Consideration of the Draft Amended Originating Application
82 At the hearing on 18 November 2019, Mr Matson made oral submissions upon the grounds in the Draft Amended Originating Application, as well as relying upon the written submissions filed by Mr Morris QC and the written submissions contained in his own affidavits dated 15 July, 4, 9, 11, 16, 20, 23 and 24 September, 21 October and 4 November 2019. Mr Matson also relied on affidavits filed after the hearing dated 19 and 20 December 2019 and 2 January 2020.
83 The Draft Amended Originating Application sets out four grounds in support of the relief sought. The application then sets out some 60 particulars of the ground relied upon. Although stated to be particulars, they amount to separate grounds of judicial review. I will treat them as comprising grounds of review.
84 The Draft Amended Originating Application was filed on 7 November 2019. The Attorney-General submitted that Mr Matson should not be allowed to rely on the Draft Amended Originating Application because of his non-compliance with orders made on 21 October 2019 requiring the document to be filed by 28 October 2019. I indicated at the hearing that, despite the non-compliance, I would allow Mr Matson to rely on the Draft Amended Originating Application if the grounds had sufficient merit.
85 The grounds raised in the Draft Amended Originating Application are set out below:
A. that procedures that were required by law to be observed in connection with the making of the Surrender Decision and issuing of the Surrender Warrant were not observed;
B. that the Surrender Decision and issuing of the Surrender Warrant were not authorised by the enactment in pursuance of which they were purported to be made;
C. that the Surrender Decision and issuing of the Surrender Warrant involved an error of law; and
D. that the Surrender Decision and issuing of the Surrender Warrant were otherwise contrary to law, in that:
The Applicant contends in support of paragraphs 1 through 9:
Particulars
(a) Contrary to subsection 22(2) of the Act, the decision that the Applicant be surrendered to the United States of America in purported pursuance of section 22 of the Act:
(i) was not made as soon as was reasonably practicable, having regard to the circumstances, after the Applicant became an eligible person; and
(ii) was not made, or not made exclusively, in relation to a qualifying extradition offence or qualifying extradition offences.
(b) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts (such argument may also be referred to as 'material', 'evidence' or 'information'), namely the Applicant's argument 'put on record' that any surrender order would be "unjust, oppressive or too severe a punishment"...by reason of delay...and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because of the Applicant's indigenous heritage that would have an effect on him being incarcerated for any lengthy period there…;
(c) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant's specific argument that "a sense of false security engendered in the defendant is also a relevant consideration" in determining whether extradition was unjust or oppressive, which argument was clearly raised in the Applicant's affidavit filed in QUD 89 of 2016.
(d) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant's argument that there was the potential of "torture, cruel and unusual punishment" in violation of the Applicant's fundamental human rights protected under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which was clearly raised in the Applicant's affidavit filed in QUD 89 of 2016 and raised in the Applicant's further amended originating application filed in QUD 569 of 2016.
(e) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a "failure to accord natural justice" on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant's argument that his constitutional implied rights protected under the Constitution were being violated, including the constitutional implied right to protection from cruel and unusual punishment, particularly in consideration of the total charges amounting to 305 years and the real likelihood of the Applicant receiving a disproportionately excessive sentence if convicted in the US...The constitutional implied rights argument was clearly raised in the Applicant's affidavit filed in QUD 89 of 2016 and also raised in the Applicant's further amended originating application filed in QUD 569 of 2016.
