respectful submission, is not confined to that which appears in Article 9 but picks up other stipulations as well, both express and implied.  Now, in Article 7, there is an express stipulation in terms of a demand or, to use perhaps the better terminology, requisition “is one of a political character”, then the fugitive “shall not be surrendered”.  In the same vein, although the language is different and there is no express stipulation, in our respectful submission, Articles 1 and 3 need to be read in a way which impliedly introduces a stipulation that a request can only be made in respect of a crime or offence which is listed in Article 3.

KIRBY J:   The respondent in its written submissions said that you have to win on six arguments.  Do you accept that proposition?  At the beginning of its written submissions.  I am just asking that because on one view the core of this case, assuming all the premises in your favour, is whether or not within the old treaty, if it still applies, contrary to the opinion of the Supreme Court of Poland, the conspiracy offence is participation in any of the foregoing crimes.

MR GRIFFITHS:   Yes.

KIRBY J:   If you took the view that contrary to your expressio unius argument that conspiracy is referred to elsewhere but that, construing the treaty, that is a phrase wide enough to incorporate the offences under the Australian and Western Australian law then that would be the end of the matter, would it not, from your client’s point of view?

MR GRIFFITHS:   No, it would not, your Honour.  It would only deal with the single charge in respect of the offence of conspiracy to defraud.  It would leave the other charges in respect of the other two offences under the Companies Code still ‑ ‑ ‑

KIRBY J:   They do not come within participation in any of the aforesaid crimes?  I would have thought, arguably, they do.  I do not want to take you off your track because I am already getting a bit lost myself, but the mind struggles in a case of this complexity for a swift way home.  The substance of your client’s complaint, as I understand it, is the treaty does not match up with those Western Australian offences and therefore a request to exercise the powers under the treaty is not valid and applicable in your client’s case.  It is not Poland’s duty; it is the minister should not be asking for it because the treaty does not bite.

MR GRIFFITHS:   Yes.  That is correct.

KIRBY J:   Now, put to one side the recent ruling of the Polish Supreme Court which says this treaty is irrelevant and address ourselves to that core, if you lose on that, it seems that you have had a fatal ruling and, in a sense, on a merits point.

MR GRIFFITHS:   Yes, that is correct, your Honour.  If what your Honour is putting to me is to say that you are against me and you are against the joint advice ‑ ‑ ‑

KIRBY J:   Assume all the other points in your favour and go to the bottom line.

MR GRIFFITHS:   If you are against me on that, we must lose without regard to the other points.

KIRBY J:   Yes.

MR GRIFFITHS:   Implicit in what your Honour puts to me is a rejection of the views expressed and approach taken in the joint advice.

KIRBY J:   They are just barristers.

MR GRIFFITHS:   Indeed.

McHUGH J:   Are you taking a legalistic view of the section?

KIRBY J:   Which Chief Justice Gibbs et al said we do not do nowadays since the 18^th century.  That came as a surprise to me.

MR GRIFFITHS:   With respect, it is not a legalistic view of the section; it is a view which reflects the nature of the task, the nature of the task being one of a proper construction ‑ ‑ ‑

KIRBY J:   Of an international treaty.

MR GRIFFITHS:   ‑ ‑ ‑ of an international treaty but, more particularly, a construction of a treaty by reference to the express terms of a request which seeks to engage the obligations under that treaty.  The request is at page 23.  The request is not in terms of extradite back to Australia Mr Oates for the offence of fraud by a director, which is the language of point 19, rather, the request is in terms of three specific offences, multiple counts in respect of the latter two, which implicitly are considered by the Attorney to be offences which fit within the genus of point 19, namely, fraud by a director.

Whether or not those specific offences fit within that description, in our respectful submission, is fundamentally a question of law.  It is a question of construction of the treaty by reference to the essential legal elements of the specified offences for which extradition is sought.

GLEESON CJ:   Dr Griffiths, section 11(3) is the basis of your primary argument, is that right? 

MR GRIFFITHS:   It is, indeed. 

GLEESON CJ:   What do you make of the introductory words to subsection (3)? 

MR GRIFFITHS:   You mean “Until the regulations make provision”, your Honour? 

GLEESON CJ:   Yes.  If you look at the heading before section 11, it tells you what 11 is about, does it not?  The introductory words of subsection (3) talk about the application of the Act in relation to an extradition country “Until the regulations make provision” in relation to that extradition country, “subject to any limitations”, et cetera.  That seems to be about qualifying the operation of the Act in relation to a particular country, does it not? 

MR GRIFFITHS:   Well, in relation to a particular treaty, which is referred to as a “bilateral extradition treaty in relation to the country”, the language of subsection (1) is not a one‑way street.  It unquestionably refers to “extradition country”, but does so in the context of giving effect to a bilateral extradition treaty, which, by definition, is a two‑way street. 

GLEESON CJ:   Now, the limitation you are seeking is a limitation on the capacity to request extradition.  The treaty, or the Order in Council, is to do with the obligations of a country to extradite. 

