The Applicant's Submissions
30 The applicant, in his written submissions, contendsthat to identify, for the purposes of the Treaty, an extraditable offence upon which a request for extradition may be based regard must be had to Article 2 of the Treaty.
31 The applicant submits that Art 2 para 5 affects the primary operation of the Act's provisions by altering the definition of "extradition offence" in s 5 of the Act to exclude certain offences and, accordingly, it has a significant effect on the operation of s 19 of the Act, including s 19(2)(c) regarding double criminality.
32 By virtue of Art 2 para 1 of the Treaty extraditable offences "are" offences however described which are punishable under the laws of both Contracting States by imprisonment for a maximum period of at least one year or by a more severe penalty. Article 2 then addresses the way in which conduct alleged to have been committed by the person whose extradition is sought, satisfies, or, impliedly, fails to satisfy the constitutive elements that make that conduct an offence, at the relevant times, in both Hungary and Australia: Art 2 para 2 of the Treaty.
33 The applicant submits thatfor temporal purposes, by reason of Art 2 para 5, extradition may be granted pursuant to the provisions of this Treaty irrespective of when the offence to which extradition is sought was committed, provided that:
(a) it was an offence in the Requesting State at the time of the acts or omissions constituting the offence; and
(b) the acts or omissions alleged would, if they had taken place in the territory of the Requested State at the time of the making of the request for extradition, have constituted an offence against the law in force in that State.
34 The applicant then submits thatin accordance with that Treaty provision extradition may be granted pursuant to the Treaty irrespective of when the offence in relation to which extradition is sought was committed subject, however, to the extent that its operation is modified by the proviso that the "extradition offence" must have been an offence in Hungary at the time of the acts or omissions constituting the offence took place.
35 The warrant in support of Hungary's extradition request discloses that:
(a) The specific extradition offence in relation to which the Requesting State seeks the applicant's extradition ("the specified offence"), as described in that warrant is a war crime as referred to in s 165 of the Criminal Code of Hungary (Act IV of 1978) and s 11, para 5 of Decree No 81/1945(II.5) ME on People's Jurisdiction (Act VII of 1945), amended and complemented by Decree No 1440/1945 (V.1) ME;
(b) The specified offence was allegedly committed on 8 November 1944;
(c) On 3 March 2005 the Military Division of the Budapest Metropolitan Court issued a warrant for the arrest of the Applicant;
(d) The punishment for the offence is imprisonment for life or imprisonment from 10 to 15 years.
36 The specified offence, namely, the war crimewith which the applicant is charged was originally created in 1945.
37 It was by reason of the 1945 decree that the acts which the applicant is alleged to have carried out at a prior time, were effectively deemed to be an offence and became subject to criminal liability and punishment ex post facto, even though the particular statutory offence did not exist on 8 November 1944.
38 Accordingly, the applicant submits, heis not eligible for extradition to Hungary in relation to the extradition offence.
39 The applicant submits that the provisions of the Treaty operate in relation to the Act in the following way:
(a) The Act is to be interpreted in the light of its objects. One of the principal objects of the Act according to section 3(c) of the Act is to enable Australia to carry out its obligations under extradition treaties. This includes observance of and compliance with reciprocal obligations under the present Treaty.
(b) The proviso to Article 2, para 5(a) should be read strictly as removing from the category of extraditable offences, offences that did not have legal force in Hungarian law so as to create liability to punishment at the time the "offence" was said to have taken place. Regarding the strict construction of provisos see Western Australia v Wilsmore [1982] HCA 19; (1982) 149 CLR 79, per Aickin J [11-15]; Minister of State for the Army v. Dalziel [1944] HCA 4; (1944) 68 CLR 261, at 274-275 (Latham CJ).
(c) Section 19(2) states the eligibility requirements for surrender and corresponds to Article 3 of the Treaty concerning "exceptions to extradition." The exceptions there listed comprise "limitations, conditions, qualifications or exceptions" that are rendered applicable to the proceedings by reason of section 11(6) of the Act. Section 11(6) is, in other words, to be construed in light of Article 3. By virtue of section 11(6) no limitation, condition, qualification or exception otherwise applicable under section 11 "…has the effect of requiring or permitting a magistrate to be satisfied of any matter other than a matter set out in para 19(2)(a), (b), (c) or (d)." The matters to which a magistrate may have regard under para 19(2)(a), (b), (c) or (d) therefore comprise considerations to which a magistrate must have regard in the course of exercising her jurisdiction under subsection 19(1).
(d) Section 11(6) does not, however, preclude the magistrate from having regard to the matters arising under Article 2 of the Treaty where they go to the magistrate's jurisdiction. Article 2 is relevantly headed "Extradition offences" thereby establishing what is an extradition offence for the purposes of the Treaty and hence, the Act. Subject to section 11(6) the effect of Article 2 of the Treaty in defining the elements of a relevant "extradition offence" is to provide the foundation for the jurisdiction of a magistrate under section 19(1) of the Act and is therefore relevant to the determination of whether the Applicant is to be extradited. It prescribes the offence(s) in respect of which an extradition request can properly be sought.
(e) Whether there is a valid extradition offence is therefore a threshold matter that goes to the existence of the jurisdiction under section 19(1) itself. To the extent that s 11 incorporates Article 2, para 5 of the Treaty it is of the essence of that jurisdiction that an offence was in existence at the time when the relevant conduct occurred. That matter is not therefore, in terms of section 11(6), "a limitation, condition, qualification or exception" relating to "any matter other than a matter set out in para 19(2)(a), (b), (c) or (d)".
40 The applicant accepts that in expressly confining matters to which, when exercising jurisdiction, the magistrate can properly have regard under s 19(2) of the Act. Section 11(6) by implication removes from the magistrate's consideration other matters such as the age or health of the person or whether the person will be tried in a competent tribunal in accordance with the requirements of the Treaty. Those matters, the applicant submits,may be taken into account by the Attorney-General when making the final decision relating to surrender under s 22 of the Act, but those exclusions do not absolve the magistrate from determining the fundamental requirement that there be an extradition offence in terms of the Act, as substantively modified by the Treaty.
41 The applicant submits that the existence of an "extradition offence" is not co-terminus with a person being an "extraditable person". While a s 19 magistrate is not competent to revisit the question of whether a person is an extraditable person for the purposes of ss 12 and 16 of the Act, the magistrate, nonetheless, must consider whether the relevant offence is an "extradition offence" and is, accordingly, one for which the person could be eligible for surrender.
42 Finally, the applicant submits that if s 11(6) of the Act excludes consideration of Art 5 para 2, it leaves no role for that Article to play in the determination of eligibility, which is itself predicated on the existence of an extradition offence. To ignore that requirement renders the applicant liable to coercive restrictions on his civil liberties once the magistrate makes a committal order. It would be extraordinary, says the applicant, if, given the specificity of the Treaty on this aspect of retrospectivity the matter is left to the ultimate determination of the Attorney-General under s 22 of the Act at the end of the extradition process.