Courts can make mistakes. The High Court at Auckland has surely made an egregious one in a case we have reported today.
Maythem Kamil Radhi is wanted in Australia to face a charge of people smuggling. It is alleged he put more than 300 people on boat in Indonesia that set out for Australia. The overcrowded vessel remained afloat for just one day. It sank somewhere off the Indonesian coast, drowning 353 asylum seekers, 146 children, 142 women and 65 men.
Radhi now lives in New Zealand after being admitted as a refugee himself. A warrant for his arrest was issued by a Brisbane magistrate two years ago and a request for his extradition was granted by Manukau District Court judge a year ago. But late last year he appealed to the High Court and succeeded on grounds that could charitably be called technicalities.
One of them involved a comma in a statute. New Zealand's Immigration Act 1987 made illegal trafficking of people into New Zealand an offence "liable to imprisonment for a term not exceeding three months, or to a fine not exceeding $5000 for each person ... "
Radhi held that comma to be important because extradition required the offence to carry a maximum prison term in New Zealand of not less than 12 months. The District Court judge believed the three-month term could apply for each person involved; the High Court decided the comma meant that only the fine could be multiplied by the number of people involved.
The other technicality is that at the time of the tragedy, October 2001, people smuggling was not an offence in New Zealand unless the people arrived. It was not until the following year that the law was amended to make it an offence to assist any attempt at illegal entry.
This case is better known in Australia than here. The sinking is one of the worst incidents in the known record of bids by boat people to land in Australia and was the subject of questions in the federal Parliament the following year. It has even been suggested that Australian agents trying to stop boats leaving Indonesia could be implicated.
People smuggling is a dangerous, exploitative practice that needs to be discouraged by all lawful means. The fact that this country is not exposed to it as Australia is is no reason for our judges to take a pedantic approach to extradition.
Our law has caught up and now carries a seven-year prison term, a fine of up to $100,000, or both. If the events for which Radhi is charged had occurred a year or two later, the High Court decision would have been different.
It begs the question, though, what happened to judicial discretion? Parliament cannot write laws that leave no possibility of perverse consequences. Justice relies on judges to use their common sense in applying legislation.
Extradition is not to be granted lightly. There is a good reason the law requires that the alleged offence must also be an offence of comparable seriousness in New Zealand. We cannot expose New Zealanders to oppressive jurisdictions.
Our courts need to be doubly careful where the extradition request involves a refugee. But Australia is not an oppressive jurisdiction.
New Zealand Police have sought leave to take this case to the Court of Appeal. At that level of justice surely there can be sensible discretion. Whatever happens, this case will be watched in Australia where our law must seem an ass.