FEDERAL COURT OF AUSTRALIA

Brock v Minister for Home Affairs [2010] FCA 1301

THE COURT ORDERS THAT:

1.    The applicant’s application to amend his Application in accordance with the proposed Further Amended Application which was Marked for Identification–2 at the hearing of this proceeding on 16 March 2010 be refused.

2.    The Application be dismissed.

3.    The applicant pay the respondent’s costs of and incidental to the Application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The applicant (Mr Brock) is a citizen of the United States of America (the US). In 1999, Mr Brock was extradited from the Netherlands to Australia to face prosecution for conspiring to import cannabis into Australia. He was convicted of that offence and sentenced to 12 years’ imprisonment. He was released on parole on 17 March 2005.

2    On the day of his release, Mr Brock was arrested by the Australian Federal Police pursuant to a provisional warrant issued in response to a request from the US under s 12 of the Extradition Act 1988 (Cth) (the Act) and remanded in custody at Silverwater Metropolitan Remand and Reception Centre. He has been in custody there ever since.

3    The US presented a formal request to the Australian Government for Mr Brock’s extradition on 9 May 2005. In response to that request, on 12 May 2005, the respondent (the then Minister for Justice and Customs (the Minister)), issued a Notice of Receipt of Extradition Request pursuant to s 16 of the Act (the s 16 Notice). The s 16 Notice recorded that the extradition request had been made in respect of two offences allegedly committed by Mr Brock in the US involving conspiracy to distribute marijuana.

4    On 7 September 2005, Mr Brock filed an Application in this Court seeking judicial review of the Minister’s decision to issue the s 16 Notice (NSD 1612 of 2005). In that proceeding, he also sought a declaration that the s 16 Notice is invalid.

5    While that application was pending in the Court, the extradition process continued. There was a s 19 hearing before a NSW magistrate on 24 November 2005. On that day, at the conclusion of that hearing, the magistrate determined that Mr Brock was eligible for surrender to the US and ordered the issue of a warrant of committal pursuant to s 19(9)(a) of the Act. In the determination which she made on that day, the magistrate specified the extradition offences in relation to which Mr Brock was held to be eligible for surrender.

6    On 25 November 2005, proceeding NSD 1612 of 2005 was dismissed by Wilcox J by consent.

7    On 8 December 2005, Mr Brock commenced a second proceeding in this Court (NSD 2442 of 2005). In that proceeding, Mr Brock sought review of the magistrate’s s 19 order made on 24 November 2005 (the s 21 proceeding). That proceeding was dismissed by Moore J on 9 May 2006. Mr Brock’s appeal to the Full Court was dismissed on 19 January 2007. On 31 August 2007, the High Court dismissed Mr Brock’s application for special leave to appeal from the orders of the Full Court.

8    On 25 September 2007, the Minister (whose formal title was by then Minister for Home Affairs) determined pursuant to s 22 of the Act that Mr Brock was to be surrendered to the US and issued a warrant for his surrender pursuant to s 23 of the Act.

9    In early October 2007, Mr Brock commenced two further proceedings in this Court (NSD 2003 of 2007 and NSD 2004 of 2007). In NSD 2003 of 2007, Mr Brock challenged the Minister’s determination under s 22 of the Act and the consequential issue of the warrant under s 23 of the Act. In NSD 2004 of 2007, Mr Brock sought judicial review of the Minister’s decision to issue the s 16 Notice (on a different basis of invalidity from that which he had argued in NSD 1612 of 2005).

10    In NSD 2003 of 2007, the Minister conceded that, in making the s 22 and s 23 determinations, he had not accorded procedural fairness to Mr Brock. For that reason, on 19 December 2007, Flick J made consent orders in that proceeding quashing the s 22 and s 23 determinations and ordering that they be remitted to the Minister and reconsidered according to law.

11    On 24 December 2007, Flick J dismissed proceeding NSD 2004 of 2007 as an abuse of process pursuant to O 20 r 5 of the Federal Court Rules 1979 (Cth) (Brock v Minister for Justice and Customs (2007) 243 ALR 315). On 17 September 2008, the Full Court (by majority) dismissed an appeal from that decision of Flick J (Brock v Minister for Home Affairs (2008) 170 FCR 434). On 31 July 2009, the High Court refused an application for special leave to appeal from the Full Court’s decision.

12    On 16 September 2009, the Minister made a second determination under s 22 of the Act that Mr Brock should be surrendered to the US (the Minister’s s 22 determination) and issued a surrender warrant under s 23 giving effect to that determination.

13    On 21 September 2009, Mr Brock commenced the present proceeding. In this proceeding, he seeks judicial review of the Minister’s s 22 determination and his consequential decision to issue a warrant under s 23 of the Act, as well as constitutional writ relief requiring the Minister to reconsider whether to extradite Mr Brock. He also claims a declaration that the s 16 Notice is invalid.

The Applicant’s Claims

14    In his proposed Amended Application dated 25 November 2009, Mr Brock seeks:

(1)    A writ of certiorari directed to the Minister quashing the Minister’s s 22 determination;

(2)    A writ of certiorari directed to the Minister quashing the warrant signed by the Minister on 16 September 2009 pursuant to s 23 of the Act;

(3)    Declarations that the s 16 Notice is:

(a)    invalid; and

(b)    not arguably valid;

(4)    A writ of mandamus directed to the Minister requiring the Minister to make the determination under s 22 of the Act according to law; and

(5)    An order that the Minister pay Mr Brock’s costs.

15    The grounds relied upon by Mr Brock to support the above claims are enumerated in Attachment A to the Amended Application in the following terms:

In respect of the relief claimed in paragraphs 1 and 4 [the relief directed to the Minister’s s 22 determination]:

1.    In considering the applicant’s contention that the s 16 notice issued on 12 May 2005 was invalid, the respondent constructively failed to exercise his jurisdiction and/or committed an error or errors of law by:

a.    being satisfied that the s 16 notice was “indeed valid”;

b.    being satisfied that the argument against the validity of the s 16 notice was unsuccessfully argued by the applicant;

c.    being satisfied that the argument against the validity of the s 16 notice was dismissed by the Federal Court; and/or

d.    considering that it is arguable that the material placed before the Minister for Justice and Customs in his consideration of whether to issue the s 16 notice dated 12 May 2009 would have satisfied the test in Williams v Minister for Justice and Customs (2007) 157 FCR 286.

…

In respect of the relief claimed in paragraph 2 [the relief directed to the issue of the warrant]:

2.    In the absence of a determination pursuant to s 22 of the Act there was no authority for the issue of the s 23 warrant signed by the respondent on 16 September 2009.

In respect of the relief claimed in paragraph 3 [independent declaratory relief to the effect that the s 16 Notice is invalid]:

3.    The declaratory relief is sought in aid of resolving the controversy between the parties as to the validity of the s 16 notice.

16    The relief claimed by Mr Brock in this version of his Application is claimed pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 21 and s 23 of the Federal Court of Australia Act 1976 (Cth).

17    The Amended Application filed by Mr Brock on 25 November 2009 is the fourth Amended Application sought to be filed by him in this proceeding. Apart from an inconsequential difference in the name of the lodging party, it is in the same terms as the document dated 16 February 2010 which I marked as MFI-2 at the hearing.

