The Honourable Brendan O'Connor, Commonwealth Minister for Home Affairs and Justice v Adamas and Anor

[2013] HCATrans 220

[2013] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P12 of 2013

B e t w e e n -

THE HONOURABLE BRENDAN O’CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS AND JUSTICE

Applicant

and

ADRIAN ADAMAS

First Respondent

IAN JOHNSON, THE COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES

Second Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 SEPTEMBER 2013, AT 9.32 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC, Solicitor‑General for the Commonwealth of Australia:   May it please the Court, I appear with MR S.B. LLOYD, SC and MS H. YOUNAN for the applicant.  (instructed by Australian Government Solicitor)

MR G.R. DONALDSON, SC:   If your Honours please, I appear with MR A.K. SHARPE for the first respondent.  (instructed by O’Connor Lawyers)

FRENCH CJ:   I note there is a submitting appearance for the second respondent.  Mr Donaldson, we might be assisted to hear from you first.

MR DONALDSON:   Your Honours, in our respectful submission, the reasons why special leave should not be granted in this matter are these.  First, your Honours, in respect of the first special leave question which is postulated by the applicant, if your Honours would turn to page 183 of the book, the first question, which is 1a and 2, deals with a question of construction of the particular provision of the Treaty and, in our submission, no error was made by the majority of the Full Court in respect of that question of construction.  The second special leave question, your Honours, which is 1b and 3, which postulates that there was an error in the way in which the courts below considered this notion of “unjust, oppressive or incompatible with humanitarian considerations”, again, there was no error in the court below in respect of that.

Your Honours will be aware that the power being exercised by the Minister here was that under section 22(3)(e)(ii) and (iv) of the Extradition Act, which called into operation the Treaty provision in Article 9(2)(b).  As your Honours are doubtless aware, this is not a particularly uncommon form of provision in a treaty ‑ ‑ ‑

FRENCH CJ:   I think there is a table of similar provisions somewhere in the materials, is there not?

MR DONALDSON:   Yes.  They are similar, your Honour – they are not all identical, of course – but certainly, your Honours, this notion that an extradition would be “unjust, oppressive or incompatible with humanitarian considerations” is common in many of these treaty provisions.

Your Honours will see from 9(2)(b) that the provision postulates a positive question, and that is would extradition – taking into account the nature of the offence and the interests of, in this case, Indonesia – in the circumstances of this case be “unjust, oppressive or incompatible with humanitarian considerations”?  As your Honours are aware, and your Honours would have seen this from the decision in Foster, to which reference has been made in the High Court ‑ ‑ ‑

FRENCH CJ:   Yes.

MR DONALDSON:   ‑ ‑ ‑this positive question, as it were, needs to be answered first before the further consideration by the Minister under section 22(3), and that is really whether, having regard to the offence, extradition should not be refused, in any event.  Your Honours, there is no doubt, and it is not put against us, that the Minister needs to consider that positive question in Article 9(2).

Your Honours, it is not again contentious that the circumstances of the case for the purpose of Article 9(2) in this matter included the matters that are most crisply referred to, if I might say so, by Justice McKerracher in paragraph 133 of his Honour’s judgment, which is at page 70 of the book.  These, your Honours, are the following factors, that in this particular case, the first respondent has been sentenced to imprisonment for the term of his natural life – that is, he will die in prison if he is extradited.  His conviction cannot now be appealed.  The fact that he can no longer appeal that has been brought about by the fact of an unsuccessful appeal brought by co‑accused, about which there is no evidence that the first respondent was aware, and, your Honour, in circumstances where there is no proof and no finding by anybody that the first respondent was aware of the charge made against him or his trial will be appealed.

KIEFEL J:   Why was there no evidence put on about this matter, because it would seem to bear directly upon the question arising under Article 9(2)(b)?

MR DONALDSON:   Your Honour, there was evidence put on, which was in the material, where the first respondent denied that he was aware of it.  There was certain conjecture as to those matters, yes.  Your Honour has seen that in the written submissions, that there was some conjecture as to that.  Our point, your Honour, is there has certainly been no positive finding that he was aware of that.

