FEDERAL COURT OF AUSTRALIA

Brock v Minister for Home Affairs [2011] FCAFC 167

THE COURT ORDERS THAT:

1.    Appeal dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Downes J

summary

1    When an extradition request is made by an extradition country the Minister for Justice and Customs “may… by notice in writing… state that the request has been received” (s 16(1) of the Extradition Act 1988 (Cth). The Minister shall not, however, give the notice unless “of… opinion… that, if the conduct of the person constituting the extradition offence… had taken place in Australia… the conduct would have constituted an extradition offence in relation to Australia”(s 16(2)).

2    Where, amongst other things, a notice has been given under s 16 and an application made to a magistrate “the magistrate shall conduct proceedings to determine whether the person is eligible for surrender”(s 19(1)). “[T]he person is only eligible for surrender… if… the magistrate is satisfied that… the conduct… would have constituted an extradition offence in relation to that part of Australia [where the proceedings were conducted]” (s 19(2)(c)).

3    George Brock was arrested, on the application of the United States of America, his country of citizenship, on 17 March 2005. On 12 May 2005 the Minister gave a notice under s 16. In due course a magistrate made a determination under s 19 that Mr Brock was eligible for surrender. On 16 September 2009 the Minister made a determination that Mr Brock should be surrendered to the United States (s 22) and issued a surrender warrant (s 23).

4    The question in this case is whether in the making of the surrender decisions the Minister was misdirected or there was any denial of procedural fairness. The subject matter of the claims is an assertion that the s 16 notice was defective because the information before the Minister of “the conduct of the person constituting the extradition offence” (s 16) was not adequate. It is argued that the Minister acted on incorrect or incomplete information relating to the validity of the s 16 notice and that Mr Brock did not have an adequate opportunity to put submissions on this topic.

5    In my opinion Mr Brock’s claim fails and the decision of Justice Foster, from which this appeal is taken, is correct. This is broadly because, first, any defect in the s 16 notice ceased to be relevant after it was replaced by the s 19 determination, which undoubtedly addressed the relevant conduct in detail, because, secondly, the information put before the Minister did not misdirect him and because, thirdly, there was no denial of procedural fairness.

history

6    This case has had a long history as a result of Mr Brock’s persistence in asserting his rights.

7    Mr Brock’s first application was for judicial review of the Minister’s decision to issue the s 16 notice. The application was dismissed by consent after the magistrate had made the s 19 determination.

8    The second application was for judicial review of the s 19 determination. The application was dismissed as was an appeal to the Full Federal Court (Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121)). The High Court of Australia refused special leave to appeal.

9    The third application was for judicial review of a determination of the Minister that Mr Brock should be surrendered. The Minister conceded that Mr Brock had been denied procedural fairness and the surrender determinations were quashed.

10    The fourth application, made at the time of the third application, sought judicial review of the s 16 notice. The proceedings were dismissed as an abuse of process (Brock v Minister for Justice and Customs [2007] FCA 2091; (2007) 243 ALR 315). The Full Federal Court dismissed Mr Brock’s appeal (Brock v Minister for Home Affairs [2008] FCAFC 165; (2008) 170 FCR 434). The High Court refused special leave.

11    On 16 September 2009 the Minister made the present surrender determinations. Mr Brock applied for judicial review. Justice Foster dismissed the application. Mr Brock now appeals.

the appeal

12    A number of preliminary, but fatal, arguments, if successful, have been raised by the Minister. They fall into two categories. First, it is said that the appeal involves an abuse of process or is futile because success hinges on an attack on the s 16 notice which the court has already definitively refused to entertain. Secondly, it is said that the appeal involves grounds not previously relied upon which Mr Brock should not now be permitted to raise. Although alleging that the Minister, when considering surrender, should take into account an alleged defect in a s 16 notice may be quite different to asserting that the notice is defective, there may be some substance in the Minister’s procedural arguments. However, I prefer first to address the substantive arguments in principle, at least, in part, so that Mr Brock will know the court’s conclusions on these matters, before addressing the procedural matters. Were Mr Brock to fail on the procedural matters alone he might be left with a sense that his claim might have been right, but was defeated by procedural considerations.

