Rahardja v The Governor, Long Bay Hospital

[2002] NSWSC 1249

CITATION:

RAHARDJA v THE GOVERNOR, LONG BAY HOSPITAL & ANOR [2002] NSWSC 1249 revised - 10/01/2003

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 11705/02

HEARING DATE(S):

28/06/02, 12/07/02, 24/07/02, 18/10/02, 1/11/02

JUDGMENT DATE:

31 December 2002

PARTIES :

Hendra Rahardja (Plaintiff)

v

The Governor, Long Bay Hospital (First Defendant)
The Republic of Indonesia (Second Defendant)
The Commonwealth of Australia (Third Defendant)

JUDGMENT OF:

Adams J at 1

COUNSEL :	Mr N Hutley SC, Mr M Lee (Plaintiff) Mr P Roberts SC, Mr T Reilly (Second Defendant) Mr D Bennett QC, Ms R Sofroniou (Third Defendant (the Minister for Justice & Customs) and for the Attorney-General of the Commonwealth, intervening as of right)
SOLICITORS:	Corrrs Chambers Westgarth (Plaintiff) I V Knight (Second Defendant) Commonwealth Director of Public Prosecutions
CATCHWORDS:	Extradition - part-heard proceedings in Supreme Court - surrender warrant issued - proceedings under s39B Judiciary Act 1903 - whether should be cross-vested to Federal Court - whether "special reasons" present - whether merits of part-heard proceedings material - s6 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
LEGISLATION CITED:	Extradition Act 1988 Extradition (Republic of Indonesia) Regulations 1994 Jurisdiction of Courts (Cross-Vesting) Act 1987 Constitution of Australia Judiciary Act 1903 Federal Court of Australia Act 1976
CASES CITED:	Rahardja v Republic of Indonesia [2000] FCA 1297 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 67 CLR 637. NEC Information Systems Australia Pty Limited v Iveson & Ors (1992) 36 FCR 258 Pridmore & ors v Magenta Nominees Pty Ltd & Ors [1998] WASC 318 (21 October 1998) Overlook Management BV v Foxtel Management Pty Limited [2001] NSWSC 682 Re Wakim; Ex parte McNally (1999) 73 ALJR 839 Matland Holdings Pty Limited v NTZ Pty Limited (1999) 157 FLR 364 Minister for Immigration v Msilanga (1992) 34 FCR 169 Ruddock v Vadarlis (2001) 110 FCR 491 Liversidge v Anderson [1942] AC 206 Westpoint Corporation Pty Limited v Coles Supermarkets Australia Pty Limited (1996) 71 FCR 584 Re Williams: Ex parte Oates 140 FLR 124 Computershare Limited v Perpetual Registrars Limited & Ors (No 3) [2000] VSC 286
DECISION:	Order that the proceedings be retained in the Supreme Court of New South Wales.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

31 DECEMBER 2002

11705/02 –RAHARDJA v THE GOVERNOR, LONG BAY GAOL & ANOR

JUDGMENT

1 HIS HONOUR: Dr Hendra Rahardja is charged with two offences under the Banking Law (the banking offences) of the Republic of Indonesia (the Republic), of which country he is a citizen. It is alleged that, when the senior executive officer of a bank in Djakarta, Indonesia during 1991 and 1996, Dr Rahardja instigated a number of transactions which, in effect, unlawfully procured for companies in which he had a direct or indirect interest very large sums of money, totalling in excess of $US400 million, although this may now have been reduced somewhat because of currency fluctuations.

2 Extradition from Australia to extradition countries is governed by Part 2 of the Extradition Act 1988 (the Act). Before dealing with these provisions, it is convenient first to note the effect of s11, which gives effect to particular extradition treaties prescribed by Regulation. The Extradition Treaty between Australia and the Republic (the Treaty) applies to Dr Rahardja’s extradition by virtue of the Extradition (Republic of Indonesia) Regulations 1994 (the Regulations). So far as relevant, the Treaty provides –

“Article 9(1) Extradition shall not be granted in any of the following circumstances:

(a) where the person sought has acquired exemption from prosecution or punishment by reason of lapse of time or other lawful cause according to the law of wither Contracting State in respect of the Act or omission constituting the offence for which extradition is requested.”

3 Article 9(2)(d) provides that extradition may be refused “if the competent authorities of the Requesting State have decided in the public interest to refrain from prosecuting the person for the offence in respect of which the extradition is requested”.

4 The process prescribed in Part 2 of the Act commences with an application 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. If the Magistrate is satisfied that the person is an extraditable person then a warrant is issued for his or her arrest. The Magistrate then notifies the Attorney-General of the issue of the warrant and the Attorney-General may, in certain specified circumstances, order that the warrant be cancelled. Sections 13 and 14 provide for search and seizure. Section 15 provides that a person who is arrested under a provisional arrest warrant must be brought before a Magistrate and must be remanded in custody unless there are special circumstances for remanding the person on bail. In certain circumstances, the Attorney-General may, by warrant in the statutory form, require a “transferee” to be taken by a police officer to appear before a Magistrate in a specified State or Territory. Section 16 deals with notification by the Attorney-General of an extradition request to a Magistrate for the purposes of conducting extradition proceedings against that person. No such notification is to be given unless the Attorney-General is of the opinion that the person is an extraditable person and that the alleged conduct constituting the extradition offence or offences would, if it had occurred in Australia, constitute an extradition offence here or, otherwise, if the Attorney-General is of the opinion that there is an extradition objection relating to the alleged offence or offences. An extradition objection is defined by s7 of the Act but – as will be seen – this is not presently material.

