Disun v The Queen; Nurdin v The Queen [2004] HCATrans 422 (27 October 2004)

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Disun v The Queen; Nurdin v The Queen [2004] HCATrans 422 (27 October 2004)

Last Updated: 5 November 2004

[2004] HCATrans 422

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P23 of 2003

B e t w e e n -

BASTIAN DISUN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
Perth No P24 of 2003

B e t w e e n -

NORBAMES NURDIN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 3.39 PM

Copyright in the High Court of Australia

__________________

MR H.C. QUAIL: May it please your Honours, I appear for the applicants. (instructed by Hylton Quail)

MR J.A. SCHOLZ: May it please your Honours, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

McHUGH J: Yes, Mr Quail.

MR QUAIL: Your Honours, there are two essential questions at the heart of these two joined applications. Firstly, was the Western Australian Court of Criminal Appeal correct in holding that the Extradition Act did not apply to the applicants at the time of their arrest and removal from the Tampa? If the answer to that is yes, then that would be the end of the matter and there would be no need to consider the second question. If the Court of Criminal Appeal were wrong and the Extradition Act did apply to the applicants, then the second question is whether the bypassing of extradition proceedings by the Australian Federal Police and the Commonwealth constituted an abuse of process which required the prosecution of the applicants to be permanently stayed. Both the court below and the District Court did not get to consider the second question because both held that there was no requirement for extradition.

In relation to the first question, your Honours, our principal contention is that section 8 of the Extradition Act, read together with section 15B of the Acts Interpretation Act and the Seas and Submerged Lands Act provided that immediately prior to their removal from the Tampa, the applicants were for the purposes of extradition in a part of Norway. Our argument is contained in our submissions at paragraphs 3.1 through to 3.18 which we rely upon and which I do not intend to go through.

If I could though identify the main point briefly which the application turns on, that is section 8 of the Act which reads that:

For the purposes of the application of this Act in relation to a country (other than Australia):

. . .

(c) a ship or aircraft of, or registered in, the country;

are, except in the case of a colony, territory or protectorate that is an extradition country, each deemed to be part of the country.

Section 8 in its terms does not conflict with either the Seas and Submerged Lands Act or the Acts Interpretation Act which do not in their express terms apply to ships or vessels on the sea. Further, the treaty between Australia and Norway concerning extradition that I have provided in the materials does not in this case operate to read down section 8, as many extradition treaties do in certain situations.

McHUGH J: But your problem is, is it not, that section 8 says “For the purposes of the application of this Act”?

MR QUAIL: Yes. We would say that section 8 is not read down by the treaty between Norway and Australia because that treaty in its terms only applies to people who are charged or convicted. The applicants in this case at the time of their removal from the Tampa were not charged.

McHUGH J: I know, but the problem is, is it not, that the obligation not to exercise criminal jurisdiction to arrest a person who is in another country does not arise under the Extradition Act?

MR QUAIL: Extradition is a prerogative power of the Executive.

McHUGH J: Yes, but the question here is whether the power to arrest was properly used. You have to cut down the operation of that section, have you not?

MR QUAIL: It is not so much the power of arrest that we complain of. Arrest under the Crimes Act, which this one was, no doubt has extraterritorial operation. The question is whether there needed to be an extradition proceeding prior to the removal of the applicants from the Tampa.

McHUGH J: But is that not your problem, that if the Act authorised the arrest on the ship, then that is the end of the matter unless something in the Extradition Act says that that power of arrest cannot be exercised?

MR QUAIL: In our submission, the difficulty is section 8, which provides that for the purposes of the Act, the ship at the relevant time was a part of Norway, so there would need to be a - - -

McHUGH J: But that is only for the purpose of the Extradition Act.

MR QUAIL: That is right.

McHUGH J: But you are in another area here, are you not? Your basic situation is the arrest provision, section 3W of the Crimes Act.

