Rahardja v The Governor, Long Bay Gaol & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 ADAMS J: In my judgment on Dr Rahardja's application to cross-vest the proceeding, I have set out the relevant history of the litigation and summarised the issues involved in determining whether this Court could or should issue a writ of habeas corpus for his release. I do not intend to repeat that matter here. It may, however, be convenient briefly to set out the issue requiring determination. 2 Section 11 of the Extradition Act 1988 (the Act), in substance, imports into the Act the terms of any bilateral treaty which is rendered applicable by Regulation made under the Act. The Extradition Treaty between Australia and Indonesia (the Treaty) is the subject of the Extradition (Republic of Indonesia) Regulations 1994. Article 9(1)(a) of the Treaty provides that "extradition shall not be granted…where the person sought has acquired exemption from prosecution or punishment by reason of lapse of time or other lawful cause according to the law of either Contracting State in respect of the act or omission constituting the offence for which extradition is requested." It is submitted that, the banking charges upon which the warrant depends and to which it refers having been withdrawn and the effect of his conviction for the corruption charges is that he now cannot be tried or punished for the banking charges, Dr Rahardja cannot now be surrendered. It is submitted that the purpose for which he was detained, namely for the Attorney-General to determine whether to surrender or release him has, accordingly, been spent. 3 The requirement of s19 of the Act is that "the Magistrate shall conduct proceedings to determine whether the person is eligible for surrender" (subs19(1)). That person is "only eligible for surrender" if the conditions specified in subs19(2) are satisfied, which requirements do not include the exception relied on by Dr Rahardja. It is conceded by him that the Magistrate could not have considered this exception, even if the relevant circumstances had occurred prior to the s19 proceedings (although there might be a question raised about the comprehensiveness and authenticity of the supporting documents). Under the scheme of the Act, the existence or, more accurately, the non-existence of an exception such as alleged by Dr Rahardja, is excluded from the purview of the Magistrate and falls to be determined by the Attorney-General exercising the responsibilities assigned by s22. The application for habeas corpus by Dr Rahardja is, accordingly, designed to bypass the role of the Attorney-General under par22(3)(e) and subs22(5). Dr Rahardja's contention, therefore, separates the requirement of the Art 9(1)(a) of Treaty as imported by s11 and depends upon the interpretation that is an independent consideration, operating of its own force and, in particular, is not qualified by s22(3)(e). Mr Hutley SC submitted that, despite s3 of the Act, which states that it is one of its principal objects "to codify the law relating to the extradition of persons from Australia…and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited without determining…guilt or innocence…", it is not a Code in all respects, and that this is shown by my earlier judgment on Dr Rahardja's initial habeas corpus application. Thus, he argued, although s22 envisages a role for the Attorney-General in determining whether an exception as provided by Article (1)(a) exists, this does not exclude the matter being considered and determined by a Court in proceedings for habeas corpus. 4 Indeed, in Papazoglou v Republic of the Phillipines (1997) 74 FCR 108, the question whether a Magistrate could determine an application under s19 of the Act in a way other than specified by the section where there was an abuse of process was answered by reference to standard principles of statutory construction rather than s3. The Full Court (Wilcox, Tamberlin, Sackville JJ) noted - "It is difficult to resist the notion that Australians have a fundamental right not to be detained in custody without an opportunity to assert before a court that the proceedings against them should be regarded as an abuse of process. If legislation is to abrogate or curtail that right, it must contain a clear expression of an unmistakeable and unambiguous intention to do so.

A further powerful consideration is that two decisions of single Justices of the High Court acknowledge that the Extradition Act does not state exhaustively the powers of courts in relation to extradition matters. In Ex Parte Hicks (1991) 65 ALJR 398, a case involving an extradition request by New Zealand, Toohey J held that the Full Federal Court, on an appeal from a single Judge under s.35(3) of the Extradition Act , had power to direct that the application for review be reheard by a single Judge. Although the Extradition Act was intended to be a code, it was not exhaustive of the procedures to be followed on appeal. Similarly, in Zoeller v Federal Republic of Germany (1989) 90 ALR 161, Mason CJ held that the Extradition Act does not preclude the inherent jurisdiction of the High Court to grant bail pending the hearing of an application for special leave to appeal, although his Honour declined to exercise the jurisdiction in the particular case. These cases concern the implied powers or inherent jurisdiction of superior courts, but they suggest that the Extradition Act does not necessarily exhaustively specify all powers that are available to a magistrate performing the functions conferred by s.19 of the Extradition Act. " 5 Dr Rahardja's application for a writ of habeas corpus is not in any sense an appeal from the decision of the magistrate or a collateral attack upon the proceedings in the Federal Court or, for that matter, on the warrant issued under s19(9) of the Act. His claim is that the purpose for which he was originally detained pursuant to that warrant has been spent. It follows, if this claim be good, that mere production of the warrant is no answer. Nor is it an answer that the Act provides for a statutory review and appeal process, since that is significantly limited in its scope. It may be that the Act is a code so far as the matters that can be considered by review or on appeal are concerned, so that with regard to the specified matters the jurisdiction to issue a writ of habeas corpus is implicitly excluded but this, it is submitted, is not in issue here. The matter sought to be litigated concerns supervening events which cannot be considered in the review or appeal procedures provided in the Act but the effect of which, as a matter of express provision, preclude surrender. In Puharka v