FEDERAL COURT OF AUSTRALIA

Lobban v Minister for Justice [2015] FCA 1361

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the costs of the Respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

1    Mr Christopher Lobban applies for declarations and an order quashing the determination of the Minister under s 22 of the Extradition Act 1988 (Cth) to surrender him to the United States of America (surrender determination). Mr Lobban contends:

(a)    Article V of the Treaty on Extradition between Australia and the United States of America which came into force on 8 May 1976, as amended by the Protocol done at Seoul on 4 September 1990, was a mandatory consideration by the Minister. By misconstruing it, the Minister constructively failed to consider it (Ground 1);

(b)    the surrender determination was made as a result of an inflexible policy (Ground 2);

(c)    the surrender determination was made in a manner which was Wednesbury/Li unreasonable (Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) (Ground 3); and

(d)    the surrender determination constituted a disproportionate exercise of the power in s 22 of the Act (Ground 4).

2    The main question arising, at least at a non-technical level, is the effect, if any, to be given to the circumstance that, if convicted of offences in the United States, Mr Lobban, an Australian citizen, will be at risk of being sentenced for a considerably longer period of time than could reasonably be anticipated for the corresponding offences if convicted in Australia. An important sub-question is whether in those circumstances the Minister should have refused to surrender Mr Lobban for extradition, knowing that he would be required to accede to any United States request that Mr Lobban be prosecuted within Australia by Australian authorities.

3    Central to all aspects is the contention for Mr Lobban, which I assume for the purpose of my consideration to be true, that the potential penalties to which he will be exposed on extradition are considerably more severe than he would be likely to be subjected to in Australia.

BACKGROUND

4    United States authorities allege that at a time prior to November 2008, Mr Lobban ‘met’ a Ms Robin Pagoria on-line through a website known as www.spankfinders.com. In essence, it is alleged against Mr Lobban that he advised Ms Pagoria how to ‘discipline’ her children, two girls who are now described as ‘SP’ and ‘CP’, then aged 14 and 15 years respectively. Ms Pagoria was a resident of Polk County, Florida, United States. Ms Pagoria was arrested on 25 May 2011 and remanded into custody.

5    Prior to her arrest Ms Pagoria had worked within the prison system in Polk County as a detention deputy under Sheriff Grady Judd. After a plea bargain, Ms Pagoria was sentenced to 20 years imprisonment, as well as ordered to serve 20 years of sexual offender probation, once released from detention. She pleaded guilty in Florida to two counts of aggravated child abuse, two counts of lewd or lascivious battery and two counts of using a child in a sexual performance. As part of a plea bargain she agreed to give evidence against Mr Lobban. Shortly following this sentencing, on 29 June 2011, a warrant for Mr Lobban’s arrest was issued in Florida, United States.

6    The counts on which Mr Lobban is charged under the relevant Florida criminal statute are framed in this manner (extradition offences):

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT

IN AND FOR POLK COUNTY, STATE OF FLORIDA

DIRECT

INFORMATION FOR:

1)    PROMOTION OF A SEXUAL PERFORMANCE BY A CHILD

2)    PROMOTION OF A SEXUAL PERFORMANCE BY A CHILD

3)    SOLICITATION TO COMMIT AGGRAVATED CHILD ABUSE

4)    SOLICITATION TO COMMIT AGGRAVATED CHILD ABUSE

5)    SOLICITATION TO COMMIT LEWD OR LASCIVIOUS BATTERY

6)    SOLICITATION TO COMMIT LEWD OR LASCIVIOUS BATTERY

In the Name and Authority of the State of Florida:

JERRY HILL, State Attorney for the Tenth Judicial Circuit, by and through his undersigned Assistant State Attorney, charges that CHRISTOPHER DONALD LOBBAN, a person over 18 years of age, between January 1, 2011 and May 26, 2011 in the County of Polk and State of Florida, did promote a sexual performance by S.P., a child less than 18 years of age while knowing the character and content thereof, in that he produced, directed or promoted the sexual performance which included sexual conduct by said child and further that the aforesaid CHRISTOPHER DONALD LOBBAN victimized more than one person during the course of the criminal episode applicable to this offense, contrary to Florida Statute 827.071(3) and 794.0115(2)c. (2 DEG FEL) (LEVEL 6) (25 YEARS TO LIFE MANDATORY MINIMUM)

COUNT 2: Informant aforesaid, under oath, further information makes that CHRISTOPHER DONALD LOBBAN, a person over 18 years of age, between January 1, 2011 and May 26, 2011, in the County of Polk and State of Florida, did promote a sexual performance by C.P., a child less than 18 years of age while knowing the character and content thereof, in that he produced, directed or promoted the sexual performance which included sexual conduct by said child and further that the aforesaid CHRISTOPHER DONALD LOBBAN victimized more than one person during the course of the criminal episode applicable to this offense, contrary to Florida Statute 827.071(3) and 794.0115(2)c. (2 DEG FEL) (LEVEL 6) (25 YEARS TO LIFE MANDATORY MINIMUM)

COUNT 3: Informant aforesaid, under oath, further information makes that CHRISTOPHER DONALD LOBBAN between January 1, 2011 and May 26, 2011, in the County of Polk and State of Florida, did solicit [Ms Pagoria] to commit Aggravated Child Abuse and in the course of said solicitation did command, encourage, hire or request [Ms Pagoria] to willfully torture, or maliciously punish, S.P., a child less than 18 years of age, contrary to Florida Statute 827.03 and 777.04(2) (2 DEG FEL) (LEVEL 8)

COUNT 4: Informant aforesaid, under oath, further information makes that CHRISTOPHER DONALD LOBBAN between January 1, 2011 and May 26, 2011, in the County of Polk and State of Florida, did solicit [Ms Pagoria] to commit Aggravated Child Abuse and in the course of said solicitation did command, encourage, hire or request [Ms Pagoria] to willfully torture, or maliciously punish, C.P., a child less than 18 years of age, contrary to Florida Statute 827.03 and 777.04(2) (2 DEG FEL) (LEVEL 8)

COUNT 5: Informant aforesaid, under oath, further information makes that CHRISTOPHER DONALD LOBBAN between January 1, 2011 and May 26, 2011, in the County of Polk and State of Florida, did solicit [Ms Pagoria] to commit Lewd or Lascivious Battery and in the course of said solicitation did command, encourage, hire or request [Ms Pagoria] to force or entice S.P., a child less than 16 years of age to engage in sadomasochistic abuse, contrary to Florida Statutes 777.04(2) and 800.04(4)b. (3 DEG FEL) (LEVEL 6)

COUNT 6: Informant aforesaid, under oath, further information makes that CHRISTOPHER DONALD LOBBAN between January 1, 2011 and May 26, 2011, in the County of Polk and State of Florida, did solicit [Ms Pagoria] to commit Lewd or Lascivious Battery and in the course of said solicitation did command, encourage, hire or request [Ms Pagoria] to force or entice C.P., a child less than 16 years of age to engage in sadomasochistic abuse, contrary to Florida Statutes 777.04(2) and 800.04(4)b. (3 DEG FEL) (LEVEL 6)

…

7    On 16 July 2011, Mr Lobban was arrested pursuant to a warrant issued under s 12 of the Act. Six days later, he was remanded in custody at Hakea Prison in Western Australia and has been in extradition detention since that time. On 30 April 2012, a Magistrate found that he was eligible for surrender to the United States in relation to extradition offences and committed Mr Lobban to prison pursuant to s 19 of the Act to await surrender. Almost 18 months later, on 16 October 2014, the Attorney-General’s Department gave a Brief to the Minister in relation to his determination under s 22 of the Act. On 29 October 2014, the Minister determined pursuant to s 22 of the Act that Mr Lobban be surrendered to the United States. The Minister then issued a warrant under s 23 of the Act on the same day for Mr Lobban’s surrender.

8    On 6 November 2014, Mr Lobban filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth), accompanied by a statement of claim. Shortly after this, Orders were made by consent for disclosure of the Brief, including attachments. With some redaction, the full Brief to the Minister comprising some 485 pages was supplied.

