FEDERAL COURT OF AUSTRALIA
Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252
Citation: Zentai v Honourable Brendan O’Connor (No 2) [2010] FCA 252 Parties: CHARLES ZENTAI v THE HONOURABLE BRENDAN O'CONNOR, COMMONWEALTH MINISTER FOR HOME AFFAIRS, COMMONWEALTH ATTORNEY-GENERAL, BARBARA LANE and THE WESTERN AUSTRALIAN OFFICER IN CHARGE, HAKEA PRISON File number: WAD 220 of 2009 Judge: MCKERRACHER J Date of judgment: 19 March 2010 Catchwords: LEGAL PROFESSIONAL PRIVILEGE - within the Attorney-General’s Department - advice concerning discretionary decision to surrender for extradition - whether the Attorney-General’s delegate is entitled to Legal Professional Privilege - whether disclosure of most, but not all, of the advice is unfair or inconsistent with a claim for legal professional privilege - whether legal professional privilege is waived Legislation: Director of Public Prosecutions Act 1983 (Cth) ss 5, 6(1), 6(2), 16
Extradition Act 1988 (Cth) ss 16, 19, 22, 23
Federal Court of Australia Act 1976 (Cth) s 23
Judiciary Act 1993 (Cth) ss 55E, 55F, 55G, 55ZFExtradition Treaty Between Australia and the Republic of Hungary 1997 Arts 2, 3
International Covenant on Civil and Political Rights 1966 Art 14Cases cited: Assistant Treasurer and Minister for Competition Policy and Consumer Affairs v Cathay Pacific Airways Ltd and Another (2009) 179 FCR 323
AWB Ltd v Cole (2006) 152 FCR 382
Baker v Campbell (1983) 153 CLR 52
Bennett v Chief Executive Officer, Australian Customs Service (2004) 140 FCR 101
Candacal Pty Ltd v Industry Research and Development Board (2005) 59 ATR 615
Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501
DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151
Dunesky v Elder (1992) 35 FCR 429
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Grofam Pty Ltd v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445
Lane v Morrison (2009) 239 CLR 230
Mann v Carnell (1999) 201 CLR 1
New South Wales v Betfair Pty Ltd and Others (2009) 180 FCR 543
Osland v Secretary, Department of Justice (2008) 234 CLR 275
Rayney v AW [2009] WASCA 203
Rich v Harrington (2007) 245 ALR 106
Spassked Pty Ltd v Federal Commissioner of Taxation (No 4) (2002) 50 ATR 70
Waterford v Commonwealth (1987) 163 CLR 54
Zentai v Republic of Hungary [2008] FCA 1335
Zentai v Republic of Hungary [2009] FCA 284
Zentai v Republic of Hungary [2009] FCA 511
Zentai v Republic of Hungary (2009) 180 FCR 225
Zentai v Honourable Brendan O’Connor [2009] FCA 1597Date of hearing: 5 March 2010 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 145 Counsel for the Applicant: MJ McCusker QC with PW Johnston Solicitor for the Applicant: Fiocco’s Lawyers Counsel for the First and Second Respondents: JD Allanson SC Solicitor for the First and Second Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 220 of 2009
BETWEEN: CHARLES ZENTAI
Applicant
AND: THE HONOURABLE BRENDAN O'CONNOR,…
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Details
- Case
- [2010] FCA 252
- Decision Date
CaseChat Overview and Summary
The case of Zentai v O'Connor (No 2) involved a legal dispute regarding the extradition of Mr. Zentai from Australia to Hungary. Mr. Zentai, a dual Australian and Hungarian citizen, was wanted in Hungary for prosecution on charges of a war crime committed during World War II. The court was tasked with determining whether the statutory preconditions for the extradition had been satisfied and if there were any grounds to decline issuing a notice under section 16 of the Extradition Act. The Attorney-General, acting on behalf of the Commonwealth, argued that Zentai's extradition should be declined on the basis of his age and health, asserting these factors as relevant considerations for the court.
