von Arnim, Ex parte- Re Federal Republic of Germany

[1999] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M50 of 1999

In the matter of -

An application for Writ of Habeas Corpus against FEDERAL REPUBLIC OF GERMANY represented by THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

MAGISTRATES’ COURT, MELBOURNE

Second Respondent

MR McDONNELL, DIRECTOR OF PORT PHILLIP PRISON LTD

Third Respondent

Ex parte -

DR ULRICH CHRISTOPH EBERHARD FREIHERR VON ARNIM, MD

Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 1 JUNE 1999, AT 9.35 AM

Copyright in the High Court of Australia

DR U.C.E.F. VON ARNIM appeared in person.

HIS HONOUR:   I hold a certificate from the Deputy Registrar that she has been informed by the Deputy Chief Magistrate of the Magistrates’ Court of Victoria that the second respondent, that court, will abide by the decision of the Court.  Yes.

DR VON ARNIM:   Your Honour, I am standing before you today to be released on the basis that I am a diplomatic agent and not amenable to the jurisdiction of the receiving State which is Australia.  I am the Regional Director of the World Health Organisation for Australasia, and - - -

HIS HONOUR:   Dr von Arnim, I have read the papers in your application and the exhibits that you have referred to in another application which is presently pending in the Court.  There are some aspects of it that I want to clarify and if I can perhaps do so in order.  Firstly, as I understand it, you are presently held on a provisional warrant that has been issued under the Extradition Act.  It that the position as you understand it?

DR VON ARNIM:   Yes, your Honour, that is correct.

HIS HONOUR:   And there are proceedings in the Magistrates’ Court concerning that proposed extradition.  Is that right?

DR VON ARNIM:   There were proceedings in the Magistrates’ Court.  They have already finalised.  Even though I filed an application for removal, they have been finalised and the matter has therefore proceeded to the Federal Court where I filed a notice of appeal.

HIS HONOUR:   How did the matter come to a conclusion in the Magistrates’ Court.  What was the conclusion that was reached there?

DR VON ARNIM:   His Worship ruled that I am an extraditable person and basically ignored my claim of diplomatic immunity saying that it would not apply under the Extradition Act, to which I objected, referring him to authorities as well as the relevant legislation, but he did not take that into consideration.

HIS HONOUR:   Well then, let me just understand this.  The affidavit that you – do you have a copy of your affidavit in the present proceeding?

DR VON ARNIM:   Yes.

HIS HONOUR:   Can I just go to that a moment and if I can take this in stages, it may assist me and, in the end, perhaps, assist you.  If I go to page 21 of your affidavit, you will see at about line 16 on page 21 – do you have that?

DR VON ARNIM:   Yes.

HIS HONOUR:   That on 19 April you were:

advised by Her Worship Ms Jelena Popovic that the Magistrates’ Court had adjourned all proceedings against the Applicant until 10 May - - -

DR VON ARNIM:   Yes, that was the initial statement.

HIS HONOUR:   Then, are there some events that have occurred after the swearing of the affidavit?

DR VON ARNIM:   Yes, your Honour.  Those were that the matter proceeded on 10 May.  I had filed a notice of removal in this honourable Court and served it on the parties and then it came back before his Worship and was concluded on 10 May.  There was a long argument whether it should be stayed.  I brought some of the authorities under the case of Polyukhovich, that if there is a valid constitutional challenge it amounts to an abuse of process to forego those proceedings and not allow them to be determined, the question be determined by the honourable High Court, but he - - -

HIS HONOUR:   Did the magistrate make an order on 10 May?

DR VON ARNIM:   Yes.

HIS HONOUR:   What was the order that was made on 10 May?

DR VON ARNIM:   That I am an extraditable person and to be remanded until either a notice under section 22 of the Extradition Act has been forwarded to me or I have filed a notice of appeal in the Supreme Court or the Federal Court of Australia.

HIS HONOUR:   Has either of those steps now been taken?

DR VON ARNIM:   I have filed a notice of appeal in the Federal Court.