(f) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that over 180 documents containing "new" material that was adverse to the Applicant and that was "credible, relevant and significant" to the Surrender Decision were not provided to the Applicant prior to the Acting Attorney-General's Surrender Decision of 1 February 2019, which documents the Applicant had sought access to well before the Surrender Decision of 1 February 2019 via the correct legal process provided under the Freedom of Information Act 1982 (Cth)…
(g) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that other additional documents in relation to the Applicant were also withheld, including extradition related documents…in relation to the Applicant from 2005; and one (1) additional previously withheld document provided by a foreign state in relation to the Applicant for during the period of 2007 to 2009 which were "critical" to the Acting Attorney-General's Surrender Decision, as such documents also contained "new" material that was adverse to the Applicant, and that was "credible, relevant and significant" to the Surrender Decision;
(h) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that the Applicant was provided twenty 'misleading official communications' throughout his dealings with the Attorney-General's Department, mainly in relation to his FOI requests. Significantly, most often such communications were provided to the Applicant by the "Unit Head" of the International Cooperation Unit, Stephen Bouwhuis, Assistant Secretary;
(i) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that "all submissions and material" the Applicant had filed for the purposes of his judicial review applications before the Full Federal Court were not annexed to or adequately summarised in the 'Ministerial brief' put before the Acting Attorney-General…This would include all applications and amended applications, notices of appeal, submissions and affidavits filed in QUD 89, 569 and 844 of 2016 and QUD 51 of 2017. The "Appeal Books" filed for QUD 844 of 2016 and QUD 51 of 2017 were both also omitted from the "Ministerial brief" put before the Acting Attorney-General;
(j) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness "hearing rule" on the basis that the Applicant's "representations" prepared on his behalf by Anthony J. H. Morris QC, dated 7 June 2018 were not put before the Acting Attorney-General in the 'Ministerial brief' as was indicated would happen in the Attorney-General's Department "Invitation" letter dated 16 April 2018…;
(k) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that there was an undisclosed 'conflict of interest', namely that David Reed did not disclose his longstanding prior involvement as the Attorney-General's Department Legal Case Officer handling the Attorney-General's Department files 'Roger Matson and others' during the period of 2003 to 2005, which files were in relation to the Australian domestic prosecution and investigation of the Applicant and his father…;
(l) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that there was another undisclosed 'conflict of interest', namely that Stephen Bouwhuis did not consider that he had a longstanding involvement in multiple FOI communications, FOI decisions and FOI internal review decision in relation to the Applicant during 2018, and then gave legal advice and made recommendations in the 'Ministerial brief' in relation to the Applicant's surrender determination…;
(m) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that the Applicant was provided twenty 'misleading official communications' throughout his dealings with the Attorney-General's Department, mainly in relation to his FOI requests and most often such communications were from Unit Head of the International Cooperation Unit, Stephen Bouwhuis, Assistant Secretary;
(n) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'bad-faith' and 'improper purpose'; and or 'actual bias' or alternatively an 'apprehension of bias' on the basis that the "misleading official communications" from Mr Bouwhuis not only informed the Applicant that credible, relevant and significant documents did not exist when in fact those documents did exist, but also informed the Applicant that credible, relevant and significant documents did exist (namely 400 documents in relation to to the Applicant for during the period of 2007 to 2011) when in fact those documents did not exist...
(o) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General failed to give sufficient weight to the Applicant's Indigenous heritage and to the consequences and likely hardship caused to the Applicant and his family as First Nations people by surrendering him to the US, potentially permanently separating him from his family, community, culture and country;
(p) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General misconstrued Article V of the Treaty by failing to properly form the opinion or requisite state of satisfaction that surrendering the Applicant to the US was in fact "proper to do so" in his particular circumstances…
(q) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General relied upon the department's 'Ministerial brief' which specifically raised the Applicant's Indigenous heritage in the context of Article V of the Treaty, and therefore required the Acting Attorney-General to give proper, genuine and realistic consideration to the Applicant's Indigenous heritage in determining whether or not to exercise his discretion under Article V of the Treaty to refuse the Applicant's surrender on grounds of "Nationality", which the Acting Attorney-General did not do. The Acting Attorney-General rigidly and inflexibly applied the Government's policy of not refusing extradition on grounds of "Nationality" without fairly or properly considering the merits of the Applicant's individual case, particularly his Indigenous heritage and his "special connection" to Australia;
(r) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General failed to consider that the US Government failed to provide, and the Commonwealth failed to request the US Government to provide a formal written assurance that the over 3 years already served in maximum security prison would be guaranteed to be deducted from any finite sentence imposed upon the Applicant if he was convicted in the US…;
(s) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General in totality of the circumstances, failed to properly consider all of the facts and circumstances of the Applicant's case and thereby failed to discharge his statutory duty to exercise his discretion reasonably;
(t) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either 'unreasonableness' or was 'seriously irrational and illogical' on the basis that the Acting Attorney-General failed to consider that the US Government failed to provide, and the Commonwealth failed to request the US Government to provide a further formal written assurance that the Applicant would not be exposed to receive a disproportionately excessive sentence from the Florida Federal Judge the Applicant would come before, particularly as the Applicant's charges amount to some 305 years in total and the US sentencing regime which allows and has a tendency to accumulate sentencing;
(u) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General failed to consider any analysis of the applicable 'Australian Standard' in the circumstances of the Applicant's individual case, including the fair trial Australian standard or from a likely punishment if convicted Australian standard, and in consideration of the Applicant's Indigenous heritage, which because of his Indigenous heritage it would have an effect on him if he was incarcerated for any lengthy period of time in the US. This is particularly relevant in view of the US sentencing regime which has a tendency to accumulate sentences and in circumstances where the Applicant had previously raised his concerns and 'put on record' his belief that any surrender order would be unjust, oppressive or too severe a punishment;
(v) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) acted unreasonably in the exercise of his discretion, or constructively failed to exercise jurisdiction by failing to exercise his discretion or failing to consider whether to exercise his discretion to refuse extradition on grounds of "Nationality" under Article V(1) of the Treaty, or alternatively to exercise his general discretion to refuse extradition under s 22(3)(f) of the Extradition Act 1988 (Cth) particularly in consideration of the Applicant's indigenous heritage and "special connection" to Australia.
