FEDERAL COURT OF AUSTRALIA
Lobban v Minister for Justice [2016] FCAFC 109
Table of Corrections | |
In paragraph 16, “[115] and [123]” should read “[115] to [123]”. |
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant is to pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SIOPIS AND BARKER JJ:
1 In this appeal, the appellant, Mr Christopher Lobban, complains, on grounds of review not argued before the primary judge, that the surrender determination of the Minister for Justice (the Minister) on 29 October 2014, made under s 22(2) of the Extradition Act 1988 (Cth), to surrender Mr Lobban to the United States of America, was attended by jurisdictional error. The proposed new grounds of review were set out in a supplementary notice of appeal filed by Mr Lobban in advance of the hearing of the appeal.
2 Mr Lobban is a dual Australian-Canadian citizen.
3 We have had the considerable advantage of reading the reasons for judgment of Charlesworth J. The comprehensive analysis by Charlesworth J has relieved us of the need to set out the factual background and the description of the issues upon which this appeal turns.
4 As to the preliminary question of whether leave should be given to Mr Lobban to rely upon the grounds of review set out in the supplementary notice of appeal, and to adduce the evidence of Mr Morton Stuart Macdonald in his affidavit of 10 February 2016, we agree, for the reasons given by Charlesworth J, that such leave should be given.
Grounds 1 and 2
5 The complaints made by Mr Lobban in grounds 1 and 2 essentially relate to the proper construction of Article V of the Treaty on Extradition between Australia and the United States of America as amended by the Protocol amending the treaty on extradition between Australia and the United States of America of May 14, 1974 (the Treaty) in the context of s 22(3)(e) and s 22(3)(f) of the Extradition Act.
6 Article V of the Treaty provides as follows:
(1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
(2) If the requested State refuses to extradite a national of that State on the basis of nationality it shall, if the requesting State so requests and the laws of the requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person may be undertaken in respect of all offences for which the extradition has been requested.
7 The brief by the Department for Justice dated 16 October 2014, given to the Minister in relation to making the surrender determination, stated, inter alia, as follows:
[30] Under section 22(3)(e) of the Act, you are required to consider mandatory and discretionary grounds for refusal of surrender under applicable regulations. The Act is applied to the United States by operation of the Extradition (United States of America) Regulations 2004 (the Regulations), which incorporate the Treaty (as amended). Articles V, VII and VIII of the Treaty sets out mandatory and discretionary grounds for refusal of surrender.
[31] Article V of the Treaty gives you the discretion to refuse the extradition of an eligible person on the grounds that the eligible person is an Australian citizen. Mr Lobban is an Australian citizen. However, as a matter of long standing policy, Australia does not refuse extradition on the basis of nationality alone and we consider there is no basis for departing from that policy position in this case. Mr Lobban has made representations to you to the effect that surrender to the United States would result in separation from family and friends in Australia, and these are considered at paragraphs 38-45 below.
8 Mr Lobban contended that the departmental brief, upon which the Minister relied to make the surrender determination on 29 October 2014, misstated the effect of Article V, and the consequence was that, in making the surrender determination, the Minister failed to adopt the correct approach to the fact that Mr Lobban was an Australian citizen.
9 Mr Lobban contended that the presence of the concluding words in Article V(1): “if, in its discretion, it considers that it is proper to do so”, meant that the fact that Mr Lobban was an Australian national mandated that the Minister refuse the United States’ extradition request unless the Minister came to a positive decision not to do so, on the grounds that it was “proper” to surrender Mr Lobban; and the Minister had failed to adopt this approach in making his surrender determination. In other words, said Mr Lobban, the Minister did not give Mr Lobban’s Australian nationality “stand alone importance” and then, from that position, proceed to reach a state of positive satisfaction that he considered it proper to surrender Mr Lobban, notwithstanding his Australian nationality.
10 We do not accept Mr Lobban’s contention. In our view, the concluding words of Article V(1), do not alter the characterisation of Mr Lobban’s Australian nationality to the elevated status contended for by Mr Lobban. In our view, Article V does no more than make the fact that the eligible person is an Australian national one of a number of relevant considerations to which the decision-maker is to have regard in exercising his or her discretion whether to make the surrender determination. Article V(1) does not, in our view, mandate the making of a decision to refuse to surrender the eligible person, unless the decision-maker has made a positive and discrete determination to the contrary, on the grounds that it was “proper” to surrender Mr Lobban.
11 It is apparent from para 31 of the departmental brief that the Minister took into account, and had regard to, the fact that Mr Lobban was an Australian citizen but, nevertheless, decided that that factor was not sufficient, when considered by reference to the other circumstances, to constitute the basis upon which to decline to make the surrender determination.
12 It was not necessary for the Minister to have referred to the fact of Mr Lobban’s Australian nationality and then to have stated expressly that, having regard to all of the circumstances mentioned, the Minister considered it proper to surrender Mr Lobban, notwithstanding his Australian citizenship. That this was the effect of the Minister’s determination is apparent from the terms of the departmental brief when read as a whole.
13 Accordingly, we agree with Charlesworth J that grounds 1 and 2 in the supplementary notice of appeal should be dismissed.
grounds 3, 4 and 5
14 Grounds 3, 4 and 5 are founded on Article XIII of the Treaty.
15 Article XIII of the Treaty relevantly states as follows:
(1) If the requested State requires additional information to enable it to decide on the request for extradition, that State may request that such information be furnished within such period as it specifies.
(2) If the person sought is under arrest and the additional information submitted as aforesaid is not sufficient or if such information is not received within the period specified by the requested State, he shall be discharged from custody.
(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the requesting State from submitting another request in respect of the same offence.
(4) …
16 The factual foundation for Mr Lobban’s contentions based on Article XIII is fully set out in [115] to [123] in the reasons for judgment of Charlesworth J.
17 In summary, by a letter dated 14 June 2012, a representative of the Attorney-General’s department advised a representative of the United States Department of Justice that Mr Lobban’s legal representative had, as part of the process associated with making the surrender determination under s 22 of the Extradition Act, made representations to the Minister on Mr Lobban’s behalf against his extradition to the United States. These representations referred to circumstances in the United States which Mr Lobban contended would adversely affect him should he be extradited to the United States. These related to concerns about a fair trial, the extent to which Mr Lobban’s trial would be affected by adverse media publicity, the lengthy mandatory sentencing regime that would apply if he were convicted, and the conditions in which Mr Lobban would be remanded should he be surrendered, and then imprisoned, should he be convicted. The letter went on to seek a response from the United States Department of Justice “as soon as possible”.
18 By 3 September 2012, the Attorney-General’s department’s representative had not received a response to the 14 June 2012 letter.
19 On 3 September 2012, the Attorney-General’s department’s representative wrote a second letter to the United States Department of Justice’s representative seeking responses to the matters referred to in the letter of 14 June 2012 as soon as possible and by no later than 28 September 2012. That letter also raised an additional issue.
20 The additional issue referred to submissions made by Mr Lobban in connection with a legal process in the State of Florida providing for “civil commitment” of sexually violent predators following the completion of any custodial sentences served by them. The letter went on to ask for a response to the additional issue also by 28 September 2012.
21 The United States Department of Justice’s representative responded to the matters raised in the 14 June 2012 letter by a letter dated 28 September 2012. However, that letter did not respond to the request for advice and assistance in respect of the additional issue which the Attorney-General’s department’s representative had raised in the 3 September letter. That response was only provided in a letter dated 16 November 2012.
22 It is not disputed that the request made by the Attorney-General’s department’s representative was made during stage four of the four stage process of extradition, namely, when the Minister was considering whether to exercise his discretion under s 22(2) of the Extradition Act to make a surrender determination.
23 Mr Lobban contended, in grounds 3, 4 and 5 of his appeal, that because the United States Department of Justice’s representative had failed to provide the additional information by the nominated date of 28 September 2012, and the operation of Article XIII(2), he was entitled to be released from custody by no later than 29 September 2012. In this regard, Mr Lobban made three alternative contentions.
24 First, that by reason of the operation of Article XIII, the extradition request was terminated either on 14 June 2012, or alternatively, by no later than 29 September 2012, and that the termination of the extradition request meant that the Minister had no jurisdiction to determine that Mr Lobban was to be surrendered under s 22(2) of the Extradition Act when the Minister made that determination.
25 Alternatively, said Mr Lobban, the Minister lacked jurisdiction to determine that Mr Lobban be surrendered because Mr Lobban ceased to be an “eligible person” when he became entitled to be discharged from custody within the meaning of Article XIII(2) of the Treaty.
26 Alternatively, that the surrender determination of 29 October 2014 was attended by jurisdictional error because the Minister did not first positively satisfy himself that the disqualifying circumstances arising under Article XIII, namely, that Mr Lobban was required to be discharged from custody, or that the extradition request had terminated, did not prevail.
27 Mr Lobban went on to contend that Article XIII of the Treaty had application in relation to any request made for information by Australia as a contracting party at any time up to the making of the surrender determination under s 22 of the Extradition Act. This is because, said Mr Lobban, there is no limitation specified in Article XIII as to the stage of the extradition process when the provisions of Article XIII were to have effect; and that full effect should be given to the ambit of the words of Article XIII.
28 In our view, the provisions in Article XIII of the Treaty have a more limited operation than contended for by Mr Lobban.
29 We accept the Minister’s submissions that the provisions in Article XIII had no application to requests for information made by, or on behalf of, the Minister during the fourth stage of the extradition process whereby the Minister was considering whether to make a surrender determination under s 22 of the Extradition Act.
30 In our view, Article XIII is to be read in the context of Article XI and Article XII of the Treaty. Article XI refers to the process by which the extradition process is commenced, namely, the issue of the original extradition request. Article XII deals with the even earlier stage in the process, namely, the making of an urgent application for provisional arrest, before the requesting State has made the formal request for extradition referred to in Article XI.
31 Article XI prescribes the specific information which must be provided in support of the request for extradition submitted by the requesting State through the diplomatic channel. Article XI provides as follows:
(1) All requests for extradition shall be made through the diplomatic channel.
(2) The request for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a description of the conduct constituting the offence;
(c) a statement of the law describing the essential elements of the offence for which extradition is requested; and
(d) a statement of the law describing the punishment for the offence and the law relating to the limitation of legal proceedings.
(3) A request for the extradition of a person who is sought for prosecution or who has been found guilty in his absence shall also be supported by:
(a) a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the offence;
(b) a copy of the charging document, if any; and
(c) a description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it.
