Vasiljkovic v Commonwealth of Australia & Ors

[2006] HCATrans 61

[2006] HCATrans 061

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

PHILLIP RUDDOCK ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Defendant

GOVERNOR, SILVERWATER REMAND CENTRE HOLKER STREET SILVERWATER NEW SOUTH WALES

Third Defendant

Summonses

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 FEBRUARY 2006, AT 9.40 AM

Copyright in the High Court of Australia

__________________

MR B. SLOWGROVE:   If the Court pleases, I appear with my learned friend, MR M.J. McAULEY, for the plaintiff.  (instructed by Albert A. Macri Partners)

MR H.C. BURMESTER, QC:   Your Honour, I appear for the first and second defendants.  (instructed by the Australian Government Solicitor)

MS G. SHIRM:   May it please the Court, I appear for the third defendant in these proceedings.  I have recently been instructed.  (instructed by Governor Silverwater Remand Centre)

HIS HONOUR:   I think the third defendant would enter a submitting appearance, I would imagine.

MS SHIRM:   They have sought advice on that issue, but I have not been in a position to provide that as yet, your Honour.

HIS HONOUR:   Yes, all right.

MR SLOWGROVE:   Your Honour, just on that, with the third defendant, I will seek leave from your Honour to substitute Parklea, and we served Parklea because he has moved prisons since we first served, and I would ask your Honour, with your Honour’s leave, to substitute the Governor of Parklea Prison.  I believe we have an affidavit of service for those matters.  They have been notified of today’s return date because that is where he is now held.

HIS HONOUR:   What do you say about that, Mr Burmester?

MR BURMESTER:   I do not have any difficulty with that.  That is my understanding of where he is held.

HIS HONOUR:   That would involve the removal of the present third defendant, would it?

MR SLOWGROVE:   Yes, your Honour, unless they are going to move him back again.

HIS HONOUR:   And the representative could then be excused?

MR SLOWGROVE:   Yes.

HIS HONOUR:   Very well, you are excused from further attendance and the present third defendant, the Governor of Silverwater Remand Centre, will be removed from the proceedings.

MS SHIRM:   Thank you, your Honour.

HIS HONOUR:   You had better give me a short minute at some stage of the precise description of the third defendant so this can be added.

MR SLOWGROVE:   Yes, we will, your Honour.

HIS HONOUR:   There is no need to do it on the run.  I imagine the substitute third defendant will also enter a submitting appearance.  Now, what process are you moving on and under what provision of the Rules?

MR SLOWGROVE:   First, your Honour, under the Rules I have to seek your Honour’s leave to amend the summons under ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  We are in the area of Part 25, are we not?

MR SLOWGROVE:   Yes.

HIS HONOUR:   You have joined the fourth defendant.  Is there any appearance for the fourth defendants, do we know?

MR SLOWGROVE:   I do not believe there has, as far as I have seen today, anyone turn up for the fourth defendant.

HIS HONOUR:   I imagine the fourth defendant, the magistrate, would be submitting also.  Now, you have joined the fifth defendant and misdescribed him.  He is not a Privy Councillor.

MR SLOWGROVE:   I am sorry, your Honour.  I would seek ‑ ‑ ‑

HIS HONOUR:   Why have you joined the Minister for Justice?

MR SLOWGROVE:   Because I believe that he controlled the Federal Police at the time that he was arrested and there was a press release between the Attorney-General and the Minister as to some interrelationship about this, your Honour.  So it was just done as abundant caution.

HIS HONOUR:   Let me ask Mr Burmester.  Have you any instructions to appear for the fifth defendant, Mr Burmester?

MR BURMESTER:   Your Honour, I do, but it would be our submission that it is either appropriate to have the Attorney-General or the fifth defendant, but it is not appropriate to have both of them as parties.

HIS HONOUR:   Yes, that would be my view, Mr Slowgrove.

MR SLOWGROVE:   I will not oppose that, your Honour.

HIS HONOUR:   The fifth defendant, the Minister for Justice and Customs, should be removed from the proceedings.  We then return to Part 25.  What relief are you seeking?

MR SLOWGROVE:   I would seek from your Honour today an interlocutory order in the nature of habeas corpus, not final relief, and bail only as an alternative or a fallback position.  That has been the position taken every time we have appeared in this matter in the lower courts, that it is bad from the outset, and what I have done – and I have given to my friends ‑ ‑ ‑

HIS HONOUR:   Am I right then in thinking that the position is this.  You have already sought bail, I think, under section 19 and that was refused under that statutory regime, is that right?

MR SLOWGROVE:   What was refused, your Honour?

HIS HONOUR:   You have already sought bail under section 19 and it was refused.

