AUSTRALIA should be able to extradite a 90-year-old Perth man to Hungary over Holocaust-related war crimes because his actions are likely to have been illegal at the time, the High Court has been told.

The full bench of the High Court sat in Canberra on Wednesday to hear an appeal by the commonwealth on behalf of the federal minister for home affairs regarding the case of Charles Zentai.

Mr Zentai is accused of murdering an 18-year-old Jewish man in November 1944 while serving in the Hungarian Army.

He denies the charge and allegations that he beat the man to death before throwing his body into the Danube River.

The federal government had approved Mr Zentai's extradition to Hungary in November 2009, but the decision was overturned on appeal in the Federal Court last August.

The court ruled Mr Zentai could not be extradited because the specific offence of "war crimes" did not exist in Hungarian law in 1944.

Hungary enacted laws in 1945 which retrospectively introduced the war crimes offence.

On Wednesday the minister's counsel, Stephen Lloyd SC, told the High Court that while the specific offence did not exist in 1944, the alleged acts could be charged as murder, which was an offence.

"If somebody asks for extradition (when an offence is retrospective), then what we're required to do before we can extradite is be satisfied that at the time there was an offence," Mr Lloyd told the court.

He said Brendan O'Connor, who was home affairs minister when the extradition order was issued, had concluded along with his department that there was such an offence.

"We asked them and they said, yes, the offence was murder. Hungary have noted that Zentai's conduct would have constituted murder," Mr Lloyd told the court.

He argued that was enough to satisfy the treaty's requirements.

Mr Lloyd said that even if a person had been convicted of war crimes in another country, Australia would not extradite them if it was not satisfied there had been an offence at the time of the action.

In response, Geoffrey Kennett SC told the court that if the acts Mr Zentai allegedly committed could be charged as murder under 1944 law then that was the offence that should have been listed on the extradition treaty, possibly
as well as war crimes.

He said the wording of the treaty asked about the state of the law at the time an offence was alleged to have occurred, not retrospective laws.

"It guards against a person being ... sent overseas to be charged with an offence which wasn't an offence at the time it was committed," Mr Kennett told the court.

Mr Zentai, who is on bail pending the High Court decision, is also seeking to have the court rule on whether the minister should have issued a statement of reasons that explained his decision to agree to the extradition order.

But Mr Lloyd said if the court did rule on this, it could only order the reasons to be issued (or not) - and not rule on the validity of the minister's decision.

He told the court he believed Mr Zentai was not after the reasons for the decision but rather wanted the decision ruled invalid.

heraldsun.com.au