Nov 28, 2020

BENCH:   Yes, Mr Finlayson.

MR FINLAYSON:   Yes, your Honour.  Responding to the submission in reply that was made by my learned friend with the assertion that Australia owed Samoa international law obligations in respect of this process, and it was put to your Honour that that arose by virtue of us having some regulations in respect of that and I think we’re referring to the Extradition ( Samoa) Regulations 2010.  That’s from the Australian side.  There’s no evidence before your Honour of what Samoa has got at all.  There has just been an assertion from the bar table.

 We have never been provided with any materials about that.  This inquiry was made early, because as my friend has provided to your Honour an authority and referred your Honour to United Mexican States v Cabal [2001] HCA 60 and Vasiljkovic, the juris prudence about Australia’s – about bail and the interpretation of particular provisions of the Act and how they are to work is contingent upon Australia having obligations under international law on the international law plane.  Now, Cabal speaks about treaties.  We accept that Vasiljkovic deals with a situation where there was no treaty.  And, in fact, there an  
Australia citizen could be spirited away to, I think, Croatia, without any treaty obligation at all simply by virtue of the Australian regulations about it.

Now, that’s a matter of domestic law.  That’s a matter of Australia’s municipal law.  That was not done on the basis of an obligation of Australia to the foreign country.  It takes a bit to create obligations of international law.  They don’t just spring up out of goodwill between nations, as it were.  There are specific things which are sources of international law and I have – I would like to hand up – and provide a copy to my friend – a short extract from Brownlie’s Principles of Public International Law.  It’s the ninth edition.  It’s by James Crawford.  A very eminent Australia international lawyer.  He has been on the international court of justice and the like.

And it’s just a brief outline of the sources of international law.  Where does international law come from?  And this is what it takes in order to elevate something to the status of legal obligation on the international plane.  Domestic law sources of law are well-understood.  They are parliaments.  They are the common law.   But international law is different, because, obviously, there’s no international parliament.  The United Nations has some role for its members and can create obligations when people adhere to them, but obligations under an international law arise in what particular ways.  The best attempt – and I think on page 19, item 2 – the most important attempt to specify the sources of international law is article 38 of the statute of the Permanent Court of International Justice.

BENCH:   Yes.

MR FINLAYSON:   And they say – and this is generally accepted as correct:

It can come from international conventions, whether general or particular, establishing rules expressly recognised by the contesting States.

Now, that can be bilateral or multi-lateral treaties.  And it’s accepted here that there is no treaty with Samoa in a relevant respect.  That has been conceded by Samoa.  Another source of international legal obligation is international custom.  And that requires evidence of a general practice accepted as law.  Now, Australia does all sorts of things at large in the world for its foreign affairs portfolio.  The nations do all sorts of things at large.  But what is required to get it to the next level of being international law and an obligation under international law is a concept called Opinio Juris.  And that is a recognition that nations are doing these things because they are obliged to do them as a matter of law and not merely an exercise of their sovereignty.

So in order for it to be said that Australia had an obligation to Samoa under international law in respect of the extradition of the Australian citizen, Mr Pauga, there has to be some statement other than the statement from the bar table here – some instrument, some acknowledgement by Australia that it is obliged to do this at international law and could be sued in an international court or dispute resolution process in relation to that.  

 
BENCH:   And how does that statement occur?  How does that statement – how do you say that statement would occur?  That is, that they an obligation.

MR FINLAYSON:   It could be, for example, a statement of a Minister for Foreign Affairs in an international forum.  And say, “We are doing this because every nation should do this and it’s recognised to be a part of international law”.   Evidence of those statements       

BENCH:   Is the fact that the Commonwealth Attorney-General considered the extradition application and applied the law to that and, you know, signed the authorisation for the extradition – is that a recognition of – that they are prepared to       

MR FINLAYSON:   No.  What we       

BENCH:         you know, accept that they think they have an obligation or       

MR FINLAYSON:   No.  That’s mere – there’s a reason we do that and the reason why our Attorney-General does what they have done here and that is that it’s prescribed by Australian law.  

