Vasiljkovic v Commonwealth of Australia
[2006] HCATrans 199
[2006] HCATrans 199
IN THE HIGH COURT OF AUSTRALIA
Registry No C3 of 2006
B e t w e e n -
DRAGAN VASILJKOVIC
Plaintiff
and
COMMONWEALTH OF AUSTRALIA
First Defendant
MINISTER FOR JUSTICE AND CUSTOMS
Second Defendant
THE GOVERNOR, PARKLEA CORRECTION CENTRE, SENTRY DRIVE, PARKLEA, NEW SOUTH WALES
Third Defendant
MAGISTRATE MOORE, CENTRAL LOCAL COURT, LIVERPOOL STREET, SYDNEY
Fourth Defendant
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 13 APRIL 2006, AT 12.00 NOON
Copyright in the High Court of Australia
__________________
MR T.E.F. HUGHES, QC: May it please the Court, I appear with my learned friend, MR K.P. SMARK, for the plaintiff. (instructed by Albert A. Macri Partners)
MR H.C. BURMESTER, QC: If it please the Court, I appear with my learned friend, MR J.G. RENWICK, for the first and second defendants. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Hughes.
MR HUGHES: In this case, your Honours, we challenge the constitutional validity of the combined operation of the Extradition Act 1988 and the Extradition (Croatia) Regulations in their application to the plaintiff as an Australian citizen. We do so on the principal ground that in their combined operation the Act, particularly section 19(5), and the Regulations provide to Croatia, as an extradition country within the meaning of the Act, the opportunity to secure the involuntary detention and removal from Australia of the plaintiff without any requirement of providing some evidence pointing prima facie to his guilt of the accusations levelled against him of criminal conduct against the laws of Croatia.
We say that in that operation, with respect to the plaintiff, the Act and the regulations are invalid as being wholly disproportionate to the achievement of any objective within the scope of the external affairs power.
KIRBY J: I realise that the reference to “citizen” comes out of the authority of the court but that has no constitutional status, “citizen”. It is only mentioned in the Constitution in respect of the disqualification for sitting in Parliament. If you are a citizen of another State - there is no constitutional status.
MR HUGHES: No. The reference to the plaintiff as an Australia citizen is not intended to secure any particular constitutional lodgement but ‑ ‑ ‑
KIRBY J: As I understood it, your argument was that the rule of law prevents this provision operating in his case and the rule of law in this country applies to citizens and non-citizens.
MR HUGHES: I was about to say that. The reference to the plaintiff as an Australia citizen is particular. We would say, your Honours, that the principle for which we contend, or the result for which we contend, would be equally applicable to a non-citizen who is lawfully within the country.
KIRBY J: Of course, he may be a constitutional national, a so‑called subject of the Queen in one provision.
MR HUGHES: Yes.
KIRBY J: You do not attach any particular significance to the fact that he is a citizen? It does not require extra scrutiny by the Court.
MR HUGHES: No. The answer to your Honour’s question is yes. Your Honour Justice Gummow has dealt with this point in your Honour’s judgment in Al-Kateb. We rely, of course, upon the statement in the joint judgment of Justices Brennan and Deane in Lim’s Case. We have referred to what I have called the tripartite judgment, the joint judgment of those three Justices, Justices Brennan, Deane and Dawson in Lim’s Case.
It is part of the operation of this Act, and therefore part of its purpose, to expose persons lawfully within Australia, not aliens subject to deportation, for example, persons lawfully within Australia, including Australian citizens to the risk of punitive criminal liability under the law of a foreign country declared to be an extradition country without giving them any opportunity to invoke the judicial, and we would add, even the Executive power of the Commonwealth to contest their alleged guilt of the offence or offences with which they are charged, even on the level of contesting the existence of a prima facie case or a case sufficient to put a person such as the plaintiff on trial.
We say that involuntary detention in aid of such exposure is not detention for a legitimate non‑punitive purpose and in that connection we have in mind a very succinct statement of your Honour Justice Gummow in Kruger v The Commonwealth, the lost generation case, where your Honour said:
The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non‑punitive objective.
GUMMOW J: What is the citation of that, Mr Hughes?
MR HUGHES: It is 190 CLR 1 at 162, your Honours.
GUMMOW J: Thank you.
MR HUGHES: Your Honour went on to say:
The categories of non‑punitive, involuntary detention are not closed.
The statement of principle, as I said a moment ago, upon which we would primarily rely is that of the three Justices whose names I mentioned in the Cambodian “Boat People” Case, Lim. A possible difficulty with that formulation – it is at pages 27 and 28 and in view of constraints of time I hesitate to read it but I ask your Honours to take it –
KIRBY J: I think there is an extract from it in the submissions?
MR HUGHES: Yes. A possible difficulty with that statement of principle or formulation is that in reference to two elements as set out in that judgment in Lim you have what Professor Julius Stone used to describe as categories of indeterminate reference. One category – and your Honour Justice Gummow pointed to this – in Al‑Kateb is the concept of citizenship and the second category is the concept of what is punitive, and your Honour Justice Hayne has dwelt on that difficulty in, I think, Al‑Kateb.
Your Honour Justice Gummow picked up that difficulty – if I may use that expression with respect – in your Honour’s judgment in Fardon v A-G (Qld) 78 ALJR 1519, which is on our list, at paragraphs [77] through to [80]. In [76]:
The making by the Supreme Court of a continuing detention order under s 13 is conditioned upon a finding, not that the person has engaged in conduct which is forbidden by law, but that there is an unacceptable risk that the person will commit a serious sexual offence.
[77] That directs attention to the second proposition and to what was said by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration. That litigation directly concerned the detention of aliens with no title to enter or remain in Australia, not the situation of citizens such as the appellant. However, their Honours earlier in their judgment had said that, putting aside the cases of detention on grounds of mental illness, infectious disease and the qualifications required by other “exceptional cases”, there was a constitutional principle derived from Ch III that:
“the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.”
That passage was applied as a step in the reasoning in Kable of Toohey J and Gummow J, and is reflected in that of Gaudron J and McHugh J.
[78] It must be said that the expression of a constitutional principle in this form has certain indeterminacies. The first is the identification of the beneficiary of the principle as “a citizen”. That may readily be understood given the context in Lim of the detention of aliens with no title to enter or remain in Australia and their liability to deportation processes. But in other respects aliens are not outlaws; many will have a statutory right or title to remain in Australia for a determinate or indeterminate period and at least for that period they have the protection afforded by the Constitution and the laws of Australia . . .
[79] Another indeterminacy concerns the phrase “criminal guilt”.
Then your Honour Justice Gummow referred to what your Honour Justice Hayne had said in Chief Executive Officer of Customs v Labrador Liquor. I will not read it all because time is short. Your Honour Justice Gummow said in paragraph [80] this:
I would prefer a formulation of the principle derived from Ch III in terms that, the “exceptional cases” aside, the involuntary detention of a citizen in custody by the State is permissible only as a consequential step in the adjudication of criminal guilt of that citizen for past acts. That central conception is consistent with the holding in Polyukhovich v The Commonwealth that the conduct may not have been forbidden by law when it was engaged in; the detention under federal legislation such as that upheld in Polyukhovich still follows from a trial for past, not anticipated, conduct.
[81] That formulation also eschews the phrase “is penal or punitive in character”. In doing so, the formulation emphasises that the concern is with the deprivation of liberty without adjudication of guilt rather than with the further question whether the deprivation is for a punitive purpose.
We rely on what your Honour Justice Gummow said in Fardon as a correct statement of principle alternative to what was said in the tripartite judgment in the earlier case, Lim’s Case. We say that the question is here whether the statutory scheme for extradition provided by the combined operation of the Act and the Croatia Regulations should be treated as an exception to the operation of the precise principle as stated by your Honour Justice Gummow or perhaps more broadly in the tripartite judgment in Lim.
The way in which Part II of the Extradition Act 1988 operates is very fully explained in the joint judgment in Kainhofer 185 CLR 528 and if I may say so, with respect, very pithily stated by your Honour Justice Gummow in the same case at paragraph – it is stated in the joint judgment in Kainhofer at pages 533 to 538 and briefly by your Honour Justice Gummow at page 547. I will not read the extensive analysis because time just does not permit and your Honours anyway can read it for your Honours’ selves. But at page 547 your Honour Justice Gummow says:
“The Act contemplates four stages in extradition proceedings as follows: (1) Commencement; (2) Remand –
Commencement is section 12, the provisional warrant, remand provided for by section 15 –
(3) Determination by a magistrate of eligibility for surrender –
That is under section 19:
(4) Executive determination that the person is to be surrendered.
GUMMOW J: What stage have we reached here?
MR HUGHES: The stage we have reached here is that this proceeding was commenced before section 19 proceedings before a magistrate to determine eligibility for surrender were commenced. They have been stood over without any commencement of the hearing
GUMMOW J: So the Attorney gave the notice under section 16 ‑ ‑ ‑
MR HUGHES: Yes, your Honour.
GUMMOW J: And the magistrate is presently ‑ ‑ ‑
MR HUGHES: Is seized.
GUMMOW J: Is seized of but has stood over the section 19 proceeding?
MR HUGHES: Yes, stood over until next Tuesday for mention, I am told.
GUMMOW J: Thank you.
KIRBY J: Is the magistrate executing a judicial or an administrative function?
MR HUGHES: He is exercising an administrative function. That conclusion comes from this court’s treatment of the scheme of the 1988 Act in Kainhofer.
KIRBY J: That is not in dispute?
MR HUGHES: Not in dispute.
KIRBY J: It is not said that he was executing the judicial power of the Commonwealth.
MR HUGHES: No.
KIRBY J: His function is quite narrow, is it not?
MR HUGHES: It is very narrow.
KIRBY J: Your essential complaint is that at no stage before your client, a citizen of this country, and a constitutional national, is removed from this country to a foreign country does he have anybody examining the strength, weakness, the arguability of the claim to have him removed and that the bottom line is that no person who is a constitutional national of Australia should be removed form this country without that because that is the structure of the Constitution.
MR HUGHES: Indeed. He does not have to be an Australian citizen. It is sufficient if he or she, the person concerned, is lawfully within Australia.
KIRBY J: It is not said that this falls in the permissible category of removing an alien.
MR HUGHES: No.
KIRBY J: To that extent his status as a constitutional national or citizen is enough to get him the benefits of Chapter III?
MR HUGHES: Yes, your Honour.