5 Section 19 of the Act governs the determination of eligibility for surrender in a proceedings conducted by a Magistrate following notice from the Attorney-General given in accordance with s16 of the Act. The person is only eligible for surrender if certain requirements as to documentation, character of offence and absence of an extradition objection are satisfied. These matters are not presently in issue. Subsection 19(9) provides that where the Magistrate determines that the person is eligible for surrender he or she shall commit the person to prison by warrant in the statutory form “to await surrender under a surrender warrant …or release pursuant to an order [made by the Attorney-General] under subsection 22(5)”: par 19(9)(a). If the Magistrate determines that the person is not eligible for surrender the person is ordered to be released: subs19(10). Section 21 provides for review of the Magistrate’s order whether to commit the person to prison to await surrender or to order release by application to the Federal Court or to the Supreme Court of the relevant State or Territory. The Court may confirm the order of the Magistrate or quash it and direct the Magistrate to order release of the person or, in the obverse situation, direct a Magistrate to order, by warrant in the statutory form, that the person be committed to prison to await surrender. Provision is made for appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court. On appeal, the Court can have regard only to the material that was before the Magistrate; interim orders can be made either for the arrest or release on bail of the person, as the Court thinks fit, pending determination of the review or the appeal: subs21(6).

6 Section 22 of the Act deals with the determination by the Attorney-General as to the surrender of the person committed to prison (the “eligible person”). The Attorney-General is required to determine whether the eligible person is to be surrendered “as soon as is reasonably practicable, having regard to the circumstances”: subs22(2). By virtue of pars 22(3)(a), (b), (c) and (d), an eligible person can only be surrendered if the Attorney-General is satisfied, amongst other things, that there is no extradition objection in relation to the extradition offence, the person will not be subjected to torture when surrendered, if the offence is punishable by the death penalty, there is an undertaking by the extradition country, in effect, excluding the risk of execution and the extradition country has given a speciality assurance as to detention for offences other than the extradition offence. Paragraph 22(3)(e) provides that where, as here by virtue of Article 9(1)(a) of the Treaty, there is a “limitation, condition, qualification or exception” having the effect that “surrender of the person in relation to the offence shall be refused…in certain circumstances”, the Attorney-General must be satisfied that those circumstances do not exist before surrender can be ordered. Paragraph 22(3)(f) adds the requirement that the Attorney-General must also consider that the person should be surrendered in relation to the offence. Where the Attorney-Generaldetermines that the eligible person should not be surrendered, an order in writing is made for his or her release: subs22(5).

7 Dr Rahardja came to Australia on 1 June 1999. On that day, after application made on behalf of the Republic under s12(1) of the Act, a Magistrate issued a warrant for his arrest. The warrant was executed on the same day and Dr Rahardja was taken to prison. On 28 June 1999, the Republic requested Dr Rahardja’s extradition to Indonesia. On 9 July 1999, the responsible Minister signed a notice under s16(1) of the Act and, after copies of the documents supporting the extradition request were made available to Dr Rahardja’s legal representatives, extradition proceedings under s19 of the Act commenced. On 17 September 1999 the Magistrate ordered, pursuant to s19(9) of the Act, that Dr Rahardja be committed to prison by warrant to await surrender.

8 Dr Rahardja applied to the Federal Court of Australia under s21 of the Act for a review of the Magistrate’s decision and for bail in the meantime. On 6 October 1999 the applications came before the Federal Court. On 15 October 1999, Tamberlin J refused bail. On 28 and 29 March 2000 a review under s21 of the Act of the order that Dr Rahardja was eligible for surrender was conducted by Tamberlin J and, on 16 May 2000, his Honour ruled in favour of the Republic, rejecting Dr Rahardja’s application and confirming the Magistrate’s order.

9 In the proceedings before Tamberlin J, the applicant argued that there were substantial grounds for believing there was an “extradition objection” within the meaning of s7 of the Act and, secondly, that appropriate documentation was either not provided or was insufficient. So far as the first matter was concerned, Dr Rahardja contended that the extradition objection, based on prejudice at trial or in the form of punishment by reason of race had been made out and that the Magistrate’s determination to the contrary was in error. In this respect, Dr Rahardja relied on the evidence of a number of expert witnesses to the effect that there was little or no prospect that he would receive a fair trial if extradited to Indonesia. Tamberlin J, however, concluded as follows –

“[40] In this case it is important not to lose sight of the specific question for determination. That is, there are substantial grounds for believing that the applicant, taking into account all the circumstances, including his ethnicity, the judicial and social system in Indonesia, and the magnitude of his alleged crime, may be prejudiced or punished or otherwise adversely differentially treated by reason of his Chinese ethnicity. Despite the voluminous evidence in relation to social and longstanding cultural discrimination against ethnic Chinese in Indonesia, that specific question was not adequately addressed by the experts in the evidence. I do not think there is any substantial evidence that this applicant may be prejudiced at his trial on the ground of his Chinese ethnicity , or would be treated any differently from any other Indonesian accused of similar crimes.”