(4) A request for extradition of a person who has been found guilty of the offence for which extradition is sought, other than a person who has been found guilty in his absence, shall also be supported by:
(a) a copy of the judgment of conviction, if available, or a statement by a judicial authority that the person has been found guilty;
(b) information establishing that the person sought is the person to whom the finding of guilt refers;
(c) a copy of the sentence imposed, if the person has been sentenced, and a statement establishing to what extent the sentence has been carried out; and
(d) if the person has been found guilty but no sentence has been imposed, a statement affirming that it is intended to impose a sentence.
(5) …
32 In our view, considering Article XIII in context, the reference to the “additional” information, in Article XIII(1), is to be construed as, and confined to, information which is “additional” to the prescribed information referred to earlier in the Treaty in Article XI(2), (3) and (4), and which the requested State requires to enable it to decide “on the extradition request” at the commencement of the extradition process, and not in the final stage of that process, when the Attorney-General under s 22 of the Extradition Act makes a discretionary determination.
33 In our view, the terms of the Extradition Act, for the reasons which follow, support the contention that the relevant decision for the purpose of Article XIII(1) of the Treaty, is the decision by the Attorney-General either to issue a notice under s 16(1) of the Extradition Act, or not to issue that notice.
34 Article XIII(2) emphasises the need for expedition in responding to a request by the requested State for the additional information by providing that the consequence of not meeting the nominated date for giving the requested additional information is that, if the person whose extradition is being requested is in custody, that person is to be discharged from custody, and the extradition process must be restarted.
35 The need for expedition in relation to the Attorney-General making a decision on the extradition request at that stage of the four stage process, is reflected in s 16 and s 17 of the Extradition Act. Thus, s 17(2) of the Extradition Act, contemplates that, in the event that a s 16(1) notice is not issued by the Minister in relation to the extradition of a person who has been arrested under a provisional arrest warrant, within a period of 45 days of the arrest, that person is to be discharged from custody unless the magistrate is satisfied that such a notice is likely to be given within a period that is reasonable in all the circumstances.
36 By contrast, there is no like provision in the Extradition Act for the release of an eligible person after the expiry of a prescribed time period for the making of the surrender determination in the fourth stage of the extradition process in s 22 of the Extradition Act.
37 Section 22(2) of the Extradition Act, does call upon the Attorney-General to make a determination “as soon as is reasonably practicable, having regard to the circumstances” as to whether an eligible person is to be surrendered, but s 22 does not provide that the eligible person is to be released from custody in the event that the surrender determination is delayed, even beyond what might be a period that is reasonably practicable in the circumstances.
38 Further, it has been held in Snedden v Minister for Justice (2014) 230 FCR 82 at [103]-[107] and [113]-114], that the requirement on the Attorney-General to make a determination “as soon as is reasonably practicable, having regard to the circumstances” does not circumscribe the Attorney-General of jurisdiction to make the determination. Thus, the failure of the Attorney-General to make a determination within that time period, does not deprive him or her of jurisdiction to make that determination after the expiry of that time period.
39 As mentioned, the absence of a provision in s 22 for the release of an eligible person on the basis of the Attorney-General’s failure to comply with the time limit in s 22(2), stands in stark contrast to the requirement for the release of the person in custody under s 17(2) in the absence of the Attorney-General issuing a s 16(1) notice within 45 days of the provisional arrest of that person; and, in our view, militates against the construction of Article XIII contended for by Mr Lobban.
40 Accordingly, in our view, the provisions of Article XIII of the Treaty have no application to the process engaged in by the Attorney-General in affording natural justice to the requesting State in relation to making the surrender determination under s 22 of the Extradition Act.
41 It follows that each of grounds 3, 4 and 5 of Mr Lobban’s amended grounds of appeal, is dismissed.
42 The appeal is dismissed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis and Barker. |
Associate:
REASONS FOR JUDGMENT
CHARLESWORTH J:
43 The appellant, Mr Lobban, is a dual Australian-Canadian citizen.
44 On 29 October 2014 the respondent (Minister) made a determination under s 22 of the Extradition Act 1988 (Cth) (Act) to surrender Mr Lobban to the United States of America (USA). The USA alleges Mr Lobban has committed sexual offences against the laws of Florida, including the promotion of a sexual performance by a child, solicitation to commit aggravated child abuse and two counts of solicitation to commit lewd and lascivious battery. Mr Lobban is alleged to have committed these offences over the internet from his home in Perth between January and May 2011. The offences are extraditable offences within the meaning of s 5 of the Act.
45 On 16 July 2011 Mr Lobban was arrested on a warrant issued pursuant to s 12 of the Act. He has remained in custody since that time. On 7 November 2014, he made an application to this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of the Minister’s surrender determination. He sought an order quashing the determination, a writ of mandamus requiring his discharge from custody and other ancillary relief. The application for judicial review was dismissed by McKerracher J on 3 December 2015: Lobban v Minister for Justice [2015] FCA 1361. Mr Lobban now appeals against that judgment.
46 On this appeal Mr Lobban abandons the grounds of review relied on in the proceedings at first instance. His Supplementary Notice of Appeal contains five new grounds for impugning the Minister’s determination. They are expressed in the form of original grounds for judicial review. Relatedly, Mr Lobban seeks to introduce evidence on this appeal that was not adduced in the proceedings before McKerracher J. Mr Lobban requires the leave of this Court to introduce the new grounds and to adduce the new evidence.
47 Before considering the application for leave, it is convenient to first set out the history of Mr Lobban’s extradition proceedings, with particular emphasis on the provisions pursuant to which Mr Lobban was arrested, remanded in custody and committed to prison.
BACKGROUND
48 In Snedden v Minister for Justice and Another (2014) 230 FCR 82 (Snedden), Middleton and Wigney JJ said, of the scheme established by the Act (at [100]):
… the Act creates a tightly structured scheme which presents the decision-maker at various stages of the extradition process with a binary choice. If the decision-maker decides one way, the extradition proceeds to the next stage. The Act specifically provides what is then to happen next. Typically that involves the person whose extradition is sought being remanded in custody (or on bail) to await the next decision in the process. If the decision-maker decides in the other way, the extradition process effectively comes to an end. The Act again specifically provides what is then to happen. Typically that involves a direction to release the person. There is generally no intermediate position and no uncertainty as to what is to happen next.
49 It is well established that the statutory process culminating in the surrender of a person from Australia to an extradition country involves four stages. Mr Lobban has proceeded through the four stages of the extradition process as follows.
The first stage
50 On 13 July 2011 a magistrate issued a warrant for the arrest of Mr Lobban. The warrant was issued following a request made by the USA to Australia on 8 July 2011. The warrant was issued pursuant to s 12(1) of the Act. It provides:
12 Extradition arrest warrants
(1) Where:
(a) an application is made, in the statutory form, on behalf of an extradition country to a magistrate or eligible Federal Circuit Court Judge for the issue of a warrant for the arrest of a person; and
(b) the magistrate or Judge is satisfied, on the basis of information given by affidavit, that the person is an extraditable person in relation to the extradition country;
the magistrate or Judge shall issue a warrant, in the statutory form, for the arrest of the person
51 The phrase “extraditable person” is defined in s 6 of the Act as follows:
6 Meaning of extraditable person
Where:
(a) either:
(i) a warrant is or warrants are in force for the arrest of a person in relation to an offence or offences against the law of a country that the person is accused of having committed either before or after the commencement of this Act; or
(ii) a person has been convicted of an offence or offences against the law of a country either before or after the commencement of this Act and:
(A) there is an intention to impose a sentence on the person as a consequence of the conviction; or
(B) the whole or a part of a sentence imposed on the person as a consequence of the conviction remains to be served;
(b) the offence or any of the offences is an extradition offence in relation to the country; and
(c) the person is believed to be outside the country;
the person is, for the purposes of this Act, an extraditable person in relation to the country.
52 Mr Lobban was arrested under warrant on 11 July 2011 and brought before the magistrate for a remand hearing pursuant to s 15 of the Act.
The second stage
53 At the remand hearing Mr Lobban made an application for proceedings to be conducted under s 19 of the Act to determine his eligibility for surrender. In those circumstances, the magistrate was required by s 15(2) of the Act to remand Mr Lobban, either in custody or on bail, for so long as was necessary for proceedings under s 19 of the Act to be conducted.
54 The Act provides for the arrest and remand of a person before a formal request for the extradition of a person is made: see s 16(3) below. That is what occurred in Mr Lobban’s case. A formal request for his extradition was made through diplomatic channels on 9 September 2011. Then, on 12 September 2011, the Minister issued a notice under s 16 of the Act to a magistrate stating that the request had been received. Section 16 relevantly provides:
16 Notice by Attorney-General
(1) Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate or eligible Federal Circuit Court Judge, state that the request has been received.
Person must be extraditable person in relation to extradition country
(2) The Attorney-General must not give the notice unless the Attorney-General is of the opinion that the person is an extraditable person in relation to the extradition country.
(3) As soon as practicable after the person is remanded under section 15 or the notice is given, whichever is the later:
(a) a copy of the notice; and
(b) copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);
shall be given to the person.
(4) A notice given under subsection (1) is not a legislative instrument.
55 The Minister’s discretionary power to issue the notice was conditional upon the Minister first receiving the extradition request from the USA: s 16(1) of the Act. The power to issue the notice was also conditional upon the Minister forming the opinion that Mr Lobban was an extraditable person in relation to the USA: s 16(2) of the Act. The issue of the notice under s 16 of the Act was a necessary precondition to the exercise of the magistrate’s powers at the third stage of the extradition proceedings.
The third stage
56 On 30 April 2012 the magistrate conducted proceedings to determine whether Mr Lobban was eligible for surrender in relation to the offences for which his surrender was sought by the USA. The proceedings were conducted pursuant to s 19 of the Act. It relevantly provides:
19 Determination of eligibility for surrender
(1) Where:
(a) a person is on remand under section 15;
(b) the Attorney-General has given a notice under subsection 16(1) in relation to the person;
(c) an application is made to a magistrate or eligible Federal Circuit Court Judge by or on behalf of the person or the extradition country concerned for proceedings to be conducted in relation to the person under this section; and
(d) the magistrate or Judge considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;
the magistrate or Judge shall conduct proceedings to determine whether the person is eligible for surrender in relation to the extradition offence or extradition offences for which surrender of the person is sought by the extradition country.
