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High Court of Australia Transcripts |
Last Updated: 28 November 2013
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P50 of 2013
B e t w e e n -
COMMONWEALTH MINISTER FOR JUSTICE
Appellant
and
ADRIAN ADAMAS
First Respondent
COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES
Second Respondent
FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL
J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 28 NOVEMBER 2013, AT 10.15 AM
Copyright in the High Court of Australia
____________________
MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR S.B. LLOYD, SC and MS H. YOUNAN, for the appellant. (instructed by Australian Government Solicitor)
MR G.R. DONALDSON, SC: May it please the Court, I appear with my learned friend, MR A.K. SHARPE, for the first respondent. (instructed by O’Connor Lawyers)
FRENCH CJ: Yes, Mr Solicitor.
MR GLEESON: Your Honours, before I come to the text of the statute, which I will do almost immediately, could I just situate the context of the appeal. Any system of extradition law has to grapple with the inherent tensions that frequently arise between the enforcement of the bilateral promises of cooperation and the inevitable background that the criminal law may differ between the two countries. I will deal with the facts in detail near the end, but in the present case at its essence, there are three differences between the law of Indonesia and Australia on the material before the Minister.
The first is that the in absentia conviction for this particular offence, serious corruption, was lawful in Indonesia provided there was valid service under the law of Indonesia, including for that purpose, substituted service. The second difference is that the form of appellate review available in Indonesia appears to be less than a full appellate review within our criminal system, and the third difference is that at the stage of sentencing, the sentence appears more severe than the likely sentence in Australia for an offence of serious corruption. They are the three differences.
Against those three differences, we are grappling with how the Extradition Act and the regulation and treaty governing Australia and Indonesia require the Attorney-General or his delegate to act lawfully in deciding whether to exercise a discretion to surrender. The three legal issues which then arise are really these. The first is, was the Full Court correct by majority to find the mandatory relevant consideration which they identified, namely, that the decision-maker must have regard to a counterfactual would Australian criminal law permit this to occur?
The second question also arising from the majority’s judgment is that is there a staged process such that if that mandatory consideration is present the only other factors in the discretion which could point the other way, possibly, are the nature of the offence and the interests of Indonesia. That is, nothing else can be looked at other than the mandatory relevant consideration plus the two other factors that are in this section.
The third issue which arises on the notice of contention is Mr Donaldson’s contention that once the mandatory consideration is present in the three factual circumstances I outlined the other two factors could never reasonably be taken to outweigh prima facie injustice and it would be irrational, unreasonable, bizarre, et cetera within the doctrine of legal unreasonableness to even contemplate what weight those other factors might have.
Your Honours, coming to the statute and the Treaty, if I could ask your Honours to go to the Extradition Act 1988 (Cth) and offer seven points of construction - - -
HAYNE J: Which version do you say we should best be looking at for this purpose, Mr Solicitor? We have as at September 2002 and as at March 2012.
MR GLEESON: There is no relevant difference for this case. I am just ascertaining the date of the decision, but either for this case is sufficient. So, firstly, I was going to ask your Honours to go to section 10 to observe that in absentia convictions are an available case for surrender under the Act, unless something has been done to modify that under the Treaty and that has not occurred in respect to Indonesia.
FRENCH CJ: Does 10(1) have a history which goes back to a situation in which an in absentia conviction might be routinely annulled upon return of the person to the country which is why the term “whether or not . . . a final conviction” is put in?
MR GLEESON: Yes, the history is traced in a number of the cases that are referred in the judgment. In its current form, it applies whether or not the conviction is final, so even if the conviction is final, and there is not an ability per se to have it annulled on return, section 10(1) says it is nevertheless an available case for surrender. So our first observation is that if that is what the Act provides, there is going to be very considerable tension with the majorities’ identification of the mandatory relevant consideration that it will be inevitably unjust because we do not do things that way here.
Could I indicate apart from that fact, namely, that it indicates it is an available case for surrender, a related point is that, as between Australia and Indonesia, the Treaty does not attach any specific proviso requiring there to be a fresh determination on the merits in Indonesia and in that respect in the appeal book your Honours would see at page 430, in paragraph 373, Justice Gummow observed in Wiest that the same approach was taken at that point of time with Germany, namely, there was no attachment of a proviso of re-trial, but one might see at page 348 in Justice Lander’s judgment at paragraph 82 that a proviso is attached in a case of the treaties with the United Mexican States and Argentina, so putting the Act - - -
CRENNAN J: The existence of the proviso in certain treaties explains, I suppose, those facts which are not unfamiliar where a requesting state will give an undertaking in relation to a retrial - a first instance retrial.
MR GLEESON: Exactly. The decision that has been made by the Executive in terms of the entry of this treaty and the regulation is that that proviso will not be required as between Australia and Indonesia. So when one adds that fact to the primary position that in absentia convictions are available cases for surrender, one starts with a premise through which one then can ultimately come to the later questions of discretion.
Your Honours, the one other aspect of this first point of construction is then what else does the Act do in respect to in absentia convictions by assimilating them to the position of a person accused. The point of that in section 10 is that to the extent that an accused would have extra protections over a convicted person in a given case, the person the subject of the in absentia conviction gets those extra protections. Now, that would apply, for instance, where a treaty or a regulation required there to be prima facie or sufficient evidence of the charge in the case of an accused person.
Your Honours see that concept of prima facie or sufficient evidence dealt with in section 11(4) and (5). Again, in the case of Indonesia, the Treaty has not attached such extra conditions for persons who are accused and, accordingly, the present respondent does not receive those extra protections. The net result is under the Act, that the only difference in protection that this respondent gets is probably that under section 19(3)(a), that there needs to be a warrant for arrest, as opposed to (3)(b), there needs to be proof of the conviction. Perhaps it does not alter in his case significantly at all the protections that he gets, but when one puts those three propositions together, in the case of Australia and Indonesia, in absentia convictions are available cases for surrender. There is no proviso for retrial, and there is no proviso for prima facie evidence to be produced at the stage of the decision.
KEANE J: Does section 10(1) give rise to a presumption of innocence in relation to proceedings under the Act?
MR GLEESON: My answer would be no, your Honour. It is there to say that it is an available case for surrender, even if it is a final conviction. What you then get are such protections as the Act or the Treaty would give to an accused person in this process. You then ask what those protections are, and those protections in given treaties might be there has to be the production of prima facie evidence. In other treaties, that is not there. The only extra protection which I have conceded is really little protection for this person is you must see the warrant for their actual arrest. But otherwise, the decision-maker would proceed by saying “This is an available case for surrender. There are no extra requirements in the Treaty. I then turn to the additional questions I must consider”.
Your Honours, the second observation of construction is that under section 22, the decision is given to the Attorney-General, that is, the ultimate surrender determination decision, and it is the Attorney-General who must have regard to the various matters, including the mandatory matters and the discretionary matters in subsection (3). That has two significances in the case. Firstly, as it is given to the Attorney-General as the senior law officer, one would not likely presume the officer, or in this case his delegate, is uninformed about Australian law.
Secondly, it clearly distinguishes this type of decision from that which the Full Federal Court dealt with in Bannister on which your Honour Justice Kiefel sat, which was a decision under sections 34 and 35 where, under the backing of warrants scheme between Australia and New Zealand, the court in the exercise of judicial power determined whether the person ought to be surrendered, and the court in particular had to answer the question under section 34(2) whether the court ultimately was satisfied that by reason of any other matter, it would be unjust et cetera “to surrender the person to New Zealand”.
It is perhaps unsurprising that in that context of the exercise of judicial power when the court determined what was unjust, the court used the judicial method and had regard significantly to Australian criminal law as applied by this Court. One of the fundamental errors of the majority is that they have carried over that proposition from Bannister to say that when the decision is given to an executive officer, the Attorney-General, under section 22, the Attorney-General can only look at Australian criminal law.
Your Honours, the third matter of construction is that section 11(1) provides for modifications by treaty and the relevant modification here, if I could go to the Treaty, is in Article 9(2)(b). Within the Treaty framework that confers a bilateral discretion to surrender where the requested state forms a particular opinion, having regard to certain matters. We submit some importance should be given to the fact that that is a bilateral discretion and the meaning which the court has effectively placed on it in this case is a meaning which would then apply in the reverse circumstance, and the approach of the majority is that if it was an extradition sought from Indonesia to Australia the nature of this bilateral discretion is that if Indonesia thinks that in any substantial circumstance our law provides less favourable protections to the accused than their law, then prima facie Indonesia is entitled to regard it as an unjust extradition and then unless there is something in the nature of the offence or the interests of Australia that outweighs it, Indonesia is entitled to refuse the surrender. That is the logic of the Full Court’s proposition in the context of the bilateral discretion and we submit it illustrates its fallacy.
The fourth matter is, returning to section 22, and the Court dealt with this in Foster, the Attorney-General has to be satisfied of it through a double layer of satisfaction, relevantly satisfied under section 22(e)(iv):
that the circumstances [referred to in Article 9(2)(b)] do not exist –
and removing the negatives it seems to reduce to the Attorney-General must be satisfied that it would not be unjust to effect the surrender having regard to the matters in Article 9(2)(b). Clearly, the Attorney-General must turn his or her mind to the right question. However, we would submit that neither the Act nor the Treaty requires the process of reasoning to be compressed or frozen into the mandatory manner which the majority has identified.
Your Honours, our fifth point concerns the nature of the discretion the Attorney-General then is given and that there are two aspects we would observe about it without straying too far into the language of other disciplines. The first is it is an incommensurable discretion in that the factors that must be weighed may, and often will, pull in different directions.
GAGELER J: What is a discretion?
MR GLEESON: I take the force of your Honour’s question. The Attorney-General has to - - -
GAGELER J: It was just a question.
MR GLEESON: Under section 22(e)(iv) the Attorney-General must be satisfied of one of two things. Firstly, that the circumstances in 9(2)(b) do not exist or if they exist, nevertheless, the surrender should not be refused. Certainly, at that second stage there is a clear discretion. At the first stage, which is where the thrust of my submissions are being addressed, it may be incorrect to describe it as a discretion, it is simply a question, am I satisfied that the surrender of this person would or would not be unjust having regard to the matters I must have regard to. In that sense, it is a mandatory duty to form an opinion on a question of injustice viewed through reference to three mandatory considerations, the first being what is the nature of the offence.
The second being what are the interests of Indonesia in the given case, and the third being what else is there about the circumstances of the particular case that might rationally bear upon a claim of injustice. We would identify the mandatory considerations at that level. No doubt in paying attention to what are the interests of Indonesia the decision-maker will have regard to what is known by the decision-maker which could rationally bear upon the interests of Indonesia. The decision-maker would have regard to any submissions put on that topic which rationally related to the interests of Indonesia.
HAYNE J: What is the statutory or other route for the proposition that the decision-maker must take account of the interests of Indonesia, that is, what is the statutory or other route for requiring the Executive of this country to assess the interests of a friendly foreign power?
MR GLEESON: Section 22(e)(iv). What would otherwise have merely been a discretion for Australia as between us and Indonesia under the Treaty, by the statute it has been made a mandatory duty of the decision-maker to assess that matter as one of three matters. Three matters, firstly, the nature of the offence, perhaps the easiest one, although the nature of the offence will carry with it probably a consideration of the seriousness of the offence and perhaps the seriousness of it viewed through the eyes of Indonesia as well as Australia. In the present case, that raises no difficulties. It is a serious offence through the eyes of both countries. The second factor, what are the interests of Indonesia that bear upon this requested surrender, and in the present case the - - -
HAYNE J: Well, my question is, what is the statutory or other route for permitting or requiring the Executive of this country to make a determination about the interests of another friendly foreign power that go beyond observing the bare fact that the Treaty partner has asked?
MR GLEESON: The route is that section 22(e)(iv) has imposed a fetter on the Attorney-General that the Attorney-General cannot make the decision to surrender, that is from the opening words of 22(3), cannot make the surrender unless – coming down to (e) - if we are in the territory of section 11 where the Act applies subject to a limitation, and then it is the regulation says in clause (5), the Act applies subject to the Treaty, so because of that bridge, that bridge between the Act, the regulation and then into the Treaty, we are then in a situation - this is (e)(ii) - we are in a situation where the Act applies “subject to a limitation” that the surrender “may be refused” in certain circumstances. The “may be” picks up the language of Article 9(2). Then you apply (e)(iv), in such a case you must be positively satisfied “the circumstances do not exist”. What are the circumstances? The circumstances under 9(2) divide up into five categories and 9(2)(b), unless I have missed your Honour’s point, 9(2)(b) says, they are the circumstances.
So by that means we have got down into 9(2)(b). They are the circumstances, and then the definition of the circumstances - and this is where the language is different to the language of the regulation in Foster - that the language of the circumstances has required “the Requested State” to take “into account the nature of the offence and the interests of the Requesting State” in forming the consideration “in the circumstances of the case” of the ultimate value judgment.
FRENCH CJ: There are two alternative conditions, satisfaction of one of which is necessary – one or other of which is necessary under (e)(iv). Is that right?
MR GLEESON: Yes.
FRENCH CJ: The first condition which would satisfy – or satisfaction of which would meet the requirement of (3) is that the circumstances do not exist, as you have said, and the circumstances here – the finding that the circumstances do not exist involve the, if you like, fact/value judgment that extradition of a person would not be “unjust, oppressive or incompatible with humanitarian considerations” under 9(2)(b).
MR GLEESON: Yes.
FRENCH CJ: Alternatively, if those circumstances do exist, there is nevertheless the discretion informing the state of mind that is the other alternate necessary condition but that nevertheless surrender should not be refused.
MR GLEESON: Yes, and to get to the second you presumably have to have - - -
FRENCH CJ: Have to have come to the view that it is - - -
MR GLEESON: Unjust.
FRENCH CJ: Yes.
MR GLEESON: So in the context of this particular clause it is fairly hard to see what the discretion at the end would allow which has already been excluded, but the clause is there to operate across a whole range of circumstances. So the oddity is that the circumstance of which you must be satisfied is in fact whether you have or have not formed a value judgment and then the value judgment you are told under 9(2)(b) is to be formed through a process where there are three things you have to have regard to.
FRENCH CJ: Both conditions involve what I think sometimes have been called fact value complexes in terms of the judgment, do they not?
MR GLEESON: Yes.
HAYNE J: Well, the point I am trying to put to you, Mr Solicitor, is that the reference in 9(2)(b) to the interests of the requesting state is a reference that may – I do not say must – not involve any question of assessment, let alone any complex question of assessment. The Executive of this country does not pass judgment on the interests of a foreign friendly power and that the relevant interests of the requesting state are identified, not only sufficiently, but possibly completely by the fact that the request has been made for the purposes of the implementation of that state’s system of justice. But it may be that we never get to these issues in this case, I do not know, but at least for the moment do not assume that I accept without challenge the notion that the reference to the interests of the requesting state permits, let alone requires, Australia to start passing judgment on what other states should be thinking.