(w) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) excluded or completely discounted factual material from the evidence proffered by the Applicant on the incorrect basis that it was irrelevant, thereby committing an error of law;
(x) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) his exclusion of factual material was wholly irrational and arbitrary, and was tantamount to a refusal to consider a matter, thereby committing an error of law;
(y) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) failed to comply with his statutory "duty to consider" all of the Applicant's evidence and arguments which was an implied mandatory consideration derived from the scope, subject-matter and purpose of the Extradition Act 1988 (Cth);
(z) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) misconstrued the meaning of the word "proper" as an ordinary English word in the context of Article V of the Treaty, thereby committing an error of law;
(aa) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) his conclusion that it was "proper" to surrender the Applicant to the US was, on the material before him, a view of the facts that could not "reasonably be entertained" and amounted to an error of law;
(bb) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) was for an improper purpose and was an "abuse of process" on the basis that the delay in seeking the Applicant's provisional arrest and the delay in formally requesting the Applicant's extradition was unjustified and attributable to the US Government, and that there was a lack of candour and obfuscation in explaining the delay, specifically in view that the US Department of Justice had been provided the Applicant's fathers address in 2003, and had access to the Applicant and his father's location at any time via the Australian Federal Police and/or via the Attorney-General's Department;
(cc) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) his evaluation or judgment went beyond the range where it could have permissibly gone either way, thereby committing an error of law;
(dd) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) constructively failed to exercise jurisdiction by failing to think about mandatory considerations, deciding for an improper purpose, deciding irrationally and by failing to engage with the Applicant's evidence, arguments and contentions, thereby committing an error of law;
(ee) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) treated express and implied mandatory factors irrationally and illogically, and upon the evidence that was before the Respondent, no reasonable decision-maker would have made the same factual inferences or conclusions, amounting to jurisdictional error;
(ff) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) did not direct himself or ask himself the right question in relation to the legal consequences and the likely hardship to be caused to the Applicant and his family by surrendering the Applicant to the US, particularly in consideration of the Applicant's indigenous heritage and his "special connection" to Australia, thereby committing an error of law;
(gg) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) failed to make an obvious inquiry about a critical fact, namely the sentencing regime in the US, the existence of which could have been easily ascertained, particularly as there was evidence that such an enquiry would have made a difference to his requisite state of satisfaction required to be formed under Article V(l) of the Treaty that in the circumstances it was "proper" to surrender the Applicant, and in exercising his general discretion under 22(3)(f) of the Extradition Act 1988 (Cth);
(hh) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) rigidly and inflexibly applied a policy position resulting in the Respondent failing to give proper, genuine and realistic consideration to the Applicants indigenous heritage and "special connection" to Australia; and further failed to consider the legal option provided for under Article V(l) of the Treaty of refusing extradition on grounds of "Nationality" and that the very existence of the discretion provided under Article V(l) of the Treaty is a reflection of an expectation that some Australian citizens in light of their individual circumstances, should not be surrendered to the US and should alternatively be prosecuted in Australia as provided under Article V(2) of the Treaty;
(ii) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) adopted a wrong legal test and took account of irrelevant considerations including knowingly incorrect facts and other knowingly false, misleading, inadequate and incorrect legal advice outlined in the department's 'Ministerial brief';
(jj) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) erred when assessing the consequences and likely hardship faced by the Applicant including the "relative risk" of the Applicant receiving a custodial sentence in the US that was grossly disproportionate, amounting to cruel and unusual punishment in violation of the Applicant's fundamental human rights under Article 7 of the ICCPR and in violation of the Applicant's constitutional implied right to be protected from cruel and unusual punishment under the Constitution;
(kk) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) constructively failed to exercise jurisdiction by failing to take account of relevant/mandatory considerations:
