Minister for Home Affairs v Zentai [Australia, High Court.]

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 15 August 2012
• Date: 15 August 2012

([2012] HCA 28)

Australia, High Court.

(French CJ; Gummow, Heydon, Crennan, Kiefel and Bell JJ)

Minister for Home Affairs (Cth) and Others

and

Zentai and Others1

Extradition Extradition Act 1988 (Cth) Bilateral Extradition Treaty between Australia and Hungary Treaty interpretation Double criminality Requirement that offence charged was crime at time of commission of offence War crimes Refusal of surrender

Extradition Double criminality Nature and scope of requirement Temporal element Whether acts constituting offence must have constituted the precise crime for which extradition requested at the date they took place War crimes Murder Respondent accused of war crime of murdering civilian in Hungary in 1944 Murder constituting offence under Hungarian law in 1944 Offence of war crimes added to Hungarian law at later date

Treaties Interpretation Vienna Convention on the Law of Treaties, 1969 Articles 31 and 32 Whether declaratory of customary international law Interpretation of treaty given effect by statute Relevance of subsequent practice of the parties

Relationship of international law and municipal law Treaties Interpretation Extradition treaty Treaty given effect in Australian law by statute Approach to treaty interpretation

War and armed conflict War crimes Extradition Requirement of double criminality War crime constituting offence of murder The law of Australia

Summary:2The facts:Hungary sought the extradition of Charles Zentai (the respondent), an Australian citizen, for war crimes allegedly committed in Hungary in 1944. It was alleged that in Budapest in November 1944, the respondent and others in his unit of the Hungarian Royal Army murdered a man of Jewish origin who was not wearing a mandatory yellow star. At that date, murder was an offence pursuant to the Hungarian Criminal Code. The offence of war crimes was created in 1945 and later re-enacted as Section 165 of the Hungarian Criminal Code. On 3 March 2005, the Military Division of the Metropolitan Court of Budapest issued a warrant for the arrest of the respondent for the offence of war crimes. On 23 March 2005, Hungary requested the extradition of the respondent from Australia under the bilateral extradition treaty concluded by the two States on 25 October 1995. The treaty was given effect in Australian law by the Extradition (Republic of Hungary) Regulations (the Regulations).

Article 2(5) of the Treaty provided:

On 12 November 2009, the Minister of Home Affairs determined that the respondent ought to be extradited to Hungary to face the charge of war crimes. The respondent contended that he ought not to be extradited because the offence of war crimes had not existed in Hungarian law at the time that the acts of which he was accused were said to have taken place, so that Article 2(5)(a) of the Treaty was not satisfied.

The respondent successfully applied to the Federal Court of Australia for writs of certiorari and mandamus to have the Minister's decision set aside and reversed. The Minister was successful in part on appeal to the Full Court of the Federal Court of Australia having the order for mandamus set aside.

The Minister appealed to the High Court.

Held (by five votes to one):The appeal was dismissed.

Per Gummow, Crennan, Kiefel and Bell JJ: The respondent should not be extradited since the offence of war crimes did not exist in Hungarian law at the time of the commission of the acts constituting the offence.

(1) The authority to extradite was derived from the Extradition Act and the Regulations, which together gave effect to the Treaty. It followed that

the Treaty was to be interpreted according to the ordinary rules of statutory interpretation and was not capable of taking a new meaning based on the subsequent agreement between, or common understanding of, the States Parties (para. 65)

(2) The test under Article 2(5) of the Treaty was whether the alleged acts or omissions would have constituted the offence with which the respondent was charged and for which extradition was sought and whether that offence was part of the law of the requesting State at the time when those acts or omissions were said to have occurred. It was irrelevant that the same acts or omissions might have constituted another offence at that time (para. 72).

Per French CJ: Articles 31 and 32 of the Vienna Convention on the Law of Treaties represented customary international law with respect to treaty interpretation. An overly technical approach to treaty interpretation should be avoided (paras. 1819). It was not necessary to demonstrate that conduct that constituted an offence in the requesting State was criminalized in precisely the same way as it was in the requested State. The Treaty required the requesting State to demonstrate that the offence with which the person was charged existed at the time of the commission of the acts or omissions alleged and not simply that the commission of those acts or omissions could give rise to some other criminal charge. This construction was consistent with general principles proscribing retroactive criminal laws (paras. 25 and 314).

Per Heydon J (dissenting): The term offence referred to the factual criteria necessary to establish criminal guilt. Even though the offence of war crimes did not exist in 1944, the conduct alleged by Hungary would have constituted an offence against the law of Hungary in 1944, namely the crime of murder. The terminology used by Hungary to describe its offences was irrelevant (paras. 8390).

The following is the text of the judgments delivered in the Court:

[646]French CJ

Introduction

1. In a joint judgment delivered in 2003 six members of this court said (at [13]):1

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 (McKer-racher 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:

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 Common wealth 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...