MR GLEESON: I am not sure I would be urging that the inquiry is so open ended as to be falling into your Honour’s category. One way to give specificity to whether this case raises that problem is if I could invite your Honours to go to page 63. The perspective that was taken on the interests of Indonesia was a relatively confined and I would submit available one and it does not raise the difficulties at the end of the scale. On page 63 of the appeal book in attachment B what was before the Minister dealing with the discretion was that 165 identified the nature of the offence and that is not controversial. Paragraph 166 identified the interests of Indonesia as the:
interest in having a person who has been convicted of a very serious corruption offence involving a significant loss to State finances, who committed the offence while present in Indonesian territory, extradited to Indonesia in order to serve the sentence of imprisonment imposed.
Now, that is an identification of the interest which - - -
FRENCH CJ: Well, that is expanded in 167, is it not?
MR GLEESON: In 167 is to say they have a particular reason why the enforcement of their criminal law in relation to corruption is important. The narrow submission I would make is that what is put in 166 and 167 on any view of it would be within an appropriate identification of the interests of the state. It does not take one terribly far beyond the request other than to see it is a request for this person, for this offence, this offence being one which is of great significance to the requesting state.
FRENCH CJ: It goes beyond the request to the extent that it attributes a particular priority to it or significance to it.
MR GLEESON: Yes, and let me be clear, to the extent 167 does that, your Honour, we would submit that within the evaluative judgment that is in 9(2)(b) that is available, that is available to say I do not simply look at this matter completely blandly. Why is it available? Because within the context of what Article 1 of the Treaty provides we come back to the bilateral promise to, in accordance with the Treaty, extradite persons for extraditable offences. This fleshes out why that would be a matter of potential relevance in the discretion.
KIEFEL J: The nature of the offence might require to be taken into account more fully but the interests of the requesting state under Article 9(2)(b) might require only that the interest be evident to the decision-maker. Might that not be so? As Justice Hayne said it may be sufficiently evident by the request itself.
MR GLEESON: Yes, your Honour, the decision-maker still in the end has to form the evaluative - fact value judgment and I had started on this submission on the ground of seeking to put that incommensurables are involved here as in the nature of the offence and that interest of Indonesia, even if, just at a level of evidence, would tend in one direction.
KIEFEL J: Or acknowledgement, acknowledging that they exist.
MR GLEESON: They would tend in one direction. Prima facie, we should be performing our bilateral promise. Why? Because the whole purpose of the Treaty is to encourage bilateral co-operation where, in appropriate cases, in turn Indonesia will surrender people to Australia. So we have those matters. The circumstances of the case may pull in a different direction or they may pull in various directions within themselves.
Part of what is given to the Minister, that is why it is an executive judgment, not one given to the Court perhaps, is how am I to pull together factors which might tend in different directions. Clearly enough in a case where the decision-maker says “I am going to give prominence to the personal circumstances of the person and refuse the surrender”, that will be to, in that sense, reject the request in the interest of Indonesia.
KIEFEL J: Yes, I take what you mean to be that you read 9(2)(b) to say that whilst there are interests, nevertheless considerations may take you in the other direction so that the interests, whilst they are acknowledged to exist, are not sufficient.
MR GLEESON: May or may not be sufficient, and that is the question the decision-maker is grappling with, is notwithstanding there are three considerations which may be pulling in different directions, what am I to ultimately do in terms of forming an assessment of injustice.
KIEFEL J: But as Justice Hayne said, that would not require any value judgment of the interests of the requesting state. There is no balancing as between the interests and the matters which follow considers that in Article 9(2)(b).
MR GLEESON: Your Honour, it may be it is in the ultimate evaluation under 9(2)(b) of injustice, but - - -
KIEFEL J: Not if the interests of the requesting state in 9(2)(b) are regarded as static.
CRENNAN J: You see, “taking into account” may be read as “whilst not excluding”. I think that is the point being put to you.
MR GLEESON: Yes. But even read in that form, what I am seeking to submit is, even to say you are not to exclude it is saying they are to be part of the framework that you are bringing to account in forming an ultimate judgment would this be unjust by reference to the concluding words of the article? In that sense, you must to some extent be saying “How am I in the ultimate striking of a balance treating the interest of the requesting state, the desire to have the person back, et cetera, with the other matters that are before me?” There cannot help but be evaluation in that process.
GAGELER J: Well, you could have a relatively trivial offence on its face; a very old person in frail health, possibly, whose extradition to face that relatively trivial offence would seem to be oppressive, but the interests of the requesting state fully understood may put that apparent oppression in a different context.
MR GLEESON: We would submit that is an available approach in a given case.
KIEFEL J: In any event, this issue probably does not loom largest in this matter, does it?
MR GLEESON: No, because in the way the majority dealt with it, they said you have not yet lawfully got to the point where you can even bring those matters into the frame because what you had to do was to go through this structured process of reasoning whereby you labelled this prima facie unjust because Australia would never permit it to occur, and then in a final exercise, you looked at whether something could outweigh it. One of our criticisms, of course, is that that form of structuring of the exercise under 9(2)(b) just is not there in the language. Your Honours, I put the proposition which had provoked some questioning, so the next one will probably do worse, but we are dealing with incommensurables - - -
CRENNAN J: You are a pessimist, Mr Gleeson.
HAYNE J: Either that or an optimist.
MR GLEESON: I will stick my head out, your Honour, when your Honour picks up the outline to prepare a bullet. The next is that we are in a field of bounded rationality – I hope this one does not do too badly. We are in a field of bounded rationality and I would submit Foster is an example of bounded rationality where, as Foster tells us, we are focusing on whether the surrender of the person for an offence would be unjust, and the surrender requires a - not just at what has happened, but what is and is likely to happen if the person is returned.
Now, in Foster, the claim which was rejected by the Court was the decision-maker had to engage in a further level of inquiry as to how the sentencing practices of the United Kingdom might play out and the Court said that was not necessary by way of a mandatory consideration. In Foster, the Court observed that reasonable differences may often be expected in these areas. The reason that is of some significance here is that it is not possible, at least in this case, to know with absolute certainty what will occur if the surrender is effected, and the manner in which attachment B was structured for the decision-maker’s decision was here is the best information we can provide you as to what is likely to occur in Indonesia if the surrender is effected. That is particularly important in terms of what will occur by way of appeal rights and what will occur by way of any reduction of the sentence.
CRENNAN J: What does attachment B explain exactly in relation to the appeal? I have to confess I did not quite follow how this person was caught up in an appeal by a co-accused.
MR GLEESON: What attachment B said was that it was a function of the original criminal trial having occurred against two co-defendants, each of them not being present, the other co-defendant then appeared and exercised an appeal right and the appeal went forward, as it were, by reference to both people who had been convicted in the first instance. So the decision on the appeal was appeals dismissed. So that is one aspect of the appeal, but the relevant issue for the respondent is whether the PK review will be available to him and what significance it might bear.
CRENNAN J: Is 221 on page 73 of attachment B all that is said about the right of appeal separate from the PK process?
MR GLEESON: The answer is no, so I will try and find out more directly for your Honour. The full information from Indonesia was provided at pages 220 and following and the topic is dealt with at the bottom of 224 and over to 225. So it is really 225 is the answer to your Honour’s question. That the opportunity to appeal was advertised in a newspaper and was otherwise placed on the boards of the government offices. The appeal was applied for by the lawyer for the other party and then it is - what I was referring to is really the next bullet point, your Honour:
On the basis that Decision of Central Jakarta District Court was imposed in relation to a collective act between Mr Ariawan and Mr Bambang Sutrisno (as unity) then any appeal from that decision is taken to be an appeal on behalf of both defendants. Any decision on that appeal also applied to both defendants.
That is the reason under law of Indonesia.
FRENCH CJ: A kind of automatic joinder is it?
MR GLEESON: Yes, in this particular case. So the proposition I was putting is that the future cannot be known with certainty but what is appropriate to comply with legality is for the Minister to be given such information as can be available about what is likely to occur in respect to appeal rights, if the surrender is effected. So if I could take your Honours to that material? It commences on page 73 at paragraph 222. Paragraph 223 refers to the relevant article, “article 263 of the Indonesian Criminal Procedure Code” where you:
may submit a request to the Supreme Court for a reconsideration of a judgment which has become final and binding.
The text of article 263 is found on page 226 of the appeal book and it is summarised in this document then at paragraph 225, the Supreme Court being the highest court in Indonesia dealing with criminal matters.
So you can make a request if you assert one of three grounds are present and then the procedure in 226 and 227 is that it is considered first by the District Court. In 227 they provide “a recommendation to the Supreme Court”. It will “be considered by the Supreme Court”, details are provided, and then 228 are the options for the Supreme Court. If the application is accepted, they may annul the court decision, they may acquit or impose a lighter penalty.
So then one moves to the question of practice and the advice from the embassy is that while in general the rules do not refer to witnesses, parties may seek permission from the court to present witnesses at the initial judicial review that occurred in relation to the applications of certain persons. Generally prosecutors must agree to the request. The likelihood is the court would allow witnesses to testify at the hearing. Then over the page, there is a discussion of whether in the manner the PK is likely to play out it would be regarded as complying with fair trial rights under Article 14 of the ICCPR, and 239 concludes it would be open to you to conclude in the light of this that it would not be unjust et cetera.
I go to that for two reasons. Firstly, Mr Donaldson says and will say again repeatedly that this is a person who has no right of appeal. That needs to be qualified by reference to this material, clearly enough. That is an important point on the notice of contention. Secondly, on the legal point, the decision-maker is dealing with a circumstance where what will occur on surrender can only be known as best inquiries reveal that this is what the inquiries reveal and that bears upon what is necessary for a lawful decision.
Your Honours, our next proposition concerned Article 9(2)(b) and it was that – and here we depart from the majority of the Full Court - the decision-maker is ultimately coming to a single value judgment as to whether surrender for the nominated offence would result in relevant injustice, et cetera. That is the single judgment and in making that judgment the decision-maker must appropriately have regard to the three mandatory considerations.
The decision-maker is not, we submit, required to proceed in stages. You are not required to first find whether the circumstances of the case are unjust. You are not required to reduce the circumstances of the case to compliance with Australian criminal law. Your focus must always be on the surrender and on the ultimate value judgment that is formed. In the light of that submission, could I take your Honours to Foster and to put our submissions on how it sits with our case, Foster v Minister for Customs and Justice.
HAYNE J: Just before you do that and staying for a moment with 9(2)(b), the words are:
considers that, in the circumstances of the case . . . the extradition of that person would be unjust –
et cetera. That entails in the circumstances of this case, does it not, that extradition, blowing the expression out, to be dealt with in accordance with the Indonesian justice system as it stands would be unjust, that is, to be dealt with in circumstances where he has been convicted, he has been sentenced, he has whatever rights or opportunities of review are available, that is, the whole of the several facts which are recorded in attachment B. Is that the relevant question?
MR GLEESON: Yes.
HAYNE J: Sorry, I interrupted you, you were taking us to - - -
MR GLEESON: To Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442. The judgment of Chief Justice Gleeson and Justice McHugh does not bear upon today’s debate. It established that it was not a jurisdictional error to fail to conduct further, more detailed inquiries into the sentencing practice of the United Kingdom. That is apparent, for example, at paragraphs 21 to 23. In the judgment of your Honour Justice Hayne and Justice Gaudron - that commences at paragraph 32 with agreement and then paragraph 35, we would submit, reflects agreement.
Then the judgment goes on to refer to some other aspects of the matter, and then there is an analysis of the relevant provisions. If the Court goes to paragraph 37, we see the relevant regulation applying the Act to the United Kingdom, and we immediately see similarities and differences to the present case; a similarity in that the decision is given to the Attorney-General, not to the court; a difference in that the structure of the regulation is something must be present, either triviality, lack of good faith or other sufficient cause; and then you have regard to all the circumstances and then you form the final decision on injustice. Even then, the language is slightly different, “unjust or oppressive or too severe a punishment” as opposed to “unjust, oppressive or incompatible with humanitarian considerations”.
Under this regulation, the nature of the offence and the circumstances of the case are not expressly brought into the exercise before the decision-maker. At 38, there is an agreement of there being a “double layer of satisfaction”, and the judgment says over the page:
Section 22(3)(e) does not depend directly upon any conclusion about some question of fact or law. The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ –
and the question is ultimately –
Is the Minister satisfied that she has not reached a particular value judgment?
That, we would submit, is correct, and it is an indication that the decision does not depend directly on conclusions about fact or law. It does not depend directly on, for example, Australian criminal law or international law. It is a value judgment on which reasonable minds may differ. At 40 the judgment turns to the particular question in the case, and it was essentially whether “Would the fact that I might be given a light, not a heavy, penalty be a reason so as to make it unjust to surrender me?” and the ultimate answer is “no”. In 41, the judgment says:
for most purposes . . . “unjust or oppressive or too severe a punishment” –
should be regarded as –
a single description of the relevant criterion . . . rather than as three distinctly different criteria –
We would embrace that. And at the end of that paragraph the judgment turns to –
what is the standard which is embodied in these words and what is the subject of the application –
GAGELER J: Can I just go back? When you say you would embrace that, do you mean you would also apply it to Article 9(2)(b)?
MR GLEESON: Yes. One can, as some of the earlier cases have done – I think Lord Diplock – attempt to tease out what is different about injustice and oppression, but ultimately they overlap and they inform each other, and it is a single judgment by reference to that composite expression.
CRENNAN J: I think Justice Barker took the opposite approach, did he not?
MR GLEESON: Yes. He has said injustice equals non-compliance with Australian criminal law, game over. Now, at 42 the judgment - - -
CRENNAN J: But also took the view there was not a single description involved in relation to Article 9(2)(b).
MR GLEESON: Yes, that is correct. Paragraph 42 puts a proposition perhaps similar to what your Honour Justice Hayne put to me a little earlier about identifying what you are focusing on. It is the surrender and what will follow from that under the law of the requesting state. Then 43 which is the paragraph which has driven the majority’s judgment is the question of standard. The paragraph says:
what is the standard which the words “unjust or oppressive or too severe a punishment” set? Unjust or oppressive by what measure?
The answer must be that the value judgment must be made according to Australian standards. Footnote (27) is La Forest in the 1991 edition that I will come to in one moment -
not the standards of any other country. It requires consideration of how the offence . . . would be viewed in this country. Is surrender of the eligible person for that offence . . . unjust or oppressive or too severe –
and then there is a prescient warning that there might be more to say on that topic. Now, that has been taken by the majority as meaning that when you translate that to Article 9(2)(b) injustice equals non-compliance – let us call it substantial non-compliance with Australian criminal law – anything which will occur in the requesting state which is substantially less generous to the person than would occur under Australian criminal law must be regarded as unjust. Once that has occurred then, unless there is something in the nature of the offence or the interests of Indonesia that can outweigh it in some manner that is not clearly identified, you must refuse surrender.
Now, that, we submit, is a misreading of the regulation and I put, with respect, a misreading of what follows from paragraph 43. Can I just go to the critical paragraphs where that is what the majority has done? Mr Donaldson says we have unfairly dealt with them, but Justice Barker on pages 439 to 441, at paragraph 402 he sets up the question what is the decision-making process by which in absentia conviction must be viewed? Is it international obligations “subjectively or impressionistically” or is it:
Australian standards. In my view, for the reasons set out above, the circumstance . . . must be considered by reference to Australian standards.