HIS HONOUR:   Is one of the issues that you will seek to argue in the Federal Court the issue of diplomatic immunity that you have sought to argue in this application?

DR VON ARNIM:   Yes, your Honour.  That was part of my basic objections.

HIS HONOUR:   Given that the magistrate has concluded the hearing that is required under section 19 of the Extradition Act and has concluded that you are – well, has the magistrate concluded that you are a person eligible for surrender under the extradition proceedings?  The difficulty I have is, not having before me papers that explain what the magistrate has decided, I am anxious to find information out.

DR VON ARNIM:   Of course. Yes, your Honour, he concluded that I am extraditable and surrenderable under section 19. I think it is subsection (9) or (10).

HIS HONOUR:   And does it therefore follow that you are held now, not on the provisional warrant but on a warrant issued under section 19(9)?

DR VON ARNIM:   As I understand it, yes, your Honour.

HIS HONOUR:   And you are seeking a review of that order and the review you seek is a review by the Federal Court?

DR VON ARNIM:   Yes, an appeal and review, yes.

HIS HONOUR:   Yes, and the proceedings which you would have in this Court by way of habeas corpus are proceedings in which you would seek to have determined an issue which is a live issue which is one of the issues that you wish to have determined in the Federal Court appeal or review, is that right?

DR VON ARNIM:   Yes, to some extent, your Honour, correct, but what I see as a potential problem, the reason why I came to this honourable Court was that there is the constitutional issue, being a diplomatic agent and under section 5 of the Diplomatic Immunities Act, international organisations or representatives of international organisations would also fall within section 75(ii) of the Commonwealth Constitution for which the High Court has original jurisdiction, and if this - - -

HIS HONOUR:   But the 75(ii) jurisdiction, assuming that it is engaged, is jurisdiction that this Court has but it is not exclusive jurisdiction, is it?  That is, the question can be decided by other courts, can it not?

DR VON ARNIM:   Your Honour, as I understand it, if it is combined with an application for mandamus, prohibition or injunction, under section 44 of the Judiciary Act, it actually excludes the jurisdiction of State courts.  Now, this argument was brought before and it would still, of course, include the jurisdiction of the Federal Court under section 39B of the Judiciary Act, as I understand it, but I also am aware that the jurisdiction of the honourable Federal Court is to some extent more limited than the jurisdiction of this honourable Court.  I was relying to a certain extent on the decision of this honourable Court in 1987 of Bolton & Anor; Ex parte Beane where an issue of international law in relation to a serviceman of the American forces where Australia claimed to have jurisdiction and this honourable Court has decided that under international law Australia does not have jurisdiction because those servicemen enjoy certain privileges.  It falls within the jurisdiction of this honourable Court.

My main concern is, your Honour, I would like to be released, go back to my family.  There are serious concerns with the family matters and if – - -

HIS HONOUR:   I understand those issues and I understand the reasons for you wanting to be released.  The central issue that you wish to raise is, as I understand it, an issue of your status, an issue of your status as an internationally protected person.  That is an issue which you have raised in other separate proceedings in the County Court where it was determined against you.  It is an issue which you have raised in the Magistrates’ Court and again it has been determined against you.

DR VON ARNIM:   His Worship has not actually determined it.  He avoided the issue.  He said that it - - -

HIS HONOUR:   Yes.  You say wrongly avoided the issue and that because you are an internationally protected person, you are not extraditable.  Is that right?

DR VON ARNIM:   Yes, your Honour, that is absolutely - - -

HIS HONOUR:   And that is an issue that you will agitate in the Federal Court.

DR VON ARNIM:   Yes.

HIS HONOUR:   Why should this Court now intervene when you have proceedings on foot in which the issue that you seek to agitate here will be agitated in the Federal Court?  Why should this Court - - -

DR VON ARNIM:   Yes, your Honour, I understand your question.

HIS HONOUR:   - - - duplicate work being done by another court?

