Matson v Attorney-General [2022] FCA 790 | Case summary

THE COURT DECLARES THAT: 3. On the true construction of ss 22 and 26 of the Extradition Act 1988 (Cth) and s 33(3)of the Acts Interpretation Act 1901 (Cth): (a) the respondent has power, by necessary implication, to revoke a surrender decision in conjunction with a decision to revoke a surrender warrant; and (b) the respondent is not subject to an obligation to consider whether to exercise that power.

LOGAN J: 1 On 26 October 2005, a grand jury in the United States of America returned an indictment charging the applicant, Mr Baron Matson (Mr Matson), his father, and another with a series of alleged offences, being one count of conspiracy to commit mail fraud and wire fraud, five counts of mail fraud, and nine counts of wire fraud. Later that year, another grand jury returned a superseding indictment which charged Mr Matson and others with the original offences and an additional count alleging conspiracy to commit money laundering. The essence of the allegations is that, between September 1997 and January 2001, Mr Matson and his co-conspirators conspired and induced persons in the United States to invest in a fraudulent investment scheme and that they then vanished with the investors' money. 2 It was not until 21 May 2014 that Australia received a request from the United States of America for the extradition of Mr Matson. Thereafter, there has been much litigation both in the course of the four-stage process of extradition to countries other than New Zealand for which the Extradition Act 1988 (Cth) (Extradition Act) provides, as well as in respect of a decision made by the then-Acting Attorney-General, the Honourable Greg Hunt MP, on 1 February 2019 to surrender Mr Matson to the United States. An account of the litigation history is offered by White J in Matson v Attorney-General (Cth) [2021] FCA 161, commencing at [7]. To that history of litigation might also now be added the judgments of Collier J, Matson v Attorney-General (Cth) (No 2) [2022] FCA 213 and Matson v Attorney-General (Cth) [2022] FCA 461. 3 It is not necessary to refer in any greater detail to the earlier litigation. That is because it is not submitted on behalf of the Attorney-General in the present proceeding that any of that litigation gives rise to what has been termed Anshun estoppel (qv Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) in relation to the issues which Mr Matson seeks to agitate in the present proceeding. That is not to say that some conclusions reached in that earlier litigation based, in turn, on earlier authorities do not have relevance by analogy, only that Mr Matson is not estopped by any earlier judgment from seeking to agitate the particular issues in the present case. 4 How, then, do those issues arise? 5 On 11 August 2020, Mr Matson wrote to the then-Attorney-General, the Honourable Christian Porter MP. His letter was entitled, "Request to reconsider surrender decision in relation to extradition to United States of America under section 22 of the Extradition Act". He commenced that letter by referring to the Acting Attorney-General's surrender decision of 1 February 2019. He requested the Attorney-General, for reasons which he set out in his letter, to reconsider the surrender decision. 6 A sequel to the Acting Attorney-General's 2019 surrender decision had been the consequential signing at that time of a warrant for Mr Matson's surrender. 7 The Attorney-General did not choose not to consider Mr Matson's letter of 11 August 2020. He did consider it. In December 2020, he replied to Mr Matson in terms which should be set out in full: Thank you for your letter of 11 August 2020 in which you ask me to reconsider the determination made by the Acting Attorney-General, the Honourable Greg Hunt MP, to surrender you to the United States of America. I appreciate the time you have taken to bring this matter to my attention. However, I do not have the power to remake or reconsider a surrender determination made under section 22 of the Extradition Act 1988 (Cth). I understand that you sought judicial review of the Acting Attorney-General's surrender determination. I further understand that you made several interlocutory applications, and that the matters outlined in your letter have been raised during the course of those proceedings. As you are aware, on 28 October 2020, the Federal Court of Australia dismissed your aplications. A further matter remains before the Federal Court. I am conscious that this matter is distressing for you and your fmaily and I am acutely aware of the seriousness of the situation for you. Thank you for raising this matter with me. [emphasis added] 8 Mr Matson sought, in May this year, to file in the Court an extension of time within which to seek the review of the decision as set out in the Attorney-General's reply. Initially, a registrar declined to permit the filing of that document. That was on the basis of a view held by the registrar that it was in light of earlier litigation, frivolous or vexatious. Earlier this week, for reasons which I delivered ex tempore, I set aside the Registrar's decision: see Matson v Buckingham [2022] FCA 777. I directed that the application as filed be heard today. 9 There are particular reasons which inform not just that need for expedition of hearing, but also expedition of determination. The evidence before the Court is that Mr Matson may be surrendered to the United States, pursuant to the existing extradition warrant, as early as 1 July 2022. 