The analysis that he is referring to above is the analysis based upon his reading - - -
HAYNE J: I am lost, Mr Solicitor, where are you?
KIEFEL J: Yes, so am I.
MR GLEESON: Paragraph 402 of the judgment, on the top of page 109 of the judgment:
In my view, for the reasons set out above, the circumstance created by s 22(3) and Art 9(2)(b) must be considered by reference to Australian standards. . . . it is necessary, in my view, for the decision-maker to regard the circumstances in which the in absentia conviction was recorded . . . and then to assess, by reference to Australian standards, whether the conviction so secured might be said to be unfair.
So stage one of the inquiry is look at the conviction, apply Australian standards which is Australian criminal law.
HAYNE J: Is it explained why you look at conviction?
MR GLEESON: His Honour fleshes it out in paragraphs 404 to 406 as, in fact, there are three possibilities. First, you look at conviction. If you are satisfied this conviction could not occur under Australian criminal law then, picking up about five lines from the end of the paragraph:
on the face of it the in absentia conviction in the Requesting State would be unfair by Australian standards because it could not occur in Australia in such circumstances.
Then, the next sentence is important:
It would be irrelevant in such circumstances that the authorities in the Requesting State may have conducted reasonable steps to personally serve the requested person –
So, at the stage of conviction the only question you ask is a counterfactual. If it had happened or if someone had attempted this in Australia, would our criminal law have permitted it? You do not ask any other question. You do not ask whether it was lawful in Indonesia. You do not ask about how other standards might apply to it.
CRENNAN J: I think the point is made even more clearly in paragraphs 415 and 416 to be found at page 447 where his Honour is venturing criticisms of attachment B. There is a reference to Australian standards in line 2 of paragraph 415 in relation to the conviction in absentia. Then at 416 his Honour describes what is said in attachment B:
it appears that the trial was conducted according to law in Indonesia.
Then, his Honour says:
This statement again leaves unaddressed the question of fairness according to law in Australia.
MR GLEESON: Yes, that is the - - -
CRENNAN J: That is the nub of it, I think.
MR GLEESON: That is the nub of it.
BELL J: The same slide is apparent at 357 on appeal book 425.
MR GLEESON: Yes. Indeed, 357 takes it a step further because his Honour is correctly thinking through, well, what will be the consequence of my argument for when you look at the two residual factors that the nature of the offence and the circumstances of the case and he says, well, probably based on how I read Foster they will have to simply be looked at through Australian eyes as well. That creates a very difficult issue with how the interests of Indonesia, the matter that your Honour took up with me, are to be looked at solely through Australian eyes.
Could I just dwell for one moment though, your Honour Justice Hayne asked me a question about is it just conviction that the analysis focuses on. Paragraph 404 says you do that exercise for conviction. Paragraphs 405 and 406 then roll the exercise forward and say, well, even if you could conclude that the conviction was not incompatible with Australian standards, you then look to the stage of appeal rights and if they are any less generous to the person than Australian law, conclude unjust, and then finally 406 at the stage of sentence, if the sentence is excessive by our standards, conclude unjust.
So on this exercise you look forward to what will occur, and that is fine, but you take each stage of it and you say, could that occur in Australia? If we would not permit that to occur, this is an unjust surrender and then all that is left is, is there something in the nature of the offence or the interest of the case which somehow allows me to mollify my concern that this is unjust.
HAYNE J: But can the proposition be stated more narrowly than any conviction otherwise than in accordance with Australian like criminal procedure entails that the person may not be surrendered?
MR GLEESON: Subject only to the proviso, is there something in the nature of the offence or the interests of Indonesia that outweighs it but otherwise it is that and it is conviction plus it is appeal rights plus it is sentence. And so in a case, for instance, where we might have a particular sentence which happens to be a very severe sentence, in fact may be more severe than Indonesia, when you flip the coin, Indonesia under the Treaty, according to this logic says, well, that is unjust through our eyes, no surrender. So it is essentially what your Honour has put, subject to the proviso of recognised for fairness. It is essentially our standard of criminal law and practice must be met by the requesting state, otherwise, subject to the proviso, there shall be no surrender.
HAYNE J: But the argument at 402, page 439, seems to begin from the premise that attachment B is formulated on an understanding that in absentia conviction is a factor relevant. There is no doubt attachment B refers to the fact of conviction, the fact of how it was obtained, full stop. Yes, of course it does because that is part of the circumstance, but what is the reasoning which is identified here which says that it is relevant to examine whether in absentia conviction could be obtained under Australian law?
MR GLEESON: Well, the reasoning is – and I will go back to it - is their Honours’ understanding of Foster and Bannister. That is the short answer. So can I show that? It commences at paragraph 323, page 411, that asks the question, and then 324 identifies the circumstances from the Treaty. Then 325 is where it starts. His Honour observes a difference between this Treaty and the section of the Act in Bannister and the regulation in Foster - one difference, one of many – and then says:
If the words, “while also taking into account the nature of the offence and the interests of the Requesting State” did not appear in Art 9(2)(b), the Treaty provision would in substance be identical with those other provisions and, in my opinion, would be subject to the principles enunciated in Bannister and Foster, to which I turn below.
That is the critical step, that we are dealing with a treaty which is identical to the instruments in Bannister and Foster save for the injection of those words. That is step one of the reasoning and then step two, your Honours then see in 326 –
The inclusion of the words . . . changes the nature of the value judgment . . . This is because the nature of the offence and the interests of the Requesting State must be taken into account in the process. The way in which Art 9(2)(b) is drafted suggests that, while “the circumstances of the case” may be considered the primary factor to be regarded –
So here we see the primacy notion; they come first –
the nature of the offence and the interests of the Requesting State must also be taken into account before the decision-maker makes a final value judgment –
In doing so, you must engage in a balancing exercise –
while the starting point is “the circumstances of the case” –
which may suggest it is unjust –
it cannot be said that any one factor has been accorded pre-eminence - - -
CRENNAN J: So do Australian standards have a role to play in the value judgment - - -
MR GLEESON: Yes.
CRENNAN J: If yes, what content would you give to that expression?
MR GLEESON: We accept that in the ultimate value judgment, would this be unjust, the decision-maker looks at that through the eyes of Australia. However, in doing so, the decision-maker may have regard to a range of materials which inform that ultimate value judgment, and the range of materials can include, firstly, whether there has been compliance with the law of the requesting state. They may include, secondly, Australian law on the topic. They may include, thirdly, any guidance from international standards.
GAGELER J: Well, the Australian decision-maker will always look at the question through Australian eyes because the decision-maker is Australian. But the real question is whether the standard set out in Article 9(2)(b) – that is, that the extradition of the person would be “unjust, oppressive or incompatible with humanitarian considerations” – is a single standard applicable alike to both parties to the bilateral treaty, or whether you are to read that standard as having the words attach something like “according to the standards of the requested State”.
MR GLEESON: My answer would be you do not read in those words. The words in the Treaty have a single meaning, and they must have the same meaning in international law as between the nations. The Australian decision-maker is required to apply his or her mind to that question, and ultimately we will be trying conscientiously to answer that question in the same way as it would be answered in a reverse situation. I was just seeking to go to that part of the judgment to show where Bannister and Foster are treated as the linchpin, and one sees that then in paragraph 328, about halfway down:
while it may at first blush appear to the decision-maker that extradition would be unjust – because in a case such as the present the person to be extradited was convicted of the extradition offence in the Requesting State in absentia – when account is taken of the nature of the offence and the interests of the Requesting State the decision-maker make a different value judgment –
One already sees in there what has been discerned from Foster and Bannister is you can only look at the circumstances of the case through the prism of Australian law. That is repeated in many places – 331. In 332 Bannister and Foster are treated as the linchpins to this view, and indeed, at the end of 332 it is put very strongly:
The inclusion in Art 9(2)(b) of the factors of the nature of the offence and the interests of the Requesting State do not alter the force of the analysis in Bannister and Foster that, when the question of any injustice arising from the circumstances is assessed, it must be assessed from an Australian perspective against Australian standards, not by any other perspective or standards that do not form part of Australian law.
There it is put that, in effect, that is the view that the Treaty has the extra words in it that your Honour put to me. So then Bannister is discussed and in 338 a proposition is taken from Bannister which we would submit completely mistakes the context of Bannister. Then Foster is referred to, and at 345 it is paragraph 43 of the judgment of Foster which is treated as the purple passage which requires the frame to be narrowed to Australian criminal law.
Interestingly at 346, his Honour has gone back to footnote 27 of paragraph 43 of Foster - I referred to this earlier - and we have provided your Honours this morning with the materials that are in paragraph 346 which is the 1991 edition of La Forest, the 1974 decision in Ex parte Bennett which in turn cites the 1961 edition of La Forest. When that exercise and excavation is carried out - - -
CRENNAN J: That is very.....Mr Gleeson.
MR GLEESON: You do not get to the conclusion the majority reached – what you get from it is in the context of the Canadian Fugitive Offenders Act, which was a Commonwealth model of extradition, a little bit more similar to the Foster model. There are statements that if you are looking at the nature of the offence, seriousness of the offence is a factor to look at and you will bring to bear in looking at seriousness primarily your own perspective. You do not get from that the whole exercise collapses into Australian criminal law and practice. So that is the error we contend for.
Now, Mr Donaldson will tell your Honours that Justice McKerracher is free of that error and that his judgment is to be commended. Could I take your Honours to that? It is at pages 357 to 359. At 127, he agrees with the reasons of Justice Barker and therefore adopts the analysis. At 131 he accepts that attachment B identified that:
“convictions in a person’s absence are ‘rare’ in Australia –
true, rare as a fact, true -
and generally only occur for summary offences or where the defendant has deliberately absented himself [or herself] from proceedings after having appeared initially” -
true -
It may be that such rarity would, in any event, be understood by the Minister –
true. So at that point it is as if he says, well, attachment B so far does not invite jurisdictional error. Then he says there is a problem -
this . . . is but one aspect of the totality of the relevant considerations . . . It is the cumulative “circumstances of the case” that fall for consideration, not the conviction in absentia alone.
Then what does he mean by that? What this paragraph does not say is that it would be unheard of in our law and, therefore, unjust for - and then he rolls together the three circumstances I mentioned this morning – trial in absence, secondly, a heavy penalty and, thirdly, appeal rights which are less than Australian rights. He says:
These matters in totality must be included when considering “the circumstances of the case” –
Coming down to 135, what the document needed to do was to say in a paragraph, you must put those three matters together. Those three matters would be regarded as abhorrent in Australia. There is nothing else in the circumstances of the case that you can or should look at. Prima facie this is unjust and must not occur. Is there something left in the other two factors which could outweigh this manifest injustice? So that, I submit, has the exact approach of Justice Barker all through it.
To the extent there is a difference between those two judgments, the real difference and the only one we could find is back in Justice Barker at page 442 at paragraph 408. Justice Barker in the parenthetical comment seems to accept that the differences in sentence were adequately exposed in attachment B. Justice McKerracher thinks not. Your Honours, for those reasons, we would submit, that the majority erred in identifying the so-called mandatory relevant consideration.
I just wanted to conclude by looking at the structure of attachment B and in doing so deal with the notice of contention, if that is convenient to do it immediately. The question in the notice of contention is whether it was simply not within the range of legal reasonableness to form a view that the surrender should not be refused. An important thing about the structure of attachment B is that it is providing a response to the detailed submissions of the respondent. So the analysis of the Act and the Treaty is done through the text of the Act and Treaty but also having regard to what was contended for by the respondent.
Those contentions, your Honours may have seen in the appeal book, involve some expert opinions of a Dr Boas, and the structure of attachment B is to inform the Minister fully on each of the relevant contentions. If your Honours could go first to page 39, paragraphs 33 and following were dealing with an argument under a particular claim of the respondent that is now not pressed, but in that context at paragraphs 36 and following the document addresses in some details the claim of the respondent that he did not receive notice of the trial, so as one of the ultimate circumstances of the case, that claim or contention is squarely addressed in these documents.
Paragraph 45 explains that the service was effected in accordance with the relevant articles in the Indonesian Criminal Procedure Code which permits a form of substituted service that we would not recognise here, which is that if you cannot be found at your address or your most recent place of residence, the summons is to be conveyed to the village head whose jurisdiction includes your residence. That is the form of service which was effected and was lawful under the law of Indonesia and the facts of that are explained in paragraph 46. The following paragraphs 47 to 54 explain each of the steps which the court took in Indonesia to attempt to notify the respondent of the existence of the trial, and while this has proceeded differently to how we would proceed, one can see from a review of it that this was a court which made repeated attempts as best it could, within its system, to ensure that the trial was notified.
Your Honours, in paragraph 58 there is a point which is conveyed to the decision-maker which provides some context of the fact that the respondent says, but I arrived in Perth and I notified my address at the consulate and accordingly I was not a person who was taking any steps to avoid the possibility of trial in Indonesia. What is recorded here, near the end of paragraph 58 is that, firstly, information about his residence in Perth “was not conveyed to authorities in Jakarta”, so they did not know he was there, but secondly, the Immigration Office in Indonesia ascertained that his passport F862398 was not used by him to leave Indonesia.
Now, that just explains that it was not apparent to the Indonesian authorities who were prosecuting this man, or the courts, that he had left Indonesia, and the underlying material that explains that proposition is found at page 224 at about lines 20 to 25 where it was open to draw an inference that he had departed from Indonesia not using his passport. Returning to the main - - -
CRENNAN J: Are there two passports? If you look at line 45 or thereabouts, the last Indonesian passport number, it just differs by one digit, does it not?
MR GLEESON: That was a typographical error, but what that line establishes, your Honour, is that the last time he visited Australia – much after the original events – he did come in upon his correct passport. But when he came to Australia in 1999, it appears from this material he did not use his passport to enter Australia, which explains something about the circumstances of what then played out.
Returning to attachment B at page 45, 71 recognises that there was valid substituted service under the law of Indonesia. At the end of 72, no additional steps were required under the law of Indonesia. Paragraph 73, perhaps difficult to accept his assertion he had no knowledge of these events, and some reasons are given for that. Then the conclusion of this section is 79 and 80. If I said he did not use his passport to enter Australia, what I meant was he did not use it to leave Indonesia, which is why Indonesia did not know about him. Paragraphs 79 and 80 are the conclusion that the service was valid under the law of Indonesia. That fact in 79 and 80 on the majority’s analysis cannot be looked at by the decision-maker. It is just irrelevant.
The next part of the document that I would go to is, leaping over then to page 63, the issues under 9(2)(b) are addressed and I have dealt with what is on that page. There is some discussion of the legal principles over the page, and then at 173 – and this explains the structure of the document – the circumstances of the case are going to be analysed by reference to five headings which reflect the five main claims he is making, and we see at 174.1, Dr Boas’ claim in particular that “he has not received a fair trial”.