HAYNE J: That is to say, the proposition you advance is that there may be no extradition arrangement which does not include an Australian inquiry – let us leave aside whether that is Executive or judicial – an Australian inquiry into the sufficiency of the case against the person whose extradition is sought?
MR HUGHES: Yes, your Honour.
HAYNE J: How is that consistent with a proposition that extradition arrangements, generally, are premised upon assumptions about the nature and qualities of the judicial and legal system of the country to which the extradition is to occur?
MR HUGHES: That, your Honour, may be a very comfortable assumption to make where you have a treaty. There is no treaty here.
HAYNE J: I understand that.
MR HUGHES: The scheme of this Act is such as to enable extradition to depend upon the existence or proof at prima facie level of a case against the extraditable person. That is made clear, your Honour, by section 11 which enables the prima facie test or the sufficient evidence test to be included in the extradition scheme operating between two countries where there is or even where there is not a treaty. That stands in marked contrast to the position in this case where all that the regulations do, your Honours, is to declare Croatia an extradition country and without any superaddition of the need for some sort of an inquiry, however superficial.
GLEESON CJ: Mr Hughes, I would like to be a little clearer than I am at the moment on the legal relevance you attach to your client’s citizenship. I thought at one stage in your argument a little earlier you said it was the fact that he was here lawfully that is important.
MR HUGHES: Yes.
GLEESON CJ: If that is right your argument would apply if he was a tourist here on holidays.
MR HUGHES: Lawfully here, yes.
GLEESON CJ: With a visa or whatever ‑ ‑ ‑
MR HUGHES: With a proper visa.
GLEESON CJ: Yes. So the fact that he is a constitutional national or the fact that he is a citizen is only colour, is it?
MR HUGHES: On a strict analysis of the position, that may be so, but we would say that in Lim this Court attached some significance to the fact that the person concerned was a citizen or a lawful subject of the Queen.
GLEESON CJ: That is what I want to understand. What the legal significance of that is.
MR HUGHES: The legal significance of that is that it accentuates the application of the constitutional principle to such a person. Stripped down to its essentials, it might be said that is colour, but it is relevant colour. The first stage in the extradition process prescribed by this Act is provided for under section 12, your Honours. That is an ex parte proceeding of which the proposed extradite, if I can use that word, if it is a word, has no notice. That is in the nature of things. The section 12 magistrate has to decide whether the person concerned is an extraditable person, and that is a definition that comes from section 6 of the Act. Relevantly, section 6 says:
6. Where:
(a) either:
(i)a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
. . .
(b)the offence or any of the offences is an extradition offence in relation to the country; and
(c)the person is believed to be outside the country –
The expression “extradition offence”, your Honours, is defined in section 5 on page 2 of the print of the Act:
(a)in relation to a country other than Australia – an offence against a law of the country:
(i) for which the maximum penalty –
I will not read it all. So the first magistrate, the section 12 magistrate, deals with the matter ex parte. There is no limit in terms of evidentiary admissibility or testimonial persuasiveness on the sort of evidence upon which the section 12 magistrate may act. That position is illustrated, if I can briefly go to the case book, by the affidavit which appears at page 15. It is an affidavit by an officer of the Australian Federal Police sworn on the 19 January. She says:
2.I have been informed of, and verily believe, the following matters –
I will not read it all. I would ask your Honours to read (a).
(b) The offences which is the subject of the warrant –
that is the warrant issued from Croatia –
and in relation to which Dragan Vasiljkovic . . . are:
(i)two war crimes against prisoners of war under Article 122 . . .
(ii)one war crime against civil population under Article 120 –
and one just does not know the quality of the hearsay which informed this affidavit. One in that respect looks at paragraph (j) on page 16 where the deponent says:
I make this affidavit from information gained from my own inquiries and from information that has been provided by Croatia, other Federal Agents, officers of the Commonwealth Director of Public Prosecutions and other persons who are or have been involved in the obtaining of information for the purposes of the making of this application for a warrant under section 12(1) of the Extradition Act1988. I believe that that information is true and correct.
It is quite non‑specific as to the sources, except for the most general and really, from the point of view of examination, unhelpful general allegations in ‑ ‑ ‑
GLEESON CJ: She has not made any allegations at all, has she?
MR HUGHES: No.
GLEESON CJ: She does not allege that he has committed any offences?
MR HUGHES: No.
GLEESON CJ: Her allegations are about quite specific matters of fact, namely, a warrant for arrest. The offence is the subject of a warrant of so‑and‑so. He is in Western Australia. He was born on such‑and‑such a date. I would have thought that the allegations she makes in her affidavit are entirely specific. It is just that they do not include any allegations of facts in support of any assertion by her or anybody else that he has committed offences.
MR HUGHES: Exactly. The basic defect in this Act is that it gives the opportunity to Croatia to obtain extradition merely on the basis of untested and untestable allegations of criminal conduct against the law of Croatia. If one is examining, your Honour – and this is a relevant question, in our respectful submission – the question whether, to use your Honour Justice Gummow’s phrase in Kruger, this particular set of prescriptions is relevant for the achievement of a legitimate non‑punitive purpose are reasonably necessary for that achievement, one can go back to the 1966 Act, which was displaced by the 1988 Act, and find that in section 17(6) of that Act the relevant magistrate had to consider the question whether there was before him:
such evidence as would, in the opinion of the Magistrate, according to the law in force in the State or Territory of which he is a Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory –
Can I hand up to your Honours copies of the 1966 Act?
GLEESON CJ: Thank you, Mr Hughes.
GUMMOW J: Does one not now look at 19(2)(c) in the 1988 Act?
MR HUGHES: That is the double criminality rule.
GUMMOW J: Yes.
MR HUGHES: But, as your Honour would see, that does not permit ‑ ‑ ‑
GUMMOW J: Indeed.
MR HUGHES: ‑ ‑ ‑ any inquiry as to whether there is any sort of a case on evidence put before the magistrate. An extradition case under the 1966 Act which I recall because I was in it at one stage in the Federal Court was Riley. That was a case in which ‑ ‑ ‑
GUMMOW J: The drug grannies.
MR HUGHES: Yes, drug running in South Carolina – some very picturesque evidence – and I appeared for Mr Riley who went back to the States. But the court over several days, because there was a vast volume of evidence in the form of depositions or a transcript of what took place before the grand jury, and the court had to trawl through the evidence for the purpose of determining whether there was a case to justify the evidence ‑ ‑ ‑
KIRBY J: What is the citation of Riley?
MR HUGHES: In the Full Federal Court, 5 FCR 8. I am not going to read it, but I merely refer your Honours to pages 35 to 37. Their Honours said:
Applying these general remarks, we turn to consider whether, in relation to individual offences, there was evidence before the magistrate sufficient to justify the relevant respondent being placed upon his trial.
That is an issue, your Honours, that is expressly ruled out by the mandatory terms of section 19(5) which is ‑ ‑ ‑
KIRBY J: What is the non‑death penalty requirement that is part of our extradition law in the general provisions of the Extradition Act? How does that operate in this case? I imagine that Croatia as a member of the Council of Europe does not have a death penalty but ‑ ‑ ‑
MR HUGHES: Yes. These are not offences that carry the death penalty.
GLEESON CJ: The maximum is 20 years according to page 15 of the special case book.
MR HUGHES: Yes, your Honour.
HAYNE J: You referred to the 1966 Foreign States Act and, in particular, section 17(6)(b).
MR HUGHES: Yes.
HAYNE J: Was there an equivalent provision in the Commonwealth Countries Act? I may be mistaken, but I thought that you did not have to, in effect, hold a mini‑committal for a Commonwealth countries extradition, but that is perhaps something that I can look at for myself.
MR HUGHES: I must confess I do not know the answer to that. I will try to find out over the luncheon adjournment.
HAYNE J: Yes.
KIRBY J: I would still like to know how this Act operates in a case where a person is charged with a capital offence, because we have to look not just at your client’s case but at how it would fall on other people. Perhaps that can be looked up and you can tell me later.
MR HUGHES: Yes. My recollection is that that issue comes up for consideration by the section 19 magistrate who, in determining eligibility for surrender, has to take into account whether the death penalty is appropriate and, if it is, the ‑ ‑ ‑
KIRBY J: Unless they give an undertaking.
MR HUGHES: Yes.
KIRBY J: We had to deal with a case of extradition to Singapore and they gave an undertaking not to, otherwise we would not have agreed to the extradition.
MR HUGHES: Yes.
GUMMOW J: Section 25(2)(b).
MR HUGHES: Thank you, your Honour.
KIRBY J: That is engaged in the case, as of Croatia, of a country which has no treaty with us.
MR HUGHES: Yes. Now, I referred your Honours to section 19(5). This subsection reads:
In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.
That is a very extreme provision because it rules out any inquiry on the level of whether there is a prima facie case or a case sufficient to put the person concerned on his trial. If one asks the question, whether such a prescription is necessary to achieve a relevant statutory purpose under this Act, one considers it, I suggest, in the light of the provision in the pre‑existing Act which required the magistrate under section 17 ‑ ‑ ‑
KIRBY J: Is there anything in the second reading speech of the 1988 Act which explains this change?
MR HUGHES: Not that I am aware but ‑ ‑ ‑
KIRBY J: You had better have a look at that because there is a definite change here and there must have been a reason for it, one would think.
MR HUGHES: If there is a reason for it, it is not a reason which points to the reasonable necessity of ruling out any consideration of the issue of prima facie case in a case where there is no treaty and ‑ ‑ ‑
KIRBY J: What does the absence of the treaty do, though? I mean, what effect does that have for judging the constitutional question?
MR HUGHES: It has this effect, your Honour, I suggest, that where there is a treaty there can be – and, for example, in relation to the United States, there are prescriptions relating to a requirement of showing there is enough in the allegations to warrant persons being put on trial. Even in the absence of a treaty, as in the present case, the regulations could – it is within the scope of the regulation‑making power under section 11 – provide that the extradition country concerned – here Croatia – would have to prove that there was something in the allegations that would justify the extraditable person being put on trial.
Everything in this Act in relation to Croatia, because of the absence of any such provision in the Croatia Regulations, operates on the basis of untested and un‑testable allegations of criminal behaviour with an express prohibition against any inquiry before the section 19 magistrate in any way into the question of guilt.
KIRBY J: One might say that that seems undesirable, at least that would be a point of view, but why is it unconstitutional?
MR HUGHES: By the test of reasonable necessity it fails.
KIRBY J: Is the test applied to whether or not you can bypass the judicial branch? Is that a test of reasonable necessity?