9    In the interim between incarceration and briefing the Minister, there had been a deal of activity. Several submissions were made on Mr Lobban’s behalf. On 14 May 2012, submissions were made by Mr Lobban’s former lawyers to the former Attorney-General, the Hon Nicola Roxon MP. On 14 June 2012, the Department wrote to its counterpart in the United States requesting a response to various matters which arose from Mr Lobban’s 14 May 2012 submissions. On 3 September 2012, the Department wrote to its counterpart in the United States, again, requesting a response to matters arising from the 14 May 2012 submissions made for Mr Lobban. In late September 2012, there was a response to the request contained in the Department’s letter of 14 June 2012. On 16 November 2012, the United States responded to the request contained in the Department’s letter of 3 September 2012.

10    On 23 August 2012, Mr Lobban’s former lawyers provided further submissions to the then Attorney-General. The Department wrote to its counterpart in the United States on 5 April 2013 requesting a response to matters arising from the 23 August 2012 submissions. On 16 August 2013, the United States responded to the request. Copies of the exchanged correspondence were not provided to Mr Lobban until 13 April 2014. He was requested to provide any further submissions no later than 14 March 2014. Further submissions were provided on 11 March 2014 by replacement solicitors in relation to the matters arising in the exchange of correspondence between the Department and the United States counterpart.

STATUTORY FRAMEWORK AND TREATY

11    Section 22 of the Act relevantly provides:

22    Surrender determination by Attorney General

…

(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; and

(b)    the Attorney-General does not have substantial grounds for believing that, if the person were surrendered to the extradition country, the person would be in danger of being subjected to torture; and

(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; and

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

(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.

… (emphasis added)

12    It is well established that s 22(3)(a)-(e) set out specific matters that the Attorney-General is bound to consider, while s 22(3)(f) confers a general discretion whether or not to surrender a person for extradition.

13    Section 11(1) of the Act relevantly provides that regulations to the Act:

    may state that the Act applies in relation to a specific extradition country subject to such limitations, conditions, exceptions and qualifications as are necessary to give effect to a bilateral extradition treaty in relation to that country, being a treaty which is set out in the regulations; or

    by s 11(1C) of the Act, for the purposes of subs (1) and subs (1A) of s 11, the limitations, 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.

14    By reg 4 of the Extradition (United States of America) Regulations (Cth) (undated, compilation prepared on 22 November 2000) (US Regulations), the Act applies in relation to the Treaty, which Treaty is referred to in Ground 1 above and set out in Sch 1 to the US Regulations with the Protocol being set out in Sch 2. The Protocol made a number of substantial amendments.

15    Article V of the Treaty originally provided:

(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)    For the purposes of this Article –

(a)    a reference to the executive authority of the Contracting Party shall in the case of Australia, be construed as a reference to the Attorney-General of Australia;

(b)    Australian protected persons shall be deemed to be nationals of Australia; and

(c)    the nationality of a person shall be determined to be that which he held at the time when he was charged with the offence for which his extradition is requested.

16    When read together with the amendments effected by the Protocol, Art V of the Treaty now provides and provided at all times relevant to Mr Lobban:

(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 requesting State allow, submit the case to 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.

17    Article XIV of the Treaty provides for the speciality assurance, namely, that a person will not be tried for offences other than that for which surrender is made pursuant to the Treaty, subject to the limited exceptions contained in Art XIV(2)(a)-(c) thereof.

18    Ground 1 and Ground 2 of Mr Lobban’s application pertain to s 22(3)(e) of the Act. Ground 3 and Ground 4 relate to s 22(3)(f) of the Act.

BRIEF TO THE mINISTER

19    It is well established that the Brief, which predates the surrender determination, does not record the mental process by which the Minister actually reached his decision. It is not a statement of reasons for the Minister’s decision. The Brief, however, may be evidence of the matters the Minister took into account in making his decision: O’Connor v Adamas (2013) 210 FCR 364 (at [248]-[250]). Mr Lobban says that on the basis the materials were before the Minister, it may be inferred the Minister applied a wrong test, took into account an irrelevant consideration or failed to take into account a relevant consideration.

20    The Brief informed the Minister of the nature of the charges and the fact that a person is only to be surrendered under s 22 of the Act if the Minister is satisfied that certain criteria are met and if, in his or her discretion, he or she considered that the person should be surrendered. The Department (after confirming all statutory criteria had been met) considered that, having regard to all of the circumstances, it was open to the Minister to determine that Mr Lobban should be surrendered to the United States for the extradition offences. The Minister signed the surrender determination and the surrender warrant.

21    The Brief was extremely comprehensive and contained reference to the detailed submissions made on behalf of Mr Lobban, as well as correspondence from the United States Department of Justice, various other formal documents and several legal advices from the Department (which on the discovered version have been redacted on the basis of legal professional privilege). No challenge has been raised to that redaction.

22    The Department advised, relevantly, as follows:

8.    Mr Lobban’s representations as to why he should not be surrendered to the United States may be summarised as follows:

a.    If Mr Lobban were to be imprisoned in the United States, he would have no access to family members in Australia, and thus surrendering him to the United States would result in a violation of his right to family life under article 23 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.

b.    If convicted of all the extradition offences in the United States Mr Lobban will receive a mandatory sentence of imprisonment for 25 years and may, after serving his sentence, be further detained under a civil commitment scheme. Mr Lobban submits that mandatory prison sentences and civil commitment schemes are forms of arbitrary detention, and thus surrendering him to the United States would result in a violation of his rights under article 9 of the ICCPR.

c.    His surrender to the United States would violate his right not be subjected to cruel, inhuman or other degrading treatment or punishment under article 7 of the ICCPR on the bases that the mandatory sentence that will be imposed if he is convicted is ‘grossly disproportionate’ and that there is a high level of disparity between the sentence that may be imposed on Mr Lobban in the United States in comparison to the sentence he would likely receive if convicted of like offences in Australia.

d.    Mr Lobban’s case is more appropriately dealt with under the laws of Western Australia given he was in Western Australia at the time he is alleged to have committed the offences.

e.    Mr Lobban will not receive a fair trial in the United States, and thus surrendering him to the United States would result in a violation of his right to a fair trial under article 14 of the ICCPR, to which Australia is a party.

…

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.

…

36.    In addition to the above matters, you must consider under section 22(3)(f) of the Act whether, in your discretion, an eligible person should be surrendered to the extradition country in relation to the qualifying extradition offences. The power is not subject to preconditions or limitations, and you may take any relevant matters into account in exercising it. [Rivera v Minister for Justice and Customs (2007) 160 FCR 115, 14 [sic].]

…

49.    The Department considers that, based on [… REDACTED] information provided to the Department by the United States, [Letter from United States Department of Justice dated 16 November 2013, pages 2-4 (Attachment H).] you may take the view that Mr Lobban’s mandatory minimum detention of 25 years to life would not amount to arbitrary detention under article 9(1) of the ICCPR. The Department notes the following matters in that regard:

•    Given the serious nature of the offences in questions, the mandatory sentence of 25 years to life imprisonment would arguably be appropriate and justified for fulfilling objectives such as rehabilitation and protection of the community.

•    The Court considering Mr Lobban’s case in the United States will have a discretion whether to impose a life sentence on Mr Lobban, and can only do so where a jury convicts him of two counts of the first offence and a judge considers the offence to be so serious, in the individual circumstances, to require Mr Lobban to spend his life in prison.

•    In determining the sentence to impose on Mr Lobban, a judge in the United States will also be able to consider aggravating and mitigating factors. As such, a Court will only impose a life sentence on Mr Lobban where it considers this to be an appropriate, necessary and proportionate penalty in all of the circumstances of the case.