18    On 21 September 2009, Mr Brock filed the first (original) Application in this proceeding. He subsequently amended that Application on 14 October 2009 and again on 26 October 2009. Mr Brock then attempted to file a further Amended Application in the Registry on 9 November 2009 and then in Court on 20 November 2009. On 20 November 2009, I directed Mr Brock to file and serve an amended Application in the form upon which he would seek to rely at the final hearing of this proceeding and adjourned Mr Brock’s application for leave to amend his Application to the final hearing, reserving to the Minister the right to oppose the amendment notwithstanding the fact that it may be filed in accordance with my order.

19    The grounds relied upon by Mr Brock in support of the relief which he claims in MFI2 are all new. None of the grounds specified in MFI2 appeared in previous versions of Mr Brock’s Application nor did they appear in the affidavits sworn by him in support of those versions. Furthermore, Mr Brock did not include in MFI2 any of the grounds previously relied upon by him in support of the relief claimed by him in this proceeding.

20    At the final hearing of this proceeding, Mr Brock personally confirmed that the case which he seeks to make in the present proceeding is confined to the case which is put forward in MFI2. Mr Brock no longer relies upon any of the many grounds advanced by him in earlier versions of his Application and in the affidavits sworn by him in support. For these reasons, it is not now necessary to traverse those grounds.

21    The Minister opposes Mr Brock’s application for leave to amend on the grounds of futility and abuse of process. If Mr Brock is not given leave to amend, his case will fail. Although he sought to challenge the s 16 Notice in earlier versions of his Application filed in this proceeding, Mr Brock has chosen not to press the claims which he made in those versions and not to rely upon any of the grounds specified by him in those earlier versions.

22    The issues before the Court are:

(a)    Whether leave to amend in accordance with MFI2 should be granted to Mr Brock. If leave to amend is refused, Mr Brock’s Application must be dismissed. Embedded in the Court’s consideration of this issue are the following sub-issues:

(i)    Whether the amendment sought by Mr Brock is futile or constitutes an abuse of process; and

(ii)    Whether the Minister’s s 22 determination and his consequential action in issuing a surrender warrant under s 23 of the Act are vitiated by jurisdictional error for the reasons specified in pars 1 and 2 of the grounds set out in Attachment “A” to MFI2;

(b)    In the event that leave to amend is granted, should Mr Brock’s Application be dismissed; and

(c)    Whether, irrespective of the outcome of the Court’s consideration of Mr Brock’s challenge to the s 22 determination and the consequential issue by the Minister of a surrender warrant under s 23 of the Act, Mr Brock is entitled to a declaration that the s 16 Notice is invalid.

23    To some extent, issues (a), (b) and (c) overlap.

24    Before addressing these issues, it is useful to recount the stages of the extradition process laid out under the Act.

The Scheme Established under the Act

25    The Act provides for four stages in extradition proceedings:

(1)    Commencement;

(2)    Remand;

(3)    Determination by a magistrate of eligibility for surrender; and

(4)    Executive determination that the person is to be surrendered.

These stages have been recognised and explained in a number of authorities including Vasiljkovic v Commonwealth (2006) 227 CLR 614 at [29] (p 628) per Gleeson CJ, [55]–[57] (p 636) per Gummow and Hayne JJ and by Gummow J in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 546–547.

26    The stages were summarised by the Full Court in Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389:

In summary form, the scheme is as follows: The commencement of proceedings is by the issue of a provisional warrant under s 12(1) or by the giving of a notice under s 16(1). Once arrested, the person is required by s 15 to be taken before a magistrate and remanded in custody or on bail for such period as may be necessary for eligibility proceedings to be taken under s 19. Where a person is on remand under s 15 and the Attorney-General has given a notice under s 16(1), provision is made under s 19 for a magistrate to conduct proceedings to determine whether the person is eligible for surrender. If eligibility is so determined by the magistrate, provision is made by s 22 for the Attorney-General to decide whether the person is to be surrendered.

27    Mr Brock has now reached the last stage of the process. The Minister has made a determination that he is to be surrendered pursuant to s 22 of the Act and has issued a warrant under s 23 of the Act.

28    Sections 16, 19, 21, 22 and 23 of the Act relevantly provide:

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, state that the request has been received.

(2)     The Attorney-General shall not give the notice:

(a)    unless the Attorney-General is of the opinion:

(i)     that the person is an extraditable person in relation to the extradition country; and

(ii)     that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia; or

(b)     if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

...

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 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 considers that the person and the extradition country have had reasonable time in which to prepare for the conduct of such proceedings;

the magistrate 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.

(2)     For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

(a)     the supporting documents in relation to the offence have been produced to the magistrate;

(b)     where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents—those documents have been produced to the magistrate;

(c)     the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and

(d)     the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

…

(9)     Where, in the proceedings, the magistrate 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 shall:

(a)     by warrant in the statutory form, order that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to 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 in the warrant 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 has determined that the person is eligible for surrender and make a copy of the record available to the person and the Attorney-General.

21    Review of magistrate’s order

(1)    Where a magistrate of a State or Territory makes an order under subsection 19(9) or (10) in relation to a person whose surrender is sought by an extradition country:

(a)    in the case of an order under subsection 19(9)—the person; or

(b)    in the case of an order under subsection 19(10)—the extradition country;

may, within 15 days after the day on which the magistrate makes the order, apply to the Federal Court, or to the Supreme Court of the State or Territory, for a review of the order.

(2)    The Court may, by order:

(a)    confirm the order of the magistrate; or

(b)    quash the order and direct a magistrate to:

(i)    in the case of an order under subsection 19(9)—order the release of the person; or

(ii)    in the case of an order under subsection 19(10)—order, by warrant in the statutory form, that the person be committed to prison to await surrender under a surrender warrant or temporary surrender warrant or release pursuant to an order under subsection 22(5).

(3)    The person or the extradition country, whether or not the person or country was the applicant for review under subsection (1), may appeal to the Full Court of the Federal Court from the order of the Federal Court or the Supreme Court.

(4)    The person or the extradition country is not entitled to appeal to the Full Court more than 15 days after the day on which the order of the Federal Court or the Supreme Court is made.

(5)    The High Court shall not grant special leave to appeal against the order of the Full Court made on the appeal referred to in subsection (3) if the application for special leave is made more than 15 days after the day on which the order of the Full Court is made.

(6)    Where the person or the extradition country:

(a)    applies under subsection (1) for a review of an order;

(b)    appeals under subsection (3) against an order made on that review; or

(c)    appeals to the High Court against an order made on that appeal;

the following provisions have effect:

(d)    the court to which the application or appeal is made shall have regard only to the material that was before the magistrate;

(e)    if, because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has been released—the court to which the application or appeal is made may order the arrest of the person;

(f)    if:

(i)    because of the order referred to in paragraph (a), (b) or (c), as the case requires, the person has not been released; or

(ii)    the person has been arrested under an order made under paragraph (e);

the court to which the application or appeal is made may:

(iii)    order that the person be kept in such custody as the court directs; or

(iv)    if there are special circumstances justifying such a course, order the release on bail of the person on such terms and conditions as the court thinks fit;

until the review has been conducted or the appeal has been heard;

(g)    if the court to which the application or appeal is made determines that the person is eligible for surrender, within the meaning of subsection 19(2), in relation to an extradition offence or extradition offences—the court shall include in its judgment on the review or appeal a statement to that effect specifying the offence or offences.