MR HUGHES: Yes.
KIRBY J: I mean, there would be often assertions of reasonable necessity. There are some well worn exceptions, like quarantine.
MR HUGHES: Quarantine - I will come to quarantine.
HAYNE J: Quarantine is not the analogy, is it? The analogy relevantly is detention pending committal proceedings in Australia. Here, relevantly, there is detention for the purpose of surrender, surrender to another judicial system, the quality of which is reflected in the fact that the Executive has chosen either to make a treaty with that country or without treaty has chosen to declare that country an extradition country.
MR HUGHES: Yes, your Honour.
HAYNE J: In doing so, Australia thereby makes a judgment, does it not, about the nature and quality of the legal system to which it is surrendering the person?
MR HUGHES: That may or may not be implicit in the selection of Croatia as an extradition country. Let us assume that it is.
HAYNE J: What is the principle that requires the intervention of an administrative inquiry - by hypothesis a magistrate’s inquiry of the kind with which we are presently concerned would, I think, be an administrative inquiry into the sufficiency ‑ ‑ ‑
MR HUGHES: Of the evidence.
HAYNE J: ‑ ‑ ‑ of the evidence that will be adduced and adjudged not in Australia but in a foreign legal system.
MR HUGHES: What is the imperative that points to the need for such an inquiry?
HAYNE J: What is the constitutional principle that requires it?
MR HUGHES: In that connection, I would refer the Court to the case of Barton v The Commonwealth which is referred to in our written submissions, 147. Your Honour Justice Hayne – if I may say so, with respect – pointing with obvious relevance to the need for some analogy which ‑ ‑ ‑
KIRBY J: That was Paraguay ‑ ‑ ‑
MR HUGHES: That was Paraguay.
KIRBY J: ‑ ‑ ‑ in one of its more unhappy periods.
MR HUGHES: Yes. I think the name of the president was Stroessner. It was a haven for former U-boat commanders, your Honour.
GUMMOW J: It is the other way round though. We are trying to get this gentleman returned here to the embrace of Chapter III.
MR HUGHES: Yes. Barton was a case with which I had some long association and the position was that after the long committal hearing against the two Bartons in which the prosecution did not go on, the Bartons having been brought back from Paraguay, were put up on an ex officio indictment and that was a subject dealt with in Barton v The Queen 147 CLR 75. At page 100 in the joint judgment of Sir Harry Gibbs and Sir Anthony Mason, their Honours said this:
We are not impressed by the argument that because in the distant past the courts proceeded to hear trials on ex officio indictments without benefit of a preliminary examination, it necessarily follows that we should take the same course today or that there is no element of injustice in forcing an accused to trial without such an examination. It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial, held without antecedent committal hearings, unless justified on strong and powerful grounds, must necessarily be considered unfair.
Here, we say that there is an appropriate analogous application of that principle to the present sort of case where what the requesting country is seeking to do is to have my client detained and removed on the basis of these untested allegations, unsupported by any attempt at proof.
HAYNE J: In that respect, I think it may repay quite close examination, but I suspect that close analogies can be drawn between the procedure for which the Act provides in this case and that which obtained under the Extradition (Commonwealth Countries) Act 1966 in at least some circumstances of extradition to Commonwealth countries. Now, if the point you make is good, the fact that the requesting country was a Commonwealth country would seem to be constitutionally irrelevant to the point you make. That is, the point you make is one of perfect generality, is it not? No extradition arrangement may be made which does not include an Australian inquiry into the strength of the case against the person whose extradition is sought.
MR HUGHES: Well, the proposition for which I contend in relation to Croatia may be a proposition that can be applied generally. I am asking the Court to consider it in relation to Croatia, with which there is no treaty and with which there is no prescription by regulation, as there could be and as there was in the 1966 Foreign Countries Act in relation to extradition to Croatia. It may be - I see I have gone over time, your Honour.
GLEESON CJ: No, we are sitting until 1 o’clock, Mr Hughes, and we will resume at 2.00.
MR HUGHES: Thank you.
GLEESON CJ: And finish at 4.00.
MR HUGHES: It may be that the absence of a requirement for an inquiry into the sufficiency of the allegations is not thought necessary in the case of Commonwealth countries where there is perhaps a community of principles and in the application of the law, but one does not know. I ask the Court to look at the particular case here and the fact that that principle, as your Honour Justice Hayne tentatively suggests, may be applied, capable of application. To have a wider import is not really decisive in this case.
KIRBY J: The prospect of a constitutional rule that required in every matter a detailed examination into the weight or otherwise of the charge that is to be brought against a person in the position of the plaintiff is not a very congenial one because you are going to have, as it were, a potentially extremely lengthy investigation in Australia which would go beyond what is required in most extraditions.
MR HUGHES: But, your Honour, it can be done in this way, as was done under the 1966 Act. It does not mean calling people out from Croatia to give evidence before a section 19 magistrate. It would involve, as was the case in Riley, the filing of depositions, the making of which under oath was duly authenticated, setting out the evidence upon which the requesting company relies.
KIRBY J: Parliament can do that, but they have chosen a different course in the 1988 Act and the only question, as I understand it that is before us is, is that compatible with the requirements of Chapter III of the Constitution, because the power would be there in respect of external affairs, one would think, subject to what you have to say on that, but it has to be consistent with Chapter III.
MR HUGHES: Yes, the only relevant external affair, we would venture to suggest, is the relationship and the operation of the relationship between Australia and Croatia.
KIRBY J: Not necessarily. There is the fact that there is an allegation that an offence has occurred in a foreign country beyond the borders of Australia. It is external to Australia.
MR HUGHES: Yes, but it is only an allegation, your Honour.
KIRBY J: That is where Chapter III comes in?
MR HUGHES: Yes, that is where Chapter III comes in, and just as in Barton this Court – I will not read all the passages in the judgments – emphasised the importance of a committal hearing where the offence for which extradition was sought was an offence against Australian law, so we say you apply that principle by analogy so as to say that the Chapter III power requires an analogous process. It need not be an inquiry of a prolonged or complicated kind. The extraditable person is entitled to be told in the substance in the form of proof ‑ ‑ ‑
KIRBY J: You say we do not have in this Court to design the statute. All we have to do is to strike down this extradition and then the Federal Parliament will have to draw inferences from that and design an alternative mode which will require some resort to the judicature and some procedure for considering at a preliminary level apt to extradition a case such as the present?
MR HUGHES: Yes, indeed.
HAYNE J: In this field of discourse where we are dealing with relations between States in which mutuality of treatment is commonly expected a consequence, if it be constitutionally valid, of having extradition without a showing, as the Americans would have it, presumably may work both ways, namely, if Australia wants to extradite somebody from Croatia it can do it without a showing.
MR HUGHES: Yes.
HAYNE J: Given that we are in the realm of external affairs, given that we are in the realm of extradition, it comes down to does Chapter III require that there must always be a showing before we can render someone to a foreign judicial system for that foreign judicial system to deal with the person?
MR HUGHES: I do not shrink from that. I seek to rely on what Justice Gummow said in the Stolen Generations Case, Kruger. I suggest that this Court will apply Barton, by analogy. Bear in mind that, as we venture to suggest in our written submission, the ruling out of any inquiry, even on the most superficial level, into whether there is a provable case is really a usurpation of the judicial power.
GLEESON CJ: Is that a convenient time, Mr Hughes?
MR HUGHES: Yes, your Honour.
GLEESON CJ: We will resume at 2.00 pm.
AT 12.59 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM:
GLEESON CJ: Yes, Mr Hughes.
MR HUGHES: Your Honours, apropos a subject raised by your Honour Justice Hayne, we have looked during the adjournment at the Extradition (Commonwealth Countries) Act as enacted in 1966. Section 15 of that Act prescribed the same test as was prescribed in section 60 in relation to foreign countries. I have copies of the Act and the regulations declaring various countries to be Commonwealth countries. May I provide those to your Honours.
GLEESON CJ: Thank you, Mr Hughes.
GUMMOW J: The history of the matter is dealt with in the Full Federal Court, amongst other places, in Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 298 to 300.
MR HUGHES: That was one point I wanted to raise. I have little else to put to your Honours save this. The appropriate test which comes out of Kruger per your Honour Justice Gummow and really out of Lim is whether the provisions of section 19(5) can be seen as reasonably capable as necessary for a legitimate non‑punitive objective. I have been to that passage before.
We simply ask your Honours to consider everything we have said in our written submissions in‑chief and in reply and in our reply submissions we have endeavoured to lay stress on the marked imbalance between the provision made for the benefit of the requesting state on the one hand and the ruling out, on the other, of any opportunity for the person whose extradition is requested to canvass at any level of the inquiry process any issue as to his guilt, or lack of it. That is, we submit, a crucial feature and an invalidating feature.
KIRBY J: Could you help me on the point that Justice Hayne made, that the best analogy is the analogy of detention for the purpose of say a committal proceeding within Australia. Now, why can one not say, like quarantine and like the other accepted exceptions, this one is like that one?
MR HUGHES: Well, it is not, with very great respect. First of all, if one is dealing with detention in aid of committal in relation to an offence against Australian law, the person accused, even though committal proceedings are now streamlined – they are paper committals, subject always to a right to cross‑examine the paper witnesses – they are subject to a prima facie or sufficient evidence requirement. Why should it be any different, one ventures to ask, in relation to extradition to a foreign country to answer accusations of the commission of an offence against a law of that country?
We can give your Honours a note on quarantine. We have done some work on that. Under the Quarantine Act at section 35C – we will give your Honours a reference to these provisions, if we may, after the argument is completed today, or perhaps immediately after Easter.
GLEESON CJ: Yes, thank you.
KIRBY J: What do you say about the sufficiency of the factual matters set out in the warrant, I suppose it is, from the Croatian Minister?
MR HUGHES: Because they are mere allegations. There is no attempt to prove them, even on paper. There is no affidavit.
KIRBY J: In the committal proceedings in the old days you would have sworn depositions. Is that still the case in committal proceedings done on the paper? I assume it has to be in Australia.
MR HUGHES: There is a provision for sworn depositions and for a right to cross‑examine a paper witness in committal proceedings – I am talking about New South Wales – on his or her statement.
KIRBY J: You do get cases thrown out at the committal, do you not?
MR HUGHES: Yes, even now. In fact, I can say I did one recently.
KIRBY J: Congratulations.