10 In the result, noting that no evidence was led by Indonesia to counter the evidence given by Dr Rahardja’s witnesses, Tamberlin J nevertheless found that he had not satisfied the onus of establishing an extradition objection. For reasons to which it is not necessary to advert, Tamberlin J rejected also Dr Rahardja’s contentions concerning the authentication and sufficiency of the extradition documents. Accordingly, the orders made by the Magistrate were confirmed.

11 On 23 May 2000 Dr Rahardja gave notice of his appeal to the Full Court of the Federal Court from this judgment. On 14 July 2000 Dr Rahardja issued a summons in this Court seeking a writ of habeas corpus and an order that he be released from custody forthwith. The summons was heard by me shortly afterwards and, by ex tempore judgment delivered on 2 August 2000, I dismissed the summons. It is not necessary to set out for present purposes the grounds of Dr Rahardja’s application or the reasons that it was rejected. I mention, however, that the crucial issue concerned the effect of a the decision of an Indonesian Court apparently to the effect that the warrant which formed a necessary precondition for the exercise of Australia’s extradition jurisdiction was not in force as a number of requirements for its execution under Indonesian law had not been met. I concluded that, although this Court had jurisdiction to issue a writ of habeas corpus in respect of the detention of a person held under the Act, the circumstances established by Dr Rahardja did not justify this course and that the proceedings in Australia concerning Dr Rahardja were proper and lawful. Accordingly, the warrant issued by the Magistrate constituted an appropriate answer to the question posed by the application for the writ.

12 On 19 July 2000, at the outset of the hearing, the Republic had applied to transfer the proceedings to the Federal Court under s5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The application was rejected, in essence, because the requirements of s5(1)(b)(i) of that Act had not been satisfied.

13 On 14 September 2000, the Full Court of the Federal Court of Australia (Wilcox, Spender and Dowsett JJ) dismissed Dr Rahardja’s appeal from the judgment of Tamberlin J: Rahardja v Republic of Indonesia [2000] FCA 1297. So far as the extradition objection argument was concerned, the Full Court decided that it should itself consider whether the evidence adduced before the Magistrate (to which it was limited: s21(6)(d)) provided substantial grounds for a belief that, if surrendered to Indonesia, Dr Rahardja might suffer prejudice at his trial or punishment because of his race. Their Honours noted (at [53]) that the Magistrate found: that the justice system in Indonesia is dysfunctional; corruption is rife amongst judicial officers; the judicial officers are controlled by the Minister of Justice and there is no separation of powers; governmental interference occurs in most cases; it is extremely rare for a defendant in any case against the State to be successful; and Dr Rahardja would not receive a fair trial. However, these matters, that seemingly reflect significantly on the appropriateness of extraditing him, did not comprise an extradition objection, as defined in the Act. The difficulty about the evidence called by Dr Rahardja was that, although uncontested, it was not established that Dr Rahardja might be prejudiced at his trial or punished by reason of his race and the evidence did not go so far as to demonstrate any relevant discriminatory treatment of ethnic Chinese in the trial process or on sentence, even though there was some suggestion that Indonesian authorities discriminated against Chinese in the sense that they were more willing not to prosecute non-Chinese offenders. In the end, therefore, the evidence did not establish the existence of an extradition objection. The Full Court also rejected the arguments that depended upon the authentication and sufficiency of the supporting documents.

14 On 14 December 2001 special leave to appeal to the High Court of Australia was refused. On 18 December 2001 the Attorney-General’s Department was informed that Dr Rahardja intended to make a submission under s22 of the Act, as I understand it, to the effect that the Attorney-General should determine that he was not to be surrendered. On 15 January 2002 Dr Rahardja made submissions to the Department which argued –

“(i) There was an apparent breach of speciality obligations by Indonesia as he was being tried in absentia for offences that his extradition had not be sought for;
(ii) The Indonesian warrant was invalid;
(iii) The plaintiff would not receive a fair trial;
(iv) There was fraud and dishonesty on the part of the Indonesian police;
(v) The Deputy Attorney-Generalof Indonesia had determined that there was “no case” against Dr Rahardja;
(vi) There was an abuse of process in Dr Rahardja’s initial detention in Australia;
(vii) The Attorney-Generalshould find that there is an extradition objection; and
(viii) There is a risk of torture if Dr Rahardja is returned to Indonesia.”

15 On 1 March and 20 May 2002 two supplementary submissions were received by the Department from Dr Rahardja’s attorneys. The Department made a request to the Indonesian authorities in relation to the issue of speciality, expecting that a speciality assurance would be given by Indonesia to the effect that Dr Rahardja would not be detained in respect of his in absentia conviction for corruption. As at 17 June 2002, however, no response had been received from Indonesia.