22    Surrender determination by Attorney-General

(1)    In this section

“eligible person” means a person who has been committed to prison:

(a)    by order of a magistrate made under section 18; or

(b)    by order of a magistrate made under subsection 19(9) or required to be made under subparagraph 21(2)(b)(ii) (including by virtue of an appeal referred to in section 21), being an order in relation to which no proceedings under section 21 are being conducted or available.

“qualifying extradition offence”, in relation to an eligible person, means any extradition offence:

(a)    if paragraph (a) of the definition of eligible person applies—in relation to which the person consented in accordance with section 18; or

(b)    if paragraph (b) of the definition of eligible person applies—in relation to which the magistrate referred to in that paragraph or the court that conducted final proceedings under section 21, as the case requires, determined that the person was eligible for surrender within the meaning of subsection 19(2).

(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:

(a)    the Attorney-General is satisfied that there is no extradition objection in relation to the offence;

(b)     the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture;

(c)     where the offence is punishable by a penalty of death—by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable:

(i)    the person will not be tried for the offence;

(ii)    if the person is tried for the offence, the death penalty will not be imposed on the person;

(iii)    if the death penalty is imposed on the person, it will not be carried out;

(d)    the extradition country concerned has given a speciality assurance in relation to the person;

(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.

…

23    Surrender Warrants

Where the Attorney-General determines under subsection 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section.

29    As noted by Lindgren and Tracey JJ in Brock 170 FCR 434 at [11] (p 438), although the Act refers to the Attorney-General, the Minister, by virtue of sharing the responsibilities (including those pertaining to extradition) in the Attorney-General’s portfolio, is also able to exercise the Attorney-General’s powers under the Act (see s 19A of the Acts Interpretation Act 1988 (Cth), and Mokbel v Attorney-General (Cth) (2007) 162 FCR 278 at [22]–[29] (p 284–286)).

The Applicant’s Submissions

30    Counsel for Mr Brock submitted that it was open to Mr Brock in this proceeding to challenge the validity of the s 16 Notice and, as a consequence, the Minister’s s 22 determination and his related decision to issue a warrant pursuant to s 23 of the Act. Counsel therefore submitted that I should allow the amendment sought by Mr Brock and then grant the relief which he seeks. In support of Mr Brock’s amendment application and in support of the case sought to be made by Mr Brock in MFI2, Counsel submitted that:

(a)    The s 16 Notice is invalid because the Minister did not have before him at the time that he decided to sign and issue that notice a statement of what is alleged by the US to have been actually done or omitted by Mr Brock being the conduct which is said to constitute the offence or offences with which he stands charged. In the present case, all that the Minister had was a mere restatement of the elements of the charges in respect of which extradition is sought. This is not sufficient (Williams v Minister for Justice and Customs (2007) 157 FCR 286 at [43]–[51] (pp 296–298)). The legal consequence of these facts and circumstances is that the Minister’s decision to issue the s 16 Notice is a nullity and the Notice itself is invalid. This attack on the s 16 Notice is different from the attack made upon that Notice in earlier proceedings between Mr Brock and the Minister;

(b)    No decision-maker involved in the attempts by the US since 2005 to extradite Mr Brock to the US has determined the validity of the s 16 Notice;

(c)    None of the judgments in this Court delivered in respect of the US’ attempts to extradite Mr Brock has determined the validity of the s 16 Notice. In particular, the majority in Brock 170 FCR 434 assumed but did not decide that the s 16 Notice was invalid;

(d)    Before the Minister made his s 22 determination, Mr Brock forwarded to the Minister detailed submissions in writing in support of his contention that the s 16 Notice is invalid. In those submissions, Mr Brock made clear that he advanced those submissions in support of his further contention that, because the s 16 Notice was invalid, the Minister could not and, in any event, should not make a determination under s 22 of the Act that Mr Brock be surrendered to the US. The Minister was bound to consider Mr Brock’s written submissions and, in particular, the validity of the s 16 Notice;

(e)    The Minister was bound to consider the contentions made by Mr Brock in his written submissions because:

(i)    The issue of a valid s 16 notice was a statutory pre-condition to the statutory process by which Mr Brock became an “eligible person” within the meaning of s 22 of the Act; and

(ii)    Those contentions were plainly relevant to the exercise of the Minister’s discretion under s 22(3)(f) of the Act;

(f)    The Minister’s s 22 determination is infected by jurisdictional error. The steps in this argument are:

(i)    In the absence of an explicit statement from the Minister of his reasons for making that determination, the department’s submission to the Minister dated 11 September 2009 by which officers of the department sought a decision from the Minister (the departmental submission) should be inferred to constitute a complete statement of the Minister’s reasons for making his s 22 determination or, at the very least, should be held to be a statement of some of the material reasons of the Minister for making his s 22 determination. It should be regarded as recording the important premises or assumptions upon which the Minister came to approach the matter; and

(ii)    The departmental submission was critically flawed. It contained wrong statements of fact and law concerning the validity of the s 16 Notice and the way in which, in earlier judgments, this Court had addressed and dealt with Mr Brock’s contention that the s 16 Notice was invalid;

(g)    The exercise by the Minister of the discretion reposed in him under s 22 of the Act miscarried because it was exercised upon the basis of a fundamental or material misapprehension as to the facts and the law;

(h)    If the departmental submission does not contain the Minister’s reasons for his s 22 determination or, at least, a statement of the important reasons for that determination, there is no evidence that the Minister considered Mr Brock’s written submissions. If the Minister did not consider those submissions, there was a constructive failure on his part to exercise the discretion reposed in him by s 22 of the Act; and

(i)    Whatever be the disposition of Mr Brock’s challenge to the Minister’s s 22 determination, he is nonetheless entitled to a declaration that the s 16 Notice is invalid. The making of such a declaration has utility even if the Court should decide that the Minister’s s 22 determination should not be set aside.

The Minister’s Submissions

31    The Minister opposed Mr Brock’s application for leave to amend his Application in accordance with MFI-2. The Minister contended that the case now sought to be made by Mr Brock is futile and an abuse of process. The Minister submitted that, in the event that the Court did not grant leave to Mr Brock to amend his Application in accordance with MFI2, as night follows day, the present proceeding must be dismissed because the only grounds now pressed by Mr Brock in support of the claims for relief which he makes in the present proceeding are those set out in MFI2. All other grounds have now been abandoned.

32    The Minister submitted that:

(a)    The s 16 Notice was found by the Full Court in Brock 170 FCR 434 to be ex facie valid. The magistrate exercised power under s 19 of the Act upon the basis that the s 16 Notice is valid (Brock 170 FCR 434 at [35] (pp 441–442) and [65]–[66] (p 446)). The same may be said of the basis upon which Moore J conducted a review of the magistrate’s decision under s 21 of the Act;

(b)    The s 16 Notice is spent (Brock 170 FCR 434 at [77] (p 448));

(c)    For reasons (a) and (b) above, this Court has already determined that the s 16 Notice is valid;

(d)    Because Mr Brock has raised the validity of the s 16 Notice in previous proceedings in this Court and lost those proceedings, it is an abuse of process for him to raise the validity of that Notice in the current proceeding (Brock 170 FCR 434 at [64]–[76] (pp 446–448));

(e)    In any event, the Minister was not bound to form a view as to whether the s 16 Notice was valid for the purpose of making his s 22 determination. The validity of that Notice was not a mandatory consideration which had to be taken into account by the Minister in making his s 22 determination. The mere fact that Mr Brock had argued that the s 16 Notice was invalid in the written submissions which he sent to the Minister in 2009 in connection with the Minister’s consideration of his power under s 22 of the Act did not convert the issue into a matter which the Minister was required to take into account in making his s 22 determination;