…
(9) Where, in the proceedings, the magistrate or Judge determines that the person is eligible for surrender to the extradition country in relation to the extradition offence or one or more of the extradition offences, the magistrate or Judge shall:
(a) order that the person be committed to prison or (subject to subsection (9A)) released on bail, to await:
(i) surrender under a surrender warrant or temporary surrender warrant; or
(ii) release, or the discharge of the recognisances on which bail was granted, under an order under subsection 22(5);
(b) inform the person that he or she may, within 15 days after the day on which the order under paragraph (a) is made, seek a review of the order under subsection 21(1); and
(c) record in writing the extradition offence or extradition offences in relation to which the magistrate or Judge has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.
(9A) A magistrate or eligible Federal Circuit Court Judge must not release a person on bail under paragraph (9)(a) unless there are special circumstances justifying such release.
(9B) An order committing a person to prison under paragraph (9)(a) must be made by warrant in the statutory form.
(10) Where, in the proceedings, the magistrate or Judge determines that the person is not, in relation to any extradition offence, eligible for surrender to the extradition country seeking surrender, the magistrate or Judge shall:
(a) order that the person be released; and
(b) advise the Attorney-General in writing of the order and of the magistrate’s or Judge’s reasons for determining that the person is not eligible for surrender.
57 Having determined that Mr Lobban was eligible for surrender, the magistrate was required to order that Mr Lobban be committed to prison or released on bail to await surrender under a surrender warrant: see s 19(9). He issued a warrant in the statutory form requiring Mr Lobban to be committed to prison: s 19(9B). Mr Lobban remains in custody pursuant to that warrant although, as will be seen, the lawfulness of his continued detention forms the subject matter of three of his proposed grounds of appeal before this Court.
The fourth stage
58 Mr Lobban’s committal to prison pursuant to s 19(9) of the Act enlivened a duty in the Attorney-General to determine whether he was to be surrendered to the USA: see s 22 of the Act, extracted at [85] of these reasons. The power was exercisable (and exercised in fact) by the Minister on this appeal in his capacity as the Minister for Justice: see s 19(1) of the Acts Interpretation Act 1901 (Cth) as currently in force, and s 19A(1)(b) of that Act as in force prior to 10 September 2015.
59 Having made the surrender determination, the Minister issued a surrender warrant pursuant to s 23 of the Act. The effect of that warrant was to order the person in whose custody Mr Lobban was being held to release him into the custody of a police officer, to enable his transportation into the custody of an escort officer and from there, out of Australia and into the custody of the USA: s 26(1)(c), (d) and (e) of the Act.
The proposed new grounds of appeal
60 A principal object of the Act is to enable Australia to carry out its obligations under extradition treaties: s 3(c). Section 11 of the Act advances that object. It relevantly provides:
11 Modification of Act in relation to certain countries
(1) The regulations may:
(a) state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
…
(1C) For the purposes of subsections (1) … the limitations, conditions, exceptions or qualifications that are necessary to give effect to a treaty may be expressed in the form that this Act applies to the country concerned subject to that treaty.
61 Regulation 4 of the Extradition (United States of America) Regulations 1988 (Cth) (Regulation 4) provides:
4 Application of Act
The Act applies in relation to the United States of America subject to the Treaty on Extradition between Australia and the United States of America that came into force on 8 May 1976, as amended by the Protocol done at Seoul on 4 September 1990 (being, respectively, the treaty a copy of the text of which is set out in Schedule 1 and the protocol a copy of the text of which is set out in Schedule 2).
62 All of the proposed new grounds of appeal raise issues concerning the correct interpretation of the Act in light of s 11 of the Act and the rule of construction prescribed in Regulation 4. The grounds may be conveniently dealt with in two groups. Grounds 1 and 2 concern the interpretation and effect of Regulation 4 in connection with Article V of the Treaty on Extradition between Australia and the United States of America of 14 May 1974, as amended by the Protocol done at Seoul on 4 September 1990 (the Treaty). I will refer to those grounds as the Article V grounds. Grounds 3 to 5 concern the interpretation and effect of Regulation 4 in connection with Article XIII of the Treaty. I will refer to those grounds as the Article XIII grounds.
63 The new evidence sought to be adduced on the appeal comprises correspondence passing between the Minister and representatives of the USA dated 14 June 2012 and 3 September 2012 appertaining to the Article XIII grounds. The purpose, meaning and effect of the letters is disputed by the Minister, although there is no contest as to the dates upon which they were sent and received. The Minister concedes that if leave were granted to Mr Lobban to rely on the Article XIII grounds, leave should also be granted to adduce the new evidence.
The grant of leave
64 As I have mentioned, none of the grounds expressed in the Supplementary Notice of Appeal were argued before McKerracher J at first instance. In University of Wollongong v Metwally (No 2) (1985) 60 ALR 68; [1985] HCA 28 the High Court said (at ALR 71):
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
65 The test there propounded in respect of appeals to the High Court is applicable on an appeal to the Full Court of this Court: Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543; [2002] FCA 480; [2002] FCAFC 105 (Gomez). The phrase “exceptional circumstances” indicates that there remains a discretion in this Court to allow the introduction of the new grounds if it be “expedient in the interests of justice” to do so: Gomez at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 at [46] (Kiefel, Weinberg and Stone JJ).
66 The Supplementary Notice of Appeal expresses arguments that Mr Lobban could have and should have raised in the Court below. In the proceedings at first instance he was represented by solicitors and experienced counsel. He was not deprived of any evidentiary material necessary to formulate the grounds. He has since retained new solicitors who have, in turn, briefed new counsel.
67 The application for leave is supported by an affidavit sworn on 10 February 2016 by the appellant’s current solicitor, Mr Macdonald. Mr Macdonald deposes to communications he had with the barrister who appeared for Mr Lobban in the proceedings before McKerracher J. In those communications, the solicitor directed the barrister’s attention to a proposed ground of appeal similar to the third ground now sought to be raised before this Court. The barrister is said to have replied with words to the effect that the proposed ground “had no merit”. The Minister contends that this communication supports an inference that the appellant’s previous legal advisers averted to the availability of the arguments in the proceedings below, but made a conscious decision not to advance them.
68 Mr Macdonald’s affidavit advances no adequate explanation for the appellant’s failure to raise the issues below. I find that the only explanation for the failure to raise the grounds below is an apparent difference of opinion held by Mr Lobban’s former advisers as to their merits. The affidavit does not, however, support a finding that the appellant has acted opportunistically or otherwise to gain some tactical advantage in the proceedings below or on the appeal.
69 There is a legitimate interest in public law matters being resolved in a timely manner. In cases such as the present, the delay and inefficiency caused by the late introduction of new arguments offends not only that general principle, but also prejudices the specific interests of both the requesting State (USA) and Mr Lobban himself. The requesting State has a legitimate interest in bringing to trial persons charged with serious offences, and Mr Lobban himself has a legitimate interest in having the lawfulness of the surrender determination resolved at the earliest opportunity. The concern that extradition matters be concluded promptly and efficiently is not a theoretical or abstract concern. It is a practical concern weighing against the grant of leave.
70 In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 (SZKMS) Lander J refused leave to an appellant to introduce new grounds on an appeal from a judgment of a Federal Magistrate in circumstances where the respondent would not otherwise have been prejudiced by the grant. His Honour said (at [30]):
… There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.
71 Those observations are particularly apposite in circumstances where the original proceedings are in the nature of judicial review and the remedies there sought are at the discretion of the primary judge. If Mr Lobban is to be granted leave, this Court would be deprived of the benefit of a decision of the Judge at first instance (including one informed by the exercise of his Honour’s discretion) in respect of all issues arising on the appeal. The distinction between the Court’s original and appellate jurisdiction would be undermined in the sense described in SZKMS.
72 Proposed grounds 3 to 5 allege that Mr Lobban is presently entitled to be discharged from custody. The subject matter of those grounds weighs in favour of the grant. Also weighing in favour of the grant is the Minister’s acknowledgment, properly made, that the new grounds could not have been met by any evidence in the Court below had the grounds been advanced there: see Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379 at [30] – [33] and [127]. The Minister does not otherwise claim to be personally prejudiced, in any substantive or forensic sense, by the introduction of the new grounds on appeal.
73 The questions of construction raised in the new grounds have wider consequences than those affecting the parties to the present controversy. They concern the proper construction and effect of Regulation 4, which is made in the same or substantially the same terms as a series of other regulations that are intended to give statutory force to Australia's obligations under treaties with at least 25 other nation States: see, for example: Extradition (Federal Republic of Germany) Regulations, reg 5; Extradition (India) Regulations 2010, reg 5; Extradition (Ireland) Regulations, reg 5; Extradition (Kingdom of Belgium) Regulations, reg 4; Extradition (Latvia) Regulations 2004, reg 6; Extradition (Malaysia) Regulations 2006, reg 5; Extradition (Poland) Regulations 1999, reg 4; Extradition (Republic of Chile) Regulations, reg 4; Extradition (Republic of Hungary) Regulations, reg 4; Extradition (Republic of Indonesia) Regulations, reg 5; Extradition (Republic of Korea) Regulations, reg 5; Extradition (South Africa) Regulations 2001, reg 4; Extradition (Spain) Regulations, reg 4; Extradition (Turkey) Regulations 2003, reg 4, and the Extradition (United Arab Emirates) Regulations 2010, reg 4.
74 The proposed new grounds concern the proper construction of the empowering provisions contained in s 11 of the Act; and to that extent raise issues of general importance. There is a discernible public interest in this Court determining those issues particularly because the issues concern executive intervention with personal liberty. It is this feature of the new grounds, coupled with the absence of any personal prejudice to the Minister that justifies the grant of leave, notwithstanding the strong countervailing considerations to which I have referred. The grant is “expedient in the interests of justice” conceived more broadly than the interests of justice in the case between the two parties on the appeal.
75 For these reasons, I would grant the appellant leave to rely on the grounds set out in the Supplementary Notice of Appeal and to adduce the evidence contained in annexure MSM1 to the affidavit of Mr Macdonald sworn on 10 February 2016.
The Minister’s reasons
76 The Article V grounds invite scrutiny of the Minister’s reasons for making the surrender determination. The Minister did not give written reasons.