Under those five headings, the first one is his personal circumstances and there is nothing there of ultimate significance. Then the in absentia conviction is addressed between 66 all the way through to 79, and it is fairly clear the document has in a comprehensive fashion sought to address the various contentions.
One thing that is interesting – and this is in paragraph 181, and it is borne out by Dr Boas’ report – is the claim being made was you ought to look at the international standards of the ICCPR, and you ought to look at Australia’s fair trial standards under Dietrich and the like in order to classify this particular in absentia conviction as unjust. So the way the case was being put by the respondent, he was embracing a broader view of the exercise than the one which the majority has ultimately accepted.
So then the conviction in absentia is addressed on 67. Paragraph 189 is the important finding that for this particular offence it was permitted under Indonesian law but not generally. Paragraph 191 is important because the Department accurately states the position in relation to what inferences might be drawn about the respondent’s conduct. There was not information to positively establish he chose to deliberately absent himself, and clearly that is there to trigger the point that this would not be within the exceptional category in Australia where proceedings may continue in a person’s absence.
This is not a case of deliberate absence, but what you might draw inferences from a series of facts that are mentioned that, 193, he may have had some knowledge “of at least the law enforcement interest in him”. So it is put on that level. There is then some discussion of fair trial jurisprudence. Then at 197, Australian law is accurately stated. The majority, with respect, was quite wrong to regard 197 as not adequately recording Australian law.
There is then some discussion about unfair trial and the conclusion in 202 is that, at least according to the law of Indonesia, this was done correctly and in that sense might be regarded as fair. Then his contention is addressed but what would happen if he was being extradited to New Zealand. If your Honours see at 204, 204 links back to 197:
While the case law concerning extradition between Australia and New Zealand as cited by Ariawan above is not directly applicable in the circumstances of his case, it is open to you to take into account Australian judicial consideration of circumstances in which a trial may be said to be unjust or unfair, and where extradition to New Zealand may have been refused on such grounds.
So that is correctly recognising that the Australian position is something you might take into account. Pages 72 to 73 is a discussion of the relevance of comity. Then 221 is an important sub-conclusion. Paragraph 221 is bringing all this together. This man:
claims that he was unaware of the criminal proceedings in Indonesia, has been finally convicted in absentia and is possibly without any right of appeal -
so his contention is being addressed –
His claims are relevant considerations –
for you. So there it is, it is before the decision-maker, this is relevant -
for the reasons set out above and taking into account [certain advice] . . . the fact that [he] . . . will have a right to seek a review of his conviction and sentence (which is discussed in further detail below), together with the need to balance –
the other matters, means it is open to you to reach a particular conclusion. Now, what Justice Lander in dissent has effectively said is that 221 would reflect an available process of decision-making under the Act and it also would not reflect, we say, legal unreasonableness. It indicates a range of matters being brought into the frame. Paragraph 222 and following I have dealt with. That is the detailed analysis of his rights of appeal. Then 76, detailed analysis of the sentence, and 242 explains the possibilities for his sentence to be reduced. There are a couple of possibilities. The first is if his appeal succeeds he may have his sentence reduced - - -
CRENNAN J: When you say “appeal”, do you mean the PK process?
MR GLEESON: If the PK succeeds, he may either have no sentence or he may be reduced to the alternative sentence which is 20 years but beyond that even if he stays with the current sentence he may be reduced to a fixed term of 20 years and he may be the subject of further remissions. Your Honours, the actual sentence provisions are at page 89 for this offence.
Then, in 245 there is a discussion that sentencing standards may be different between different countries and Australia will not always be the least severe sentencing country. Then on 79 the conclusions are at 255 and 256 and in terms of legal unreasonableness we would submit that 256 identifies a range of circumstances which could pull in different directions and in respect of which a decision to surrender would not be infected by the unreasonableness identified by the Court in the Minister v Li. If your Honours please, those are our submissions.
FRENCH CJ: This may be an oversimplification but to boil it down to relevant jurisdictional fact is the Minister’s state of mind informed by a correct construction of the relevant articles and provisions of the Act.
MR GLEESON: Yes. May it please the Court.
FRENCH CJ: Yes, thank you. Yes, Mr Donaldson.
MR DONALDSON: Your Honours have our outline?
FRENCH CJ: Yes, thank you.
MR DONALDSON: Your Honours, could I deal first with initial construction arising in respect of section 23. My learned friend has already taken your Honours to this but if I could deal with the question which the Chief Justice asked in relation to 22(3)(e)(iv). So, your Honours are familiar with the scheme of this particular provision and (e) is engaged because here section 11 applies in relation to the extradition country and there is a limitation of conditional qualification that is effective and that is the Treaty provision brought in via the regulations. So we are in the territory of (e). Where because of section 11 the Act applies in relation to an extradition of countries subject to a limitation:
surrender of the person in relation to the offence shall be refused -
or may be refused in certain circumstances. They are then set out:
the Attorney-General is satisfied –
we are here in (iv). I will explain that. It is because it is that circumstances under Article 9(2)(b) are circumstances in which extradition “may be refused” as opposed to “shall be refused”. The circumstances here are either that the circumstances do not exist, so a positive finding that the circumstances in the limitation do not exist or that they do exist but nevertheless surrender of the person should not be refused.
That, in most instances, works in rather a confusing way, as was explained in Foster. My friend has taken you to Foster already but if I could ask your Honours to open Foster again[2000] HCA 38; , (2000) 200 CLR 442? If your Honours could turn to page 447 in the joint judgment of the Chief Justice and Justice McHugh, your Honours will see at the top of that page that their Honours refer to - and the phrase my friend used - the “double layer of satisfaction involved in s 22(3)(e) and reg 7”. Pausing there, regulation 7 was the relevant limitation in that case. And if your Honours could go down half a dozen lines to the sentence commencing “Therefore”, so:
Therefore, in order to surrender a person the Attorney-General (or Minister) must be satisfied that he or she is not satisfied that it would be unjust, oppressive or too severe a punishment.
In that case, the provision of unjust, oppressive or too severe a punishment was, of course, the provision in regulation 7. So that is what is referred to, as it were, as the double layer of satisfaction, that is, having to be satisfied that they are not satisfied of something. Could I simply say, without taking your Honours to it, that that particular explanation can also be found in the joint judgment of Justice Gaudron and your Honour Justice Hayne at page 456 at the bottom of paragraph 37 and paragraph 38? So it requires, as it were, positive satisfaction of not being satisfied that the conditions provided for in the limitation exist.
In this case, of course, that is relevantly Article 9(2)(b) because it is a limitation brought in through section 11. If I could ask your Honours to have 9(2) or the Treaty before your Honours, your Honours will see that 9(2) commences with “Extradition may be refused”, that is why, your Honours, this is a matter in terms of section 22(3)(e)(ii) and (iv) and not 22(3)(e)(i) and (iii), if I can put it that way. So this is where extradition may be refused, so here the circumstances of this matter engage (e)(ii) and (e)(iv).
Now, your Honours, if I can say, with respect, there is a degree of confusion about this provision and how it has been portrayed. Your Honours will see:
Extradition may be refused . . . where the Requested State, -
now this is poorly drafted, of course –
while also taking into account the nature of the offence and the interests of the Requesting State –
so their considerations – so just pausing there to deal perhaps with Justice Hayne’s question earlier – “the nature of the offence”, well there is a conviction for this particular offence so that is a fact and a matter to which regard or a circumstance, and then this vexed provisional “and the interests of the Requesting State”. Can I come back to say a little more about that in a moment but this is how the provision is drafted. So where Australia, while also – and that is an odd word there –
while also taking into account the nature of the offence and the interests of the Requesting State, considers that, in the circumstances of the case –
Pausing there, the nature of the offence and the interests of the requesting state are circumstances of the case. They come within the totality of that. Then the circumstances of the case –
including the age, health or other personal circumstances of the person whose extradition is requested, the extradition of that person would be unjust, oppressive or incompatible with humanitarian considerations –
So the ultimate question to be asked is would extradition be “unjust, oppressive or incompatible with humanitarian considerations”? That is the final question that is asked. It is not a factor in the overall consideration of the matter, or of the circumstances.
GAGELER J: Why are the interests of the requesting state part of the circumstances of the case? Why do you confine them in that way?
MR DONALDSON: Simply on the basis of textual analysis, your Honour. Can I say this, your Honour? I suspect it does not make any difference, for this reason. The nature of the offence and the interests of the requesting state are still matters that are rolled up in the final question, which is whether extradition would be unfair, et cetera. They are not separate from it, I submit.
GAGELER J: I am hearing you.
MR DONALDSON: Could I say I did not draft it, your Honour.
HAYNE J: You will notice in Foster in the judgment of the Chief Justice and Justice McHugh at page 447, paragraph 7, their Honours translate the operation of the Act and the regulation to the circumstances of the particular case. They say that:
Applying the Act and Regulations to the present case, the Minister was obliged to ask –
Then they give a compendious form of the question. Following that pattern, can the relevant question in this case be identified as follows? Applying the Act and the regulations, the Minister was obliged to ask whether, taking account of the nature of the offence and the interests of the requesting state, the Minister is satisfied that by reason of the circumstances of the case, including the enumerated matters, it would be unjust, oppressive or incompatible, et cetera, to surrender.
MR DONALDSON: Determined in accordance with Australian standards of injustice, oppression and incompatible - - -
HAYNE J: Well, let us leave that aside for the moment, Mr Donaldson. Let us take it by stages. Is that an accurate or sufficient translation of the question in this case? If it is not, we are going to go off the rails.
MR DONALDSON: It is, your Honour. What your Honour, with respect, has done is in effect transliterated 22(3)(e)(iv) and the sentence from paragraph 7 of Foster into the terminology in Article 9(2)(b).
HAYNE J: Have I done it accurately?
MR DONALDSON: Your Honour has, with respect, so long as added to the final matter to be determined by the Minister is that the determination of injustice, oppression, et cetera, is determined by Australian standards.
GAGELER J: Is that also arrived at by some sort of linguistic analysis of Article 9(2)(b)?
MR DONALDSON: No, your Honour. It is really arrived at in two ways. One is because we would submit it is what Foster says in relation to a relevantly identical provision. Secondly, your Honour, it could not mean anything else, with respect, because it is a conclusion which has to be drawn by an Australian Minister. We do not contend, your Honour, that the inquiry to be made by an Australian Minister, when dealing with a request from Indonesia, is to determine “injustice, oppression” according to some other standard and we would accept, your Honour, that were a request to be made by Australia of Indonesia – and this process to be gone through – then the determination of whether extradition may be refused on the grounds that it was “unjust, oppressive” et cetera, would be determined in accordance with Indonesian standards.
GAGELER J: So we have bilateral treaty – one set of words, two meanings?
MR DONALDSON: Yes.
CRENNAN J: So if the conviction - - -
MR DONALDSON: I am sorry, your Honour, if I could just - - -
CRENNAN J: So, if the conviction, in a trial in absentia, the appeal rights and the sentence all conform to Indonesian law, are all in accordance with Indonesian law, is it your case that for extradition purposes the Minister is required to test each of those aspects – conviction after a trial in absentia, appeal rights and sentence in accordance with Australian law?
MR DONALDSON: Well, in accordance with Australian standards of what would be considered unjust, oppressive or incompatible with humanitarian - - -
CRENNAN J: What does that mean when a person has been convicted and has certain appeal rights and has been sentenced in accordance with Indonesian law? What content are you giving to that reference to Australian standards?
MR DONALDSON: The way in which the question can only be approached, your Honour, is the way in which the question was approached by the majority in the Court of Appeal which was, let us look at the circumstances that are posited here as being relevant circumstances for the purposes of 9(2)(b) and look at how those circumstances would be dealt with in Australia.
CRENNAN J: And the reverse would apply if Australia were the requesting state?
MR DONALDSON: Quite.
CRENNAN J: Whoever is making the decision in response to the request - - -
MR DONALDSON: Quite so.
CRENNAN J: - - - would take into account a conviction, appeal rights, sentencing under Australian law and see how that matched up to Indonesian law?
MR DONALDSON: Yes. If it was Australia requesting an extradition from Indonesia, yes. Can I say – I was going to try and finish off an answer to Justice Gageler. It might be a little – well, it might not be the most entirely accurate way of describing the operation of that provision as the same words with two different meanings. The words mean the same thing but they operate depending upon whether Australia is the requesting state or the requested state. They mean the same thing.
HAYNE J: It is an odd sort of bargain.
MR DONALDSON: No, your Honour. It is the only bargain, really, that parties to a bilateral agreement could enter into.
GAGELER J: Why would they not be signing up to a single international standard?
MR DONALDSON: Well, your Honour, I suppose the short answer to that is that because Foster – three Justices, at least, in Foster with the same form of formulation determined that it was to be determined in accordance with Australian standards.
GAGELER J: The same formulation – we will accept that so far as it goes, appeared in an Australian regulation.
MR DONALDSON: This is an Australian regulation, your Honour.
GAGELER J: This is in a bilateral treaty.
MR DONALDSON: Yes, which we are only looking at, your Honour, because it is an extra regulation. This is part of a regulation, your Honour. The Extradition (Republic of Indonesia) Regulations, which is a statutory rule, this is a schedule to the regulation.
GAGELER J: I am following that but it started life as a treaty. It still is a treaty.
MR DONALDSON: Yes. I have answered, I think, your Honour’s question, which is we contend and it is accepted by the Commonwealth that the formulation “unjust, oppressive or incompatible with humanitarian considerations” is to be determined by Australian conceptions and understanding of those terms. It is common ground, your Honour.
HAYNE J: Let us stay with the formulation of the relevant question as I gave it to you. Let us blow it out one stage further and see where we get to, Mr Donaldson. The Minister was obliged to ask whether taking account of the nature of the offence, the interests of the requesting state, the Minister is satisfied that by reason of the circumstances of the case, relevantly here you say the circumstances of the case are conviction according to law in Indonesia, according to a process conducted in absentia.
MR DONALDSON: No.
HAYNE J: No?
MR DONALDSON: No, we say here, your Honour, that the relevant circumstances were that there was a conviction in absentia in circumstances where there was no service of the initiating process on the accused, where there was no evidence that he was aware of the fact of the indictment or initiating process and the trial, where the right to appeal that he had went as a result of an appeal brought by a co-accused, so a right of appeal that he had was extinguished in Indonesia and, your Honour, that the sentence that has been imposed is a life sentence which means, in this circumstance, at least as a starting proposition, for the term of his life, and where were he to be extradited to Indonesia he has no right of appeal but only a review, the circumstances of which fall well short of what by Australian standards would be considered an appeal.
FRENCH CJ: But they are all circumstances of the case but they do not exclude as a circumstance that the conviction is according to Indonesian law.
MR DONALDSON: No. It has never been contended, your Honour, that – well, the information before the Minister is that this was a valid conviction according to Indonesian law.
FRENCH CJ: So that is a circumstance of the case for the purposes of 9(2)(b).