DR VON ARNIM:   For two reasons, your Honour:  No 1 is if this honourable Court would make a determination, there would be nothing left for the Federal Court to decide because - - -

HIS HONOUR:   That is so with any litigation in the sense that if this Court decides it, that is an end of it, but this Court cannot take on every piece of litigation.  There are other things that we have to deal with, Dr von Arnim.  I understand the point but it is, if I may say so, not the most persuasive point.

DR VON ARNIM:   And the other issue, of course, is that under the Diplomatic Privileges and Immunities Act where the Vienna Convention has gained the force of law in Australia, Article 29 says that a diplomatic agent cannot be arrested, detained in any way, shape or form, and Article 31 says that - - -

HIS HONOUR:   I understand the force of all that but the factual question that lies behind it or perhaps lies in front of it, more accurately, is are you a diplomatic agent?  That is, in part, a question of fact, is it not?

DR VON ARNIM:   Yes.

HIS HONOUR:   And that question of fact was agitated at quite some length in the County Court, was it not?

DR VON ARNIM:   Yes, but I argued at that stage that the parties joining those proceedings, which were the DPP of the State of Victoria, did not provide the court with all the information.  Through preliminary proceedings and directions hearing in the Federal Court which started on 24 September 1998, a certificate obtained by the DPP – or on behalf of the DPP, through the Attorney-General of the Commonwealth – clearly stated that I enjoy the support of Geneva’s headquarters and ‑ ‑ ‑

HIS HONOUR:   That is the ASIC certificate, is it?  The Securities and Investment Commission certificate you are referring to, or some other certificate?

DR VON ARNIM:   No, that was actually a certificate by the Director General of the World Health Organisation in Geneva, Dr Gro Brundtland, and supported by a statement of legal counsel of the World Health Organisation in Geneva.

HIS HONOUR:   Now, those papers were not before the County Court, were they?

DR VON ARNIM:   No, even though ‑ ‑ ‑

HIS HONOUR:   The authenticity of those papers at the moment is supported only by their appearance and by what you say, is it not?

DR VON ARNIM:   No.  They have been obtained by the DPP.  They are addressed to the DPP and they hold the original.  They obtained those documents between 3 August and 25 August 1998 ‑ ‑ ‑

HIS HONOUR:   But the material you place before me consists of, as I understand it, one, various material that was before the County Court, including amongst other thing the Minister’s certificate about which you have a number of things to say, as I understand it.

DR VON ARNIM:   Yes.

HIS HONOUR:   There are the two further pieces of paper – and I use that as a neutral term to describe them – apparently coming from emanations of World Health Organisation.

DR VON ARNIM:   Yes.

HIS HONOUR:   But the only sworn evidence that is advanced is your own, is that right?

DR VON ARNIM:   Yes.

HIS HONOUR:   The decision of the County Court was that the certificate of the Minister was to be given effect despite the sworn evidence that you gave, is that right?

DR VON ARNIM:   Yes.

HIS HONOUR:   Did you later appeal from the decision of the County Court?

DR VON ARNIM:   I was trying to obtain a judicial review in the Federal Court.

HIS HONOUR:   Yes.  But did you appeal to the Court of Appeal of Victoria or otherwise seek to challenge directly the holding of the County Court that the presentment should not be quashed?

DR VON ARNIM:   No.

HIS HONOUR:   Go back a stage.  You asked the County Court to quash the presentment.

DR VON ARNIM:   Yes.

HIS HONOUR:   The County Court refused to quash the presentment.

DR VON ARNIM:   Yes.

HIS HONOUR:   Did you challenge that holding that they would not quash the presentment?

DR VON ARNIM:   Yes, but not in the Supreme Court or Court of Appeal but in the Federal Court.  I asked for a judicial review on those matters.

HIS HONOUR:   Was that judicial review ever prosecuted to judgment?

DR VON ARNIM:   No.  His Honour Justice Merkel said that I should have brought those proceedings in the Court of Appeal.

HIS HONOUR:   Yes.

DR VON ARNIM:   So therefore he referred it back or dismissed it without entering judgment.