MR SLOWGROVE: Section 15 of the Extradition Act.

HIS HONOUR: Section 15, I am sorry, yes.

MR SLOWGROVE:   That was refused on 27 January by the magistrate.

HIS HONOUR:   That is right, before the magistrate.  You are not renewing an application before the magistrate, as you can do if there are changed circumstances, is that right?

MR SLOWGROVE:   No, we are not doing that, your Honour.

HIS HONOUR:   But you are seeking an order, interlocutory in nature here, and the different basis here, as I understand it, is that unlike the situation before the magistrate your foundation is in constitutional invalidity.

MR SLOWGROVE:   Yes.

HIS HONOUR:   Of which section of the Act?  That is the Extradition Act 1988 and/or Regulations.

MR SLOWGROVE: We say that section 15 and 19(1)(a) oust everybody. If you put a line through 19(1)(a), there seems to be absolutely no problem. The issue comes because 19(1)(a) creates 15 as a sole source of repository of power to extradite the plaintiff. Now, if 19(1)(a) was not there, while we would still be here on other issues, this principal problem would go away. What is unusual about this case, in our submission, is that in order for you to make the interlocutory relief that I seek, in my submission, you have to put into suspension 19(1)(a) because it ousts 75(iii) to make any remedy. The next proposition is ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  Have you looked at Mr Burmester’s submissions?

MR SLOWGROVE:   Yes, I have.

HIS HONOUR:   He does not urge that.

MR SLOWGROVE:   No.  Your Honour, he does not want to ‑ ‑ ‑

HIS HONOUR:   But what he does say is that when you are in this Court, as in the preceding litigation, on a special leave application you have to surmount a rather high hurdle to get relief in aid of a special leave application.  He says it is no easier when you are here in the original jurisdiction.  To that I would add that insofar as you are urging invalidity you have to face up to Castlemaine TooheysvState of South Australia 161 CLR 148, a decision of Sir Anthony Mason in the original jurisdiction.

The burden of Castlemaine Tooheys is that if you are seeking interlocutory relief in this Court in aid of a complaint of constitutional invalidity it is rather difficult to get interlocutory relief in the sense that the ordinary interlocutory balance is weighed by the consideration that you begin with the proposition that the law is valid.

MR SLOWGROVE:   Yes.

HIS HONOUR:   That seems to me the parameters.  What I wanted to say to you after listening to Mr Burmester is that if this matter is got in the right shape procedurally I would refer it in the first instance to the Full Court to be heard at noon on Thursday, 13 April.  If you pursue anything here today to success, there will be an appeal, probably, one way or the other, and things will be further delayed.  That is my present disposition as to how the matter should proceed.

MR SLOWGROVE:   Can I inform your Honour – and I did this this morning and when I looked at our documents ‑ ‑ ‑

HIS HONOUR:   In other words, if you are in the Full Court, you will not have the inhibition you have from Castlemaine Tooheys.

MR SLOWGROVE:   If it was to go to the Full Court, does my friend say that he would not take ‑ ‑ ‑

HIS HONOUR:   When I say refer it to the Full Court, I am referring to rule 25.03.3(b).  The reason why the Court would be prepared to move quickly is that if there is substance in your point, it is in the public interests that it be sorted out one way or the other as quickly as possible because there may be other persons whose position is dependent upon the outcome, apart from your client.

MR SLOWGROVE:   Yes.  Could I just say this to your Honour.  Why we are here today and why this matter has proceeded in the way that it has is that I can find no authority where this has ever happened to an Australian citizen before him.  It has never ever, ever occurred that an Australian citizen – and I have read my friend’s submissions to make sure that what I thought when I started these proceedings was correct, that he did not have a right to contradict the allegations and my friend’s submissions.

HIS HONOUR:   You may be right but that does not…..with respect to external affairs.

MR SLOWGROVE:   Yes.  Would it be true then that my friend, if this was to happen, would not take up point before the Full Court that they had no jurisdiction because the Extradition Act overrides everything except this Court’s powers in section 75?

HIS HONOUR:   I am not sure I understand what you are saying.

MR SLOWGROVE:   What I am suggesting to your Honour is that the reason that we came here and the reason of that is that the very provisions that we have to presume are valid, in our submission, seem, on their view, to override by subsequent enactment all of the federal Acts of Parliament by which the Full Court operates, the Judiciary Act operates and so forth.  It is the constitutionally conferred jurisdiction of this Court that it seems to me that it is only clear to me that this Act does not touch.  It seems to override, on one view of it, everything that comes near it:  the Federal Court Act, the Judiciary Act, maybe the remitter power.