MR HUGHES: That was about a young woman who was a journalist at a television station and she was charged with taking a prohibited object on board an aircraft, and the evidence did not get there. I do not want to take up time unnecessarily, but just dealing very briefly with the Quarantine Act. Under section 35C, a person placed in human quarantine may seek an independent medical assessment. A person must be advised of this right if he or she is to be ordered into human quarantine. The only limit on the right to seek independent medical assessment is as provided under a provision relating to epidemics. If there is an epidemic, the right to an independent medical assessment does not arise.
Under section 35D, the Chief Quarantine Officer (Human Quarantine) has to assess whether a person is to remain in quarantine once an independent assessment is provided. And unlike the Extradition Act, the Quarantine Act does not appear in a schedule which excludes recourse to the ADJR Act. Decisions under section 35C are susceptible to judicial review.
In this 1988 Act there is no provision for any judicial review except in relation to the questions arising under section 19 of the Act, that is, “eligibility for surrender”, and as I said before the adjournment, any question of inquiry into guilt or possible guilt is expressly ruled out by subsection (5).
KIRBY J: What was the case – I think it was Justice Brennan – it may have been Justice Brennan and Justice Deane - said that if you are an Australian citizen and you approach the barrier coming back to Australia you cannot be stopped from coming into the country.
GUMMOW J: Air Caledonie it is.
MR HUGHES: Air Caledonie, yes.
KIRBY J: Yes. That rather suggested that, in the circumstances of that case, their Honours did attach importance to citizenship.
MR HUGHES: To Australian citizenship, yes.
KIRBY J: They have in other cases – I think it might have been Nolan - said that in the modern age when you talk of “citizen” you are talking of an Australian national, a subject of the Queen, and so on.
MR HUGHES: Yes.
KIRBY J: That is the modern appellation.
MR HUGHES: Subject of the Queen is perhaps the real touchstone in these days.
KIRBY J: Yes.
MR HUGHES: The matter can be tested in this way. There is nothing in the Act, this 1988 Act, which enables a person whose extradition is sought, in this case to Croatia, to raise the subject of mistaken identity. That goes to guilt and it is ruled out. There is, I should tell your Honours, a piece of obiter dictum in a case, Federal Republic of Germany v Parker 84 FCR 323 at 336, a decision of the Full Federal Court, where their Honours say that when the person for whom a request for extradition is made appears before the magistrate, at the section 15 stage:
Obviously, this would also be an appropriate occasion for the person arrested to raise any assertion that he or she is not in fact the person in respect of whom extradition is sought.
Section 15 does not say that. That is a piece of obiter which in my respectful submission is plainly wrong.
The idea that somebody can raise mistaken identity at the section 15 – where the person concerned is brought before the magistrate for the purpose of remand either in custody or on bail can say I am not the person, does not square with the structure of the Act containing as it does subsection (5) of section 19. Now, I am conscious of time and of the need for compression. Those are the submissions, in addition to what we have said in writing why, your Honours, we say that the writ of habeas should go and ‑ ‑ ‑
KIRBY J: Your client is still in detention.
MR HUGHES: Yes, and is in detention in penal conditions. He is not in a remand centre. He is in ‑ ‑ ‑
KIRBY J: You make that point in the written submissions.
MR HUGHES: Which is a matter which goes to the question - if punitive against non-punitive is a relevant criterion those unfortunate facts have to be added into the factual and circumstantial mix. If your Honours please.
GLEESON CJ: Thank you, Mr Hughes. Yes, Mr Burmester.
MR BURMESTER: If it please the Court. The scheme of the Extradition Act has been outlined in the written submissions both by the plaintiff and by the first and second defendants and Mr Hughes this morning has taken your Honours to a statement of the various steps that are involved. I want to briefly, however, take your Honours to some of the key sections, not to spend any great time on them but to indicate the way in which the Act operates. The first section is section 12. It provides for a provisional arrest warrant, and 12(1)(b) requires:
the magistrate [to be] satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country –
and section 6, which your Honours have been taken to, sets out the meaning of “extraditable person”. In the present matter, there was an affidavit put before the magistrate, and your Honours were taken to that this morning. That is in the case book at page 15. That refers to the warrant annexed to the affidavit which is marked “DJB1” and over on page 17 one sees the reference to the following 11 pages comprising that document. If one looks at that annexure, pages 19 and 20 set out in some considerable detail the offences with which the plaintiff has been charged or which it is alleged he has been guilty of.
KIRBY J: But they are merely allegations.
MR BURMESTER: They are merely allegations.
KIRBY J: And they are not backed up by any sworn or affirmed testimony.
MR BURMESTER: That is correct, your Honour, but if one then goes over past the translation of that first document to the decision of the County Court which is on page 25, one sees the allegations again set out in some detail, and over on page 27 the statement of reasons. In the main paragraph on that page, the biggest paragraph starting about point 5, it indicates the basis for the well‑founded suspicion which is said:
to be derived from the contents of a special report . . . and from a special report made from information gathered, especially interviews with witnesses –
So, in our submission, while there is no affidavit material and supporting material for a magistrate to be satisfied for the purposes of section 12, obviously some material – some adequate material does need to be put before the magistrate.
GLEESON CJ: The decision is that appearing on page 25, line 20, is it? See line 15. That is what has been decided.
MR BURMESTER: Yes, your Honour.
GLEESON CJ: Line 15 indicates that what has been decided is what appears at line 20 on the grounds referred to in line 26 and following.
MR BURMESTER: Yes.
KIRBY J: But governments throughout history have made accusations. You do not have to accept that they are true just because a government makes it. That is why we normally have judicial officers who are separate from Executive Governments. It is really one of the most important features of the English legal system, that the job of the Executive Government is to get the person quickly before the judicial branch and the judicial branch then decides, according to whatever is the appropriate level, whether a basis has been made out. It is not normally made out just by an accusation.
MR BURMESTER: Your Honour, I will come back to the opportunities that do exist to review the allegations. Before doing that, though, can I take your Honours just briefly to the other key sections in the Act.
GLEESON CJ: Just before you go to that, I presume the decision referred to on page 25 of the appeal book is a decision of an investigating magistrate made in the context of an inquisitorial system of criminal justice.
MR BURMESTER: That is correct, your Honour, and it is clearly issued out of the Šibenik County Office and the investigating magistrate of the County Court in Šibenik has decided. So it is in accordance with the Croatian investigative inquisitorial system. At the end of the document on page 27, right at the very end under the heading “LEGAL REMEDY” there is an indication there about appeals and four people are identified to receive the decision including No 4 the attorney, court‑appointed defence counsel.
KIRBY J: Why not require that the sworn material on which this investigating magistrate has considered there is a well‑founded suspicion because that is what appears on 25 at 25, why not require by our law that that be placed before a judicial officer here so that the person is under the protection of the law and the Constitution?
MR BURMESTER: Well, your Honour, in 1985 the Parliament made a deliberate decision that it should abandon what had been the norm up until then of a requirement of a prima facie case. If I could hand up to your Honours some extracts from the Extradition (Foreign States) Amendment Act 1985, which your Honours have or - your Honours have that, I am sorry. The amending Act is set out and if I could take you past that to the second reading speech of Mr Lionel Bowen and one will see the second paragraph of his second reading speech says:
The first amendment will enable Australia to conclude extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt but rather information as to the allegations against the fugitive. This amendment is of particular significance to civil law countries whose systems have difficulty in adapting to the provision of pre‑trial evidence. The extradition arrangements of most European countries which are reflected in the European Convention on Extradition do not require the production of prima facie evidence.
GLEESON CJ: That is because in an inquisitorial system they do not have a climactic trial at which guilt or innocence is decided. They have an investigative process. Now, it may be good or it may be bad, but the system is just different.
KIRBY J: The trouble for you, Mr Burmester, is you are in our system.
MR BURMESTER: But, your Honour, in order to take advantage of the ability to have extradition relationships with other countries with different legal systems to ours the decision was taken in 1985 to allow extradition without prima facie evidence.
KIRBY J: But somebody has given this magistrate in Croatia the material on which the allegations are made. So why should an Australian citizen have to go back without having that subject of the scrutiny of his own country, because they are making their request to this country? I mean, these are very grave allegations and they need to be dealt with, but the question is whether this procedure is constitutionally compatible with chapter III, which is there for the protection of the States and the Commonwealth, but also of the nationals of this country.
MR BURMESTER: Your Honour, I can understand that there can be different views expressed about the wisdom of the no‑evidence system and that is reflected in the material we have referred to in our written submissions.
KIRBY J: It is not the wisdom. The wisdom is for Parliament, if it is lawful, but you get your power from section 51, but 51 is subject to this Constitution. That picks up Chapter III and therefore the powers that you get in Parliament is subject to any application or implications of Chapter III.
MR BURMESTER: Yes, your Honour, I accept that. The question is ‑ ‑ ‑
KIRBY J: That is really a tremendously important and central aspect of our Constitution to render all officers of the Commonwealth accountable to the judicature.
MR BURMESTER: Yes, your Honour, and I will address the reasons why we say that the system is not contrary to Chapter III, but before doing so can I just perhaps explain the system a little more.
GUMMOW J: Before you leave the 1985 amendment though, Mr Burmester, was – I will start again. Under the 1966 legislation for the Commonwealth countries, did that have the evidence requirement?
MR BURMESTER: It did, your Honour, there was no difference.
GUMMOW J: There was no difference?
MR BURMESTER: When the 1966 Acts were first enacted between the Commonwealth and foreign States, and currently under the London scheme which is the scheme that applies to Commonwealth countries there still is a prima facie evidence requirement, but as part of a move towards greater simplification – for instance, in the back of our submissions we have a list of extradition regulations and we have indicated there in bold those which are non‑treaty extradition arrangements.
KIRBY J: Where is this, I am sorry?
MR BURMESTER: In the back of our written submissions, your Honour. We have sought to indicate that there are a number of countries with non‑treaty extradition relationships. The Extradition (Commonwealth Countries) Regulations listed in item 5 should probably be bold too because there is what is called the London scheme, and it is an arrangement between Commonwealth countries but not a formal treaty. But you will see item 4, for instance, lists the Extradition (Canada) Regulations in bold, reflecting the fact that instead of applying the Commonwealth scheme to Canada, we now have a non‑treaty relationship with Canada and no longer apply the prima facie requirement. Similarly, there is the Extradition (United Kingdom) Regulations which are also bold and which have also been made outside the Commonwealth scheme.
