relevant and irrelevant considerations: the in absentia conviction
254 Minister's submissions: The Minister says the primary judge rested his decision on the proper question being that stated at [74] of his reasons:
whether extraditing the applicant to Indonesia would, in the circumstances, be unjust, oppressive or incompatible with humanitarian considerations judged by the standards of Australian domestic criminal law. (Emphasis added).
The Minister notes that, at [75] and [77], his Honour said that this followed from Bannister and other cases.
255 The Minister says that the expression "incompatible with humanitarian considerations" imports a humanity perspective; it is discordant with a legal perspective. The expression "humanitarian" does not appear in the Criminal Code Act 1995 (Cth) for example, except in reference to war crimes constituted by attacks on persons engaged in humanitarian endeavours: s 268.36 and s 268.79; and offences as to charges of assisting an enemy: s 80.1AA. That is to say, even though conviction in absentia does not conform to Australian criminal law, still the question of compatibility with humanitarian considerations is unresolved.
256 The Minister further submits that, in a similar way, the concept of "oppressive" is not strictly legal. It is referable to the particular circumstances of the eligible person. It arises only when it would be oppressive in the particular circumstances (but not necessarily in cases otherwise indistinguishable). The Minister refers to Kakis at 782-3 (Lord Diplock).
257 Finally, the Minister contends that on the question whether the sentence was unjust etc, the Minister was informed that the applicable standard was Australian standards and refers to what appears in Att B at [243].
258 As a general proposition the Minister contends that it is not correct that Australian criminal law is the sole applicable standard for assessing fairness (or similar concepts) in the context of extradition. The Minister argues, first, that the Treaty and the Extradition Act foreclose certain such applications of Australian criminal law, in particular, trials in absentia and life sentences. That is to say, while trial in absentia is generally unavailable for serious offences in Australia, the fact of trial in absentia in Indonesia is plainly not a fact that excludes extradition. The authorities on the applicable standard all deal with other issues, that is to say, issues not directly determined by the Extradition Act and applicable treaty.
259 Secondly, the Minister contends that application of Australian criminal law as the criterion of fairness would undermine extradition treaties in general and seriously compromise the foundations of extradition, namely the concepts of reciprocity, comity and respect for differences in other jurisdictions. The Minister says he was correctly informed in this regard at [215]-[221] of Att B that referred to relevant authority.
260 The Minister makes a number of critical submissions in relation to the determination of the standard that applies when questions of unjustness etc arise. In essence, the Minister submits that the standard of "unjust, oppressive or incompatible with humanitarian considerations" that appears in Art 9(2)(b) and referred to inferentially by s 22(3)(e)(iv), do not constitute a jurisdictional fact but rather fall to assessment by the Minister.
261 The Minister first draws attention to the way the Extradition Act operates:
The Act takes effect in respect of particular foreign states often, but not always, subject to treaty.
Treaties typically reflects certain concerns, for example about reciprocity as well as certain types of offence.
Treaties are agreements to extradite but with express exceptions: Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614 (Vasiljkovic) at [7] Gleeson CJ.
By s 11(1) the Act is subject to any "limitations, conditions, exceptions or qualifications" provided for by the Regulations, which in turn pick up the relevant Treaty.
Thus, a provision of a Treaty is a limitation etc.
In this case Art 9(2)(b) provides a limitation by enabling the Minister to refuse extradition in certain circumstances including that in (b).
By s 22(3)(e)(iv) of the Act an eligible person is only to be surrendered if the Minister is satisfied either that the circumstances, in this case, of Art 9(2)(b) do not exist or that they do exist "but that nevertheless surrender of the person in relation to the offence should not be refused".
Thus, the Minister may extradite in any circumstances relevant to Art 9(2)(b), if satisfied that extradition would not be unjust or satisfied that it would be unjust but that nevertheless surrender should not be refused.
The Minister also draws attention to s 10(1) of the Act which provides that:
(1) Where a person has been convicted in the person's absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence. (Emphasis added).
262 The Minister says s 10(1) shows that extradition is contemplated, not only in cases where a conviction has been made in absentia, but also where such a conviction is "final", that is, not open to rehearing or retrial.
263 The Minister submits a person is "convicted in the person's absence" for the purposes of s 10(1) regardless of the reasons for absence and in this regard refers to Hellenic Republic v Tzatzimakis [2003] FCAFC 4; (2003) 127 FCR 130 (Tzatzimakis) at [24] (Black CJ), at [62] (Hill J) and at [86] and [93] (Finkelstein J). The Minister submits this is a legislative choice which entails the abandonment of earlier distinctions between "final" convictions and those convictions that may be reheard after extradition, as noted by Hill J at [34].
264 The Minister further notes the person convicted in absentia is dealt with under s 19(3)(a) as if he were merely accused in the requesting state and is not treated as if convicted as he would otherwise be under s 19(3)(b).
265 The Minister submits that s 10(1) has consequences also in respect of the Regulations and thus, the Treaty: see Tzatzimakis at [17]-[24] (Black CJ); [31] (Hill J).
266 The Minister submits that Wiest, E.A v The Director of Public Prosecutions [1988] FCA 778; (1988) 23 FCR 472 (Wiest) is authority for the proposition that s 10(1) has no other legislative implication for the Act. Thus, the fact that a person has been convicted in absentia bears on the process by which a magistrate decides if the person is or is not eligible for surrender, and consequently on the supporting documents which are required to be produced to the magistrate, but does not otherwise bear on the person's eligibility. However, Tzatzimakis held that the words in s 10(1) mean what they say. The Minister says this observation should also include the words "for the purposes of this Act" that appears in s 10(1).
267 The Minister notes that s 10(1) takes effect in the context of a "shift" in Australia's stance from requiring prima facie evidence of guilt to a "no evidence" standard, as discussed in Vasiljkovic, a policy that is evident in s 19(3) of the Act and Art 11 of the Treaty.
268 As a result the Minister submits the legislative choice is that a person convicted in absentia is processed as if merely charged and accordingly may be eligible for extradition and extradited regardless of the incidence of that conviction in absentia.
269 The Minister submits it is the abandonment of the previous distinction concerning final and other conviction and the use instead of the s 10 deeming device that imply that the absence or quality of a rehearing in Indonesia is no bar to extradition. That is to say, given that a person who has been convicted finally in absentia can be eligible for surrender provided that a certain process is followed and given that that process is followed, the Act cannot properly be interpreted to allow the Minister to be satisfied that extradition should be refused (whether because unjust etc or otherwise) merely on the fact that the person has been convicted finally in absentia.
270 The Ministers says that, to put the same point more generally, given such eligibility, it would require very clear words in the Treaty before the Treaty could be interpreted to provide that trial in absentia was, without more, so profoundly offensive that no exercise of discretion to extradite could be reasonable.
271 The Minister then draws attention to Art 11(2)(b) of the Treaty, which provides for the request for extradition to be accompanied, if a person has been convicted in his absence of an offence, by judicial or other document, authorising the apprehension of the person and other information.
272 The Minister says it follows that the Treaty with Indonesia specifically contemplates extradition of a person convicted in absentia.
273 The Minister also draws attention to other aspects of the Treaty which he submits imply that extradition lies regardless of a person having been convicted in absentia and regardless of the prospect of rehearing in Indonesia. For example, in cases where specific principles of law, important to Australia are to stand against extradition, the Treaty so specifies. Article 4 dealing with political offences, Art 6 dealing with double jeopardy, Art 7 dealing with death penalty, Art 9.1(a) dealing with expiry of limitation period, Art 9.1(b) dealing with military offences, Art 9.1(c) dealing with trial otherwise than by ordinary courts and tribunals, Art 9.1(d) dealing with impermissible purposes relating to race, religion, nationality or political opinions and Art 9.1(e) dealing with cruel, inhuman or degrading treatment or punishment are specifically referred to by the Minister.
274 The Minister says that by contrast the Treaty does not exclude extradition in cases of trial in absentia or of sentence of life imprisonment. It makes no distinction between convictions in absentia with the right of retrial and those without. Further, Art 11(2)(b) also provides that, where a person has been convicted in absentia, the documentation that must accompany a request is for extradition is to comprise "a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence". No mention is made of any document evidencing the conviction despite applying expressly the convictions in absentia. The Minister says this is in contrast to Art 11(2)(c) and (d) which provide that a request for extradition in cases of convictions not in absentia must include documentary evidence of the conviction and sentence or intention to sentence. The Minister submits this distinction is consistent with s 10(1) of the Act.
275 The Minister submits that the Act, Regulations and Treaty are inconsistent with any view that a final conviction in absentia, without more, is incompatible with any reasonable Minister allowing extradition.
276 The Minister also seeks to draw important distinctions in respect of the process and the standard by which the Minister is to assess whether extradition would be unjust etc for the purposes of Art 9(2)(b):
First, it is the Minister who is to make this assessment, not the Court. Under the Constitution the Court's role is to assess the process by which the Minister so decided, not to decide the question itself.
Secondly, the Minister's task is executive, not judicial and it is not part of Australia's criminal justice system. It is to enable adjudication in a foreign place, according to that country's law. The Minister accordingly is not required to examine and apply Australian criminal law and procedure in his assessment whether extradition would be unjust etc. Rather, the Minister is to apply the Minister's judgment to the question. That is a moral and pragmatic standard not a legal one.
Further it is manifest from Art 9(2)(b) that the question cannot be assessed by the yardstick of Australian criminal law. The question whether extradition would be unjust etc, is to be considered by the Minister "while also taking into account the nature of the offence and the interests of the Requesting State...". That is to say, the question is not whether extradition would be unjust etc, but whether it would be unjust etc also taking into account the nature of the offence and the interests of the requesting state. This therefore precludes the Art 9(2)(b) question being addressed from a purely Australian perspective, whether legal or moral.
Thus in applying his judgment on a matter of extradition to a foreign state, the Minister is entitled to take into account international and Indonesian views on the question and he is so entitled at both stages - on the question under Art 9(2)(b) and on the question whether that question holds sway in his final exercise of discretion.
The Minister accepts that it may well be an error to assess whether extradition would be unjust etc by reference solely to Indonesian standards, because that might deprive Art 9(2)(b) of substance and would be inconsistent with Art 9. However, it is not an error to have regard to Indonesian interests and law, including whether relevant Indonesian law seriously departs from international or Australian standards.
Moreover, the Art 9(2)(b) question is specific to the case at hand, namely the extradition of the first respondent. It cannot be confined to the moral or jurisprudential question at large whether trials in absentia are satisfactory; that question has been resolved by the Parliament and addressed in s 10 of the Act and in the Regulations. Nor can the Minister's decision be confined to the question whether the extradition is fair or fair to the person.
Additionally, there are sound reasons for the executive to retain specific and general discretions not open to court review on merit. The Minister refers to Vasiljkovic at [27] (Gleeson CJ).
Finally, on judicial review, when assessing Wednesbury unreasonableness claims, the Court must address the question in light of those matters. It is not the Court's role to decide whether the circumstances referred to in Art 9(2)(b) of the Treaty existed or not.
277 The Minister further submits that of the precedent decisions considered by the primary judge, none concerned trial in absentia and none considered Art 9(2)(b) of the Treaty.
278 The Minister renews his submission that it is not correct that Australian criminal law is the solely applicable standard for assessing fairness in the context of extradition. The Minister refers to the terms of the Act and in particular s 10(1).
279 The Minister refers to the obligations Australia has concerning international comity and practices, for example, what was said in Tzatzimakis at [49] by Hill J.
280 The Minister notes that the primary judge relied on Moloney at [93], Perry v Lean (1985) 63 ALR 407 (Perry v Lean) at [77] and Foster at [77], each of which refers to Re Henderson, Henderson v Secretary of State for Home Affairs and Another [1950] 1 All ER 283 (Re Henderson). The Minister notes Re Henderson is also cited in Foster v Senator Amanda Vanstone [1999] FCA 1447.
281 The Minister notes the Australian cases referring to Re Henderson cite the reasons of Tucker LJ. The Minister, however, notes that Jenkins LJ who concurred made observations, at 288, that the Court must assume that a trial in a foreign country will be properly conducted.