50.    Additionally, the Department notes that the offences with which Mr Lobban is charged are very serious. Applying a lengthy sentence in cases of this kind serves a number of law enforcement interests, including the need to punish the offender, to deter future offending and to protect the community against the possibility of recidivism. Finally, the United States advises that the trial process itself will conform to the requirements of procedural fairness [Letter from United States Department of Justice dated 16 August 2013, pages 2-4 (Attachment J).].

51.    You may draw similar conclusions in relation to the civil commitment scheme to which Mr Lobban has referred in his representations [Letter from SC Nigam & Co dated 23 August 2012, para 2.1-2.6 (Attachment F).]. It is not clear on the facts of this case that Mr Lobban would be found liable to a period of civil commitment under the Ryce Act. Additionally, Mr Lobban is a dual Australian-Canadian citizen and, if extradited to the United States, may not have a lawful basis for remaining in the United States other than for criminal justice purposes. In any case, even if he were found liable for a period of civil commitment you may take the view that it would not amount to arbitrary detention under article 9(1) of the ICCPR. The Department notes the following factors in that regard:

•    The purpose of the civil commitment scheme is to ensure public safety; as well as treatment and care of offenders. In such circumstances, detention is arguably reasonable and proportionate to achieving the aim of ensuring these purposes.

•    The civil commitment scheme is open to regular periodic review by an independent, impartial body; and is also open to judicial review. Based on the information provided by the United States. […REDACTED]

52.    The Department considers that you can be satisfied that the surrender of Mr Lobban to the United States would not violate the prohibition of arbitrary arrest or detention. The Department further considers that Mr Lobban’s representations in this regard do not warrant the exercise of your discretion to refuse surrender.

53.    Mr Lobban has made representations to the effect that his surrender to the United States would violate his right not to be subjected to cruel, inhuman or other degrading treatment or punishment. [Letter from SC Nigam & Co dated 14 May 2012, para 5.4 (Attachment E).] [… REDACTED]

Mr Lobban argues that the risk of a violation of his right in this regard flows from the fact that, if he is convicted of the qualifying extradition offences in the United States, he will receive a mandatory sentence of at least 25 years imprisonment. He may receive a sentence of imprisonment for life. In any case, under Florida law, he would not be eligible for release on parole. Mr Lobban contends that such a sentence would amount to inhuman or degrading punishment on the basis that the sentence is ‘grossly disproportionate’. He makes this claim on the basis of the disparity between the sentence he faces if convicted in the United States and the sentence he would face if convicted of like offences in Australia.

54.    In support of the claim that Mr Lobban will receive a much longer sentence if convicted of the extradition offences in the United States than any sentence he could expect to receive if convicted of like offences in Australia, Mr Lobban has identified comparator offences under sections 217 and 321 of the Criminal Code 1913 (WA) and under Divisions 272 and 474 of the Criminal Code 1995 (Cth) [Letter SC Nigam & Co dated 14 May 2012, paras 5.2 and Annexure B (Attachment E).] The Western Australian comparator offences carry maximum penalties in the order of 7-10 years imprisonment. Offences under Division 272 of the Criminal Code 1995 (Cth) are directed at child sex offences committed by Australian citizens or permanent residents outside Australia. These offences carry maximum penalties of imprisonment for 15 to 20 years, or 25 years in the case of aggravated offences (where the victim has a mental impairment or is in the care of the defendant). Offences under Division 474 of the Criminal Code 1995 (Cth) are directed at the use of telecommunications carriage services for conveying child exploitation material. These offences carry a maximum penalty of imprisonment for 15 years or 25 years in the case of an aggravated offence for repeated conduct involving two or more people.

55.    Mr Lobban notes in his submissions that, notwithstanding these maximum penalties available under Australian law, the actual sentence likely to be imposed if he were convicted of the comparator offences in Australia would be much lower still [Letter from SC Nigam & Co dated 14 May 2012, para 5.4(e)-(k) (Attachment E).]. Mr Lobban refers in his submissions to a number of Western Australian cases which, while not involving exactly analogous offending, are said to be illustrative of the sentences which courts in the State commonly impose in respect of sexual offences involving children. The sentences in these cases ranged in severity from a fine to imprisonment for 4 years [Letter from SC Nigam & Co dated 14 May 2012, Annexure B (Attachment E).].

…

61.    [REDACTED], the Department notes that it is inherent in the nature of extradition that a surrendered person may find himself exposed to trial processes and penalties different to those to which he would be exposed if prosecuted in his home jurisdiction. In the context of considering whether surrender would be unjust or oppressive, the High Court’s recent decision in [Adamas] is instructive on the correct approach in international extraditions. In this case, the Court found that, while Australian standards are relevant to the exercise of a minister’s discretion to order surrender or release, the standards of the country requesting extradition are also an appropriate consideration.

62.    The Department considers that you can be satisfied that the surrender of Mr Lobban to the United States would not expose him to cruel, inhuman or other degrading treatment or punishment under article 7 of the ICCPR. The Department further considers that Mr Lobban’s representations in this regard do not warrant the exercise of your discretion to refuse surrender.

63.    Mr Lobban has made representations to the effect that he could and should be charged with offences under the laws of Western Australia based on the conduct in respect of which he has been charged in the United States, rather than be extradited to the United States to face prosecution. [Letter from SC Nigam & Co dated 14 May 2012, para 5.2-5.4 (Attachment E)] Specifically, Mr Lobban has suggested that, if he is to be prosecuted for the conduct on which the qualifying extradition offences are based, any such prosecution should be in Western Australia because:

a.    the alleged conduct all took place while Mr Lobban was physically present in Western Australia

b.    sufficient evidence is available to the authorities in Western Australia to commence a prosecution, including forensic evidence seized by Western Australian authorities from Mr Lobban's residence in Western Australia

c.    suitable offences appear in Commonwealth and Western Australian legislation, including sections 217, 321(4) and 321(6) of the Criminal Code 1913 (WA) and Divisions 272 and 474 of the Criminal Code 1995 (Cth)

d.    admissions made by Mr Lobban's de facto partner, Elizabeth Bower, are relevant to the case against Mr Lobban and should properly be investigated and dealt with in Western Australia, and

e.    there is a significant disparity in the sentence Mr Lobban is likely to receive in the United States when compared with the sentence he would receive if prosecuted and convicted for the same offences in Western Australia.

64    It may be open to Western Australian authorities to prosecute Mr Lobban for offences broadly equivalent to those with which he has been charged in the United States. However, the question of whether to proceed against Mr Lobban in this way is a matter for the Western Australian authorities and they are not pursuing a case against him. In addition they are aware of the matters referred to in paragraph 63(d) above and they are not pursuing any case against Mr Lobban. It is common for transnational crime and internet-related crime to give rise to possible criminal actions in multiple jurisdictions. In this case, the victims of the alleged criminal conduct were in the United States, and it is United States authorities pursuing the prosecution.

65.    Given that there is no domestic investigation or prosecution on foot in relation to Mr Lobban, and none appears to be contemplated, Australia must be mindful of its treaty obligations to the United States. The United States has made a request which complies with Australian law for Mr Lobban's extradition from Australia in order to prosecute him for the qualifying extradition offences. Australia has a duty to consider the extradition request in good faith and on its merits. The availability of alternative courses of action, including domestic prosecution, does not displace this duty.

66.    The Department considers that Mr Lobban's representations as to the possibility of prosecution in Australia as an alternative to extradition do not warrant the exercise of your discretion not to surrender Mr Lobban to the United States.