(f)    The Minister’s s 22 determination is not vitiated by jurisdictional error. The issue of a valid s 16 notice is not a pre-condition to surrender. Even if the s 16 Notice were held to be invalid, that conclusion would not preclude the Minister from exercising his discretion in favour of surrendering Mr Brock to the US;

(g)    In any event, before he issued the s 16 Notice, the Minister was provided with information which more than adequately satisfied the test laid down by the Full Court in Williams. That information was contained in the attachments to the departmental submission;

(h)    Leave to amend should be refused because there is no evidence of several matters which are integral to the case which Mr Brock now seeks to make. The assertions made by Mr Brock in respect of which there is no evidence are that, in making his s 22 determination:

(i)    The Minister was satisfied that the s 16 Notice was valid;

(ii)    The Minister was satisfied that Mr Brock had unsuccessfully argued in previous proceedings that the s 16 Notice was invalid;

(iii)    The Minister was satisfied that Mr Brock’s argument that the s 16 Notice was invalid had been dismissed by this Court in previous proceedings; and

(iv)    The Minister’s view (if he had formed any view at all on the matter) as to whether the material placed before him for the purpose of obtaining the issue of the s 16 Notice satisfied the test in Williams.

(i)    The Minister was not required to give reasons for making his s 22 determination. He did not give reasons for that determination. His reasons for making that determination cannot be equated with the reasoning contained in the departmental submission. The reasons which a Minister has for making a particular decision cannot be assumed to be the same as the reasons advanced by departmental officers to him or her in support of their recommendation that a particular decision be made. Whether a particular document should be regarded as setting out a decision-maker’s reasons is a question of fact. In this case, par 49 of Attachment E to the departmental submission should not be found by the Court to contain the Minister’s reasons for his s 22 determination; and

(j)    Even if the departmental advice given to the Minister for the purpose of assisting him to decide whether Mr Brock should be surrendered pursuant to s 22 of the Act was wrong and the Minister made his determination on the basis of that wrong advice, the error was an error within jurisdiction. It did not vitiate the Minister’s s 22 determination.

Consideration and Decision

Abuse of Process and Futility

33    In MFI2, Mr Brock seeks to mount yet another challenge to the s 16 Notice. He contends that the s 16 Notice is invalid and that therefore the Minister’s 22 determination and s 23 decision are of no effect.

34    The question of the s 16 Notice’s validity is one that has been agitated previously by Mr Brock both before Flick J in Brock 243 ALR 315 and in the Full Court in Brock 170 FCR 434.

35    Upon the assumption that the s 16 Notice is invalid, Mr Brock submits that all subsequent steps in the extradition process (including the magistrate’s determination of his eligibility for surrender under s 19 of the Act and the Minister’s s 22 determination) are also invalid and of no effect. Mr Brock again seeks to rely on the reasoning in Williams. He argues that proper and adequate particulars of his conduct were not before the Minister when the Minister issued the s 16 Notice, that the Minister could not therefore form the opinion that the dual criminality requirement was met as required under s 16(2)(a)(ii) of the Act and that, for these reasons, the Minister’s decision to issue the s 16 Notice was a nullity. Though the purpose to which Mr Brock ultimately seeks to put his arguments directed to establishing the invalidity of the s 16 Notice has changed, the arguments nonetheless incorporate the line of argument pursued by Mr Brock in the earlier proceedings (Brock 243 ALR 315 and Brock 170 FCR 434).

Abuse of Process in Principle

36    The foundation for the Court’s discretion to stay (and, by extension, dismiss) proceedings on the basis of abuse of process was summarised in Walton v Gardiner (1993) 177 CLR 378 at 392–393 (per Mason CJ, Deane and Dawson JJ) (citations omitted):

The inherent jurisdiction of a superior Court to [dismiss] its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a Court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that Court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings….

37    As noted by Lindgren and Tracey JJ at [74] (p 447) of their Reasons in Brock 170 FCR 434, the concept of abuse of process is not limited by reference to the doctrines of res judicata, issue estoppel and Anshun estoppel but rather is predicated on broader public policy notions, in particular the public interest that there be finality in litigation and that judicial resources not be wasted or put to purposes unrelated to the determination of genuine disputes (see Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58]–[70], and the cases therein cited by French J (as he then was)).

The Decision of the Full Court in Brock 170 FCR 434

38    In Brock 170 FCR 434, the majority comprised Lindgren and Tracey JJ. Gray J dissented.

39    Gray J held that Mr Brock’s proceeding before Flick J did not constitute an abuse of process. At [4]–[8] (pp 436–437), his Honour observed that:

(a)    The ground upon which Mr Brock had challenged the s 16 Notice before Flick J was different from the ground upon which he had challenged that Notice in NSD 1612 of 2005. His second challenge was based upon the reasoning in Williams. The decision in Williams was published on 22 March 2007, after Wilcox J had dismissed NSD 1612 of 2005. Therefore, Williams was not available as an authority before NSD 1612 of 2005 was dismissed.

(b)    It was at least arguable that:

(i)    The opportunity for Mr Brock to challenge the s 21 decision of the Minister on the ground that the s 16 Notice was invalid and of no effect remained open to Mr Brock; and

(ii)    If the s 16 “decision” were overturned, the subsequent decisions made by the Minister were of no effect; and

(c)    These arguments had sufficient substance not to be dismissed summarily.

40    Lindgren and Tracey JJ came to a different conclusion. Their Honours held that, where the validity of a magistrate’s order under s 19 of the Act has been upheld in proceedings in which that order was challenged, it is an abuse of process for a person then to challenge the exercise of jurisdiction by the magistrate under s 19 of the Act by seeking to have the relevant s 16 Notice set aside as invalid. This reasoning was in line with the reasoning of Flick J. At [63]–[67] (pp 445–446), Lindgren and Tracey JJ said:

Consideration

63     Mr Brock wishes to challenge the issue of the Notice of Receipt of Extradition Request under s 16 on a different basis from that on which he relied in relation to s 19(2)(c) in the earlier s 21 proceeding. While the ground is again a failure to satisfy the dual criminality requirement, the argument is no longer that in the USA he would be subject to two convictions, while in Australia only one. Rather, it is that there were not before the Minister the materials identifying Mr Brock's acts and omissions (conduct) as alleged by the USA, required for the Minister to make a decision to issue the Notice of Receipt of Extradition Request. Mr Brock relied on Williams 157 FCR 286 at [50]. We have previously discussed Williams at 43 above.

64     It should be assumed in favour of Mr Brock that he would be able to establish that the required materials were not before the Minister; that the Minister was therefore not entitled to be satisfied that the dual criminality requirement expressed in s 16(2)(a)(ii) was met; and that at least if he had challenged the Minister's decision under s 16 without the intervention of the earlier s 21 proceeding, he would have succeeded in having that decision and the Notice of Receipt of Extradition Request set aside. (The Minister does not dispute that the Court has jurisdiction under s 39B of the Judiciary Act to grant such relief.)

65     The result would be that Mr Brock was not eligible for surrender and that the warrant of committal of 24 November 2005 was invalidly issued by Magistrate Huber because the Minister had not given a notice under s 16(1) in relation to Mr Brock as required by s 19(1)(b) of the Act. Yet the question of the validity of the magistrate's determination that Mr Brock was eligible for surrender and the consequential issue of the warrant of committal to prison was the very matter decided adversely to Mr Brock in the earlier s 21 proceeding.