282 The Minister also notes that in Foster only Gaudron and Hayne JJ mentioned the applicable standard, at [43]: as follows
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. Is surrender of the eligible person for that offence, or those offences, unjust or oppressive or too severe a punishment? The precise nature and content of that inquiry may require further consideration in an appropriate case but little or no argument about that was called for or was directed to it in this matter and we say nothing more about it.
283 As to Bannister, the Minister notes that the Full Court, at [26], stated:
We conclude that it is appropriate, in considering whether, 'for any other reason' it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive.
Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. 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.
284 The Minister notes, however, that the Full Court went on, at [27], to assess the "community standard" by reference to High Court authority on the particular question, disapproving of the approach approved by the New Zealand Court of Appeal in R v Accused [1993] 1 NZLR 385. The Minister submits that this should not be taken to mean the High Court precedent dictates the community standard.
285 The Minister refers to a range of leading cases touching on the question of the right to a fair trial in a foreign country from the United Kingdom, Canada and Hong Kong, as well as the United States, and contends these authorities support the view that the extradition rules in those countries recognise that there may well be differences between trial processes in foreign countries from the reciprocating state which, nonetheless, will not be an impediment to extradition being ordered. For example, in Re Kindler and Minister of Justice; Amnesty International, Intervener (1991) 84 DLR (4th) 438 (Re Kindler), McLachlin J (with whom La Forest, L'Heureux-Dubé and Gonthier JJ agreed) stated at 488:
Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodate differences between our system of criminal justice and the systems in place in reciprocating states. The simple fact is that if we were to insist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate. Canada, unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser.
286 Her Honour, at 494, further observed:
As discussed above, an effective extradition process is founded on respect for sovereignty and differences in the judicial systems among various nations. Canada displays confidence in the fairness of the justice systems of other nations by entering into treaties with them. If Canada is to be assured of co-operation when it seeks extradition from states whose laws may not conform exactly to ours, it must be prepared to reciprocate.
287 In the earlier Canadian Supreme Court decision of The Republic of Argentina v Mellino [1987] 1 SCR 536 (Mellino), La Forest J (with whom Dickson CJ and Beetz, McIntyre and Le Dain JJ agreed) said, at [32]:
Nor is an extradition judge empowered to weigh the ultimate issue of whether delay will affect the trial of the action in the foreign country. The treaty places Canada under an obligation to surrender the fugitive for trial in the requesting country where such issues are to be considered. The assumption that the requesting state will give the fugitive a fair trial according to its laws underlies the whole theory and practice of extradition and our courts have over many years made it abundantly clear that an extradition judge should not give effect to any suggestion that the proceedings are oppressive or that the fugitive will not be given a fair trial or give proper weight to the evidence.
288 The Minister notes that North J relied on Mellino in McCrea v Minister for Customs & Justice [2004] FCA 1273; (2004) 212 ALR 297 at [35], which decision was upheld on appeal in McCrea v Minister for Customs and Justice [2005] FCAFC 180; (2005) 223 ALR 552.
289 The Minister further submits that the Minister's assessment of the Art 9(2)(b) question cannot be made solely or specifically by reference to the standards of the Australian community. Rather, the Parliament has placed responsibility for this issue in the Minister's judgment as the representative of the Australian community. The connection with the standards of the Australian community is representative and derivative, not direct - although the Minister notes what their Honours Gaudron and Hayne JJ said in Foster to the effect that the matter may require further consideration.
290 The Minister submits that Australian community standards could only be ascertained by a plebiscite and this itself might offend Australian judicial standards. As it is standards may vary from State to State.
291 Most importantly, the Minister submits the Art 9(2)(b) question is highly specific to the circumstances of the particular case and ascertaining the community's standard is impossible otherwise and as represented by the Minister. There is no evidence about what the attitude of the Australian community to the extradition of a person in the circumstances of the first respondent is.
292 Further, because the Australian community standard is subject to the nature of the offence and the interests of Indonesia, it cannot exclusively reflect the community's moral judgment in any event.
293 The Minister points out there are a number of treaties with other countries that have similar text to the Treaty in question here with Indonesia.
294 The Minister points out that two treaties specifically provide that a person convicted in absentia shall not be extradited unless the requesting state gives assurances that the person will have an opportunity to put forward a defence. These treaties - with United Mexican States and Republic of Argentina - do not include text similar to that which appears in the Treaty with Indonesia.
295 First respondent's submissions: On behalf of the first respondent, it is submitted that because the Act and the Treaty between Australia and Indonesia contemplate extradition of persons convicted in absentia it does not carry with it the conclusion that extradition of a person convicted in absentia could never be unjust, oppressive or incompatible with humanitarian considerations.
296 As to the Treaties between Australia and the United Mexican States and the Republic of Argentina, it is submitted on behalf of the first respondent that these are irrelevant. It is said that the basis upon which the executive enters into treaties is not justiciable and it cannot be contended that the terms of one bilateral treaty has a bearing upon the meaning of another treaty; especially in circumstances where neither of those two mentioned treaties include a discretionary ground of refusal based upon injustice or oppression.
297 On behalf of the first respondent it is submitted that, contrary to the Minister's submissions, it is not contended that conviction in absentia simpliciter, that is to say of itself, would preclude extradition.
298 What is said on behalf of the first respondent is that it is the "extraordinary circumstances" of the first respondent that were before the Minister, the circumstances of his conviction in absentia and the fact that he has no right of retrial or appeal upon extradition to Indonesia.
299 Senior counsel for the first respondent submits the leading authority is Foster and says it is binding on the Court, although it is also acknowledged that only Gaudron and Hayne JJ considered the question concerning what the standard is, which the words "unjust or oppressive or too severe a punishment" (used in the particular statute there considered) set.
300 The first respondent also relies on the observation of Tucker LJ in Re Henderson, at 287, which was relied upon by Jacobs J in Perry v Lean which plainly sought to draw a comparison between proceedings in a foreign country concerned with the processes in the country of origin.
301 Senior counsel further submits that Bannister can only be understood as a decision where the "value judgment" of whether surrender for trial in New Zealand would be unjust or oppressive was made solely according to Australian standards, not the standards of any other country. Two issues arise from the submissions; first, the proper construction of Art 9(2)(b) of the Treaty; and, second, how Australian law, by the Extradition Act and Art 9(2)(b), accommodates in absentia convictions in the Requesting State, if at all.
302 The first respondent submits that not only would extradition be unjust by Australian standards, but it would also be contrary to standards of international law. In this the first respondent points to Art 14(3)(d) of the ICCPR which relevantly provides that a person has a right to be tried in his or her presence.
303 The first respondent also points to Art 14(3)(e) of the ICCPR which relevantly provides that an accused person has a right to examine witnesses and to call witnesses on the same terms as those called by the prosecution.
304 The first respondent accepts that under Art 14(3)(d) of the ICCPR, to which both Australia and Indonesia are parties, the person's right to be tried in their presence is not absolute but the only circumstances in which a trial may be held in the absence of the accused are first, where the accused is present during part of a trial but is removed due to disruption, secondly, where the accused has been informed of the trial before it takes place but declines to exercise his or her right to be present and, thirdly, where there is an unfettered right to a retrial.
305 The first respondent submits that international law requires that in order to comply with Art 14(3)(d) necessary steps must be taken by the prosecution to summon accused persons in a timely manner and to inform them beforehand of the date and place of trial and to request their attendance: United Nations Human Rights Committee, General Comment no. 32, Article 14, Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32.
306 The first respondent says he was not informed of the trial before it took place and did not decline to be present and that compliance with municipal law service and notice requirements did not satisfy the Art 14(3)(d) requirement. There is nothing in the evidence to suggest that he had absconded from Indonesia or was aware that the trial had occurred in his absence.
307 The first respondent submits that it is also instructive to regard decisions dealing with the equivalent provision of Art 6 in the European Convention for the Protection of Human Rights and Fundamental Freedom, which was opened for signature 4 November 1950, 213 UNTS 221 and entered into force 3 September 1953 (European Convention). Attention is drawn to Colozza v Italy, Application No 9024/80 ECHR (12 February 1985) (Colozza), where the European Court of Human Rights held that the applicant had not waived his right to appear. Reference is also made to Shkalla v Albania, Application No 26866/05 ECHR (10 May 2011) (Shkalla), where the Court ruled on the requirements for compliance with the information provisions. In the course of doing so, at [70], the Court observed:
The Court cannot, however, rule out the possibility that certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to avoid prosecution.
The Court also held that the accused did not have an effective right to apply for a retrial and therefore there had been a violation of Art 6 of the European Convention.
308 The first respondent also refers to a number of other European Convention cases where the importance of notification of trial was considered to be significant and not complied with, including Somogyi v Italy, Application No 67972/01 ECHR (18 May 2004) (Somogyi); T v Italy, Application No 14104/88 ECHR (12 October 1992) (T v Italy) and Sejdovic v Italy, Application No 56581/00 ECHR (1 March 2006).
309 The first respondent also notes that it might be considered instructive that the Extradition Act 2003 (UK) requires the Court to consider whether the requested person was convicted in his presence or absence and, if convicted in his absence, the Court must determine if the accused is entitled to a retrial.
310 The Minister's reply: The Minister contends that "authority and logic" are against the proposition that the Requesting State must succeed in giving actual notice to a person in every case before proceeding to trial in absentia. It is submitted that logic is against it because accused persons often avoid actual service and may avoid the appearance of deliberately avoiding service.
311 Thus, the Minister contends, the question is were Indonesia's efforts to give notice sufficient to allow the Minister to be satisfied that the question of service did not render extradition unjust or did not render extradition so unjust etc that the Minister's exercise of discretion was unreasonable. The Minister also says it may validly be part of that question to ask whether there was cause for the Indonesian authorities to know or assume that the first respondent was already removed from the jurisdiction and would not receive actual service, implying a lack of good faith. In this regard, the Minister submits that there was no such evidence and on the contrary:
There was no record of the first respondent having used his passport to leave Indonesia.
The village head did not have a forwarding address or knowledge of his emigration.
Apart from the village head the inference is clear that no person informed the authorities that he was abroad.
The very fact of continued Indonesian efforts at service evidences a lack of knowledge of the authorities that he had emigrated.
312 The Minister submits there is no requirement under international law that actual knowledge of trial must be shown before an extradition can be reasonably countenanced. There is no requirement for the Minister to separately investigate the question. Rather, the Minister was obliged only to consider representations and evidence from the first respondent and assess that against other available information, including information provided by Indonesia. He gave no direct evidence to the Minister on the matter.
313 The Minister further notes that the first respondent does not assert that the fact of trial in absentia in itself made the Minister's decision unreasonable.
314 On the question whether other treaties or conventions deem trials in absentia unacceptable, the Minister submits that if the question in point is treaties binding on Australia, then only the Treaty and ICCPR are relevant, but that if the question is the attitudes of the international community to in absentia trials, then all the treaties and conventions referred to by the first respondent may be relevant, but the relevance is contrary to the ruling made by the primary judge.
315 In that regard, the Minister submits that so far as the submission that the trial in absentia of the first respondent was contrary to the ICCPR because, absent a right to a retrial or deliberate obstruction, trials in absentia may only proceed where a defendant has actual knowledge of the charges, however, the correct position is more accurately stated to be that Art 14 of the ICCPR requires the Requesting State to have taken necessary steps to inform an accused of proceedings in a timely manner and seek their attendance. This does not require actual knowledge to be established.
316 The Minister submits the consistent position of the Human Rights Committee is that trials in absentia may proceed without the defendant having actual knowledge of the proceedings, provided that due steps have been taken to inform him of the proceedings: Mbenge v Zaire, Communication No 16/1977 HRC (25 March 1983) (Mbenge) at [14.1]. The Minister says that in Mbenge the Committee accepted there must be limits to the efforts which can duly be expected, at [14.2]. See also Maleki v Italy, Communication No 699/1996 HRC (15 July 1999) (Maleki v Italy) at [9.4].
317 The Minister says that to the extent the first respondent relies on the academic opinion of Jordash W and Parker T, "Trials in Absentia at the Special Tribunal for Lebanon" (2010) 8(2) J Int Criminal Justice 487 at 491, it should be noted the authors were defence lawyers who had practised before international criminal tribunals, and who argue that Maleki v Italy creates a requirement that a defendant must be informed of the charges in person. The Minister says this is not correct and the Committee's reasoning emphasises that an onus lies on the State to inform the accused in a timely manner of the proceedings, which should not be taken to mean that a State cannot discharge its onus by taking necessary steps, which may fall short of establishing actual knowledge.