surrender DETERMINATIONS

13    The Minister’s surrender determinations under challenge in these proceedings have not been the subject of any previous challenge. Accordingly, there cannot be an objection to those decisions being examined for error. There is no reason why a prior decision to issue a s 16 notice might not become a factor for consideration in the examination. The Minister might decide to take into account the invalidity of a s 16 notice, when this was the fact, in exercising the discretion conferred by s 22. The question is not whether the validity of a s 16 notice might be relevant to a surrender determination, but whether the Minister chose to act on information which turned out to be wrong in making his decision. If he did that might amount to jurisdictional error infecting the decision. The claim, in the present case, that the Minister was misdirected ultimately depends upon the status of the s 16 notice because it is what the Minister was told about that notice that forms the basis of Mr Brock’s claim.

14    The submission to the Minister which prompted the Minister in making his surrender determination contained the following:

(c)    the section 16 notice issued by the then Minister for Justice and Customs receiving the extradition request was invalid

48.    In his letter dated 31 July 2009, Brock states that the required warrant and the extradition request were not put before the then Minister at the section 16 stage in the extradition proceedings. Brock contends that the case of Williams v Minister for Justice and Customs (2007) 157 FCR 286 at [31] and [47] held that the Minister was bound by statute to consider the matters called for under section 16 himself, and specially to know what the alleged conduct was. Brock therefore contends that the section 16 notice was invalid and that his extradition should be refused.

Departmental comment

49    This assertion was the basis for Brock’s recent application for special leave to the High Court. On 31 July 2009 the High Court denied special leave to Brock thereby affirming the decision of Justice Flick in the Federal Court to dismiss Brock’s application in respect of the section 16 notice on 24 December 2007. Flick J decided that to now permit Mr Brock to commence separate proceedings in respect to the validity of the section 16 notice, when he had previously abandoned proceedings in respect to section 16 at an earlier time, “would certainly not promote finality in litigation and would only encourage a fragmentation of the avenues by which litigants can seek review of each of the four stages of extradition”. The Full Federal Court refused Brock’s application for leave to appeal and upheld Justice Flick’s decision on 17 September 2008. All avenues of appeal have now been exhausted by Brock. You may therefore by satisfied that the section 16 notice was indeed valid and that this argument against its validity was unsuccessfully argued by Brock and dismissed by the Federal Court. In any event, if a challenge had been permitted by the Federal Court, the Department considers that it is arguable that the material placed before the then Minister in the submission for his consideration of whether to issue the section 16 notice would have satisfied the test in Williams.

15    Except from inference, it is not possible to know what was the Minister’s actual response to the s 16 notice issue. The Minister had been told that his discretion was at large and that he “may take any other relevant matters into account…”. What matters the Minister did take into account remain unknown because no formal reasons are available.

16    An essential step in Mr Brock’s argument is that the Minister must have taken the above advice into account. That conclusion is not self-evident to me, but I will proceed on the basis that it is made out. To see whether the Minister was misled it is necessary to look at Williams v Minister for Justice and Customs [2007] FCAFC 33; (2007) 157 FCR 286 and to what happened in the fourth application.

Williams v Minister for Justice

17    It is obvious that the Minister must know what “conduct of the person constituting the extradition offence” is relied upon at the time of considering whether to issue a s 16 notice, because he can only give a notice if he has formed the requisite opinion relating to that conduct. The decision in Williams depends upon this consideration. Although, in that case, the Minister was given lengthy submissions about what offences in Australia would cover “the conduct comprising the United States criminal offences” he was not told, at all, what that conduct was. The application was made before the proceedings before the magistrate were determined. The Court’s finding was fatal to those proceedings.

the fourth application

18    There is no doubt that the claim made by Mr Brock in his fourth application relating to the s 16 notice is different from the claim made in the first application. The ground in the fourth application (Brock v Minister for Home Affairs (2008) FCR 434; [2008] FCAFC 165) related to the material before the Minister, while the claim in the first application depended on a claim that in the United States Mr Brock would be subject to two convictions instead, in Australia, of only one. The decision did not, accordingly, depend upon any identity between the claims in the first and fourth applications or upon the validity of the s 16 notice at all. Indeed, the express ground of the decision was that the Full Court in the third application had upheld the “validity of the magistrate’s determination that Mr Brock was eligible for surrender…” (p446; [65]). Seeking to determine that the s 16 notice was invalid in the face of an unchallengeable determination under s 19 was both an abuse of process and futile. In addition, the work of the s 16 notice was done and it was spent once a s 19 determination had been made (p448; [77]).