66     There can be only one object of Mr Brock’s challenge to the Minister’s decision under s 16 as Mr Brock acknowledged on the hearing of his present application: to establish that the ex facie regular Notice of Receipt of Extradition Request was not valid, that the condition precedent to the magistrate’s authority to conduct a proceeding to determine eligibility for surrender was not satisfied, and therefore that the magistrate's determination of eligibility for surrender and the issue of the warrant of committal to prison were invalid.

67     Indeed, it is to the point to note that in the Primary Proceeding Mr Brock sought, not only a declaration that the s 16 notice was invalid and should be set aside, but also declarations that the warrant of committal issued by the magistrate under s 19(9) of the Act was invalid and should be set aside, and that his detention since 12 May 2005 pursuant to that warrant was unlawful. It will be recalled that similarly, in the earlier s 21 proceeding Mr Brock had sought orders that the warrant issued under s 19(9) of the Act be quashed, and that he be released from custody forthwith (see [23] above).

41    These observations made by Lindgren and Tracey JJ are equally applicable to the present proceeding. At [73] (p 447) of their Reasons, their Honours said:

73    … Mr Brock wishes again to contend that the Magistrate’s decision that he was eligible for surrender and issue of the warrant of imprisonment were both invalid because the dual criminality requirement was not met, albeit he now wishes to support that case by way of ss 16(2)(a)(ii) and 19(1)(b), rather than by way of s 19(2)(c) as he did in the earlier s 21 proceeding.

42    In Brock 243 ALR 315, Flick J had held, at [66] (p 330) of his Reasons, that the intervention of the s 21 proceedings had the consequence of determining, with finality, that each of the preceding stages in the extradition process, including the issue of the s 16 Notice and the magistrate’s s 19 determination, had been lawfully discharged and that Mr Brock was eligible for surrender. At [60]–[63] (p 329) of his Honour’s Reasons, his Honour said:

The applicant is eligible for surrender

60    Where the submissions of the minister do prevail is in respect to his submission that there has now been a judicial resolution of the question whether Mr Brock is or is not “eligible for surrender”.

61     It is, of course, the magistrate who makes the determination as to whether a person is “eligible for surrender”. That is the task entrusted to the magistrate by s 19.

62    A determination that Mr Brock is “eligible for surrender” has been made pursuant to s 19(9). That determination is an administrative determination. There has been an application to the Federal Court for review of that determination. That application came before the Federal Court and was resolved. That is a judicial determination.

63    Had there been judicial resolution of the validity of the s 16 notice prior to the resolution of the s 21 review, the invalidity of that notice would have been “fatal to the proceedings before the magistrate”: Williams at [53]. But that is not the sequence of events in the present proceedings. There have been s 21 proceedings (being the proceedings which ultimately were unsuccessful upon an application for special leave to appeal to the High Court) and no prior resolution of the s 16 notice other than the earlier dismissal by consent of proceedings.

43    His Honour then explained why no res judicata or issue estoppel arose out of the consent orders of November 2005. His Honour then said at [66]–[68] and at [72] (pp 330–332) of his Reasons:

66    It is the intervention of the review conducted pursuant to s 21 which, it is considered, has the consequence that each of the preceding stages in the extradition process has been lawfully discharged. The lawful discharge of the functions conferred by s 16 “must necessarily have been determined” in reaching the conclusion that Mr Brock was eligible for surrender.

67    It is considered unnecessary to resolve the question as to the extent of—or the nature of—the review which is permitted under s 21 as to whether the requirements of s 19(1) have been satisfied. Justice Gyles has very recently queried whether the requirements of s 19(1) could be considered in a review pursuant to s 21 and whether challenges to those requirements were to be made by way of separate proceedings based on administrative law grounds: Tervonen v Finland [2007] FCA 2067 at [4]. His Honour, however, also there referred to Knauder and Brock as providing a basis for the “current practice” that some form of review was permissible.

68    For present purposes it is sufficient to note that there was no challenge in the s 21 review to whether or not there had been compliance with s 16(2)(a)(ii) and to note that there was no outstanding collateral challenge to the s 16 notice prior to the s 21 review being concluded. Whether compliance with s 16(2)(a)(ii) was a jurisdictional fact or a condition precedent to the exercise by the magistrate of his power under s 19, there was no challenge to the lawfulness of the notice.

…

72    Moreover, and independently of any conclusion in respect to estoppel, it is considered that it would be an abuse of process for Mr Brock to have pursued the s 21 proceedings through to ultimate conclusion and to thereafter now be permitted to commence separate proceedings seeking to put in issue a requirement which was an essential part of the extradition process. He had previously abandoned the proceedings in respect to s 16 at an earlier time—for whatever reason does not matter. To now permit Mr Brock to again commence separate proceedings in respect to the validity of the s 16 notice would certainly not promote finality in litigation and would only encourage a fragmentation of the avenues by which litigants can seek review of each of the four stages of extradition.

44    At [59] (p 445) and subsequently at [75]–[76] (pp 447–448) of their Reasons in Brock 170 FCR 434, Lindgren and Tracey JJ said:

59     The particular species of abuse of process of concern in the present case was that the bringing of the Primary Proceeding would be inconsistent with the result of the adjudication, adverse to Mr Brock, in the earlier s 21 proceeding: see Walton v Gardiner 177 CLR at 393. In our view, it clearly was, and there is not sufficient doubt, touching the primary judge's conclusion to that effect, to warrant its being considered at appellate level…

….

75.    In our view, the present case is a clear case of abuse of process and the primary judge was entitled to dismiss the Primary Proceeding summarily on that ground.

76    We respectfully agree with the primary judge that to permit Mr Brock to prosecute the Primary Proceeding would have been, to use the words of Mason CJ in Rogers v The Queen at 256-257:

... not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but ... also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue ...

45    They also noted, at [68] (p 446) of their Reasons:

68.    The abuse of process that the Primary Proceeding constituted can also be described in terms of futility. A bare declaration that the issue of the Notice of Receipt of Extradition Request was invalid and setting aside of that notice would be futile. In the absence in addition of a challenge to the dismissal of the earlier s 21 proceeding, the declaration and setting aside would not be productive of a remedy of any benefit to Mr Brock. The bringing of the Primary Proceeding was therefore an abuse of process.

46    In addition, Lindgren and Tracey JJ upheld the submission of Counsel for the Minister that the s 16 Notice was effectively spent when the magistrate commenced to hear the s 19 application. They noted, at [77] (p 448) of their Reasons:

77.    We would also uphold the second ground advanced by Ms Gleeson of counsel for the Minister, for resisting the granting of leave to appeal. This is that according to the scheme of the provisions to which we have referred, the work to be done by the issue of a Notice of Receipt of Extradition Request under s 16 is spent once the s 19 stage in the process is reached. The presence of para (c) in s 19(2) demonstrates an intention that any challenge to the satisfaction of the dual criminality provision is to take place within the framework of an application under s 21 for review of the Magistrate’s order. The Magistrate was required to satisfy herself independently that the dual criminality requirement was met, and was not required to review the Minister’s having been previously satisfied that it was met for s 16 purposes: see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538-539.