HIS HONOUR:   Wait a minute.  There is authority which Mr Burmester refers to – Pasini is an example and Kainhofer is another, I think – where it is said that these processes that are going on, at this stage at any rate, outside this Court are administrative in nature and Chapter III is not engaged.  You engaged Chapter III because you take a constitutional point.

MR SLOWGROVE:   I engaged Chapter III because I take its constitutional point about imprisonment.  Extradition is incidental to that.  Our case before this Court is that the foundation issue is imprisonment with extradition incidental to imprisonment rather than the foundation being extradition with imprisonment incidental to that.  That is the point that I take in this Court.  That is the problem with 19(1)(a).  It would appear because of 19(1)(a) that if the plaintiff was the world’s worst criminal, just because he is technically falsely imprisoned, no one could extradite him and he would have to go free.  It is just not reasonably adapted, your Honour.

HIS HONOUR:   I am sorry, say that again?

MR SLOWGROVE:   Yes.  My case is about imprisonment.  Extradition is incidental to that.

HIS HONOUR:   Mr Burmester’s case is all about fear of flight, which experience of life teaches one does happen in these cases.

MR SLOWGROVE:   Yes.

HIS HONOUR:   There are some celebrated instances of it.

MR SLOWGROVE:   That is true, your Honour, but if he is falsely imprisoned and if he was given interlocutory or ‑ ‑ ‑

HIS HONOUR:   All I am saying to you is there are two public interests involved, if we are going to debate it at that level, and the Parliament has chosen to act in a particular fashion on it.

MR SLOWGROVE:   I am definitely in your Honour’s hands.  I have made my point about what I think the statute does.

HIS HONOUR:   Yes, you may be right in the end.  All I am saying to you is it is not one‑sided.

MR SLOWGROVE:   Yes, I am certainly ‑ ‑ ‑

HIS HONOUR:   But just tell me, Mr Slowgrove, which sections were you impugning?  You have to be precise about this.

MR SLOWGROVE:   Yes.

HIS HONOUR: You say that 19(1)(a) does not operate because your client is not validly on remand under section 15, if I can put it that way, because section 15 is invalid relevantly.

MR SLOWGROVE: If anyone else lets him out, other than section 15, he can never ever be extradited, so it excludes everyone except the repositories of power in section 15, even this Court. So section 15 would be invalid, but if you took out ‑ ‑ ‑

HIS HONOUR: Section 15 would not be invalid. You would just read it down so that it would not have the effect of transgressing upon the entrenched jurisdiction of this Court under section 75 and that which was properly incidental to it.

MR SLOWGROVE:   If that is the case, to read it down like that, you must take out 19(1)(a), so 19(1)(a) would be invalid.  That is my submission then, your Honour, that the invalidity is 19(1)(a).

HIS HONOUR:   Why is there this invalidity because your client is an Australian citizen and, what?

MR SLOWGROVE: That will come into it. The point is that 19(1)(a) presupposes that he must be imprisoned pursuant to section 15, so if anyone else lets him go on an interlocutory basis, other than section 15, he can never be extradited, no matter what he has done. So the end result is it excludes everybody prior to surrender proceedings from putting him at liberty, no matter what the evidence is. He is at the total discretion of the Attorney. Even if the magistrate puts him at liberty, the Attorney can simply revoke that, transfer him to another State and put him before another magistrate. It simply is exclusive of everybody else.

If you do not have it exclusive of everybody else, then you can never have the surrender determination for extradition.  So 19(1)(a), if that is taken out, the only problem then becomes the constitutional validity of the regulations and perhaps 19(5).  Section 19(5) is constitutionally neutral.  That is what we say about 19(5).  In order to know what is valid about 19(5), you have to look at what regulation has been invoked and whether there is a treaty there.  Section 19(5) can be valid in some ‑ ‑ ‑

HIS HONOUR:   I thought your starting point was that the regulation was invalid?

MR SLOWGROVE:   We say that the regulation is invalid, yes.

HIS HONOUR: Why do you say that that is, to be precise, the Extradition (Croatia) Regulations 2004?

MR SLOWGROVE:   Yes, because there is no head of constitutional power that allows them to legislate in respect to extradition.  It must be an external affair.  They want to treat extradition as a separate head of power by which they could legislate.

HIS HONOUR:   It is said to be an external affair.

MR SLOWGROVE:   Most times it is.

HIS HONOUR:   Why is it not in this case?

MR SLOWGROVE:   Why is it not in this case?  For two reasons.  If you do not have a treaty and you want to rely upon an act physically external to Australia – with all due respect, if I call it the doctrine of the former Chief Justice Mason, the wide view of the external affairs power.  If you wish to rely upon that doctrine and say there is an external event, you have to be able to have some evidential tests that the external event exists and the Act precludes anyone finding out what the external event is because you are not allowed to contradict the allegation.  So that is the point.  The second point is ‑ ‑ ‑

HIS HONOUR:   Just a minute.  So you are saying that the relevant constitutional fact is the external affair, which is the commission of an act outside Australia, is that right?