HIS HONOUR:   Why then should I, on the material I now have, intervene in a process of appeal that you have, and a process of appeal that you have in fact instituted, in an attempt to shortcut it?  Why should this Court intervene?

DR VON ARNIM:   Because the possibilities, your Honour, for me to appeal all those decisions which are taken into account – or have been attempted to be taken into account in the extradition proceedings - under section 21 of the Extradition Act, the powers to review are so extremely limited that ultimately I have the impression, through those procedures, that it will not be determined in a fair and just way.  It would basically – the process would continue over a lengthy period of time from today or from the date when it was instigated until an undeterminable time in the future.  That is one of the points which causes me considerable hardship.  I do not know if ‑ ‑ ‑

HIS HONOUR:   I do not need persuasion that being in gaol is hard, Dr von Arnim.  I have been to gaols and I have seen them and I know what it is like.  I do not need persuasion on that.  But that is one set of issues.

DR VON ARNIM:   The other issue, your Honour, is that the certificate used in those extradition proceedings, this executive certificate issued by the Honourable Alexander Downer, the Minister of Foreign Affairs, is, in my respectful opinion, not authorised by the Act under which it was issued – or pursuant to which it was issued – and ‑ ‑ ‑

HIS HONOUR:   You say section 11 of the International Organisations (Privileges and Immunities) Act does not permit him to give a negative certificate.  It permits him to give a positive certificate only.  Is that the kernel of the argument?

DR VON ARNIM:   Yes, your Honour.  If he wants to give a negative certificate, basically I am arguing that a person who does not fall within the legislation of the International Organisations Act, for whatever reason, falsely – whatever reason – and a waiver has not been obtained so that person cannot claim that he or she falls within that legislation, then it would be a false claim of privileges and immunities and for that purpose Parliament of the Commonwealth has passed a legislation called the Diplomatic and Consular Missions Act which says, in its preamble, it is an Act dealing with false claims of privileges and immunities.

The other point was that during those proceedings in the County Court, his Honour Judge Jones ruled the certificate of the Minister of Foreign Affairs admissible under section 145 of the Commonwealth Evidence Act.

HIS HONOUR:   Did he rely on section 145 or did he rely on section 150?

DR VON ARNIM:   He relied on 145 and 150.  I understand that 150 applies to proceedings in all courts in this country, but section 145 would not be falling within section 5 which defines which sections of the Commonwealth Act ‑ ‑ ‑

HIS HONOUR:   And that may drive a court in Victoria back to questions of common law, rather than statutory law, and the common law has – and I speak subject, of course, to correction – as I understood it, at least, permitted the courts to take judicial notice of matters of international relations according to the certificate of the responsible Minister.  Perhaps I am wrong in that, but I thought Duff Development v Kelantan Government and cases of that kind established that.

DR VON ARNIM:   Your Honour, I understand that and I absolutely do not disagree but the issue was that I insisted that – I have raised that issue and I still continue to insist that it was admissible under sections 145 and 150.  Then, of course, as I mentioned before, it comes back whether the certificate as such, in its current form, was valid and whether the withholding of crucial evidence to the claim – that in effect the claim of immunity was justified or – actually, I doubt that it can be justified because it makes the difference between (a) and (b), that if that evidence had been entered, which I claimed that it was in existence and was very clearly denied in cross-examination that such certificates existed, and on 8 October those documents were released upon my insistence in the Federal Court, and therefore I managed to get a copy of them and based my then continuous action on those further documents.

HIS HONOUR:   The point that troubles me at the moment, Dr von Arnim, so that you may deal with it, is the point of why should this Court intervene when you have pending an appeal against the decision to extradite you.  Either that decision is right or it is wrong.  If it is wrong, the appellate process should correct it.  If it is right, why should this Court intervene?  If it is wrong, why should this Court not wait until the appellate process has run its course?