47    It does not matter that the specific context addressed by the Full Court in Brock 170 FCR 434 was summary dismissal on the basis of abuse of process. As Lindgren and Tracey JJ said at [58] and [60] (p 445) of their Reasons:

58    In the circumstances of the present case, where summary dismissal was sought on the ground of abuse of process on undisputed facts, the difference between dismissal for abuse of process summarily and as on a final hearing is, at least as a practical matter, illusory. The Court was required, and would have been required on a final hearing, to be satisfied that it was an abuse of process for the Primary Proceeding to be brought having regard to the undisputed nature and fate of the earlier s 21 proceeding. This required the application of principles governing abuse of process to uncontroversial facts.

…

60     … As noted above, in these circumstances there is no practical difference between the way in which the test for abuse of process would have been applicable on a final hearing and the way in which it was to be applied on the motion for summary dismissal.

The Present Case

48    For the purpose of considering the argument advanced by Mr Brock in Brock 170 FCR 434 that the magistrate’s s 19 decision was of no effect because the s 16  Notice was invalid, Lindgren and Tracey JJ assumed (but did not decide) that Mr Brock could have succeeded in having the s 16 Notice set aside if he had moved for constitutional writ relief before the s 21 order had been made by Moore J. They also assumed that the basis upon which Mr Brock could have successfully moved to set aside that notice was that the information and documents before the Minister which contained a description of the conduct of Mr Brock said to constitute the offences relied upon by the US did not satisfy the test in Williams.

49    Upon those assumptions, at [65]–[67] and [72]–[75] (pp 446–447) of their Reasons, Lindgren and Tracey JJ concluded that the validity of the magistrate’s decision that Mr Brock was eligible for surrender and the validity of her decision to issue the warrant were squarely in issue in the s 21 proceeding in this Court and finally determined in that proceeding. Their Honours held that it was an abuse of process to relitigate those issues in the proceeding which was before Flick J and before the Full Court on appeal.

50    The only purpose in attempting to challenge the s 16 Notice in Brock 170 FCR 434 was to undermine the subsequent steps taken by the magistrate under s 19 of the Act and by the Court under s 21 of the Act. The majority held that, by the time Flick J came to hear the proceeding at first instance, those steps could not be challenged. There was, therefore, no point in considering the validity of the s 16 Notice or its impact on the magistrate’s s 19 decision or the Court’s s 21 decision.

51    In the present proceeding, Mr Brock contended that the Court has not yet determined the validity of the Minister’s s 22 determination nor has it yet determined the Minister’s consequential decision to issue a surrender warrant pursuant to s 23 of the Act. Indeed, the validity of both of those decisions is challenged by him in the present proceeding. Mr Brock then argued that the Full Court in Brock 170 FCR 434 did not decide whether the s 16 Notice was valid and that the validity of that notice has not yet been determined by any Court. Mr Brock then submitted that the s 16 Notice is invalid and that that invalidity renders the Minister’s s 22 determination and s 23 decision invalid. He submitted that the Full Court in Brock 170 FCR 434 was not required to and did not address the Minister’s s 22 determination or his s 23 decision.

52    It is clear that Mr Brock is an eligible person within the meaning of that expression in s 22(1) of the Act and has been such a person at all times since 31 August 2007, at the latest, when the High Court dismissed his application for special leave to appeal from the Full Court’s decision in the s 21 proceeding (as to which see [7] above). It is also clear that, on 24 November 2005, the magistrate who conducted the s 19 proceedings in respect of Mr Brock on that day recorded, pursuant to s 19(9)(c) of the Act, that she had determined that Mr Brock was eligible for surrender to the US in relation to the following offences (the extradition offences):

•    engaging as a principal administrator in a continuing criminal enterprise which distributed and possessed with intent to distribute, imported and conspired to distribute marijuana; and

•    conspiracy to distribute more than 100 pounds of marijuana.

53    In substance, the extradition offences are the same extradition offences as are specified in the s 16 Notice and thus the same extradition offences relied upon by the US when it made its extradition request on 9 May 2005. They are qualifying extradition offences within the meaning of that expression in s 22(1) of the Act (as to which see the definition of extradition offence in s 5 of the Act and the definition of qualifying extradition offence in s 22(1) of the Act).

54    Under s 22(2) of the Act, as soon as reasonably practicable after a person becomes an eligible person, the Attorney-General is obliged to determine whether the person is to be surrendered in relation to one or more qualifying extradition offences. In making that determination, the Attorney-General must comply with subs (3) and subs (4) of s 22 of the Act and exercise his discretion in accordance with the objects of the Act. Subject to those matters, the Attorney-General is obliged to decide whether the eligible person is to be be surrendered or not. He cannot sit by and do nothing.

55    Mr Brock is now precluded from challenging directly or indirectly the validity of the magistrate’s order made under s 19(9) of the Act that he be committed in custody to await, in relation to the extradition offences, surrender under a surrender warrant the effect of which was to designate him as an eligible person and is also precluded from challenging directly or indirectly the description of the qualifying extradition offences specified by the magistrate in the record to which I have referred at [52] above. As stated by Lindgren and Tracey JJ in Brock 170 FCR 434 at [72] (p 447) of their Reasons, the validity of those decisions made by the magistrate has been adjudicated upon on a final basis.

56    It is those decisions made by the magistrate that engage s 22(2) of the Act.

57    Therefore, for the same reasons as were explained by Lindgren and Tracey JJ in Brock 170 FCR 434, a decision by me that the s 16 Notice is invalid could not be used by Mr Brock to undermine the engagement of s 22 in the circumstances of this case and would not be productive of any remedy of any benefit to Mr Brock.

58    Once the decisions of the magistrate were made on 24 November 2005 and all available avenues for review of those decisions were exhausted, those decisions became effectively impregnable to further challenge by reference to alleged fundamental defects in the process at any earlier point in time.

59    It is an abuse of process for Mr Brock to seek to undermine the Minister’s s 22 determination and the Minister’s s 23 decision on the ground that the s 16 Notice is invalid. It would also be futile to allow him to amend his Application in order to run such a case.

60    I am not convinced of the correctness of the reasoning of the majority of the Full Court in Brock 170 FCR 434 at [77] (p 448) of their Honours’ Reasons to the effect that the s 16 Notice was spent once the s 19 stage was reached and that any challenge to the Minister’s satisfaction of the dual criminality requirement must take place within the framework of a s 21 review of the magistrate’s order. Whilst it may be accepted that a notice under s 16 of the Act will have done its work when a magistrate commences to hear a s 19 proceeding, the fact that the notice is “spent” in that sense may not preclude judicial review of the decision to issue the notice at a time when the s 19 proceeding has not concluded and all opportunities for review have not been exhausted. However, I do not need to decide whether I should follow their Honours on this point and I expressly refrain from doing so. I prefer to approach the matter upon the basis which I have explained at [48]–[59] above.

Jurisdictional Error (Misapprehension as to Facts and the Law)

61    Mr Brock raised the validity of the s 16 Notice in the written submissions which he forwarded to the Minister for his consideration when making his s 22 determination.

62    There is no evidence which establishes that the Minister did not read those submissions nor is there any evidence that he did not consider those submissions before making his s 22 determination and his s 23 decision. The evidence suggests the contrary since all of Mr Brock’s written submissions were placed before the Minister when he came to consider his obligations under s 22 of the Act.

63    The Minister was not bound to take those submissions into account. It was entirely a matter for him to decide whether to take them into account and, if so, in what way.