MR DONALDSON: Yes. I am sorry, I thought Justice Hayne was asking whether it was confined to that, but we would not contend that it is not a circumstance of the case. Were it, for instance, in answer to Justice Hayne to be a fact that he was, in fact, not validly convicted in Indonesia, that would be a more relevant circumstance, if I can put it that way, but it would certainly also be a circumstance of the case.
HAYNE J: But it demonstrates that conviction according to law in Indonesia is, you say, nonetheless to be classified or is nonetheless a circumstance which you say requires the conclusion, no other conclusion being on your contention reasonably open, that surrender would be “unjust, oppressive or incompatible”.
MR DONALDSON: Yes. The circumstances which I have outlined to your Honour, having regard to those circumstances, nothing other than a rejection of the request would be reasonably open. Sorry, your Honour, that is one step too far. Nothing other than a conclusion that it was “unjust, oppressive”, et cetera, would be reasonably open.
GAGELER J: Applying Australian standards.
MR DONALDSON: Yes. Your Honours, can I say, because this has not been a matter that the parties have addressed directly, that is by Australian standards or international standards because both parties have proceeded on a similar view or construction of that particular provision of the Treaty, in our written submissions, your Honours, we do refer to what we contend are relevant international standards in respect of these matters.
Could I simply say to your Honours that they are dealt with in our written submissions at paragraphs 22 through to 23 dealing in particular with the International Covenant on Civil and Political Rights, the Rome Statute of the International Court. There is reference also to the statute dealing with the trial in Lebanon and the European Convention also, your Honours.
GAGELER J: So you are pressing Wednesbury unreasonableness even if Australian standards are not the yardstick.
MR DONALDSON: Your Honour, no, what we have said in our written submissions is the matter is to be determined by Australian standards and when one looks at the circumstances of this case it is pretty obvious that they fall well short, which I will come to, but to the extent that Australian standards are or may be informed by international practice, here it is. But we do not put it any higher than that, your Honour.
KEANE J: Mr Donaldson, one of the points you raise is that there was no proof, no evidence of proof of service, as we would understand it. There was service under Indonesian law.
MR DONALDSON: Yes.
KEANE J: Do you accept that it was open to the Minister to proceed on the footing that as a matter of fact your client was aware of the proceedings against him?
MR DONALDSON: We would not accept that he was able to proceed on that basis.
KEANE J: Why was it not open to him to proceed on that basis?
MR DONALDSON: Your Honour, could I deal with that particular issue in a moment, your Honour, because I am going to go to attachment B. I will deal with your Honour’s question, if you do not mind, in the course of dealing with that. Your Honours, at point 3 of our oral outline I have referred there to Foster and the passages upon which we rely in the joint judgment of Justice Gaudron and your Honour Justice Hayne and in the separate judgment of Justice Kirby dealing with this notion of the assessment of oppression, injustice, et cetera, in accordance with Australian standards, and that is also dealt with in our written submissions at the paragraphs that I have there referred to.
FRENCH CJ: What content do you give to this term “Australian standards”? I know at paragraph 59 of your submissions you say this and that and the other thing would not happen in Australia.
MR DONALDSON: I am sorry, your Honour. It is one of those – I think it was Justice Stewart in the US Supreme Court in a case the name of which I can never remember, but is, “Well, I can’t define pornography but I know it when I see it.” In a circumstance such as this, your Honour, one looks at what are contended to be the relevant circumstances, those which I have outlined, and ask do they satisfy Australian conceptions of what is unjust, oppressive or incompatible with humanitarian considerations. I do not think, your Honour, that one could give a glib formulation of what that compendious term means by Australian standards.
CRENNAN J: An easy example, I suppose, would be the application of Australian standards in circumstances where the evidence was that someone had been convicted not in compliance with the law of the requesting state.
MR DONALDSON: That would, your Honour, but in this rather odd treaty provision – no, I withdraw that. I was going to say, your Honour, I suppose that might come into nature of the offence but it would all be wrapped up in any event, your Honour, with the notion of injustice.
CRENNAN J: I am distinguishing between a conviction according to the law of the requesting state and one which was not according to the law of the requesting state.
MR DONALDSON: Yes, quite so. It would doubtless, your Honour, be the case that were an extradition request made on the basis of a conviction that was irregular in the requested state then it would be unjust by Australian standards for there to be an extradition.
FRENCH CJ: Well, there might not be a conviction. The person might not be accused.
MR DONALDSON: Yes, well, you might not even get to it because of the way in which section 22 works in the first place but we do not doubt what your Honour puts. That would be a clear circumstance and as I will hopefully come to demonstrate as clear as the circumstances in this case. Your Honours, I was going to say something, but I need not now do so, about the contention that is referred to in some of the submissions referred to by the Commonwealth as to – they are documents to which we look to determine what the Minister’s decision is.
My friend has, in his oral submissions, dealt with attachment B as if it expresses the Minister’s reasons for decision and so we will, your Honours, proceed on that basis also. Could I ask your Honours then to go to the appeal book. Your Honours, the material which was before the Minister is to be understood – if I could ask your Honours to turn to page – having regard to page 24, or starting at page 24. Your Honours will see that that is the document which has gone up to the Minister from the Department. Your Honours will see at line 20:
The relevant representations are addressed in our analysis of the statutory preconditions at Attachment B.
So, attachment B is central. Then into the next page, your Honours, you will see at paragraph 6 of that document, at the last sentence there is a reference to the representations being analysed in attachment B, and your Honours will also see references to other attachments, E1 through to E4, which were also before the Minister and I will take your Honours quickly to one or two of those. Then in 8, your Honour, is I suppose what might be considered the formal advice of the Department, but as the Department makes clear, really having regard to what is set out at attachment B.
Then your Honours, at page 27 of the appeal book, your Honours will see the list of attachments, and attachment B, your Honour, commences at page 31. Your Honours will see there the table of contents, and your Honours will see from that table of contents the relevant part of this document in relation to the advice given commences at page 33 of the document. Your Honours will see that at about line 35 on page 32 of the book.
But of course before, your Honours, attachment B got to deal with those particular matters, there were factual matters that were dealt with earlier in the attachment B document. Could I ask your Honours please to turn to page 41 of the book? Your Honours will see there – I will not take too much time on this because my friend has referred your Honours to parts of this. Your Honours will see that commencing at paragraph 45 on page 41 is set out the circumstances of the service of the initiating process on Mr Adamas.
Your Honours will see that there were various summonses, and at paragraph 46 your Honours will see that under Indonesian law, and we do not dispute this, there is a process by which a criminal indictment can be left with a village head, who is somehow a known person or defined person of the village of the person’s last-known address. Your Honours will see at about line 48 that the purpose of the conveyance of the summons to the village head is so that if, at any time the person returned to his home, it could be provided to him.
So it is actually in a sense not even really like what we would understand as substituted service. It is “leave it with the village head in the event that if he comes back at some stage, it might be given to him”. Then your Honours will see that under Indonesian law, that is valid service under Indonesian law. My friends referred to, quite properly, that there was then various other copies of that document that were served or provided to the village head in the same way.
Your Honours will see at paragraph 52 that after that process was gone through, on 8 July 2002 the prosecutor asked whether the trial could proceed and the judge set the matter down for trial on 24 July in the absence of Mr Adamas and the co-offender. Your Honours will see that there was a trial in the absence of both, and your Honours will see the sentence which was handed down at paragraph 55.
Your Honours, my friend has referred to this at paragraph 58. The relevance of what is in paragraph 58, your Honours, is there was no evidence before the Minister to the effect that Mr Adamas had absconded, as it were. My friend has taken you to evidence that suggests that an inference might have drawn from that. But, your Honours, there was certainly no evidence before the Minister to that effect.
Your Honours, could I then ask you please to turn to paragraph 75 on page 46? Again, these are factual matters that were before the Minister. Your Honours will see at paragraph 75 that Mr Sutrisno – he was the co-accused:
was aware of the District Court’s decision convicting him and –
Mr Adamas –
for the corruption offence evidenced by the fact that [he] lodged an appeal . . . through his legal representative.
Then, your Honours, if I could ask you to turn to paragraph 102, at page 51, the appeal – and it is there set out that the appeal “was not initiated by the prosecution” – hardly would have been because they got their conviction – “but was brought by the co-offender”. Under Article 141, which is there referred to, of the Indonesian Criminal Code, the procedure was that:
an appeal decision applies to both the person who brought the appeal as well as the co-accused who was not involved in bringing of the appeal.
So that, your Honours, was the circumstance, that is, this particular decision, as it were, bound a co-accused even if they were convicted in their absence. Your Honours, in that respect, could I ask you please to turn to page 220 of the appeal book? Your Honours will see from page 220 - this is a letter, this is annexure E3 in the bundle that was before the Minister - this is a letter from Indonesia making representations to the Minister in respect of these matters, and at page 225 of the bundle your Honours will see the paragraph:
In response I advise the following:
and that is explained by, well, there was something in the newspaper about his conviction. Then the third bullet point -
the co-accused. Then –
We do not suggest that he had no appeal under Indonesian law, that is what Indonesian law is, but it is relevant to the circumstances and it is a circumstance for the purpose of the Treaty provision that here was a person convicted in absentia, or convicted when he was not there, where he was not personally served with the indictment. There was a right of appeal but that was extinguished by the act of the co-accused in appealing. Now, of course, your Honours, those circumstances are totally at odds with practice in Australia and, in our submission, would be considered by Australian standards unjust.
BELL J: If one looks at the international standards to which you have referred in the ICCPR and so forth, the right as it is described to be personally present at one’s trial, does that extend to circumstances in which a person has chosen to absent themselves?
MR DONALDSON: Your Honour, there are – I do not want to be glib but I think there are three – international law can, I think, best be summarised in this respect in this way. I do not know how international law could ever be summarised, but to the extent that it can, I think it can be best understood as coming to this, that it would not be considered to be a contravention of the relevant provisions for a trial – for a person to be convicted in absentia if the person was absent by reason of their misbehaviour, as it were; that is, if they were excluded from the Court. If the person deliberately, and it can be established, avoided service, but in all circumstance - - -
BELL J: If I can just take that up with you. In Australia in relation to serious offending of this character, recognition that the person is deliberately avoiding being brought before the Court would still not lead to a trial. A different practice is adopted where a person absents themselves midtrial, in which case the trial will continue in their absence. But looking at that first situation, one might say, well, under - the practice in Australia would not be to try a person in their absence even where it is demonstrably apparent they have sought to absent themselves from the jurisdiction.
MR DONALDSON: Exactly so.
BELL J: But that would not carry over to the notion that Australian standards viewed as unjust the trial of a person in absentia in those circumstances, would it?
MR DONALDSON: If it could be positively established, your Honour, that the person knew that something was being sought to be served upon them and deliberately avoided service, we do not contend that that would not be a circumstance relevant to whether the conviction was unjust, but there would be other circumstances to which regard would have to be had in determining whether the proceeding with the trial was unjust. For instance, what was the nature of the offence? What was the nature of the sentence to which the person might be exposed? What was the sentence that was handed down?
BELL J: So the Australian standard that you posit is one where a person can deliberately abscond but if the offence is of a sufficiently serious character it would, nonetheless, be unjust or oppressive to try the person in their absence?
MR DONALDSON: No, your Honour, the Australian standard for which I contend is that a person cannot be - in relation to an offence such as this, cannot be tried in their absence.
BELL J: Regardless of their conduct in the sense of absconding?
MR DONALDSON: Yes.
BELL J: I see.
HAYNE J: The absolute proposition that any trial in absentia – for a serious offence, is unjust.
MR DONALDSON: According to Australian standards.
HAYNE J: Yet we do not expressly accept in the extradition agreement such cases.
MR DONALDSON: That is right.
CRENNAN J: In terms of Justice Keane’s question - - -
MR DONALDSON: Sorry, could I just interrupt your Honour? Your Honour Justice Hayne, there is nothing inconsistent in those propositions, with respect. Sorry, your Honour.
CRENNAN J: In terms of Justice Keane’s question to you about what was open to the Minister, do you have any complaint – and also in the context of attachment B – about what Justice Lander said at 334 of the appeal book at paragraphs 13 and 14?
MR DONALDSON: Sorry, could I have that page number again, your Honour?
CRENNAN J: Page 334, the finding of the change of name and the conviction.
MR DONALDSON: Yes, your Honour, I do. Can I explain that to your Honours? The first difficulty with what his Honour has there set out, your Honours, is to be seen in attachment E1, and that commences at appeal book 91. This is another attachment that was before the Minister and, your Honours, if you could turn please to paragraph 17 of that document on page 95. This is the submission which was made by Mr Adamas, so it is said in the submission that the solicitor had been instructed that prior to leaving Indonesia:
he had never been questioned . . . had never been charged or arrested in relation to that offence; had not been informed of the trial proceedings in November 2002 and had not been informed of the appeal proceedings in 2003.
Of course, there is no reference to that in attachment B when inferences are invited to be drawn; that is, there was a denial by Mr Adamas of these matters.
GAGELER J: Did attachment B invite the Minister to draw the inference that is referred to at page 334?
MR DONALDSON: I think it would be fairer to say that it referred to the possibility of an inference being drawn, your Honour, rather than a positive drawing of an inference in that sense.
GAGELER J: With languages, it might be thought.
MR DONALDSON: I am terribly sorry, my friend has just corrected me, your Honours. If I could draw your Honours’ attention to it, it is at page 40 of the appeal book – I am grateful to my friend. Your Honours will see the last sentence of paragraph 36. What I took your Honours to in attachment E1 at page 95 is referred to in attachment B. But when there are issues as to whether an inference could or might be drawn in relation to what he knew or did not know, which is later on in the document, I do not recall there being a reference to that express denial, but I will come to - - -
GAGELER J: I do not recall seeing a positive recommendation that the Minister make a finding of fact.
MR DONALDSON: That is why I put it in the way that I did, your Honour.
BELL J: At paragraph 73 on page 45, what is put is that:
it is difficult to accept that [Mr Adamas] had no knowledge of potential investigations or criminal proceedings –
but that is, in a general sense, arising out of the failure of the bank.
MR DONALDSON: Yes, and I think they also refer to the thing being pretty topical in the newspapers at the time, and the like.
BELL J: Yes.
MR DONALDSON: But I think, Justice Gageler, there is no direct – or no direction, as it were, from the Department that the Minister could or should draw a particular inference one way or the other. So, your Honours, really, the circumstance as far as the facts are concerned in this matter, is the Minister could not have concluded that he was, as it were, deliberately avoiding the service of anything upon him because of the incomplete material in relation to that matter.
KIEFEL J: But that is not a no evidence point, that is an assessment. That is a weight point, is it not?
MR DONALDSON: Yes. It is again, your Honour, a circumstance that is thrown into the 9(2)(b) value judgment.
KIEFEL J: Could I just take you back to the process of reasoning to be applied to 9(2)(b)? The circumstances of the case here would be that he has been convicted lawfully according to Indonesian law and the application of its processes.
MR DONALDSON: Yes.
KIEFEL J: The critical question is whether or not it is unjust, et cetera.
MR DONALDSON: Yes.
KIEFEL J: One could not conclude that it is his conviction – or his extradition would be unjust by reference to the process applied by Indonesian law because it is lawful, it has been followed.