77 On or around 16 October 2014, an employee of the Department for Justice (being the Department responsible for the administration of the Act) provided a brief of documents to the Minister (Brief). The Brief contained a document titled “ADVICE ON SURRENDER PRECONDITIONS AND GROUNDS FOR REFUSAL UNDER THE EXTRADITION ACT 1988 (CTH)” (Advice). The Advice refers to Mr Lobban as a dual Australian-Canadian citizen. Paragraph 76 of the Advice contained the following statement:
We consider that it is open to you to determine under section 22 of the Act to surrender, Mr Lobban to the United States, and recommend accordingly.
78 The Brief recommended that the Minister read the Advice and that he determine that Mr Lobban be surrendered. The Minister accepted that recommendation by circling the word “approved” below it, and by further following a recommendation to sign and date a warrant under s 23 of the Act to facilitate Mr Lobban’s surrender to the USA.
79 The Minister acknowledges that the Advice constitutes evidence from which the factors that he took into account in making the determination may be inferred. Mr Lobban goes further. He contends that the only available inference is that the Minster “adopted the analysis” set out in the Advice such that the Advice should be read as a record of the Minister’s own mental process. In support of that submission, Mr Lobban’s counsel referred to what Barker J said on appeal in O’Connor v Adamas (2013) 210 FCR 364. In that case, the judge at first instance had inferred that a person making a determination under s 22 had relied on advice contained in a document referred to as “Att B”. Barker J said (at [249]):
The primary judge in all of these circumstances considered it was open to him to infer that the Minister relied on Att B. In my view, it was not only open to the primary judge to draw this inference but also reasonable in all of the circumstances that he should have done so. Good public administration in relation to the execution of duties and responsibilities cast upon public officials such as the Attorney-General (or his delegate) under s 22 of the Extradition Act ordinarily results in the Attorney-General’s Department providing a submission to the Attorney or his delegate of the type provided to the Minister here for consideration, as cases such as Zentai and this case show. The materials are provided so that the Attorney or delegate can be appropriately informed and advised before making a s 22 determination. The Attorney or Minister may choose to discuss a recommendation as well - a course, as noted, apparently not taken here. The inference open to be drawn is that the Minister accepted that the recommendation made to him on the basis it was supported by the advice detailed in Att B. No other inference is reasonably open.
80 See also Minister for Justice v Adamas (2013) 253 CLR 43 at [22] in which the High Court described the inference drawn by the judge at first instance as “uncontroversial”. Similarly, in Mr Lobban’s case it may be reasonably inferred that the Minister accepted the recommendation to make the surrender determination on the basis that it was consistent with and supported by the content of the Advice and that, to that extent, he adopted the analysis set forth in it.
81 In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8; [2015] HCA 50 the High Court emphasised the caution to be exercised when scrutinising an administrative decision-maker’s reasons. The majority observed (at [25]):
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate’s letter is ‘not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.
(original emphasis, footnotes omitted)
82 The Minister submits this Court should exercise an even greater level of caution than might apply in circumstances where there is direct (as opposed to inferential) evidence as to an administrative decision-maker’s mental processes. The submission is made in circumstances where the Minister was at liberty to adduce direct evidence of the reasons for his decision so as to rebut any inference that might otherwise fairly arise from the content of the Brief and the Advice, and yet he has not done so.
The Article V grounds
83 Article V of the Treaty provides:
ARTICLE V
(1) Neither of the Contracting Parties shall be bound to deliver up its own nationals under this Treaty but the executive authority of each Contracting Party shall have the power to deliver them up if, in its discretion, it considers that it is proper to do so.
(2) If the requested State refuses to extradite a national of that State on the basis of nationality it shall, if the requesting State so requests and the laws of the requested State allow, submit the case to the competent authorities in order that proceedings for the prosecution of the person may be undertaken in respect of all offences for which the extradition has been requested.
84 As I have said, the power to determine that Mr Lobban be surrendered to the USA is conferred by s 22(2) of the Act. It is a discretionary power that is subject to the pre-conditions prescribed in s 22(3). This appeal concerns the preconditions in s 22(3)(e) and (f).
85 Section 22 relevantly provides:
22 Surrender determination by Attorney-General
(1) In this section:
eligible person means a person who has been committed to prison or released on bail:
(a) by order of a magistrate or eligible Federal Circuit Court Judge made under section 18; or
(b) by order made under subsection 19(9) or 21(2A) (including because of an appeal referred to in section 21), where no proceedings under section 21 are being conducted or are available in relation to the determination under subsection 19(9) to which the order relates.
qualifying extradition offence, in relation to an eligible person, means the following:
(a) if paragraph (a) of the definition of eligible person applies—any extradition offence in relation to which the person consented in accordance with section 18;
(b) if paragraph (b) of the definition of eligible person applies—any extradition offence in relation to which:
(i) the magistrate or Judge who made the order under subsection 19(9); or
(ii) the court that conducted the final proceedings under section 21;
determined that the person was eligible for surrender within the meaning of subsection 19(2);
(c) in any case—any extradition offence in relation to which the person has consented in accordance with section 19A.
(2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences.
(3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if:
…
(e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that:
(i) surrender of the person in relation to the offence shall be refused; or
(ii) surrender of the person in relation to the offence may be refused;
in certain circumstances—the Attorney-General is satisfied:
(iii) where subparagraph (i) applies—that the circumstances do not exist; or
(iv) where subparagraph (ii) applies—either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and
(f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence.
…
Mr Lobban’s submissions
86 Mr Lobban’s submissions proceeded on that basis that s 22(3) of the Act contains two “limbs”: a mandatory limb comprised of s 22(3)(e)(i) and (iii), and a discretionary limb, comprised of s 22(3)(e)(ii) and (iv). The first and second grounds of appeal are respectively based on each of those limbs. The contentions are to the effect that s 11 of the Act applied in relation to the USA subject to a limitation, condition, qualification or exception that had the effect that surrender of Mr Lobban in relation to the extradition offences either:
(a) shall be refused in certain circumstances (s 22(3)(e)(i)); or
(b) may be refused in certain circumstances (s 22(3)(e)(ii)).
87 As to the mandatory limb, Mr Lobban contends that the precondition imposed by s 22(3)(e)(i) and (iii) of the Act, read with Article V of the Treaty as “given effect by s 11”, is that the Minister be satisfied that a circumstance mandating the refusal of Mr Lobban’s surrender does not exist. The relevant circumstance found expression as a double negative in Mr Lobban’s written submissions as follows:
[26] On its proper interpretation, Art V, with respect to a request by the USA to Australia, is a limitation, condition, exception or qualification within the meaning of s 22(3)(e) that has the effect that where the person to be surrendered is an Australian national, the surrender of the person ‘shall’ be refused in certain circumstances, namely unless the Minister considers that notwithstanding the person’s Australian nationality it is proper to surrender the person in all the circumstances including circumstances personal to him or her.
[27] In order for the power to surrender to be enlivened, the Minister was required by s 22(3)(e) to be satisfied that those circumstances did not exist, ie that it was not the case that he did not consider it proper to surrender the person notwithstanding his or her Australian nationality.
(original emphasis)
88 As to the discretionary limb, Mr Lobban contends that s 22(3)(e)(ii) and (iv) of the Act, read with Article V of the Treaty as “given effect by s 11”, require that the Minister be satisfied that although Mr Lobban was an Australian national, nevertheless his surrender should not be refused.
89 In either case, it was submitted that the Minister’s power to surrender Mr Lobban to the USA was conditional upon him first reaching a state of positive satisfaction that he considered it was proper to surrender Mr Lobban to the USA, notwithstanding Mr Lobban’s Australian nationality. It was further submitted that the Minister did not give Mr Lobban’s nationality the “standalone importance” that s 22(3)(e) was said to require.
Consideration
90 Section 22(3)(e) of the Act does not, on its terms, directly invoke the terms of the Treaty. It is a provision that is only enlivened in circumstances “where, because of section 11, the Act applies in relation to” the USA subject to a limitation, condition, qualification or exception (my emphasis). Further, s 22(3)(e) only applies where the limitation, condition, qualification and exception to which the application of the Act is subject is one that has either the effect described in s 22(3)(e)(i) or the effect described in s 22(3)(e)(ii).
91 The words “because of s 11” are to be understood as including a reference to valid regulations empowered under s 11(1)(a), such as Regulation 4. Any analysis of the meaning and effect of s 22(3)(e) of the Act must therefore have, as its starting point, the proper construction of s 11 and Regulation 4.
92 The words “subject ... to the Treaty” in Regulation 4 are the same as those envisaged and permitted by s 11(1C) of the Act. Section 11(1C) was inserted by s 4 of the Extradition Amendment Act 1990 (Cth) (Amending Act). It requires that the phrase “subject to the Treaty” (as used in Regulation 4) be taken to mean (in the context of the present case) “this Act applies in relation to the USA subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the [Treaty]”. In other words, a regulation made in the broad terms permitted by s 11(1C) is to be read as one incorporating the same specific form of words expressed in s 11(1)(a). So much is clear from the text and context of s 11(1C) itself.
93 The words “as are necessary” in s 11(1)(a) are words of limitation. They confine the circumstances in which, and the extent to which, the application of the Act is to be modified so as to give effect to Australia’s obligations under the Treaty. There will be circumstances in which the Act (whether expressly or by necessary intendment), gives adequate effect to the Treaty by, for example, imposing limitations, conditions, exceptions or qualifications that are co-extensive with it. In that circumstance the limitations etcetera would apply by force of the Act itself: no modification of its terms would be necessary within the meaning of s 11 and Regulation 4. It is only in circumstances where the Act does not give adequate effect to the Treaty that Regulation 4 has any work to do.
94 It is against that background that I now compare Australia’s obligations under Article V of the Treaty with the text, operation and effect of the Act insofar as it applies to Australian nationals in respect of whom a request for extradition is made by the USA.
95 The opening words of the Article provide that Australia (as a Contracting Party) shall not be bound to deliver its own nationals to the USA under the Treaty. There is nothing in the Act inconsistent with those words: the Act does not mandate the surrender of Australian nationals to the USA in any circumstances. The ensuing words “but the executive authority of each Contracting Party shall have the power to deliver them up” are empowering. The power there referred to must be construed as a discretionary power by reason of the Article’s opening words and the concluding words of the paragraph. Again, I observe nothing in the Act that is inconsistent with these words. Read together, s 22(2) and s 22(3)(f) of the Act clearly provide that the power to surrender a person to an extradition country is subject to the discretion of the Attorney-General (or, as here, the Minister).