MR SLOWGROVE:   Yes, so they have to prove ‑ ‑ ‑

HIS HONOUR:   And that cannot be investigated?

MR SLOWGROVE:   That is right, it cannot.  The Act precludes any contradiction of the allegation of the ‑ ‑ ‑

HIS HONOUR:   Why would that be any different if there was a treaty?

MR SLOWGROVE:   Why would that be any different if there was a treaty?  Because, for instance, if it was a United Nations Convention, this Court may not go behind it.  There is an Executive Act of the Commonwealth.  You have that idea, like in the Dams Case, that you cannot go behind the treaty.  What you do is you see whether it conforms to the treaty.

HIS HONOUR:   But we have treaties in many countries.

MR SLOWGROVE:   Yes, in fact we do ‑ ‑ ‑

HIS HONOUR:   The United States is one, the United Kingdom is another.

MR SLOWGROVE:   We do not with Croatia.

HIS HONOUR:   I understand that, but if your proposition stands, why are not these proceedings, as they occur regularly under those treaty relationships with the Extradition Act, why are they not defective also?  Because, again, there is a complaint that the person for whom extradition is sought has, in some cases, already been tried and convicted in the other country or it is said should be tried and convicted there because there are proceedings on foot alleging the commission of offences there.  If your proposition is right, why does the presence or absence of a treaty determine a different outcome?

MR SLOWGROVE:   Two reasons.  First, even if there is a treaty, you still have to look to the treaty to see whether there is an effect upon Chapter III.  That is the first thing.  If you want to go outside the treaty, you still have that same problem.  If the subject matter outside the treaty, the fact, is governed by another treaty, an Executive Act of the Commonwealth, not an Executive Act of the foreign state.  You have to distinguish an Executive Act of the Commonwealth from an Executive Act of the foreign state. 

Now, the Executive Acts of the Commonwealth, they have treaties that cover this, that they will not schedule, that they will not transform, and this is inconsistent with those Executive Acts.  The external affairs power primarily is about the Executive Acts of the Commonwealth, not the Executive Acts of a foreign state.  Now, these actions here contradict the Executive Acts of the Commonwealth, the ones we cannot go behind, that was said by Chief Justice Mason in the Dams Case.  For instance, his imprisonment is covered by the International Covenant on Political Rights.

HIS HONOUR:   There is authority that says the contrary, is there not, as to the consequences of that?

MR SLOWGROVE:   The consequence is if it is not scheduled, that helps us because that is an Executive Act of the Commonwealth.  You see, all these actions are Executive Acts of the Commonwealth.  What they want to rely upon is the Executive Act of a foreign state to dictate to this Court what an external affair is.  That is the point.  The submission is it is not an external affair; it is an external cloud in which no one can peer into.  The only external fact is you can say foreign states exist, but there is no relations between Australia and Croatia.  They cannot use any of these documents because they were brought into existence after the regulation was enacted.  A foreign state cannot retroactively validate one of our regulations.

HIS HONOUR:   All right.  I think I understand the drift of what you are saying on the external affairs power.

MR SLOWGROVE:   Yes.  Then we have the Chapter III problem ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  We have to deal with this in a systematic fashion.  That would produce the result, would it, that the definition of “extradition country” in section 5 ‑ ‑ ‑

MR SLOWGROVE:   Will collapse.

HIS HONOUR:   Well, section 5(a) you would say.

MR SLOWGROVE:   Yes.  Regulation 4 declares Croatia to be an extradition country, so the warrant collapses, everything collapses.  They are not an extradition country.  They cannot take extradition proceedings.

HIS HONOUR:   That has to be your starting point, does it not, the invalidity of this definition upon which everything else depends?

MR SLOWGROVE:   Yes, that is true, but that is not why we came here first.  That was the other point why I came – with all due respect to your Honour, I came here first because of the problem in the Act.

HIS HONOUR:   Yes.  I am worried about whether there is anything to go to the Full Court.  Now, if you are right about that, your other point does not arise, does it?

MR SLOWGROVE:   No, that is right, it does not arise but ‑ ‑ ‑

HIS HONOUR:   If you are right about the invalidity of “extradition country”, the statute collapses.

MR SLOWGROVE:   Legally, your Honour is right but it does not get him out of gaol quicker if you do it that way.  He will stay in gaol longer.  If the other point succeeds ‑ ‑ ‑

HIS HONOUR:   Why?