64    Mr Brock does not allege in the present proceeding that he was denied procedural fairness in respect of the Minister’s s 22 determination or in respect of his s 23 decision.

65    Mr Brock contends that those decisions were made by the Minister under a fundamental or material misapprehension as to the relevant facts and as to the law. It was submitted on behalf of Mr Brock that this conclusion is obvious when regard is had to par 49 of Attachment E to the departmental submission which paragraph should be held by me to contain a material part of the Minister’s reasons for making those decisions.

66    The departmental submission comprised a covering memorandum to the Minister signed by the Acting Assistant Secretary of the relevant section within the Attorney-General’s Department and various attachments. In the covering memorandum, the author recommended that the Minister determine that Mr Brock be surrendered and that he sign the necessary surrender warrant. The author referred in the memorandum to the Department’s “… detailed advice on the statutory criteria…”. This advice was Attachment E.

67    In Attachment E, the Department correctly advised that s 22(2) was engaged—essentially for the reasons which I have explained at [48]–[59] above. The Department also tendered advice on the many points raised by Mr Brock in his submissions. In respect of Mr Brock’s contention that the s 16 Notice was invalid, the Department said:

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

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

Departmental comment

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

68    The advice expressed in par 49 of Attachment E to the departmental submission is infelicitously expressed. The Federal Court has not in any previous proceeding decided that the s 16 Notice was valid. Nor has the Court in any previous proceeding expressly rejected Mr Brock’s argument that the s 16 Notice was invalid based upon the reasoning in Williams. The effect of the previous decisions is that Mr Brock should not be permitted to run his argument that the s 16 Notice is invalid.

69    The advice expressed in par 49 of Attachment E was proffered in that Attachment as part of a section dealing with Mr Brock’s submissions to the Minister. That section was introduced by the following:

34.    In addition to the matters considered above, you have a general discretion whether to surrender Brock to the United States. That discretion is unfettered and you may take any other relevant matters into account in making your decision.

70    The Department did not suggest in its Advice that any of the matters raised by Mr Brock were relevant to the Minister’s decision under s 22(2) of the Act. It is fair to say that the thrust of par 49 was that Mr Brock’s contention that the s 16 Notice was invalid was, to all intents and purposes, irrelevant by September 2009. This was undoubtedly correct even though the reasons why it was correct may have been different from those recorded in the Advice.

71    Whilst it may be thought to be reasonable to infer that the advice proffered by the Department at par 49 of Attachment E was one consideration to which the Minister had regard, there is no evidence as to how the advice was taken into account by the Minister nor what weight (if any) it was given. The errors are largely errors of fact. There is no significance for the present proceeding in the shortcomings of this advice (see Oates v Attorney-General for the Commonwealth of Australia (2001) 181 ALR 559 at [133]).

72    In any event, I do not think that the evidence justifies a finding that par 49 records a material part of the Minister’s reasons for making his s 22 determination.

73    As the Minister correctly submitted, whether a particular document should be regarded as setting out all or part of a decision-maker’s reasons is a question of fact.

74    The correct approach to this question is captured in the reasons of the Full Court in Rashid v Minister for Immigration and Citizenship [2007] FCAFC 25 at [16]–[19] as follows:

16.    On judicial review the court may receive evidence and enquire into what were in fact the reasons for the impugned administrative decision: Avon Downs Pty Ltd v Commissioner of Taxation (1940) 78 CLR 353 at 369, The Queen v Toohey; Ex parte Northern Land Council (1980) 151 CLR 170 at 253, Craig v South Australia (1995) 184 CLR 163 at 176. This is so whether or not the decision-maker is legally obliged to give reasons. There may well not be such an obligation; there is no inherent legal requirement for an administrative decision-maker to give reasons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. Or the relevant statute may deny or, as is the case here, limit any such obligation. But if evidence founds a conclusion as to what in fact were the reasons, despite the decision-maker being under no obligation to provide them, those reasons could be relevant to judicial review, to the extent that review is permitted (as for example in the present case where review is limited to jurisdictional error).

17    Whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire and the like recording advice to the decision-maker or documents recording the decision-maker's own preliminary thoughts or working notes. Such documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question.

18     In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [117] Kirby J cited Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at [126] where the Supreme Court of Canada said:

“ ... the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of [the departmental official].”

Kirby J was in dissent in the result but that statement is not inconsistent with the majority judgments.

19     In the present case the onus is on the appellant to show that non-satisfaction of the split family criterion was one of the reasons the delegate decided to refuse the application. The appellant has not established that Mr Tranulis (or Mr Abolfotouh) was the delegate who made the decision and sent the letter of 16 January 2006. The letter refers to “a criterion”. It provides an unequivocal identification of one criterion, and one criterion only, that the appellant failed to satisfy. There is no mention of the split family criterion. It has not been established that the delegate, whoever he or she was, in fact had in mind non-satisfaction of any criterion other than the one stated in the letter.

75    The Department’s advice concerning Mr Brock’s s 16 Notice argument and its implications may not have featured at all in the mental process undertaken by the Minister when he made his s 22 determination and his s 23 decision. There is no particular reason why it should have done so. There is no evidence to suggest that, in fact, it did so.

76    For these reasons, I reject Mr Brock’s argument that the Minister’s s 22 determination was vitiated because of jurisdictional error (Grounds 1a, 1b, 1c and 1d in Attachment “A” to MFI2).

The Validity of the s 16 Notice

77    Strictly speaking, this issue does not arise. However, in deference to the parties’ arguments, I will briefly state my views in relation to it.

78    The argument made by Mr Brock in support of his contention that the s 16 Notice is invalid is summarised at [30(a)] above.

79    In Williams, at [43]–[50] (pp 296–298) of its Reasons, the Full Court said:

43     There is no escape from the conclusion that the holding of the opinion provided for by s 16(2)(a)(ii) of the Extradition Act is a mandatory statutory requirement for validity of a Notice of Receipt of Extradition Request. The question in the present case is not whether it was reasonable to form the requisite opinion but whether it was possible, in conformity with the statute, to do so.

44     The answer is dictated by the words of s 16(2)(a)(ii) and the interpretative provision in s 10(2). Those provisions require an opinion by the Attorney-General (or responsible Minister) about the character and criminality of alleged conduct. Although the Attorney-General (or responsible Minister) may rely on advice, we are unable to accept that identification of offences in the United States of America and in Australia merely by name—or even by identification of their legal elements if that is to be implied—is a sufficient description of the “conduct of a person” or of “the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed”.

45     There is no basis for distinguishing the construction of s 16(2)(a)(ii) from s 19(2)(c). In particular, there is no basis for construing “the conduct of the person” any differently. Those words in ss 16(2)(a)(ii) and 19(2)(c) are to be read in accordance with s 10(2). Section 10(3) expressly applies to both ss 16(2)(a)(ii) and 19(2)(c). In connection with s 19(2)(c), it is well established that a bare description or definition of the offence will not suffice. The statement of the conduct must be such as to permit the magistrate to form the requisite opinion. (See Griffiths v United States of America (2005) 143 FCR 182 at [50]-[55]). As was said by Gleeson CJ, McHugh and Heydon JJ in Truong v The Queen (2004) 223 CLR 122 at [29]:

“The acts or omissions, that is, the conduct, by virtue of which an offence has been, or is alleged to have been, committed, lie at a level of abstraction between a formal statement of the elements of the offence, on the one hand, and an account of the evidence relied on to prove the relevant conduct, on the other.