(i) arguments, evidence and contentions raised in the material and submissions filed in the Applicant's judicial review applications QUD 89, 569 and 844 of 2016 (including evidence and material filed in the Applicant's bail application on 16 December 2016 in matter QUD 569 of 2016), referred to in the Applicant's representations dated 7 June 2018 which were omitted from the legal advice and analysis outlined in the department's 'Ministerial brief';
(ii) the historical Attorney-General's Department, Australian Federal Police, US Department of Justice, F.B.I. and INTERPOL documents, files, communications and correspondence between 1997 to 2019 in relation to the Applicant and his father's extradition matter;
(iii) the Applicant's contentions 'put on record' during the Applicant's s 19 hearing that any surrender order would be unjust and oppressive...by reason of delay...and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because he is of indigenous heritage and that would have an effect on him being incarcerated for any lengthy period there;
(iv) the established principal that when the requesting government can be shown to have been inexcusably dilatory in taking steps to bring the defendant to justice, then this may serve to establish the necessary injustice and oppressiveness, whereas the issue may be left in some doubt if the only known fact relates to the passage of time. A sense of false security engendered in the defendant is also a relevant consideration. If actions of the Government have led him to believe that he will not be extradited then it may be oppressive if the government then proceeds to try to do so…;
(v) implied mandatory considerations derived from the scope, subject matter and purpose of the Extradition Act 1988 (Cth), including Australia's non-refoulment obligations under the ICCPR and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which the Respondent was 'bound' to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR on the basis of the potential 305 years prison sentence in the US, and the likelihood of "solitary confinement" in the US which has been found to constitute "torture" and "cruel and unusual punishment" in the US; and
(vi) that the Applicant had already served over three years on remand in a maximum security prison in Australia while contesting extradition, which had cost the Applicant his livelihood, his home, his relationships and his reputation in the North Stradbroke Island community, which was unjust and oppressive. The Respondent was 'bound' consider any hardship that potentially affected the interests of the Applicant;
(ll) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General failed to accord the Applicant 'due process', by not considering the arguments, evidence and contentions raised in the Applicant's material and submissions he filed for the purposes of his judicial review applications QUD 89, 569 and 844 of 2016 and QUD 51 of 2017 referred to in the Applicant's representations dated 7 June 2018, which representations had specifically asked the Respondent to have appropriate regard to such material and submissions in support of why the Applicant should not be surrendered to the US. The failure to accord 'due process' effectively denied the Applicant a "meaningful" opportunity to advance his case, and further denied the Applicant the opportunity to put information, evidence and make arguments to the Minister…;
(mm) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General's decision was unreasonable:
(i) in the Wednesbury sense, on the basis '... that no reasonable person could ever have come to it, and that no sensible decision maker acting with due appreciation of his responsibility would so decide';
(ii) on the basis that the Respondent failed to properly deliberate in the exercise of his discretion and thereby failed to discharge his statutory duty to properly consider all of the facts and circumstances of the Applicant's case in making his decision;
(iii) in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) the Respondent oppressively and gratuitously interfered with the Applicant's fundamental rights in a way that could not be reasonably justified…;
(iv) on the basis that the Respondent failed to show respect for the dignity of the Applicant as an Indigenous Australian citizen, or show respect for the dignity of the Applicant's family by giving no consideration to the Applicant's "special connection" to Australia; or to the grave consequences and hardship likely to occur if the Applicant was surrendered to the US; and
(v) on the basis that the Respondent accepted the department's recommendation to surrender the Applicant, without seeking further information or requesting to "discuss" the Applicant's indigenous heritage and "special connection" to Australia, particularly when the department's 'briefing paper' (which the Respondent relied upon), failed to provide any analysis of the relevant factors to take into account when considering the grave consequences and hardship likely to occur to an indigenous Australian citizen if permanently separated from family, community, culture, land and country. The self evident fact that Australia is the "spiritual place" of the Applicant, was a significant issue that was not considered in the department's legal advice, nor was it considered by the Acting Attorney-General in making the Surrender Decision.