MR SLOWGROVE:   Your Honour, if we are within 75(iii), your Honour has enormous powers to fashion remedies in regard to this, both on an interlocutory basis ‑ ‑ ‑

HIS HONOUR:   Enormous responsibilities ‑ ‑ ‑

MR SLOWGROVE:   Yes, I know.  I realise that, your Honour, but 75(iii) gives this Court powers to design a situation that does proper justice to this man as to how long he could spend in prison.  He could spend years and years in prison and still win this case.  He could be not extradited.  He could ‑ ‑ ‑

HIS HONOUR:   No, he can go back from time to time and seek bail, with changed circumstances, but he elects not to do so at the moment.

MR SLOWGROVE:   That is true because he does not want to detract from his primary submission that he is falsely imprisoned, that it is tortious from the outset.

HIS HONOUR:   All I am putting to you is that detracts from the urgency of this Court.  If there is another possibility, another avenue outside the work of this Court, we encourage people to follow it.

MR SLOWGROVE:   Your Honour, legally, it is quite true.  We can start with the validity of the regulations, yes, and we succeed on that point alone.

HIS HONOUR:   What is your other point, though?  I take it from this discussion there are two main points.  One is the invalidity and the external affairs power we have just been talking about.  What is your other and, you say, preferred point, or the primary point, anyway, sequentially?

MR SLOWGROVE:   The primary point are the regulations and what 19(1)(a) does.

HIS HONOUR:   Just explain to me again, is this asserting any invalidity, this first point, or is it ‑ ‑ ‑

MR SLOWGROVE:   The one about 19(1)(a)?

HIS HONOUR:   Yes.

MR SLOWGROVE:   Yes, we say that 19(1)(a) is invalid in all cases.

HIS HONOUR:   Just a minute.

MR SLOWGROVE:   It has to be severed and gotten rid of.

HIS HONOUR:   Why?

MR SLOWGROVE: Because of the words under section 15. If you took out just the words under section 15 ‑ ‑ ‑

HIS HONOUR: What is wrong with section 15?

MR SLOWGROVE: Because it ousts everyone’s jurisdiction except the people under section 15, which is the Commonwealth that controls everything.

HIS HONOUR:   When you say ousts jurisdiction, what do you identify, the jurisdiction of this Court?

MR SLOWGROVE:   Yes; everybody.

HIS HONOUR:   So you are saying it is contrary to Chapter III?

MR SLOWGROVE:   Yes.

HIS HONOUR:   And contrary to anything else in the Constitution?  We have to be specific.

MR SLOWGROVE:   That would be contrary to Chapter III, yes.

HIS HONOUR:   So you have two points.  The Chapter III point ‑ ‑ ‑

MR SLOWGROVE:   Yes.

HIS HONOUR:   ‑ ‑ ‑ which Mr Burmester answers in his written submissions.

MR SLOWGROVE:   Yes.  They do not take the point that it does oust.  The point we came here ‑ ‑ ‑

HIS HONOUR:   He denies your premise.

MR SLOWGROVE:   What, that it is invalid?

HIS HONOUR:   No, that it ousts the jurisdiction of this Court.

MR SLOWGROVE:   Yes, I know that.  I know that.  He is wrong, completely.

HIS HONOUR:   All right.

MR SLOWGROVE:   I can go to that part where he denies it and I can ‑ ‑ ‑

HIS HONOUR:   No, do not take it any further because I would be sitting on the Full Court and I do not want to compromise myself.

MR SLOWGROVE:   Your Honour, can we just clarify perhaps this in terms of the arguments that that is – yes, the first one, 19(1)(a), and that ousts Chapter III – in regard to the regulations, again a separate point that they oust Chapter III and a separate point that they are not within the head of power.

HIS HONOUR:   The regulations themselves?

MR SLOWGROVE:   The regulations themselves are not.  Again, it is a separate Chapter III point on the regulations and then ‑ ‑ ‑

HIS HONOUR:   Yes.  The Chapter III point there seems to be a denial of investigation of constitutional facts, is it?  That is right?

MR SLOWGROVE:   Yes, that is right.  Then there is whether they are trying to use extradition as if it was a separate head of power when they have their own Executive Acts that they will not follow.  That is really about Chief Justice Mason in the Dams Case.  Apart from that, your Honour, there is a whole lot of associated jurisdiction points that are attached to the associated matter, that the circulation – not the issue of the warrant; it is the circulation.  My friend’s submissions – he had not…..Our point has been misunderstood about the warrant too.  We do not say the issue of the warrant is bad.  We do not know.  We do not know what the magistrate did in Western Australia.  It is its circulation we attack.

HIS HONOUR:   On what ground?