96 The words “if, in its discretion, it considers that it is proper to do so” express an intention that it be a precondition of the exercise of the power to surrender an Australian national with the requirement that the executive authority first form the state of mind there referred to, namely, a belief or opinion (for present purposes, it matters not which) that it is “proper” to surrender the person to the USA. An issue arises as to whether there exists in the Act an equivalent condition on the exercise of the discretion to surrender an Australian national to the USA.
97 The legislature is to be taken to intend that a discretionary power conferred by a statute is to be exercised reasonably: Kruger v Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ). In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [90] – [92] Gageler J said (citing Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290):
[90] Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject matter, scope and purposes of the statute.
[91] The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made:
‘Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course.’
[92] Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.
(citations omitted)
98 Applying those well-established principles to the Act, the decision-making authority conferred by s 22 is to be understood as one that must be exercised according to law and according to reason within limits set by the subject matter, scope and purposes of the Act. When construed in that way, s 22(3)(f) of the Act is, in my opinion, and subject to one further enquiry, equivalent in meaning and effect to Article V(1) of the Treaty: a condition that the decision-maker determine that it is “proper” to surrender a person is no different in substance than a condition that the decision-maker (acting reasonably in the sense described in Li) “considers that the person should be surrendered”.
99 The further enquiry arises from the fact that Article V, when read in the context of the Treaty as a whole, should be understood as intending that the requested State be bound to take into account the status of a person as the requested State’s own national when determining whether it is proper to surrender the person to the requesting State. In my opinion, that intention is evident from the Article read as a whole, but particularly in light of the words of Article V(2) which contemplate that the requested State may refuse the surrender of a person solely on the basis of the person’s status as one of the requested State’s own nationals.
100 Whether an equivalent condition is implicit in the Act is to be determined by reference to what Mason J (as he then was) said in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 (Peko Wallsend) at 39 - 40:
…What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I will use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribnal; Ex parte 2HD Pty Ltd, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury, and Water Conservation and Irrigation Commission (NSW) v Browning. By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is found to do so is to be found in the subject-matter, scope and purpose of the Act.
(Footnotes omitted)
101 In Coco v Commissioner of Taxation (No 2) (1993) 43 FCR 140 Lockhart J observed at (144-145) that it will usually be easier to identify matters irrelevant to the power than it will be to establish that the decision-maker has failed to take into account a relevant matter.
102 Section 22(3) of the Act expressly enumerates the considerations to be taken into account by the Attorney-General (or, as here, the Minister) in making a determination pursuant to s 22(2). The factors are not exhaustive. So much is clear from the unfettered terms of s 22(3)(f), which requires the Minster to consider, in his or her discretion, that the person should be surrendered.
103 An express object of the Act is to enable Australia to carry out its obligations toward other extradition countries. The subject matter of the Act includes the forcible removal of persons to face trial on criminal charges in accordance with the law of places other than Australia. In that regard an Australian citizen stands in a different position to that of a non-citizen. It is a fundamental incident of Australian citizenship to enter, remain and reside in Australia. In contrast, a non-citizen has no entitlement to enter, remain and reside here except as may be conferred by statute: see by illustration ss 13, 14, 189 of the Migration Act 1958 (Cth). In considering whether a person “should” be surrendered pursuant to s 22(3)(f) of the Act, the Attorney-General must take into account the effect the determination may have on the interests of the person to be surrendered. A determination against a person who is an Australian citizen will necessarily have the effect of depriving the person of the fundamental incident of citizenship to which I have referred: the right to remain in one’s country of nationality. In my opinion, the subject, scope and purpose of the Act evince an intention that the person’s status as an Australian citizen be a mandatory relevant consideration in the exercise of the discretion conferred by s 22(2) and, more particularly, s 22(3)(f), because of the very nature of the interest that is interfered with by the determination.
104 Returning now to the Treaty, I accept Mr Lobban’s submission that the status of a person as an Australian national is a relevant consideration to be taken into account in the discharge of Australia’s obligations under the Treaty itself, particularly in the exercise of the discretion under Article V(1). However, for the reasons I have given above, I consider that s 22(3)(f) of the Act is a provision to the same effect, quite apart from the application of Regulation 4.
105 The implication that the status of a person as an Australian national be taken into account in the exercise of the Attorney-General’s discretion under s 22(3)(f) is not a “limitation, condition, qualification or exception” to which the application of the Act is subject “because of section 11” as that phrase appears in s 22(3)(e). It is an implication arising from the proper construction of the Act irrespective of the operation of s 11 and any regulation empowered by it.
106 Even if I am wrong about that, I would accept the Minister’s submission that the words in s 22(3)(e)(iv) import no different test to that contained in Article V. It happens that that test is, in turn, no different in substance to the obligations imposed by s 22(3)(f) of the Act, as I have construed it. All of that supports my conclusion that there is no inconsistency between the Act and the Treaty such as to give Regulation 4 any meaningful work to do.
Standalone importance
107 Mr Lobban contends that the following passages in the Advice evidence a reviewable error on the part of the Minister:
[30] Under section 22(3)(e) of the Act, you are required to consider mandatory and discretionary grounds for refusal of surrender under applicable regulations. The Act is applied to the United States by operation of the Extradition (United States of America) Regulations 2004 (the Regulations), which incorporate the Treaty (as amended). Articles V, VII and VIII of the Treaty sets out mandatory and discretionary grounds for refusal of surrender.
[31] Article V of the Treaty gives you the discretion to refuse the extradition of an eligible person on the grounds that the eligible person is an Australian citizen. Mr Lobban is an Australian citizen. However, as a matter of long standing policy, Australia does not refuse extradition on the basis of nationality alone and we consider there is no basis for departing from that policy position in this case. Mr Lobban has made representations to you to the effect that surrender to the United States would result in separation from family and friends in Australia, and these are considered at paragraphs 38-45 below.
108 It was submitted that Mr Lobban’s Australian nationality had a significance which the Minister failed to recognise in those extracted passages; that it was a consideration of “standalone importance”. There is, however, nothing in the Treaty itself evincing an intention that standalone importance be given to a person’s status as a national of the requested State relative to the importance of other relevant considerations. The Treaty, in my opinion, evinces no more than an intention that the requesting State take into account the status of a person as its own national. Questions of weight are left entirely for the requested State to decide. Article V(2) contemplates that there may be cases in which nationality alone may be the reason for refusing to surrender a person, and imposes obligations on the requested State should that occur. However, Article V(2) is not to be read as a prescription of the relative weight to be given that factor. The purpose of Article V(2), read in the context of Article V as a whole, is to prescribe the consequences that are to follow where a decision to refuse the surrender of a person is based on nationality: it is not concerned with prescriptions of weight.
109 The standalone importance contended for by Mr Lobban’s counsel was derived not so much from the Treaty but from the text and structure of s 22(3)(e) of the Act which, it was contended, operated so as to require the Minister to give discreet attention to Mr Lobban’s status at a particular stage of a mental reasoning process and to accord the status more weight than might otherwise be accorded if the Minster was bound to take the status into account in the exercise of his discretion under s 22(3)(f). The contention found expression in oral submissions as follows:
… if the Minister was to consider the nationality of the person in question under the rubric of the general consideration, it simply becomes a particular consideration the weight of which is a matter entirely for the Minister or Attorney-General, but under section 22(3)(e) it is given an independent status. It becomes an extra hurdle that must first be passed before that general, unconfined discretion under 22(3)(f) even arises.
110 The submission ignores the importance of first construing the Act and the Treaty in order to determine whether s 22(3)(e) of the Act is enlivened at all. In addition, the submission is founded on a false premise, namely that s 22(3) itself operates so as to elevate the importance of the circumstance of Mr Lobban’s Australian nationality over other considerations relevant to the exercise of the discretionary power conferred by s 22(2). In my opinion, that is something s 22(3)(e) simply does not do. Where s 22(3)(e) is enlivened it does no more than to import a requirement that the Minister observe any limitation, condition, qualification or exception to which the application of the Act may be subject because of s 11. As I have said, any limitation arising by virtue of Regulation 4 in the present case would not, in any event, be a limitation concerned with the weight to be accorded to Mr Lobban’s status as an Australian national.
111 Even if I am wrong in my conclusion that s 22(3)(e) of the Act was not enlivened, I would find in any event that the Minister’s decision does not involve error. The effect of the Advice, read beneficially as though it were an expression of the Minister’s own reasons, is that the Minister recognised that he had the discretion to refuse to surrender Mr Lobban to the USA on the basis of his nationality. That is entirely consistent with Article V(1). Moreover, the Advice, read as a whole, is to the effect that it was open to the Minister to consider it proper to surrender Mr Lobban to the USA notwithstanding his status as an Australian citizen. In adopting and acting in accordance with the Advice, the Minister complied with any limitation that might be derived from Article V of the Treaty. It matters not that the relevant portion of the Advice made no reference to s 22(3)(e) of the Act.
112 For the reasons given above, the grounds in paragraphs 1 and 2 of the Supplementary Notice of Appeal are rejected.
The Article XIII grounds
113 Article XIII relevantly provides:
ARTICLE XIII
(1) If the requested State requires additional information to enable it to decide on the request for extradition, that State may request that such information be furnished within such period as it specifies.
(2) If the person sought is under arrest and the additional information submitted as aforesaid is not sufficient or if such information is not received within the period specified by the requested State, he shall be discharged from custody.
(3) The discharge of a person from custody under paragraph (2) of this Article shall not bar the requesting State from submitting another request in respect of the same offence.
…
Facts
114 The Article XIII grounds turn upon the construction of the Act in accordance with Regulation 4 and Article XIII of the Treaty, together with an assessment of the content and effect of correspondence passing between Australia as the requested State and the USA as the requesting State in mid to late 2012. The correspondence proceeded as follows.
115 By letter dated 14 June 2012, a representative of the Attorney-General’s Department, International Crime Cooperation Division, informed a representative of the US Department of Justice that Mr Lobban had been committed to prison to await a determination by the Minister under s 22 of the Act. I will refer to this letter as the June letter.
116 The June letter went on to state (omitting its paragraph numbers):
Mr Lobban is entitled at this stage to make representations to the Minister as to why he should not be surrendered. The Minister will take into account relevant representations in making his determination under section 22 of the Act.
On 15 May 2012 the Attorney-General’s Department received correspondence from Mr Lobban’s legal representatives making representations on Mr Lobban’s behalf.