KIEFEL J:   He was not cross‑examined?

MR DONALDSON:   No.  He did not give evidence, your Honour.  Nonetheless, your Honour, the circumstances of this matter for the purpose of the question which was before the Minister, the first of those being would extradition be “unjust, oppressive or incompatible with humanitarian considerations” is to be answered having regard to those considerations.

KIEFEL J:   Well, the principal point comes down, does it not, to whether or not the question – although it is addressed by Australian standards, those standards may have regard to another system of law which may be less favourable to a person in an Australian system?

MR DONALDSON:   With respect, your Honour, I am not sure that is the question.  Can I say this?  The question is certainly not that what the Minister should do, or what we urge is that there is, as it were, a precise comparison between how this matter would be dealt with in Australia and how it would be dealt with in Indonesia, and if there is any difference between the manner in which this would be dealt with in Indonesia, that gives rise to injustice.  If I might say, your Honour, at one level, this question is about as easy as it could be in relation to injustice and oppression, because there is no circumstance at all in Australia, according to Australian standards, in which a person would be gaoled for life in respect of an offence tried in their absence.

FRENCH CJ:   What is the function of the court in reviewing the Minister’s decision under 39B, or 75(v), for that matter?

MR DONALDSON:   I am sorry, your Honour, I missed the first part of the ‑ ‑ ‑

FRENCH CJ:   What is the function of the court?  It is not to substitute its own notion, is it, of what is unjust, oppressive or ‑ ‑ ‑

MR DONALDSON:   No.  In the circumstances of this case, your Honour, the function of the court is to determine whether the Minister had regard ‑ ‑ ‑

FRENCH CJ:   Has properly construed.

MR DONALDSON:   Yes, and had regard to the relevant consideration or failed to have regard to a relevant consideration.

KIEFEL J:   Do you say the Minister failed to have regard to Article 9(2)(b)?

MR DONALDSON:   No.  What we say, your Honour, is what the Minister failed to have regard to is the circumstance that this scenario – that is, the circumstances of this case – because they could never occur in Australia, because it would be considered on any standard unjust and oppressive for these circumstances to take place, the Minister failed to have regard to that fact, and we rely, your Honour, in coming to the conclusion that the Minister failed to have regard to that from the fact of the advice that was given to the Minister.

In that respect, your Honours, could I ask you to turn to Justice McKerracher’s judgment again, because his Honour states this most crisply – this is at page 70 of the application book, and at paragraph 132, your Honours will see there that his Honour refers to the – sorry, your Honours, I should have referred you to paragraph 131.  That sets out the advice given to the Minister in attachment B, and you will see there in quotations:

“convictions in a person’s absence are ‘rare’ in Australia and generally only occur for summary offences or where the defendant has deliberately absented himself . . . from proceedings after having appeared initially” –

So that is what he was advised, the Minister.  Then at paragraph 133, what Justice McKerracher, consistently with what Justice Barker and Justice Gilmour at trial said, is really what the paragraph does not say.

FRENCH CJ:   What is the significance of the absence of proof that the person was aware of the charge or the trial?  Is that a matter which is said was before the Minister?

MR DONALDSON:   It was before the Minister.  The denial that he was aware of the charge and ‑ ‑ ‑

FRENCH CJ:   His denial.

MR DONALDSON:   His denial was before the Minister.  There was other material before the Minister that was inconsistent with that denial, but there was no proof of it, as it were.

FRENCH CJ:   Do we know whether the Minister formed any view about that?  I know we are relying upon a departmental submission, and so it is in this twilight zone of ‑ ‑ ‑

MR DONALDSON:   Yes.  Your Honour, all I can say – and this really deals with the third issue that is raised on the special leave application – in a circumstance such as this where what happened is the Minister simply ticked the box on the front of attachment B ‑ ‑ ‑

FRENCH CJ:   Yes.  Well, you can infer that he has been informed by the submission.

MR DONALDSON:   Yes, but whether he made a particular determination of fact in his own mind as to that, your Honour, we do not know.

FRENCH CJ:   How do you identify jurisdictional error in that case, if it is critical, for example, to the characterisation on a proper construction of what is unjust and oppressive, that the person did not know of the progress of the trial?