MR SLOWGROVE:   That it is not in the statutory form because it does not tell anyone what he has done, so no one can perform their functions.  It is not just a natural justice point.  The police do not know what to do.  They have powers of search and seizure that they cannot exercise because they do not know what he has done because they cannot form reasonable grounds.  The magistrate cannot run a bail application unless he knows what he has done.  How is he going to tell what “special circumstances” is?  It is not just a natural justice point; everybody who has a job under this does not know what to do ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  So you are saying it does not comply with some statutory requirement?

MR SLOWGROVE:   Yes.

HIS HONOUR:   Now, what statutory requirement?

MR SLOWGROVE:   Section 12(1).

HIS HONOUR:   All right.  We need to know these things specifically.  It is not a matter of mood; it is a matter of specific.  Section 12?

MR SLOWGROVE:   Section 12(1), “the magistrate shall issue a warrant” if he is satisfied of certain things.  Our position is he ‑ ‑ ‑

HIS HONOUR:   There is a statutory form.

MR SLOWGROVE:   Yes.

HIS HONOUR:   Do you say the statutory form was not obeyed?

MR SLOWGROVE: No. It is not in the statutory form because, by necessary implication, especially when you look at sections 13 and 15, the documents which the magistrate had that identify the facts which constitute the crime have to be circulated with the warrant otherwise no one knows what to do. No one can perform their functions. The police, under section 13, cannot form reasonable grounds for search and seizure because they do not know what is relevant. The magistrate, under section 15 ‑ ‑ ‑

HIS HONOUR:   What do you say it does have to say?

MR SLOWGROVE:   It is just basic facts that constitute his conduct that constitute an offence so someone can ‑ ‑ ‑

HIS HONOUR:   There is no offence.

MR SLOWGROVE:   The external fact abroad.  You just cannot have a submission of law as being the offence.  There must be some factual conduct, even if it is odd, that ‑ ‑ ‑

HIS HONOUR:   Well, that is not the structure of this Act.  Various authorities make that quite plain.  These sort of arguments have been run many times before me, Mr Slowgrove, in the Federal Court and they do not get up.

MR SLOWGROVE:   Could I just say this, your Honour, they do not get up on issue of the warrant.  Circulation is different.  There is a case I put on the list that I am not going to pull out for your Honour.  It is a decision of the International Court of Justice that draws a distinction ‑ ‑ ‑

HIS HONOUR:   That will not help me at all.

MR SLOWGROVE:   Yes.  But the point is that the warrant, because it is not circulated, how do you ‑ ‑ ‑

HIS HONOUR:   Warrants of ‑ ‑ ‑

MR SLOWGROVE:   You cannot tell what special circumstances are for bail unless you have some facts.  No one knows what to do, you see.  That is the problem.

HIS HONOUR:   Yes.  Now, what else?  That is a third head of complaint.  The first head of complaint is the external affairs power, various aspects, one of which is Chapter III.

MR SLOWGROVE:   Yes.

HIS HONOUR:   The second head of complaint is the validity of the regulations.  What is ‑ ‑ ‑

MR SLOWGROVE:   The next one is the meaning of the words “extradition treaty” in the Act and whether that includes the International Covenant on Civil and Political Rights because it covers both prosecution and extradition.

HIS HONOUR:   I am sorry, which definition?

MR SLOWGROVE:   Section 5, the definition of “extradition treaty”.

HIS HONOUR:   The definition of “extradition treaty”, yes.

MR SLOWGROVE:   Yes:

being a treaty relating in whole or in part to the surrender ‑ ‑ ‑

HIS HONOUR:   What has that to do with anything that affects you?  There is not one.

MR SLOWGROVE:   We would say the covenant is one.  The covenant covers everything to do with detaining people.

HIS HONOUR:   Yes, I know, but what work does this definition of “extradition treaty” do, with any other section, that impacts on you?

MR SLOWGROVE:   It controls the regulation‑making power in section 11.

HIS HONOUR:   All right.  Just a minute.

MR SLOWGROVE:   And that regulation‑making power overrides the Act.  It controls the regulation‑making power in 11(1)(b) and 11(1)(a).  The idea is it will create like a circle or a parameter around the 11(1) ‑ ‑ ‑

HIS HONOUR:   There is many cases on section 11 – to specify an extradition country, Todhunter was one, I think, in relation to the United States.  There was an extradition treaty or the regulations re‑jigged the Australian Act in a certain extent and the validity of that was upheld.

MR SLOWGROVE:   Yes.

HIS HONOUR:   How does this affect you?  There is no application of 11(1)(a) to you.

MR SLOWGROVE:   No, 11(1)(b) is what they used in regard to us.  It is in there as well:

to give effect to a multilateral extradition treaty in relation to the country.