Webb [1983] 2 NSWLR 31 a writ of habeas corpus was sought where the time limit provided by the Extradition (Foreign States) Act 1966 for review of an order committing a person to prison to await extradition had expired. It was submitted on behalf of the Attorney-General that, in light of the expiry, there was no residual jurisdiction in the Court to grant relief to Mr Puharka. Rogers J said ([1983] 2 NSWLR at 34-35) - "This is a point of the utmost importance to Australia in the regulation of its international relations with other countries. It cannot be over-emphasized that when Australia enters into a treaty obligation with another country, it will, not only through the executive Government, but also through the judicial arm of the State of Federal Governments, adhere to and have proper and respectful regard for the obligations which Australia has assumed. I have no doubt that every judicial officer will endeavour to act so as to give effect and substance to the obligations which inure to this country by virtue of international treaties. In the result, therefore, in my view, if there is a subsisting international treaty which, when properly followed, requires the extradition of a person to another country it is the duty of the court to ensure that that is done. But there is another duty of equal importance which rests upon any judge who sits in a court of superior jurisdiction. The remedy of habeas corpus is one of the most treasured and long-standing heritages that this country has taken from the United Kingdom. To surrender it in any case would be to cast away a treasured possession. It should not be done without the most clear cut and measured terms of legislation. In my view, on its proper interpretation, whilst the provisions of the Extradition (Foreign States) Act 1966 (Cth) confirm a statutory right to a review of an order for detention, the legislation does not detract from the common law right of any person, whether a citizen or a visitor to this country, to whom the protection of the laws of this country extends, to approach the court and seek relief from unlawful detention at any time whilesoever that person is within the confines or within the jurisdiction of the appropriate court. For that reason, it seems to me that the common law provisions which exist for the protection of the subject and of persons within the jurisdiction must always subsist so as to ensure that a citizen or otherwise a person present within the jurisdiction will enjoy the protection which the courts can afford to him or her." 6 Dr Rahardja does not seek in these proceedings, as it seems to me, to collaterally impeach the correctness of any judgment or order made by the Magistrate or any court: cf OIC Cells, ACT Supreme Court; Ex parte Eastman; 1974 (68 ALJR 668 at 669; Cabal v Secretary, Department of Justice (Victoria)) [2000] FCA 949 at [40-41]). 7 In addition to submitting that, indeed, the Act is a code (cf Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 129), that precludes a writ of habeas corpus in the present circumstances, Mr Roberts SC submitted, in substance, that s11 and s22(3)(e) do not provide, as it were, two distinct paths enabling the release of an eligible person, namely, because the Treaty exception is satisfied in proceedings such as the present on the one hand or, on the other hand, by the Attorney-General ordering release because he or she is not satisfied that the circumstances giving rise to the exception do not exist. Mr Roberts SC submitted that an imported s11 treaty exception operates only to require an order for release where the Attorney-General is not satisfied that the relevant circumstances giving rise to the exception do not exist. He points to the significant differences between the character of the material to which a court can have regard, bound as it is by the rules of evidence, and the material to which the Attorney-General may refer which, although it must be cogent and rationally informative of the issue about which he or she needs to be satisfied, is not limited by any rules. Indeed, Mr Roberts SC could have pressed the argument further. If the submission put on Dr Rahardja's behalf - that detention is only justified by a subsisting need to determine whether the eligible person be released or surrendered, so that, if it objectively appears that by virtue of an exception such as that provided by Article 1(a) of the Treaty, surrender is precluded, it becomes unlawful - be correct, s22(3)(e) could never operate to permit the Attorney-General to make the decision to which the subsection refers in respect of any treaty objection that prohibits surrender, should the eligible person decide to litigate the exception in the Courts. Accordingly, in respect of the specific matter entrusted to the Attorney-General, in terms, by s22(3)(e) of the Act, the provision has no operation. So far, then, from there being two paths to release, the logic of Dr Rahardja's case is that there is but one - and that is via the court. This would be a very surprising result and seems to me to be an unanswerable refutation of Dr Rahardja's case. On the Republic's case, a determination made by the Attorney-General as to this - or, indeed, any other material matter - may be reviewed under s39B of the Judiciary Act and appropriate orders can be made in the event of a relevant error or impropriety being established, so that both the Attorney-General and the Court have identifiable and appropriate roles. Thus, it is submitted, a proper construction of the Act precludes any intervention of a Court, whether by habeas corpus or otherwise, that has the effect of determining, at least at first instance, whether the Treaty exception in fact exists. I consider that this submission is correct. 8 Dr Rahadja's application depends, in its own terms, upon an interpretation of the Act. I consider that, rightly considered, the Act does not provide that the purpose of detention is spent merely because there exists a prohibition to surrender in a Treaty which is applicable by virtue of s11. Rather, that detention pursuant to a warrant issued under s19 of the Act enlivens the responsibility of the Attorney-General to consider, together with the other matters referred to in s22, whether circumstances giving rise to the exception, and hence whether to surrender or release the eligible person. Since the s19 warrant is not spent - except by the surrender warrant now issued - and the purpose of Dr Rahardja's detention is not spent, there is no occasion for the issue of a writ of habeas corpus. 9 Accordingly, the application is refused with costs. **********

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