the minister was not MISDIRECTED

19    Read in isolation the departmental comment that “the section 16 notice was indeed valid” could not be based on any finding of the Court. However, the comment should not be read in isolation. The first half of the comment, describing the decision of Flick J and the Full Court is accurate. That shows that the decision of Flick J was based on “finality in litigation”. That, together with the assertion that “all avenues of appeal have been exhausted”, forms the basis for what follows. The analysis identifies a basis for the following conclusions sourced from principles of finality of litigation rather than any finding of validity of the s 16 notice. What follows is introduced by “therefore” showing that it is a conclusion that can be drawn from what goes before. The statement that the Minister can “be satisfied that the section 16 notice was indeed valid” read in this light is not incorrect, nor misleading and did not misdirect. In the sense that the result of the application was that the s 16 notice could not be challenged it is correct to say that it was valid. It was certainly correct to say “this argument against its validity was unsuccessfully argued”. Finally, and conclusively, the last sentence is introduced by the phrase “if a challenge had been permitted” and followed by the suggestion that it was arguable “the section 16 notice would have satisfied the test in Williams”. This is further confirmation which would show the ordinary reader that the author was suggesting that the invalidity argument had not been put and the comment was referring, rather, to a practical validity.

20    The Minister was accordingly not misdirected by the departmental minute.

Mr Brock was not denied procedural fairness

21    Mr Brock asserts that he should have been given an opportunity to comment on para 49 of the departmental minute. However, after the decision of Flick J, Mr Brock furnished submissions relating to his “extradition matter… pending Federal Full Court appeal in relation to the Minister of Justice s 16 notice”. The attached submission included reference to the argument about the s 16 notice and referred to Williams. On 31 July 2009, the same day the High Court refused special leave, Mr Brock forwarded further submissions. Again, these submissions addressed the s 16 notice argument and referred to Williams. Both sets of submission plainly asserted that the s 16 notice was invalid being “affected by jurisdictional error and is to be considered under Australian law to be ‘no decision at all’”.

22    What amounts to want of procedural fairness depends on the circumstances of each case. In its broadest sense procedural fairness, where it applies, permits a subject “to know the case sought to be made against him and to be given an opportunity of replying to it” (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 per Mason J). It does not require a decision-maker to put every nuance of what the decision-maker is considering for comment just as judges are not required to produce draft reasons for judgment for comment. If a decision-maker proposes to act on new considerations or new matters, not known to the subject, giving the subject an opportunity to comment will generally be appropriate. However, the matters said to attract procedural fairness in this case were at the heart of Mr Brock’s arguments. They were comprehensively dealt with in Mr Brock’s well-written submissions. Although Mr Brock did not, of course, refer to the departmental comment, his submissions put his arguments against their conclusions.

23    It is not necessary for me to consider whether, or to what extent, duties of procedural fairness applied in connection with the Minister’s consideration of whether Mr Brock should be surrendered, because, if an obligation existed, it was satisfied.

no declaration should be made

24    In answer to the claim that the s 16 notice became spent at the time of the making of the s 16 determination and that there would be no utility in declaring it to be invalid Mr Brock argues that a declaration might assist his position if he is extradited and that a declaration should be made for that reason alone.

25    The problem with this argument is that it defeats the very reason which is behind the notice becoming spent. That notice served the purpose, for a limited time, of constituting a lawful administrative determination which validated the taking of a further step, namely the making of a further administrative determination in a curial setting on the same topic, to replace the temporary determination. Once the earlier determination ceased to be operative, because a more thorough process had confirmed it, there was no purpose in revisiting it. Indeed, the possibility that the earlier determination may have been flawed, is one very good reason not to revisit it after a later determination has replaced it and, at the same time, cured any defect. The situation is analogous to the position in Calvin v Carr [1980] AC 574 in which the Privy Council found that the provision of natural justice on appeal within a domestic tribunal cured its denial at first instance.