(nn) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General's decision was seriously "irrational" and "illogical" as in making the decision he failed to give sufficient weight to a number of factors, including:
(i) inadequate or insufficient "weight" was given to the Applicant's evidence, arguments and contentions raised in all material and submissions filed in the Applicant's judicial review applications before the Full Federal Court QUD 89, 569 and 844 of 2016 and UD 51 of 2017 including the material and submissions filed by the Applicant for the purpose of his "bail application" made in matter QUD 569 of 2016 which was on appeal before the Full Federal Court in matter QUD 51 of 2017. The Applicant's representations dated 7 June 2018 specifically requested the Respondent have appropriate regard to all material and submissions filed by the Applicant for the purposes of his judicial review applications, however the majority of the material and submissions filed by the Applicant for the purposes of his judicial review applications were omitted from the legal advice and analysis outlined in the department's 'Ministerial brief'…;
(ii) inadequate or insufficient "weight" was given to the Applicant's indigenous heritage and "special connection" to Australia, or to the Applicant's contentions 'put on record' at his s 19 hearing that any surrender order (emphasis added) would be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations" (namely because of the Applicant's indigenous heritage and that any lengthy sentence would have an effect on him);
(iii) no consideration or "weight" was given to the applicable 'Australian standard' as to whether extradition of the Applicant would in the circumstances be unjust, oppressive or too severe a punishment, or incompatible with "humanitarian considerations" namely because of the Applicant's indigenous heritage and that any lengthy sentence would have an effect on him. No legal advice or analysis was provided in the department's 'Ministerial brief' of the applicable 'Australian standard'…;
(iv) inadequate or insufficient "weight" was given to the Applicant's fundamental human rights protected under international law, including the US Government's "flagrant" violation of the Applicant's fundamental human rights protected under Article 14(3)(a) and (c) of the ICCPR in handling of the Applicant's substantive criminal proceedings in the US which required the US Government to "promptly notify" the Applicant of the nature and cause of the charges laid against him, and to ensure there was no "undue delay" in bringing the Applicant's matter to trial; and
(v) inadequate or insufficient "weight" was given to the Applicant's right to a fair trial in the US or to the applicable 'Australian Standard' of a fair trial, including to the prejudice faced by the Applicant in the US, which can be presumed after such a lengthy delay. The concept of 'fairness' and its underlying principles have continued to be developed and established by the High Court of Australia, notwithstanding, irretrievable prejudice and unfairness is now faced by the Applicant because of the almost 20 year delay, which was caused by the US Government's decision not to promptly seek the Applicant's provisional arrest and the US Government's further decision not to promptly formally request the extradition of the Applicant;
(vi) no consideration or "weight" was given to Australia's non-refoulment obligations under the ICCPR and CAT which the Respondent was 'bound' to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR and the CAT on the basis of the potential 305 years prison sentence in the US, and the likelihood of "solitary confinement" in the US which has been found to constitute "torture" and "cruel and unusual punishment" in the US.
(oo) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) infringed the constitutional implied rights of the Applicant protected under the Constitution, including the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment…;
(pp) The Surrender Decision was affected by and reflects jurisdictional error because it was an improper exercise of power as the Acting Attorney-General failed to observe implied limitations of its exercise imposed by the Constitution, international customary law and the common law, including the implication the power be exercised in good faith and with respect for the dignity of the Applicant and First Nations people;
(qq) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to observe the "Public Interest" in the fair administration of justice, Government integrity, accountability and transparency, particularly when an indigenous Australian citizen is facing the largest potential prison sentence ever faced by an Australian citizen in Australian legal history, some 305 years.