10 Another consideration is that Mr Matson has separately instituted proceedings in the original jurisdiction of the High Court, by which he seeks constitutional writs. The focus of those proceedings is on the 2019 surrender decision. Gageler J has made interlocutory directions in those proceedings to the end of their expeditious determination by a procedure under the High Court Rules 2004 (Cth) which permits the proceedings to be determined on written submissions and without an oral hearing. It is singularly important that the processes of this Court not interfere with the ability of either of the present parties, who are also parties in the High Court proceedings, to comply with the interlocutory directions made by Gageler J. 11 At an interlocutory stage earlier this week, and as confirmed in the course of oral submissions today, Mr Matson made the commendable forensic choice that his application entailed two principal questions of law upon the strength of which he sought to enjoin the Attorney-General to consider his letter of 11 August 2022, according to law. 12 That the exchange of correspondence in 2020 raised a justiciable controversy at least sufficient to invoke the jurisdiction of this Court to grant declaratory relief was conceded by the Attorney-General. Concession does not, of course, confer jurisdiction. However, the question is one concerning the true construction and application of the Extradition Act. I have no doubt, having regard to Edwards v Santos Ltd (2011) 242 CLR 421, that in the circumstances, the Court does have jurisdiction under s 39B of the Judiciary Act 1903 (Cth) both to grant declaratory relief, as well as any injunctive relief, which might follow. Whether or not to grant either is, of course, a matter of discretion. 13 Against this background, it may well be that Mr Matson needs no extension of time, although delay, of course, is a relevant consideration in relation to the granting of declarations or injunctions. In form, his proceeding might be regarded as a judicial review application, but in terms of the issues which he sought to raise, they could have been sought, in any event, by way of an application for declarations and injunctions. 14 The questions which Mr Matson raises are ones which turn on issues touching on personal liberty. In those circumstances, and particularly as I regard the submissions which he has made as, at least, arguable, it seems to me that in so far as the same may be necessary, Mr Matson should have the extension of time which he seeks, with the extension being granted to the date upon which the application was, by Court direction, filed in court earlier this week. 15 What then are the declarations which Mr Matson seeks? 16 The first is, that on the true construction of s 22 and s 26 of the Extradition Act, and s 33(3) of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), the Attorney-General has power, at least by necessary implication, to revoke a surrender decision in conjunction with a decision to revoke a surrender warrant. The second declaration that Mr Matson seeks is that, in the circumstances prevailing in the present case, the Attorney-General is obliged to consider his letter of 11 August 2020. 17 I turn then to consider these issues. 18 First, it is necessary to set out ss 22, 23 and 26 of the Extradition Act: 22 Surrender determination by Attorney-General (1) In this section: "eligible person" means a person who has been committed to prison or released on bail: (a) by order of a magistrate or eligible Judge made under section 18; or (b) by order made under subsection 19(9) or 21(2A) (including because of an appeal referred to in section 21), where no proceedings under section 21 are being conducted or are available in relation to the determination under subsection 19(9) to which the order relates. "qualifying extradition offence", in relation to an eligible person, means the following: (a) if paragraph (a) of the definition of eligible person applies--any extradition offence in relation to which the person consented in accordance with section 18; (b) if paragraph (b) of the definition of eligible person applies--any extradition offence in relation to which: (i) the magistrate or Judge who made the order under subsection 19(9); or (ii) the court that conducted the final proceedings under section 21; determined that the person was eligible for surrender within the meaning of subsection 19(2); (c) in any case--any extradition offence in relation to which the person has consented in accordance with section 19A. (2) The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. (3) For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (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. (4) For the purposes of paragraph (3)(d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of: (a) a provision of the law of the country; or (b) a provision of an extradition treaty in relation to the country; or (c) an undertaking given by the country to Australia; the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country: (d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than: (i) any surrender offence; or (ii) any offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the eligible person could be convicted on proof of the conduct constituting any surrender offence; or (iii) any extradition offence in relation to the country (not being an offence for which the country sought the surrender of the eligible person in proceedings under section 19) in respect of which the Attorney-General consents to the eligible person being so detained or tried; or (e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered. (5) Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General must, by notice in writing: (a) if the person has been committed to prison--direct a magistrate or eligible Judge to order the release of the person; or (b) if the person has been released on bail--direct a magistrate or eligible Judge to order the discharge of the recognisances on which bail was granted. (6) If a determination under subsection (2) is made in writing, the determination is not a legislative instrument. (7) An order made under subsection (5) is not a legislative instrument. 23 Surrender warrants Where the Attorney-General determines under subsection 15B(2) or 22(2) that a person is to be surrendered to an extradition country in relation to an extradition offence or extradition offences, the Attorney-General shall, unless the Attorney-General issues a temporary surrender warrant, issue a warrant for the surrender of the person to the extradition country under this section. 