Minister for Home Affairs of the Commonwealth v Zentai

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Gummow,Crennan,Kiefel,Bell JJ,Heydon J.
• Judgment Date: 15 August 2012
• Neutral Citation: 2012-0815 HCA A,[2012] HCA 28
• Court: High Court
• Docket Number: P56/2011
• Date: 15 August 2012

[2012] HCA 28

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Heydon, Crennan, Kiefel And Bell JJ

P56/2011

Minister For Home Affairs of The Commonwealth & Ors

Appellants

and

Charles Zentai & Ors

Respondents

Representation

S B Lloyd SC with H Younan for the appellants (instructed by Australian Government Solicitor)

G R Kennett SC with P W Johnston and V M Priskich for the first respondent (instructed by Fiocco's Lawyers)

Submitting appearance for the second and third respondents

M G Hinton QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

Extradition Act 1988 (Cth), ss 11, 22.

Extradition (Republic of Hungary) Regulations (Cth).

Treaty on Extradition between Australia and the Republic of Hungary, Art 2.5(a).

Minister for Home Affairs of the Commonwealth v Zentai

Extradition — First appellant determined to surrender first respondent for extradition to Republic of Hungary pursuant to s 22(2) of Extradition Act 1988 (Cth) (‘Act’) for qualifying extradition offence of ‘war crime’ — ‘War crime’ not offence under Hungarian law at time of acts said to constitute offence — Act applies in relation to Hungary subject to Treaty on Extradition between Australia and the Republic of Hungary (‘Treaty’) — Art 2.5(a) of Treaty states that extradition may be granted irrespective of when relevant offence committed, provided it was offence in Requesting State at time of acts or omissions constituting offence — Whether offence for which extradition sought must be offence in Requesting State at time of acts or omissions constituting offence.

Words and phrases — ‘offence in relation to which extradition is sought’, ‘qualifying extradition offence’, ‘surrender determination’.

French CJ.

Introduction

1 In a joint judgment delivered in 2003 six members of this Court said 1:

‘[I]t was, and is, settled law in the United Kingdom and Australia that a fugitive offender cannot be arrested for extradition overseas in the absence of a warrant issued under the authority of statute.’

This appeal concerns a constraint upon the statutory power of the Minister for Home Affairs (‘the Minister’) to determine that a person is to be surrendered for extradition in relation to an offence which did not exist at law in the requesting country at the time of the acts or omissions said to constitute the offence.

2 On 12 November 2009 the Minister determined, pursuant to s 22(2) of the Extradition Act 1988 (Cth) (‘the Act’) 2, that the first respondent (‘the respondent’) was to be surrendered to the Republic of Hungary. The determination related to an extradition offence constituted by the alleged commission of a war crime involving the killing of a young Jewish man at Budapest in November 1944. The offence of committing a ‘war crime’ did not exist under the law of the Republic of Hungary until 1945. The decision was evidently made on the basis that it was sufficient that the alleged conduct constituted a criminal offence in 1944, namely murder 3. The Republic of Hungary did not seek the respondent's extradition for the crime of murder.

3 On 10 December 2010, a judge of the Federal Court (McKerracher J), on the application of the respondent, directed the issue of writs of certiorari and mandamus to quash the Minister's decision and require him to determine that the respondent be released and not be surrendered to the Republic of Hungary 4. The Full Court of the Federal Court, on appeal by the Minister, held by majority that the Minister had misconstrued a key provision of the Treaty on Extradition between Australia and the Republic of Hungary (‘the Treaty’) in purporting to make his determination 5. The Treaty did not provide for extradition in relation to an offence which did not exist at law at the time it was allegedly committed. The primary judge's order for the issue of certiorari stood. However, the Full Court made a substituted order for the issue of mandamus requiring the Minister:

‘to determine, according to law, whether [the respondent] is to be surrendered to the Republic of Hungary in relation to the offence of war crime referred to in the extradition request made by the Republic of Hungary in its letter dated 23 March 2005.’

That order required the Minister, in effect, to reconsider his determination under s 22 on the basis that the Treaty, properly construed, did not provide for extradition in relation to an offence which did not exist at the time of the acts or omissions said to constitute that offence.

