How do Australian Courts Deal with Challenges to Extradition?
Author: Dennis Miralis, partner and criminal defence lawyer.
What were the facts in the case of O’Connor v Adamas?
Mr Adamas and Mr Sutrisno were charged with misusing bank funds for their own purposes which led to serious liquidity problems for Bank Surya, Bank Indonesia and the Republic of Indonesia.
Mr Adamas, the first respondent, was the President Director of Bank Surya in Indonesia between 1989 and 1998 and Mr Sutrisno, the second respondent, was the Vice President Commissioner of Bank Surya.
Mr Adamas entered Australia on 25 July 1999. A trial was commenced in Indonesia in his absence on 24 July 2002. Mr Adamas was convicted of corruption and sentenced to life imprisonment.
A High Court appeal was submitted by Mr Sutrisno which was dismissed.
On 20 December 2004, the Central Jakarta District Prosecution Office requested Interpol’s assistance to locate and arrest Mr Adamas. On 17 January 2005, Interpol published a ‘Red Notice’ which resulted in Australian authorities becoming aware of his presence in Australia.
How did the extradition process develop in Australia?
On 26 November 2008, Indonesian authorities issued a warrant for the arrest of Mr Adamas and two days later made a formal extradition request for his surrender.
In response, an Australian magistrate issued a provisional arrest warrant under section 12 of the Extradition Action 1988, meaning that Mr Adamas was an extraditable person in relation to an application by an extradition country.
On 18 September 2009 Mr Adamas was found to be eligible for surrender and a warrant was issued for his arrest.
Having looked at the considerations within section 22(3) of the Extradition Act 1988, the Minister for Justice within his power in section 22 determined that Mr Adamas would be surrendered to Indonesia.
Proceedings began in the Federal Court of Australia after Mr Adamas filed for an order to void the determination of surrender by the Minister for Justice.
What did the Judge at the Federal Court of Australia find?
The primary judge made orders for the surrender warrants to be quashed, stating the following in regards to the determination made by the Minister for Justice:
- The Minister erred by relying on a departmental submission made under section 22 and thereby not exercising his discretion.
- That the Minster failed to take into account relevant considerations of whether extradition would be unjust by Australian standards, having regard to the conviction made in the absence of Mr Adamas.
- That the finding and decision made under section 22 to surrender Mr Adamas was unreasonable in the Wednesbury sense
- That the Minister had not failed to take into account considerations of whether surrender would constitute a violation of Australia’s obligations under International Covenant on Civil and Political Rights.
- That the Minister’s decision was not unreasonable in relation to circumstances provided for in Article 9(2)(b) of the Extradition Treaty with Indonesia.
The Minister’s response – an appeal to the Full Federal Court
The Minister raised three broad issues including:
- Whether it had been correctly found that the section 22 submission (namely, the Brief served to the Minister before making a decision) affected the Minister’s discretionary powers in making a determination;
- Whether the Federal Court had been right to find that the Minister failed to take into account a relevant consideration, namely whether extradition of the first respondent to Indonesia would be unjust by Australian criminal law standards having regard to the in absentia conviction in Indonesia;
- Whether the Federal Court was right to find that the section 22 decision to surrender the first respondent to Indonesia was unreasonable in that it met the Wednesbury test for unreasonableness.
The Minister submitted that under the discretionary power embedded in section 22 to make a surrender determination, there was no requirement for a production of reasons as to the decision. Further, the Minister submitted that section 22 should be read as a whole and parts should not be taken out of context. The submission sought to argue that an error in itself, would not render the decision invalid as all elements were considerations for an ultimately discretionary decision.
The Minister argued that the decision making power required he be satisfied about certain matters, and that the submissions made to him in order to make a determination under section 22 must not be taken to be his reasons, but rather factors that he took into consideration.
What was the final verdict?
The Full Federal Court found that appeal was erroneous. They upheld the decision by the Federal Court to quash the surrender warrant and the determination of surrender. Statements were made about the following issues:
The Absentia Conviction
The Appeal Judge found that the Australian standards are directly relevant to the exercise of judgment about what is unjust, oppressive or incompatible with humanitarian considerations.
The Minister failed to take into account relevant considerations by assuming that the section 22 submission correctly informed him as to his decision-making task. Whilst it is true that there is nothing in the Act or Treaty that prevents Australia from surrendering to Indonesia a person who has been convicted in their absence, the departmental submission affected the Minister’s ability to fully appreciate the nature of the assessment required under the Extradition Act and Art 9(2)(b) of the Extradition Treaty between Australia and the Republic of Indonesia.
Article 9.2(b) of the Treaty provides for considerations in this situation to be whether the circumstances of the extradition would make it unjust, oppressive or incompatible with humanitarian considerations. In support of this consideration, many factors were submitted to the Minister including evidence of Mr Adamas age, health and the risk of HIV/Aids in Indonesian prisons.
In considering whether the extradition of the requested person would be unjust, the circumstance of the case is not the sole factor to be considered by the decision-maker and the nature of the offence must be taken into account. It is required of the decision-maker to balance or weigh those various factors in forming a value judgment on extradition.
The Minister was entitled to weigh the factors of the nature of the offence and the interests of the Requesting State with the circumstances of the case (principally, the absentia conviction) in order to form a value judgment on whether extradition would be unjust. Therefore, the determination made under section 22 by the Minister is not open to challenge on the ground that it is an unreasonable decision in the Wednesbury sense.
The primary judge erred in focusing his assessment on whether the decision was unreasonable. These grounds of appeal were upheld. However, the determination to surrender was done under the power given in section 22, which was not made with regard to whether the absentia conviction was unfair. For this reason, the exercise of the section 22 power miscarried by reason of jurisdictional error.
The International Covenant on Civil and Political Rights
The Minister could not show for certain that Australia was bound by non-refoulement obligations.. It was found that, at best, there are disputed opinions as to whether Australia has any non-refoulement obligations. On this basis, it was not demonstrated that the Minister failed to have regard to international considerations under the International Covenant on Civil and Political Rights.
How can Nyman Gibson Miralis help you?
Nyman Gibson Miralis specialise in all aspects of extradition law. By its very nature, extradition is a transnational process. Our criminal law specialists are experts in transnational law and have represented and advised persons facing and challenging extraditions to the US, South Africa, Europe, England, Asia and Mexico.
If you need advice from a criminal defence lawyer specialising in extradition hearing matters, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. Call 1800 NOT GUILTY and arrange a free conference with a solicitor today. Contact our specialists right now! 24-hour advice 7 days a week.
contact form or via phone, will be treated
strictly privately and in confidence.