DR VON ARNIM:   Your Honour, in my respectful and humble opinion, I think that if this honourable Court would deal with those issues now, it would look at every aspect from A to Z and, as I was trying to argue, it will not be possible, even though certain points have been raised before the Magistrates’ Court, under the extremely limited legislation of section 21 of the Extradition Act to deal with those issues. It will presumably be not possible for the Federal Court to entertain a review of whether that executive certificate is, in its current form, correct or not. It can only deal with the issue on the basis, was it admissible in the form it was tendered, and contrary to the objections raised by myself, or not? That is one of my main arguments because I would not be able to invoke the – I think I will not be able to invoke the jurisdiction of the Federal Court under section 39B because the Extradition Act limits those matters very precisely. 

One of the main arguments of the Federal Republic of Germany was that diplomatic immunity does not apply to the Extradition Act.  Your Honour, I see – I definitely doubt that.  Why would the Parliament of Australia make a Commonwealth law as the Diplomatic Privileges and Immunities Act and include section 6 into that Act which states that any other law in a State or Territory or Commonwealth, after or before the operation of that Act, would be excluded if it deals with issues of diplomatic immunity.  Now, if we consider the point that these extradition proceedings would ultimately also deal with issues of privileges and immunities, as me as the affected person and myself claiming the status, there would be a contradiction to some extent.

HIS HONOUR:   Again, as I understand it, your fundamental point is that you are immune from arrest; you are immune from extradition; the magistrate who dealt with proceedings under the Extradition Act had no jurisdiction to deal with you, and those are arguments that you advanced in the Magistrates’ Court and which you would seek to advance on review in the Federal Court.  Do I have it ‑ ‑ ‑

DR VON ARNIM:   Yes, your Honour, absolutely.

HIS HONOUR:   Yes.  Is there anything else that you would seek to advance?

DR VON ARNIM:   Not at this stage, thank you.

HIS HONOUR:   Thank you, Dr von Arnim. 

Now, Mr Camilleri, understanding as I do that you do not appear in the proceeding, I understand that you are here in effect representing the interest of the Director of Public Prosecutions which has no instructions to act in this proceeding on behalf of the Federal Republic.  Do I understand the position?

MR M. CAMILLERI:   Yes, you do.  That is correct, your Honour.

HIS HONOUR:   Notwithstanding all those caveats that I have just entered, is there anything that you would wish to add or say at this stage?

MR CAMILLERI:   Just perhaps to correct a couple of - - -

HIS HONOUR:   Perhaps if you would come to the microphone, Mr Camilleri.

MR CAMILLERI:   In relation to some matters put by Mr von Arnim. Your Honour is correct that Mr von Arnim is currently held pursuant to a warrant of commitment and not a provisional warrant; a lawful warrant holding Mr von Arnim in custody pending a decision by the Attorney‑General whether to sign and surrender warrant.

HIS HONOUR:   And the warrant of commitment is issued under which section of the Extradition Act?

MR CAMILLERI: Section 19. I have a copy of the warrant here if your Honour wants to see it.

HIS HONOUR:   No. I think it is for Dr von Arnim to say what the position is, thank you, Mr Camilleri. But you confirm what he tells me, that he is held under a warrant issued under section 19?

MR CAMILLERI:   Yes, section 19(9), your Honour. The other matter is that the magistrate did not ignore the issue of diplomatic immunity. He found, firstly, that the Extradition Act did not provide for diplomatic immunity as an extradition objection and, secondly, that there was no

evidence of any weight before him that Mr von Arnim held a diplomatic agent status.

HIS HONOUR:   So, there are two issues that may arise on a review in the Federal Court:  one, the question of law whether diplomatic status is an extradition objection and, two, whether as a matter of fact Dr von Arnim holds the status of diplomatic agent.  Those are the two issues that he would seek to agitate in the Federal Court, are they not?

MR CAMILLERI:   Correct, your Honour.  They were agitated by him in the Magistrates’ Court and they are in the papers which will be before the Federal Court.

HIS HONOUR:   Yes.

MR CAMILLERI:   The only matter I would put to your Honour is that this is another exercise seeking ultimately to fragment and bypass specific legislation dealing with the procedure.  As regards Mr von Arnim’s custody, he does have the right to seek bail before the Federal Court if that is his wish and we understand that he may face significant hurdles because he would have to establish certain criteria but, ultimately, it is a matter - - -

HIS HONOUR:   I understood bail in extradition matters was not commonly given, Mr Camilleri.