The central legal issues in this case included whether the statutory conditions for extradition were met, specifically if Zentai was an extraditable person in relation to Hungary, if the offence for which extradition was sought constituted an extradition offence, and if there were any extradition objections. Additionally, the court had to consider the residual discretion to decline issuing a section 16 notice, evaluating the Attorney-General's arguments concerning Zentai's age and health. The court had to balance these considerations against the statutory requirements and the obligations under the Extradition Act and the Extradition Treaty between Australia and Hungary.
In deciding the matter, the court examined the statutory preconditions for issuing a section 16 notice and found that all conditions were met. The court noted that Zentai was an extraditable person in relation to Hungary, the alleged offence constituted an extradition offence, and there were no extradition objections. The court also considered the Attorney-General's arguments regarding Zentai's age and health but found these factors were not grounds to decline issuing a section 16 notice. The court concluded that the statutory requirements had been satisfied and that there were no additional matters that would form a basis for declining to issue the notice. Consequently, the court upheld the extradition request, affirming that the statutory conditions were met and there were no grounds to decline issuing the notice.
The final order of the court was that the Attorney-General was directed to sign a notice under section 16(1) of the Extradition Act, thereby initiating the extradition process for Mr. Zentai to Hungary. This decision confirmed that Zentai's extradition could proceed in accordance with the Extradition Act and the Extradition Treaty between Australia and Hungary.
The central legal issues in this case included whether the statutory conditions for extradition were met, specifically if Zentai was an extraditable person in relation to Hungary, if the offence for which extradition was sought constituted an extradition offence, and if there were any extradition objections. Additionally, the court had to consider the residual discretion to decline issuing a section 16 notice, evaluating the Attorney-General's arguments concerning Zentai's age and health. The court had to balance these considerations against the statutory requirements and the obligations under the Extradition Act and the Extradition Treaty between Australia and Hungary.
In deciding the matter, the court examined the statutory preconditions for issuing a section 16 notice and found that all conditions were met. The court noted that Zentai was an extraditable person in relation to Hungary, the alleged offence constituted an extradition offence, and there were no extradition objections. The court also considered the Attorney-General's arguments regarding Zentai's age and health but found these factors were not grounds to decline issuing a section 16 notice. The court concluded that the statutory requirements had been satisfied and that there were no additional matters that would form a basis for declining to issue the notice. Consequently, the court upheld the extradition request, affirming that the statutory conditions were met and there were no grounds to decline issuing the notice.
The final order of the court was that the Attorney-General was directed to sign a notice under section 16(1) of the Extradition Act, thereby initiating the extradition process for Mr. Zentai to Hungary. This decision confirmed that Zentai's extradition could proceed in accordance with the Extradition Act and the Extradition Treaty between Australia and Hungary.
Orders
Orders of the court
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Background
Background to the litigation
No other form of privilege has been claimed by the Commonwealth. BACKGROUND On 8 July 2005, the former Minister for Justice and Customs (Minister for Justice) initially executed a Notice of Receipt of Extradition Request in relation to the extradition of Mr Zentai. Material released pursuant to a Freedom of Information request made for Mr Zentai reveals (to the significant extent that disclosure has been made) that the Minister for Justice received the following information from the Attorney-General’s Department (the Department):Zentai holds dual Australian and Hungarian citizenship. He was born in Hungary on 8 October 1921. He emigrated to Australia in the 1950s.2. Zentai is wanted in Hungary for prosecution for a war crime, violating to section 165 of Act IV of 1978 of the Hungarian Criminal Code in conjunction with section 11, paragraph 5 of Law-Decree No. 81/1945 (II.5) ME on People’s Jurisdiction enacted by Act VII of 1945, amended and complemented by Decree No. 1440/1945 (V.1.) ME. The offence is described in the Hungarian extradition request as:[a] person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad.3. The offence for which Zentai’s extradition is sought has retrospective application and is not subject to any statute of limitations.4. On 8 November 1944, it is alleged that Zentai, a reserve ensign in the Hungarian Royal Army, was patrolling in the territory of Budapest. It is alleged that during the patrol Zentai arrested Peter Balazs, a man of Jewish origin, for not wearing a yellow star identifying him as Jewish.5. It is alleged that Zentai took Balazs to his army post. At the army post it is alleged that Zentai and two accomplices, Captain Bela Mader, and First Lieutenant Lajos Nagy, assaulted Balazs in an office. It is alleged that Balazs died from injuries caused by the assault. 