So there is a variety of arrangements, both treaty and non‑treaty, and since 1985 Australia, in entering into extradition treaties, has predominantly sought no‑evidence treaties and, as a consequence, quite a considerable number of new treaties have been concluded. In our written submissions, footnote 66 on page 16, we indicate some of the motivation for this. In part it is driven by the United Nations Model Treaty on Extradition which has a no‑evidence test.
KIRBY J: They may not be as sensitive to liberty as we are.
MR BURMESTER: No, your Honour.
KIRBY J: There are a lot of nations in the United Nations.
MR BURMESTER: Your Honour, that is the model and, as a matter of policy, Australia has decided to follow that model. As I have indicated, that is consistent with the policy position adopted since 1985. So the question then ‑ ‑ ‑
KIRBY J: They cannot decide over the Constitution.
MR BURMESTER: I agree. The question then becomes, “Is there a constitutional problem with that?” Your Honours, can I just say that that list of regulations attached to our submissions should not necessarily be taken as completely accurate. It was taken from common law but there do seem to be some anomalies like there is a second entry for Croatia under item 36 and there is no entry for Hong Kong. There may be some other errors so I just warn against that when we went back and looked at it.
GUMMOW J: Can that be checked?
MR BURMESTER: We can check that and give your Honours an accurate list, if we may. If I can turn then to the constitutional issues ‑ ‑ ‑
KIRBY J: Why would there not be a treaty with the United Kingdom?
MR BURMESTER: Your Honour, we have chosen to make an arrangement outside the Commonwealth scheme and to not require a prima facie evidence test so we have just, as I understand it, made a decision to have an arrangement outside any treaty relationship as we have with Canada. If we had not done that then they normally would have been covered by the Commonwealth country scheme which as I have said is based on an arrangement rather than a formal treaty and by doing ‑ ‑ ‑
KIRBY J: But Kyrgyzstan is another country in that category. I do not know much about the legal system. I do know about the legal system of the United Kingdom but I know nothing about the legal system of Kyrgyzstan.
MR BURMESTER: Your Honour, the Executive, and the Parliament who has chosen not to disallow the regulations, has chosen to enter into an extradition relationship with these particular countries that are bolded without the need for a treaty. The question ‑ ‑ ‑
GUMMOW J: I am sorry to interrupt you again, Mr Burmester. Could you just explain shortly how the London scheme within the Commonwealth fits in with the Extradition Act 1988? I understand how it fitted in when there was a separate Act.
MR BURMESTER: Yes, it fits in, your Honour, by regulations made under the 1988 Act.
GUMMOW J: Under section 11.
MR BURMESTER: Under section 11, called the Extradition (Commonwealth Countries) Regulations and it applies the Act with certain modifications reflective of the London scheme such as in particular the requirement for prima facie evidence test, that is regulation 6 and then in a schedule lists a large number of Commonwealth countries.
GUMMOW J: Yes, thank you. I understand.
MR BURMESTER: That is how those countries become prescribed extradition countries.
GUMMOW J: I think United States arrangements are caught up through section 11, are they not?
MR BURMESTER: Yes, your Honour. I think there is a treaty with the United States.
GUMMOW J: Our treaty with the United States has all sorts of requirements.
MR BURMESTER: That is right. So a lot of these ‑ ‑ ‑
HAYNE J: A treaty which reflects, for example, the American requirements as to due process.
MR BURMESTER: Yes, your Honour. I am sure there will be something in the treaty articles which are scheduled and which – the Act is applied subject to the treaty articles which reflects their requirements and so what appears at particular set of regulations whether it be based on treaty or non-treaty will reflect any agreement between Australia and that country as to the standard that needs to be fulfilled. In the United States regulations Article VI of the treaty says that:
Extradition shall be granted only if the evidence is found sufficient, according to the laws in the territory where the person whose extradition is requested is found, either to justify his trial or committal for trial if the offence with which he is charged or its equivalent had been committed -
So, in the case of the United States there is a sufficient evidence test. In the case of the United Kingdom there is a “no evidence” test and with all the other treaties a great variety of arrangements and modifications of the Act as allowed by section 11.
In the case of Croatia, the Act is only modified in the sense that the 45 days for the Attorney-General to issue a notice was extended to 60 days but, otherwise, the Act applies in its terms. The Act, therefore, does not contain any prima facie evidence requirement.
KIRBY J: Does the prima facie evidence requirement carry with it the entitlement to test whether the evidence does reach the prima facie level?
MR BURMESTER: No, your Honour, in fact it does not. I conveniently make that point now. Section 19(5), in particular the definition of “prima facie evidence”, where that is the relevant test, is in section 11(5). If I could take your Honours to section 11(5) you will see there is a definition there of what is required. Section 11(5)(b) in relation to a reference to the prima facie evidence test being satisfied makes it clear that it is evidence being satisfied:
if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia . . . would, if uncontroverted, provide sufficient grounds to put the person on trial –
and unlike the 1966 Act which did allow some opportunity to contradict, even under the 1988 Act, even applying the prima facie test, in our submission, it is a question of taking the allegations at their highest and not controverting them in order to reach the finding.
KIRBY J: But at least that would just not be an allegation, it would be the provision of some evidence. It would have to be evidence.
MR BURMESTER: It would have the sworn statements, the evidence on which the warrant had been issued, that is correct, your Honour.
GLEESON CJ: Do you mean section 19(5) operates according to its terms even in cases where there is a prima facie evidence requirement?
MR BURMESTER: Yes, your Honour.
KIRBY J: I wonder if that would meet the due process requirements of the United States of America Constitution. However, we do not have that due process type provision but we do have Chapter III.
MR BURMESTER: Yes, your Honour. I will come and say some more about section 19(5) and limitations on material.
GLEESON CJ: Section 19(5) has nothing to do with cross‑examination, for example.
MR BURMESTER: No, your Honour. It does limit the material that can be adduced at the time of the section 19 magistrate’s hearing, that is correct. As Mr Hughes says, it does have the consequence that one does not put in evidence material that goes to whether or not a person did engage in the conduct which they are alleged to engage in so it is true that section 19(5) operates so that an allegation is not able to be directly contradicted if what the person wants to do is put in evidence that they did or did not engage in the conduct. We say that there are other judicial review opportunities that do not go specifically to that issue which ‑ ‑ ‑
KIRBY J: Where are they? When do they arise?
MR BURMESTER: Your Honour, I will outline them. They essentially arise from section 75(v) of the Constitution and section 39B of the Judiciary Act and the right to habeas corpus, and so on. There are a number of review – opportunities to challenge conduct that has taken place under the Extradition Act. It is not under section 19(5) or any appeal from a section 19(5) decision, but there are opportunities, in our submission, which make it clear that the magistrate or the Attorney-General’s decision are not completely immune from judicial review. I will come to that in a moment.
Your Honours, turning to the constitutional issues, we say there are five propositions which are supported by existing authority and if one applies those existing authorities one would say that Part II of the Extradition Act was valid and did not offend Chapter III of the Constitution. The five propositions which I say are supported by existing authority, some of which I will need to elaborate on, are as follows. First, the law providing for extradition of a person from Australia to another country where they are alleged to have committed an offence for the purposes of standing trial for that offence is a law that falls within the scope of the external affairs power, either because it is a law that directly involves relations with other countries or involves conduct geographically external to Australia.
The second proposition is that any limitation on the detention of a citizen for the purposes of extradition can only arise by implication from Chapter III of the Constitution. The third proposition is that a law like the Extradition Act is not contrary to Chapter III as it has a non‑punitive purpose and either can be regarded as falling within the exceptional class of cases similar to that of a person in detention awaiting committal or awaiting trial or, secondly, is a case where the non‑punitive purpose is demonstrated by the fact that detention is only until a determination is made as to eligibility for surrender and it is reasonably capable of being seen as - or is necessary for that purpose and therefore does not offend Chapter III.
The fourth proposition is that the absence of any requirement to demonstrate by evidence the strength of the case against the person cannot affect the character of the law as a law involving detention for non‑punitive purposes and, in particular, there is no constitutional basis for giving a prima facie case requirement some special constitutional status. The fifth proposition is that the effects of treatment during detention cannot affect its non‑punitive character. In my submission, the arguments put before your Honours by the plaintiff do not demonstrate those five propositions are not correct.
KIRBY J: People do not normally lose their liberty in this country except by orders of a court exercising judicial power. It may be a funny old thing and a rather peculiar thing in this day and age, but that is an aspect of our constitutional law. I am sure governments do not like it necessarily.
MR BURMESTER: One can accept as a broad proposition that citizens would not normally be detained without some exercise of judicial power unless it is for a clear non‑punitive purpose.
KIRBY J: Well, it must seem rather punitive to the present plaintiff at the moment when he is sitting in a cell, and a criminal cell; it is not a house of detention where he has special privileges and he is looked after in a particular way apt to the fact that he is by our law still innocent. We have not thrown out the presumption of innocence yet in Australia, I hope.
MR BURMESTER: Your Honour, detention is not in all cases punitive just because it is detention. One has to look very closely at the purpose and the way in which that purpose is implemented and whether the intention in all the circumstances and having regard to the purpose of the detention is in fact non‑punitive. But, in our submission, this type of detention where a person is awaiting surrender for the purpose of a criminal trial can be seen as similar to a person on remand following initial arrest or awaiting committal where the testing of evidence is not yet taking place or may not take place until the actual trial and where the detention is clearly for that limited purpose of removing the person to face trial in another country.
The fact that Australia has chosen to surrender the person for trial in another country, instead of, for instance, choosing to put the person on trial in Australia, is not something that, as a matter of constitutional law, is prevented. If the detention is limited, as it is, namely until eligibility for surrender is determined, then, in our submission, one cannot contend that it is significantly different from detention awaiting trial or that it in any way goes beyond what can be seen to be a legitimate non‑punitive purpose.
KIRBY J: Do you accept Mr Hughes’ complaint that the plaintiff is kept in a criminal prison and is dealt with in all apparent ways as a criminal?
MR BURMESTER: Your Honour, the Act in section 53 provides that the conditions of imprisonment “apply, so far as they are capable of application” the same conditions as those applicable to a person awaiting “trial for offences against the law of that State or Territory”. You will recall in the Cabal and Pasini Cases this was an issue that arose. My understanding is that the conditions in which the plaintiff is being held are not contrary to the requirements of section 53. That does not mean that he will necessarily be segregated from all other convicted persons. That is not the universal rule in Australian prisons and it is not required by the Act. It depends on the need for protection or the status of the particular person. A decision is made by prison authorities in accordance with their rules dealing with remand prisoners, and that is the way in which persons awaiting extradition are dealt with.