…

75.    In summary, we are of the opinion that you may be satisfied that:

a.    there are no extradition objections in relation to the offences for which Mr Lobban's extradition is sought

b.    Mr Lobban will not be subject to torture on surrender to the United States

c.    the death penalty does not apply in this case

d.    the speciality assurance in the bilateral extradition treaty between Australia and the United States applies in Mr Lobban's case

e.    no mandatory or discretionary grounds for refusal under applicable regulations are made out in this case, and

f.    none of the following matters raised by Mr Lobban, taken individually or collectively, warrant the exercise of your discretion under section 22(3)(f) not to surrender Mr Lobban to the United States:

i.    Mr Lobban' s claim that his surrender to the United States would violate his right to family life given that his sister and former de facto pat1ner reside in Australia and that he has no family in the United States

ii.    Mr Lobban's claim that his surrender to the United States would violate his right not to be subjected to arbitrary arrest or detention on account of the mandatory sentence that will be imposed if he is convicted of the qualifying extradition offences in the United States, and from the possibility that he may be subject to a 'civil commitment' process

iii.    Mr Lobban's claim that his surrender to the United States would violate his right not to be subjected to cruel, inhuman or other degrading treatment or punishment on the basis that the mandatory sentence that will be imposed if he is convicted is 'grossly disproportionate' when compared with the sentence he would receive if convicted of like offences in Australia

iv.    Mr Lobban's claim that, instead of being extradited, he should be prosecuted under the laws of Western Australia given that he was in Western Australia at the time he allegedly committed the offences

v.    Mr Lobban's claim that he will not receive a fair trial in the United States, and

g.    no other reasons exist for you to exercise your discretion to refuse surrender, including considerations of timeliness or the reasonableness of such a decision in all the circumstances.

23    Amongst the other documents supplied to the Minister was the United States Department of Justice brief, prepared in support of the request by the United States for the extradition of Mr Lobban which set out substantial additional material, including the charging process, the procedural history of the case, the identification of the offences and penalties, elements of the offences charged, the statute of limitations and the status of the case. There were supplementary materials, both from the United States and submissions on behalf of Mr Lobban. The brief also included a substantial body of local commentary on the actions and activities of Polk County Sheriff Judd. Some of this material related to the particular circumstances of Mr Lobban and his co-accused, including related comments made by the Polk County Sheriff to the media.

24    In relation to sentencing, the United States Department of Justice brief advised (at [270]-[271]):

…

Mandatory Minimum Sentence

Second, Mr. Lobban asserts he should not be surrendered to the United States because he will be subjected to a mandatory minimum sentence under Florida state law. As to Counts 1 and 2, if Mr. Lobban is convicted as charged, that is, a jury finds beyond a reasonable doubt that Mr. Lobban victimized two or more persons during the time period applicable to his offense, then the presiding judge will be required to sentence Mr. Lobban to 25 years to life incarceration. Mr. Lobban will be required to serve the full mandatory term imposed, and at least 85% of any non-mandatory term. There are no applicable early release options to the mandatory portion of the sentence except clemency, which is a grant of the Governor [The concepts of pardon and clemency are essentially the same under Florida law.]. Pursuant to Article IV, Section 8 of the Florida State Constitution, Mr. Lobban may petition the Governor’s office directly for clemency. The Governor and his Cabinet make clemency determinations; the Cabinet includes the Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. The Florida Parole Commission (“Parole Commission”) investigates clemency applications; it also investigates applications for conditional medical release under Section 947.914 Fla. Stat., in cases where an inmate is terminally ill or permanently incapacitated. The Florida Department of Corrections (“Department of Corrections”) refers such inmates to the Parole Commission for review. Clemency and conditional medical release are exempted under Section 794.0115, Fla. Stat., mandatory sentences.

As to Counts 5 and 6, involving violations of sections 800.004(4)(b) and 777.04(2), Fla. Stat., those offenses are subject to the mandatory sentence under section 794.0115. However, in order for the mandatory minimum sentence to be applied it must be charged as such and specific findings must be made by the jury. Mr. Lobban is not charged with the mandatory sentence in the charging document, therefore, the mandatory minimum sentence will not apply to Counts 5 and 6.

Life Sentence

If Mr. Lobban is sentenced to a term of life imprisonment under 794.0115 Fla. Stat., he will be sentenced to life without parole. The State of Florida abolished the parole system in 1983. Therefore, no form of early release is applicable for an offender sentenced to a term of life imprisonment after 1983 absent an act of clemency by the Governor and his Cabinet. The only exceptions to a life without parole sentence is if the offender (1) was a juvenile at the time he committed the offense, or (2) was convicted of first degree murder or capital sexual battery prior to 1995 and sentenced under the capital mandatory law statute that predated 1983. Neither of those exceptions is applicable in this instance. As described above, Pursuant to Article IV, Section 8 of the Florida State Constitution, Mr. Lobban may petition the Governor’s office directly for clemency.

…

25    The Minister was supplied with a paper commentating on the relevant legislation: Presley MM, ‘Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators Treatment and Care Act: Replacing Criminal Justice with Civil Commitment’ (1999) 26 Florida State University Law Review 487. In this paper, the author raised serious criticisms of the legislation.

26    Against that background, it is necessary to consider the arguments advanced in support of the grounds of challenge.

GROUND 1: FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION – ART V OF the TREATY

27    The effect of s 11(1) and (1C) of the Act, together with reg 4 of the US Regulations, is to make the operation of the Act in relation to the United States subject to the Treaty. The Act therefore applies subject to the necessary qualification or exception found in Art V of the Treaty. The point in time when the Act gives effect to that necessary qualification or exception is when the Minister comes under the duty in s 22 of the Act, pursuant to s 19(2)(c) of the Act, with the mechanism for doing so provided by s 22(3)(e).

28    I have already drawn attention to the content of the Brief concerning Art V. Mr Lobban submits that the Brief to the Minister on Art V set out in the first sentence of the Brief at [31] (set out above at [22]) would have been correct in respect of the original 1976 Treaty. However, the Protocol effected a significant change to Art V. Article V of the Treaty is required to be interpreted in accordance with the principles of the 1969 Vienna Convention of the Law of Treaties. The most significant principles for present purposes are those in Art 31, as discussed in Minister for Home Affairs (Cth) v Zentai (2012) 246 CLR 213 (at [18]-[19]).

29    The point made for Mr Lobban is that when the State parties agreed in 1990 to amend Art V by replacing paragraph (2) with a new paragraph, bearing in mind that the purpose of the Treaty is for extradition, they agreed to condition the (discretionary) right of the requested party to refuse surrender of one of its nationals with a duty to prosecute that national if so requested by the requesting State. Article V of the Treaty, according to Mr Lobban, gives effect to a form of an ‘extradite or prosecute’ obligation.

30    This obligation is particularly apt at present, Mr Lobban submits. Many offences now have a multi-jurisdictional character or may be proscribed under national laws that give effect to obligations assumed under widely ratified treaties. Offences and treaties pertaining to terrorism, drug smuggling and money laundering are examples. Many bilateral and multi-lateral cooperation treaties have been entered into. Mr Lobban argues that the notion that may have underpinned the old theory of extradition law and practice, namely, territoriality of the offence and the greater interest of the requesting State in prosecuting it, no longer hold true. Rather, for present purposes, it is argued that the Brief to the Minister incorrectly advised him as to the entirety of Article V and its proper construction. He submits that had the Brief to the Minister correctly advised him, he would have known he had the discretion under the Treaty not to surrender Mr Lobban. Although in this case the United States could have required that Mr Lobban be prosecuted in Australia and Australia would have come under an obligation to do so (in respect of which see Art V of the Treaty, which is to be interpreted in accordance with the Vienna Convention, and particularly Art 26 in this instance), the object and purpose of the Treaty and the Act would not have been frustrated. On the facts of this case, Mr Lobban contends that the option to prosecute in Australia would have been a powerful consideration in favour of the Minister exercising the Treaty discretion in that way. It is submitted that, although the Minister purported to give consideration to Art V of the Treaty, in fact, he failed to do so. It was thus submitted that there was a constructive failure to exercise the duty in s 22(2) of the Act, read with subs (3)(e).

31    There will be jurisdictional error if the Minister purports to determine a surrender in circumstances where an article does not permit it. Similarly, where there is a misconstruction of the Treaty obligation, it was argued, there will be jurisdictional error. Counsel stressed that the entirety of the advice as to the effect of Art V was what was contained in [31] of the advice within the Brief.

32    The essential complaint is that no reference was made in the discussion at [31] of the Brief to the amended para (2) of Art V of the Treaty, which for convenience is repeated:

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.