These representations raise some relevant issues, as summarised below, on which it is appropriate to seek a response from the US. The response may, where appropriate, refer to US practice and procedure. Where the response raises or relates to matters which fall within the discretion of the US courts, we appreciate that the US may not be able to provide assurances or guarantees. However, we would be grateful for any assessment of those matters based on the experience of US authorities.
In accordance with the Act the Minister is required to make his determination whether to surrender Mr Lobban to the US as soon as is reasonably practicable. I would therefore be grateful to receive your response to these issues as soon as possible.
117 The June letter then sets out a number of issues raised on behalf of Mr Lobban, to which the author sought the “response” of the US Department. Specifically, the author sought:
(a) “comments” on the question of whether Mr Lobban would be afforded a fair trial in the USA;
(b) “information” concerning the legal processes or measures in place to ensure that the fairness of Mr Lobban’s trial would not be affected by adverse media attention;
(c) “clarification and information” concerning the sentences that might be imposed upon Mr Lobban should he be convicted of the extradition offences;
(d) “comments” on a question of whether certain sentences that might be imposed upon Mr Lobban might violate certain rights under the International Covenant on Civil and Political Rights;
(e) an “update” on whether Mr Lobban’s former partner had been convicted of the offences Mr Lobban had been accused of soliciting and, if so, the sentence imposed in her case; and
(f) “information” regarding the conditions in which Mr Lobban would be remanded (should he be surrendered) and then imprisoned (should he be convicted).
118 The June letter concluded:
Thank you for your early attention to these matters. I look forward to receiving your response as soon as possible.
119 It is not disputed that, by 3 September 2012, the Attorney-General’s representative had received no response to the June letter. On that day, the same representative wrote again to the US Department of Justice. I will refer to this letter as the September letter.
120 The September letter refers to the June letter. It goes on to state that further representations had been made by Mr Lobban as to why he should not be surrendered to the US. The September letter continues:
I note your recent advice that the US authorities are currently finalising a response to issues raised in Mr Lobban’s initial representations. As you are aware, in accordance with the Act the Minister is required to make his determination whether to surrender Mr Lobban to the US as soon as is reasonably practicable. I would therefore be grateful to receive your response to the issues stated in my letter of 14 June 2012, as well as the additional issue outlined below, as soon as possible and by no later than 28 September 2012.
(original emphasis)
121 The September letter goes on to summarise submissions made by Mr Lobban in connection with a legal process providing for the “civil commitment” of “sexually violent predators” in the State of Florida following the completion of any custodial sentences served by them. The September letter then sought “advice and assistance” in connection with a number of questions concerning the possible application of civil commitment processes to Mr Lobban should he be surrendered to the US and convicted of two particular extraditable offences alleged against him. As the characterisation of the request assumes some importance, I will extract it in full:
Potential civil commitment order in the US
4. The additional issue raised by Mr Lobban concerns the possibility of the legal process of ‘civil commitment’ in the State of Florida.
5. In his representations, Mr Lobban claims that ‘if [he] is convicted of either count 5 or 6, he could be subjected to civil commitment in the State of Florida, following completion of his custodial sentence.’ His basis for this claim is that ‘[t]he State of Florida allows for the involuntary civil commitment of sexually violent predators. A sexually violent predator is defined as someone who commits a sexually violent offence. Counts 5 and 6 fall within the definition of a sexually violent offence.’
6. In support of his claim, Mr Lobban refers to the High Court of England and Wales judgment in Sullivan v The Government of the United States of America & Anor (2012) EWHC 1680 (Admin) which concerned a request from the US to the UK for the extradition of Shawn Eugene Sullivan to face prosecution in the State of Minnesota in relation to alleged indecent assault offences against children. Mr Lobban states in is representations: ‘[t]he High Court found that there was a real risk that Mr Sullivan could be made subject to an order for civil commitment and should he be made subject to such an order, it would be a flagrant denial of his rights under Article 5.1 of the European Convention on Human Rights.’ He further notes that ‘[c]ivil commitment is a process available in 20 states in the USA, including Minnesota and Florida.’
7. In order to properly consider and address Mr Lobban’s claim I would be grateful for your advice and assistance with the following.
• If Mr Lobban is extradited to the US and convicted in relation to one or more of the offences for which is extradition is sought, could he be subject to a civil commitment order in Florida following completion of any custodial sentence imposed upon him? In particular, I note that Mr Lobban is an Australian national and, if extradited to the US, may not have a lawful basis for remaining in the US other than for criminal justice purposes.
• If a civil commitment order in Florida could be applicable to Mr Lobban following completion of any custodial sentence imposed upon him, I would appreciate if you could please provide the text for the relevant provisions under Florida law and any information regarding relevant policies and practices in Florida with respect to civil commitment.
• Any other information or comments that may be relevant for the Minister’s consideration in determining whether to surrender Mr Lobban to the US.
8. Thank you for your early attention to these matters. I look forward to receiving your response as soon as possible by 28 September 2012.
122 The US Department of Justice responded to the September letter. Its response is dated 28 September 2012 and is stated on its face to have been delivered “Via Email and Federal Express”. It sets out responses to all of the matters raised in the June letter. It concludes:
We hope this fully responds to the issues raised in your letter dated June 14, 2012. A response to your letter dated September 3, 2012, will be forthcoming. We thank you for your assistance in this matter.
123 As can be seen, the USA did not address the request for the additional “advice and assistance” made in the September letter within the timeframe specified in that letter. That advice and assistance was later provided in a letter from the US Department of Justice dated 16 November 2012.
The issues
124 Mr Lobban contends that the effect of Article XIII is that he was entitled to be discharged from custody on 14 June 2012 or, alternatively, on 29 September 2012 by reason of a failure by the USA on either of those dates to provide evidence or information within a time period specified in requests for information made by the Minister. Grounds 3 to 5 advance alternative ramifications said to follow from that alleged failure. Ground 3 contends that the extradition request terminated on either of those dates with the consequence that the Minister had no jurisdiction to make the surrender determination under s 22 of the Act. Ground 4 contends that from the date that the appellant was required, by reason of Article XIII, to be released from custody, he no longer met the description of an “eligible person” for the purposes of s 22 of the Act and the Minister thereby lacked jurisdiction to make the surrender determination in respect of him. Ground 5 invokes s 22(3)(e)(i) and (ii) of the Act. It is submitted that Article XIII was, of itself, a limitation, condition, qualification or exception that required the Minister to refuse the appellant’s surrender unless he was first satisfied that a relevant circumstance (namely the circumstance that the appellant remained in lawful custody) existed. Ground 5 is expressed in both a positive and negative syntax, although nothing turns for present purposes on the different modes of expression.
125 The Minister submits that the opening words of Article XIII(1) do not capture a circumstance in which the requested State (Australia) requests information from the requesting State (USA) in the course of, and for the purpose of, observing the requirements of procedural fairness at the fourth stage of extradition proceedings described in [58] and [59] of these reasons. More specifically, it was submitted that when the Minister provided the USA with an opportunity to respond to contentions made on behalf of Mr Lobban, the Minister did not “require” additional information to enable him to decide on the request for extradition within the meaning of Article XIII(1). The following passages of the Minister’s written submissions go so far as to say that Article XIII cannot apply at the fourth stage of extradition proceedings at all:
[49] By the time the extradition request has reached the fourth stage, the Attorney-General’s role has changed. At the final stage, the Attorney-General’s function is to decide, on the basis of information potentially provided by both the eligible person and the requesting State, whether the person should be surrendered. The interests of both the eligible person and of the requesting State are affected by that decision, and both are entitled to procedural fairness. In context, Article XIII is clearly not concerned with the fourth stage of the extradition process. Article XIII (and Article XIII(2) in particular) has no application to requests for the United States to respond to contentions put against it by an eligible person for the purposes of making a surrender determination under s 22(2).
[50] In asking the United States to respond to an eligible person’s contentions, the Attorney-General is according the United States procedural fairness as required by Australian law. The fourth stage includes the administration of an adversarial process for which neither the Extradition Act or the Treaty mandate a procedure. It is a matter for the Attorney-General to determine a procedure that is reasonable and will avoid practical injustice or unfairness to both parties, having regard to the circumstances of the particular case. In affording procedure [sic] fairness to the parties, Australia did not require either the United States or the Appellant to provide additional information - it gave them an opportunity to submit further material if they wished. What is required for a valid extradition request is determined at earlier stages of the process, particularly at the time of the issue of a s 16 notice and the determination of surrender eligibility.
(original emphasis, footnotes omitted)
126 The Minister also submitted that even if Mr Lobban had been entitled to be discharged from custody, he was not in fact discharged at the time of the surrender determination and the Minister’s jurisdiction to make the determination was therefore unaffected.
Consideration
127 Article XIII on its terms refers to information that may be required to enable the requested State to decide on the request for extradition. It is clearly intended to have application at any time up to and including the time at which the decision on the extradition request is made as a matter of fact. When construed as a whole, the Treaty envisages that a request for information made under Article XIII is one for “additional information” made after the receipt by the requested State of all of the information necessary to found a valid extradition request. Article XI of the Treaty specifies in some detail the information that is to be provided in support of the request. Article XII(2) specifies more limited information that might be provided where the arrest of a person is sought urgently. Where a person is provisionally arrested in accordance with Article XII (as in the case of Mr Lobban), a formal request for extradition containing the information specified in Article XI must be made within 60 days: Article XII(4). These provisions anticipate that the occasion for a requested State to make a request for additional information will invariably occur later in the course of extradition proceedings. Notably, it is only at the fourth stage of extradition proceedings under Australian law that a decision as to whether or not to surrender the person is made at all. It would be contrary to the plain terms of Article XIII to limit its application to requests for information made at stages of the extradition process occurring before the time arises for the request to be finally decided.
128 Two further issues arise from the Minister’s submission that by asking the USA to respond to Mr Lobban’s contentions the Minister was doing nothing more than according the USA procedural fairness. The first is whether a request for information made to the USA in the course of complying with the rules of procedural fairness cannot in any case be regarded as a request for information that Australia “requires” to enable a decision on an extradition request to be made. The second is whether the request for information made in Mr Lobban’s case is to be regarded, as a question of fact, as a request for information that was required by the Minister to decide upon the extradition request.
129 Article X of the Treaty recognises and requires that the determination of an extradition request be made in accordance with the law of the requested State. It provides:
The determination that extradition based upon the request therefor should or should not be granted shall be made in accordance with the law of the requested State and the person whose extradition is sought shall have the right to use such remedies and recourses as are provided by that law.
