The Honourable Brendan O'Connor Commonwealth Minister for Home Affairs & Ors v Zentai & Ors

[2011] HCATrans 339

[2011] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P39 of 2011

B e t w e e n -

THE HONOURABLE BRENDAN O’CONNOR COMMONWEALTH MINISTER FOR HOME AFFAIRS

First Applicant

ATTORNEY-GENERAL OF THE COMMONWEALTH

Second Applicant

THE HON CHRISTOPHER MARTIN ELLISON, FORMER MINISTER FOR JUSTICE & CUSTOMS

Third Applicant

and

CHARLES ZENTAI

First Respondent

BARBARA LANE

Second Respondent

THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON

Third Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 2011, AT 9.31 AM

Copyright in the High Court of Australia

____________________

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

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

FRENCH CJ:   Yes, Mr Lloyd.

MR LLOYD:   An appeal in this matter would involve the construction of Article 2 of the extradition treaty between Australia and Hungary.

FRENCH CJ:   Can I just ask at the outset, do we have anywhere in the record an English language version of the text of the offence under Hungarian law?

MR LLOYD:   No, not in the record.  We have one at hand, but it was never tendered in the court below, although, we would say, it does support our view, but whether or not it would be appropriate to tender on any appeal because, strictly speaking, the Hungarian version is arguably part of the law of Australia as much because it is an equally authentic version as the English version.

FRENCH CJ:   I am not talking about the treaty, I am talking about the war crimes legislation.

MR LLOYD:   Sorry, the war crimes legislation? 

GUMMOW J:   The law of 1946, for one thing.

MR LLOYD:   Yes, I believe, that is right, the war crimes one is available in the request, as I understand it.  It is not in the application book.

FRENCH CJ:   Is the text of it referred to in the proceedings below at all?  I think we have seen the text of the complaint and the fact that there is an offence. 

MR LLOYD:   There was no construction issue about the offence or it was not central to any of the issues as to the format of the offence, I think that would be fair to say.

FRENCH CJ:   Yes, all right.

GUMMOW J:   I do not see how you could write a judgment without understanding what the offence was if you are going to get worried about double criminality, but anyhow.

MR LLOYD:   We say that the construction question in our grounds for the appeal raised questions of construction on the treaty which arise also on at least a dozen other treaties.  The core differences between the parties are that, according to the applicants, the relevant provision precludes extradition only where the conduct alleged in the extradition request did not constitute an offence in the requesting State at the time it took place, whereas the majority of the court below and the first respondent consider that that provision’s preclusion of its extradition extends not only to that situation, but also to situations where the particular offence for which extradition is sought had not been enacted at the time of the conduct, even though the conduct was an offence at that time.

Now, if I turn to the treaty or to consideration of the treaty, we say it was accepted by each of the members of the court below that the treaty should be given a broad and generous construction in order to facilitate extradition.  It is, of course, an instrument negotiated by two States’ parties.  The States’ parties agree as to the construction of the treaty.

FRENCH CJ:   Now, when you say that, where do the States’ parties agree as to the construction of the treaty and how does that interface with Article 31(2) of the Vienna Convention?

MR LLOYD:   On page 177 of the book in paragraph 14 Justice North, who dissented, noted the agreement.  There was correspondence between the parties in which Hungary expressed the view that on a proper construction of the treaty it applied to situations where the actual omissions were criminal at the time they were conducted and not related to the specific offence.  That was relayed to the Minister in attachment C, I think.

FRENCH CJ:   When did that happen, Mr Lloyd?

MR LLOYD:   I believe that it happened in the lead up to the Minister making the decision on surrender.  So it was a discussion that went to the submission to the Minister on whether or not he should surrender under section 22.

FRENCH CJ:   So it is really in the context of this whole litigious process?

MR LLOYD:   Not the present litigious process, but certainly in the context of the extradition certainly.

FRENCH CJ:   So in that connection, do you rely upon Article 31(2)(a) which speaks of the context for the purpose of interpretation as:

any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty –

Does that encompass this sort of agreement?

MR LLOYD:   We say it does.  Certainly within 31(3)(a), which can be found at 194 of the book.

FRENCH CJ:   Or “any subsequent agreement”, okay.