Ground 1: consideration

33    A failure to take into account a relevant consideration arises only when the decision-maker is bound to take into account a factor in accordance with the criteria established under the relevant statute: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J, as the Chief Justice then was (at [39]).

34    The Minister contends that there has been, in Mr Lobban’s argument, no precise identification of a factor that the Minister was bound to take into account, yet failed to consider. Reading Art V as a whole, the only circumstance identified which would permit refusal of an extradition request is where the person the subject of the request is a national of the requested state. The second paragraph of Art V imposes an obligation on the requested state to submit the case to domestic authorities for prosecution only if asked to do so by the requesting state. But that obligation arises only after the state that is the subject of the request has determined that surrender should be refused on the grounds of nationality. The Department was correct in saying that it is well-established that Australia is not bound to refuse surrender simply on the grounds that the person whose surrender is sought is an Australian citizen.

35    As well as Art V, s 45 of the Act relevantly provides as follows:

45    Prosecution of persons instead of extradition

…

(3D)    Proceedings for an offence against subsection (1) must not be commenced without the Attorney-General’s written consent.

(4)    The Attorney-General shall only give his or her consent under subsection (3D) in relation to the offence if:

(a)    an extradition country has sought the surrender of the person in respect of an extradition offence, or offences including an extradition offence, constituted by the conduct referred to in paragraph (1)(b); and

(b)    the Attorney-General has determined under section 15B or 22 that the person is not to be surrendered to the extradition country.

…

(6)    A consent given under subsection (3D) is not a legislative instrument.

36    The combined effect of s 45(3D) and (4) qualifies the ‘extradite or prosecute’ obligation relied upon by Mr Lobban, effectively providing that any decision to prosecute can only be made after the Attorney-General or the Minister representing the Attorney-General has actually determined that the person is not to be surrendered. This said, it could not be argued that the opportunity for Australian prosecution is a factor that should be ignored when the surrender decision is made. It is one of the factors constituting the totality of the Act and to simply view the surrender in isolation would not be a correct approach to statutory construction. However, in the circumstances of the present statute, Mr Lobban’s submissions take the Minister’s obligation too far. While his or her consent is necessary before a domestic prosecution can be commenced, s 45 does not empower or oblige the Minister to actually commence or decide to commence a prosecution. Rather, any decision to prosecute would rest with one or more Director(s) of Public Prosecution (DPP). It would be most unusual for the Minister to commence a prosecution in his own name or to direct a DPP to indict the person whose extradition was sought. Nothing in the Act compels the Minister to do so.

37    In any event, and perhaps more importantly, this ground of complaint does not accord with reality, in my respectful view, as it is clear that the Minister was advised in the Brief of the contention for Mr Lobban that it would more appropriate for Mr Lobban to be prosecuted in Australia, rather than to be surrendered to the United States. It is clear that this issue was drawn to the Minister’s attention and the representations on behalf of Mr Lobban were expressly identified and considered in the Brief (at [8(c)], [8(d)], [53]-[55], [61], [63]-[66] and [75(f)(iv)]). Indeed, the Minister was expressly advised that he had a discretion to refuse to surrender if he considered a domestic prosecution was more appropriate. The Department advised (at [66]), however, that in the circumstances of Mr Lobban’s case ‘the possibility of prosecution in Australia as an alternative to extradition [did] not warrant the exercise of [the Minister’s] discretion not to surrender Mr Lobban to the United States’.

38    In my view, the Minister was clearly and correctly advised of the options that were open. In all these circumstances, it cannot be contended that the Minister failed to take into account whether surrender should be refused because a domestic prosecution would be more appropriate.

39    It follows that Ground 1 must fail.

GROUND 2: application OF AN INFLEXIBLE AND ULTRA VIRES POLICY

40    Arising out of [31] in the advice to the Minister in the Brief, Mr Lobban argues that the Minster was advised that he should adopt the ‘long standing policy’ that Australia does not refuse extradition on the basis of nationality ‘alone’.

41    Mr Lobban argues that this approach excludes the proper consideration of the merits of the individual case, being the mark of an inflexible policy within the meaning discussed in Elias v Commissioner of Taxation (2002) 123 FCR 499 (at [34]) and is itself a form of jurisdictional error as identified in Jackson v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 643 (at [20]). Additionally, if the policy is described as one that only embraces para (1) of Art V of the Treaty, it would be ultra vires the Act because the Act is made subject to the Treaty, and the Treaty provides for a different form of executive discretion not to surrender one’s nationals.

42    The way it is put for Mr Lobban is that the Minister’s application of the inflexible policy meant that the Minister was not, but should have been, briefed that matters relevant to the individual merits of his case, included that:

(a)    the conduct alleged against Mr Lobban occurred in Australia;

(b)    Mr Lobban could be prosecuted in Western Australia for an equivalent offence by either the Commonwealth DPP or the State DPP as contemplated by Art V of the Treaty;

(c)    admissions made by Mr Lobban’s then de facto partner who resided in Western Australia were relevant to the case against him and whether or not he could be found guilty beyond reasonable doubt; and

(d)    the ‘extreme disproportion’ between the punishment Mr Lobban would be exposed to if extradited to the United States compared with the likely punishment he would receive if prosecuted and found guilty in Australia.

Ground 2: consideration

43    In my view, Mr Lobban faces similar difficulties on this ground, as with Ground 1. The premise on which Ground 2 relies does not, in my assessment, fairly represent that which the Minister was advised in the Brief.

44    It is unnecessary to repeat [31] of the Brief, other than to confirm that the Minister was expressly advised that Australia’s long standing policy was not to refuse extradition on the basis of nationality alone and that there was no basis to depart from that policy in this particular case. Specific reference was then made to representations by Mr Lobban concerning separation from family and friends in Australia, being matters directly relevant to consideration of whether his nationality warranted a refusal to surrender. Indeed, the Minister was also expressly advised of each of the matters set out in [42] above within the Brief (at [36], [53]-[56], [61], [63]-[66] and [75(f)(iv)). As I have said previously, the Brief, of 485 pages, comprehensively advanced, not only the matters then raised for Mr Lobban, but also the matters now raised, particularly in relation to Ground 2. It follows that the Minister was not simply advised of an inflexible policy to disregard the fact that Mr Lobban was an Australian national. Rather, he was duly apprised of a wide range of other matters that it was open to take into account.

45    Ground 2 cannot succeed.

GROUND 3: WEDNESBURY AND LI UNREASONABLENESS

46    A substantial proportion of the argument was directed to Ground 3. Mr Lobban relies upon the joint and several effect of four factors in support of his argument that the Minister’s determination that Mr Lobban should be surrendered to the United States was ‘Wednesbury unreasonable’. Those factors in summary as submitted on behalf of Mr Lobban are that:

(a)    Mr Lobban could be prosecuted in Western Australia;

(b)    the punishment which may follow conviction of the extradition offences in Florida is substantially more severe than that which might be imposed if he were convicted in Western Australia;

(c)    the gravity of the effect of surrender on Mr Lobban’s common law and Treaty based rights is very severe; and

(d)    Mr Lobban has spent as much time in custody awaiting extradition as he would be likely to face if imprisoned following conviction in Western Australia.

47    Wednesbury unreasonableness has recently been closely examined by the High Court in Li. In that decision, French CJ pointed out (at [30]) that the absence of reasonableness:

… is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.

48    At [28], the Chief Justice said (footnotes omitted):

Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said [in Wednesbury], that although a decision-maker has kept within the four corners of the matters it ought to consider "they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it." In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.

49    In Li, in the joint judgment of Hayne, Kiefel and Bell JJ their Honours said (at [66] and [68]) (footnotes omitted):

66    This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

…

68    Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area

50    I will adopt Mr Lobban’s convention of referring to the Wednesbury/Li unreasonableness as ‘legal unreasonableness’. As Mr Lobban submits, formation of a ‘state of satisfaction’ jurisdictional fact will be vitiated by legal unreasonableness: D'Amore v Independent Commission Against Corruption (2013) 303 ALR 242 (at [71]).