318 The Minister says the Human Rights Committee in its 2007 General Comment No 32 on Art 14 of the ICCPR when it said:
In the case of trials in absentia, article 14, paragraph 3(a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings.
The Minister says that in Salikh v Uzbekistan, the Committee reiterated that "there must be certain limits to the efforts that can reasonably be expected of the competent authorities with a view to establishing contact with the accused": Salikh v Uzbekistan, Communication No 1382/2005 HRC (30 March 2009) (Salikh v Uzbekistan), [9.5].
319 The Minister contends that the material before him disclosed that "all due steps" had been taken: six summonses were issued between 18 October 2000 and 15 July 2002. The Indonesian District Court did not assume that the first respondent had knowledge, merely by reason of the initial summons. It twice requested reissue of summonses and caused advertisements to be placed in newspapers and at the Court building and delayed the trial to allow these things to occur. The Minister submits the efforts made in Indonesia in this regard far exceeded those in Maleki v Italy and Mbenge and it was difficult to identify what further efforts Indonesian authorities and the District Court could reasonably have made to inform the first respondent in this case. The Minister says it is not legitimate to insist that the authorities should have lodged an Interpol notice prior to the proceedings and there is no evidence that Indonesian authorities knew that the first respondent had left Indonesia. It was only after the red notice was issued by Interpol that his whereabouts was discovered.
320 The Minister further submits that to the extent that the first respondent relies on jurisprudence of the European Court of Human Rights for the contention that actual knowledge is required before a trial in absentia may proceed, this should not be influential as:
The European Court of Human Rights issues judgments interpreting the European Convention and not the ICCPR.
Neither Australia nor Indonesia is a party to the European Convention or bound by its jurisprudence.
The views of the European Court may provide useful guidance but do not address the ICCPR.
In the interpretation of Australia's and Indonesia's obligations under the ICCPR, the Committee's statements must be preferred to those of the European Court in relation to Art 6.
321 Although the Committee's views are not binding on States Parties, the Committee was created under Art 28 of the ICCPR, and comprises independent experts whose functions include issuing comments to States Parties on appropriate measures to implement their obligations.
322 Finally, the Minister submits that to the extent that the first respondent relies on the fact that he will not have the right to a retrial upon surrender to Indonesia, the Committee has not attached a fresh-trial condition in relation to trials in absentia for the purpose of compliance with Art 14 of the ICCPR.
323 Consideration - Decision-making process required by s 22(3)(e) and Art 9(2)(b): Article 9(2)(b) of the Treaty applies in relation to the exercise of the Minister's power under s 22 of the Extradition Act because, by s 22(3)(e)(ii) and (iv), the Treaty provision is one by which the surrender of the first respondent in relation to the offence "may be refused", and so the Minister is required to be satisfied "either that the…circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused".
324 The "circumstances" referred to in para (iv) are the circumstances to which Art 9(2)(b) refers. Those circumstances are to be identified by reference to the full text of Art 9(2)(b) but, in short, may be described as where Australia, as the Requested State, while taking into account the nature of the offence and the interests of Indonesia, as the Requesting State, considers that, in the circumstances of the case, the surrender of the first respondent to Indonesia "would be unjust, oppressive or incompatible with humanitarian considerations". (For the sake of convenience, I will hereafter abbreviate this compendious phrase, unless otherwise indicated, to the expression "would be unjust".)
325 In this, Art 9(2)(b) is different from provisions such as s 34(2) of the Act (considered in Bannister) and reg 7 (considered in Foster) which do not require the decision-maker to take account of the nature of the offence or the interests of the requesting state when deciding if the circumstances of the case extradition would be unjust. 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.
326 The inclusion of the words, "while also taking into account the nature of the offence and the interests of the Requesting State" in Art 9(2)(b), changes the nature of the value judgment to be formed and the process by which it is to be formed. 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, 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 as to whether extradition would be unjust. In doing so, the decision-maker must inevitably engage in a balancing or weighing of these factors and while the starting point is "the circumstances of the case" that may lead to a consideration that extradition would be unjust, it cannot be said that any one factor has been accorded pre-eminence in the balancing or weighing process.
327 Thus, in my view, in considering whether the extradition of the requested person would be unjust, the "circumstances of the case" is not the sole factor to be considered by the decision-maker and the nature of the offence and the interests of the Requesting State must also be taken into account; and it is required of the decision-maker to balance or weigh those various factors in forming a value judgment as to whether extradition of the requested person would be unjust.
328 What must be recognised is that the parties to the Treaty, Indonesia and Australia, have agreed that extradition may be refused in circumstances where the decision-maker on behalf of the Requested State weighs the circumstances of the case, including matters personal to the person whose extradition is requested, with less personal or non-personal considerations concerning the nature of the offence and the interests of the Requesting State. Thus, 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. The process by which a value judgment is formed may not be easy, because the personal considerations that might be raised, on the one hand, may not be easily weighed against the non-personal considerations of the nature of the offence and the interests of the Requesting State, on the other. Nonetheless, by Art 9(2)(b) of the Treaty, that is the value judgment that Australia and Indonesia have agreed needs to be made in each case, and to which application of the Extradition Act is subject.
329 Accordingly, subject to what is stated below, it would not be correct to say that the point in the present case is "whether extraditing the applicant to Indonesia would, in the circumstances, be unjust, oppressive or incompatible with humanitarian considerations judged by the standard of Australian domestic criminal law" (see [74] of the primary judge's reasons), if one were thereby intending to suggest this is the sole point, or that the other factors mentioned in Art 9(2)(b) are not relevant to the judgment to be made.
330 It should also be observed that the value judgment required by Art 9(2)(b) (the "double layer of satisfaction" as it was described in Foster) is a different kind of decision-making from that required by the alternative decision-making process provided for by s 22(3)(e)(iv). Subparagraph (iv) provides that where subpara (ii) applies (as it does here) then the Attorney-General must be "satisfied that the circumstances do not exist or that they do exist but nevertheless surrender of the person in relation to the offence should not be refused". In the present case, no question arose on the basis of the analysis in Att B provided to the Minister that the circumstances did exist but nonetheless should not be refused. The analysis provided by Att B was that the Minister could be satisfied that the circumstances do not exist - that is to say, that extradition would not be unjust. Therefore, there is no evidentiary basis from which to infer that it is possible that the Minister decided that the circumstances did exist but decided nonetheless that surrender should not be refused, as the Minister submits may have been the case.
331 What might be said, by way of summary about the operation of s 22(3)(e) and Art 9(2)(b), is that the Minister at all material times was possessed of a broad function to achieve a certain level of satisfaction. He could, even if he were to consider, by reference to the circumstances of the case, that extradition of the first respondent to Indonesia would be unjust, on the basis of the first respondent's conviction in that country in absentia, nonetheless ultimately not be satisfied that it would be unjust to surrender him to Indonesia taking into account the nature of the offence and the interests of Indonesia. On the face of it, that is what Att B informed the Minister he could do, along with the advice that it was open for him to achieve that level of satisfaction. The question remains, however, whether Australian standards were required to be considered in the process and, if so, whether they were relevantly regarded in the process.
332 The question of Australian standards: There remains the question, raised by Bannister and Foster, as to whether the Attorney-General (or delegate) must, in relation to Art 9(2)(b), regard relevant circumstances of the case said to suggest extradition of the requested person could be unjust by reference to Australian standards, or whether the Attorney-General or delegate may or should regard international law or other, even personal standards of what is just, not necessarily informed by Australian standards. While under Art 9(2)(b), in my view, the decision-maker must weigh the circumstances of the case (including the personal circumstances of the requested person) with the nature of the offence and the interests of the Requesting State in order to consider whether extradition would be unjust, in considering whether, having regard to the circumstances of the case, extradition would be unjust, the standards of Australia must be regarded. 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. I turn now to those two authorities.
333 In Bannister, the Full Court of this Court (Spender, Kiefel and Dowsett JJ) considered an appeal against the decision of the primary judge made under the Extradition Act that extradition to New Zealand of the appellant on rape and sexual assault charges was permissible. Part 3 (then as now), made special provision for extradition of a person from Australia to New Zealand. By s 34(1) (then as now) a person was obliged to be surrendered to New Zealand (if the qualifying requirements were met) unless, under subs (2), a magistrate was satisfied by the person that because:
(a) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature;
(b) if that offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or
(c) a lengthy period has elapsed since that offence was committed or allegedly committed;
or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand…
334 Bannister was charged in New Zealand in early 1998 in relation to events alleged to have occurred many years earlier in 1975. The charges asserted two of rape and two of indecent assault which were described as "representative". In other words, each of the matters alleged against Bannister were not the subject of separate detailed charges but were, in effect, foreshadowed by "representative" charges. A magistrate refused extradition under s 34(2) on the basis that Bannister would suffer a considerable hardship if he were surrendered to New Zealand, having regard to the lapse of time and his personal circumstances. That decision was reversed on review by the primary judge. On appeal under the Act to the Full Court of the Federal Court, the Full Court took exception to the representative nature of the charges. It considered the laying of representative charges to be a discredited practice no longer followed in Australia by a ruling of the High Court. As a result, the Full Court concluded, at [29], that in circumstances where New Zealand proposed to proceed upon the four counts as representative charges it would be "unjust or oppressive" to return Bannister to New Zealand to answer the charges.
335 In coming to that conclusion, the Full Court accepted that the circumstances in which extradition might be considered "unjust, oppressive or too severe a punishment" to justify surrender were broad and cited with approval Binge v Bennett where Mahoney JA, in the New South Wales Court of Appeal, at 596, said of the expression "unjust or oppressive" in the context of the Service and Execution of Process Act 1901 (Cth) (SEPA), that:
I do not think that, so understood, they exclude matters going to, for example, the nature and incidents of the justice system to which the person in question is to be returned or to the circumstances or mode of his treatment pending trial in that system. It may well be, for example, that those words, used in the context in which they are used in other countries, would authorise an inquiry by the court as to whether the state of the justice system or the facilities of it in the country to which the person was to be returned were such as to fall within these provisions…
336 The Full Court further noted, at [19], that Mahoney JA had also observed:
What is unjust or oppressive must be judged according to the society in which in Australia we now live. That society and its standards may be open to criticism. It may in some respects, require change. But the context in which these words should be understood is the context of the Australian Federation as it exists from time to time.
337 The Full Court also noted, with apparent approval, that in Perry v Lean, where the Full Court of the Supreme Court of South Australia considered the same SEPA provision considered in Binge v Bennett, Jacobs J had stated, at 411:
the reported cases in which that section has been successfully invoked recognize that the question arising under that section, namely whether 'extradition' is unjust or oppressive, is not to be answered by deciding whether it is unjust or oppressive to charge the defendant. The question is whether it would, on the particular facts of the case, be unjust or oppressive to remove the accused into the jurisdiction of the court in which the charge has been preferred.
338 For the Full Court in Bannister the only issue was whether it would be unjust, oppressive or too severe a punishment to surrender Bannister to New Zealand in the circumstances outlined, where Australian criminal law would not countenance a representative charge.
339 In Foster, the United Kingdom had requested the extradition of Foster for certain offences involving fraud. He had spent a substantial period of time in custody in Australia pending extradition and submitted to the Minister, who exercised the s 22 power in place of the Attorney-General, that it was unlikely that he would be sentenced to any additional term if extradited to and convicted in the United Kingdom and so his extradition would be unjust or oppressive or too severe a punishment. The Minister rejected his submissions for release and issued a warrant for his surrender to the United Kingdom. Regulation 7 of the relevant Extradition (Commonwealth Countries) Regulations 1988 (Cth) provided that a person otherwise eligible to be extradited from Australia:
shall not be surrendered in relation to such an offence if the Attorney-General is satisfied that by reason of:
(a) the trivial nature of the offence;
...or…
(b) any other sufficient cause;
it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person…
340 The Court (Kirby J dissenting) held that the Minister was not bound to undertake detailed investigations of the likely sentence which might be imposed if the applicant were convicted in the United Kingdom before concluding that she was not satisfied that it would be unjust or oppressive or too severe a punishment to surrender him.