MR LLOYD:   It says, “any subsequent agreement between the parties” and “any subsequent practice”.  So it is certainly both Hungary’s view and the view of at least the Executive of the Commonwealth that that is what was agreed and so we say that is relevant.  That is something that Justice North gave weight to, but the majority judges did not give weight to.  We say the treaty should also be construed having regard to its object and the objects of the treaty.  I believe that the Court has a bundle with the treaty which is in a schedule to the regulation.  The object is found in the preamble, which is:

to make more effective the co‑operation of the two countries in the suppression of crime –

The principal obligation is contained in Article 1 which is, critically:

to extradite to each other, subject to the provisions of this Treaty, any person found in the territory of one of the Contracting States who is wanted for [here] . . . an extraditable offence against the law of the other Contracting State. 

In that sense, the concept of an extraditable offence is central.  That is dealt with in Article 2.  We contend that Articles 2(1) and 2(2) identify extraditable offences not by reference to elements or names of offences, but by reference to the level of punishment faced for the totality of the actual omissions alleged against the person.  So that amounts to a departure from the older style extradition treaties which used to say extradition for murder, robbery, et cetera.  We say that this is an important difference of the old style and that that rejection of the enumerative approach flows through the entire treaty and its construction.

FRENCH CJ:   Can I just come back for a moment to the agreement.  The agreement came at the end point of surrender as distinct from the initial – this is the section 22 decision?

MR LLOYD:   Yes.  We would say it is implicit in the fact that they asked that they thought it fell within the treaty and then there was correspondence ‑ ‑ ‑

FRENCH CJ:   But the agreement that you rely on for the purpose of interpretation comes in the context of the 22 decision?

MR LLOYD:   That is my understanding, yes.  It was a representation made ‑ ‑ ‑

FRENCH CJ:   So if it meant something else at the beginning of the process, it changed during the process?

MR LLOYD:   No, we say it had the same meaning all the way along.  The Hungarians obviously thought that it meant this, our client says it meant this and then there was some discussion when the issue arose, presumably in submissions on behalf of Mr Zentai, and the Hungarians made a representation that it means what both they and we think it means.  If I go to Article 2(2), in the chapeau to that it has the words:

For the purposes of this Article –

that is Article 2 –

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

then two things need to be done.  The point that I wish to make first is that in that chapeau it does not, for example, say “For the purposes of Article 2(1)”, it has this broader notion, “in determining whether an offence is an offence against a law of both contracting States.  Now, there is actually no part of Article 2 where that express formulation is actually required to be undertaken.  In Article 2(1) the requirement is whether the offences however described are punishable by imprisonment for a specified period under the laws of both contracting States.  Under Article 2(5), that does involve comparing an offence with an offence but that is only an offence of an offence in the requesting State.  Under Article 2(5)(b) it involves a comparison of putative acts or omissions but only with the requested States. 

What we say, ultimately, is that on its proper construction Article 2(2), when it refers to the law of both contracting States, is suggesting that the approach in Article 2(2) is to be adopted in respect of each element of both of the contracting States.  So when one does the 2(5)(a) process, one has regard to it.  When one does the 2(5)(b) process, one has regard to it and also the 2(1) process.  Now, the reason why I make that point is because it is made in the position of both majority judges, but perhaps the most clearly in Justice Jessup’s reasons.  He says that when Article 2(2) ‑ ‑ ‑

BELL J:   What paragraph?

MR LLOYD:   His Honour’s discussion is at paragraphs 153 and 154.

BELL J:   Thank you.

MR LLOYD:   What will be seen there is that his Honour, in effect, reads the reference to ”both Contracting States” as if it was a reference to the law of the requested State, because his Honour perceives Article 2(2) as applying only to that extent.  We say that is not a correct construction to read down both contracting States to the law of the requested State is an error and as a result the treaty gets read more narrowly than it should be. 