51    As noted above, s 22(3) of the Act provides that the eligible person is only to be surrendered if the matters in (a)-(f) are satisfied. The Minister retains by (f) a residual discretion, beneficial to the eligible person not to surrender him or her even in circumstances where all of the matters in (a)-(e) are satisfied.

52    It is central to Mr Lobban’s submissions that the beneficial purpose of the residual discretion in (f) is highly relevant in evaluating legal unreasonableness.

53    As to each of the factors and arguments advanced on a joint and several basis by Mr Lobban, he makes the following submissions.

Prosecution in Western Australia

54    It is common ground that Mr Lobban could be prosecuted in Western Australia for offences contrary to State and Commonwealth laws that are broadly equivalent to the extradition offences. Mr Lobban says that there is no doubt that Australian standards, including the likely range of penalties available to be imposed if an Australian conviction were secured, were relevant considerations in the exercise of the Minister’s residual beneficial discretion under (f). This is not in dispute: see Commonwealth Minister for Justice v Adamas (2013) 253 CLR 43.

55    Mr Lobban argues that the Minister’s state of satisfaction as to the matters identified in subs 22(3)(a) and subs (e) must be ‘reasonable’ in the sense that the state of satisfaction must be one that could be reached by a person with an understanding of the nature of the statutory function being performed under s 22 of the Act and must be based upon facts or inferences supported by logical grounds: D'Amore per Beazley P (at [91]).

Punishment

56    As Mr Lobban submits, the representations made on his behalf and which were before the Minister stressed the sentence that he would receive if convicted in Florida (up to and including a life sentence) the mandatory nature of the sentence he would receive on counts 1 and 2, and the absence of any parole. Further, the representations made clear the risk that he could also be exposed to civil confinement. He stresses that nothing revealed in the Brief to the Minister on surrender pre-conditions contradicts this evidence.

Effect on human rights

57    Mr Lobban submits there are a number of fundamental human rights that the determination made by the Minister may severely affect, being:

(a)    the right to a fair trial;

(b)    the right not to be subjected to cruel, inhuman or other degrading treatment or punishment;

(c)    the right to liberty, security and of not being subjected to arbitrary arrest or detention; and

(d)    the right to family.

58    Mr Lobban submits that the legal advice in the Brief to the Minister on surrender pre-conditions (with the possible exception of the right to a fair trial at common law or under Art 14(1) of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR)), failed to stress that those rights would be put at risk. The question addressed in the Brief was whether the Minister should find there would be a breach of Arts 7, 9, or 23(1) of the ICCPR.

59    For Mr Lobban it is submitted that even without a positive finding that there could be a breach of those ICCPR rights, it was clear on the materials before the Minister that the effect on those rights range from severe to extraordinary. Mr Lobban observes that there is no evidence that the Department advised the Minister on relevant international jurisprudence, such as Babar Ahmed v United Kingdom [2012] ECHR 609, R (Wellington) v Secretary of State for the Home Department (2008) UKHL 72, R v Smith (Edward Dewey) [1987] 1 SCR 1045, Sullivan v Government of the United States of America (2012) EWHC 1680 (Admin) (as referred in the representations made on behalf of Mr Lobban), Norris v Government of the United States of America (No 2) [2010] 2 AC 487, or H(H) v Deputy Prosecutor of Genoa, Italy [2013] 1 AC 338.

Delay

60    Added to all those factors, Mr Lobban particularly relies upon the grievance of delay in the context of legal unreasonableness. Mr Lobban submits that if he were prosecuted in Western Australia, there was material before the Minister (put forward by Mr Lobban and not contradicted by the Department in the Brief) that the likely sentence range would be a fine to imprisonment for four years. Mr Lobban says then that the delay by the Minister’s own Department in the matter becomes a highly relevant matter. He submits that the Minister must be taken to be aware on the entirety of the materials before him that the Department ‘was taking its time to prepare a [Brief]’, while Mr Lobban was suffering the depravation of his liberty without having been found guilty of any offence. Mr Lobban submits that in contrast to various other extradition matters briefed to the Attorney-General this was very straightforward case. Notably, no time was required to seek and obtain a speciality assurance and in the circumstances to evaluate its adequacy, because it is deemed to be given pursuant to the Treaty. No issue of any complexity arose with respect to any potential extradition objection, such as the political offence objection or with respect to non-refoulement obligations under Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, [1989] ATS 21 (entered into force 26 June 1987) and Art 7 of the ICCPR.

61    Mr Lobban points to the following chronology:

(a)    on 30 April 2012 a Magistrate found Mr Lobban eligible for surrender to the United States in relation to the extradition offences, and committed him to prison to away surrender under s 19(9) of the Act;

(b)    there was no review of the Magistrate’s order under s 21 of the Act;

(c)    the representations on behalf of Mr Lobban, in respect of which the Department considered it should obtain a response from the United States, were made on 14 May 2012 (two weeks after the s 19(9) warrant) and 23 August 2012 (within four months of the s 19(9) warrant);

(d)    in respect of the 14 May 2012 representations:

(i)    the Department wrote to the United States twice. Once, sufficiently promptly, on 14 June 2012, and a second time on 3 September 2012. There is no reason why all matters could not have been raised, promptly on 14 June 2012; and

(ii)    the United States responded on 28 September 2012 to the Department’s letter of 14 June 2012 (an interval of time, needed at the United States end, of three and a half months), and on 16 November 2012 to the Department’s letter of 3 September 2012 (an interval of time, at the United States end, of two and a half months);

(e)    in respect of the 23 August 2012 representations:

(i)    it was only on 5 April 2013 that the Department wrote to the United States (a delay of over seven months from receipt of the representations); and

(ii)    the United States responded on 16 August 2013 to the Department’s letter of 5 April 2013 (an interval of time, needed at the United States end, of just over four months);

(f)    the longest time needed at the United States end was therefore four and a half months;

(g)    although the Department had received the last relevant letter from the United States on 5 April 2013, it was only on 13 February 2014 (a delay of over 10 months) that it provided copies of the correspondence to Mr Lobban, giving him until 14 March 2014 to provide any response;

(h)    on 11 March 2014 Mr Lobban by his solicitors provided the response; and

(i)    on 18 October 2014 (a delay and its effect of six months from the last representations from Mr Lobban), the Department gave the Brief to the Minister.

62    Mr Lobban complains that there is no explanation by the Department for the various, long periods of delay and its effect.

63    Insofar as the Minister might seek to argue that Mr Lobban made further representations during that period, and receipt of those caused delay, that argument is refuted in advance by Mr Lobban as:

(a)    the letter from Tottle Partners solicitors to the previous Attorney-General, dated 15 March 2013, simply annexed news articles on the Sheriff of Polk County;

(b)    the letter from Tottle Partners to the previous Attorney-General, dated 28 November 2013 covered the same issues addressed in the first two sets of representations, provided a further news article on the Sheriff of Polk County, an academic article on the ‘Jimmy Ryce’ statute, and a two-page extract from another academic article on human rights infringed by mandatory sentencing – so little were any of these materials considered to travel beyond the issues already raised that there is no reference at all to these representations in the Department’s advice on surrender preconditions; and

(c)    the letter from Tottle Partners to the previous Attorney-General, dated 18 July 2014, simply annexed a further news article on the Sheriff of Polk County.

64    On the basis of this chronology, Mr Lobban submits that:

(a)    the latest submissions by Mr Lobban, considered by the Department to require a response from the United States, were on 23 August 2012;

(b)    accepting a period of just over four months for a response by the United States, by 23 September 2012 the Department should have been able to write to the United States, and by 16 January 2013 it would have received the response from the United States;

(c)    by the end of January 2013 the Department should have written the letter to Mr Lobban;

(d)    by the end of February 2013 Mr Lobban would have provided a response; and

(e)    the Department, bearing in mind the obligation imposed on the Minister by s 22(2) to make a determination ‘as soon as is reasonably practicable’, could have, and should have, provided the Brief to the Minister by 16 April 2013.