MR QUAIL: There are two aspects to it. We do not quibble that it may be that there can be a legal arrest pursuant to the Crimes Act, but in order to get the person from one jurisdiction to another, we say that they were in Norway and before they could be removed to Australia, there would need to be an extradition application. Because the treaty does not apply, it would have to be an Attorney-General-authorised request pursuant to section 40 of the Act. It is the case that the Act operates to deem the Tampa at the relevant time to be part of Norway. The issue crystallises – if I can take your Honours to page 77 of the application book which contains the essential reasons for decision and the reasons that the court below rejected this argument in the judgment of Justice Anderson, really the relevant paragraph is that commencing at line 30, although the two paragraphs above are also illustrative. Line 30 reads:

In short, it is only if the MV Tampa was a territorial enclave of Norway whilst within Australian territorial waters that there would be any need to have recourse to the Extradition Act or to the Extradition Treaty between Norway and Australia. Whether the ship was or was not a “floating island” of Norway is a question which falls to be answered by reference to the customary rule of international law recognised as part of the common law of Australia and the answer is that there is no rule of international law which is to the effect that persons on board private ships entering Australian territorial waters are immune from local jurisdiction.

There is reference to Chung Chi Cheung and Chow Hung Ching.

I have addressed that issue in my submissions and, as I say, I do not intend to repeat it, your Honours, but that is the error that the court below has fallen into. In positing the sovereignty of Australia in “customary rule of international law recognised as part of the common law of Australia”, the court has, in my submission, fallen into error. In terms of sovereignty it was not necessary to look any further than the Acts Interpretation Act and the Seas and Submerged Lands Act which give the necessary sovereignty to Australia over those waters. As I have said, that sovereignty does not in its terms apply to vessels and it must therefore be read consistently with section 8 of the Extradition Act which specifically provides, unless it is read down by operation of section 11 of the Act in a treaty, that a vessel, a ship, foreign registered is deemed to be part of that country.

McHUGH J: But only for the purposes of the Extradition Act. There is no attempt by the Commonwealth in this case to exercise a power under the Extradition Act. They seek to exercise a power under section 3W of the Crimes Act.

MR QUAIL: A power of arrest but - - -

McHUGH J: A power of arrest.

MR QUAIL: That is right, but following the arrest there needed to be a removal from the Tampa to Australia. That is where we say the problem lies. There ought to have been a request for extradition. Certainly there was no resort to the Extradition Act but there ought to have been a request for extradition.

McHUGH J: But if you can arrest somebody, then arrest itself involves a taking into custody. If the arrest provisions operate, there is no point with an extradition. In the ordinary extradition case the Commonwealth cannot go and arrest somebody in Brazil or anywhere else. They have to get an order under the Extradition Act.

MR QUAIL: That is right, and I guess the argument becomes somewhat circular then. We are saying that in this case, for example, had the applicants been in Norway or Indonesia, they could not have been arrested there and lawfully brought back to Australia. Perhaps I was wrong to suggest that the arrest was not the problem. Really the germane issue that we see is the removal of the two applicants from Norway to Australia without there having been an application for extradition.

The court below has had resort to really – as I say in my submissions, all principles of international law was recognised by the common law some time ago. In terms of sovereignty, those issues are determined, we say, by the Acts Interpretation Act and the Seas and Submerged Lands Act. There is no need to resort to the common law. It is that seduction of the common law and international law principles which have also caused the Court to not recognise what section 8 says. Section 8 is plain in its terms and it is ultimately a seductively simple point.

CALLINAN J: What is the position if a person is arrested in a foreign country and the foreign country takes no steps to resist that arrest, permits it to happen?

MR QUAIL: It may well be that the arrest is lawful from the perspective of Australia, but surely Australia could not recognise then the next step, being that the removal of that person from the sovereign nation without an extradition proceeding.

CALLINAN J: Arrest and removal without any resistance by the foreign country in which the person arrested - - -

MR QUAIL: In my respectful submission, that would be a violation of the territoriality of the other nation, which is the very foundation of extradition.

CALLINAN J: Say the other nation was totally indifferent to it, took no steps at all to prevent it.

MR QUAIL: There might not have been any steps to prevent it but it gets then back to the rights of the particular accused who has been involuntarily taken from another country, where it may be that if the extradition course followed its normal course, although the country took no steps to stop it, he would have been able to raise the normal things which are raised on extradition in the nature of speciality and reciprocity and things like that.

CALLINAN J: But extradition is all based on treaties, is it not?