MR DONALDSON: Yes.
KIEFEL J: So one is then left to identify how injustice is to be assessed. Now, the words “Australian standard” are bandied about, but what that really means is that on the approach of the majority appears to be that there is a difference between Australian law and Indonesian law.
MR DONALDSON: Yes.
KIEFEL J: But here we have the context of a treaty and the Treaty tells us, does it not, that there is expected to be a difference. So the answer to whether there is an injustice is not going to be found in perceived differences between the legal systems.
MR DONALDSON: Not the simple fact of there being differences. No, and we do not suggest that there is.
KIEFEL J: Or even the particular types of differences.
MR DONALDSON: Or necessarily the number of them.
KIEFEL J: But that tends to suggest that the answer must lie in some more neutral or higher standard because it is acknowledged that there are going to be differences between the two systems like most comparative assessments will show us. Given that it is some more neutral or higher standard, you are in the area of a value judgment for the Minister, are you not?
MR DONALDSON: There is no doubt that there is a value judgment required by the Minister.
KIEFEL J: If it is of a more neutral or - I say neutral because it does not have regard to either of Australian or Indonesian legal systems. It is some higher standard of the nature, say, of humanitarian provisions, if one regards it contextually as of the same ilk. It is the Minister’s value judgment that is here involved and that was recognised by Justice Barker, was it not, because Justice Barker felt compelled to find an error of law in missing information, information that was not provided about it. But if we are in the realm of a value judgment, what error of law, apart from what Justice Barker has identified as missing information do you identify in the approach taken by the Minister?
MR DONALDSON: The gravamen of the error is what is actually identified both by Justice Barker and most crisply, if I can say, by Justice McKerracher. What the Minister was not told at all is that under Australian law and according to Australian practice, and according to Australian standards of justice and oppression, a trial in absentia in the circumstances of this matter - - -
KIEFEL J: It was just the trial in absentia I think -the fact that Justice Barker was referring to, not the other aspects but, I am sorry, I am interrupting you.
MR DONALDSON: Well, but having regard to the other factors as well, he was not told that those matters would be considered, but could not occur under Australian law and would be considered unjust.
KIEFEL J: So, critically, what we are coming down to is it is not for this Court to determine how the value judgment is resolved. That was recognised by the majority.
MR DONALDSON: Yes.
KIEFEL J: We are concerned with the quality of the information given to the Minister. That is our task on review and - - -
MR DONALDSON: That is a way of expressing it - - -
KIEFEL J: Yes, and if this Court comes to the view that attachment B sufficiently conveys to the Attorney, who is also expected to have some knowledge of these matters - - -
MR DONALDSON: Well, it is the Minister for Justice, actually - - -
KIEFEL J: I am sorry, the Minister for Justice who - - -
MR DONALDSON: - - - but one might not necessarily think - - -
KIEFEL J: Well, perhaps. These things might – all right, we will keep it to attachment B.
MR DONALDSON: Yes.
KIEFEL J: If this Court determines that attachment B sufficiently conveyed necessary matters of difference or matters which might go to the value judgment, then the error of law for which Justice Barker contends goes. That really was the minority approach, was it not, Justice Lander’s approach?
MR DONALDSON: Well, I am not sure that was Justice Lander’s approach, but rather than deal with your Honour’s question that way, if I could say this, your Honour. If this Court were to find that attachment B correctly and accurately sets out all of the considerations that were relevant for the Minister, or for which the Minister had to have regard for forming the value judgement, as whether extradition in these circumstances was unjust, then yes, we would fail.
HAYNE J: What is the whole purpose of the discussion of the fact of trial in absentia except to point out to the Minister that this man was dealt with in this fashion implicitly, this different fashion from the way in which a criminal trial would be conducted in Australia? What else is it telling the Minister except this was different?
MR DONALDSON: Well, your Honour, it is because of the nature of the difference. As I said a moment ago to Justice Kiefel, it is unproblematic that there may be differences between Australian criminal procedure and Indonesian criminal procedure. Of course there are and there will be. It is the - - -
KIEFEL J: No, please finish.
MR DONALDSON: It is the nature of the difference and the matter in respect of which they are different and how different they are in respect of that matter.
KIEFEL J: But are you not really saying that attachment B had to tell the Minister this is the value judgment you have to form?
MR DONALDSON: No, attachment B had to tell the Minister that in Australia a person in these circumstances would never be convicted, could never be convicted and it would be considered unjust in Australia for a person to be convicted in these circumstances. That is what the Minister had to be told.
KIEFEL J: If attachment B sufficiently conveys that the degree of difference is that sharp then - - -
MR DONALDSON: We lose.
KIEFEL J: You lose.
MR DONALDSON: To put it bluntly.
KIEFEL J: It is as simple as that, is it not?
MR DONALDSON: Yes, and it is why I am taking your Honours to attachment B.
FRENCH CJ: Bringing it back to the text and 9(2)(b), you accept that the relevant jurisdictional fact is the ministerial state of mind, that is the proposition I put to the Solicitor-General at the end of his submissions.
MR DONALDSON: Yes.
FRENCH CJ: Informed by a correct construction of the relevant provisions of the Treaty and the statute, do you root your argument in any misconstruction of Article 9(2)(b)?
MR DONALDSON: There is no construction of 9(2)(b) put to the Minister, your Honour.
FRENCH CJ: Yes, but does your argument rest upon some premise about what 9(2)(b) requires, properly construed, that has not occurred?
MR DONALDSON: Yes, because in Article 9 – sorry, in attachment B there is no clear statement - we have taken that as being, as it were, an expression of the Minister’s reasons - that the ultimate question of whether, having regard to the circumstances the extradition would be unjust, oppressive or incompatible with humanitarian considerations, all of the circumstances are to be judged and determined by Australian standards. That is not stated when one properly reads and construes attachment B.
FRENCH CJ: So in terms of the text of 9(2)(b) – I am sorry, bear with me – what has the advice to the Minister failed to address that it should have, by reference to the text?
MR DONALDSON: It has failed to say that circumstances of this case include that he was tried in absentia, that there is no evidence that he was aware of the trial or of the fact that he had been charged - - -
FRENCH CJ: I am sorry, does that reduce to this proposition, that he has been given an unduly narrow construction of the circumstances of this case, or an unduly narrow application of the term “circumstances of this case”?
MR DONALDSON: No, your Honour, I think that it could be understood that on a charitable reading of attachment (2)(b) that those particular matters would have been understood by the Minister to be circumstances of the case, but not that those circumstances would, according to Australian standards, be considered unjust, et cetera.
GAGELER J: Does it not come to this, that you look at 9(2)(b) - - -
MR DONALDSON: I am sorry, Justice Gageler, if I could just finish – and I say that, your Honour, because they are referred to in attachment B variously. Sorry, your Honour.
GAGELER J: I am sorry. Does it not come to this? You look at Article 9(2)(b) and you see the words at the end that are to the effect that the extradition “would be unjust, oppressive or incompatible with humanitarian considerations” and you read in according to the standards of the requested state and your whole complaint boils down to those standards not having been applied by the Minister in this case.
MR DONALDSON: Yes, correct.
GAGELER J: That is your error of law and it is also your Wednesbury unreasonableness.
MR DONALDSON: And it is our – or relevant consideration.
GAGELER J: Everything.
MR DONALDSON: Yes, it is everything, having regard to what the circumstances were, being those facts that I have identified. Sorry, your Honour?
KIEFEL J: And how can you imply those words as a matter of construction when you have a treaty which you have acknowledged – you have said – accepted – acknowledges that there will be differences between the systems?
MR DONALDSON: Because it is the acknowledgment of the difference which gives rise to that meaning. That is, it will be an Australian Minister having to determine the question of injustice upon a request by Indonesia. Now, an Australian Minister can only do that according to Australian standards. The proposition could not sensibly be that an Australian Minister when receiving the extradition request and having to direct his or her mind to whether extradition would be unjust, et cetera, says, well, I need to determine that according to the law of Indonesia and – sorry, Indonesian conceptions.
KIEFEL J: No, the implication that you make into the requirements of Article 9(2)(b) is to funnel the inquiry according to particular aspects of the Australian legal system. Of course, the Minister or the decision-maker will be aware, as attachment B reminds, that there will be differences and will be aware of aspects of the Australian system, but the Treaty itself and particular provisions of it also will tell the decision-maker that it is assumed that there will be some differences. So the answer does not lie simply in a single application of provisions of Australian law. It must involve something else, a matter of degree or judgment about where something has gone too far.
MR DONALDSON: Of course. I do not suggest otherwise, your Honour. That is why I said it is not simply a matter of ticking boxes and saying this is different.
KIEFEL J: No, it is just that the Australian standard appears to be raising something to a sole, relevant, mandatory consideration when in truth what is involved is a value judgment which is on a higher moral or humanitarian level and all of the rest of it lies at a much lower base, all of the rest of the considerations.
MR DONALDSON: Yes, but equally, your Honour, when the Minister comes to make the value judgment, critical to it when he considers the circumstance of the case, critical to understanding or forming a value judgment of whether it is unjust, is how the Australian legal system would deal with this.
KIEFEL J: That is not the only system in the world, although we tend to think it is.
MR DONALDSON: No. Well, can I say, your Honour – I have not suggested that for one moment, your Honour, but if anybody – if the Commonwealth can point to a system other than Indonesia where this sort of matter would be acceptable we would take it on board.
FRENCH CJ: That might be a convenient moment. We will adjourn until 2.15 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Donaldson.
MR DONALDSON: Your Honours, before I go back to attachment B, could I make these further submissions in relation to Article 9(2)(b) and in response to a number of the questions that have been asked already today, and this is this issue of the standard, if I can put it that way. Your Honours will notice that in 9(2)(b), the words are of course:
where the Requested State . . . considers –
so in this instance, where Australia “taking into account”, et cetera, “considers that”. In our respectful submission, that is a textual reference to the construction of that provision that we have urged upon your Honours. Could I also draw your Honours’ attention to the appellant’s written submissions – I will not take your Honours to them – but at paragraphs 39 and 57 that are referred to in my learned friend Mr Gleeson’s outline of oral submissions.
At those, particularly at 39 of the Commonwealth’s written submissions – in fact, it is probably best if I could ask your Honours to turn to them, I am sorry. Your Honours will see in paragraph 39 of the Commonwealth’s submissions – I will leave your Honours to read it.
Your Honours, following from that, can I make this observation or submission, that to the extent that it might be thought that construction of the Treaty provision in 9(2)(b) might be thought to give rise to a different process of interpretation than the process of construing a regulation of like terms, we would submit to your Honours that the Commonwealth, who is a party to this treaty, has an understanding of what it was entering into in terms of Article 9(2)(b) of the Treaty as expressed at paragraph 39 of the written submissions.
That, in our respectful submission, would determine the issue for the purpose of this application, that is, that is what the Commonwealth as a matter of bilateral treaty considered that it was entering into. Your Honours, could I then return, if I might, to attachment B - - -
HAYNE J: Before you depart from paragraph 39 of the Commonwealth’s submissions do you accept that on that reading, “unjust”, in Article 9(2)(b), means more than not in accordance with Australian law?
MR DONALDSON: Well, your Honour, the answer to the question depends upon the degree of divergence.
HAYNE J: There is a term used in the Treaty. The term must be given content. What I searching for is the content you are giving it. Thus far in your argument, I do not understand your argument to have gone much, if at all, beyond the proposition that “unjust” in this case means not in a manner according with Australian criminal practice.
MR DONALDSON: No, your Honour, there may be, and I am sorry that I have not clarified this issue before, circumstances where there are slight divergences between Australian criminal practice and Indonesian criminal practice, for instance. That would not constitute, by itself, injustice in terms of 9(2)(b).
HAYNE J: This is a normative standard. What I am asking you to do is to identify the norm and either the source of the content or the content.
MR DONALDSON: The content of the normative phrase, “unjust, oppressive or incompatible with humanitarian considerations” is the understanding of those terms in accordance with Australian standards. Relevant to the determination of that, according to Australian standards is what Australian law provides in relation to the particular circumstance, as that term is used in the provision.
HAYNE J: All of your arguments depend upon the proposition, do they not, that attachment B is deficient because it does not say in terms, “Gee, this is very different from Australia”.
MR DONALDSON: It does not say in terms - I might not use the term “gee”, your Honour - but it does not say in terms this is vastly different. Sorry, it does not say in terms that these particular circumstances are vastly different from what would occur in Australia and this could not occur in Australia because it would be considered in Australia unjust, oppressive and incompatible with humanitarian consideration as understood in accordance with Australian standards. Sorry, does that deal with your Honour’s question?
HAYNE J: Yes.
MR DONALDSON: Your Honours, could I ask you then please to turn back to attachment B?
KIEFEL J: Would it be relevant to take into account that in a wider global – not necessarily an international law standard but that there may be many other, for instance, European systems which would permit conviction in these circumstances? Would that be a relevant consideration?
MR DONALDSON: Your Honour is assuming that that to be the case, of course.
KIEFEL J: I am. I doubt that Indonesian law came to this entirely unaffected by historically derived procedures.
MR DONALDSON: Yes, I cannot assist your Honour with that particular issue.
KIEFEL J: Just assuming that to be case, would that be a relevant consideration?
MR DONALDSON: In our written submissions, your Honours, we have – and I have referred your Honours to the paragraphs – that to the extent that it might be considered relevant what international standards in relation to those matters are, can I say, your Honours, in this particular matter, in our submission, that kind of analysis is unnecessary to be gone into simply for this reason. The circumstances are so contrary, so overwhelmingly and fundamentally contrary to Australian standards as they are understood, that there is little assistance in dealing with this particular matter to be gained from that. But, your Honours, we would submit that to the extent that anything other than what we have said constitutes Australian standards are relevant, it may be that international law standards in relation to those matters may be relevant and that is why we referred the Court to those.
KIEFEL J: What I am really asking is would it be relevant to ask – assuming this to be the fact – that Australian law may not permit a conviction in these circumstances but a large number of foreign legal systems do?
MR DONALDSON: No. It is not a counting or popularity poll in that - - -
KIEFEL J: So this really just underscores the approach for which you contend which is that it either is permitted by Australian law or it does not.
MR DONALDSON: Again, your Honour, yes, but I hesitate - - -
KIEFEL J: Well, that is it.
MR DONALDSON: No, no. Yes, but I hesitate to accept the proposition that it is permitted because it is a question of degree of divergence as well as simple difference, if I can put it that way. Again, I do not wish to repeat myself, but were there a trivial or minor difference in a matter of criminal procedure, that would not give rise to it.
KIEFEL J: Yes, I understand you to say any substantial divergence. While I have you interrupted, did Justice Barker identify as the relevant error of law here a failure to take into account as a relevant consideration matters apart from the conviction in absentia?
MR DONALDSON: Yes.
KIEFEL J: His Honour took into account all of the other matters as the three steps that we referred to.
MR DONALDSON: In addition to the other matter as to the service of the – which is part of the in absentia notion.