BENCH:   Okay.

MR FINLAYSON:   It’s not – it’s an obligation under the Domestic and Municipal Law of Australia.  It’s not an obligation to Samoa at international law on the international plane.  

BENCH:   Okay.  All right.  Okay.  So is there any other way that Australia could have indicated the – as international customers evidence of a general practice accepted as law?  So you say there could be a statement in an international forum.  Any other way?

MR FINLAYSON:   Perhaps, I will come to that and I will refer your Honour to some Australian authority – or there’s one Australian       

BENCH:   And, sorry, can we go back to the relevance of these submissions.  This is as a way, you say, of distinguishing the authorities that Mr McKechnie relies on because you say there’s none of this international law existing or no international agreements or treaties -  I mean, it’s accepted there’s no treaties – between Samoa and Australia.  Is that the relevance of this?

MR FINLAYSON:   That’s what was contended for by my       

BENCH:   And I’m just saying       

MR FINLAYSON:   Yes, that’s the relevance.

 
BENCH:   I just want to understand that’s what you say the relevance is.  You say that I cannot take – that I ought to disregard those particular authorities because there’s no international – there’s no agreement with Samoa about such extradition proceedings.  Or no obligations or anything of that nature.

MR FINLAYSON:   That’s right.  So when – when it comes to looking at, for example – and Cabal is a very obvious case and Cabal is – and we’re not dealing with that directly here.

BENCH:   No, no.

MR FINLAYSON:   But the interpretative provisions in respect of Cabal are said to be construed the way they were because of international obligations.

BENCH:   Obligations, yes.

MR FINLAYSON:   And they don’t exist here.

BENCH:   Right.

MR FINLAYSON:   So if it came       

BENCH:   So this is if I accept – if I don’t accept Mr Mancini’s original submission, that is that I ought to just completely disregard them because they deal with bail issues and not with section 15(1), then I also take into consideration the submissions you’re making in support of what you and Mr Mancini say is the reason for disregarding the authorities to which I’ve been referred.

MR FINLAYSON:   Yes, I think – I think that’s correct.  Yes.

BENCH:   Okay.  Right.

MR FINLAYSON:   It’s going to a construction point.  I’m particularly going to the exercise of any discretion your Honour might have to decline – very important in respect of that – that if your Honour were to decline to remand Mr Pauga your Honour can be confident that your Honour is not putting Australia at any risk in relation to its international obligations.

BENCH:   Right.  So you say it’s – so it’s also relevant to my interpretation of section 45B(2).

MR FINLAYSON:   Correct.

BENCH:   I understand.

MR FINLAYSON:   Yes.

 
BENCH:   Thank you.

MR FINLAYSON:   I’m sorry, your Honour asked me a question about where there any other sources.

BENCH:   Yes.

MR FINLAYSON:   Yes.  On page 20 of the Brownlie       

BENCH:   Yes, I’m looking over the page.  We were dealing with B.

MR FINLAYSON:   Yes, C and D.

BENCH:   Yes.  Yes, C and D.  Thank you.  Yes.

MR FINLAYSON:   

General principles of law recognised by civilised nations.  

So, for example, cannibalism is not thought of well at international law.  And there’s some things that just go without saying.  Or piracy, for example.

BENCH:   Genocide.

MR FINLAYSON:   Genocide.  

BENCH:   Right.  That’s understandable.

MR FINLAYSON:   Yes.  And then sources of law in international judicial decision and even municipal decisions dealing with international issues can be a source of law.  So when you’re litigating the international law you’ve got a lot of research and evidence collection to be doing in order to make submissions about the law.

BENCH:   Yes.

MR FINLAYSON:   Now, I mentioned that we asked very early – we asked Samoa through their solicitors about this and it’s in the affidavit material in the bundle.  And we’re looking at my email of the 10th of September 2020, where I have asked the instructors to Samoa to say, “Have you got anything that elevates Australia’s position to a position of obligation in international law?  An exchange of diplomatic notes, exchange of letters, anything”.  Now, there has been no further response to that email.  And       

BENCH:   So, I mean, you don’t have to answer this, but just so I understand.  So what was the purpose of you requesting that, Mr Finlayson?