16 It is now necessary to refer to circumstances that arose many months after all judicial proceedings had ended and the question of Dr Rahardja’s extradition was in the hands of Government. For the whole of this period, although unconvicted of any offence and, hence, by our law presumed to be innocent, he was being held in a maximum security prison. The following account is taken from affidavits tendered before me and not sought to be contradicted by the Republic. In July or August 2001, Dr Rahardja’s Indonesian lawyer, Mr Otto Kaligis, received a communication from a court clerk informing him that, pursuant to summonses issued on 17 July 2001 by the Prosecutor General, it was proposed to conduct a trial against Dr Rahardja and two others in the Central Djakarta State Court for offences under the Corruption Law of Indonesia, which were particularised in substantially the same terms as the banking charges forming the foundation for the extradition proceedings. If convicted, Dr Rahardja was liable to the death penalty. The Chief Deputy Prosecutor had, in January 2002, determined that “[the High Prosecution Office] ceases the prosecution of the [banking charges] case” against Dr Rahardja “by reason of insufficient evidence” but that there was sufficient evidence to prosecute him for corruption charges depending upon essentially the same facts. Although, Mr Kaligis had retained by Dr Rahardja as his attorney, his applications to represent him at the trial and for access to the court file and the dossier of evidence provided by the prosecution, were all refused and he was informed by the presiding Magistrate that he did not have the right to appear for Dr Rahardja or cross-examine witnesses on his behalf. It is claimed by Dr Rahardja that specific provisions governing procedure under the Corruption Law of Indonesia prohibited the trial from proceeding without, at least, Dr Rahardja being represented by legal counsel. Furthermore, it appears that a trial in absentia can only proceed where a defendant, who has been summonsed, is absent without providing a valid reason for being so. As is obvious from what I have already said, at the time the summons on the corruption charges was issued and when the trial was conducted, Dr Rahardja was in prison in Australia pending the issue of a extradition warrant by the relevant Minister. On 11 March 2002, at the conclusion of the hearing of the evidence, it appears that Dr Rahardja’s Indonesian lawyers were permitted to make submissions on technical legal matters. They had not been permitted to see, let alone test, the evidence that was presented by the prosecution against Dr Rahardja; nor had there been any opportunity to call any defence witnesses on his behalf. On 22 March 2002, Dr Rahardja and the other two defendants – not surprisingly, perhaps – were convicted of the corruption charges. In the result, Dr Rahardja was sentenced to life imprisonment. As I have mentioned, the Attorney-General has sought a speciality assurance to the effect that, when surrendered, Dr Rahardja will not be detained in respect of this conviction or sentence.

17 On 12 June 2002 Dr Rahardja sought to reopen the hearing on the summons which had been determined by me on 2 August 2001 in order to tender as fresh evidence the material, including expert evidence, establishing the withdrawal of the banking charges, his conviction of the substituted corruption charges in absentia and the consequence in Indonesian law that he cannot now be tried for the banking charges and seek an order that he be released from custody as he could no longer be surrendered. On the return date of the motion – a hearing confined to making directions – Mr Roberts SC for the Republic submitted, amongst other things, that “the matter that needs to be determined at the earliest moment” was the decision yet to be made by the Attorney-General under s22 of the Act as to whether or not Dr Rahardja was to be surrendered. (As it happened, that decision was, however, not made until 24 October 2002.) 24 July 2002 was allocated for the hearing of a preliminary argument, which had been outlined by Mr Roberts SC, to the effect that, even if the evidence as to the Indonesian proceedings was true, the orders sought by Dr Rahardja could or would not be made in light of the provisions of the Act, and 5 and 6 August allocated for hearing of the substantive issues. The question whether the application should proceed by way of reopening the earlier proceedings or by a further summons for a writ of habeas corpus, was resolved by the filing of a fresh summons seeking a writ on 29 July 2002.

18 In the meantime, on 28 June 2002, Dr Rahardja sought bail upon the ground that he had recently been diagnosed as suffering from cancer and could not be adequately cared for in the prison environment. The uncontested evidence was that he had incurable kidney cancer with extensive associated lymph node involvement and secondary thrombosis of the major vein in the abdomen. His tumour is not operable, nor is it amenable to treatment with irradiation or chemotherapy. As at June 2002, Dr Rahardja’s treating specialist considered that his life span was very limited, with a maximum of three to six months and that he was also at risk of a fatal pulmonary embolism at any time. I was satisfied that the intensive treatment that was necessary was best given outside the inevitable limitations of the prison environment and that, if exceptional circumstances were required, they were certainly present. Accordingly, I granted bail subject to strict conditions.

19 When the summons came on for hearing on 24 July 2002, submissions were received by the parties upon the preliminary question whether, assuming proof of Dr Rahardja’s allegations concerning the Indonesian proceedings, this Court could or would make the orders sought. The primary submission made by Mr Roberts SC was that the issue was completely governed by the Act, all judicial proceedings available under the Act having been exhausted, and it was for the Attorney-General to make the determination provided for by s22, in particular whether it followed from the Indonesian events that Dr Rahardja could not be surrendered. Regrettably, no such determination had yet been made, nor was there any explanation for the delay, although the Attorney-General’s Department must (or ought to) have been in possession of the relevant information since July 2001 and, as mentioned above, the matter was brought to the Department’s attention by Dr Rahardja in January 2002. The essence of the argument submitted by Mr Hutley SC for Dr Rahardja was that the statutory purpose for which his detention was effected could no longer be achieved and there now existed an unqualified statutory prohibition on his extradition. The matters relied on were, in substance, the following –

“1. The Indonesian authorities had decided to cease prosecution for the (banking) offences identified in the warrant issued under s19(9) of the Act (the warrant) for lack of evidence;
2. Dr Rahardja was convicted in absentia of other offences (the corruption offences) arising from the same conduct as was alleged in the banking offences and, under the law of Indonesia, cannot now be tried or convicted for the banking offences, in respect of which the determination of eligibility for surrender was made; and
3. The relevant extradition treaty, given binding legal effect by the Act, provides for an absolute prohibition on extradition where the person sought has acquired exemption from prosecution or punishment according to the law of either Contracting State in respect of the acts or omissions constituting the offence for which extradition is requested.”

