Relevant Standard Applying to Extradition Decision: Minister for Justice v Adamas [2013] HCA 59

In Commonwealth Minister for Justice v Adrian Adamas [2013] HCA 59 (18 December 2013) the High Court has held that the Commonwealth Minister for Home Affairs and Justice (the Minister) had correctly determined to surrender to Indonesian authorities an Australian citizen, Mr Adamas (the respondent), convicted in his absence by an Indonesian court of an offence under the law of Indonesia and sentenced to life imprisonment.

The High Court found in a unanimous decision that the Minister's appeal from an earlier decision of the full court of the Federal Court of Australia should be allowed, holding that "Australian standards of a fair trial were relevant to, but not determinative of, the Minister's decision" to extradite the respondent.

Background

In the period between 1989 and 1998 the respondent had been the President Director of  Bank Surya in Indonesia, moving to Australia in 1999 where he then became an Australian citizen in 2002. In that year, in his absence, he was convicted by an Indonesian court of a corruption offence claimed to involve the misuse of bank funds and which had also caused liquidity problems for Bank Surya and extensive losses to the Indonesian Central Bank. He was sentenced to life imprisonment and as a result the Indonesian authorities had sought his extradition from Australia.

Key Issue

The Minister was required to determine whether the respondent should be surrendered to Indonesia by force of an extradition treaty between Australia and Indonesia set out in the Schedule to the Extradition (Republic of Indonesia) Regulations 1994 (Cth).

That treaty given effect by this domestic legislation meant the respondent was to be surrendered only if, among other things, the Minister was satisfied that, in the circumstances of the case and taking into account the nature of the offence and the interests of Indonesia, surrender would not be "unjust, oppressive or incompatible with humanitarian considerations" - see further, the Extradition Act 1988 (Cth) s 22(3) and Article 9(2)(b) of the Schedule to the Extradition (Republic of Indonesia) Regulations 1994 (Cth).

At Trial

Following advice and recommendations from the office of the Attorney-General, the Minister determined that the respondent should be surrendered to Indonesia. The respondent sought judicial review of the Minister's determination.

In the Federal Court, at first instance and then on appeal to the full court, it was found that the Minister applied the wrong legal test failing to recognise that whether or not it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the respondent was to be determined according to "Australian standards", which would not ordinarily permit the trial and conviction of a person for a serious criminal offence in his or her absence.

In the High Court

The Minister by special leave appealed to the High Court which held that the standard for what is "unjust, oppressive or incompatible with humanitarian considerations", being contained in a bilateral treaty between Australia and Indonesia, "encapsulated a single broad evaluative standard to be applied alike by Australia and Indonesia". Domestic standards, and international standards to which Australia and Indonesia have agreed, were relevant to the application of the standard in the treaty but were not determinative. The Minister had been correct in not confining his consideration to the application of Australian standards only.

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• Commonwealth Minister for Justice v Adrian Adamas [2013] HCA 59 (18 December 2013) Report of Case
• Commonwealth Minister for Justice v Adrian Adamas [2013] HCA 59 (18 December 2013) FIRST RESPONDENT'S SUBMISSIONS