MR GRIFFITHS:   Yes, obligations which are enlivened, though, by the making of a requisition. 

GLEESON CJ:   Where is the obligation not to make a request unless certain conditions are fulfilled? 

MR GRIFFITHS:   There is no express obligation of that sort. 

GLEESON CJ:   But you seek to imply such an obligation. 

MR GRIFFITHS:   I seek to imply it, your Honour.  I seek to imply it by reference to the fact that the treaty contemplates that the obligation to surrender is one which is enlivened by the making of a requisition. 

KIRBY J:   The bottom line is that although the treaty imposes obligations on Poland, and that, between nation States, out of comity and friendship, they can ordinarily make requests and do anything they want in their bilateral relations, that because there is this treaty dealing with obligations that therefore there is implied a limitation on the friendly relations. 

MR GRIFFITHS:   Well, it is not friendly relations, with respect.  It is an obligation that operates in respect of the request which was made by the Attorney, being a request made under section 40. 

GLEESON CJ:   But if you are right, it follows that Poland in 1934 entered into an undertaking the consequence of which would be that if in 1995 they requested Australia to send back to them an aircraft hijacker, the making of that request would be in breach of their treaty obligations. 

MR GRIFFITHS:   Possibly, it could be.  It would depend ‑ ‑ ‑

GLEESON CJ:   It would have to be, on your argument. 

MR GRIFFITHS:   Would it not depend, though, your Honour, on whether or not there is within Poland a relevant statutory regime which reflects the statutory regime which we have here? 

GLEESON CJ:   No, because your argument is that there is an implied obligation in the treaty or in the Order in Council not to make a request except in certain circumstances. 

MR GRIFFITHS:   I do not rule out the possibility, your Honour, that if such a request were to be made, in the hypothetical that your Honour put to me, that appropriate proceedings might be taken in Poland to enforce any relevant municipal law. 

HAYNE J:   But what is the process of implication that you are saying one undertakes?  Are you saying that you imply something to make the treaty work?  Are you saying that there is a conclusion which is derived from the words of the treaty?  What implication is it that you would have us make? 

MR GRIFFITHS:   The implication is one which we submit flows from the fact that the treaty is unequivocal in its terms in limiting or circumscribing the offences which attract an obligation to surrender.  So it is to make ‑ ‑ ‑

HAYNE J:   Why does that lead to the conclusion that you cannot request something beyond what is obliged?

MR GRIFFITHS:   Because section 11(3) operates in relation to the statutory machinery function exercised by the Attorney, in this case ‑ ‑ ‑

HAYNE J:   No, you just slipped the argument out of where it was originally rooted.  The argument, as I understood it, was originally rooted in the proposition that the Order in Council imposes a limitation which is applied and the Order in Council imposed a limitation which is to be applied because the treaty contained this implied limitation.  Where do we find the implication in the treaty?

MR GRIFFITHS:   The implication in the treaty – I may have misunderstood what your Honour is putting to me.  Section 9 of the 1966 Act, section 11 of the 1988 Act contain specific provisions which expressly provide that those respective Acts apply to treaty States subject to any limitations, conditions, qualifications, et cetera, contained in a treaty.  That is what 11(3) provides.

McHUGH J:   Yes, but you have to get the implication from the treaty.  Section 11(3) can only operate, according to your argument, on an implication that exists anterior to the enactment of the 1988 Act.

MR GRIFFITHS:   That is right.  I accept that, your Honour.

McHUGH J:   How do you draw this implication out of the treaty?  I mean, if a man is under an obligation to pay maintenance to his wife, he is not precluded from giving her more if she requests him.  So how do you get out of the obligations imposed by the treaty an implication that neither country can request the other to extradite people outside the treaty?

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 4.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.06 PM:

GLEESON CJ:   Dr Griffiths, in the course of discussion some question was raised about the possible invalidity of the Order in Council.  We would like to hear what you have to say about that right now.  In other words, I can see why that hurts your case, if it is right.

MR GRIFFITHS:   Yes.

GLEESON CJ:   Is there any way in which it could possibly help it?  If the Order in Council were invalid, that would throw you into the Barton territory, would it not?

MR GRIFFITHS:   I think it would, your Honour.  We were just discussing it during your adjournment.  I have to say my current position, on the basis of the short time that we have had to consider it, is that if it was correct it could only hurt our case, not help our case, because it would put us then into a section 40 application in respect of a non‑treaty State and we could not have resort, it would appear, to section 11(3) at all.

GLEESON CJ:   Yes.  Your argument embraces the Order in Council.  It relies on it.

MR GRIFFITHS:   It does, your Honour.

GLEESON CJ:   Yes, thank you.

MR GRIFFITHS:   If the Court pleases.

GLEESON CJ:   In this matter the Court is of the opinion that the appeal should be dismissed, with costs, and we make that order now.  We will deliver our reasons for that order in due course.

MR GRIFFITHS:   If the Court pleases.

GLEESON CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.07 PM THE MATTER WAS CONCLUDED