The jailing of Daniel Snedden

MR T.E.F. HUGHES, QC: May it please the Court, I appear with my learned friend, MR K.P. SMARK, for the plaintiff. (instructed by Albert A. Macri Partners)

MR H.C. BURMESTER, QC: If it please the Court, I appear with my learned friend, MR J.G. RENWICK, for the first and second defendants. (instructed by Australian Government Solicitor)

GLEESON CJ: Yes, Mr Hughes.

MR HUGHES: In this case, your Honours, we challenge the constitutional validity of the combined operation of the Extradition Act 1988 and the Extradition (Croatia) Regulations in their application to the plaintiff as an Australian citizen. We do so on the principal ground that in their combined operation the Act, particularly section 19(5), and the Regulations provide to Croatia, as an extradition country within the meaning of the Act, the opportunity to secure the involuntary detention and removal from Australia of the plaintiff without any requirement of providing some evidence pointing prima facie to his guilt of the accusations levelled against him of criminal conduct against the laws of Croatia.

We say that in that operation, with respect to the plaintiff, the Act and the regulations are invalid as being wholly disproportionate to the achievement of any objective within the scope of the external affairs power.

[....]

KIRBY J: Any Australian can lose his liberty, be put in custody along with other criminals, can be removed from this country for however long it takes in another country that the government has accepted as an extradition country and it is said that that is not punishment and he never has an opportunity for a judicial officer of this nation to have a look, even on the papers, as to whether or not there is sufficient there to send him. (sic)

MR BURMESTER: That is correct, your Honour.

KIRBY J: It cannot be done if it is the United States requesting you, but it can be done if it is Croatia.

MR BURMESTER: Even with the United States the material that is looked at is limited. It does require additional material but, in our submission, that cannot be a constitutional yardstick for the requirement of a prima facie case.

[....]

KIRBY J: The Government of the Commonwealth has decided that Croatia will be in that category of countries which, without a treaty, Australia will accept as having, by inference, a judicial system which is adequate for the removal of Australian citizens and people under our protection to another country without the necessity of establishing a prima facie case. So it has gone through that test. It is not allowed for every country but it is allowed for quite a lot and, presumably, on some criterion of minimum standards of the judiciary of that country.

MR HUGHES: That, with respect, is speculative.

KIRBY J: It is not final because the final decision lies in us, but it is the decision that has been made by the Government of the Commonwealth.

MR HUGHES: Yes. It is a political decision.

[....]

KIRBY J: But governments throughout history have made accusations. You do not have to accept that they are true just because a government makes it. That is why we normally have judicial officers who are separate from Executive Governments. It is really one of the most important features of the English legal system, that the job of the Executive Government is to get the person quickly before the judicial branch and the judicial branch then decides, according to whatever is the appropriate level, whether a basis has been made out. It is not normally made out just by an accusation.

[....]

KIRBY J: Why not require that the sworn material on which this investigating magistrate has considered there is a well-founded suspicion because that is what appears on 25 at 25, why not require by our law that that be placed before a judicial officer here so that the person is under the protection of the law and the Constitution?

MR BURMESTER: Well, your Honour, in 1985 the Parliament made a deliberate decision that it should abandon what had been the norm up until then of a requirement of a prima facie case. If I could hand up to your Honours some extracts from the Extradition (Foreign States) Amendment Act 1985, which your Honours have or - your Honours have that, I am sorry. The amending Act is set out and if I could take you past that to the second reading speech of Mr Lionel Bowen and one will see the second paragraph of his second reading speech says:

The first amendment will enable Australia to conclude extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt but rather information as to the allegations against the fugitive. This amendment is of particular significance to civil law countries whose systems have difficulty in adapting to the provision of pre-trial evidence. The extradition arrangements of most European countries which are reflected in the European Convention on Extradition do not require the production of prima facie evidence.

GLEESON CJ: That is because in an inquisitorial system they do not have a climactic trial at which guilt or innocence is decided. They have an investigative process. Now, it may be good or it may be bad, but the system is just different.

KIRBY J: The trouble for you, Mr Burmester, is you are in our system.

MR BURMESTER: But, your Honour, in order to take advantage of the ability to have extradition relationships with other countries with different legal systems to ours the decision was taken in 1985 to allow extradition without prima facie evidence.

KIRBY J: But somebody has given this magistrate in Croatia the material on which the allegations are made. So why should an Australian citizen have to go back without having that subject of the scrutiny of his own country, because they are making their request to this country? I mean, these are very grave allegations and they need to be dealt with, but the question is whether this procedure is constitutionally compatible with chapter III, which is there for the protection of the States and the Commonwealth, but also of the nationals of this country.

[....]

KIRBY J: People do not normally lose their liberty in this country except by orders of a court exercising judicial power. It may be a funny old thing and a rather peculiar thing in this day and age, but that is an aspect of our constitutional law. I am sure governments do not like it necessarily.

MR BURMESTER: One can accept as a broad proposition that citizens would not normally be detained without some exercise of judicial power unless it is for a clear non-punitive purpose.

KIRBY J: Well, it must seem rather punitive to the present plaintiff at the moment when he is sitting in a cell, and a criminal cell; it is not a house of detention where he has special privileges and he is looked after in a particular way apt to the fact that he is by our law still innocent. We have not thrown out the presumption of innocence yet in Australia, I hope.

MR BURMESTER: Your Honour, detention is not in all cases punitive just because it is detention. One has to look very closely at the purpose and the way in which that purpose is implemented and whether the intention in all the circumstances and having regard to the purpose of the detention is in fact non-punitive. But, in our submission, this type of detention where a person is awaiting surrender for the purpose of a criminal trial can be seen as similar to a person on remand following initial arrest or awaiting committal where the testing of evidence is not yet taking place or may not take place until the actual trial and where the detention is clearly for that limited purpose of removing the person to face trial in another country.

The fact that Australia has chosen to surrender the person for trial in another country, instead of, for instance, choosing to put the person on trial in Australia, is not something that, as a matter of constitutional law, is prevented. If the detention is limited, as it is, namely until eligibility for surrender is determined, then, in our submission, one cannot contend that it is significantly different from detention awaiting trial or that it in any way goes beyond what can be seen to be a legitimate non-punitive purpose.

KIRBY J: Do you accept Mr Hughes' complaint that the plaintiff is kept in a criminal prison and is dealt with in all apparent ways as a criminal?

From Vasiljkovic v Commonwealth of Australia & Ors [2006]