20 Mr Roberts SC argued that here there had been a valid order made by the Magistrate in accordance with the Act, which order had been the subject of extensive judicial review but remained extant. The warrant pursuant to which Dr Rahardja was detained was issued by the Magistrate under s19(9) of the Act, following his determination that Dr Rahardja was eligible for surrender to Indonesia in relation to the extradition offences. The effect of s19(9)(a) is that the Magistrate was required to order that Dr Rahardja be detained in prison pending a decision by the Attorney-General under s22 either to surrender or release him. Mr Roberts SC referred to s3 of the Act, providing that one of its principal objects is “to codify the law relating to the extradition of persons from Australia to extradition countries…and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence”. He submitted that the detention of Dr Rahardja cannot be ended except in accordance with the Act’s provisions, which effectively exclude any intrusion by the Courts. Accordingly, the warrant of the committing Magistrate is a sufficient answer to any writ of habeas corpus and this Court cannot or ought not go behind the warrant. Mr Roberts SC submitted that, accepting for the sake of argument that the three matters relied on by Dr Rahardja were established, they are not relevant to the lawfulness or continued lawfulness of his present detention. Counsel for Dr Rahardja submitted that s19(9) makes it clear that detention under the warrant is for the single purpose of surrender or release pursuant to determinations made by the Attorney-General under s22 and that the warrant was now spent, since the Treaty provides that, in the circumstances, “extradition shall not be granted”. Thus, nothing remains for the Attorney-General to determine. As Dr Rahardja cannot now be surrendered, his continued detention was not for a purpose authorized by the Act: cf Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 67 CLR 637.

21 On 14 October 2002, the Minister for Justice and Customs eventually issued a surrender warrant under s23 of the Act directed “to the person in whose custody Hendra Rahardja…is being held” to release him into the custody of a police officer for the purpose of enabling him to be placed in the custody of Indonesian police and transported out of Australia to Indonesia. (In light of the fact that Dr Rahardja is on bail, the warrant is, I am inclined to think, incapable of execution; whether he is an “eligible person” whilst on bail is also a question, depending on the meaning of the phrase “has been committed to prison” in s22(1) of the Act and the significance of the requirement of s22(5), that, in certain circumstances, the Attorney-General “shall order…release”. However, this matter does not presently call for decision.) The extradition offences referred to in the warrant are the banking offences, not the corruption offences. On 18 October 2002 the summons for a writ of habeas corpus came on for hearing. Affidavits were read which, amongst other things, set out the opinions of the deponents as to the legal proceedings which affected Dr Rahardja and the effect in Indonesian law of those proceedings. I have already, for convenience, briefly summarised the effect of the affidavits.

22 On behalf of Dr Rahardja, Mr Hutley SC indicated that his client wished to challenge the decision of the Minister to surrender him, that had been made in the meantime, by taking proceedings under s39B of the Judiciary Act 1903, in effect, to seek a writ of mandamus or prohibition as provided for under s75(5) of the Constitution of Australia. Mr Hutley SC foreshadowed a summons seeking to have the matter determined in this Court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act) which vests State Supreme Courts with the same civil jurisdiction, with some exceptions and limitations, as is possessed by the Federal Court, including its jurisdiction under s39B of the Judiciary Act 1903. The Cross-Vesting Act provides (amongst other things) for the transfer of a proceeding that is pending in this Court to the Federal Court where it is more appropriate that the proceeding be determined by that Court. Where the matter for determination is a “special federal matter” – and it is uncontested that the envisaged proceeding is such – the proceeding can only be retained by the Supreme Court “if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties”: s6(3). In considering whether such special reasons are present, the Court must “have regard to the general rule that special federal matters should be heard by the Federal Court”: s6(6).

23 After making orders permitting Dr Rahardja to file a notice of motion seeking to amend his summons to seek interlocutory relief against the Minister in respect of the determination that Dr Rahardja be surrendered and making ancillary directions (including as to the giving of notice), I ordered that the Minister’s warrant of surrender not be executed until further order of the Court and adjourned the proceedings.

24 When the matter came on for hearing on 1 November 2002, the Solicitor-General for the Commonwealth, Mr D Bennett QC, appeared with Ms R Sofroniou for the Attorney-General of the Commonwealth, intervening as of right. Dr Rahardja filed in Court an amended summons seeking the issue of a writ of habeas corpus and an order that Dr Rahardja be released from custody, a declaration that the decision of the Minister for Customs and Justice (the Minister), to whom the Attorney-General’s powers under the Act are delegated, to surrender Dr Rahardja was not made according to law, a declaration that the surrender warrant was not issued according to law, an injunction that the surrender warrant be revoked, a declaration that the warrant issued under s19(9) of the Act on 24 September 1999 is no longer valid and an order restraining the Minister from delivering the surrender warrant for the purpose of enabling it to be executed. Dr Rahardja had previously filed a notice of motion returnable on 1 November 2002 for leave to file the amended summons and the amended points of contention and an order that the special federal matter arising by virtue of the applications relating to the Minister’s determination and the surrender warrant should be determined by this Court under s6 of the Cross-Vesting Act.

25 As I have already mentioned, on 19 July 2000 I rejected an application by the Republic to transfer the proceeding to the Federal Court of Australia. However, the issues at that stage of the proceeding were significantly different to those which are presently material.