What is required is “a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is brought” (Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297 and see also De Bruyn v Republic of South Africa (1999) 96 FCR 290 at [11], [30]-[37]).

46    An harmonious construction of ss 16 and 19 in requiring both the Attorney-General (or responsible Minister) and the magistrate to have before them the conduct said to constitute the offence, appropriately disclosed, so that each may discharge his or her obligations is to be preferred to one which sees the magistrate required to understand the conduct upon which the requesting country is basing the claim for extradition, but not the Attorney-General (or responsible Minister).

47     There is nothing technical or pedantic about this. The Attorney-General’s (or responsible Minister’s) role in s 16 is an important stage at the commencement of a process which may see a person involuntarily removed from Australia to face criminal proceedings. Oftentimes the person will be incarcerated in Australia during the life of the process. The Attorney-General (or responsible Minister) is called on by s 16(2)(a)(ii) to come to an opinion about the acts or omissions by virtue of which the offence is alleged to have been committed, if they had occurred in Australia. Given the importance the Extradition Act places on the difference between such conduct and the offence itself, and the clear requirement for the opinion of the Attorney-General (or responsible Minister) to be that of himself or herself, s 16 should be understood as requiring the Attorney-General (or responsible Minister) to know what the conduct is said to be before forming the opinion called for by s 16(2)(a)(ii). If this were not required then (as here) it would be sufficient for the Attorney-General (or responsible Minister) to say: whatever might be the conduct, of which I am unaware, if my advisers say s 16(2)(a)(ii) is satisfied, I will rely on that. That is not the formation of a relevant opinion about the conduct, because the conduct is not known.

48     Also, it should be recognised that to conclude that one knows enough about the conduct from the terms of the charge in order to form the opinion called for by s 16(2)(a)(ii) will require assumptions to be made about the foreign legal system. Such assumptions do not form part of the process in the Extradition Act. In some cases such assumptions would be unwarranted. For instance, the charge of “murder” may seem straightforward; but it is not difficult to think of acts or omissions (that is, conduct) which one polity may brand as such unlawful killing, which another polity may not so characterise. The treatment of abortion or infanticide by different societies are easy examples. Dealing with the asserted offence here, (wilful evasion of income tax) one would need to understand the acts and omissions to form an opinion for the purposes of s 16(2)(a)(ii). For instance, the deliberate (wilful) undertaking of acts, which (without intent to defraud) may constitute a scheme under provisions the equivalent of Pt IVA of the Income Tax Assessment Act 1936 (Cth), might be a crime elsewhere, which could conceivably be described by the terms of the offence identified here, but it is doubtful that it would be a crime in Australia. These examples are not intended to be definitive statements of Australian or other law. They are only made to highlight the importance of understanding the conduct (the acts or omissions) before one can form an opinion for s 16(2)(a)(ii).

49     Neither the Attorney-General (or the responsible Minister), nor an Australian magistrate is taken to be expert in foreign law. Rather, he or she can be expected to form a view about whether identified acts or omissions (or equivalent conduct) would have constituted an extradition offence in relation to Australia. In the present case, the material before the Minister did not even include a statement of the elements of the United States offences. There is no basis upon which a presumption of regularity could fill the gap in the information before the Minister. The recommending officer could not further delegate the receipt of that necessary information.

50     The opinion which must be held by the Attorney-General (or the responsible Minister) under s 16(2)(a)(ii) must relate to, and be based on, actual conduct said to constitute, in a factual sense, the commission of an identified offence. In the present case there was no information before the Minister to furnish that knowledge. Accordingly, the Minister was not in a position to form an opinion about Mr Williams’ conduct, whether in reliance on advice or personally, so as to conclude that the requirements of s 16(2)(a)(ii) were met. As a result, the opinion was not validly formed.

80    The challenge which Mr Brock made in the present proceeding is not to the adequacy of the specification of the extradition offences in the s 16 Notice itself. Rather, he submitted that there was insufficient material before the Minister when he was considering issuing that notice to enable the Minister to form the opinion required to be formed by him by s 16(2)(a)(ii) as a prerequisite to the issue of the s 16 Notice. The alleged deficiency was the inadequate description of the conduct on the part of Mr Brock which was said to constitute the extradition offences.

81    The material provided to the Minister to enable him to consider whether to issue a notice under s 16 of the Act comprised a departmental briefing paper which included the following:

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

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

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

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

(b)    Advice from the Commonwealth Director of Public Prosecutions to the effect that, if the alleged criminal conduct had been committed in Australia, it would have constituted offences under Commonwealth and New South Wales laws.

82    In addition to being provided with the above information, the Minister was given a memorandum from the Consular Affairs Department, Legal Consular Affairs Division of the Netherlands in which, in respect of each of the offences with which Mr Brock was charged, specific sections of Title 21 of the United States Code were identified. Those sections were also mentioned in the draft s 16 Notice provided to the Minister.

83    In my view, the Minister was furnished with a sufficient description of the conduct undertaken by Mr Brock which the US alleged constituted the offences with which he has been charged. The period of time during which the conduct took place was specified. The role taken by Mr Brock was specified. The nature of the activities undertaken by him was specified. The subject matter of those activities was specified. In addition, the Minister was provided with advice from the Attorney-General’s Department in the terms of the summary which I have given at [81(b)] above. In my view, the Minister was in possession of sufficient information and advice to enable him to form the opinion which he was required to form by the terms of s 16(2)(a)(ii) of the Act as a prerequisite for the issue of the s 16 Notice.

84    For these reasons, I would not be prepared to hold that the s 16 Notice was invalid.

85    I would, therefore, in any event, not be prepared to make the declarations sought by Mr Brock to the effect that the s 16 Notice is invalid.

86    I should add that, even if I had come to the view that the s 16 Notice is invalid, I would not be prepared to make the declarations sought. This is because they would serve no purpose and be of no benefit to Mr Brock.

The Admissibility of Mr Brock’s Affidavit Sworn on 17 February 2010

87    At the hearing, I reserved the question of the admissibility of this affidavit. The affidavit was the means by which Mr Brock sought to prove what had transpired before Wilcox J on 25 November 2005 and what was before the Minister when he issued the s 16 Notice. The Minister objected to the affidavit on the ground that it was irrelevant. I do not agree. The material is relevant to my determination of the issues raised in the present proceeding and I propose to admit the whole of the affidavit.

Conclusions

88    Mr Brock should not be permitted to re-run the argument made by him that the s 16 Notice is invalid. To permit Mr Brock to re-agitate that argument as a foundation for his further argument that the Minister’s s 22 determination and s 23 decision were both invalid would be an abuse of process and would also be futile.

89    The grounds propounded by Mr Brock in support of the constitutional writ relief which he seeks in respect of the Minister’s s 22 determination (Grounds 1a–1d) have not been made out.

90    In any event, the s 16 Notice was valid.

91    For all of the above reasons, the case which Mr Brock seeks to advance in MFI2 is bound to fail. To allow him to amend his Application in the terms of MFI2 would be futile. I therefore propose to refuse leave to amend to Mr Brock in the terms in which he has sought to amend.

92    Had I been minded to grant leave to amend to Mr Brock in the terms of MFI2, I would nonetheless have dismissed his Application for the reasons which I have given.

93    Costs should follow the event.

94    There will be orders accordingly.

Associate:

Dated:    25 November 2010