KIRBY J: There was a reservation, was there not, I think by Australia to the international covenant?
MR BURMESTER: There is a reservation which says that we do not accept the obligations to segregate, that is correct, your Honour.
KIRBY J: Could you tell me which State is the plaintiff detained in, New South Wales?
MR BURMESTER: He is detained in New South Wales, your Honour.
KIRBY J: Does that State normally keep separate unconvicted remand prisoners from convicted offenders?
MR BURMESTER: I am not in a position to answer that question. There may well be some remand facilities, but I cannot say that all remand prisoners are held there and not held, as it the plaintiff here, in other correctional centres such as Parklea. My understanding is that Parklea holds a considerable number of remand prisoners.
KIRBY J: Mr Hughes put the argument forward not only to express a concern about it, but to say you, the Commonwealth, say that this is not punishment. But if you cannot separate them, it is punishment, and that is what Chapter III is there to supervise. That is why this Court exists, to uphold that supervision.
MR BURMESTER: Your Honour, in our submission, the immigration detention cases – and I know your Honour took a different view, but the majority in those cases made it quite clear that conditions of detention would not normally determine whether or not there was a legitimate non‑punitive purpose. So, in our submission, the circumstances of detention do not go to the legitimacy of the non‑punitive purpose in this case.
KIRBY J: But if Chapter III is there to prevent people being punished without a judicial order, it is just hard to say that if they are in a criminal prison, kept along with convicted criminals, that they are not being punished whilst they are there.
MR BURMESTER: Your Honour, that would need to apply to every remand prisoner in the country, and that is certainly – they are not separated. There is no absolute segregation, and I cannot see why the principle, if it applies here, would not apply in that situation as well.
KIRBY J: That may be and that might encourage the keeping separately of prisoners who are on remand and dealing with them in a separate way. I am just saying to you that it is not persuasive to me that a person who is kept in a general criminal prison is not being punished. It feels like punishment to him, it looks like punishment to the community, it feels like punishment to his family and it looks like punishment to me.
MR BURMESTER: Your Honour, as I think has been made clear in some of the cases – I think we have given a reference to them in paragraph 25 – one cannot say that detention is always necessarily punitive. It may serve a legitimate purpose without being punitive. So one has to look, in our submission, carefully at the purpose for which the particular detention is taking place.
Here, we say, whether one looks at it as an exceptional category, one can see that it is akin to detention of a person on remand awaiting committal, in terms of the purpose being the ability to have the person available for their trial or, in this case, the surrender. There is a process in the Extradition Act for the consideration of whether bail should be granted to the person. There is a need to show special circumstances but there is the ability to obtain bail and, as I think Mr Hughes mentioned, these days committal often takes place on the papers and does not necessarily involve a full testing of the material in question.
So, in our submission, it is possible to say that this detention is for a non‑punitive purpose and falls clearly within the exceptional cases. If one took that view, one would not then need to go on to determine whether there is some alternative broader proposition that needs to be contemplated based on whether the detention can be said to be reasonably capable of being necessary for a non‑punitive purpose. But if one does go on and seek to apply that proposition, the proposition which my friend relied on from Justice Gummow in Kruger, then we say that applying that test the answer is still the same: the context and nature of the power being exercised, in our submission, points to the purpose being non‑punitive. It is admittedly not based on a testing of the allegations but it is done in order to enable Australia to fulfil its relations with another country and to organise the removal of a person for trial in that other country.
Once one accepts, as this Court did in DJL 201 CLR 226 at 279, that there is no constitutional immunity from removal of a citizen – it is referred to in footnote 54 of our submissions – once one accepts there is no constitutional right for a citizen not to be removed or extradited, then, in our submission, one cannot say surrendering a person for the purpose of their trial in another country offends Chapter III, and if the surrender for trial in another country does not offend Chapter III, then, in our submission, the detaining of a person for the limited purpose of holding them and preventing flight while their eligibility for surrender is determined also does not offend Chapter III.
The analogy, if someone was seeking to draw an analogy, with Air Caledonie, which is the entry of citizens to Australia, in our submission, cannot be equated. There may well be a right to enter the country, but there is, according to DJL, no constitutional right for a citizen not to be removed from the country.
We do not contend, your Honour, that removal of a citizen can take place merely through some Executive agreement. It does require legislation, and that is long established. So what is involved here is a legislative authorisation allowing the surrender. It is not a pure Executive power. When one looks at the scheme of the Extradition Act and the way in which the series of steps take place and the issues that are asked in each step, in our submission, one cannot reach any conclusion other than it is for a non‑punitive purpose. It is limited in the time it can take place, it is pending a decision on eligibility, and it does not therefore, in our submission, have any punitive purpose.
One of the complaints that the plaintiff makes is that there is a lack of ability to test the allegations. Your Honours, while there may be an inability to test the allegations directly, that does not mean that there is no judicial review procedures available. There is judicial review under section 21 of the magistrate’s decision under section 19 ‑ ‑ ‑
GUMMOW J: I am not quite sure what was involved in the proposition for the other side of availability of opportunity to test. The magistrate is not exercising any Chapter III powers.
MR BURMESTER: That is correct, your Honour.
GUMMOW J: Is it being said that the magistrate in this, admittedly administrative, activity should have these further activities of testing? Whether that would make him or her still an administrator or would require some legislative superadding to attract Chapter III, an investment of federal jurisdiction, I am not sure.
MR BURMESTER: Your Honour, let me clarify ‑ ‑ ‑
GUMMOW J: All I am saying is I am not quite sure that to which you are now responding.
MR BURMESTER: Your Honour, I understood my friend to be saying that one cannot challenge the allegations and, because of section 19(5), the ability to do so, I agree, is significantly limited and that the magistrate at the early stage and the Minister ‑ no one is required to look at the sufficiency of the evidence ‑ ‑ ‑
GUMMOW J: The Chief Justice said 19(5) is not talking about cross‑examination. It is not forbidding ‑ ‑ ‑
MR BURMESTER: No, your Honour, but it does prevent the magistrate receiving evidence to contradict – not just cross‑examination but receiving evidence to contradict and the point ‑ ‑ ‑
HAYNE J: The expression “to challenge the allegation” is used rather, I suspect, proleptically. Challenge with a view to someone resolving something? Challenge with a view to someone deciding something? It is not immediately apparent to me what is involved in this notion of challenge.
MR BURMESTER: Your Honour, the challenge that I want to contend is available and which, if necessary, may be relevant in determining whether there is a non-punitive purpose is the ability to challenge jurisdictional error, whether committed by the Attorney-General at the section 16 stage or at the section 22 stage. If the magistrate, at either the section 15 stage or the section 19 stage, was committing some jurisdictional error such as mistaking the legal test for determining whether bail should be granted, then, in our submission, one could challenge that in the Federal Court as a matter of exercise of federal jurisdiction, the matter arising under a Commonwealth law. We have referred in paragraph 20 of our written submissions to the case of Bertram.
If the person in detention alleges mistaken identity, then, in our submission, one clearly could challenge that and Parker’s Case my friend called just a dicta but, in our submission, there clearly would be an ability to challenge an error such as that, whether under habeas corpus or otherwise, and we do not seek to deny that ability if the person is clearly not the person who the warrant purports to authorise the arrest of.
There is scope, in our submission, for some challenge to decisions by the Minister or any magistrate made in the absence of good faith or as an abuse of power. Wiest v DPP (1988) 23 FCR 472 is one case that deals with that issue. There are obviously some difficult issues about the extent to which absence of good faith and abuse of power arise. One is not talking about the exercise of abuse of power in the judicial power sense but exercise of administrative power. There may well be inabilities to go behind the documentation provided by a foreign country and seek to question the good faith of the foreign country itself but if evidence was put forward, for instance, to the Attorney-General and he failed to consider it despite a clear preponderance or demonstration that there was some absence of good faith or abuse of power – then, in our submission, one would have the appropriate remedies for jurisdictional error.
GLEESON CJ: Nobody is suggesting, are they, that there should be cross‑examination of witnesses?
MR BURMESTER: No, your Honour.
GLEESON CJ: Nobody is suggesting that a whole lot of people should come out here from Serbia and be cross‑examined about the truth of the ‑ ‑ ‑
MR BURMESTER: No, I do not understand my friend to be contending for that.
GLEESON CJ: All right. Let us put cross‑examining witnesses to one side.
MR BURMESTER: Yes, your Honour.
GLEESON CJ: Section 19(5) says you cannot contradict the allegations that are made.
MR BURMESTER: That is correct.
GLEESON CJ: That applies whether there is a prima facie evidence system or no prima facie evidence system, is that right?
MR BURMESTER: Yes, your Honour.
GLEESON CJ: Then, what is it that might constitute the opportunity to test or challenge the allegations? You cannot cross‑examine, you cannot call contradictory evidence. What can you do? What might you be able to do?
MR BURMESTER: Your Honour, you cannot contradict the allegation but what you can do is ensure that the administrative officials in exercising their powers under the Act act within their jurisdiction.
GLEESON CJ: Take our relations with the United States where, as I understand it, we have a system no doubt based on their requirements of due process, perhaps based on their requirements of due process, a system of the kind that your opponents would say is a model system. What goes on in practice in relation to an extradition to the United States now? Is anybody cross‑examined?
MR BURMESTER: No, your Honour, the magistrate under section 19 considers the issues which are before him which do not go to whether the evidence is sufficient or the basis for the allegations. They go rather to whether there is some extradition objection, whether the extradition offence exists, whether there is in fact a warrant.
GLEESON CJ: But in deciding whether or not there is evidence sufficient to put a person on trial the magistrate does not hear or see any witness who is making the allegations, does the magistrate?
MR BURMESTER: I do not think normally the magistrate would, your Honour.
GLEESON CJ: The magistrate does not say, “That person looks a bit unreliable to me” and nobody cross‑examines the witnesses.
MR BURMESTER: No.
GLEESON CJ: Presumably, the magistrate is presented with statements from people who live in the United States of America and who have no intention of ever coming to Australia saying, “I was walking down the street in New York on such and such a date and somebody hit me over the head and stole my wallet.” Is that the way it works?
MR BURMESTER: The magistrate under section 19(2), has to be satisfied of certain things, namely, that the supporting documents are produced, and “supporting documents” are defined in section 19(3). They do not go to the basis for the allegations.