130 In the present case, the law of the requested State includes an implied requirement that determinations made under the Act be made in accordance with the rules of procedural fairness: Kioa v West (1985) 159 CLR 550 Mason J at 584. The obligation to accord procedural fairness is one that is owed not only to the person who is subject to an extradition request made in accordance with the Treaty, but to the USA as the requesting State: Snedden at [181]. The rules of procedural fairness require not only that a party be given an opportunity to provide a response to contentions put by another party, but that the response be given actual consideration by the decision-maker. There is no reason why Australia’s obligations under Article XIII of the Treaty should be construed so as to exclude all requests for information that are made in the discharge of that obligation under Australian law. The Minister’s submissions on that discrete topic should be rejected. The question of whether or not a request for information made in the discharge of procedural fairness obligations is in fact captured by Article XIII must be determined by reference to all of the circumstances of a particular case.
131 I should emphasise that the proper discharge of the Minister’s obligation to accord the USA procedural fairness involved only an obligation to invite, but not to mandate, a response from the USA to contentions that had been advanced by Mr Lobban. To the extent that the USA received a mere invitation to respond to Mr Lobban’s submissions, the rules of procedural fairness themselves imposed no obligation on the USA to respond.
132 I accept the general proposition that a “failure” by the USA to respond to a mere invitation for a response made in the discharge of the Minister’s obligations to accord the USA procedural fairness would not necessarily constitute a failure to respond to a request for information required to enable an extradition decision to be made within the meaning of Article XIII. However, that is not what merely occurred in the present case. It may be accepted that the June letter and the September letter contained requests for information made on behalf of the Minister in the course of discharging his procedural fairness obligations. Irrespective of that circumstance, the June letter and the September letter are properly to be characterised as conveying requests for information that was required, both in law and in fact by the Minister to enable the surrender determination to be made. I draw that conclusion both from the terms in which the requests were framed and from the subject matter of the requests and from an assessment of the matters the Minister was required to take into account in determining the extradition request.
133 Those advising the Minister proceeded on the basis that Mr Lobban’s submissions had raised an issue as to whether the civil commitment scheme in Florida constituted torture within the meaning of the International Covenant on Civil and Political Rights, to which Australia and the USA are parties. Whether or not there existed substantial grounds for believing that the civil commitment scheme constituted torture was a matter that the Minister was required to determine: see s 22(3)(b) of the Act. The information requested from the USA in the September letter was required to enable the Minister to determine that issue and was, therefore, required to enable the Minister to determine the extradition request in accordance with the Act. The request was framed as one for “advice and assistance”. Substantive information was sought.
134 The Advice subsequently provided to the Minister sets out the submissions made by Mr Lobban and the USA and properly identifies the issue as one arising for determination by the Minister under s 22(3)(b) of the Act. The Brief recommended that the Minister read the whole of the Advice, which included (as Attachment H) a copy of the letter from the USA to Australia dated 16 November 2012 in which the USA provides detailed and substantive information about the legal framework of, and practical operation of, the civil commitment scheme under Florida law.
135 It follows from the above that the Minister required the information and, indeed, ultimately relied on the information in forming the requisite belief that there were no substantial grounds for believing that the civil commitment scheme constituted torture.
136 It may well be that the Minister or his advisers might have been in a position to obtain the information requested in the correspondence by means other than by directing the request for the information to the USA, but that was not done. The potential availability of the information from other sources does not alter the circumstance that Australia required the information to enable the decision to be made, and directed a request for the information to the USA.
137 Notwithstanding what I have said above, the request contained in the June letter did not enliven Article XIII(1) because that letter did not specify any period within which the information was to be provided.
138 The September letter is different. It repeated the request for the information that had been sought in the June letter and made an additional new request for “advice and assistance” concerning the civil commitment of sexually violent predators. It specified a date for the provision of the advice and assistance. As I have mentioned, the USA did not respond within the specified time to the request for information concerning the civil commitment scheme. That was a substantive issue, information about which, it can be reasonably inferred from the correspondence, was required by the Minister to enable him to make a decision on the extradition request. It was open to the Minister to apply to adduce evidence on the appeal capable of rebutting that inference, yet he did not do so.
139 Article XIII provides that the failure by the USA to provide the information requested in the September letter within the specified period was to have two consequences: Mr Lobban was to be discharged from custody and the extradition proceedings commenced by the extradition request made by the USA on 9 September 2011 were to be terminated. The second of those consequences follows from the text of Article XIII(3). If extradition proceedings commenced by an extradition request were regarded as remaining on foot after the discharge of a person from custody, it would hardly be necessary to include the words in Article XIII(3) that permit another extradition request to be made in respect of the same person, and in respect of the same offence.
140 An issue arises as to the point in time at which the extradition proceedings against the person are to be regarded as terminated. Article XIII is open to alternative interpretations in this regard. On one construction, the extradition proceedings terminate from the point in time at which the person subject to the surrender request becomes entitled to be discharged from custody. On an alternative construction, the extradition proceedings do not terminate unless and until the person is discharged from custody in fact. In my opinion, the former interpretation of the Treaty is to be preferred. The effect of Article XIII is to terminate the request for extradition itself, so that there remains no obligation upon Australia to grant or refuse it.
141 On either interpretation, Australia was obliged under the Treaty to discharge Mr Lobban from custody on the expiry of the time specified in the September letter for Australia’s receipt of the additional information requested from the USA; namely, at the expiry of 28 September 2012 in the time zone in which the information was to be received. The Act is to be construed subject to any limitations, conditions, exceptions or qualifications as are necessary to give effect to that obligation.
Construction of the Act subject to Article XIII
142 Grounds 3 to 5 in this appeal advance three alternative approaches to how the Act should be interpreted “subject to” the Treaty insofar as Article XIII imposes an obligation upon Australia to discharge Mr Lobban from custody.
143 Mr Lobban’s entitlement to be discharged arose after he was committed to prison by a warrant issued under s 19 of the Act. An order committing a person to prison under that section is one that provides for his or her continued detention in custody pending the occurrence of one of two events:
(a) surrender under a surrender warrant or temporary surrender warrant (see s 19(9)(a)(i)); or
(b) release under an order made pursuant to s 22(5) (see s 19(9)(a)(ii).
144 The power to make a determination under s 22(2) of the Act is one that can only be exercised in relation to an eligible person (s 22(3)) and must be exercised as soon as practicable, having regard to circumstances, after a person becomes an eligible person. The phrase “eligible person” is defined in s 22(1), extracted at [85] of these reasons.
145 The effect of that definition, within the context of s 22 as a whole, is that the power to surrender a person is subject to the existence of a jurisdictional fact, namely, that the person has been committed to prison or released on bail by orders made lawfully in accordance with other provisions of the Act.
146 There is no express term in the Act having the effect of precluding, conditioning or otherwise limiting the exercise of the power conferred by s 22 in circumstances where a person has been lawfully committed to prison, but has since become a person in respect of whom Australia is obliged to discharge from custody in accordance with Article XIII(2) of the Treaty. Nor does the Act, on its express terms, provide for the termination of extradition proceedings in the event that a requesting State does not provide the requested State with information or evidence within the requested State’s specified timeframe. Although the Act does not expressly contain any limitations, conditions, exceptions or qualifications that give effect to Australia’s obligation to discharge Mr Lobban, in my opinion, Regulation 4 has the consequence that the Act, in its application to the USA, is to be read subject to the following limitations, conditions, exceptions or qualifications:
(a) extradition proceedings commenced in respect of an extradition request are taken to be terminated by force of the Act upon Australia becoming obliged to discharge a person from custody in accordance with Article XIII(2) of the Treaty;
(b) an order made pursuant to s 19(9)(a) of the Act committing a person to prison to await either the event specified in s 19(9)(a)(i) or the event specified in s 19(9)(a)(ii) is to cease to have effect upon Australia becoming obliged to discharge the person from custody in accordance with Article XIII(2) of the Treaty; and
(c) the definition of “eligible person” in s 22(1)(b) of the Act does not include a person who has, since being committed to prison pursuant to an order made under s 19(9) of the Act, become a person who Australia is obliged to discharge from custody in accordance with Article XIII(2) of the Treaty.
Winkler v Director of Public Prosecutions
147 The Minister submitted that construing the Act in this way would be contrary to what the Full Court decided in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 (Winkler). It was said that Winkler supported the proposition that if Australia becomes obliged to discharge a person from custody in the course of extradition proceedings under the Act and yet does not carry out the obligation, a subsequent determination pursuant to s 22 to surrender the person to a requesting State is not invalidated. In order to deal with that submission it is necessary to give some consideration to the legal and factual context in which Winkler was decided.
148 Winkler was decided under the now-repealed Extradition (Foreign States) Act 1966 (Cth) (Old Act) which contained similar provisions to those now contained in the Act. Although the Treaty was in force at the relevant time, the case was decided on its terms unamended by the Protocol. Article XI(1) of the unamended Treaty required all requests for extradition to be made through the diplomatic channel. Articles XI(2) and (3) specified the information and documents that must accompany a request for the extradition of a person. The mandated documents included a copy of the warrant or order of arrest issued in the requesting State for the arrest of the person for the extradition offence: Article XI(3)(a).
149 Article XII of the Treaty, as it then stood, provided that, in cases of urgency, a party to the Treaty may request the provisional arrest of a person pending the presentation of a request for extradition. Such a request was to be accompanied by a more limited range of documents than those specified in Article XI. Articles XII(4) and (5) assumed some importance in Mr Winkler’s case. They provided:
(4) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article XI has not been received.
(5) Paragraph (4) of this Article shall not prevent the institution of proceedings with a view to extraditing the person sought if the request is subsequently received.
150 The United States District Court issued a warrant for Mr Winkler’s arrest on 11 June 1987. I will refer to that warrant as the first USA warrant. The USA then made a request through diplomatic channels for Mr Winkler’s provisional arrest pursuant to Article XII of the Treaty. I will refer to that request as the first extradition request.
151 On the application of the USA, Mr Winkler was arrested on 12 September 1987 pursuant to a warrant issued by a magistrate under s 16 of the Old Act. Upon being apprehended under the s 16 warrant, Mr Winkler was brought before a magistrate and remanded on bail pursuant to s 17(2) of the Old Act. The USA then made a formal request for Mr Winkler’s extradition on 20 October 1987, supported by the first USA warrant. On the same day, the Attorney-General issued a notice under s 15(1)(b) of the Old Act, which is relevantly equivalent to s 16 of the Act. I will refer to that notice as the first s 15 notice.
