Case: McCrea v Minister for Customs and Justice (2004) 212 ALR 297 
Outcome: cited
The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd [1988] HCA 25 ; (1988) 165 CLR 30 at 40-41: "The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords ( Buttes Gas v Hammer [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co . [(1918) 246 U.S. 297, at 304] the Supreme Court said: "To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'." As Lord Wilberforce observed in Buttes Gas v Hammer [[1982] A.C., at 931-932], in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process". See also Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J). 60 French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]: "[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts. " (Emphasis added.) See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] [77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.