Brock v Minister for Home Affairs - [2011] FCAFC 167 - FCAFC 2011 case summary — Zoe

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Brock v Minister for Home Affairs

[2011] FCAFC 167

Federal Court of Australia (Full Court)|2011-12-21|Before: Katzmann JJ, Ms J, Downes J, Foster J

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At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2011-12-21

Before

Katzmann JJ, Ms J, Downes J, Foster J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

summary 1 When an extradition request is made by an extradition country the Minister for Justice and Customs "may… by notice in writing… state that the request has been received" (s 16(1) of the Extradition Act 1988 (Cth). The Minister shall not, however, give the notice unless "of… opinion… that, if the conduct of the person constituting the extradition offence… had taken place in Australia… the conduct would have constituted an extradition offence in relation to Australia"(s 16(2)). 2 Where, amongst other things, a notice has been given under s 16 and an application made to a magistrate "the magistrate shall conduct proceedings to determine whether the person is eligible for surrender"(s 19(1)). "[T]he person is only eligible for surrender… if… the magistrate is satisfied that… the conduct… would have constituted an extradition offence in relation to that part of Australia [where the proceedings were conducted]" (s 19(2)(c)). 3 George Brock was arrested, on the application of the United States of America, his country of citizenship, on 17 March 2005. On 12 May 2005 the Minister gave a notice under s 16. In due course a magistrate made a determination under s 19 that Mr Brock was eligible for surrender. On 16 September 2009 the Minister made a determination that Mr Brock should be surrendered to the United States (s 22) and issued a surrender warrant (s 23). 4 The question in this case is whether in the making of the surrender decisions the Minister was misdirected or there was any denial of procedural fairness. The subject matter of the claims is an assertion that the s 16 notice was defective because the information before the Minister of "the conduct of the person constituting the extradition offence" (s 16) was not adequate. It is argued that the Minister acted on incorrect or incomplete information relating to the validity of the s 16 notice and that Mr Brock did not have an adequate opportunity to put submissions on this topic. 5 In my opinion Mr Brock's claim fails and the decision of Justice Foster, from which this appeal is taken, is correct. This is broadly because, first, any defect in the s 16 notice ceased to be relevant after it was replaced by the s 19 determination, which undoubtedly addressed the relevant conduct in detail, because, secondly, the information put before the Minister did not misdirect him and because, thirdly, there was no denial of procedural fairness.

[4]

surrender DETERMINATIONS 13 The Minister's surrender determinations under challenge in these proceedings have not been the subject of any previous challenge. Accordingly, there cannot be an objection to those decisions being examined for error. There is no reason why a prior decision to issue a s 16 notice might not become a factor for consideration in the examination. The Minister might decide to take into account the invalidity of a s 16 notice, when this was the fact, in exercising the discretion conferred by s 22. The question is not whether the validity of a s 16 notice might be relevant to a surrender determination, but whether the Minister chose to act on information which turned out to be wrong in making his decision. If he did that might amount to jurisdictional error infecting the decision. The claim, in the present case, that the Minister was misdirected ultimately depends upon the status of the s 16 notice because it is what the Minister was told about that notice that forms the basis of Mr Brock's claim. 14 The submission to the Minister which prompted the Minister in making his surrender determination contained the following: (c) the section 16 notice issued by the then Minister for Justice and Customs receiving the extradition request was invalid 48. In his letter dated 31 July 2009, Brock states that the required warrant and the extradition request were not put before the then Minister at the section 16 stage in the extradition proceedings. Brock contends that the case of Williams v Minister for Justice and Customs (2007) 157 FCR 286 at [31] and [47] held that the Minister was bound by statute to consider the matters called for under section 16 himself, and specially to know what the alleged conduct was. Brock therefore contends that the section 16 notice was invalid and that his extradition should be refused. Departmental comment 49 This assertion was the basis for Brock's recent application for special leave to the High Court. On 31 July 2009 the High Court denied special leave to Brock thereby affirming the decision of Justice Flick in the Federal Court to dismiss Brock's application in respect of the section 16 notice on 24 December 2007. Flick J decided that to now permit Mr Brock to commence separate proceedings in respect to the validity of the section 16 notice, when he had previously abandoned proceedings in respect to section 16 at an earlier time, "would certainly not promote finality in litigation and would only encourage a fragmentation of the avenues by which litigants can seek review of each of the four stages of extradition". The Full Federal Court refused Brock's application for leave to appeal and upheld Justice Flick's decision on 17 September 2008. All avenues of appeal have now been exhausted by Brock. You may therefore by satisfied that the section 16 notice was indeed valid and that this argument against its validity was unsuccessfully argued by Brock and dismissed by the Federal Court. In any event, if a challenge had been permitted by the Federal Court, the Department considers that it is arguable that the material placed before the then Minister in the submission for his consideration of whether to issue the section 16 notice would have satisfied the test in Williams. 15 Except from inference, it is not possible to know what was the Minister's actual response to the s 16 notice issue. The Minister had been told that his discretion was at large and that he "may take any other relevant matters into account…". What matters the Minister did take into account remain unknown because no formal reasons are available. 16 An essential step in Mr Brock's argument is that the Minister must have taken the above advice into account. That conclusion is not self-evident to me, but I will proceed on the basis that it is made out. To see whether the Minister was misled it is necessary to look at Williams v Minister for Justice and Customs [2007] FCAFC 33; (2007) 157 FCR 286 and to what happened in the fourth application.