(rr) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) violated the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution by failing to consider the lack of good faith (or alternatively the lack of bona fides) of both the US Government and the Commonwealth Attorney General's Department ICCCA and ICU, particularly evidence of "bad faith", "wilful neglect of duty", "collusion", "abuse of process", "abuse of power" and "executive lawlessness" relating to:
(i) the US Governments deliberate delay in duly notifying the Applicant of the charges, and decision not to request the Applicant's provisional arrest or to request the Applicant's extradition within a reasonable period of time;
(ii) the Commonwealth Attorney-General's Department ICCCA deliberate delay in duly notifying the Applicant of the US charges and in ensuring that provisional arrest was requested by the US after foreign arrest warrants had been issued for the Applicant in 2005, so as to give the Applicant fair notice that he had been charged with serious offences and to enable the Applicant to defend those charges in a timeous manner...;
(iii) knowingly false, incomplete, misleading and incorrect information provided by the US Government to the Commonwealth Attorney-General's Department ICCCA and ICU in relation to the Applicant and his father's whereabouts;
(iv) that the knowingly false, incomplete, misleading and incorrect information provided by the US Government was known to be false by the Commonwealth Attorney-General's Department ICCCA and ICU, yet was still willingly provided to the Respondent in the department's 'Ministerial brief';
(v) the US Government's deliberate attempts to "cover-up" the true nature of the delay and the true extent of the lengthy involvement of the AFP, F.B.I., INTERPOL, USDOJ and Commonwealth Attorney-General's Department ICCCA during 16 years of mutual assistance and international joint investigation since early 2000;
(vi) the Commonwealth Attorney-General's Department ICCCA deliberate attempts to "cover-up" the true nature of the delay and the true extent of the lengthy involvement of the AFP, F.B.I., INTERPOL, USDOJ and the Commonwealth Attorney-General's Department ICCCA during 16 years of mutual assistance and international joint investigation;
(vii) that the knowingly false, incorrect, misleading and contradictory information had been provided by the USDOJ to the United States District Court for the Middle District of Florida in relation to the whereabouts of the Applicant and his father, which plainly contradicts the legal advice, analysis and information provided in the department's 'Ministerial brief';
(viii) that two (2) Senior Officers at the Attorney-General's Department had an apparent 'conflict of interest' in their significant involvement in the extradition process, namely Mr David Reed, ICCCA Director of Litigation and Mr Stephen Bouwhuis, Assistant Secretary, "Unit Head" International Cooperation Unit; and
(ix) the multiple 'misleading official communications' provided to the Applicant from the Attorney-General's Department in relation to the Applicant's FOI requests during the period of 2017 to 2019 which misled the Applicant in relation to the number of relevant documents that were captured by the scope of the Applicant's FOI requests, and also denied the Applicant the opportunity to employ such documents in his representations to the Attorney-General in support of his argument as to why he should not be surrendered to the US;
(x) that a "litigation strategy" has been put in place by Stephen Bouwhuis "Unit Head" of the Attorney-General's Department International Cooperation Unit to obstruct the Applicant's access to relevant documents in relation to himself, and his father and the extradition proceedings, which denied the Applicant equality before the law and has resulted in a practical injustice, substantial unfairness and violated the Applicant's constitutional implied rights, and fundamental human rights protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR).
(ss) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to observe the Commonwealth of Australia's international obligations as a United Nations member and under international treaties Australia has ratified, and the "legitimate influence" they have on Australia's common law and on Australia's modern interpretation of the Constitution, including:
(i) United Nations Charter: Preamble [United Nations Charter Act];
(ii) International Covenant on Civil and Political Rights (ICCPR): Preamble and Articles 2, 5, 7, 9, 14, and 26 [Australian Human Rights Commission Act 1986 Schedule II - ICCPR];
(iii) ICCPR First Optional Protocol;
(iv) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD): Preamble and Articles 1, 2, 5, 6 and 7 [Racial Discrimination Act 1975 Schedule I - ICERD];
(v) United Nations Declaration of the Rights of Indigenous People: Preamble and Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46.