MR DONALDSON:   Because, your Honour, the Minister would have erred if he had not accepted that it was not proven that he knew of it.

FRENCH CJ:   Okay.

MR DONALDSON:   That is what we would say in relation to that, your Honour.  Of course, your Honour, the difficulty with some of this, and why the applicants have made the submission which they have in the final paragraphs of their application, is that when one contends that a minister in a circumstance such as this fails to take into account a relevant consideration or has taken into account irrelevant considerations, the fact that the Minister gives no reasons ensures, as it were, that the inference that the relevant consideration was not taken into account, or that the irrelevant consideration was, is, in effect, irrefutable and that is what Justice Kirby had to say in Foster’s Case in respect of that.

Your Honour, if one looks at the manner in which, typified by Justice McKerracher’s judgment at 133, what his Honour is essentially saying there, consistently with Justice Barker, is what the Minister was not told, because it is not in the departmental advice, is that these circumstances could never happen in Australia.  The reason why they could never happen in Australia, your Honours, is because it would be considered entirely unjust, according to our standards, for a person to be incarcerated for life in these circumstances – one of those circumstances, your Honour, the Chief Justice, being where there is no proof of knowledge of retrial or appeal.

FRENCH CJ:   That sounds like an important question to me, Mr Donaldson.

MR DONALDSON:   Can I say, your Honour, that it seems trite to me, with respect, for this reason ‑ ‑ ‑

KIEFEL J:   That is because you are convinced of your argument.

MR DONALDSON:   No, it is because I thought I was being very convincing to your Honours.  Your Honour, I say that for this reason. 

Unless the Court is likely to come to a different conclusion, these circumstances offend against Australian notions of injustice, oppression or what is consistent with humanitarian considerations ‑ ‑ ‑

KIEFEL J:   But the other aspect is that there is a division of opinion in the Full Court on this question.

MR DONALDSON:   If I could say in respect of Justice Lander’s judgment, with the greatest respect to his Honour, his Honour dealt with an issue that actually was not the issue.  What his Honour’s judgment comes to is this.  The point here is that there was a trial in absentia, and a trial in absentia simpliciter is incompatible with humanitarian considerations, unjust and the like, and then his Honour points to section 10 of the Extradition Act and says that contemplates trials in absentia.  But they were not the circumstances of the case for the purpose of the consideration under Article 9(2)(b).  That was a circumstance, but it was not the sole circumstance.

With the greatest respect to his Honour, Justice Barker and Justice McKerracher dealt with that issue squarely in their reasons and made it clear that they were not the considerations or the circumstances.  It was one only.  Why his Honour confined his reasoning to that factor alone, your Honour, in light of the terms of the other judgments, is difficult to know.  But if one looks at the question which we have postulated, that is, in respect of those circumstances, then Justice Lander’s judgment simply does not address it, in our submission.  They are our submissions, your Honours.

FRENCH CJ:   Thank you, Mr Donaldson.  We will not need to trouble you, Mr Solicitor.  There will be a grant of special leave in this matter.  Would you estimate a day, half a day to a day?

MR GLEESON:   Yes, your Honour.  When we file the notice of appeal, could we attend to the naming of the appellant correctly?

FRENCH CJ:   Yes.

MR GLEESON:   Thank you, your Honour.

MR DONALDSON:   And the second respondent, but I will liaise with my friend about that.

FRENCH CJ:   Yes, all right.  Are you happy with that time estimate?

MR DONALDSON:   It will be a day, I suspect, your Honour.

FRENCH CJ:   All right, thank you.

MR DONALDSON:   Could I make one other observation, your Honour, although it is really a matter for listing.  The first respondent has been in custody for over four years now, so we would be urging the Court to deal with this matter urgently if it could do so.

FRENCH CJ:   We appreciate that.  Thank you.

MR DONALDSON:   If your Honour please.

FRENCH CJ:   I think you have a standard form sheet for the filing of submissions, and I will certainly see how early we can list it.  Thank you.

MR DONALDSON:   If your Honours please.

AT 9.46 AM THE MATTER WAS CONCLUDED