6. It is also alleged that Zentai, and several fellow soldiers, took Balazs’s body from the army post and disposed of it in the Danube River.7. On 29 April 1948, an arrest warrant was issued against Zentai. The Hungarian authorities were unable to locate Zentai and the file was closed in June 1948. In 1948, Nagy was convicted of war crimes, including the murder of Balazs.Prosecution in Australia under the War Crimes Act 19458. On 11 November 2004, the Australian Federal Police (AFP) received a request from Israeli authorities for confirmation that Mr Zentai was a resident in Australia. On 25 November 2004, the AFP responded to the request confirming that Zentai was a resident of Western Australia who acquired Australian citizenship on 29 May 1958.9. On 14 November 2004, the Director of the Simon Wiesenthal Centre, Dr Efraim Zuroff, referred an allegation of a war crime against Zentai to the Australian Embassy in Tel Aviv, Israel.10. On 14 December 2004, the AFP received the referral of this allegation from the Department of Foreign Affairs and Trade (DFAT). On 17 January 2005, the AFP evaluated and accepted the referral for investigation. On 2 March 2005, Zentai participated in a taped record of interview with the AFP. Zentai made no comment in relation to the questions concerning the alleged offence.…[not disclosed]Hungarian extradition request14. The Hungarian authorities were informed in December 2004 that Zentai was residing in Australia. Hungary reopened the criminal procedure and an arrest warrant was issued against Zentai on 3 March 2005 in Hungary.15. On 30 March 2005, the Hungarian authorities formally requested the extradition of Zentai from Australia.16. On 3 May 2005, [Section 42], the Department formally wrote to the Hungarian authorities requesting additional information required for the extradition request to meet the obligations of the Extradition Act and the Treaty on Extradition between Australia and the Republic of Hungary (the Treaty). The Hungarian response was received on 8 June 2005.…[not disclosed]Relevant Law19. Section 16 of the Extradition Act empowers you to issue a notice to a magistrate stating that an extradition request has been received from an extradition country. The notice confers jurisdiction upon the magistrate to conduct proceedings to determine whether the person is eligible for extradition.20. Subsection 16(2) of the Extradition Act provides that you shall not issue a notice unless you are satisfied that:(a) the person is an extraditable person in relation to an extradition country(b) if the alleged criminal conduct had taken place in Australia at the time the extradition request was received, it would have constituted an extradition offence in relation to Australia, and (c) there is no extradition objection in relation to the offence for which the person’s extradition is sought.21. In addition to the statutory criteria that must be addressed, you have a residual discretion to decline to issue a section 16 notice.Comment22. The statutory preconditions for issue of a notice under subsection 16(2) of the Extradition Act, and the Department’s advice on whether they have been met is set out in Attachment B.23. The Department advise that:·Zentai is an extraditable person in relation to Hungary·the offence of which Zentai’s extradition is sought is an extradition offence·if Zentai’s conduct that comprised the offence for which extradition is sought had been committed in Australia at the time the request for his extradition was received from Hungary, it would have constituted an extradition offence in relation to Australia·there is no extradition objection in relation to the offence for which Zentai’s extradition is sought by Hungary (the Department advises that health and age are not extradition objections for the purpose of issuing a section 16 notice. Health and age may be issues for your consideration at the section 22 stage)·there are no matters which would form a basis for you to decline to issue a section 16 notice in this matter, and·relevant treaty requirements have been met.The Department considers that the statutory conditions have been met and recommends that you sign a notice under section 16(1) of the Extradition Act. (emphasis added).STATUTORY FRAMEWORK
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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