26 The dispute requiring resolution may be conveniently divided into two elements: the first (in point of time) is whether Dr Rahardja is now lawfully detained (the detention issue); and the second is whether the surrender warrant was properly issued (the surrender issue). It is agreed by the parties that “the matter for determination” within the meaning of s6(1) of the Cross-Vesting Act comprises both these issues and that, unless this Court orders that the proceeding in which the matter is raised should be determined by this Court, it must be transferred to the Federal Court. Counsel for Dr Rahardja, in their written submissions, said –

“16. It is beyond serious contention that the justiciable controversy between the parties…is comprised of the substratum of facts representing or amounting to the dispute or controversy between them. The controversy includes the legal consequences flowing from the contention of the plaintiff that he is unable to be tried in Indonesia on the charges in respect of which his extradition is sought.
17. On the motion the Court must make a determination as to whether this matter, the whole justiciable controversy outlined in the amended points of contention and in respect of which relief is sought in the amended summons, be transferred to the Federal Court.” (Emphasis added.)

27 During Mr Hutley SC’s submissions I inquired whether everyone was agreed that either the whole matter stayed in this Court or should be transferred to the Federal Court. Mr Hutley SC said that he thought so and neither the Solicitor nor Mr Roberts SC (appearing again for the Republic) disagreed. In his response to Mr Hutley SC, the Solicitor said that paragraphs one to twenty-one (including, of course, the above extract) of Mr Hutley SC’s written submissions were accepted and that the real controversy was whether special reasons justifying retention of the matter in this Court had been demonstrated.

28 In NEC Information Systems Australia Pty Limited v Iveson & Ors (1992) 36 FCR 258 at 268, the Full Court of the Federal Court (Black CJ, Lockhart and Gummow JJ) stated–

“It is the duty of a State or Territory Supreme Court, where a matter for determination in a proceeding pending in that court is a ‘special federal matter’ to transfer the proceeding to this Court unless the Supreme Court orders that the proceeding be determined by itself, having regard to the criteria stated in subs[6](2). The effect of subs(2) has been described (G Griffith QC, D Rose and S Gageler, Further Aspects of the Cross-Vesting Scheme (1988) 62 ALJ 1016 at 1021) as follows –
‘Implicit in this provision is a requirement for a high threshold of satisfaction before a State court determines not to transfer a proceeding to the Federal Court.’
The importance given by the Parliament to the observance of the criteria in subs(2) is emphasized by the reservation by subs[6] of the jurisdiction of the Supreme Court to grant interlocutory relief which is so urgent that it is in the interests of justice to do so; cf Judiciary Act , s78B(5).”

29 The Cross-Vesting Act was amended after Iveson and now expressly requires transfer of proceedings involving special federal matters unless there are special reasons for retention. The old section simply provided that the Supreme Court should not make an order, in substance, not to transfer the proceeding, unless it was not appropriate that the proceeding be transferred to the Federal Court and it was appropriate that the Supreme Court determine it. In Pridmore & ors v Magenta Nominees Pty Ltd & Ors [1998] WASC 318 (21 October 1998), Scott J observed “The contrast between the old section and the amended section is readily apparent”. The test is certainly a different one although it is not quite so obvious that the bar to retention is now higher, as contended by the Solicitor. That the Court must “have regard to the general rule that special federal matters should be heard by the Federal Court” (s6(6)) was probably implicit in the old provision. The second reading speech made on behalf of the Attorney-General of New South Wales in respect of the Amendment Bill uses the language of “exceptional” case and “exceptional circumstances” rather than the language of the clause. However, although the Solicitor relied on this verbiage as adding a significant nuance of interpretation, I do not think that it was intended by the Minister to qualify, let alone extend, the ordinary meaning of the legislative phrase. The use of the words “exceptional circumstances” in the Minister’s second reading speech in the Commonwealth Parliament should not be differently understood: after all, it would have been quite easy to use “exceptional” rather than “special” in the legislation had it been thought that there was any significant difference between these adjectives. In Westpoint Corporation Pty Limited v Coles Supermarkets Australia Pty Limited (1996) 71 FCR 584, R D Nicholson J considered that the manner in which s6 of the Cross-Vesting Act was to be understood to operate as stated in Iveson “is now affected by the amendments to the section but remains substantially apposite”. In Computershare Limited v Perpetual Registrars Limited & Ors (No 3) [2000] VSC 286; 176 ALR 277 at [90] Warren J cited the test in Iveson as applicable and, in Re Williams: Ex parte Oates (1997) 140 FLR 124, Supreme Court of Western Australia, Anderson J stated that it “appears to be well settled that I should not make an order under s6(3) [of the Cross-Vesting Act] that the proceedings be determined in this Court unless I have a high degree of satisfaction that there are special reasons for doing so…”

30 It was submitted by the Solicitor that the question before the Court is whether there exists any obstacle to the transfer of proceedings, citing Matland Holdings Pty Limited v NTZ Pty Limited (1999) 157 FLR 364 at 372, where Warren J said -

“I am satisfied that the proceeding as constituted by the present pleadings invokes the accrued jurisdiction of the Federal Court. It follows that I am satisfied that there is no obstacle to the transfer of the proceeding to the Federal Court arising from the judgment of the High Court in Wakim . It follows, further, that I cannot be satisfied that there are special reasons for determining that the proceeding should be determined by the Supreme Court [of Victoria] as provided in s6(3) of the Jurisdiction of Courts (Cross-Vesting) Act (Vic). As a consequence, pursuant to s6(1) of the Act, I am obliged to transfer the proceedings to the Federal Court.”