There are a number of other provisions in the treaty, we say, that show, not only because of Article 2(2) but just generally, that an expression like “the offence for which the person’s extradition is sought”, which is of course the expression used in Article 2(5), which is the critical article, is a reference not just to, as it were, the offence in the law book, but to the acts or omissions underlying the offence.  I will give the Court four examples of that but only develop the first.  The first example was in Article 3(1)(d).  That article provides protection against double jeopardy and it says it precludes extradition:

if final judgment has been passed in the Requested State or in a third state in respect of the offence for which the person’s extradition is sought –

We say that, strictly speaking, that cannot be an offence under the laws of Hungary because in Australia no one would ever get convicted under the laws of Hungary.  It is referring to the acts or omissions pertaining to that.  So, for example, if somehow Mr Zentai had been convicted of murder here. Article 3(1)(d) would stand in the way to protect against double jeopardy, even though it is not strictly the same offence but because it is based on the same acts and omissions.

So that is also in part an answer to a point put against us that our construction of this expression is adverse to the interests of potential extraditees because in this context the broader construction of that expression favours them by giving more protection.  That is also true in Article 3(2)(b), (d) and (e), all instances where, in effect, the expression is used of an offence either in respect of which or for which extradition is sought and in each of those cases we say that on the better construction they are looking at the totality of the facts and omissions which go to constitute the offence.

Going back then to Article 2(5)(a), we say that on its construction it should be construed in light of the treaty as a whole, in light of the understanding between the parties, in light of Article 2(2), in particular, so that when it is referring to the offence – in the chapeau it refers to when the offence in relation to which extradition is sought was committed, that is, we say, not just talking about, as it were, the offence in the law book, but it is talking about the facts, when something was committed.  It is looking at a point in time in the real world.  Then when it says provided that it was an offence, we say that in the context of this provision and the scheme of the treaty the “it” refers to the acts and omissions constituting the offence and so that in that way the test here requires an assessment of whether or not those acts or omissions constituted an offence in the requesting State at the time. 

GUMMOW J:   I think you say there – at page 290 you point to six other treaties, is that right, in footnote 8?

MR LLOYD:   That is so, your Honour.  I think there are also six others which are identical and I think then there are a number of others in footnote 9 which are very similar.

GUMMOW J:   What is the position on costs?  At page 297 your opponent makes some points about some special regime being needed.

MR LLOYD:   In relation to costs, my client has instructed that it is prepared to pay the other side’s costs in relation to responding to our appeal, so the whole cost of the matters arising on our appeal.  We understand that they may wish to raise a notice of contention and we say we should not be put to guarantee them to pay them for anything raised in a notice of contention, but certainly we would be prepared to pay the entirety of the costs of the appeal pertaining to the matters arising on our notice of appeal.

FRENCH CJ:   What about the costs below?

MR LLOYD:   I think in relation to the costs below the position is that in the court below, and I stand to be corrected, I think there was an arrangement done in costs because in that situation we were not wholly successful in our appeal but they were wholly unsuccessful in their notice of contention.  We would not propose to change that position.

FRENCH CJ:   Yes.  We might hear from Mr Kennett at this point, thank you.  Yes, Mr Kennett.

MR KENNETT:   Your Honours, in our submission, the position taken as to the construction of Article 2(5)(a) of the treaty by the majority below was clearly right and the position taken by Justice North, with respect, was clearly wrong.  Your Honours have been taken to the treaty, of course, but may I take you there again and begin with the provision upon which everything turns, Article 2(5)(a).  It is on page 4, I think, of the print which your Honours have.  The first word of Article 2(5)(a) is “it” and the issue of construction really boils down to what “it” means. 

What does “it” refer to?  As a matter of ordinary language we say one goes back into the chapeau and finds that “it” refers to the offence in relation to which extradition is sought.  The question then becomes, is that an offence in the sense of a legal construct, ie, a crime defined in some way by the law of the relevant country for which a person either has been convicted or is to be tried, or does it refer to a series of acts or omissions?  We say clearly the former understanding is correct and that is the understanding of the majority below. 

There are really three reasons why we would say that is clearly correct.  Firstly, the way in which the requirement of Article 2(5)(a) itself is expressed.  It goes on to say “it was an offence”.  If the referent for the word “it” was a set of acts or omissions rather than a legal construct, it would have been a much more natural use of language to refer to that set of acts or omissions constituting an offence or amounting to an offence, not to it being an offence.  Use of the verb “was” suggests that there is a legal construct being talked about there.  Secondly, the references in both paragraph (a) and paragraph (b) of clause 2(5) to “acts or omissions” – paragraph (a) which indicate, we say, that acts or omissions occurring in the real world exist in a different realm of discourse from the notion of an offence.