26    Even if I considered that, at the time it was given, the notice was flawed it would not, therefore, be appropriate to make a declaration to that effect. I would decline to do so in the exercise of my discretion. To the extent to which Mr Brock may be assisted, if extradited, by the decisions in the proceedings he has brought in this court, the reasons for judgment of the various judges who have dealt with his matters will fully inform any authorities in the United States.

The section 16 notice was not flawed

27    The following material was before the Minister when the s 16 notice was issued:

(a)    Under the heading Background, in the first attachment to the covering memorandum, the following was said:

2.    Brock is wanted for prosecution in the USA state of Illinois for offences relating to drug distribution and importation between March 1980 and February 1987, contrary to Title 21 of the United States Code. Brock is charged with the following offences:

(a)    Engaging in a continuing criminal drug enterprise as a principal administrator, which distributed and possessed with intent to distribute, imported, and conspired to distribute approximately 30,000 kilograms of marijuana, and

(b)    Conspiracy to distribute more than 1,000 pounds (equivalent to approximately 453 kilogram) of marijuana.

28    No material of this kind was before the Minister whose determination was considered in Williams. The material disclosed the conduct, although not the evidence, constituting the extradition offence. In my opinion, the s 16 notice was, in any event, valid.

conclusion

29    The appeal must be dismissed with costs.

Associate:

Dated:    21 December 2011

REASONS FOR JUDGMENT

Yates j

30    I have had the advantage of reading the reasons of Downes J and of Katzmann J. I agree with the reasons of, and orders proposed by, Downes J. I also agree with the observations made by Katzmann J on the two additional matters raised by her Honour.

Associate:

Dated:    21 December 2011

REASONS FOR JUDGMENT

KATZMANN J

31    I have had the privilege of reading in draft the reasons of Downes J. I agree with his Honour, for the reasons that he gives, that the appeal must be dismissed. I only wish to add some brief remarks of my own concerning two matters.

32    First, central to Mr Brock’s case was an argument that a valid s 16 notice was an essential precondition to the exercise of the power to surrender under s 22 of the Extradition Act 1988 (Cth). This very argument was rejected by the Full Court in O’Connor v Zentai (2011) 195 FCR 515 at [44] per Besanko J, [125]-[128] per Jessup J, with whom North J agreed at [1].

33    The conditions for the exercise of the power to order surrender are set out in s 22 itself. They do not include satisfaction as to the validity of the s 16 notice. I agree with Downes J that the Minister was entitled to consider the validity of the notice. He was not, however, bound to do so.

34    Secondly, the Minister’s objection to the Court hearing argument on the question of breach of procedural fairness was well-founded. It rested on the principles set out in such cases as University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and Coulton v Holcombe (1986) 162 CLR 1. Mr Brock had raised the issue in affidavits sworn on 26 October 2009 and 9 November 2009 but it formed no part of the amended application upon which he ultimately relied. Indeed, in answer to direct questioning from the primary judge and although he was then represented by counsel, he twice confirmed that he was confining his case to that which was included in the latest amended application.

35    In oral argument in reply Mr Brock tried to put the blame on his counsel, indicating that he was given Hobson’s choice – either legal representation on the grounds she was prepared to argue or no legal representation at all. He insinuated that this was because he had “a pro bono barrister”, not “a proper barrister”. This submission must be emphatically rejected. The appellant was ably represented in the Court below by a barrister acting in accordance with the highest traditions of the Bar. The only feature that distinguishes a pro bono barrister from any other barrister is her or his willingness to act without fee. Barristers have a duty not to raise or maintain arguments that have no reasonable prospects of success. It is an aspect of their duty to the Court (see, for example, Richardson v The Queen (1974) 131 CLR 116 at 123). What was actually behind the decision to abandon this argument is not known, for it is not the subject of evidence. It is clear, however, that, for the reasons Downes J has given, the argument had no reasonable prospects of success.

Associate:

Dated:    21 December 2011