MR FINLAYSON:   To look       
 
BENCH:   On the 10th of September.

MR FINLAYSON:         at – as we are looking at the concept of Mr Pauga’s detention       

BENCH:   Sure.

MR FINLAYSON:         and the juris prudence that underlies his detention.

BENCH:    Right.

MR FINLAYSON:   We’re very conscious of Cabal.

BENCH:   So it was looking into this application here.  Like, it’s not on any other purpose.  It’s to look into the basis for you making the particular applications that are before me.

MR FINLAYSON:   Not just today, your Honour.

BENCH:   Not just today.  No, no       

MR FINLAYSON:   But there are other stages of the extradition process.

BENCH:   Yes.  Yes.

MR FINLAYSON:   For example, it’s a legitimate objection to extradition that this is a political matter being undertaken for political reasons.

BENCH:   Yes.  I understand.

MR FINLAYSON:   And not under general standard obligations.

BENCH:   Yes.  Yes.

MR FINLAYSON:   And here somebody is wanting Mr Pauga to go to Samoa       

BENCH:   Yes.

MR FINLAYSON:         and that somebody is the same person that made the request, the same person that he is said to have plotted against, who happens to be the Foreign Minister.

MR McKECHNIE:   I object.

BENCH:   All right.  In any event, I don’t know that we need to go there.  

MR McKECHNIE:   Yes.
 
BENCH:   Thank you.  And there’s, again, you know       

MR FINLAYSON:   Let’s       

BENCH:   No, no, please.  Please.  Your end of the bar table, Mr Finlayson, repetitively makes submissions about things of which there is no evidence.  Indeed, your submissions now about – there’s no evidence about these international agreements and yet here you are trying to tell me that it’s the Prime Minister of Samoa that has brought – you know, is the person personally responsible for making these applications initially, so can we confine submissions to what is evidence - what is in evidence.

MR FINLAYSON:   Well       

BENCH:    And it’s irrelevant, in any event.

MR FINLAYSON:         can I take your Honour then       

BENCH:   Can you, please, take me to why – I mean, I understand why you say it’s going to be – you need to take me to this point about there being no evidence about international agreements.  We’ve looked at the two points that are relevant.  Sorry, the two bases on which it’s relevant.  So can we just focus on that, please.  

MR FINLAYSON:   Your Honour, your Honour suggested to me that I’m making submissions without evidence.  That’s not the case.  Your Honour asked me about the further sources of law and then your Honour asked me why it was that we undertook this investigation.

BENCH:   I understand that.

MR FINLAYSON:   I was answering your Honour’s question and I was – and I can refer your Honour to the evidence not put up by us, but put up by Samoa where Ms Hemmingway has filed an affidavit       

BENCH:   Yes.

MR FINLAYSON:         without lines and it attaches the extradition request       

BENCH:   Yes.

MR FINLAYSON:         and talks about who has made it and       

BENCH:   Okay.

MR FINLAYSON:         the like.  So       

BENCH:   And is it in the name of the complainant?
 
MR FINLAYSON:   So I’m not making a submission that’s not       

BENCH:   Okay.  All right.

MR FINLAYSON:         in respect of material that is before your Honour.

BENCH:   Is it in the name of the complainant for the charge?  The request.

MR FINLAYSON:   The request is from the Office of the Attorney-General.

BENCH:   Attorney-General in Samoa, yes.

MR FINLAYSON:   Yes.

BENCH:   Thank you.  And that’s the point I was making:  is that that’s as I understand it.  But, in any event, as I said, I really       

MR FINLAYSON:   Yes, the same person.

BENCH:         want to start focusing on what is relevant.  So the question I asked was, was there another purpose for which you were asking for this material from the respondent.  And you said “yes”.

MR FINLAYSON:   And, indeed, there is.  That’s it.