MR CAMILLERI:   That is correct.

HIS HONOUR:   I may have a wrong impression but I thought there may be some reasons that suggest that bail might be rather more difficult to come by in extradition matters than in some other matters.  I think that Dr von Arnim might perhaps be able to persuade me that the alternative is custody, or none, and that he is likely to face custody.

MR CAMILLERI:   I will not pursue that point.  Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Camilleri.  Dr von Arnim, is there anything that you would wish to add in light of what Mr Camilleri has told me?  You understand the capacity or, rather, the very limited capacity in which he addresses me.

DR VON ARNIM:   Yes.

HIS HONOUR:   Is there anything though that you would wish to add?

DR VON ARNIM:   Well, I think at this stage he basically confirmed what I was trying to convey to the Court and I personally believe from the written application and the documentation, as well as from my oral argument, that I covered most of the area.  Perhaps one last point, your Honour:  as you mentioned, it is almost impossible to obtain bail under the Extradition Act.  I understand that and, therefore, I have avoided the issue because the legislation on those points is extremely clear and also the authorities – there was one case of, I think it is Fu Weng, before the Full Federal Court and it was only to a certain extent successful.

HIS HONOUR:   Yes.  I do not think I need persuasion of the fact that bail in extradition matters is an unusual order and that there are perhaps unlikely to be circumstances in your case which would lead to a grant of bail.

DR VON ARNIM:   Yes.  The last point, your Honour, before I close:  his Worship – I mean, in my respectful opinion, the fact that I have raised the issue of diplomatic immunity and the argument by his Worship that it is not as such an objection to - a valid objection to extradition, if we look at the case of Pinochet which was before the House of Lords in England, there, the House of Lords has basically tried to define which types of criminal acts would set aside the immunity even of a head of State which was basically crimes of genocide - - -

HIS HONOUR:   But the debate in this case is not about the relationship between the alleged offending and status.  The debate in this case is do you have the status.

DR VON ARNIM:   Exactly.

HIS HONOUR:   Yes.

DR VON ARNIM:   Thank you very much.

HIS HONOUR:   It is about 10.10.  I would expect to be in a position to give my decision at approximately 10.30.  I will return to Court at about 10.30.

AT 10.12 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.37 AM:

HIS HONOUR:   Dr Ulrich Christoph Eberhard Freiherr von Arnim applies for an order nisi for habeas corpus directed to the Federal Republic of Germany, the Magistrates Court at Melbourne and Mr McDonnell, Director of Port Philip Prison Ltd.  The application has been served on the Court and on the Director of the Prison but not on the intended first respondent.  It may be doubted that the first intended respondent can be made or should be made a party to the proposed proceedings.

Neither the Court nor the Director of the Prison appeared.  The solicitor for the Director of Public Prosecutions (Cth) appeared to assist the Court.  The Director of Public Prosecutions (Cth) has acted for the Federal Republic of Germany in connection with some aspects of the proposed extradition but had no instructions to appear for it on this application.

Before coming to the grounds upon which the applicant relies, it is necessary to say something of the background to the proceeding.

In July 1998 a presentment was filed in the County Court of Victoria charging the applicant with 21 counts of attempting to obtain a financial advantage, 20 counts of obtaining a financial advantage by deception, 1 count of obtaining property by deception, 1 count of furnishing false information, 2 counts of making a false document and 1 count of perjury.  The applicant moved to quash the presentment alleging that he was entitled to diplomatic immunity from prosecution.  This immunity arose, so it was alleged, from the applicant's involvement with the World Health Organisation.