GLEESON CJ: Well, this is the question that I understood Justice Hayne to be asking you. What is going on? What is this concept of testing or challenging the evidence in practice meant to involve? Nobody is going to be cross‑examined. You cannot call contradictory evidence. What is the magistrate doing except looking at the evidence in the depositions, taking it at face value and asking whether, if that evidence was believed, it would amount to a crime? Is that what goes on?
MR BURMESTER: Your Honour, that would be what was probably going on in the prima facie case situation where the magistrate has to satisfy themselves that there is a prima facie case.
GLEESON CJ: There could be cases, of which I suspect this may not be one, but there could be cases in which, having regard to the nature of the law alleged to be contravened, there might be a lively question as to whether or not the facts alleged in truth amount to a contravention of that law. I suppose somebody might argue there is no prima facie case here because they have not proved the fifth element of the offence, or whatever.
HAYNE J: See, for example, 19(3)(c)(ii):
a duly authenticated statement in writing setting out the conduct constituting the offence.
Conduct is described – the conduct as described may be said to be insufficient to establish the offence of, I would have thought most commonly, the rather more elaborate defrauding provisions that we have all come to know and love over the years.
MR BURMESTER: Yes, that is correct, and your Honour, one of the reasons for that is because in most cases there will be a double criminality requirement, so one of the issues before the magistrate is whether this conduct would amount to an equivalent offence under Australian law. So that is the sort of issue before the magistrate, but it is not - and even where there is a prima facie case requirement, the magistrate is not there to receive whatever evidence the accused or anybody else might put before them. He is, rather, entitled to consider the material ‑ ‑ ‑
GLEESON CJ: Is it the case that even where there is a prima facie case requirement, the magistrate does not hear the evidence being tested. What the magistrate does is measure the allegations against the elements of the criminal offence said to have been committed.
MR BURMESTER: Yes, your Honour, that is what occurs. There is no testing; I accept that.
KIRBY J: And is that in the case of extraditions to the United States?
MR BURMESTER: Your Honour, there the treaty requirement is that there has to be found sufficient evidence. The material which would need to have been put before the Attorney‑General for the issue of your section 16 notice, it is that material which the magistrate is looking at and determining whether there is found to be sufficient evidence. So in those cases obvious a great deal more material is probably put formally before the Australian Government from the foreign government than in the case of a “no evidence” relationship where it is the nature of the offence and the conduct alleged that has to be provided, but not the testimony or the evidence on which the allegations are based.
KIRBY J: So that gives protection to a person whose extradition is sought to the United States, but you get a lesser protection for extradition to Croatia?
MR BURMESTER: Yes, your Honour, the “no evidence” relationships do involve far less material being considered.
GLEESON CJ: But does section 19(5) apply in the case of an extradition to the United States?
MR BURMESTER: Yes, your Honour.
KIRBY J: So you cannot add to it, but more is needed in order to get over the hurdle? That is essentially ‑ ‑ ‑
GUMMOW J: An example in the United States is Todhunter v United States of America (1995) 57 FCR 70 at 92 to 94. As I remember it, there was an embarrassment of material provided by the United States. There was some debate about what one could draw out of it.
MR BURMESTER: That is correct.
GUMMOW J: But there was not the extra steps of cross‑examination and so on.
MR BURMESTER: No, that is correct.
GUMMOW J: Or further evidence.
MR BURMESTER: In response to the Chief Justice, if I could perhaps just read a couple of sentences from the textbook by Aughterson, Extradition: Australian Law and Procedure. It is at pages 210 to 211. He says:
The hearing is not a trial on the merits of the case, and, subject to the observations below in relation to the establishment of a prima facie case, a fugitive’s right to present evidence is limited to issues relating to identity, the existence or otherwise of an extradition offence, double criminality, extradition objections, and, in relation to these matters, the veracity of the supporting documents. In particular, by s 19(5) of the Act, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting the offence. That is, the person may not present evidence which is merely exculpatory; which raises the questions of guilt or innocence . . .
The rationale for s 19(5) is to avoid the holding of a preliminary trial, which is not the function of an extradition hearing. As noted in Prevato v Governor Metropolitan Remand Centre:
“It would be difficult, if not impossible, satisfactorily to resolve a contest in relation to guilt by weighing evidence in the form of statements made by absent witnesses against sworn evidence on behalf of the fugitive about which there may be no opportunity even to obtain instructions.”
GUMMOW J: What does the author go on to say about prima facie evidence, in other words, the treaty situation in Todhunter, for example?
MR BURMESTER: Yes.
GUMMOW J: Perhaps if we could be supplied with that extract in due course?
MR BURMESTER: I will give your Honours an extract and ‑ ‑ ‑
HEYDON J: Presumably section 11(5) in the index of statutes would tell us what he says about sufficient evidence and prima facie evidence.
MR BURMESTER: Well, we will see if we can find the passage, your Honours.
GUMMOW J: Yes, do not stop to do it now, but just provide it to us.
MR BURMESTER: Yes. But clearly the rationale, and I accept it is a significant limitation, but the clear rationale is to prevent a mini trial, prevent the extradition hearing, as it were, having to determine guilt or innocence, much like as in the child abduction cases that it is not for an Australian court to determine the merits of whether one parent or the other should have the custody of the child before they make a decision to return the child.
KIRBY J: That is a very serious decision, but it has not normally been regarded in our legal system as as serious as losing your liberty, which is something our legal system has always subjected to close and usually judicial scrutiny.
MR BURMESTER: Yes.
KIRBY J: The only excuse I have heard from you as to why this has been done is to foster our relations with other countries. We do not normally sacrifice our constitutional principles and our defence of liberty for cosy arrangements with other countries. They have their legal systems, but we have ours.
MR BURMESTER: Yes, your Honour. As Justice Hayne observed before lunch, the ability to have reciprocal arrangements, if we want to get people back from foreign states then we may have to enter into arrangements that do not necessarily equate with the way in which we would proceed if we were left to our own choices or if the person was being tried within Australia itself.
KIRBY J: But this is an appeal to the Constitution, and therefore you cannot make arrangements, however desirable they may be, which are not consistent with the Constitution.
GUMMOW J: Now, what you have just been saying, taking up what Justice Hayne said to you, maybe is the basis for bringing this sort of extradition case within that class that has been referred to in the earlier cases?
MR BURMESTER: Yes, your Honour, and that is certainly our submission ‑ ‑ ‑
GUMMOW J: The quarantine and the rest of it?
MR BURMESTER: It can be seen as exceptional and one does not have to ‑ ‑ ‑
GUMMOW J: And was understood as such in 1900 and long before?
MR BURMESTER: It has. It is a longstanding international relationship, and as ‑ ‑ ‑
HAYNE J: That is to yield someone to the judicial system of another country without trying the issues that would be determined in the foreign country?
MR BURMESTER: Yes, your Honour.
HAYNE J: And short of trying the issues that would fall for determination in the foreign country, it is not immediately apparent to me how Chapter III would be engaged. Either this is an exceptional case or it is not. If it is not then the issue falls to be determined as any other issue would, but if it is an exceptional case it is exceptional.
MR BURMESTER: Yes.
GLEESON CJ: I am still trying to understand, I am afraid, the change that was made in 1985, and I am looking at Mr Bowen’s second reading speech. According to him the whole idea of the change was to enable us to have:
extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt but rather information as to the allegations against the fugitive.
Do I understand that to mean that under the previous arrangements you would have to have a statement from a witness in America who said, “I was walking down the street and the man fitting this description hit me over the head and stole my purse”, whereas under the new arrangements you have information from a prosecutor or a police officer or somebody saying, “It is alleged that on such and such a date John Smith knocked Mary Jones on the head, down in the street, and stole her purse”. That is the difference, is it?
MR BURMESTER: That is the difference, your Honour, yes.
GLEESON CJ: Under no circumstances was Mary Jones ever going to come out here to be cross‑examined?
MR BURMESTER: No, that is right, although I think there was provision in the old 1966 Act in relation to a prima facie case – if I could look at the Foreign States Act because I can understand that a bit better – there was provision in section 17(6)(c):
the Magistrate is satisfied, after hearing any evidence tendered by the person, that the person is liable to be surrendered –
so there does seem to have been under the original 1966 Act some ability to tender evidence. That has been removed.
GLEESON CJ: That is what went by subsection (5) of section ‑ ‑ ‑
MR BURMESTER: That went as well, and now even under the prima facie evidence test that opportunity does not exist.
GLEESON CJ: So under the previous system the man could have thought up an alibi. He could have said, “I was not in New York on that date; I was in Tasmania”?
MR BURMESTER: Yes, your Honour.
GLEESON CJ: And that cannot happen now?
MR BURMESTER: No, your Honour.
GLEESON CJ: That is the difference?
MR BURMESTER: That is the difference.
GLEESON CJ: Thank you. That is what I wanted to understand.
MR BURMESTER: But if there was evidence to that effect which was put before the Attorney‑General when he was making his decision and he chose to ignore it, then there may be grounds to challenge the reasonableness or the lawfulness of the Attorney-General’s decision, for instance.
KIRBY J: That is a hard road for a person who engages upon it. As we keep saying, we are not here to deal with the merits.
MR BURMESTER: I accept, your Honour, it is not a merits review and the ‑ ‑ ‑
KIRBY J: I never heard you so supportive of judicial review. Next you will be saying that Wednesbury unreasonableness is actually reasonableness.
MR BURMESTER: Your Honour, I am not sure that there is a great deal more that I can usefully say. In our submission, the absence of a prima facie requirement is as irrelevant to these matters as the effects of treatment during detention. It is not a magic wand that somehow overcomes any Chapter III difficulty. If, as the reply by the plaintiff seems to suggest, that they complain equally about involuntary removal as much as about involuntary detention, then, as I have already said, there would seem to be – there has to be some detention at least at the point of surrender and, in our submission, the detention prior to that for the purpose of determining eligibility cannot be seen as in any other category. It is equally the same in terms of its purpose.
KIRBY J: Any Australian can lose his liberty, be put in custody along with other criminals, can be removed from this country for however long it takes in another country that the government has accepted as an extradition country and it is said that that is not punishment and he never has an opportunity for a judicial officer of this nation to have a look, even on the papers, as to whether or not there is sufficient there to send him.
MR BURMESTER: That is correct, your Honour.
KIRBY J: It cannot be done if it is the United States requesting you, but it can be done if it is Croatia.
MR BURMESTER: Even with the United States the material that is looked at is limited. It does require additional material but, in our submission, that cannot be a constitutional yardstick for the requirement of a prima facie case.