HIS HONOUR:   Is there any multilateral extradition treaty?

MR SLOWGROVE:   “[I]n relation to the country”, and the country is Croatia.

HIS HONOUR:   Yes, I know, but what do the regulations do?  They do not invoke 11(1)(b), do they?

MR SLOWGROVE:   Yes, they do.  For instance, they change it from 45 days to receive something to 60 days and ‑ ‑ ‑

HIS HONOUR:   Yes, from 45 to 60.  Yes, I do see.

MR SLOWGROVE:   That is right.  The other thing is that they do not – and there are not any “limitations, conditions, exceptions or qualifications” in the regulations.  That is one of the points and, as a result of it, we say Article 9 of the Executive Act, which is the treaty, was therefore…..and you cannot have it breaching the treaty unless you impliedly repeal this treaty back, that is the covenant, by a bilateral extradition treaty.  In other words, you can get around the covenant by using (1)(a).  It acts as a check and does not leave them at large, you see, to do anything they like.

HIS HONOUR:   Just a minute.  I still do not see how a reference to “multilateral extradition treaty” in 11(1)(b) is engaged in your case.

MR SLOWGROVE:   What we say is that ‑ ‑ ‑

HIS HONOUR:   It says you:

make provision instead to the effect that this Act applies in relation to [Croatia] subject to other limitations –

and here it is 45, 60 days, right?

MR SLOWGROVE:   Yes.

HIS HONOUR:   But that power to make provision is qualified by:

limitations . . . necessary to give effect to a multilateral extradition treaty in relation to the country.

MR SLOWGROVE:   That is right.

HIS HONOUR:   Well, there is none relied on here and that would only limit the power.  So what is the problem?

MR SLOWGROVE:   No, what it does is that “the other limitations, conditions, exceptions or qualifications” that they could use cannot conflict with the multilateral extradition treaty.  If they want to have them that have nothing to do with it, that is all right, but if it conflicts with it, that “limitation, condition, exception or qualification”, it has to be other than something dealt with in the treaty if it is not in accordance with ‑ ‑ ‑

HIS HONOUR:   What is the multilateral extradition treaty here?

MR SLOWGROVE:   The International Covenant on Civil and Political Rights.

HIS HONOUR:   All right.  That is that point.

MR SLOWGROVE:   That is right.

HIS HONOUR:   What other points?  You have to be very specific because I am going to give you some time to go away and write all this down again, Mr Slowgrove, before I decide what is going into the Full Court, after giving Mr Burmester occasion to reflect upon what you say specifically.  We cannot have a scattergun approach.

MR SLOWGROVE:   I understand that, your Honour.  I am just going to check that that is all the points because I believe that that is all the points.  I think the rest of what I want to say is just legal argument.

HIS HONOUR:   Take a minute.

MR SLOWGROVE:   Yes, thank you, your Honour.  No, they are all variations on Chapter III and the external affairs power.  They will all come back to that.

HIS HONOUR:   All right.

MR SLOWGROVE:   These are really like Kisch’s Case – that is the one that reminds me – about Mr Kisch.

HIS HONOUR:   It turned the light off when you said you have the list at the moment.

MR SLOWGROVE:   Yes, thank you, your Honour.

HIS HONOUR:   Procedurally, what process do we have here, returning to Part 25?  You have an application which has been amended, but what is a convenient form that I can look at of your application?  There is an amended application of 3 February.  Is that the one?

MR SLOWGROVE:   The amended application to show cause, your Honour.

HIS HONOUR:   Let me just have a look.  Is it sufficient for me to be looking at the document filed on 3 February?

MR SLOWGROVE:   Yes.  Can I also say in this that ‑ ‑ ‑

HIS HONOUR:   Then you have a summons, as you are required to have.

MR SLOWGROVE:   Yes, I have two summonses, one for abridgement of time and one for interlocutory relief, and I have an amended application to show cause.  I must admit I gave my friend my friend a further amended one because I stuck in – it is the same ground.  I just expressed my case too narrowly.  I just simply attacked bail and did not attack the grant of habeas corpus itself as being ousted as to jurisdiction.  So I created a new 12(a), if I can hand that up to your Honour.

HIS HONOUR:   No, not at the moment.  The summons is required by rule 25.03.1 – that is right – then you have to have an outline of submissions, and that is rule 25.03.2.

MR SLOWGROVE:   Yes, and then I amended the outline of submissions ‑ ‑ ‑

HIS HONOUR:   I know.  We are just about to start again, Mr Slowgrove.  I am just trying to work out what you are going to need.  Does there not have to be an affidavit from your client in a habeas corpus case?

MR SLOWGROVE:   Your Honour, I cannot get an affidavit from my client.  My client does not have pens.