KIEFEL J: He identified them as “circumstances”, but did not his Honour conclude that the relevant error arose from the failure of the material to convey that conviction in absentia would never occur in Australia? Is that not the critical finding?
MR DONALDSON: I think it would be fairer to characterise Justice McKerracher’s judgment as founded squarely on that basis.
KIEFEL J: But not Justice Barker’s?
MR DONALDSON: I am happy to take your Honours to Justice Barker’s fairly wide-ranging judgment - - -
KIEFEL J: No, do not do that. I have already read it once.
MR DONALDSON: No. His Honour certainly dealt with “further circumstances”, if I can put it that way, your Honour.
KIEFEL J: Yes, thank you.
MR DONALDSON: Can I say, your Honour, the other reason why there was a focus on that issue I think is because of Justice Lander’s judgment, who really viewed the issue as there is one matter to have regard to here, can there simply be a trial in absentia or not? I think that gave rise to some of the reasoning, your Honours.
Your Honours, can I then, if I may, go back to attachment B to show to your Honours the advice that the Minister received in relation to this question of the meaning of 9(2)(b). Could your Honours turn please to appeal book page 63, and your Honours will see there – and again, your Honours, I will not take you to it but if you go back to the contents page, your Honours will see that this is one of the headings in the contents page, and your Honours will see halfway down that page Article 9(2)(b), and there is an introduction there. My learned friend has already referred your Honours to 166 and 167, where there is a reference to the interests of Indonesia. Then, over the page, your Honours, at 168 your Honours will see this is what the Minister was told:
In terms of whether the extradition of [Mr Adamas] would be ‘unjust’, ‘oppressive’, or ‘incompatible with humanitarian considerations’, as Justices Gaudron and Hayne observed in Foster v Minister for Customs and Justice . . . a broad view should be taken of the meaning attributable to these words.
Could I leave your Honours to then read the extract from Foster and your Honours will note that the reference to Foster is to paragraphs 41 to 43. Could I then ask your Honours to turn to Foster [2000] HCA 38; 200 CLR 442? Paragraph 41 to which there is a reference is on page 457. There is some reference to Justices Gaudron and Hayne’s reasoning there but paragraph 43, to which reference is made at paragraph 168 of attachment B, could I ask your Honours to look at paragraph 43 because what their Honours say there is:
The other question which arises is what is the standard which the words “unjust or oppressive or too severe a punishment” set? Unjust or oppressive by what measure? Too severe by what measure? The answer must be that the value judgment which the expression requires is to be made according to Australian standards, not the standards of any other country. It requires consideration of how the offence or offences for the prosecution of which the extradition is sought would be viewed in this country.
If I could leave your Honours to read the rest of that paragraph – well, that is what we say. That is not stated in attachment B anywhere and the reference in paragraph 168 of attachment B to paragraphs 41 and 43 is not a reference, as it were, to that reasoning in paragraph 43.
That was some of the advice that was given to the Minister in relation to this matter and then in this advice at paragraphs 169 there is reference to meanings given to words “unjust” and “oppressive” in English authorities dealing with United Kingdom legislation and reference there to further authorities and then 172 and then if I could direct your Honours to 173 as well.
But, your Honours, what is not stated there in directing the Minister as to how he goes about his task under Article 9(2)(b) is what Justices Gaudron and Hayne said at paragraph 43 of Foster, which is what we say those words mean. Could I deal, while I am dealing with Foster, a question that Justice Gageler asked earlier and that is the distinction between a treaty-type provision in a regulation and a regulation itself.
I have given one answer to your Honour but – well, they are the same thing, relevantly. In Foster, of course, your Honour, the provision was for relevant purposes like Article 9(2)(b) in its terms, that is, it had nothing like the words “determined by Australian standards” at the end of it. The regulations at issue in Foster were the Commonwealth extradition regulations.
They are not a bilateral – obviously not a bilateral treaty but, your Honours, they come about no doubt as a result of interaction between members of the Commonwealth as to the circumstances in which extradition will occur. So, in our submission, there is no reason why what Justices Gaudron and Hayne and Kirby said in Foster is not directly applicable to the Treaty provision here.
HAYNE J: Is it not dealt with in paragraph 243 at appeal book 77?
MR DONALDSON: No, your Honour, not at all, because what 243 deals with is one issue. This is why this document is so – or one of the reasons why this document is so incomplete. What is referred to at 243 is, well, you can consider one circumstance, that is, the severity of the punishment as whether it is “unjust, oppressive or incompatible with humanitarian considerations” and those standards in relation to that question of punishment, so one circumstance, are Australian standards. When I take your Honours to the rest of attachment B in relation to other of these circumstances, your Honours will see that those words are not there. So rather than, Justice Hayne, assist this actually confuses.
HAYNE J: I was rather struck by the introduction of paragraph 43 of Foster, but perhaps I am mistaken. I would have thought that the passage in attachment B reflected that, but perhaps I simply need to re-read it all again, Mr Donaldson. No doubt I do.
MR DONALDSON: No, your Honour. What your Honour – and I will come to deal with how these various issues are dealt with in attachment B and I have not yet done it but, your Honour, as your Honour will I trust come to appreciate, when one looks at paragraph 243 which looks at one circumstance, that is, the severity of the sentence, and the Minister is advised, well, you consider whether that is unjust according to Australian standards, but in relation to other circumstances the Minister is not told you consider whether they are unjust according to Australian standards, rather than clarify, your Honour, it simply confuses. Could I perhaps seek to demonstrate that to your Honour as I go?
Your Honours, I will not take your Honours to it but paragraph 95 of Foster in the judgment of Justice Kirby is consistent, in our submission, with the meaning given to the provision by Justices Gaudron and Hayne at paragraph 43. Your Honours can I deal – before I go back to attachment B again with another issue, to give perhaps context to the way in which the circumstances, being the difference in the manner in which Australian and Indonesian legal systems would deal with these issues has been considered.
That can be seen, your Honours, in the case of Bannister. I think your Honours have Bannister v New Zealand [1999] FCA 362; (1999) 86 FCR 417. Bannister is a decision of the Full Court of the Federal Court. What issue arose in Bannister was, or the circumstances of Bannister arose immediately after the decision of this Court in the case of S, where it was held that there could not be, as it were, representative type proceedings in criminal or sexual assault cases.
In Bannister, and can I show your Honours paragraph 9 on page 421, your Honours will see that this sets out what would have occurred in New Zealand, so this was the criminal procedure in New Zealand dealing with these sorts of sexual assault cases, or a species of sexual assault cases, and your Honours will see there its reference to the practice in New Zealand of “specimen or sample counts” and that went on to be explained; that is, that there could be a trial on certain matters and then that would be to be guilt in certain other matters that were not the subject of the charge. That, of course, is not a process which is available under Australian law.
So what was contended in Bannister was that it would be to extradite Mr Bannister, who had been charged with these offences in New Zealand, unjust and oppressive. Can I ask your Honours to turn to paragraph 26 where your Honours will see there that their Honours referred at about five lines down:
No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar.
But then what was resolved at paragraph 29, or concluded, was that because Mr Bannister, if extradited, would have been charged with representative offences - and this is at page 431 - that would be unjust or oppressive. So that is, as it were, the level of divergence considered by the Full Court that gave rise to a finding of injustice or oppression in that case.
FRENCH CJ: So how does your line of argument rise above this, that - looking at the term “unjust” as a proxy for the other normative terms in 9(2)(b) - unjust is determined by reference to, in part, divergence from Australian law and practice - - -
MR DONALDSON: Yes.
FRENCH CJ: How much divergence? So much that we say it is unjust?
MR DONALDSON: The matters in respect of which it diverges.
FRENCH CJ: Yes, but in the end there is still some external standard of injustice because you are measuring the divergence by reference to some criterion.
MR DONALDSON: Of course. Yes, I do not shy away from it, your Honour.
FRENCH CJ: The circle is closed.
MR DONALDSON: Yes, and, your Honour, that is exactly what happened in Bannister. In Bannister it was said, well, how would this be dealt with in Australia? Well, that would not be dealt with this way in Australia. You do not have representative criminal charges, so to extradite somebody to New Zealand to deal with them would be unjust and oppressive and he was not extradited.
KIEFEL J: Bannister only involved one factor, though. That was that single question. There were not other factors at play.
MR DONALDSON: No, but can I say, your Honour, if one looks at the divergence from Australian practice of that factor compared with the divergence from Australian practice of many of the factors in this case, these are far more substantial divergences, your Honour, in relation to far more substantial matters.
KIEFEL J: The other feature about Bannister is, of course, that the Full Court was there determining the question for itself on appeal, and it was applying, as it had to, the decisions of the High Court about what was acceptable and what was not. It did not involve any review of a ministerial decision, or ministerial value judgment which may have regard to a number of factors.
MR DONALDSON: I am not citing it for that reason, your Honour. I am citing it as an illustration - - -
KIEFEL J: As an application of the standard.
MR DONALDSON: Quite. It followed shortly after S – in fact, I think your Honour was a member of the court - - -
KIEFEL J: I was.
MR DONALDSON: - - - but it followed shortly after the decision in S which gave rise to the issue to be considered in that case. I raise it, your Honours because, in our submission, it gives a flavour of the nature of the divergence which has been held to be oppressive or unjust.
Your Honours, can I then return, if I might, to my outline of oral submissions. I was taking your Honours through the various factual matters that were put to the Minister. I am at point 8 of the outline of oral submissions, your Honours, and I had taken your Honours to paragraph 102. Could I ask your Honours to turn then please to page 68 of the appeal book. I take your Honours to this to deal with – I think it was a question that Justice Gageler asked before lunch. I could not find it for your Honour then; this is the passage that deals with the possibility of drawing an inference that I referred your Honour to.
Could I then ask your Honours please to turn to paragraph 225 to 239? These are the provisions, your Honours, that deal with the PK review. Can I say, your Honours, I can simply leave these particular paragraphs for your Honours to read if I may, simply with this observation which I understand to be accepted by my learned friend, and that is that the PK review as explained here is nothing like an appeal under Australian law. Its fundamental difference from what an appeal is under Australian law is clear, your Honours, from reading paragraphs 225 through to 239.
HAYNE J: Not every Australian State has an appeal as of right against conviction.
MR DONALDSON: No Australian State, your Honour, has an appeal right that can be surrendered by the appeal of a co-accused. I suspect, your Honour, we could go through different variations of that but, your Honour, this review is nothing like an appeal of a criminal or of a convicted person for a serious criminal offence in any event.
Your Honours, could I then ask you to turn to 242. Again, these are really, your Honours, to show to your Honours what were the factual matters which were before the Minister, before I take your Honours to the advice that the Minister received. Paragraph 242 deals with this notion of life imprisonment. My friend has taken you to this but your Honours what was before the Minister was advice that the sentence of life which has been imposed upon Mr Adamas means that he will serve until his death, although there are certain avenues available to convert that to a fixed term sentence and again, I will come to it presently but that, as I said at 243, is a punishment that would be considered unjust by Australian standards.
Your Honour, they are the relevant factual matters that were before the Minister to which he had to have regard as circumstances for the purpose of his decision under 9(2)(b). The Minister received advice in relation to those matters. I have taken your Honours already to the advice that he received as to what 9(2)(b) meant and how it was to apply.
Then the Minister was given specific advice in relation to these matters. Your Honours will see that at page 62 of the appeal book where it is set out that there are the discretionary grounds for refusal and 9(2) there referred to and I have taken your Honours to the legal analysis that follows from that. Then, your Honours, there are set out there essentially representations that were made by the parties to the Minister and then at page 67 is, as it were, the advice that the Minister is given in relation to these matters commencing at 185:
The analysis below addresses the right to a fair trial and fairness of [Mr Adamas’] conviction in absentia by reference to Indonesian law, Australian law . . . and international law.
Then, the final bullet point, your Honour, it is relevant:
although you may take guidance from Australian case law . . . the Department considers it is open to you to conclude, taking into account the circumstances of . . . conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations.
There is no explanation there of the standard. That is, as it were, simply a bald statement. Your Honours, I do not think that there can be too much criticism without picking this to pieces. Too much criticism necessarily abuse of the term “Australian law relating to fair trial standards” because, of course, that is really a shorthand way of saying how would Australian law deal with these particular matters. But what is not stated there in the introduction is, when we go to consider all these matters you have got to consider them as was stated in Foster. The advice then goes on, your Honours, to deal with a number of these matters.
At 189, it is stated that trials in absentia in Indonesia are rare but can occur. We do not contend that that would not be a relevant matter to which the Minister could have regard and we have gone through that matter already. In paragraph 197, your Honours will see – and this is a paragraph that my learned friend took your Honours to before. So now we are getting down to, well, let us look at the divergences between how Australian law and Indonesian law would deal with this.
HAYNE J: Other than sitting reading this together, Mr Donaldson, what exactly is the process that you are engaging in? What is the submission you are making?
MR DONALDSON: That when one looks at the advice given to the Minister which are taken to be the Minister’s reasons in relation to the consideration of whether the identified circumstances in these paragraphs of attachment B gave rise to or were circumstances to the effect that the extradition would be “unjust, oppressive or incompatible with humanitarian considerations”. These are his reasons.
HAYNE J: And your proposition is?
MR DONALDSON: That these reasons do not properly state – fail to take into account a relevant consideration, or relevant considerations, being, and it is most squarely seen at 197, your Honour, which is, with respect, not correct but wrong, that a trial in absentia - - -
CRENNAN J: I thought you were saying it did not go far enough, not that it was not correct.
MR DONALDSON: Well, it did not go far enough therefore it is incorrect, your Honour, and for this reason:
convictions in a person’s absence are rare in Australia and generally only occur –
So they are rare and generally only occur –
for summary offences –
That does not say that in an offence like this you could never be tried in Australia in absentia. In fact, it leaves open an appreciation that that may be the case. Then, your Honours, looking down the rest of that portion and at 201 your Honour will see there is a judgment of Justice Deane referring to “fundamental prescript of the criminal law” of Australia. Then at 202:
Applying this principle in ‘[Mr Adamas’] case, on the basis of information provided by Indonesia, it appears that the trial was conducted according to law in Indonesia.
It is hard to imagine what the relevance of that is to the matter which is under the heading. What it does not say, of course, is that this could never happen in Australia because it would be considered manifestly unjust for it to occur.
GAGELER J: Now, this is the third time that the Court is being asked to look over these documents put before the Minister. Are we just to ignore the trial judge’s judgment and the Full Court’s judgment and read these documents for ourselves and draw our own inferences about what the Minister was told and what the Minister was not told?
MR DONALDSON: We are content for your Honours to deal with it on the determination of it by the trial judge and by the majority in the Full Court.
GAGELER J: Well, they are in your favour, are they not?
MR DONALDSON: Yes. I am happy to leave this material to your Honours, but I was seeking to demonstrate that when one looks at the advice that was given to the Minister, he was simply not provided with information – all of the considerations that were relevant to his determination.
FRENCH CJ: Now, does that mean he was not told of a relevant circumstance of the case, or that he was not told of something that was necessary for him to make a judgment about whether the extradition would be “unjust, oppressive or incompatible”? I am just trying to tie your argument back to the text.