341 Gleeson CJ and McHugh J, in a joint judgment, noted s 22 and s 23 of the Act (as well as s 11 which had the effect of making s 22 subject to reg 7, just as it makes the Act subject to the Treaty in the present case). Their Honours then stated, at [7]:
There is a double layer of satisfaction involved in s 22(3)(e) and reg 7. The section provides that the eligible person is only to be surrendered if the Attorney General (or Minister) is satisfied that circumstances engaging a limitation, condition, qualification or exception to surrender contained in the Regulations do not exist. Regulation 7 provides for such a limitation. It prohibits surrender if the Attorney-General (or Minister) is satisfied that it would be unjust, oppressive or too severe a punishment. 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. Since what is involved is the state of satisfaction, or lack of satisfaction, of the one decision-maker, what is critical is whether the decision-maker is satisfied of a matter referred to in reg 7. Applying the Act and Regulations to the present case, the Minister was obliged to ask whether she was satisfied that, by reason of the trivial nature of the appellant's alleged offences or by reason of any other sufficient cause, it would, having regard to all the circumstances, be unjust or oppressive or too severe a punishment to surrender the eligible person. If the answer to that question were in the negative, then she would be satisfied that the circumstances referred to in s 22(3)(e)(iii) did not exist, and the qualification imposed by s 22(3)(e) upon the extent of her powers under ss 22 and 23 would not operate to inhibit their exercise.
342 Gaudron and Hayne JJ, in a joint judgment, agreed with the judgment of Gleeson CJ and McHugh J that the appeal should be dismissed. At [38], their Honours also agreed with Gleeson CJ and McHugh J that the consequence of the provision of the "double layer of satisfaction" of the one decision-maker is that a critical question for the decision-maker is whether he or she is satisfied of the matter or matters referred to in reg 7. Their Honours added:
But the provision of the double layer of satisfaction is important in that it reveals that the prohibition on surrender for which s 22(3)(e) provides (the Minister is satisfied that specified circumstances do not exist) is, in the present case, a prohibition which is founded upon a state of satisfaction. 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. The engagement of s 22(3)(e) in this case depends, therefore, upon the judgment reached by the Minister. Is the Minister satisfied that she has not reached a particular value judgment?
(Emphasis in original.)
343 Gaudron and Hayne JJ then went on, at [41], to suggest that the expression "unjust or oppressive or too severe a punishment" as it appeared in reg 7 would be better understood as providing a single description of the relevant criterion which is to be applied rather than as three distinctly different criteria. Their Honours suggested this for three reasons: first, the fact that the terms used are qualitative descriptions requiring assessment and judgment; secondly, because the use of the words "too severe" suggest a need for comparison with some standard of punishment that is regarded as correct or just or, at least, not too severe; and thirdly, because considerations which may contribute to the conclusion that something is "unjust" will overlap with those that are taken into account in considering the other two descriptions. Thus, it would be artificial to treat the three ideas as rigidly distinct. Their Honours then added that the questions which then arise are what is the standard which is embodied in these words and what is the subject of the application of that standard?
344 At [42], their Honours dealt with the second question first, and doubted that the inquiry can be confined to whatever may be seen as the direct and immediate consequences of surrender of the eligible person. They added that, in at least some cases, it may be that attention may have to be directed to what will happen to the eligible person after surrender, including not only the probable nature and duration of detention pending trial, but also the punishment that would be meted out to the eligible person if convicted of the extradition offence. Their Honours then added:
That is, it may be necessary, in some cases, to consider whether the punishment which would be imposed on conviction, in combination with factors such as incarceration in both countries (before extradition and before trial), involuntary transportation, and the expense and difficulty of defending a trial in the foreign country, would lead to a disproportionately heavy burden of punishment being imposed on the eligible person.
Their Honours observed, however, that it was not necessary to decide what are the kinds of cases in which such considerations might arise and, given the generality of the words employed in reg 7, it would be unwise to attempt to do so in any exhaustive way.
345 Gaudron and Hayne JJ then addressed the first question they considered arose as to the standard set by the words "unjust or oppressive or too severe a punishment". Their Honours posed the question and provided the answer as follows:
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 [footnote 27], 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. Is surrender of the eligible person for that offence, or those offences, unjust or oppressive or too severe a punishment? The precise nature and content of that inquiry may require further consideration in an appropriate case but little or no argument about that was called for or was directed to it in this matter and we say nothing more about it.
346 Footnote 27 in this passage contains a reference to La Forest AW, Extradition to and from Canada, (3rd ed, Canada Law Book Inc, 1991) at p 241. By reference to Ex parte Bennett (1974) 17 CCC (2d) 274 (Ont HCJ) the learned author of that text, at p 241, submitted that the question whether a person should be surrendered from Canada, having regard to the terms of the Fugitive Offenders Act RSC 1985 (Fugitive Offenders Act) - which Act was modelled on the Fugitive Offenders Act 1881 (Imp) - which by s 16 provides that a court has the power to refuse surrender in cases in which it would be "unjust" to do so, should depend primarily on the seriousness with which the crime is regarded in Canada, not in the foreign country. This observation was made in the context of an analysis of the then Canadian Fugitive Offenders Act which did not include a dual criminality test for extradition in respect of Commonwealth countries which would require in effect that the offence for which it was proposed a person should be extradited to a foreign country reflected a similar offence in Canada, a feature of which the author was critical.
347 While his Honour was in dissent in the result, the judgment of Kirby J in Foster should also be noted. His Honour, at [60]-[67], provided a concise account of the history of Australian extradition legislation from colonial times when the Imperial Fugitive Offenders Act 1881 (1881 Imperial Act) applied and under which, by s 10, a court could discharge the fugitive in the following circumstance:
Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to…all the circumstances of the case, be unjust or oppressive or too severe a punishment to return the fugitive either at all or until the expiration of a certain period
348 So far as reg 7(1) was concerned, Kirby J stated certain propositions which, together with his textual analysis of reg 7, led him to conclude the Minister should have regarded likely United Kingdom sentencing outcomes in the appellant's circumstances. His Honour noted, at [85], that extradition is a very serious imposition on the person involved and so should be given meaning "in a way that upholds the important purposes" that the regulations and s 22 of the Act were designed to secure. His Honour observed that the safeguards in the Act and the regulations acknowledge that the "principle of interjurisdictional comity which the process of extradition maintains must be secured by procedures, and by the application of rules, which protect a person subject to an extradition application". In that regard, Kirby J noted, at [86], that:
Those who are extradited from Australia are ordinarily subjected to initial detention in Australia, removal under restraint, frequently over a long distance, detention in the extradition country, subjection to that country's judicial process with costs that may not be recoverable, laws and customs that may be different in significant respects from those of Australia, custodial institutions that will sometimes be sub-standard, and all this ordinarily at a considerable distance from family and friends. In a world of increased mobility, interactive technology and new forms of criminality, extradition represents an essential response to the characteristics of contemporary crime. But it is a response which is subject to recognised checks which, in Australia, are set forth in the Act and the Regulations. Where those checks have not been accurately observed, at least in a case in which the Minister having the power of determination is obliged to observe them, it is the duty of the courts to set aside a decision which has miscarried and to require a lawful decision to be made which observes the protections put in place by, or under, the law enacted by the Parliament.
349 After a further discussion about the nature or level of the punishment to be imposed or that might be imposed in a foreign country, Kirby J, at [97], observed that reg 7 must be given meaning in the context of its application to a wide range of Commonwealth countries which now "have significantly different approaches to criminal offences and punishment". His Honour considered that the meaning of reg 7(1) could not be ascertained by reference solely to its application where the requesting country is the United Kingdom. His Honour observed that in some Commonwealth countries, punishments which are short of torture may be imposed (such as punitive birching) which may reasonably satisfy the Minister, in all the circumstances, that it constitutes too severe a punishment to surrender the eligible person.
350 As a result, Kirby J differed from the majority in that he reached the view, at [98], that it was appropriate in all the circumstances for the Minister to achieve the necessary state of satisfaction by reference to information concerning punishment that might be applied in respect of the appellant in the United Kingdom. But it was clear from his Honour's analysis that the criminal law and sentencing circumstances that might prevail in a requesting state will necessarily be compared and contrasted with those that obtain in Australia when questions are raised whether extradition of a person would be unjust. Indeed, at [93], Kirby J expressly dealt with the argument as to whether the level of punishment might be "too severe a punishment" by "Australian standards". In that same paragraph he referred to the question whether surrender might, "according to Australian standards", be "unjust or oppressive or too severe a punishment" because the punishment likely to be imposed is extremely modest.
351 I should also note that, at [99], Kirby J treated the consideration of the "too severe a punishment" criterion as separate and distinct from the criterion or criteria of "unjust or oppressive". At [92], Kirby J expressly stated that meaning must be given to the entire phrase "too severe a punishment to surrender", noting that considerations of injustice or oppression stood alone. The latter observation by Kirby J, with respect, is important when one turns to the phrase "unjust, oppressive or incompatible with humanitarian considerations" in Art 9(2)(b). It may be accepted that case law since the 1881 Imperial Act may be said to support the view that the phrase "unjust or oppressive or too severe a punishment" should be treated as a composite, single criterion, as Gaudron and Hayne JJ suggested in Foster. However, the separation in Art 9(2)(b) of the words "unjust" and "oppressive" by a comma, and the addition of the words "or incompatible with humanitarian considerations" suggest that while there may be overlap between the three aspects mentioned, they should not be treated as constituting a single criterion for the purposes of the Treaty or the Act. So too does an appreciation (drawn from the discussion in Aughterson EP, Extradition: Australian law and procedure (The Law Book Company Limited, 1995) at pp 171-172) that the phrase "incompatible with humanitarian considerations" appears only to have been included in Australian treaties from the mid-1980's and was intended to have its own scope.
352 It is also appropriate to record some of the attempts that have been made over the years to define the expressions "unjust" and "oppressive" as they have appeared in fugitive offenders legislation. For example, in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782-783, Lord Diplock considered "unjust" as directed to the risk of prejudice to the accused in the conduct of the trial itself, and "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration, accepting that there was room for overlap. For my part, having regard to the authority of Foster, Lord Diplock's dicta in relation to the use of these words in the Fugitive Offenders Act 1967 (UK) might be considered unduly limited in the Australia legislative context. As noted, in Binge v Bennett the ordinary meaning of these words was considered to have a "broad connotation". That approach was adopted in Bannister by the Full Court. In the text by Aughterson, at pp 157-171, the author collects a number of authorities that reasonably support the author's conclusion that extradition may be considered unjust or oppressive not only due to the trivial nature of the offence and where an accusation is not made in good faith or in the interest of justice, but also for any other sufficient cause, which might include the passage of time that has past since the offences are alleged to have occurred, the health of the person sought, hardship likely to arise through extradition, the likelihood of conviction, prison conditions in the requesting state, the prospects of a fair trial, the issue of natural justice and the gravity of the offence. All this serves to underline the observation of Sugerman JA in Ex parte Klumper [1967] 1 NSWLR 161; (1967) 10 FLR 169, in the context of the then applicable SEPA, that it would be "presumptuous" to try to foresee all the combinations of circumstances that would fall within the category of "unjust or oppressive".
353 In relation to "humanitarian considerations", Aughterson observes that (noting that his book was published in 1995) a number of treaties allow an exception to extradition where surrender would be inconsistent with humanitarian considerations. The author refers, at p 171, to an article by Anderson L, "Protecting the Rights of the Requested Person in Extradition Proceedings: An Argument for a Humanitarian Exception" (1983) 4 Mitch YBI Legal Stud 153 at 154, where three types of humanitarian claims were suggested as appropriate: that the trial in the requesting state will be, or was, unfair; that the awaiting punishment will be excessive or cruel; and that the requesting country will be unable, or does not intend, to protect the requested person from assassination attempts. Aughterson proffers the view, at p 172, that it would seem that the exception also takes account of the personal circumstances of the fugitive. He adds that given that treaties should be interpreted on broad principles of general acceptation it appears that such provisions (like Art 9(2)(b) of the Treaty) should encompass both the personal circumstances of the fugitive as well as the wider issues suggested by Anderson. Nonetheless, Aughterson also expresses the view, at p 172, that an exception of this nature in a treaty concerning "humanitarian considerations" overlaps with others including discrimination, injustice or oppression and cruel or unusual punishment and so may be relied upon where the treaty or regulation in question is silent as to those other issues.