(vi) United Nations Model Treaty on Extradition 1990: Article 3 and 4…;
(vii) Universal Declaration of Human Rights (UDHR): Preamble and Articles 1, 2 and 7…; and
(viii) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(tt) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) amounted to "impermissible discrimination", failing to treat like persons in a like manner, and also failing to give a proper account to genuine differences in the circumstances of the US Government's extradition request, in comparison to every other previous extradition request from the United States of America since the Extradition Act 1988 (Cth) came into force. Particularly the Indigenous heritage of the Applicant, which violated the Applicant's constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution;
(uu) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) gave the stamp of approval to 'unconscionable government conduct' and 'executive lawlessness', thereby contravening section 64 of the Constitution relating to "responsible government" and ministerial accountability;
(vv) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to consider "...the United States Government has a Constitutional duty to make a diligent and good faith effort to locate defendants and bring them to trial" which the US Government had failed to observe in the handling of the Applicant's substantive US criminal proceedings. Furthermore, the Acting Attorney-General failed to consider the Attorney-General's Department's non-disclosure and withholding of documents relating to the 16 years of mutual assistance and international joint investigation which confirmed the US Department of Justice had knowledge of both the Applicant and his father's whereabouts and had tangible leads to their locations at any time via the Australian Federal Police. This non-disclosure and withholding of documents, which documents the Applicant had legitimately sought access to prior to the Surrender Decision, contravened implications derived from international law and the Constitution;
The Applicant contends in support of paragraph 10:
Particulars
(a) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations create a "conflict of interest" and fail to sufficiently protect the fundamental human rights and constitutional implied rights of Australian citizens by empowering the Executive Government to determine the surrender outcome and assess the fundamental human rights of persons subject to extradition while at the same time assisting the governments of foreign states requesting extradition in their legal proceedings, such as Mr David Reed and Mr Stephen Bouwhuis have done in the case of the US Government. In their current form and practice the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are profoundly unjust and inconsistent with international law, and are inconsistent and beyond the power provided under s 61 of the Constitution;
(b) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations subject the resident of one State to a disability or discrimination in another State which would not be equally applicable to him or her if he or she were a resident in such other state by reason of the application of different rules of evidence in contravention of section 117 of the Constitution. Further, the varying application of Human Rights Law in different States and Territories, as the State of Victoria and the ACT have incorporated legislation to incorporate fundamental human rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) while the other States and Territories have not, resulting in a contravention of section 117 of the Constitution;
(c) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations infringe the Magna Carta, common law rights and accepted principles of international customary law, so fundamental they cannot be overturned by legislation:
(i) Magna Carta Paragraph 29: "No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice";
(ii) common law rights such as procedural fairness, natural justice, liberty, speedy trial, duty of fairness, due process, protection from excess of power and the common law principle which requires relevant considerations to be taken into account and the decision not to be Wednesbury unreasonable;
(iii) the common law sufficed on its own to indicate that a "legitimate expectation" was generated by the UDHR, ICCPR, ICERD and CAT as accepted part of international customary law. The UDHR, ICCPR, ICERD and CAT are all now internationally accepted and entrenched as part of international customary law; and
(iv) the principle of international customary law that treaties will be interpreted in good faith and that Governments will uphold both the "Rule of Law" and respect fundamental human rights of all people including its own citizens.
(d) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are beyond power and not for the peace, order and good government of the Commonwealth with respect to external affairs within the meaning of section 51 xxix of the Constitution by reason of the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations being inconsistent with:
(i) the Australian Human Rights Commission Act 1986 (Cth), Schedule II - International Covenant on Civil and Political Rights (ICCPR) Articles 2, 5, 7, 9, 10, 14 and 26;
(ii) the Human Rights Act 2004 (ACT), sections 8(1), 8(2) and 8(3), 10(1) and 10(2) and 22(1) and 22(2)(a) and 22(2)(b) of the Act;
(iii) the Racial Discrimination Act 1975 (Cth), sections 9 and 10 of the Act; and Schedule I - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 2, 5, 6 and 7;
(iv) the United Nations Declaration of the Rights of Indigenous People, Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 4; and
(v) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
…
(e) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the requirements of Chapter III of the Constitution by reason of the Act and Regulations conferring non-judicial powers on the courts thereby forcing Chapter III courts to perform administrative quasi-judicial functions without due consideration of the inherent characteristics of a Chapter III court as intended by those whom framed the Constitution. Further, the Chapter III courts must in reality and by appearance be independent or separate from the executive and the Parliament. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent the Constitution because an "abuse of process" has been deemed as an unavailable option under the Extradition Act 1988 (Cth) legislation which is against the traditional conceptions of any Chapter III court.