HIS HONOUR:   Just a minute.

MR SLOWGROVE:   I have an affidavit as to why he cannot have an affidavit.

HIS HONOUR:   I am just looking for the – what is the requirement in a habeas corpus case?  Rule 25.09.1, yes.  Rule 25.09.2 is what you rely on and you have affidavit material indicating why your client cannot make the affidavit, is that right?

MR SLOWGROVE:   Yes, I do have an affidavit to that effect.

HIS HONOUR:   Who is the deponent?

MR SLOWGROVE:   My solicitor, a Mr Draca.  It is his last affidavit.

HIS HONOUR:   Yes, that is the one I think.

MR SLOWGROVE:   I think it may be 13 February, your Honour.

HIS HONOUR:   Yes, filed on 13 February.

MR SLOWGROVE:   Yes.  I also think that one of the exhibits – and I will find that for your Honour ‑ ‑ ‑

HIS HONOUR:   Just a minute.  We have to do one thing at a time.  All that is needed is a short affidavit annexing or exhibiting the amended

application and saying that the deponent authorises the solicitor to make that application.  That is all that is required.  That should be possible.

MR SLOWGROVE:   That would be possible.

HIS HONOUR:   If there is any difficulty with the prison authorities, they should appreciate what is said in the transcript which will be available to you, but there should not be any difficulty, I would have thought.  It is only a short affidavit.  What I propose to do is to – what is a convenient time for you next week, gentlemen, at 9.30 am one morning next week?

MR SLOWGROVE:   Yes.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   And bearing in mind the exigencies of your solicitor ‑ ‑ ‑

MR SLOWGROVE:   Any day, your Honour.

HIS HONOUR:   Your solicitor has to do things, though.

MR SLOWGROVE:   Thursday, your Honour?

HIS HONOUR:   Thursday, the 23rd?

MR SLOWGROVE:   Yes, your Honour.

HIS HONOUR:   Is that convenient to you, Mr Burmester?

MR BURMESTER:   I am sure we can make arrangements, your Honour, yes.

HIS HONOUR:   This is what I propose:

1.On or before 21 February 2006 the applicant file and serve an affidavit by the applicant to comply with rule 25.09.1, an amended application and summons and a further outline of submissions.  The outline is to reflect in specific terms the several grounds indicated to the Court today.  The applicant has any necessary leave to file the amended process just described.

2.Stand over before me to 9.30 am on 23 February 2006 to ascertain which, if any, grounds should be referred to a Full Court under Part 25.03.3 of the Rules.

3.Costs of today be costs of the application.

Now, it is important, gentlemen, that the outline indicates specifically what we have been talking about this morning.  At the moment it is too diffuse, if I may say that.  Do you have any response to that, Mr Burmester?

MR BURMESTER:   No, your Honour, I am content with those orders.  I assume for the purpose of the next directions hearing there is no need for the respondents to make further submissions; that it is really to see if the outline is adequate.

HIS HONOUR:   It is up to you.  If you can do so within the time, by all means do so.

MR BURMESTER:    If there is something that we think is useful to say in terms of why the matter should or should not be referred to the Full Court.

HIS HONOUR:   Exactly.

MR BURMESTER:    We will do that.

HIS HONOUR:   Yes.  You may want to say that some of the grounds are so unarguable that they will be a waste of the Full Court’s time and I should deal with them right on the spot, but you may not think that.

MR BURMESTER:    If there is any particular evidentiary material, for instance, the allegation that the warrant was not circulated in statutory form, for instance, there may be some factual material there, if need be, I could put it forward at the next directions hearing or it may be necessary then for the purpose of the Full Court hearing to provide some material.

HIS HONOUR:   It may, yes.  How soon could – well, I do not want to put you to any time constraint at the moment.

MR BURMESTER:    I think we will wait and see what the applicant says and we can take it from there as best we are able.

HIS HONOUR:   Yes.  It may have to come back to me a second time before it goes to the Full Court.  I would want to see the material in its final form before it went to the Full Court.

MR BURMESTER:    I understand that, your Honour.

HIS HONOUR:   But bear in mind that if it comes back to me again, it would be in the following two weeks when I will be in Canberra, so the parties will have to come to Canberra.

MR BURMESTER:    That is fine.

HIS HONOUR:   No problem for you?

MR BURMESTER:    No problem with that, your Honour.

HIS HONOUR:   Yes, all right.  Do you have a note of those orders?

MR BURMESTER:    Yes, your Honour.

MR SLOWGROVE:   Yes, your Honour.

HIS HONOUR:   I make those orders.  I will now adjourn as indicated.

AT 10.34 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 FEBRUARY 2006