[8]

Mr Brock was not denied procedural fairness 21 Mr Brock asserts that he should have been given an opportunity to comment on para 49 of the departmental minute. However, after the decision of Flick J, Mr Brock furnished submissions relating to his "extradition matter… pending Federal Full Court appeal in relation to the Minister of Justice s 16 notice". The attached submission included reference to the argument about the s 16 notice and referred to Williams. On 31 July 2009, the same day the High Court refused special leave, Mr Brock forwarded further submissions. Again, these submissions addressed the s 16 notice argument and referred to Williams. Both sets of submission plainly asserted that the s 16 notice was invalid being "affected by jurisdictional error and is to be considered under Australian law to be 'no decision at all'". 22 What amounts to want of procedural fairness depends on the circumstances of each case. In its broadest sense procedural fairness, where it applies, permits a subject "to know the case sought to be made against him and to be given an opportunity of replying to it" (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582 per Mason J). It does not require a decision-maker to put every nuance of what the decision-maker is considering for comment just as judges are not required to produce draft reasons for judgment for comment. If a decision-maker proposes to act on new considerations or new matters, not known to the subject, giving the subject an opportunity to comment will generally be appropriate. However, the matters said to attract procedural fairness in this case were at the heart of Mr Brock's arguments. They were comprehensively dealt with in Mr Brock's well-written submissions. Although Mr Brock did not, of course, refer to the departmental comment, his submissions put his arguments against their conclusions. 23 It is not necessary for me to consider whether, or to what extent, duties of procedural fairness applied in connection with the Minister's consideration of whether Mr Brock should be surrendered, because, if an obligation existed, it was satisfied.

[17]

REASONS FOR JUDGMENT KATZMANN J 31 I have had the privilege of reading in draft the reasons of Downes J. I agree with his Honour, for the reasons that he gives, that the appeal must be dismissed. I only wish to add some brief remarks of my own concerning two matters. 32 First, central to Mr Brock's case was an argument that a valid s 16 notice was an essential precondition to the exercise of the power to surrender under s 22 of the Extradition Act 1988 (Cth). This very argument was rejected by the Full Court in O'Connor v Zentai (2011) 195 FCR 515 at [44] per Besanko J, [125]-[128] per Jessup J, with whom North J agreed at [1]. 33 The conditions for the exercise of the power to order surrender are set out in s 22 itself. They do not include satisfaction as to the validity of the s 16 notice. I agree with Downes J that the Minister was entitled to consider the validity of the notice. He was not, however, bound to do so. 34 Secondly, the Minister's objection to the Court hearing argument on the question of breach of procedural fairness was well-founded. It rested on the principles set out in such cases as University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 and Coulton v Holcombe (1986) 162 CLR 1. Mr Brock had raised the issue in affidavits sworn on 26 October 2009 and 9 November 2009 but it formed no part of the amended application upon which he ultimately relied. Indeed, in answer to direct questioning from the primary judge and although he was then represented by counsel, he twice confirmed that he was confining his case to that which was included in the latest amended application. 35 In oral argument in reply Mr Brock tried to put the blame on his counsel, indicating that he was given Hobson's choice - either legal representation on the grounds she was prepared to argue or no legal representation at all. He insinuated that this was because he had "a pro bono barrister", not "a proper barrister". This submission must be emphatically rejected. The appellant was ably represented in the Court below by a barrister acting in accordance with the highest traditions of the Bar. The only feature that distinguishes a pro bono barrister from any other barrister is her or his willingness to act without fee. Barristers have a duty not to raise or maintain arguments that have no reasonable prospects of success. It is an aspect of their duty to the Court (see, for example, Richardson v The Queen (1974) 131 CLR 116 at 123). What was actually behind the decision to abandon this argument is not known, for it is not the subject of evidence. It is clear, however, that, for the reasons Downes J has given, the argument had no reasonable prospects of success. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.