354 In my view, the concept of "humanitarian considerations" may well go beyond circumstances in which the terms "unjust" or "oppressive" may be relevant. The word "humanitarian" is defined by the Shorter Oxford English Dictionary (5th ed, Oxford University Press Inc, 2002) (SOED) as follows:
noun…2 A person concerned with human welfare; a person advocating or practising humane action; a philanthropist.
…
adjective. Of, pertaining to, or holding the views of a humanitarian.
In the Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005) it is defined as:
adjective 1. having regard to the interests of all humankind; broadly philanthropic. 2. relating to ethical or theological humanitarianism.
noun 3. someone who professes ethical or theological humanitarianism. 4. a philanthropist.
The SOED suggests that "humane" now means "characterized by sympathy with or consideration for others; compassionate; benevolent", and the Macquarie Dictionary defines "humane" relevantly as "characterised by tenderness and compassion for the suffering or distressed".
355 The concept of "humanitarian considerations" should be considered an extremely broad concept, therefore, that may, depending on the circumstances of the case, go beyond the notion of a particular circumstance being "unjust" or "oppressive". Notions of compassion, for example, may well introduce a broader range of circumstances that a person faces that may be considered a basis for refusing surrender. So too might the wider set of considerations identified in the article by Anderson.
356 What is common, however, to the decision of the Full Court in Bannister and the judgments of Gaudron and Hayne JJ and Kirby J in Foster, in my view, is that the question of what might be considered "unjust, oppressive or too severe a punishment" if extradition of the requested person were to be permitted, is necessarily to be assessed by way of a value judgment, but a value judgment to be informed by reference to Australian standards. In Bannister the relevant Australian standard concerning representative charges was to be found in the criminal law of Australia. In Foster, apart from Kirby J, the Court found no investigation of likely United Kingdom sentences was required of the Minister and she was fairly able to make the value judgment required of her on the materials she had before her.
357 While the authorities of Bannister and Foster suggest that the circumstances of the case that may make it unjust for the requested person to be extradited should be assessed by reference to Australian standards, it is not immediately obvious that the factors of the nature of the offence and the interests of the Requesting State are to be, or indeed can easily be, measured against Australian standards. Nonetheless, it might be said that because each factor must be considered by Australia by virtue of Australian law, each factor, or the weight to be accorded it, will inevitably be regarded from an Australian perspective.
358 In Bannister the relevant Australian standards were relatively easily identified by reference to what was required by Australian (criminal) law in relation to the laying of representative criminal charges against an accused person. It may not be so easy in other circumstances to identify the relevant Australian standards against which a particular consequence of extradition might be measured. But in many cases it will not be difficult objectively to identify a relevant statutory or general law, practice or sentencing regime applicable under Australia's criminal justice system against which can be measured the circumstances in which a requested person is likely to find themselves in the Requesting State, should they be extradited.
359 The circumstance of the in absentia conviction and Australian standards: In the present circumstances the first respondent submits, as he represented to the Minister, that the circumstances in which he will find himself, if extradited to Indonesia, would make his surrender to Indonesia unjust by Australian standards. This, he says, is because he has already been convicted of the extraditable corruption offence and sentenced to life imprisonment in Indonesia in his absence and without having been served with any process, not having absconded from Indonesia having been charged, and being bound by a decision of an appeal court in Indonesia dismissing an appeal against the conviction following a proceeding conducted in his absence.
360 The question of extradition for an in absentia conviction in a requesting state has a long and vexed history in Australian law and, indeed, in public international law. In this case, it is to the Extradition Act and the Treaty that attention must be directed. There is no relevant principle of customary international law concerning in absentia convictions relied upon. Further, while the ICCPR has been ratified by Australia and Indonesia, it has not been transformed into Australian municipal law by a law of the Commonwealth.
361 There is nothing in the Extradition Act or the Treaty which prevents Australia surrendering to Indonesia a person who has been convicted in Indonesia of an extraditable offence in their absence. In this regard, s 10(1) of the Act, in a provision headed "Interpretative provisions relating to offences", provides:
(1) Where a person has been convicted in the person's absence of an offence against the law of an extradition country, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person is deemed not to have been convicted of that offence but is deemed to be accused of that offence.
362 As the Minister submits, this provision shows that extradition may occur in circumstances where a person has been convicted in absentia. The reference to "whether or not the conviction is a final conviction" no doubt accommodates a variety of circumstances in which, in the requesting state, an in absentia conviction may not be considered a "final conviction" because a retrial or appeal or other review process is provided for by the law of that country. For the purposes of the Extradition Act, however, in the case of an in absentia conviction (whether final or not) the person is deemed not to have been convicted but to be accused of the offence. Nonetheless, as discussed below, the expression in s 10(1) "convicted in the person's absence", has given rise to both a conceptual and factual debate - although it is not an issue relevant to the disposition of this appeal.
363 Ordinarily under s 19(2), when a determination of eligibility for surrender is made by a magistrate, the person will only be eligible for surrender in relation to an extradition offence if the supporting documents in relation to the offence are produced to the magistrate (including any relevant regulations or treaty provisions governing extradition), the magistrate finds that the equivalent conduct would have constituted an extradition offence in Australia and the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. No part of the process of determining eligibility for surrender under s 19 involves the magistrate inquiring into the weight of the evidence in support of the offence in relation to which extradition has been requested or any factor deriving from the in absentia nature of the conviction. However, s 11(4) provides:
(4) Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19(2) unless the prima facie evidence test is satisfied.
364 The effect of that provision is that where the provision in the regulation or the treaty would mean that a person is not eligible for surrender unless the sufficient evidence test is satisfied, then that requirement shall instead be taken to have the effect that the person is not to be surrendered unless the prima facie evidence test is satisfied. The prima facie evidence test is defined by s 11(5)(b) by reference to the provision of evidence that, if the conduct of the person constituting the extradition offence had taken place in Australia, it would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court in relation to the offence. In the result, the prima facie evidence test is not required in relation to the extradition offence in the case of the first respondent.
365 So far as the Treaty is concerned, Art 11 deals the topic of 'Extradition procedural and required documents'. Article 11(2)(b) provides that the request for extradition shall be accompanied:
(a) if a person has been convicted in his absence of an offence - by a judicial or other document, or a copy thereof authorising the apprehension of the person, a statement of each offence for which extradition is sought and a statement of the acts or omissions which are alleged against the person in respect of each offence;
366 It is plain then that both the Act and the Treaty contemplate that a person may be extradited having been convicted in absentia in Indonesia. But this does not mean that the fact of an in absentia conviction requires the Requested State to surrender the requested person without more. The other terms of the Act and the Treaty which may provide a bar to extradition continue to apply. That this is so is borne out by an examination of authorities dealing with in absentia claims. There is also a separate question, raised by the first respondent's notice of contention, whether Australia has obligations under international law, at least under the ICCPR, where extradition is sought of a requested person who has been convicted in absentia, which must be regarded under s 22(3)(f) of the Act.
367 As the judgments of all members of the Full Court in Wiest disclose, the extradition of persons convicted in absentia in a requesting country has long been viewed with a degree of circumspection, if not suspicion, under British law and Australian law. Extradition legislation in Australia at different times has made specific provision in relation to requests for extradition on the basis of an in absentia conviction in the requesting country.
368 Section 26 of the Extradition Act 1870 (Imp) (1870 Imperial Act) initially provided that the terms "conviction" and "convicted" did not include or refer to a conviction which under foreign law was a conviction for "contumacy", but the term "accused person" included a person so convicted for contumacy. In Athanassiadis v Government of Greece [l971] AC 282 (Athanassiadis) the House of Lords discussed the nature of a conviction for contumacy, noting that it was unknown under British law. However, their Lordships noted that under French law a judgment par contumace is annulled if the person to whom it relates is arrested or surrenders himself so that it is exactly the same as if no proceedings had been taken against him, and then he undergoes his trial for the offence with which he was charged. Section 26 of the 1870 Imperial Act secured this result.
369 In that light, the Extradition (Foreign States) Act 1966 (Cth) (Extradition Act 1966) contained s 4(3) in the following terms:
For the purposes of this Act, a person shall be deemed not to have been convicted of an offence against the law of, or of a part of, a foreign state where the conviction is, under that law, a conviction for contumacy, but a person so convicted for contumacy shall be deemed to be accused of an offence against that law.
Thus, as Gummow J (with whom Sheppard J agreed) noted in Wiest, at 511, s 4(3) in its original form secured the same result as s 26 of the 1870 Imperial Act.
370 A fresh s 4(3) was inserted in the Extradition Act 1966 by s 5 of the Extradition (Foreign States) Act 1973 (Cth), and removed the reference to conviction for contumacy and provided instead:
(3) Where -
(a) a person has been convicted in his absence of an offence against the law of, or of a part of, a foreign state; and
(b) the conviction is not a final conviction,
then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence.
371 As may be seen from this provision, the concept of a "final conviction" became relevant. As Gummow J noted in Wiest, at 511, if a conviction was final then the fugitive, under this provision, would be dealt with as a person convicted of the offence.
372 Section 4(3) was then further amended by the Extradition (Foreign States) Amendment Act 1985 (Cth) so that it then provided, as s 10(1) of the Extradition Act now provides:
Where a person has been convicted in the absence of the person of an offence against the law of, or of a part of, a foreign state, whether or not the conviction is a final conviction, then, for the purposes of this Act, the person shall be deemed not to have been convicted of that offence but shall be deemed to be accused of that offence.
Again, as Gummow J noted in Wiest, at 513, this new s 4(3) operated whether the conviction was or was not a "final conviction". In either case (not just those where the conviction lacks finality) the person was deemed not to have been convicted of the offence in question, and is deemed to be accused of that offence.
373 In Wiest, Gummow J, at 513, also noted that s 4(3) deems a state of affairs to exist "for the purposes of this Act". His Honour noted a number of relevant operative provisions of the Extradition Act 1966 which he considered to be crucial in that case. In particular, his Honour noted the operation of s 17(6)(a) of the Extradition Act 1966, as it then applied, which he considered drew a distinction between "persons" and "fugitives". His Honour considered the distinction may, in a given case and, depending upon the identity of the State requesting extradition, be drawn in regulations envisaged by s 10 and s 11 of the Extradition Act 1966, which may impose requirements (for example, retrial) as to the treatment of the fugitive on his or her return. His Honour noted, however, at 513, that this was not done in the case of reg 11(2) of the Extradition (Federal Republic of Germany) Regulations 1985 (Cth) to which the Act had been made subject by s 11 of that Act in that case. His Honour also noted in passing that the legal system of a requesting state may not envisage and may indeed forbid the granting of a fresh trial to a person convicted in absentia.
374 In the result, by reference to the then operative 1966 legislation, Gummow J in Wiest, at 513, considered that in its operation in relation to s 17(6)(a), s 4(3) achieved the result that mere proof of conviction which resulted from trial in absentia of the fugitive may not be a sufficient indication that the fugitive has committed an extradition crime. What was required was that documentation which has to be produced in the case of a fugitive accused of an extradition crime, or that is to say, the foreign warrant of arrest, a description of each offence and the penalty applicable, and a written statement of all the acts or omissions in respect of which the surrender of the fugitive is requested were required to be produced.
375 Gummow J further considered, at 513-514, that the phrase "for the purposes of the Act", in s 4(3), did not mean, as the appellant had submitted, that all documents referred to or required by the Extradition Act 1966, beginning with the requisition for surrender, must identify and treat the convicted fugitive as if he were an accused and that s 4(3) was not designed to ensure that the requesting state seeking a fugitive who has been convicted in absentia must request extradition for trial, rather than to serve a sentence.
376 Gummow J, at 514, then observed this:
The question of the extradition to a foreign State of a fugitive, convicted in absentia, to serve his sentence rather than to stand a retrial, poses issues as to the acceptability to Australia of the system of criminal justice in that State. These issues are to be determined by the government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive under s 18A in exercise of the discretion there given the Attorney-General. The exercise of that discretion involves s 18A(1)(c) as a pre-condition, and s 18A(1)(d) as prohibitions. And the exercise of the discretion may involve more than a consideration of those matters: see Atkinson v United States Government [1971] AC 197 at 232-233, 235, 239, 247; Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 278, 281, 282, to which I have already referred.