(f) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate from universally accepted fundamental human rights and fail to provide for the United Nations ICCPR Article 14 minimum guarantees in criminal proceedings, fail to ensure a fair extradition process and fail to respect the "Rule of Law" which is an over reach of the power conferred on Parliament. In particular, there is no requirement for legal representation at any stage of the extradition proceedings under the Extradition Act 1988 (Cth) despite the serious nature and consequences of extradition. Moreover, the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations require arbitrary punishment and arbitrary abrogation of fundamental human rights without the fair and impartial application of the relevant law to facts which have been properly ascertained and is also inconsistent with the Governments representations, long established practice and published policy regarding:
(i) Indigenous human rights protection;
(ii) Anti-discrimination and equality;
(iii) Constitutional implied rights;
(iv) Government accountability;
(v) Freedom of Information and transparent Government; and
(vi) Extradition and mutual assistance in criminal matters;
(g) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the constitutional implied rights under the Constitution, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment;
(h) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are also inconsistent with international customary law including the international peremptory norms of international extradition law and extradition treaties:
(i) United Nations Model Treaty on Extradition 1990, Article 3 and 4; and
(ii) Vienna Convention on the Law of Treaties 1969, Article 19, 26, 31, 53, 62 and 64;
(i) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate traditional common law rights and enshrined constitutional principles derived from the UK "Bill of Rights" by providing for arbitrary arrest and arbitrary abrogation of fundamental human rights without a fair hearing. This arbitrary arrest and arbitrary abrogation of fundamental human rights is potentially indefinite with no reasonable or genuine opportunity of a person subject to extradition proceedings being granted bail or being able to challenge the legality of their detention, contrary universally accepted standards established by international customary law and the traditional common law right of liberty;
(j) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail to sufficiently protect the rights of Australian citizens, particularly the fundamental human rights of indigenous Australians, which is inconsistent with recognising the human dignity of a person subject to extradition as a full member of the human community, and in its current form and practice is profoundly unjust and inconsistent with international law. In 2015 the United Nations Human Rights Committee (UNHRC) in communication 1973/2010 gave a strong recommendation to the Commonwealth of Australia to change the current form and practice of the Extradition Act 1988 (Cth), so that all Australians can fully enjoy ICCPR human rights. The UNHRC also found the Commonwealth in breach of ICCPR Articles 9(1) and 9(4) because of the arbitrary detention of Mr Hew Griffiths while he contested his extradition to the US. In a clear snub to the United Nations Human Rights Committee the Commonwealth has taken no steps to change the Extradition Act 1988 (Cth).
(k) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail the "Proportionality Test" as they both infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment, and further deny fundamental human rights of those persons subject to extradition proceedings, and are not reasonably or appropriately adapted to achieve the ends that lie within the limits of constitutional power, and are inconsistent with recognising the "human dignity" of a person as a full member of the human community, particularly for First Nations people whose recognition, constitutional implied rights and fundamental human rights have all long been denied and ignored under the Constitution.
(l) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as they infringe upon the implied "religious freedoms" and the "cultural practices" of First Nations people provided under section 116 of the Constitution, by failing to recognise the importance of First Nations peoples "special connection" with Australia and the spiritual significance of "Dreaming" and being connected with the land. The effects of permanently separating an Indigenous Australian citizen from their family, culture and country are plainly oppressive and unjust not only for the individual but also for the extended family and community of the individual subject to extradition. Australia is the "Spiritual Place" of First Nations people, and the Applicant therefore has a constitutional implied right, a fundamental human right and an un-extinguished common law right to stay, live and die in Australia as has happened for over 60,000 years. Not only does the land belong to First Nations people, but they belong to it - now and forever. They have belonged to it in the past, the now, and in the future when they will die and return in spirit and in substance to their "Dreaming-place". Any legislation that purports to sever this constitutional implied right, fundamental human right and an un-extinguished common law right, of First Nations people to live and die in Australia, is beyond power and invalid under any modern interpretation of the Constitution.
86 It may be noted that the particulars, or grounds, are set out in two tranches. First, the particulars described as (a)-(vv) are provided in support of paragraphs 1 to 9 of the relief sought. Second, particulars (a)-(l) are in support of paragraph 10 of the relief sought.
87 I will first consider each of the particulars in support of paragraphs 1 to 9 of the relief sought. I will then separately consider each of the particulars in support of paragraph 10 of the relief sought.
88 I proceed on the basis that the particulars are intended to either particularise or replace the grounds set out at A-D of the Draft Amended Originating Application.
89 A number of the particulars make similar or overlapping allegations, so I will attempt to group them together. I will describe the "particulars" as "grounds", since they are in effect separate grounds.