HAYNE J: Just apropos of the United States, a recent example of the sort of material available on extradition to the United States is found in the report of Griffiths v United States 143 FCR 182 where at 185 it is recorded that the principal document among the supporting documents before the magistrate was an affidavit of an Assistant United States Attorney for Eastern District Virginia which outlined various things, exhibited the indictment, exhibited certain affidavits of special agents of the Bureau of
Immigration and Customs Enforcement and the indictment returned by the grand jury, and that is, I think, fairly standard.
GUMMOW J: Yes. Todhunter was the same.
MR BURMESTER: Yes, your Honour. They, of course, are cases where there is a prima facie evidence or sufficient evidence requirement. Your Honour Justice Kirby before lunch referred to the death penalty. Can I just clarify where that issue arises? It arises under section 22 when the Attorney‑General is making a surrender determination and section 22(3) sets out the matters which have to be satisfied if a person is to be eligible for surrender and, in particular:
(b)the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;
(c)where the offence is punishable by penalty of death – by virtue of an undertaking –
that the person will not be exposed to the death penalty. So that is where that is dealt with. It is at that stage when the Attorney-General makes his final determination to surrender. Your Honours, I do not think I can take the matter further.
GLEESON CJ: Thank you, Mr Burmester. Yes, Mr Hughes.
MR HUGHES: I desire to reply specifically to certain propositions put by my learned friend, your Honours. He has suggested that detention is merely detention pending a determination of eligibility. It is much more than that. The detention outlasts the determination to the point of ensuring the removal of, in this case, my client, if he were found eligible for surrender to Croatia and some sort of trial there.
KIRBY J: The Government of the Commonwealth has decided that Croatia will be in that category of countries which, without a treaty, Australia will accept as having, by inference, a judicial system which is adequate for the removal of Australian citizens and people under our protection to another country without the necessity of establishing a prima facie case. So it has gone through that test. It is not allowed for every country but it is allowed for quite a lot and, presumably, on some criterion of minimum standards of the judiciary of that country.
MR HUGHES: That, with respect, is speculative.
KIRBY J: It is not final because the final decision lies in us, but it is the decision that has been made by the Government of the Commonwealth.
MR HUGHES: Yes. It is a political decision.
KIRBY J: We have to face the fact that in today’s world of intercommunication and fast travel and war crimes that there is a need for co‑operation that perhaps did not exist in the old days when crime was regarded as something that was local.
MR HUGHES: What I wish to say as regards that is simply this, your Honour. It emerges from the argument put by my learned friend – and this is no criticism of the argument – that the extradition arrangements between Australia and a great variety of foreign states are a patchwork quilt. One part of the quilt is that you have the sufficient evidence or the prima facie evidence rule and the other parts of the quilt has apparently with Kyrgyzstan, one of the four “stans” in central Asia – I am not trying to be jingoistic, but ‑ ‑ ‑
KIRBY J: Well, I do not know where Kyrgyzstan is but I ‑ ‑ ‑
MR HUGHES: It is one of those four “stan” countries in central Asia on the route from China to Europe travelled by Marco Polo.
GUMMOW J: We maintain diplomatic relations with them. I do not think, for my part, we should say anything disparaging.
MR HUGHES: No, but I am just saying where they are and one can perhaps take judicial notice of the fact that the four “stans” have been troubled by political turbulence. Now, there is the patchwork quilt. Does that patchwork quilt support any suggestion that extradition on mere allegation, untested allegation ‑ ‑ ‑
GLEESON CJ: I wanted to ask you a question about that, if I may. Is this a convenient time?
MR HUGHES: Yes.
GLEESON CJ: What do you have in mind by “a tested allegation” in this context?
MR HUGHES: An allegation supported by some testimony as, for example, the deposition of the grand jury in the Riley Case.
GLEESON CJ: You do not mean an allegation subject to cross‑examination?
MR HUGHES: No.
GLEESON CJ: There could be a bit of a misunderstanding created by that expression “untested allegation”.
MR HUGHES: Well, if I am responsible for that misunderstanding, I apologise. What I mean is something other than unverified allegations, as one has in this case – a deposition, an affidavit, not subject to cross‑examination but at least subject to the test that the ‑ ‑ ‑
GUMMOW J: Yes, but testing by whom, Mr Hughes, by this administrator or a Chapter III judge?
MR HUGHES: No, by a judicial officer, or my argument could accommodate ‑ ‑ ‑
GUMMOW J: Your argument would make the United States system invalid as well.
MR HUGHES: No, it would not, with respect.
GUMMOW J: Well, they provide affidavits sometimes at tedious length from various gumshoe people, federal prosecutors and so on.
MR HUGHES: Yes, they are good at writing long affidavits.
GUMMOW J: That is what is before this administrative officer, here the magistrate. It does not get to a Chapter III judge.
MR HUGHES: No, but our submission is that a system compatible with Chapter III would require judicial intervention at that stage, at least to enable a submission to be put on the basis of the sworn written material not subject to cross‑examination that acceptance of everything in the sworn written material would not suffice to put the requested person on trial for the offence charged.
GUMMOW J: What then in Australia, in Chapter III, is the controversy which the judicial officer is determining?
MR HUGHES: The same controversy, in essence, as the judicial officer determines under the judicial review provisions of this Act but a controversy that excludes any question of whether the acceptance of the evidence would lead to a finding that there is a case to support the charged offence. That is the point I wish to make, and my learned friend has not addressed the analogy that I seek to draw, your Honours, from the Barton Case. Committal proceedings or proceedings in the nature of committal proceedings are not proceedings in the exercise of judicial power but they are necessarily incidental in any fair system of resolving questions about criminality. They are essential to, and necessarily incidental to, the fair trial of criminal charges. That is my analogy argument which I developed in‑chief which has not been answered.
KIRBY J: What do you say about the reference which Mr Burmester gave us to Attorney‑General Bowen’s statement that the reason for this change from the 1966 Act to the present Act is that civil law countries with investigating magistrates and an inquisitorial system just approach these problems in a different way and we have to accommodate to a world which has more Croatias than it does New Zealands, that has more countries which follow this inquisitorial system, and that that is why it was not really appropriate to require proof to a prima facie standard in such countries because they have not reached that stage in their system.
MR HUGHES: But, your Honour, the inquisitorial system, as in France or in European countries, its execution depends upon the investigating magistrate taking statements, presumably verified statements, from people relative to the allegation of the commission of the offence. Investigating magistrates under the continental system hardly act on mere allegations. They presumably act on verified testimony.
GLEESON CJ: Mr Hughes, to put this in concrete terms, could I invite you to page 26 of the case book, line 42. Is it your submission – I am looking at the second‑last paragraph on page 26 as an example – that instead of producing a decision from an investigating magistrate which says that there is a well‑founded suspicion that “he ordered during the armed conflict the attack on settlements which resulted in deaths and severe physical injuries of people. There were no specific targets during the attack so that civilians were hit and their property was destroyed on a massive scale illegally and arbitrarily” that it should be supported by a statement from Mr X who says, “I was standing there when I heard”, the plaintiff or the accused or the suspect or whatever, “say, ‘Go in and attack those settlements and shoot them and knock their houses down’”?
MR HUGHES: Precisely. That encapsulates the basic difference in approach between the two sides of the Bar table.
KIRBY J: That is, of course, forcing on Croatia an obligation to bring itself within our legal system and its norms rather than its own.
MR HUGHES: I do not shrink from that and it is not inappropriate and, indeed, we would say it is entirely appropriate if Croatia wants one of ours sent to Croatia or a person within the protection of Australian law sent back to Croatia, they should comply with certain basic requirements of our system.
On the question of the actual treatment of the plaintiff, it does not follow, in my submission, from the fact that the Australian Government does not agree to segregate remand prisoners from convicted prisoners that non‑segregation lacks a punitive element – a punitive character. That cannot follow. This Court can take judicial notice that there is an institution called the Metropolitan Remand Centre at Long Bay.
HAYNE J: Can we take judicial notice of the fact that remand facilities contain a lot of people who have not further been classified by the prison authorities and segregated according to the classifications?
MR HUGHES: I do not know.
HAYNE J: Because if one did one might form a view about the nature of some remand facilities, at least, which would place them in a rather different point in the scale of prison facilities from that which I think you would have us assume and take.
MR HUGHES: At least I would suggest the Court can take judicial notice of the fact that prisoners kept in a remand centre – non‑convicted prisoners – are not subject to the rigours of prison discipline – full convict prison discipline. The fact, if it be a fact – under this Convention it appears to be a fact – that Australia is not bound to segregate does not mean that non‑segregation lacks a punitive character.
KIRBY J: Mention was made of a so-called model treaty on extradition which is an international document. Do you know what that is? Do we have access to that? Is it in the papers before us?
MR BURMESTER: Your Honour, it is referred to in one of our footnotes. We can provide a copy of that if it would assist.
GLEESON CJ: We would be grateful.
MR BURMESTER: Yes.
MR HUGHES: My learned friend referred to DJL in this Court. Your Honour, that was a case quite unlike the present and of no relevance to the issue in this case because there the party who contested validity – constitutional validity – had full access to the judicial power of the Commonwealth. Our claim is that, except on matters that exclude any question of a prima facie case or sufficient evidence, there is judicial review
but our complaint is about what is excluded from the judicial review which we tried to make clear in our written submissions.
With very great respect, my learned friend has not answered the submission I made that under this legislative scheme the prisoner cannot contest an issue or raise an issue of mistaken identity because to do so involves giving evidence on a question that goes to guilt and that is a remarkable gap in the Act.
GUMMOW J: Well, as I understand it, there is a European Convention on extradition which it would be useful if we were supplied with at some stage. As I understand it, that provides a system now manifested by the changes made by Attorney‑General Bowen, ie, no review of the evidence, so I do not think Attorney‑General Bowen was out there in outer space.
MR HUGHES: No, he was not, but I come back to what your Honour Justice Gummow said in Kruger. I will not repeat it.
GUMMOW J: I was referring to the restatement on the law of the foreign relations of the United States, restatement third at paragraph 476 which deals not only with the United States, but with the British system and the European system.
MR HUGHES: Well, those are the submissions we wish to put in reply.
GLEESON CJ: Thank you, Mr Hughes. We will reserve our decision in this matter and we will adjourn until 10.15 am on Thursday, 4 May in Canberra.
AT 3.36 PM THE MATTER WAS ADJOURNED
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