On the hearing of the motion in the County Court a certificate from the Minister for Foreign Affairs of the Commonwealth dated 26 May 1998 was received in evidence, certifying that the applicant "has never been recognised by the Government of the Commonwealth of Australia as a person entitled to diplomatic or other privileges or immunities as a representative of the World Health Organisation or any other international organisation, to which the International Organisations (Privileges and Immunities) Act 1963 applies". This certificate was given pursuant to s 11 of the International Organisations (Privileges and Immunities) Act 1963 (Cth) which provides:

"(1)     The Minister may give a certificate in writing certifying any fact relating to the question whether a person is, or was at any time or in respect of any period, entitled, by virtue of this Act or the regulations, to any privileges or immunities.

(2)      In any proceedings, a certificate given under this section is evidence of the facts certified."

On 7 September 1998 the motion to quash the presentment was dismissed.  The judge rejected oral evidence given by the applicant and held that the applicant was not entitled to diplomatic immunity.

The applicant was later found or pleaded guilty to 13 counts of obtaining a financial advantage by deception, 6 counts of attempting to obtain a financial advantage by deception and 1 count of obtaining property by deception. He was sentenced to 20 months imprisonment of which 10 months was suspended. Having already served 10 months, he was eligible for immediate release. He was, however, then arrested on a provisional extradition warrant. At the time of his swearing his affidavit in support of the present application for order nisi, he was held on that provisional warrant. Since he swore that affidavit, the hearing contemplated by s 19 of the Extradition Act 1988 (Cth) has been held and concluded. The applicant informed me that the Magistrate determined that the applicant is eligible for surrender and directed the issue of a warrant committing him to prison to await surrender. The applicant has since instituted an application for review of the Magistrate’s orders pursuant to s 21 of the Extradition Act.

The applicant seeks to contend that his detention is unlawful solely on the ground that he is entitled to diplomatic immunity.  He puts that claim in various ways but he raises no other basis of alleged unlawfulness in his detention.  His claim to immunity is exactly the same as that made to, and rejected by, the County Court, although he does seek to support it by certain additional written documents not tendered to the County Court and alleged to come from the World Health Organisation.  The authenticity of those documents is not verified except by the applicant.

In his affidavit in support of the present application the applicant sought to allege that the decision of the County Court that he is not entitled to diplomatic immunity is wrong for a number of reasons.  Of course to put the matter in this way tends to suggest that the proceeding which the applicant seeks to institute in this Court is by way of appeal from the decision of the County Court.  That is not so but it may be that the applicant can use the County Court decision as a convenient frame of reference against which to put his claim that it is arguable that he is entitled to diplomatic immunity.

In his affidavit in support the applicant directed particular attention to the certificate given by the Minister. Central to his contentions appears to be the proposition that s 11 of the International Organisations (Privileges and Immunities) Act does not lawfully empower the Minister to certify that a person is not entitled to privileges or immunities.  He deploys various arguments in support of that contention.  For my own part I doubt that the contention is sound but I need not decide whether it is.

Reduced to its essentials the order nisi which the applicant seeks would attempt to rehearse exactly the same matters that were concluded against him in his challenge to the presentment in the County Court and to do so with no sworn evidence other than his own - evidence that was rejected in the County Court.  Although the applicant unsuccessfully sought to review that decision by application to the Federal Court, he did not appeal against it to the Court of Appeal of Victoria.  Further, and perhaps more importantly, the order nisi which the applicant seeks would attempt to deal with exactly the same arguments that he seeks to agitate in his review of the Magistrate's decision that he is an extraditable person.

There may be difficult questions whether habeas corpus would lie in the circumstances of the present matter to challenge the warrant under which the applicant is now held.  See, for example, Wall v The King, Ex parte King Won and Wah On [No 1] (1927) 39 CLR 245 at 256-260, per Isaacs J. I need not embark on those questions. Nor do I need to consider the question of the jurisdiction of this Court to grant the relief the applicant seeks and the questions that this may raise about s 75(ii) of the Constitution. It is enough to say that I am not persuaded that the material that the applicant puts forward is, in all the circumstances, sufficient to warrant granting an order nisi and I am not persuaded that to do so in the face of the pending application for review would be right. The application is refused.

HIS HONOUR:   I will adjourn.

AT 10.50 AM THE MATTER WAS CONCLUDED