Paragraph (a) of course refers to the acts or omissions constituting the offence and it does so for the purpose of identifying the time at which the substantive requirement of the paragraph needs to have been satisfied.  The time is identified by acts or omissions, but the requirement of course applies to the offence.  Paragraph (b) then speaks directly to acts or omissions and imposes a requirement by reference to those acts or omissions and it is, therefore, doing something quite distinct from paragraph (a).  Its requirement is that the acts or omissions, if they had occurred in the requesting State at the time of the request, would have constituted an offence, that is, any offence against the law of the requested State.  It is speaking hypothetically and it is an aspect, of course, of the dual criminality requirement rather than something to do with retrospectivity.  For the purpose of that dual criminality requirement, there is no need of course for the analysis to be tied to a single specified offence.  Certainly not a single specified offence in the requested State, hence the reference in 2(5)(b) to an offence. 

Our third reason relates to the references to offences in clauses (1) and (2) of Article 2.  If one goes back to Article 2(1), which supplies the basic definition of “extraditable offences”, these are “offences however described”, that is, they are things which have some form of definition, definition in the law of the relevant country we would say.  Offences are things which are punishable under the law, that is, they have penalties attached to them by law.  One sees that in clause (1) as well.  An offence is something of which a person may be convicted, one sees that in clause 1 as well. 

Coming then to clause (2), and I need to come back to the chapeau of clause (2), but paragraph (a) of clause (2) refers once again to “acts or omissions” and then goes on to refer to the offence as a concept which involves categories and denominations.  Paragraph (b) then refers to the need to consider, we say for a very specific purpose, “the totality of the acts or omissions alleged against the person” and then refers to the offence as something that has “constituent elements” under the laws of the contracting States.  Once again we would say an offence is a legal thing and acts or omissions may or may not constitute a commission of the offence.

We would also submit that clause (2) would have no real role to play if the concept of an offence in clause (1) were as the Minister puts it, that is, if the references to offence there were references to conduct.  We say that the need to have paragraphs (2)(a) and (2)(b) only arises because otherwise it might be said on the ordinary meaning of clause (1) that the requirement in the first sentence of clause (1) could only be met when the relevant offence was defined in the same way by both legal systems.  It is only if the offence has the connotation of a legal construct that one needs to have the special provisions in clause (2) to allow equality between the offences to be seen in a practical rather than a legal or definitional way.

BELL J:   How does that accommodate the point that Mr Lloyd makes respecting Article 3(1)(d) and 3(2)(b), (d) and (e)?

MR KENNETT:   It does not, your Honour.  Those parts of Article 3 do appear to use offence in a different sense from the way in which I am seeking to contend Article 2 does.

FRENCH CJ:   Do you accept that if the different construction is open, it raises a question of general public importance?

MR KENNETT:   I think I have to, your Honour.  How important, one is not sure.

GUMMOW J:   It is a bit difficult at the moment to say it is clearly one way or the other, as each of you asserts to the opposite effect.

MR KENNETT:   Yes, well, we do, your Honour.  We say that the majority is clearly right.  Perhaps if I could just finish with that point.  The role played by Article 2(2) is perhaps critical in this because Justice North placed heavy reliance on it and, as I apprehend it, so does my friend.  Article 2(2), as one can see from its chapeau, applies for a very specific purpose.  It applies for the purpose of this article in determining whether an offence is an offence against the law of both contracting States; not one or the other, but both.  It is clearly referring back to the task laid out by the first sentence of clause (1), we would say.  It does not have any direct effect on the construction of clause (5)(a).  It has the indirect effect of confirming, we would say, that the term “offence” is used throughout Article 2 at least, if not in other parts of the treaty, in a consistent way as denoting a legal construct rather than a set of acts or omissions. 

In interpreting a treaty, of course, one can have regard consistently with the Vienna Convention to other matters as well.  There has been no reference in the present case to any of the travaux preparatoires, which really leaves one with issues of agreement between the parties or subsequent agreement between the parties or State practice and the agreement/practice upon which the Minister relies is apparently the making of the request by Hungary in this particular case and the later confirmation of the views of the two governments about what the treaty means in this process.  There is an element of bootstraps in that, of course.