The reference to ReWakim; Ex parte McNally (1999) 73 ALJR 839 was, I think, a reference to the issue to which subs6(1A) of the Cross-Vesting Act adverts in connection with the jurisdiction of the Federal Court. To my mind, his Honour was saying no more than that, as there was no other reason not to transfer the proceeding to the Federal Court, a fortiori there were no special reasons for not doing so.

31 In Overlook Management BV v Foxtel Management Pty Limited [2001] NSWSC 682, Hunter J found special reasons existed, other than reasons relevant to the convenience of the parties, where the issue comprising the special federal matter was raised at a time when proceedings were fixed for hearing about six weeks after argument on the transfer application and five weeks after the date of judgment and at a time when the matter was ready for hearing and estimated to occupy two weeks of the Court’s time. Furthermore, the special federal matter was but one of several principal issues in the proceedings, the remainder involving the exercise of State jurisdiction. As Mr Hutley SC for Dr Rahardja submits, in this case, substantial argument has already been heard on the detention issue, with judgment reserved; in addition, Mr Hutley SC submits, although the surrender issue is undoubtedly a principal matter for determination, the detention issue involves the exercise of State jurisdiction. So far as this latter question is concerned, however, and although as it happened the jurisdiction of this Court with respect to writs of habeas corpus is undoubtedly a matter of State jurisdiction, the matter substantially sought to be agitated involves as a critical question the interpretation of the Act, rather than the application of State law.

32 In opposing the application by the Minister and the Republic for a transfer of these proceedings to the Federal Court, counsel for Dr Rahardja identified the following matters as amounting to special reasons. The first of these is that this Court is part heard, having been seized with the controversy since July this year and having heard detailed and lengthy argument on the complex legal questions involved, with a decision on the preliminary question as to whether relief is available even on the assumption that the facts alleged is established, still reserved. Furthermore, expert and other evidence has already been received in respect of the factual substratum for the application. It is submitted that, if the proceedings were transferred, the detention issue would need to be reargued in the Federal Court and Dr Rahardja would thus be deprived of his right to judgment in this Court, which has been delayed by reason of matters outside his control. It is submitted that to cross-vest at the present stage of the proceedings would be to depart from the due administration of justice. This is not a matter involving mere convenience but raises more general questions concerning due completion of a process of adjudication that has been properly undertaken. It is submitted that, although the crucial questions arising in connection with the surrender issue concern the terms of Federal legislation, the legal issues involve the application of well-known and established administrative law principles to the facts and in this respect the legal issues do not have a uniquely Federal flavour.

33 The second matter concerns the custodial position of Dr Rahardja. As I have explained, the uncontested evidence is that he has incurable, inoperable cancer and is presently being treated with palliative care only. He is clearly extremely ill and rapidly approaching the end of his life. He is presently on bail, being cared for by his family. It has not been suggested that there is any risk that he might abscond. It appears that the Federal Court has power to make an order in the nature of bail under s23 of the Federal Court of Australia Act 1976: Minister for Immigration v Msilanga (1992) 34 FCR 169. The material considerations appear to be whether an applicant’s claim raises serious questions as to the lawfulness of his or her custody and, if so, whether the balance of convenience favours release rather than detention pending a determination of the claim: see per Black CJ, 34 FCR at 170, Beaumont J 34 FCR at 181, 182. It is submitted that the application of these principles would fetter the power of the Federal Court to continue Dr Rahardja’s bail.

34 The third matter which, it was contended, provides special reasons for retaining the matter in this Court is that the nature of the jurisdiction of the Federal Court to grant writs of habeas corpus differs somewhat to that exercised by this Court, relying in particular on the observations of Beaumont J in Ruddock v Vadarlis (2001) 110 FCR 491 at [101] in which his Honour pointed to “two very significant practical implications” arising from the difference between a jurisdiction to issue habeas corpus in the strict sense or, on the other hand, to make an order in the nature of habeas corpus.

35 The Solicitor submitted, first of all, that the detention issue would now only arise as a trivial matter related solely to ancillary argument as it has been subsumed by events and the real dispute between the parties that now exists. The Solicitor argued that, if the Minister’s decision with respect to the surrender warrant was not found to be subject to relevant error, then the warrant would stand and the detention issue would be moot. The Solicitor submitted that Dr Rahardja’s interests would not be prejudiced even if he did not, in the Federal Court, raise the detention issue since, he said, the matters supporting his contentions in that respect applied also to the surrender issue. Indeed, the Solicitor argued, that those matters “really” go to the surrender issue. Of course, this submission assumes that Dr Rahardja needs once more to put in the Federal Court the case which has been put in this Court and awaits determination. However, the Solicitor submits that to a substantial degree it must at all events be reargued in the context of the surrender issue and, hence, there is no substantial or significant prejudice to Dr Rahardja. So far as bail is concerned, the Solicitor submitted that, as a practical matter, it would be surprising if the Federal Court took a different view from that taken in this Court, until such time as the facts changed.