377 Gummow J thereby emphasised that it remained open for Australia, through a treaty with a particular foreign State to deal with a question of extradition for in absentia convictions (of one type or another).
378 Gummow J then went on, at 514, to consider the effect to be given to the concept of trial in absentia expressed in the form of words taken in the 1985 and in the 1973 forms of s 4(3), respectively "Where a person has been convicted in the absence of the person" and "where…a person has been convicted in his absence of an offence". It is the latter formulation that now substantially appears in s 10(1) of the current Extradition Act. In this regard, Gummow J stated, at 514-515:
It is a requirement of the common law as understood in England and Australia that the prisoner be present throughout his trial for an indictable offence if he is in custody: Lawrence v The King [1933] AC 699. There may not be such a requirement at common law where the offence is a misdemeanour: R v Jones (No 2) (1972) 56 Cr App R 413 at 418-419. The right to be present is waived if, in the course of the trial and whilst on bail, the accused absconds or escapes from lawful custody; the judge then has a discretion to continue the trial or to discharge the jury: R v McHardie [1983] 2 NSWLR 733.
His Honour, at 515, also referred to similar authority in the United States concerning the constitutional guarantee of due process.
379 Consequently, at 515, Gummow J concluded that in light of the common law position, and as a matter of ordinary usage, one would not readily treat the concept of conviction in absentia as involving conviction in the absence of the accused, where his absence was the "result of conduct on his part which amounted to a voluntary waiver of his right to be present". His Honour further noted that the "history behind the present s 4(3) and the foreign legal concepts of conviction for contumacy and final jugement iteratif defaut" showed that the concern of British and Australian legislatures has been with foreign legal systems "which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights".
380 Notwithstanding that Gummow J expressed this to be "the better view" he also noted that the proceedings had been conducted on the footing that s 4(3) did apply and it was not then appropriate to depart from that course.
381 Sheppard J agreed with the reasons of Gummow J and added additional comments of his own. He appreciated that the view he had taken of s 4(3) did not give it "substantial significance" and that it followed that there would be cases where people are in fact tried and convicted in their absence in the requesting state who will not have an opportunity of being heard in defence of the charge, either in the requesting state or in Australia. His Honour accepted that the position was not always so and that until the amendments to the Act which were effected in 1985 came into force, the magistrate was required to be satisfied by evidence of a prima facie guilt of the fugitive and the fugitive was entitled to lead evidence. His Honour noted that since the amendments no evidence was required and that the requirement had been replaced by a requirement only for a duly authenticated statement setting out the acts or omissions in respect of which the surrender of the person was requested.
382 Burchett J, by contrast, having regard to the same legislative history adverted to by Gummow J, considered, at 500, it would make perfect sense of the latest amendment made to s 4(3) to understand it as intended to put those persons included in the provision in the same position as those already covered, whose extradition could only be sought by a foreign state in order to put them on their trial. In the result, his Honour put a particular construction on the words "shall be deemed not to have been convicted" to mean, as explained at 501, that they cannot authorise the acceptance of a requisition and the issue of an Attorney-General's notice for the purpose of his extradition as a convict to serve his sentence. Burchett J accepted, however, that the additional words in the provision "but shall be deemed to be accused of that offence" complicated this construction. But, having regard to the legislative history his Honour considered, at 502, that to construe the provision as authorising a requisition for the purpose of enforcing a conviction in relation to a person deemed not to have been convicted, the provision would become inherently contradictory. Ultimately, at 502, Burchett J considered that:
To authorise the arrest of an individual, not because he has broken an Australian law, but at the request of another country, is an awesome assertion of the power of the State over people within its borders. Under the rule of law, it cannot be done - and the courts have a duty to see to it that it cannot be done - except by express and unambiguous statutory provision.
383 In Tzatzimakis the appellant requesting state, Greece, required the extradition of the first respondent. On 7 November 1990, the first respondent had been arrested with a quantity of heroin in his possession. He made a number of incriminating statements. Two alleged co-offenders and the respondent were charged with purchasing, possessing and selling heroin. He was "provisionally detained" following an appearance before an examining magistrate in Greece. He was then released from custody and summoned to appear before the Court of Appeal in Greece on 4 October 1991 to face trial. He failed to appear at the trial although his mother attended. She said that her son had received written and verbal threats and was afraid to come to court and requested an adjournment, which the Court granted. Formal notice of the adjournment was not given to the first respondent because, according to the Court, the date of the hearing was notified to his mother. On the adjourned date, 24 January 1992, the first respondent again failed to appear. The Court then ordered the trial proceed in his absence. He was convicted and sentenced to a period of imprisonment.
384 The question raised on the appeal in Australia was whether the magistrate was correct in holding the respondent was not a "convicted" fugitive for the purposes of the Extradition Act. That decision was based on the expression used in s 10(1), "a person has been convicted in the person's absence". If he was convicted in his absence, then the materials required to be produced under s 19 were not produced and the magistrate's s 19 determination was made in jurisdictional error.
385 Finkelstein J, at [69]-[81], recounted the history of how English and Australian law has dealt with a conviction par contumace and noted the discussion in Wiest. At [81], Finkelstein J stated that in Australia, Parliament decided that a person who has suffered a final conviction in his absence should be placed in the same position as a person convicted par contumace. Accordingly, the Extradition (Foreign States) Amendment Act 1985 (Cth) included a new s 4(3) that became s 10(1) in the current statute.
386 Finkelstein J, at [82], noted that there were two views on the meaning of s 10(1) expressed in Wiest. On the one hand, there was the "obiter opinion" of Gummow J, with whom Sheppard J agreed, that a person who is voluntarily absent from his trial is not a person who has been convicted in his absence and, on the other hand, the opinion of Burchett J to the opposite effect. Finkelstein J found himself unable to agree with Gummow J and stated a different view both as regards the two propositions and the conclusion. His Honour first examined what in ordinary usage is meant by a trial in absentia and stated that in most civil law countries an accused is entitled, but not obliged, to attend his trial. If he does not attend he may be convicted in his absence. His Honour asked whether the reason for the absence could be considered a material matter. He noted that the circumstances in which there may be a trial in absentia differed to some extent from country to country. Using the French Code of Criminal Procedure of 1958, his Honour noted that a French court might proceed to judgment in the absence of the accused in at least the following circumstances:
(a) if the accused has not been arrested;
(b) if the accused has not appeared at his trial; and
(c) if after arrest, the accused has escaped. That is to say, there might be a judgment par contumace (a judgment in absentia) rendered in the accused's absence though absence was voluntary.
387 Finkelstein J, at [85], noted that the predecessor to the Code was the Code d'Instruction criminelle de 1808 (1808 Code), which was a prototype for the civil world and for this reason most civil law countries make provision for trials in absentia.
388 That brief examination led Finkelstein J, at [86], to the conclusion that, in the discourse of civil lawyers, expressions such as "a conviction in the accused's absence" and "trial in absentia" are applied without regard to the reason for the accused's absence. His Honour then considered, at [88], that the result is the same when considered from the viewpoint of a common law lawyer and that trials in absentia are not unknown in English criminal law. His Honour considered, at [89], that even now a trial may proceed in the accused's absence. Putting to one side in absentia trials for summary offences provided for under statute, his Honour considered a criminal case begins when the accused has been arrested and charged, at which point the Court assumes jurisdiction over the accused. He stated that a fundamental principle at common law is that an accused has a right to be present at the trial, but this is not an unqualified right. The trial may proceed in the accused's absence in exceptional circumstances, perhaps even without an arraignment. His Honour noted that in Jones the Law Lords regarded these as instances of a trial which takes place in the accused's absence; the issue in that case being whether a criminal trial could proceed after the defendant had absconded. Finkelstein J viewed Jones as a case where the House of Lords considered whether, in all the circumstances, a fair trial had occurred in the face of the deliberate absconding of the accused.
389 Finkelstein J, at [90], noted that under the Extradition Act 1989 (UK) a fugitive can avoid extradition if he satisfies two conditions:
(a) that the "conviction was obtained in his absence"; and
(b) that "it would not be in the interests of justice to return him on the ground of that conviction": s 6(2).
390 Finkelstein J challenged the proposition advanced by Gummow J at p 515 of Wiest, that the history behind s 4(3) and foreign legal concepts of conviction for contumacy and final jugement iteratif defaut show that the concern of British and Australian legislatures has been with foreign legal systems which provide for trial and conviction without the accused having the right to receive notice of the trial and to be present at the trial, not with cases of voluntary waiver by the accused of his rights. Finkelstein J considered that history and those concepts led him to a different conclusion. He said that his analysis showed the objects of those systems was to allow for trials in absentia whether or not the facts disclosed voluntary waiver. He also considered the history was not concerned so much with the foreign legal systems but with the nature of the "conviction" which gave rise to the request for surrender.
391 Finkelstein J then, at [93], concluded that he had not hesitation in saying that when a person has been convicted after a trial of which he has had notice, but has refused to attend, that person has been convicted in his absence. His Honour noted difficulties both with the words "conviction" and "absence". In the result, at [95], Finkelstein J reached the view that the first respondent had been convicted in his absence, when one regarded history and paid attention to foreign legal systems.
392 Black CJ also examined the history of s 10(1). At [16], his Honour considered that to discover the objects of s 10(1), which operates as a deeming provision "for the purposes of the Act", the obvious starting point was the other provisions of the Act in respect of which it was intended to take effect. In particular, he identified s 19(3)(a) and (b), although he then observed that it was not apparent what policy objectives s 10(1) serves if viewed only in the light of s 19(3)(a) and (b), given that "supporting documents" are defined so as to include "in any case" a duly authenticated statement in writing setting out a description of the offence and penalty applicable. However, at [17], his Honour noted that s 10(1) might have a potentially substantial operation by reference to treaty provisions and regulations that dealt with exceptions.
393 His Honour noted, at [20], that at the time the Extradition Act was enacted there were treaties between Australia and non-Commonwealth countries which made provision for a person "convicted in his absence of an extraditable offence" such as to attract the exercise of the regulation making power under s 11.
394 Black CJ then observed, at [24], that the diverse circumstances in which s 10(1) might have effect, as regulations were made applying the Act and treaties were concluded with countries with widely differing legal systems, suggested that the provision had a broad general object of removing previously relevant distinctions between different types of convictions in a person's absence. His Honour considered no object emerged that would suggest that a special or technical meaning was intended. Rather, the potentially diverse circumstances under which s 10(1) might operate pointed to an intention that the expression should be interpreted according to ordinary English usage.
395 Hill J also considered whether a person who has deliberately absented themselves from a trial of which they have had notice is properly described as a person who "has been convicted in the person's absence of an offence". His Honour, at [36]-[42], also considered Wiest. His Honour noted Finkelstein J's criticisms of the majority view but, at [44], expressed his agreement with what Gummow J had said in Wiest that the concern in the United Kingdom and in Australia in the context of extradition law was with extraditing persons to countries where convictions had been obtained against persons who were convicted in absentia without their having been given a fair trial. Hill J noted that the English 1988 amendments were designed precisely to ensure that there should be no extradition where a conviction had been obtained in absentia if it were not in the interests of justice to return the convicted person to the foreign state on account of the conviction. Hill J, at [45], added:
I do not think it likely that the concern of the extradition law in England or Australia was with cases such as in Wiest where a person had voluntarily absconded during a trial in which he was represented. Indeed, that question does not seem at all to have been a matter to which attention has ever been directed. Rather the history makes it clear that attention was focused on the distinction between a judgment par contumace where the conviction would be set aside and a new trial ordered where the person was returned to the extradition country and a conviction that had become final where extradition would not result in a new trial.
(Emphasis in original.)
396 After further discussion concerning the criticisms made of some of the analysis of Gummow J in Wiest, at [50], Hill J considered there was a real issue whether for the purposes of the Extradition Act and the policy underlying it, and having regard to international comity and practice, a person should be treated as having been convicted in his or her absence when that person waives his or her right to be present at the trial.
397 Hill J also discussed the House of Lords decision in Jones. In the result, following that discussion, at [60], his Honour noted that the House of Lords were not construing the language of a statute in the context of extradition, as was required in the case before the Full Court. His Honour, at [61], distinguished the circumstances of the appellant from that of Mr Wiest, who had absconded from the trial at which he had been represented. He considered the first respondent in the instant case was never personally present at any time during his trial, except through his mother. He had, however, been served with court process and, though he had notice of the date of the trial, he was never represented by anyone. No question arose of waiver of the right to be present at the trial. His Honour considered the case was simply one of which it could be said that the respondent deliberately absented himself from the trial and was not present throughout that trial whether in person or through a legal representative.