MR DONALDSON: In relation to the relevant considerations ground, your Honour, we have put that in terms of the decision that is made by the Minister under 22(3)(e)(iv), that is, in his determinations that circumstances do not exist, he failed to have regard to relevant considerations when he came to have regard as he did to the Treaty provision, 9(2)(b). Your Honour, there is nowhere in this document, attachment B, where it says you can find that the circumstances do exist, that is, that it is unjust, but - - -
FRENCH CJ: Sorry, does that boil down to saying he was not directed to all the circumstances of the case?
MR DONALDSON: He was not directed to all of the circumstances that were relevant to the determination. Some of the matters that he was directed to – and 197, your Honour, is perhaps the classic. It either - - -
FRENCH CJ: That is an irrelevant circumstance.
MR DONALDSON: Your Honours, could I just again to illustrate – I am sorry to be taking so long with this, your Honours, but could I explain to your Honour Justice Hayne, if I could ask your Honour to turn to paragraph 221 to illustrate for your Honour the difference between paragraph 221 and paragraph 243.
HAYNE J: To which ground of review does this argument relate?
MR DONALDSON: This is, your Honour, relevant to the ground of review that the Minister failed to take into account a relevant consideration. But the reason for me directing your Honours to 221, in particular your Honour Justice Hayne, is your Honour will see that at the end of that paragraph where there is a reference to being open to determine that:
it would not be unjust, oppressive or incompatible with humanitarian considerations –
there is no reference there to Australian standards. The only reference in relation to any particular factual matters or circumstances to Australian standards is at 243, and that is the basis of Justice Barker’s observation that the Minister was only really correctly directed in relation to that matter in relation to the advice that the Minister received at paragraph 243.
GAGELER J: Where is that observation by Justice Barker?
MR DONALDSON: That, your Honour, is at paragraph – I think it is at 402. Could your Honour just bear with me for a moment? I am sorry, your Honour, it is 408.
BELL J: Do you have the page number?
MR DONALDSON: Yes, I am sorry, your Honour. It is 442.
BELL J: Thank you.
MR DONALDSON: Do your Honours see that in parenthesis?
GAGELER J: Yes.
MR DONALDSON: Then, your Honours, could I, with some trepidation, go back to attachment B to page 77 of the appeal book? Without taking your Honours specifically to it, there is there a reference to other circumstances – factors to which the Minister was directed. Then, your Honours, the scheme of this advice concludes at page 79 of the book where you will see the heading “Conclusion on Article 9(2)(b)”. Now, if your Honours could read paragraph 255 - - -
FRENCH CJ: What is the proposition?
MR DONALDSON: The proposition, your Honour, is that this does not correctly direct the Minister to the relevant circumstances for the purpose and the correct meaning of Article 9(2)(b).
FRENCH CJ: Well, that is the material you have already put to us.
MR DONALDSON: I will leave your Honours with this, that that advice at 255 and 256, without taking your Honours to it, does not say – as it must have said – that these particular matters are to be considered by the Minister as to whether they are “unjust, oppressive or incompatible with humanitarian considerations” according to Australian standards. So the only reference to that is at 243, your Honours. I apologise, your Honours, for taking so much time to go through that document but it is, with respect, important to understand the scheme of attachment B.
Your Honours, my friend has taken you earlier today to various paragraphs of Justice Barker’s judgment. Could I deal quickly with some of the criticisms that his Honour makes of Justice Barker’s judgment? As I indicated before, his Honour’s judgment is a wide-ranging one, largely because of the nature of having to deal with attachment B which, as your Honours may have gathered is, in part, difficult to follow. Your Honours, my learned friend referred to Justice Barker’s judgment at paragraph 426 which is at page 450.
Your Honours, we say that actually there is no error in what Justice Barker is actually referring to there. What Justice Barker is dealing with is when one looks at 9(2)(b) there are circumstances to which regard has to be had and factors. How they are assessed and the process that one goes through in assessing them actually ultimately does not matter very much. It is that the Minister understands that the final decision he makes is the value judgment at the end determined by Australian standards.
Your Honours, at 427 and again another criticism made of Justice Barker is that what his Honour did is go through the way in which certain matters were dealt with in Indonesia, find minute differences and then say there is a minute difference, therefore there is injustice. His Honour was very alive to that as your Honours can see at paragraph 427. The criticism of his Honour in that respect is unfounded.
At 425 there is a further criticism made of his Honour’s judgment. Again, your Honours, in our respectful submission, what his Honour says at 357 is completely correct and entirely in accordance with what was determined in Bannister and in Foster. Then, your Honours, I think the other criticism that was made – the principal criticism that was made was that his Honour’s reasoning at 326 at 412 of the book – I think with respect to my learned friend, your Honour, a little bit too much has been read into the word “primary” on the sixth or seventh sentence. I think his Honour, with respect, was well alive to the fact that there were various circumstances of different kinds and regard had to be had to those circumstances in considering the final value judgment which the Chief Justice has referred to as the “injustice consideration”.
Could I then deal quickly, your Honours, or deal with the contention. We contend, your Honours, that the decision was in addition to the errors which had been identified in the Full Court and by the trial judge “unreasonable”. That requires your Honours to refer back to section 22(3)(e)(iv).
In our submission, your Honours, for the reasons that we have articulated as we have gone through, no reasonable decision-maker could come to the conclusion that the circumstances of this case, being the circumstances that I have identified, could be characterised other than as unjust in the manner in which it has been used. So the answer to that question will always be that those circumstances do not exist. In our submission, dealing with the second and if that is right then the decision is unreasonable.
We would have to also deal with the second aspect of (iv) which is even if it is considered that those circumstances do exist it is open to the Minister, nonetheless, to order the surrender of the - or not refuse surrender. Our response, your Honours, in relation to that on the Wednesbury ground is, having regard to the manifest injustice of the circumstances of this case there could be no other circumstances that would give rise to an exercise of the discretion of the Minister not to refuse in terms of that provision.
We have set that out in more detail in our written submissions, your Honours. We rely upon the same factors, as it were, for giving rise or for grounding the Wednesbury unreasonableness proposition. I make one other clarification. I think Justice Gageler asked me earlier in the day whether the analysis that we have undertaken in relation to attachment B, the irrelevant considerations grounds and the unreasonableness grounds, in our submission – and can I correct something that I said before – in our respectful submission, it does not matter what view your Honours form or their Honours formed of attachment B.
When one has regard to the facts that are set out in attachment B, being what my friend has referred to as the three matters, it does not matter what advice the Minister was given or not given in relation to that matter in attachment B, there was only one decision that was reasonably open, and so in that sense we do not stand or fall on the unreasonableness ground on the basis of advice given in attachment B, if your Honour understands that?
GAGELER J: I do.
FRENCH CJ: Thank you, Mr Donaldson.
MR DONALDSON: May it please your Honours.
FRENCH CJ: Mr Solicitor.
MR GLEESON: Your Honours, in reply, on the last matter, the unreasonableness ground, if the Court compared two pages of the appeal book, firstly 474, which is the notice of contention, with 79 which are the concluding paragraphs of attachment B, one would see the point ought to be readily dismissed. The so-called unreasonableness argument says, looking at three particular matters, those on 474, any decision in law was unreasonable unless it amounted to a refusal to surrender and everything said on page 79 had to be dismissed as irrelevant.
Now, that does not constitute unreasonableness review, it is simply Mr Donaldson saying he would prefer that some of the matters on page 79 were ignored. Your Honours, that is the first matter. The second matter is, if your Honours stay with page 79, paragraphs 255 to 256 one strand of Mr Donaldson’s argument teased out this morning is the misinformation strand, namely, the Minister was told something that was not told in clear enough lights either, he had to give Australian standards primacy or this could never happen in Australia.
To the extent it may have been necessary to speak on those topics your Honours will in fact see in 255 and 256 Australian standards have been identified as a relevant matter. In particular, in 255 at about line 35 it is said:
it is open to you to afford some weight to the assertions that . . . [the] trial was not conducted in accordance with, and his sentence is excessive by, Australian standards.
So that is a reference to both the trial, the conviction in absentia and to the sentence and it is a reference to that being a relevant matter to consider amongst others, and then it said the Department considers it would be open for him to apply for the review and that attenuates the consequences of the conviction in absentia and then 256 lists a range of matters to consider. The conviction is one of them and the third-last one is:
differences in the conduct of criminal justice processes in Australia and Indonesia -
In our submission, those two paragraphs have adequately captured the task for the Minister. They have given Australian standards, to the extent they might be relevant, a role to play but they have not made them the decisive matter. That is the second matter, your Honour.
The third matter was it is probably clear that Mr Donaldson’s submission that we are at common ground on the role of Australian standards, is not in fact common ground. He referred to paragraph 39 of our submissions. That paragraph of course, in terms, cross-referred to paragraphs 60 to 62 where we advance the argument that the role of Australian standards needs to be understood in the light of the bilateral nature of the Treaty and those paragraphs indicate where it is we are apart.
In relation to Justice Hayne’s possible formulation of the compressed question, the only difficulty we had was, and it is a small one, was with the words “by reason of” which your Honour included. They are used in the Foster formulation. We would prefer in the circumstances “of only”. It is not to do with this case, but only for another case where that might be suggested to give some primacy or ranking to the circumstances over the other factors and if that was not intended by your Honour’s formulation, we have no difficulty with that.
HAYNE J: In truth, the formulation that is probably better adopted is that set out in attachment B where there is the discussion of the operation of the Article, I think, introduced. I cannot put my finger on it but there is an equivalent statement in attachment B. Do not pause to find it.
MR GLEESON: It may be page 63, paragraph 164. It may be that.
HAYNE J: It is the rubric above paragraph 164.
MR GLEESON: Yes. The only final matters were your Honour Justice Bell asked a question about possible differences in standards on the topic of what happens if the person makes it difficult for you to summons them to the trial. That is a good example of where there is a difference between Australian law and certain European law. Just to give the references on that, the Australian position page 431, paragraph 378, Justice Gummow in Wiest set out the Australian position, the requirement of actual presence.
One example of the European position is in one of Mr Donaldson’s authorities, Colozza v Italy (1985) ECHR 516, particularly at paragraph 29. That is on Article 6 of the European Convention and it has since been relied upon in subsequent cases. Paragraph 29 shows the slightly different European position that there is some element of balance involved and the way it is put by the court:
the impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to dispersal of the evidence, expiry of time-limit for prosecution or a miscarriage of justice.
So that within that framework we see more of a civilian approach that there may be circumstances in where the balance of the interests of justice is such that the trial should go on, even though the person through reasonable endeavours has not been able to be summonsed.
FRENCH CJ: There is a particular problem with time limits in Italy, is there not?
MR GLEESON: Yes. It confirms, of course, that justice is about a range of public and private considerations and, indeed, in many contexts constitutional considerations such that the standards of any one country – Australia, for instance – should not be treated as the norm that governs this entire Act. For completeness, I would note that at the end of that paragraph 29, the court contained the proviso which has been subsequently discussed in some of the European cases that in general you ought to be able to obtain a fresh determination on the merits once you find out about it.
What might be said for the PK procedure is that the PK procedure is Indonesia’s form of the civilian approach to this matter, that you get your chance at a hearing afterwards. If Indonesia said you can be convicted in absentia, you can be sent back and there is no prospect of any form of review, that would clearly have been a relevant matter to be put into the balance. But the PK is Indonesia’s form of the European proviso, and that is why attachment B went through to analyse and say you cannot conclude that he will not get an Article 14 or an Article 6 fair trial in circumstances of the PK. But it just shows to illustrate one cannot collapse this Treaty solely into the Australian prism for these matters.
CRENNAN J: Mr Gleeson, may I ask you a question? Towards the end of Mr Donaldson’s submissions, he embraced paragraph 425 of Justice Barker’s judgment, to be found on page 450, as distilling the respondent’s position and this was after looking at paragraph 197 in attachment B – just directing your attention there to the language:
the Minister was not unequivocally advised that in the course of forming a value judgment . . . he needed to ask if it would be considered unjust by Australian standards –
I understand that to be the distillation of the respondent’s position.
MR GLEESON: Yes.
CRENNAN J: Leaving aside more general submissions, did you want to say anything about that?
MR GLEESON: Yes. There are two answers to that. Firstly, it is an unfair reading of paragraph 197, taken in the context of the document, including paragraphs such as 255 and 256 that I just went to. It is pretty clear, in the face of his claim, this would never occur in Australia. Paragraph 197 is saying, true, let us go on and look at other relevant matters. So, to that extent, it is not a correct reading of the document. But the second error that is within 425 is the larger construction error that you could only look at the in absentia conviction through Mr Donaldson’s other prism, namely, could it occur in Australia. If you answer the question that it could not occur in Australia, then you are required to finish your examination of the circumstances and the only other matters you can look at are the nature of the offence and the interests of Indonesia. So to that extent 425 is consistent with 404 to 407, and consistent with paragraphs your Honour mentioned this morning such as 415 – you cannot look at anything else.
The final matter was Justice Gageler raised a question a little earlier about whether there is a need to reread the primary material given the findings. We would emphasise, of course, that one of the correct points made by Justice Lander at page 351 at paragraph 99 was that Justice Barker had not looked at the whole of attachment B in his reasons. He had only looked at paragraphs 185 to 204, that is from the previous paragraph, and it was for that reason that Justice Lander said you have to go on and look at the whole of the document, which is what he proceeds to do over the next couple of pages.
So whether the Court reads the primary document or reads it through the reasons below, we would emphasise through Justice Lander that Australian law has been referred to and if I could just conclude by showing your Honours that through Justice Lander at paragraph 101 he discusses whether substituted service would be permitted under Australian law, that is, he notes that it is in attachment B. At 112, he notes that attachment B discussed the Dietrich principle. At 113, he notes paragraph 255 that I have been to and at 116 he notes Australian standards in relation to sentence. So, material on Australian standards was an important part of attachment B.
BELL J: Just before you leave Justice Lander’s judgment, do you say that his Honour was right to consider that an inference from attachment B – this is paragraph 14 at 334 – was that he was aware of having been convicted by reason of the name change and the other matters?
MR GLEESON: Three steps to the answer. The first is that that is not an essential part of Justice Lander’s reasoning. The second is that in the key paragraphs in attachment B where the matter is brought together for the Minister, this inference is not part of the case, as it were. It is not in 255 and 256. The role that it plays within attachment B is it is part of the larger detail, but it is not ultimately put squarely before the Minister you should give real weight to an inference this man knew all along what was happening.
So to the extent that it played a role in attachment B, which is as part of the detail, then there was some evidence from which the Minister could, if he or she desired, draw a qualified inference. The way it was actually put is perhaps slightly less definitive than the way Justice Lander put it. It was put, you might infer this person knew something of the process, and to the extent he tells you he knew nothing, he is overstating his position. It is not central, we would submit, to the judgment or to how the Court should view the appeal. May it please the Court.
FRENCH CJ: Thank you, Mr Solicitor. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.
AT 3.19 PM THE MATTER WAS ADJOURNED
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