36 In reply, Mr Hutley SC submitted that whether or not the detention of Dr Rahardja is lawful cannot be a trivial matter. In Msilanga (infra) 34 FCR at 188, Burchett J observed –

“But it needs to be emphasized that at no stage did the Minister have some peculiar authority over the whole disposition of Mr Msilanga as he chose. That view of executive power was abandoned (for common law countries) in the 17th century. The power of the Minister, no less than that of the court, extends only so far as Parliament has determined, under the Constitution. Both Constitution and Parliament have subjected decisions he may make, in relevant respects, to the exercise of judicial power. For the court to use its power is not to meddle in the concerns of the executive, but to do its plain duty in accordance with the Constitution and the will of the Parliament.
It would be a dangerous regression indeed if decisions of the Minister, often made in fact by delegates, were seen as precluding the courts from administering justice fully and humanely. When a matter comes to the court, the parties have, under our procedures, an unrivalled opportunity to ensure that the possible injustice of decision on a false issue, or upon concealed grounds, or upon inadequate information, is avoided, and the issues each may wish to raise are determined. Further, the question to be decided, upon an interlocutory application for release pending the hearing of a proceeding in which judicial review is sought of an administrative decision, is never the same question which the administrator decided. His was not a decision pending judicial review. The problem for a humane system of justice, governed by the principles of the common law, posed by a temporary imprisonment which the ultimate decision may prove to have been unjust, was never his problem. Though the decisions may appear superficially similar, they are made, in a fundamental sense, for a different purpose; and there may well be some difference also in the considerations taken into account. Indeed, the proceeding for judicial review will, in itself, have added a new dimension to the question; often there will be a new incentive for the applicant to comply with any conditions upon which he may be released.”

37 With Burchett J, I would repeat and adopt, Lord Atkins words in Liversidge v Anderson [1942] AC 206 at 245, describing as “one of the pillars of liberty”, the principle that “in English law every imprisonment is prima facie unlawful”. Furthermore, as is obvious from the Treaty, if Dr Rahardja’s argument on the detention issue be right, his extradition is forbidden and the Attorney-General cannot order his surrender. However, I do not take the Solicitor as submitting that the question, as such, whether Dr Rahardja’s detention is lawful is a trivial one but, rather, that the argument about this issue is bound to be subsumed, one way or another, in the controversy raised by the s39B application.

38 I do not consider that the submissions made on Dr Rehardja’s behalf concerning bail and the possible limitations on the power of the Federal Court to grant relief because it cannot actually issue the writ but can only make orders in the nature of habeas corpus provide special reasons justifying the retention of the proceedings in this Court. As to bail, the Court’s jurisdiction is ample and there is no reason to suppose that Dr Rahardja’s position will be prejudicially affected merely because it will be determined by that Court rather than this. As to relief, the differences in the two limitations mentioned by Beaumont J in Ruddock v Vadarlis (supra) do not seem to me to be material in the present case.

39 The submission by Mr Hutley SC that relies on the history of the litigation to date, and, in particular, upon the subsistence of the detention issue which is awaiting determination is substantial and is capable, in my view, of amounting to special reasons for not transferring the proceedings to the Federal Court. In Re Williams: Ex parte Oates (supra) the Commonwealth had made the perhaps unusual submission that the proceedings should not be transferred to the Federal Court and contended that there were no special reasons justifying such a transfer. It was submitted on behalf of the Attorney-General of the Commonwealth, in substance, “that the proceeding itself is so utterly devoid of merit that no purpose whatever is to be served by allowing it to continue, and hence no purpose is to be served by transferring it.” However, Anderson J concluded (140 FLR at 127) –

“I do not think it is possible to construe s6(3) in a way that would require the transferring Court to enquire at all into the merits of the proceeding (as distinct perhaps from its competence) in a search for ‘special reasons’. To do so would be to retain and to exercise jurisdiction as to the merits, contrary to the main theme of s6, which is that special Federal matters are for the Federal Court to determine. I do not think it could have been intended that special reasons for not transferring the proceeding to the Federal Court include reasons which depend for their existence on a judgment by the transferring Court as to the merits of the proceedings.”

40 With respect, I agree with Anderson J’s interpretation of the provision. Although I am ready to give judgment on the detention issue, I do not believe that I can, or ought, to do so before determining whether the matter should be cross-vested. In this case, the detention issue was argued as a preliminary question which, if determined adversely to Dr Rahardja, must have brought the proceedings to an end with judgment in favour of the defendants. Had that occurred, the other matters relied on by counsel for Dr Rahardja would not (as I have intimated) have amounted, in my view, to special reasons under s6(3) of the Cross-Vesting Act and an application to cross-vest a s 39B proceeding would have failed. However, it was not sought to argue in the present application that the preliminary question was, indeed, merely one of competence – and, at all events, I do not think it is. Perhaps more importantly, as I have pointed out above, the parties all agreed that both the detention issue and the surrender issue should be dealt with as one matter and either transferred or not. Dr Rahardja wishes to have his judgment from this Court on the detention issue, whilst the defendants wish to have it reargued in the Federal Court but it has not been controversial that the Court which determines that issue should determine the surrender issue. However, I do not see the issue as one in which the preference of the parties is material. To my mind, it is inconsistent with the proper administration of justice that Dr Rahardja or, for that matter, the Republic should be precluded from obtaining judgment in this Court at this stage of the proceeding in respect of a fundamental issue in the case. I am indeed mindful of the statutory consideration (which is, at all events, good sense) that, this being a special federal matter, it should as a general rule be heard by the Federal Court. However, I have (with some regret) no doubt that there are special reasons in the particular circumstances of this case, quite apart from the convenience of the parties, for ordering that the proceeding be determined by this Court and I so order. I will receive submissions on the question of costs.

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Last Modified: 01/13/2003