152 The application for extradition was heard by the magistrate on 15 and 16 February 1988. At that hearing, it became apparent to the magistrate that the first USA warrant did not comply with the requirements of Article XI(3) of the Treaty, although he made no determination about that issue at that stage of the hearing. The hearing was adjourned to 9 March 1988. In the period of the adjournment, the United States District Court issued a fresh warrant which did comply with the Treaty. I will refer to that warrant as the second USA warrant. The second USA warrant was received by Australian authorities on 8 March 1988. On the same day, the USA made a second request, based on the second USA warrant, for Mr Winkler’s extradition. The documents accompanying the second extradition request fulfilled the requirements of Article XI(3) in that they included the second USA warrant. It is to be noted, however, that the documents fulfilling the requirements of Article XI(3) were received by Australia nearly six months after Mr Winkler was first apprehended.
153 When the matter came back before the magistrate on 9 March 1988, he ordered a one week adjournment. On 16 March 1988 the matter was argued before the magistrate by reference to the first USA warrant, the first extradition request and the first s 15 notice. The magistrate held that the first USA warrant did not comply with the Treaty and that the first s 15 notice was therefore invalid. As a consequence, the magistrate held, correctly, that he had no jurisdiction to proceed further. Counsel for the USA then tendered the second USA warrant.
154 The consequence of the delay between the date of Mr Winkler’s apprehension and the provision to Australia of the second USA warrant was that Australia was obliged, under Article XII(4) of the Treaty to discharge Mr Winkler from custody. However, rather than discharging the recognizances upon which Mr Winkler was admitted to bail, the magistrate held that he had the discretion pursuant to s 17(5) of the Old Act to extend the time in which a new s 15 notice could be issued, based upon the second extradition request, and that he had the power to continue Mr Winkler’s bail. A second s 15 notice was then issued by the Attorney-General on 22 March 1988. The extradition proceedings continued in relation to the second USA warrant, the second extradition request and the second s 15 notice, culminating in a determination by the magistrate to surrender Mr Winkler to the USA.
155 Mr Winkler challenged the validity of the surrender determination on the grounds that he was entitled to have been set at liberty no later than 16 March 1988 by reason of operation of Article XII(4) of the Treaty.
156 The magistrate’s power to make the surrender determination was conditioned by these opening words of s 17(6) of the Old Act:
(6) If the person was apprehended under a warrant issued in pursuance of an authority by the Attorney-General in a notice under paragraph 15(1)(a) or the Magistrate receives a notice by the Attorney-General under s 15(1)(b).
157 Section 15(1)(b) applied only “if a warrant for the apprehension of the fugitive has been issued under s 16 and a person has been apprehended under the warrant”. Mr Winkler contended that the warrant issued by the magistrate under s 16 of the Old Act pursuant to which he had been originally apprehended had no “continuing effect” after 16 March 1988. On Mr Winkler’s submission, it followed that the second s 15 notice was not a valid notice issued by the Attorney-General under s 15(1)(b) and that the essential preconditions in s 17(6) of the Old Act did not exist.
158 The Full Court (Wilcox and O’Loughlin JJ) held that Mr Winkler was entitled to be set at liberty on 16 March 1988 by virtue of Article XII(4) of the Treaty. Although s 17(5) of the Old Act conferred a discretion on the magistrate to extend the time in which the Attorney-General could provide the magistrate with a notice pursuant to s 15 of the Old Act, nothing in the Old Act made provision for the extension of time specified in Article XII(4) of the Treaty in which the USA could furnish information to Australia following Mr Winker’s provisional arrest. On that issue, Wilcox and O’Loughlin JJ said (at 90):
It is not difficult to see how Mr Williams was misled into thinking that s 17(5) of the Act authorised him to extend the time during which Mr Winkler might be held on bail. If the terms of Art XII( 4) of the Treaty conflicted with those of s 17(5) a nice question of construction would arise. As a general proposition it is correct to say that, wherever there is a conflict between the terms of the Act and that of the Treaty, the Treaty is to prevail. This is the effect of reg 3 making the application of the Act to the United States subject to the Treaty. Although the notion that the operation of an Act may be limited by the terms of a regulation would normally be heretical, it was a notion specifically countenanced by s 10 of the Extradition (Foreign States) Act. And this course was often taken in relation to extradition treaties, so that it was commonplace for an extradition treaty to prevail over this Act. Section 17(5)(b) was directed only to time limits fixed by a treaty. If it had dealt with a procedural requirement identical to that contained in Art XII(4), a question would arise as to whether the general rule that the Act applied subject to the provisions of the Treaty was not itself subject to the exception that, notwithstanding the mandatory nature of Art XII(4), the magistrate had a discretion to extend time. The argument would be that, otherwise, s 17(5)(b) would be otiose and that, to this limited extent, the Australian Parliament had reserved for itself the final word.
However, although they were likely to be in practice closely connected, the procedures referred to in Art XII(4) and s 17(5)(b) were not identical. Article XII(4) is concerned with the delivery of documents by the requesting State.
159 Notwithstanding Mr Winkler’s entitlement to be released from bail, the Full Court identified two fallacies in Mr Winkler’s argument that the surrender determination ultimately made in response to the second extradition request was thereby invalidated (at 97- 98):
… The first is to treat a warrant as something which may have a continuing life after its execution. The form of a warrant of apprehension under s 16 of the Extradition (Foreign States) Act was prescribed by the regulations made under that Act. The warrant issued by Mr Gilbert followed that form. The command of the warrant, which was addressed to all members and special members of the Australian Federal Police and all members of the Police Force of each State and Territory, was ‘to apprehend [Mr Winkler] and bring him, as soon as practicable before a Magistrate in the State or Territory in which he is apprehended to be dealt with according to law’. Such a warrant continues in force until the person named therein is apprehended and brought before a magistrate. It constitutes the authority by which the person is detained. But, once the person is brought before the magistrate, the warrant has no continuing effect. Its work is done. Thereafter, the person is under the control of the magistrate, who derives his power not from the warrant but from the statute; in particular, from s 17.
The second fallacy in the appellant’s argument flows from the first. If a s 16 warrant expires when the fugitive is brought before the magistrate, there can be no question of it still being in force when the Attorney-General issues a notice under s 15(1)(b). That paragraph applies only to cases where the person has already been apprehended under a s 16 warrant. Contrary to the appellant’s submission, the condition contained in the opening words of s 15(1)(b) involves merely a matter of history: has the person been apprehended under s 16? By this we mean, relevantly apprehended. To take up an illustration given by counsel, it would not be enough that the person was apprehended under s 16 some years before, was extradited and subsequently released, returned to Australia, and is now in custody for some unrelated reason
160 On the basis of these statements in Winkler, the Minister in the present case submitted that Mr Lobban’s committal to prison pursuant to s 19(9) of the Act was to be treated as an unchangeable historical fact. Mr Lobban was an “eligible person” as that phrase is defined in s 22(1) of the Act, because he had, as a matter of incontrovertible fact, “been committed to prison … by order made under subsection 19(9)”. The jurisdictional fact preconditioning the exercise of the Minister’s powers under s 22 of the Act was unaffected, so it was submitted, by any subsequent obligation Australia may have had under Article XIII of the Treaty to discharge Mr Lobban from custody.
161 The Minister’s submission ignores critical differences between Mr Lobban’s circumstances and those arising in Winkler. More importantly, the submission also ignores the operation and effect of Regulation 4.
162 In Winkler it was not within the power of the magistrate to make any surrender determination in response to the first extradition request. However, Article XII(5) of the Treaty as it then stood enabled the USA to make a second request for Mr Winkler’s extradition notwithstanding the termination of the first request. The second request fulfilled the requirements of the Treaty and the Act and the surrender determination was made in response to that request. The original means by which Mr Winkler had been brought before the magistrate did not affect the magistrate’s powers to exercise powers under the Old Act in respect of the second s 15 notice issued in response to the second extradition request. Howsoever Mr Winkler originally came before the magistrate in the first instance, the magistrate had jurisdiction to make a surrender determination in respect of the second request.
163 In Mr Lobban’s case, the surrender determination made by the Minister on 29 October 2014 was in respect of the same extradition request affected by the USA’s failure to provide information requested by Australia in the time specified in the September letter. The Minister’s jurisdiction to determine that request depended upon the request and its associated proceedings not having been terminated. As I have said, on the proper construction of the Treaty, that request must be taken to have terminated upon Australia becoming obliged to discharge Mr Lobban from custody. Whilst it is true to say that the fact of Mr Lobban’s committal to prison was “historical” there was nothing “historical” about Australia’s continuing obligation to discharge him from custody at the time that the Minister made the surrender determination. The obligation was ongoing at that time and, in my opinion, it remains ongoing. The Act must be read subject to such limitations, conditions, qualifications and exceptions as are necessary to give effect to that ongoing obligation.
164 Article XIII(3) provides that Mr Lobban’s release from custody would not bar the USA from submitting another request in respect of the same extradition offences. Had that been done, the factual and legal context of Mr Lobban’s case would have aligned more closely with those in Winkler.
165 I would uphold the ground of appeal expressed in paragraph 3 of the Supplementary Notice of Appeal, that is, “in order to give effect to Art XIII of the Treaty, subs 22(2) of the Act was necessarily subject to a limitation, condition, exception or qualification that upon the appellant becoming entitled to be discharged from custody in the circumstances identified in Art XIII of the Treaty, the extradition request from the US was terminated that the Minister no longer had jurisdiction to determine whether the appellant was to be surrendered”.
166 Before concluding, it is necessary to briefly address the grounds stated in paragraphs 4 and 5 of the Supplementary Notice of Appeal. Those grounds should be rejected. They presuppose the conferral of power on the Minister under s 22(2) of the Act, but contend that the existence of Australia’s obligations arising under Article XIII conditions the manner in which the power is to be exercised. The approaches to statutory construction advanced in those grounds do not give adequate effect to Article XIII of the Treaty which, I have found, contemplates that the extradition proceedings against a person terminate all together and that the person be discharged from custody in circumstances where Article XIII(2) of the Treaty has been enlivened. The better approach is to read the definition of “eligible person” as being subject to the qualification I have identified, such that the jurisdictional fact preconditioning the existence of the power conferred by s 22 of the Act is absent in those circumstances.
CONCLUSION
167 I would allow the appeal.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. |
Associate:
Dated: 22 August 2016