4 The reasoning of the primary judge and of the Full Court is set out in the joint reasons for judgment.

5 The Treaty is given effect in Australian domestic law by the Act and the Extradition (Republic of Hungary) Regulations (Cth) (‘the Regulations’) made pursuant to s 11 of the Act. The central question in this case concerns a proviso in Art 2.5(a) of the Treaty which, on the Full Court's reasoning, would prevent extradition for an offence which did not exist under the law of the Republic of Hungary at the time it was said to have been committed. By operation of s 22(3) of the Act that limitation is said to constrain the Minister's duty and power under

s 22(2) to determine that the respondent is to be surrendered to the Republic of Hungary in relation to the war crime offence for which extradition was requested.

6 The Minister appeals against the decision of the Full Court pursuant to a grant of special leave made on 9 December 2011 6. For the reasons that follow that appeal must be dismissed.

Procedural background

7 The Minister's determination that the respondent be surrendered to the Republic of Hungary came after a lengthy process which began on 3 March 2005. On that date, the Military Division of the Metropolitan Court of Budapest issued a warrant for the arrest of the respondent. On 23 March 2005 the Republic of Hungary wrote to the Commonwealth Attorney-General's Department requesting the extradition of the respondent to the Republic of Hungary for the purpose of prosecution under the warrant.

8 On the warrant it was alleged that in November 1944 the respondent, while stationed in Budapest as a member of the Horse-Drawn Train Division 1 of Corps 1 of the Hungarian Royal Army, Budapest, had recognised Peter Balazs, a young man of Jewish origin who was not wearing a mandatory yellow star. The respondent is alleged to have dragged Mr Balazs to an army post and, with others, to have beaten him to death. It was not in dispute that the war crime offence, first created under Hungarian law in 1945 and re-enacted as s 165 of the Criminal Code of the Republic of Hungary (‘the Criminal Code’), did not exist as an offence when Mr Balazs was killed. Nor was it in dispute that the offence of murder did exist under Hungarian law at that time.

9 Section 165 of Act IV of 1978 on the Criminal Code 7 provided for war crimes defined by reference to a 1945 Decree 8. The English translation of the relevant text of the Decree was as follows:

‘A person who seriously violated international legal rules applicable to war in respect of the treatment of the population of the occupied territories

or prisoners of war, or treated the population of the reannexed territories barbarously, misusing the power granted to him, or who was an instigator, perpetrator or accomplice of the unlawful execution or torture of persons either in Hungary or abroad’.

10 The Minister, acting under s 16 of the Act, issued a notice on 8 July 2005 stating that the request from the Republic of Hungary had been received. On the same day a magistrate, acting on the notice under s 12 of the Act, issued a provisional warrant for the arrest of the respondent. The respondent was arrested and granted bail. Over three years later, on 20 August 2008, a magistrate determined, pursuant to s 19 of the Act, that the respondent was eligible for surrender to the Republic of Hungary. In the meantime the respondent had instituted proceedings in the Federal Court challenging the validity of the conferral upon State magistrates of the power to determine eligibility for surrender under s 19. That challenge was unsuccessful at first instance 9, on appeal to the Full Court 10 and on appeal to this Court 11.

11 The respondent applied to the Federal Court under s 21 of the Act for review of the magistrate's determination under s 19. On 31 March 2009, the magistrate's determination was affirmed by Gilmour J 12. An appeal to the Full Federal Court (Black CJ, Tracey and Barker JJ) against that decision was dismissed on 8 October 2009 13. The Minister's determination under s 22 and the challenge to the determination in the Federal Court that followed led ultimately to the appeal to this Court.

Statutory framework

12 The Act establishes procedures and confers powers upon the Minister for the extradition of a person from Australia to an extradition country in respect of an ‘extradition offence’ 14. An ‘extradition country’ is a country declared by

regulations under the Act to be an extradition country 15. The Republic of Hungary is so declared by reg 3 of the Regulations.

13 The multi-stage process leading to extradition involves the making of an extradition request by an extradition country; the issue of a notice by the Minister, expressed to be directed to any magistrate, that the request has been received 16; and the issue of a provisional arrest warrant 17. There follows either a consent by the person to surrender 18 or a determination by a magistrate in proceedings under s 19 of the Act of the person's eligibility for surrender. An application for a review of the magistrate's determination may be made under s 21 to the Federal Court or the Supreme Court of the relevant State or Territory. If eligibility is established before the...