Minister for Home Affairs of the Commonwealth v Zentai.

• Author: O'Brien, Melanie
• Position: Australia

I Introduction

Australia has a lacklustre track record in the prosecution of war criminals and genocidaires, despite the existence of legislation enacted in 1945 (1) and more comprehensive laws amending the Criminal Code Act 1995 (Cth) under the International Criminal Court (Consequential Amendments) Act 2002 (Cth). This has been a criticism levelled at the Australian governmental bodies responsible for investigation and prosecution over the past decade. (2) In the 2012 Annual Report of Worldwide Investigation and Prosecution of Nazi War Criminals by the Simon Wiesenthal Center ('SWC'), Australia received a 'failing grade'. (3) This grade was because Australia had the ability to take legal action against Holocaust perpetrators, but had failed to achieve significant positive results during the period under review. In April 2013, the SWC again allocated Australia a failing grade ('F-2'), with the decision discussed in this case note described as the 'most disappointing result in a specific case during the period under review'. (4)

II Factual Background

The SWC launched its 'Operation Last Chance' ('OLC') in Hungary in 2004. (5) The OLC team subsequently received information and documentation on behalf of Adam Balazs about a case from Budapest that occurred in 1944. (6) In 1944, the Jewish Balazs family was living in hiding in Budapest. Adam's brother, Peter, was on a tram without his Jewish star. Unfortunately, Peter was recognised by Karoly Zentai, a member of the Horse-Drawn Train Division 1 of Corps 1 of the Hungarian Royal Army, who knew the Balazs family. Zentai forced Peter back to a barracks, where he and two accomplices beat Peter to death.

The Balazs family had no idea what happened to Peter until the two accomplices were convicted in 1946 and 1948, one receiving life imprisonment and the other the death penalty. Zentai, however, escaped prosecution. The SWC proceeded to investigate and discovered that Zentai was alive and well, living in Perth, Australia, under the name Charles Zentai. Zentai's presence was exposed on national television, and Zentai expressed his willingness to go to Hungary and prove his innocence. (7) Zentai's extradition to Hungary was requested in April 2005, and since then the extradition has proceeded through various courts in the Australian legal system. The case culminated in late 2012 with a High Court appeal. (8)

III Procedural History

Following the issue of the request for extradition in 2005, Zentai was arrested on a provisional warrant and granted provisional bail. (9) The first proceeding brought by Zentai was a challenge to the validity of the conferral upon state magistrates of the power to determine eligibility for surrender under the Extradition Act 1988 (Cth) s 19. (10) This challenge was unsuccessful. (11) In August 2008, a magistrate determined that Zentai was eligible for extradition to Hungary. A warrant was issued, committing Zentai to prison (pursuant to the Extradition Act 1988 (Cth) s 19(9)). (12) Zentai applied for review of this decision, and was released on bail pending that review. (13) The Federal Court of Australia ('FCA') affirmed the magistrate's decision, (14) and the Full Court of the FCA dismissed an appeal against the FCA's decision. (15) In November 2009, the Minister for Home Affairs determined that Zentai was to be surrendered to Hungary for the extradition offence of war crime (pursuant to the Extradition Act 1988 (Cth) s 22(2)). (16)

Zentai commenced further proceedings in the FCA. In July 2010, McKerracher J held that it had not been open to the Minister to surrender Zentai because the offence of 'war crime' was not an offence under Hungarian law at the time of the death of Peter Balazs. (17) In December 2010, McKerracher J quashed the determination for a warrant, declaring the offence not to be an 'extraditable offence'. (18) The Minister appealed, but the appeal was substantially dismissed in August 2011. (19) The Full Court of the FCA determined that McKerracher J was correct in his conclusion that the offence for which extradition was sought should have been an offence at the time of the alleged acts in Hungary. (20) In December 2011, Zentai was granted bail and special leave was granted for the Minister to appeal to the High Court of Australia. The High Court handed down its decision in August 2012, dismissing the Minister's appeal with costs.

IV Appeal in the High Court of Australia

A The Majority Decision

Gummow, Crennan, Kiefel and Bell JJ's joint decision ('the majority decision') examined the interpretive approach, textual considerations and the treatment of speciality under the Treaty on Extradition between Australia and the Republic of Hungary ('Treaty') as put forth by the Minister. The Minister submitted that a broad and generous interpretation of the Treaty provisions should be made. This was rejected by the majority, who applied statutory interpretation strictly and found it to be 'an error to characterise the purpose of the Treaty as "ensur[ing] that people are called to account for their wrongdoing'". (21) They determined that the purpose of the Treaty was only to 'give effect to the reciprocal obligations to extradite persons for extraditable offences'. (22) Their Honours held that consideration of the object and purpose of the Treaty does not aid in determining the meaning of the limitation of the Treaty art 2.5(a), (23) which...