398 In these circumstances, for Hill J it was appropriate to treat the expression "has been convicted in the person's absence of an offence" as not having any technical meaning. He found the respondent was convicted in his absence. He was arrested and examined in the presence of a lawyer. He was served with a warrant of appearance. The document which recorded the date of hearing and charges laid against him was given to him. He was present on the date recorded as the date of the hearing but the case was not heard that day and adjourned. Thereafter he did not appear. At no time after the trial actually commenced was he in court. Mere non-attendance does not amount to a waiver of the right to attend at a trial. It could not be said that he attended through some agent as it might have been said in the case of Wiest.
399 The result, therefore, was that all three judges in Tzatzimakis considered that the primary judge was right to conclude that the respondent was not a person "convicted in his absence" and so the material placed before the magistrate under the Extradition Act was deficient.
400 Accepting that the decisions of the Full Courts in Wiest and Tzatzimakis are not directly relevant to the resolution of this appeal, what they provide is a clear exposition of how s 10(1) of the Extradition Act came to be expressed in its current form and what the significance of that form is. What Wiest left to one side, but which Tzatzimakis decided and applied, was in what circumstances, for the purposes of s 10(1), it could be said of a person that they had "been convicted in the person's absence of an offence". While that issue is not raised in this appeal, Wiest and Tzatzimakis emphasise that the Extradition Act, in combination with regulations or treaties, may address the question of in absentia convictions. Each of the decisions, or at least some of the judgments in each case - principally those of Gummow and Sheppard JJ in Wiest and that of Hill J in Tzatzimakis agreeing with the propositions identified by Gummow J in Wiest - also emphasise the concern that Australian law has belied over a long period in relation to the extradition of persons to requesting states for in absentia convictions.
401 The Treaty in the case on appeal does not create any express bar or potential bar on account of an in absentia conviction of the requested person in the Requesting State, as for example does the Extradition Act 2003 (UK) referred to in the first respondent's submissions. However, in my view there is and can be little doubt that the circumstance of an in absentia conviction of the requested person in the Requesting State may, depending on the circumstances, be a relevant circumstance of the case required to be considered by Australia under Art 9(2)(b) of the Treaty. As stated above, while there is no bar to the extradition of a requested person who has been convicted in their absence in the requesting state, that does not mean the extradition of a person convicted in absentia must automatically be authorised under the Act.
402 In this case, Att B was formulated on the understanding that the in absentia conviction of the first respondent in Indonesia was a factor relevant to the Minister's consideration of the circumstances of the case and whether, pursuant to Art 9(2)(b) of the Treaty, the first respondent should be surrendered to Indonesia. The question that arises in a case such as the present, is what decision-making process, if any, is required under Art 9(2)(b) of the Treaty when a relevant circumstance raised for the decision-maker's consideration is the in absentia conviction of the requested person in the Requesting State. On the one hand, as discussed above, this circumstance may be assessed by the decision-maker by reference to international obligations or subjectively or impressionistically, or, on the other hand, by reference to Australian standards. 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. That does not necessarily mean that, every time a requested person has been convicted in their absence in the Requesting State, their extradition would be unjust. Rather, it is necessary, in my view, for the decision-maker to regard the circumstances in which the in absentia conviction was recorded in the Requesting State and then to assess, by reference to Australian standards, whether the conviction so secured might be said to be unfair. In the light of that assessment the decision-maker, for the purposes of Art 9(2)(b), must then take account of the nature of the offence and the interests of the Requesting State in finally forming a value judgment as to whether the extradition of the requested person would be unjust. It is accepted, as noted above, that the ultimate weighing or consideration process leading to the forming of this value judgment may be difficult, but that does not detract from the requirement to consider the circumstances of the case in relation to any in absentia conviction by reference to Australian standards, against which those other factors of the nature of the offence and interests of the Requesting State must then be weighed.
403 In making the value judgment called for by Art 9(2)(b), where an in absentia conviction in the Requested State is drawn to the decision-maker's attention, in my view the decision-maker must necessarily consider the circumstances of that conviction and identify the Australian law and practice in relation to an in absentia conviction for a like offence. In particular, the following decision-making process is required:
First, the decision-maker should identify whether it would be possible for a person to be convicted in their absence under Australian law or practice of an offence of the type of which the person was convicted in their absence in the Requesting State.
Secondly, if it is possible in Australia for a person to be convicted in their absence of such an offence, the decision-maker should identify the circumstances in which this may occur.
Thirdly, the decision-maker should inquire whether the conviction in absentia in the Requesting State occurred in circumstances the same as or similar to the circumstances in which a person could be convicted for such an offence in absentia in Australia.
404 If, as a result of these steps, it were to be ascertained, for example, that under Australian law or practice the conviction of a person for the type of offence for which they were convicted in their absence in the Requesting State could not be recorded by a court unless the person had first been personally served with initiating process, or by a substitute method, or having been served had deliberately chosen to avoid a trial or hearing at which charges would be heard, then it would be necessary to ascertain the circumstances of the in absentia conviction in the Requesting State. If the requested person was, for example, not served in the Requesting State with initiating process before the conviction was made, and there was no material to support the view that the person had deliberately avoided service, or that the person, having been served with the process, deliberately avoided a trial, then 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. 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 with the originating process.
405 Similar steps would also be necessary where the in absentia conviction in the Requesting State is not incompatible with Australian standards, but where there is no right to an appeal or a retrial in the case of the in absentia conviction in circumstances where a retrial or an appeal would ordinarily be available under Australian law or practice.
406 It would also be appropriate, in a case such as the present where the question of the sentence imposed in the Requesting State is raised by the requested person, to consider whether the sentence imposed in absentia (and in a case such as the present confirmed on appeal in absentia) would be considered excessive by Australian sentencing standards.
407 By such a decision-making process a person convicted in absentia in Indonesia may be extradited from Australia, as the Treaty by Art 11 and the Act by s 10 recognise. But neither of those provisions mandate extradition where a person has been convicted in absentia in the Requesting Country, and it remains necessary to Australia to consider, under Art 9(2)(b), whether, having regard to the Australian standards, extradition would be considered unjust before balancing or weighing the other factors referred to in Art 9(2)(b).
408 The Att B analysis: In this case Att B took some of these steps but, in my view, failed adequately to consider (save in respect of the sentence imposed) what the position by Australian standards was in respect of a number of matters against which standards the Indonesian law or practice concerning in absentia convictions and appeals could be compared to the Australian standards in order to ask the right question about whether extradition would be unjust.
409 In Att B, the principal analysis of the relevance of the in absentia conviction in Indonesia was provided at [185]-[214] (although much of the text between [205] and [214] has been redacted to protect the privilege of the Minister in that material):
Departmental Comment
Introduction
185. The analysis below addresses the right to a fair trial and fairness of Ariawan's conviction in absentia by reference to Indonesian law, Australian law (including case law on extradition to New Zealand) and international law. In summary, the analysis below concludes that:
• Ariawan has not established that he has been prejudiced by reason of his race such that his extradition would be unjust, oppressive or incompatible with humanitarian considerations
• …
• …
• …
• although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of Ariawan's conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations.
Conviction in absentia
186. It is clear that Ariawan was convicted in his absence in Indonesia. Ariawan claims that his conviction and sentence are a result of prejudice on the part of Indonesian authorities on account of his Chinese ethnicity.
187. Ariawan's claim of prejudice on account of his ethnicity is discussed above in the analysis of an extradition objection under s 7(c) of the Act. The Department does not accept that the circumstances of Ariawan's trial in absentia and the fact that the trial proceeded in Ariawan's absence itself establishes that he has been prejudiced because of his Chinese ethnicity.
188. The Department notes that Australia's extradition Treaty with Indonesia expressly provides for extradition where a person has been convicted in their absence. Article 11(2)(b) sets out the documents that must accompany a request for extradition for a person who has been convicted in their absence.
189. In terms of the general unfairness or otherwise of Ariawan's conviction in absentia, it is clear that such convictions are not commonplace in Indonesia and only occur under Indonesian law in certain limited circumstances for certain offences, which include corruption. Indonesia has advised Ariawan's case fell within those circumstances and that his trial took place in accordance with Indonesian law. In this respect, the trial cannot be said to have been unfair under Indonesian law by reason of Ariawan's absence alone.
190. As mentioned at paragraphs 77-78 above, Professor Lindsey has advised that… The Jakarta District Court considered it appropriate to proceed on this basis in Ariawan's case, and Indonesian authorities have advised the summons procedure was conducted in an 'optimum and proper manner' (see page 3 of Attachment E3). In this respect, it appears that the decision to proceed with the criminal trial against Ariawan in his absence was in accordance with Indonesian law.
191. The Department is not in possession of any information which positively establishes that Ariawan was aware of the proceedings in Indonesia and chose to deliberately absent himself. However, it is open to you to draw inferences about Ariawan's awareness of the circumstances from the following facts:
• Ariawan worked for Bank Surya in a senior position, including for at least a five year period as the President Director, and would have been likely to have some awareness of the dire financial position of the bank before he arrived in Australia in 1999 as it had been declared a 'suspended bank' in April 1998 and ordered to cease operations in August the same year
• The Bank was the recipient of Bank Indonesia Liquidity Assistance while Ariawan occupied the position of President Director
• Indonesian media commenced reporting on Bank Surya's collapse and potential criminal investigations in 1998.
192. The Department separately notes that Ariawan changed his legal name in Australia which took effect from the day after the District Court handed down its decision on 13 November 2002.
193. In the Department's view, given the above and in light of the publicity surrounding the criminal investigations in relation to the Bank's managers, it is somewhat difficult to accept that Ariawan had absolutely no knowledge of at least the law enforcement interest in him.
194. The case law on waiving one's right to be present in the context of extradition for convictions in absentia and, specifically whether a person's voluntary absence means they have in fact waived their right to be present, is not settled. However, in accordance with recent case law, the more relevant question is not whether a person has voluntarily absented himself or waived his right to be present at his trial, but whether, in all the circumstances, the trial that did take place can be regarded as fair despite the fact that the defendant was not in attendance. In Hellenic Republic v Tzatzimakis [2003] FCAFC 4, Hill J notes (at [53]) that the decision of the House of Lords in Jones v R [2002] UKHL 5 provides a useful discussion of the European and common law position regarding trials in absentia. In that case, Lord Rodger noted (at [55]) that the European Court of Human Rights, in dealing with cases where the right to a fair trial under Article 6 of the European Convention on Human Rights is said to have been breached, in particular in circumstances where a person has been convicted in their absence, 'has been at pains' to emphasise that it is not the court's function to elaborate a general theory in this area (of convictions in absentia), recognising that states have different rules of procedure and the means by which they secure a fair trial in the absence of the defendant will also vary. Indeed, Finkelstein J later noted in Tzatzimakis (at [83]) that in many civil law countries an accused is entitled but not actually obliged to attend his trial and that, if he has notice but does not attend, he may be convicted in his absence.
195. In accordance with the views of the House of Lords in Jones, what is important in a trial that has occurred in a person's absence is that the trial in the whole of the circumstances was fair, including that the trial judge exercised proper discretion in determining to proceed with the trial, the conduct of the trial itself (and if relevant, directions to the jury) and that the person has an opportunity to appeal the conviction both in fact and law (per Lords Bingham at [6], Hoffman at [20] and Rodger at [76]).
196. The Department notes that Indonesia and the Australian Embassy in Jakarta has provided information about the appeal process which would be available to Ariawan, discussed below at paragraphs 225-235.
Australian case law on the right to a fair trial
197. As a preliminary point, the Department notes that convictions in a person's absence are rare in Australia and generally only occur for summary offences or where the defendant has deliberately absented himself from proceedings after having appeared initially.
198. In seeking to rely on case law concerning extradition from Australia to New Zealand, Ariawan appears to equate his conviction in absentia and the surrounding circumstances with an unfair trial and, on this basis, submits that his extradition should therefore be refused.