65    Mr Lobban argues that the delay and its effect caused Mr Lobban to be in extradition detention for an additional period of 18 months. Even if Mr Lobban had been found guilty in Western Australia of equivalent offences to the extradition offences and sentenced to imprisonment at the higher end of the range, he would most likely have been eligible for parole after 18 months, he argues, put differently, the delay and its effect by the Department equals the likely time Mr Lobban would have spent in jail, if convicted, after a proper trial, such imprisonment giving effect to a judicial sentence. Instead, Mr Lobban is still in extradition detention.

Ground 3: consideration

66    I will address the topics, which are advanced on a joint and several basis, in the same order as argued for Mr Lobban.

Prosecution in Western Australia - consideration

67    In the context of the submission as to legal unreasonableness, the Minister maintains his submission that the argument for Mr Lobban wrongly assumes the Minister was bound to determine whether Mr Lobban could be prosecuted domestically before determining whether to grant the United States extradition request. The Minister says that given there was no obligation to consider prosecution before making the surrender decision, there cannot be any question of unreasonableness. In any event, the Minister argues the conclusion that Mr Lobban ought to be surrendered to face prosecution in Florida, rather than face prosecution domestically, is one which could reasonably be reached with an understanding of the nature of the power to determine whether a person should be surrendered.

68    In my view, as the High Court noted in Li, the fact that reasonable minds might differ as to the conclusion does not mean the determination was vitiated by jurisdictional error in the form of legal unreasonableness. The Minister was entitled to give priority to the purpose reflected in s 3(c) of the Act. Section 22(3)(f) does not require the Minister to have reached any ‘state of satisfaction’. Rather, s 22(3)(f) confers a general discretion on the Minister to determine whether the person should be surrendered. In construing the nature of the statutory function the Minister is performing under s 22 of the Act for the purpose of assessing the reasonableness of a determination, primary regard must be had to the express ‘principal objects’ of the Act as identified in s 3. Of particular relevance, the Minister submits, is the object of enabling Australia to carry out its obligations under extradition treaties. Section 3 provides as follows:

3    Principal objects of Act

The principal objects of this Act are:

(a)    to codify the law relating to the extradition of persons from Australia to extradition countries and New Zealand and, in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of an offence;

(b)    to facilitate the making of requests for extradition by Australia to other countries; and

(c)    to enable Australia to carry out its obligations under extradition treaties.

69    The object in s 3(c) is certainly of importance and particularly pertinent to the present situation.

70    The statutory purpose in s 3(c) of the Act was achieved by the Minister’s determination and it was open to him to put that purpose ahead of the possibility of Australian prosecution.

Punishment - consideration

71    As to the question of severity of the punishment, it is inevitable that differences may arise between nations as to how severely an offence should be punished. This is not without safeguards. That a person should not be extradited to face punishment for conduct not criminalised in Australia is also recognised by the ‘dual criminality’ requirement under s 19(2)(c) of the Act. There is also additional protection provided by the requirement for the provision of a speciality assurance pursuant to s 22(3)(d) of the Act. In relation to punishment, however, the only qualifications expressed in the Act are that a person surrendered for extradition must not be susceptible to torture (s 22(3)(b)) or penalty of death (s 22(3)(c)). There is the further protection under the Treaty itself (Art II) that an offence is an extraditable offence only if it is punishable under the laws of both states by deprivation of liberty of more than one year.

72    While Australian standards are relevant, they are not determinative. It cannot be said that the severity of the punishment which Mr Lobban may face in Florida renders the surrender determination legally unreasonable.

73    I accept that it is self-evident from the cases and submissions filed in support of the representations made for Mr Lobban and in the submissions filed in this Court that it is distinctly probable that any sentence imposed, were a conviction recorded against Mr Lobban by a court in Western Australia or Australia, would be considerably less than that which might be imposed by a court in Florida if Mr Lobban were to be convicted. I note, and it is common ground, that the maximum penalties under Western Australian law for the equivalent offences identified by Mr Lobban are in the order of seven to 10 years and the maximum penalties for offences under the Criminal Code 1995 (Cth) are in the order of 15 to 20 or 25 years. I also note the Minister’s submission there is no guarantee that a parole period would be imposed or, even if Mr Lobban were eligible for parole, that parole would be granted. I think these submissions for the Minister are, with respect, somewhat guarded. The consequences of a conviction in Florida are, in probability, considerably more severe than the consequences of a conviction in Western Australia or Australia.

74    In this context I note that the Minister also contends that Mr Lobban’s submissions wrongly presume that a comparative analysis of domestic and foreign sentences for the offences constituted by the alleged conduct is a mandatory part of the Minister’s function in making a determination under s 22. The Minister makes the point that a comparison of the length of Mr Lobban’s detention awaiting extradition with the sentence he might serve in Western Australia could be of principal relevance only if incarceration in Western Australia were the principal object of the Act. Rather, the Minister says:

The principal object is the facilitation of the extradition of [Mr Lobban] to the United States so that he may face trial and punishment according to American law. Compared to the length of time [Mr Lobban] may face in prison in the United States if convicted, the length of time [Mr Lobban] has spent in detention to date is not significant.

75    Mr Lobban’s view may obviously differ from this perspective. I do not take Mr Lobban’s argument to be that comparison of domestic and foreign sentences is a mandatory part of the function. Rather, the argument is that as a comparison reveals that the disparity is so great, there was legal unreasonableness in the Minister’s determination under s 22 of the Act. Further, as discussed above, Mr Lobban argues that with the ‘delay’ in the Minister’s surrender determination he has spent as much time in detention as the would have spent in prison if he had been convicted and granted parole in Western Australia. Mr Lobban’s case is that there is an extreme disproportionality between the sentence that he most likely would face if convicted in Western Australia compared with the mandatory sentence of 25 years (with a life sentence possibility, and no possibility of parole) that he would face in Florida.

76    In light of the above, I have treated the argument for Mr Lobban as being a contention that it is legally unreasonable to not decline surrender and, if requested by the United States, to pursue prosecution within Western Australia or Australia in circumstances where the disparity of the sentencing is so significant. As the High Court held in Adamas, the Australian position is relevant. But, as the High Court also held, the Australian criminal law system is only one aspect and respect must be given to the judicial system of the requesting country.

77    Considering that the Treaty and the Act expressly identify those matters which might preclude surrender, it does not appear to me that it is open to conclude that the decision to surrender falls within the ambit of legal unreasonableness as identified in Li. While others may come to a different conclusion in relation to the surrender decision and it may appear in the circumstances to be a harsh decision, that does not expose the Minister’s surrender determination to jurisdictional error.

Human rights - consideration

78    As to Mr Lobban’s common law and Treaty based rights, once again, it is inevitable in extradition that a surrendered person may face different trial processes and penalties in the requesting country from those which might be faced at home. It is equally inevitable in any criminal justice system that, if convicted, the rights of the individual facing prosecution will be curtailed. This is inherent in punishment if one is convicted for criminal offending.

79    The contention for Mr Lobban that the Minister may not have been advised on ‘relevant international jurisprudence’ is not a ground of review in itself, nor was it a mandatory consideration for the Minister to consider such cases. The failure to do so does not show that the Minister applied the wrong test. In any event, the cases referred to by Mr Lobban almost invariably involve their own factual circumstances. The English cases, including Babar Ahmed and R (Wellington), are affected by the Convention for the Protection of Human Rights and Fundamental Freedoms, open for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force 3 September 1953) (as amended), given statutory force in the United Kingdom. A Canadian case cited is more apposite. But again, those matters were before the Minister within the letters from Mr Lobban’s solicitors made available to the Minister as part of the Brief.

Delay - consideration

80    As to the question of delay, in the circumstances of a minimum sentence provision, the fact that considerable time has already been spent in detention is capable of being a relevant factor to take into account. But the fact that it was either not taken into account or not considered to be sufficient to warrant declining to surrender Mr Lobban is not a factor going to legal unreasonableness, even where there is an obligation to make a determination ‘as soon as reasonably practicable’, having regard to the circumstances: s 22(2) of the Act.