FRENCH CJ:   It raises an interesting question, I suppose, about the interaction between section 11 and the treaty, but it varies according to subsequent agreements made between the parties.

MR KENNETT:   It does, your Honour, yes.  We would say that this is a treaty which of course deals with the rights of the State parties, but also has been concluded in a setting where it is envisaged as having a direct operation in domestic law and a direct operation that would have an impact on the rights of individuals in both contracting States and when a treaty is entered into in order to have that kind of operation, one should not lightly suppose the parties to intend that the provisions will later come to mean whatever the responsible officials want them to mean in a particular case, that is that the meaning of a treaty of this kind, at least insofar as it is picked up domestically if not in its international law meaning, must have some degree of stability and predictability for the individuals whose rights are affected by it.

FRENCH CJ:   I suppose, perhaps, it is no different in principle from the situation that arises if you – on one level of generality, if you substitute one treaty for a new treaty it has different provisions and then there is a different intersection with the legislation.  It is a curious situation where you have an agreement which is said to be relevant to the interpretation of the treaty which takes place during the course of and after the commencement of a litigious process involving the application of that treaty.

MR KENNETT:   Yes, your Honour. 

FRENCH CJ:   It only throws up the importance of the case.

MR KENNETT:   Well, in one sense it throws up the importance, but in another sense it supports the proposition that there is just no room, we would say, for the minority view below to be correct.

GUMMOW J:   What is this threatened cross‑appeal or notice of contention?

MR KENNETT:   Well, the two issues, which we have not yet ruled out, seeking to revive by way of a notice of contention are, firstly, the accused’s point, or what one might call the Kainhofer issue, although I think I can say I will not be troubling the Court with that unless I can have some fairly significant insight into it in the next few days.  The other point that may be raised is how ground 12 which relates to the duty to give reasons, that would be possibly a very important point, but a very short one.

GUMMOW J:   Whose duty?

MR KENNETT:   The Minister’s duty.

GUMMOW J:   At which stage?

MR KENNETT:   At the stage of the decision that he has just purported to make, this section 22 decision.  Just in relation to the objects of the treaty, the objects clause of the treaty or the preamble to the treaty really adds nothing of course to its construction and Article 1, upon which some reliance has been placed, is subject to two very important qualifications; firstly, it is expressed to be subject to the treaty and, secondly, it is predicated on the existence of an extraditable offence, which takes one straight back into clause (2).  So that does not really assist in giving clause (2) a broader meaning as the Minister would seek to do.

Your Honours, those are the points I would seek to make on the substance of the issues.  I have touched on the notice of contention possibility and in view of what my friends said about costs, I do not need to say anything about that.  If the Court pleases.

FRENCH CJ:   So far as costs are concerned, there was an order in your favour at first instance before Justice McKerracher.  Then I think in the Full Court the orders of the Full Court allowed 14 days for submissions, did they not?  What was the final order?

MR KENNETT:   I will need to find out, your Honour.  Your Honour, I am told there was an agreement reached between the parties about a division of costs. 

FRENCH CJ:   So you would not want that order to ‑ ‑ ‑

MR KENNETT:   It was not reflected in an order.

FRENCH CJ:   All right.  So there is no question of an order not being disturbed.  It is just an agreement outside the framework?

MR KENNETT:   Yes, your Honour.

FRENCH CJ:   Thank you, Mr Kennett.  There will be a grant of special leave on the basis of your undertaking or the Minister’s undertaking, Mr Lloyd, that the appellant will meet the respondents’ costs on the appeal.

MR LLOYD:   Would the Court like us to amend the draft notice of appeal to reflect the costs position now?

FRENCH CJ:   You can file an amended notice in due course, I think, and plainly you are not going to be seeking to disturb any costs orders below, so there will be an order accordingly.  I think there is in place already by consent an order which has stayed the operation of the mandamus in respect to the Minister and has a bail regime in place in respect of Mr Zentai.  I draw your attention to the time limits for the filing of submissions, a copy of which will be given to you by the Registrar.  Yes, all right, thank you. 

AT 10.05 AM THE MATTER WAS CONCLUDED