199. In relation to what might constitute an unfair trial, Ariawan has asked you to consider Australian case law on the right to a fair trial in domestic proceedings in Australia which, he claims, includes the right to be present. In Dietrich the High Court held that the right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system. Mason CJ noted that '[t]he right is manifested in rules of [Australian] law and of practice designed to regulate the course of the trial' (at [7]) but that '[t]here has been no judicial attempt to list exhaustively the attributes to a fair trial' (at [8]).
200. In terms of the application of Australia's international obligations, Mason CJ went on to note that '[r]atification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions. No such legislation has been passed' (citations omitted) (at [17]).
201. Deane J also noted that '[t]he fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial according to law' (at [1]) (Department's emphasis).
202. Applying this principle in (the applicant's) case, on the basis of information provided by Indonesia, it appears that the trial was conducted according to law in Indonesia.
Australian law relating to extradition to New Zealand
203. Australia's Extradition Act contains a separate simplified regime which governs extradition of persons from Australia to New Zealand. This regime is commonly known as a 'backing of warrants' scheme where a magistrate indorses a NZ warrant thereby authorising the execution of the warrant in Australia by an Australian police officer. A magistrate then issues a surrender warrant for the person. The Attorney-General plays no part in this regime. Extradition objections and other statutory requirements contained in the Extradition Act applying to extradition requests from other countries do not apply to this regime. Under s 34(2) of the Extradition Act a magistrate must issue a surrender warrant unless the person satisfies the magistrate that it would be 'unjust, oppressive or too severe a punishment to surrender the person to New Zealand'. This statutory ground for refusing extradition to New Zealand is broadly similar to Article 9(2)(b) of the Treaty which provides that extradition may be refused where is would be 'unjust, oppressive or incompatible with humanitarian considerations'.
204. 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.
410 At [185], the analysis sets out to address the "right to a fair trial and fairness of [the first respondent's] conviction in absentia by reference to Indonesian law, Australian law…and international law". The Minister was told in the last bullet point in [185] that:
although you may take guidance from Australian case law relating to fair trial standards generally (including in the context of extradition to New Zealand), the Department considers it is open to you to conclude, taking into account the circumstances of Ariawan's conviction in absentia, that his surrender would not be unjust, oppressive or incompatible with humanitarian considerations.
(Emphasis in original.)
The analysis to support this advice is to be found in the paragraphs that follow [185].
411 The topic of "Conviction in absentia" is discussed particularly at [186]-[196] of Att B. The discussion in some of these paragraphs deals not just with the question of conviction in absentia, but also with conviction on the basis of prejudice against the first respondent on account of his Chinese ethnicity: for example, at [186] and [187].
412 The analysis in [189] makes it clear that, in terms of general unfairness or otherwise of the conviction in absentia, "it is clear that such convictions are not commonplace in Indonesia". The point seemingly being made here is that, according to Indonesian law, the trial that secured the convictions in absentia cannot be said to have been unfair. Indeed this is the precise conclusion in the last sentence of [189] where it is stated:
In this respect, the trial cannot be said to have been unfair under Indonesian law by reason of Ariawan's absence alone.
This analysis may be considered generally relevant, but it says nothing about how the conviction would be assessed according to Australian standards.
413 The subsequent discussion, particularly that at [194], does not deviate from this focus on the fairness of an in absentia conviction. In that paragraph reference is made to case law where the point of the discussion is to the effect that in absentia convictions are not necessarily to be considered unfair. Whatever the merits of the discussion in the analysis at [194] and [195], the analysis simply does not enter upon any discussion as to how an in absentia conviction for an offence, such as that the first respondent had been convicted of in his absence in Indonesia, would be considered by Australian standards.
414 Attachment B then specifically deals with the topic, "Australian case law on the right to a fair trial" at [197]-[202]. At [197], as a "preliminary point", it is noted that convictions in a person's absence are "rare in Australia" and generally only occur for summary offences or where a defendant has deliberately absented himself from proceedings after having appeared initially. The point is then made in [198] that the first respondent "appears to equate his conviction in absentia and the surrounding circumstances with an unfair trial and, on this basis, submits that his extradition should therefore be refused". The point is made at [199] that the first respondent has relied on Australian case law, including decisions such as Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 in the High Court, to say that his trial was unfair because he was entitled to appear at it. The analysis at [200] and [201] is to the effect that the extent of a person's right to a fair trial under Australian law has not been exhaustively determined by case law.
415 However, nowhere in the analysis at [197] to [202] is it said, or able fairly to be implied, that by Australian standards the conviction of a person in their absence of an offence such as that for which the first respondent had been convicted in his absence in Indonesia, would not only be "rare", but could not happen unless the person personally charged had absconded to avoid trial. Indeed, the opposite conclusion might be drawn from the analysis provided, namely, that because a person's right to a fair trial has not been exhaustively determined by Australian case law, it cannot be said with any degree of assurance that an in absentia conviction of such an offence in Australia, where they had not been personally charged and had not absconded to avoid trial having been charged, would be considered unjust.
416 The only thing said explicitly on the question in Att B, is in [202], where the analysis is that:
Applying this principle [namely that a person should not be convicted of a crime except after a fair trial according to law as noted by Deane J in Dietrich]…on the basis of information provided by Indonesia, it appears that the trial was conducted according to law in Indonesia. [Emphasis in original.]
This statement again leaves unaddressed the question of fairness according to law in Australia.
417 It is apparent from those passages that there has been no attempt in Att B to address directly or expressly whether, according to Australian standards, the convictions of the first respondent in Indonesia in absentia in the particular circumstances described, for the offence in question, would be considered unjust by Australian standards.
418 In the subsequent discussion, at [203]-[204], under the heading "Australian law relating to extradition to New Zealand" the position is no further advanced, save to observe obliquely, by reference to Australian case law concerning s 34(2) of the Extradition Act, that it is "open" to the Minister 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". That observation, in my view, is tantamount to saying that such Australian judicial consideration may also be disregarded.
419 Again, nothing is said in the analysis of the New Zealand cases in this passage to suggest that under Australian criminal law and practice the in absentia conviction of a person of an offence of the type for which the first respondent had been convicted in his absence in Indonesia in the particular circumstances described above where the person had not been served with the initiating process can hardly be imagined, let alone possible.
420 The only analysis thereafter provided in Att B that appears to address directly the assessment of the in absentia conviction of the first respondent by Australian standards in the particular circumstances described, is in the section of the analysis headed, "Conclusion on Article 9(2)(b)" at [255] and [256], as follows:
255. For the reasons set out above, the Department considers that Ariawan's claims in respect of his personal circumstances, the fairness of his trial generally and prejudice on the basis of his Chinese ethnicity, his conviction in absentia, the length of the sentence of imprisonment imposed on him and his limited appeal rights and the risk of HIV/AIDS in prison in Indonesia do not, individually, mean his extradition would be unjust, oppressive or incompatible with humanitarian considerations so as to warrant the exercise of your discretion to refuse surrender. The Department acknowledges that it is open to you to afford some weight to the assertions that Ariawan's trial was not conducted in accordance with, and his sentence is excessive by, Australian standards. However, the Department considers the fact that it will be open to Ariawan to apply for a PK review of the Indonesian court decision on his return to Indonesia substantially attenuates the consequences of his conviction in absentia.
256. Taking into account the totality of the circumstances of this case including:
• the very serious nature of the bank fraud/corruption offence of which Ariawan has been convicted
• Indonesia's interest in pursuing those responsible for the commission of major corruption crime in Indonesia
• Ariawan's personal circumstances
• the circumstances of Ariawan's conviction in absentia
• the length of the sentence of imprisonment imposed upon him
• the nature of the appeal rights available to Ariawan
• differences in the conduct of criminal justice processes in Australia and Indonesia
• the lapse of time since the offending conduct occurred, and
• the level of risk of exposure to HIV/AIDS in Jakarta prisons
the Department considers it open to you to conclude that it would not be unjust, oppressive or incompatible with humanitarian considerations to determine to surrender Ariawan to Indonesia.
421 It will be observed that, in [255], reference is made at the outset to the personal circumstances claimed by the first respondent as well as the "fairness of his trial generally" and also "his conviction in absentia". It is then stated:
The Department acknowledges that it is open to you to afford some weight to the assertions that Ariawan's trial was not conducted in accordance with, and his sentence is excessive by, Australian standards.
422 The observation is then made that, by virtue of the process called PK review available in Indonesia, some attenuation of the consequences of the in absentia conviction may be possible in Indonesia.
423 The point is again, however, that in this conclusion the analysis does not plainly identify the in absentia conviction of the first respondent in the circumstances described in which he was convicted in absentia in Indonesia would not be countenanced by Australian law and practice, let alone be considered possible. The analysis simply is that "some weight" may be given to the "assertions" that the trial was not conducted in accordance with Australian standards and the sentence was "excessive" by Australian standards. In my view, this is, at best, an equivocal statement that has the effect of understating or downplaying the significance of Australian standards relating to in absentia convictions for offences of the type which the first respondent had been convicted in Indonesia in the circumstances described. It leaves open the possible view that an in absentia conviction in such circumstances in Australia could be countenanced or considered possible and fair by Australian standards, when plainly it would not be.
424 This point is confirmed when [256] is considered, as it provides no particular emphasis to the fact that the in absentia conviction of the first respondent in Indonesia in the circumstances described would be considered unjust by Australian standards.
425 In the event, the Minister was not unequivocally advised that in the course of forming a value judgment as to whether the first respondent's extradition to Indonesia would be unjust he may regard the various factors listed in Art 9(2)(b), but that when considering the in absentia conviction circumstance he needed to ask if it would be considered unjust by Australian standards, which plainly it would be, before concluding by weighing of all the relevant factors and making a final value judgment.
426 It is not at all clear to me whether the Minister's s 22 determination might have been different if the Australian standards concerning the fairness of in absentia convictions of an offence of the type the first respondent had been convicted of in his absence in Indonesia, had been clearly set out in Att B. What is clear to me, however, is that the failure to address these factors clearly in Att B carries with it the real risk that the Minister was constructively misled about the decision-making process required of him under s 22(3) and Art 9(2)(b). Rather than the Minister asking whether the in absentia conviction in Indonesia was apparently unjust by Australian standards, and then, taking into account the nature of the offence and the interests of Indonesia, making a final value judgment as to whether extradition of the first respondent to Indonesia would be unjust, the first step concerning Australian standards was compromised.
427 I acknowledge that the question of in absentia convictions in a requesting state is a vexed one under Australian extradition law. There is no doubt that there are a number of countries with whom Australia has extradition treaties whose systems of criminal justice are different from those in Australia and where the trial processes and sentencing regimes are different from those that operate in Australia. That does not mean extradition must be refused. The Treaty between Australia and Indonesia by Art 9(2)(b) enables Australia and Indonesia to weigh competing factors when deciding whether extradition should be considered unjust. The bar to an extradition that would be unjust has been at the root of extradition law in Australian law since at least the passage of the Imperial Fugitive Offenders Act 1881. This factor is designed not only to preserve Australia's own sense of what is just, but also designed, as emphasised by Kirby J in Foster, to protect the interests of individuals whose extradition has been sought. It requires Australian standards, reflected in relevant law or practice, to be regarded. In my view, notwithstanding the Minister's reliance on the Canadian authorities of Re Kindler and Mellino, Australian standards are directly relevant to the exercise of judgment about what is unjust, oppressive or incompatible with humanitarian considerations, as the dicta of Gaudron and Hayne JJ in Foster suggests. Doctrines of international reciprocity cannot be relied upon to undermine the requirement to regard these concerns by reference to Australian standards under Australian law. In my view, there was a failure here, reflected in the s 22 submission given to the Minister, to fully appreciate the nature of the assessment required under the Extradition Act and Art 9(2)(b) where the requested person has been convicted in absentia in the Requesting State.
428 For these reasons, I consider that the Minister constructively failed to take into account relevant considerations by assuming the s 22 submission correctly informed him as to his decision-making task when it did not ask whether the in absentia conviction of the first respondent in Indonesia in the circumstances described would be considered unjust by Australian standards, for the purpose of finally deciding whether the Minister was satisfied, taking into account the nature of the offence and the interests of Indonesia, that the surrender of the first respondent would be unjust, oppressive or incompatible with humanitarian considerations.
429 For these reasons, the Minister's appeal on the in absentia grounds must fail.