81    Mr Lobban complains of a period of delay of 18 months (between 16 April 2013 and 16 October 2014). However, the earliest date in which the Department could have actually provided a completed Brief to the Minister in the circumstances as they actually occurred was 18 July 2014 after receipt of the final letter to the Department from Mr Lobban’s solicitors.

82    There was no undue delay between providing the Brief to the Minister and after receipt of the final submissions from Mr Lobban’s solicitors. Not unreasonably, those representing Mr Lobban chose to advance their submissions which were sophisticated, restrained and well argued in the hope of persuading the Minister to a different course. In doing so, it was inevitable that additional time would be spent by Mr Lobban in detention. On this occasion the Minister was not persuaded to refrain from surrendering Mr Lobban. There can be no suggestion (nor is it argued) that the Minister himself did not respond as soon as reasonably practicable within the meaning of the Act after receipt of the Brief. There would be a complaint by Mr Lobban if the Minister acted before receipt of the final submissions. I accept the submission that while this case is not as complex as some, it is not helpful to compare entirely different cases resting on entirely different grounds. I have already adverted to the length of the Brief to the Minister, which was comprehensive, including the submissions made for Mr Lobban as well as the analysis by the Department. The delay factor was not relevant to legal unreasonablemess

83    Ground 3 cannot succeed.

GROUND 4: DISPROPORTIONATE EXERCISE OF POWER UNDER S 22

84    Mr Lobban argues that a disproportionate exercise of an administrative discretion can be judicially reviewed under s 75(v) of the Constitution and under Li (at [30]), thus it can be judicially reviewable under s 39B of the Judiciary Act. Mr Lobban contends that a proportionality analysis is not an impermissible form of merits review under a different guise as queried by Spiegelman CJ in Bruce v Cole (1998) 45 NSWLR 163 (at 185). Rather, Parliament has been taken to have intended the conditioning of the discretionary power with the requirement of reasonableness: Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280 per Allsop CJ, Robertson and Mortimer JJ (at [43]). The Full Court of this Court has compared the approach on this topic with the approach to the review of the exercise of a judicial discretion in the nature of House v The King (1936) 55 CLR 499: Andary v Minister for Immigration & Multicultural Affairs [2003] FCA 211 (at [12]).

85    Particular reliance is placed by Mr Lobban on the joint reasons of Hayne, Kiefel and Bell JJ in Li, cited above, emphasising the centrality of ‘the rules of reason and justice’, and further noting that review of administrative decisions on legal reasonableness is analogous to the House v The King review and an ‘inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified’ (at [65] and [68]).

86    Mr Lobban further submits that a proportionality analysis as part of legal unreasonableness is called for when the possible exercise of a discretion adversely to an individual risks seriously infringing the person’s human rights. Accordingly, within the framework of legal reasonableness, proportionality takes its starting point from the notion that there should be a minimum of Government interference with prior rights, interests and freedoms. Mr Lobban complains that his fundamental human rights are being intruded upon and, accordingly, it is argued that the interference with the human rights of the person to be surrendered (and in respect of right to family, the rights of family members) outweighs the public interest in extradition. Mr Lobban relies upon the United Kingdom Supreme Court decisions of Norris and H(H) referred to above. He argues that the United Kingdom Supreme Court has found that there is always a public interest in extradition and that public interest will carry great weight, but the exact weight to be attached to it in any case varies according to the nature and seriousness of the crimes involved.

87    It is argued that in the present case it is highly relevant that the Treaty obligation to which the Act is subject is one of ‘extradite or prosecute’. It is particularly important, it is submitted that the public interest of seeing that an accused person will face a prosecutorial process is not defeated in this instance, even if the person is not extradited.

88    The Act confers on the Minister (in (f)) a residual beneficial discretion not to extradite a person, even when all other mandatory requirements under subs (3) are satisfied. Under Australian law, according to Mr Lobban, in particular, by reason of Art V of the Treaty, it would be incorrect to start from the position that the public interests in extraditing a person necessarily carried great weight.

89    Mr Lobban argues that in the present case having regard to:

(a)    Art V of the Treaty, properly construed;

(b)    the fact that Mr Lobban could be prosecuted in Western Australia for offences equivalent to the extradition offences;

(c)    the degree of seriousness of the offences alleged as a matter of Australian law and on any objective comparison, having regard to crimes such as murder, rape, genocide, torture and so on;

(d)    the sentence range if Mr Lobban were convicted in Western Australia; and

(e)    the severity of punishment he would receive if convicted in Florida, including the mandatory nature of the sentence on counts 1 and 2 and the fact that he would never be eligible for parole,

the exercise of the Minister of the discretion under (f) in a manner adverse to Mr Lobban has resulted in a clearly disproportionate exercise of the power set out in s 22(2) of the Act.

Ground 4: consideration

90    Disproportionality is not a recognised independent ground of jurisdictional error in Australian law. This is made clear by Spiegelman J in Bruce v Cole (at 185). Those passages in Li upon which Mr Lobban relies upon as supporting the availability of the ground do not recognise it as being a ground independent of the ground of legal unreasonableness.

91    The first of those passages is from the judgment of French CJ in Li is at [30] (footnotes omitted):

…

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.

(emphasis added)

92    In this passage, the Chief Justice describes the disproportionate exercise of administrative discretion in taking a ‘sledgehammer to crack a nut’ as irrational and also unreasonable simply on the basis that the exercise of administrative discretion exceeds what, on any view, is unnecessary for the purpose it serves.

93    The second passage relied upon by Mr Lobban from the joint judgment of Hayne, Kiefel and Bell JJ (at [76]) is repeated for convenience (footnotes omitted):

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(emphasis added)

94    In this passage, the focus should be on the last two sentences where the Court speaks of a decision in respect of which it may not be possible for a court to comprehend how it was arrived at. More importantly, frequently cited is the passage that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

95    Even in Norris, the United Kingdom Supreme Court observed that rarely, if ever, on an issue of proportionality, could the possibility of bringing criminal proceedings in the United Kingdom be capable of tipping the scales against extradition in accordance with the United Kingdom’s Treaty obligations. The Court held that unless the judge reaches the conclusion that the scales are finely balanced, he should not enter into an inquiry as to the possibility of prosecution in the United Kingdom (at [67], [86] per Lord Phillips; [106] per Lord Mance; and [131] per Lord Collins).

96    While disproportionality may be a factor to take into account in considering a legal unreasonableness submission, it does not, under Australian law as it presently stands, taken in isolation, offer a stand-alone basis for concluding there has been jurisdictional error in the exercise of the decision. (Nothing said in McCloy v New South Wales [2015] HCA 34 (delivered since argument in this application) concerning proportionality as a tool in construing legislative power, rather than administrative action, affects the position.)

97    The fourth ground is, in truth, only an element of the third ground. It would be necessary, as the Chief Justice has said in Li (at [30]), to conclude that the disproportionate exercise of the administrative discretion was in itself irrational or unreasonable as it exceeds, on any view, what is necessary for the purpose it serves. The Minister’s decision to surrender cannot be so characterised. It is but one final step in the administrative process, which is governed by other legislative safeguards.

98    Therefore, the fourth and final ground cannot succeed.

CONCLUSION

99    The grounds upon which this and many ministerial decisions may be reviewed, as Mr Lobban’s arguments acknowledge, are quite limited. In particular, it is not open to the Court to simply substitute what it considers might be the preferable decision for a decision which might be considered to be harsh. While Mr Lobban has pursued available options, at least through the judicial review process at first instance, those options do not entitle him to the relief he seeks through the courts.

100    As none of the grounds for Mr Lobban can be made out, the application must be dismissed. The following orders are made:

1.    The application be dismissed.

2.    The Applicant pay the costs of the Respondent, to be taxed if not agreed.

Associate:

Dated:    3 December 2015