MR QUAIL: It can be. I have referred in my submission to Oates because it is not always based on treaties. It is the prerogative power. There are plenty of examples of extradition existing beyond the bilateral treaties which Australia has entered into with most other countries. Where there is not a treaty or where an extradition situation falls outside of the treaty obligations, then there still remains the executive power to request extradition on the basis of comity. This is discussed at length in Oates, where they said that the treaty is not definitive. The Extradition Act itself operates beyond the terms of the treaty and that is what we are saying here. This treaty only covered particular situations: charged persons and persons who had been convicted. It did not cover uncharged persons.

Therefore, in line with this Court’s decision in Oates, comity-based extradition still continues to operate by way of a very simple Attorney-General-authorised request to the receiving country who then deal with that request in the normal way that they would, asking for assurances in relation to reciprocity and the like and speciality. It is also the case that there are many bilateral treaties. Indeed, certainly the majority of the bilateral treaties that I have looked at, in fact, cede territoriality in similar circumstances to this, such that there would not have been a need for an extradition proceeding. It just so happens that this treaty, the Australia-Norway treaty, does not cede territoriality in relation to persons who are uncharged. I have made that point in my submissions. Because the treaty does not apply, section 8 still operates to deem the Tampa to be part of Norway for the purposes of extradition.

We say in those circumstances where you are effectively therefore in another country, the applicants are in another country, consistent with the concept of territoriality and extradition generally, there was a requirement for the Attorney-General to request extradition from Norway before removing the two applicants from the boat. That is the nub of our argument. If I fail on that, then there is no point obviously going on to consider the second issue, namely, the issue of whether there was an abuse of process by reason of extradition proceedings being bypassed.

Assuming for the moment, your Honours, that I do get over that initial hurdle and the court below is arguably wrong about the manner in which they treated it, then the second, if you like, limb of our argument in relation to abuse is treated at some length in my submissions. Again, I do not propose to take your Honours through them at any length. I think I said in my submissions that the foundation of permanent stays for this type of abuse had not previously been considered by this Court as it has been considered by the High Court in New Zealand in Hartley and by the House of Lords in Bennett and by your Honour Justice McHugh and also Justice Kirby in Levinge.

Since I wrote my submissions, this Court has decided the case of Truong v The Queen, where there was some peripheral treatment and consideration of the abuse. The majority, your Honour Justice McHugh and also the Chief Justice – I mention it only in passing. Your Honour Justice Callinan and Justice Gummow seemed to adopt the test in Levinge and his Honour Justice Kirby said what he had said in Levinge.

Nevertheless, the point is still one that this Court, in my respectful submission, has not definitively settled and it may be putting aside the other
features of this case which we say ought to attract a grant of special leave. It may be that on that point alone the question of the basis of abuse of process and permanent stays for avoidance of extradition – it may be that this is an appropriate case for the Court to finally decide this issue as the House of Lords and the High Court in New Zealand have done, particularly in relation to the basis of the power being temples of justice and the estoppel view and perhaps also the extent of knowledge that is required on the part of the prosecution before a permanent stay would be entertained.

Your Honours, ultimately this was, we would submit, no technical or venial irregularity. At the time of the applicants’ deliberate removal from the Tampa by the Australian Federal Police, the vessel was effectively under the control of the Australian Defence Force who had boarded the ship by reason of the executive order of the Commonwealth of Australia. The Tampa incident provoked national and international furore and as a consequence the legality of the actions of the Commonwealth and its agents at the time is a matter of considerable and continuing public interest both here and overseas.

For those reasons we say this is an appropriate case for special leave to be granted. The only thing I would add, your Honours, is that it would be an unusual situation where the Commonwealth in one case, Ruddock v Vadarlis, could argue that territoriality was to be determined by reference to the Migration Act. In this case they can argue that territoriality is determined by reference to international and common law with the odd result that a group of people arrive on the same boat into the Australian territorial sea. The applicants for the Commonwealth’s purposes in this case are deemed to be within Australia and therefore there is no requirement for an extradition proceeding. That is the Commonwealth’s argument, yet in Ruddock v Vadarlis it was quite the opposite. They were not within Australia because the Migration Act there said that they had not entered the migration zone, so it would seem to be a somewhat odd result. Those are my submissions.

McHUGH J: Thank you. The Court need not hear you, Mr Scholz.

We are of opinion that the actual decision in this case is not open to doubt. Accordingly, the applications must be dismissed.

AT 3.57 PM THE MATTERS WERE CONCLUDED