BENCH:   Because it may well be about the validity of the warrant and the like.  But I’m not dealing with that.  But I thank you for letting me know that there was two purposes for it and one of which was for your consideration of this particular application.  So can we go back to this particular application that I am considering?

MR FINLAYSON:   Yes.  And, with respect, the assertion was made from the other end of the bar table that there was an international obligation and there is no evidence before your Honour of that at all.  The other       

BENCH:   Yes.

MR FINLAYSON:   The other source of international law is at item D of Brownlie there.

BENCH:   Yes.

MR FINLAYSON:   And – so that’s that, your Honour.  The       

BENCH:   All right.  So you say none of those things       

MR FINLAYSON:   None of those things there are in support of that submission.

 
BENCH:   I understand.  I understand.

MR FINLAYSON:   I have Polyukhovich v Commonwealth, a war crimes case, which is a High Court and it briefly outlines and explains what I mentioned to your Honour about Opinio Juris.  It’s a long case, but I’ve just extracted a few pages about the necessity for matters      

BENCH:   No, no, that’s appropriate to do that.

MR MANCINI:   It is 200 pages.

MR FINLAYSON:   Yes.

MR MANCINI:   Two hundred pages, your Honour.

MR FINLAYSON:   And the       

BENCH:   Sorry, you say – so what’s the case about?

MR FINLAYSON:   Well, the case was about whether or not we were able to try Ms Polyukhovich in respect to war crimes.  But the observations here are a description of what it is required at international law       

BENCH:   Sorry, thank you.

MR FINLAYSON:         to elevate practice to an obligation binding at international law.  

BENCH:   Okay.  So what elevates practice to obligation?

MR FINLAYSON:   Yes.

BENCH:   Yes.

MR FINLAYSON:   So comity among nations is not enough.  It’s, you know – that’s – there has to be something that’s done, because it’s required to be, and understood to be required to be done.  Not just because we want to get on well with our neighbours.  There are processes where we engage in arrangements which are expressly done – and this is the term “arrangements” that gets used sometimes, which are not obligations.  And there are many of these kind of things, but Australia, effectively, expressly reserves its rights.  They are like a non-binding contract, as it were, and there are specific methodologies by which these are done.

BENCH:   Yes.

 
MR FINLAYSON:   And, again, there’s nothing of this nature that has been put forward by Samoa to indicate that there is any kind of relationship or arrangement in respect of Australia making its regulations under the Extradition Act creating       

BENCH:   Yes.

MR FINLAYSON:         or being even done in response to some kind of arrangement with Samoa.  

BENCH:   Yes.

MR FINLAYSON:   The regulations in Australia are done to 2010 and not corresponding particularly with anything that has happened in Samoa temporally.  They are responding to a range of changes in the way Australia dealt with its extradition to all countries.  Not in response to some particular arrangement that has been made with Samoa.  So I hand that up, your Honour.

BENCH:   So what are you handing up now?  What are you handing up now, sorry?

MR FINLAYSON:   This is a Department of Foreign Affairs and Trade Guidance Note on Australia’s Practice for Concluding Less Than Treaty Status Instruments.

MR McKECHNIE:   Your Honour, I just can’t see how it’s relevant, but       

BENCH:   No, me either.  But I haven’t read it.  

MR FINLAYSON:   Well, it’s to counter the contention that my friend has made that Australia has some obligation to Samoa.  Very simple.  And one last thing, your Honour, and then I will sit down.

BENCH:   Yes.

MR FINLAYSON:   The contention was made from the other end of the bar table that “Act” in the Magistrates Act could mean a Commonwealth Act.  It could mean the Extradition Act.  Now, your Honour, section 6 of the Queensland Acts Interpretation Act, which is the law in Queensland about how Queensland Acts are interpreted, limits the application of that to State law and imperial law that was inherited.  It’s an absolute nonsense to suggest that a Queensland Act of Parliament could amend and affect the manner of construction of a Commonwealth Act.  It’s just not possible.  Thank you.

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