26 Form and execution of surrender warrants and temporary surrender warrants (1) A surrender warrant or a temporary surrender warrant in relation to a person (in this subsection called the eligible person) shall: (a) in the case of a surrender warrant--specify all of the surrender offences in relation to the eligible person; (b) in the case of a temporary surrender warrant--specify all of the surrender offences of which the eligible person is accused; (c) if the person has been committed to prison--require the person in whose custody the eligible person is being held to release the eligible person into the custody of any police officer; (ca) if the person has been released on bail--authorise any police officer to take the person into custody and to take the person before a magistrate or eligible Judge or, if a court made the order releasing the person on bail, before that court, for the purposes of the discharge of the recognisances on which bail was granted; (d) authorise the eligible person to be transported in custody and, if necessary or convenient, detained in custody, by any police officer, for the purpose of enabling the eligible person to be placed in the custody of a specified person or a person included in a specified class (in this subsection called the escort officer ) and transported out of Australia; (e) authorise the escort officer to transport the eligible person in custody out of Australia to a place in the extradition country for the purpose of surrendering the eligible person to a person appointed by the extradition country to receive the eligible person; and (f) be in writing in the statutory form. (1A) To avoid doubt, subject to this section and subsection 33(3) of the Acts Interpretation Act 1901, a surrender warrant or a temporary surrender warrant remains in force until the eligible person is surrendered, at a place in the extradition country, to a person appointed by the extradition country to receive the eligible person. (2) Subject to this section, a surrender warrant or a temporary surrender warrant shall be executed according to its tenor. (2A) If a person is brought before a magistrate, eligible Judge or court as referred to in paragraph (1)(ca), the magistrate, Judge or court must order: (a) the discharge of the recognisances on which bail was granted; and (b) that the person be committed to prison to await surrender under the warrant. (3) Where a surrender warrant is issued in respect of a person: (a) who is in custody; or (b) to whom bail has been granted; in respect of an offence that is alleged to have been committed, or of which the person has been convicted, in Australia, the warrant shall not be executed until the person has been released from custody in respect of that offence or any recognizances on which the person has been granted bail in respect of that offence have been discharged, as the case requires. (4) For the purposes of subsection (3), a person who is serving a sentence of imprisonment shall be taken not to be in custody if the person has been released on parole or licence, or has been otherwise conditionally released, for the remainder of the sentence. (5) Where: (a) a surrender warrant or a temporary surrender warrant is issued in relation to a person; (b) the person is in custody in Australia under the warrant, or otherwise under this Act, more than 2 months after the day on which the warrant was first liable to be executed; (c) the person applies to the Federal Court; and (d) reasonable notice of the intention to make the application has been given to the Attorney-General; the Federal Court shall, subject to subsection (6), order that the person be released from that custody. (6) Where the Federal Court is satisfied that the person has not been conveyed out of Australia under the warrant within the period of 2 months or since the person last made an application under subsection (5), as the case may be: (a) because to do so would have been dangerous to the life or prejudicial to the health of the person; or (b) for any other reasonable cause; the Federal Court shall not order that the person be released from custody. 19 Section 33 of the Acts Interpretation Act is also relevant: 33 Exercise of powers and performance of functions or duties Powers, functions and duties may be exercised or must be performed as the occasion requires (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. Meaning of may (2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body. Powers, functions and duties of bodies not affected by membership vacancies (2B) Where an Act confers a power or function, or imposes a duty, on a body, whether incorporated or unincorporated, the exercise of the power or the performance of the function or duty is not affected merely because of a vacancy or vacancies in the membership of the body. Power to make instrument includes power to vary or revoke etc. instrument (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. (3AA) If a condition (the ongoing condition ): (a) must be satisfied before the making, granting or issuing of an instrument; and (b) is capable of ceasing to be satisfied after the making, granting or issuing of the instrument; subsection (3) has effect, in relation to the repeal, rescission or revocation of the instrument, as if the reference to like conditions (to the extent that the reference relates to the ongoing condition) were a reference to the ongoing condition ceasing to be satisfied. Example: A Minister may give a person a written permission if, among other things, the Minister is satisfied the person is of good character. This condition is capable of ceasing to be satisfied after the giving of the permission. The Minister may repeal, rescind or revoke the permission in the like manner if the Minister ceases to be satisfied that the person is of good character. Scope of powers in respect of matters (3A) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) with respect to particular matters (however the matters are described), the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters. (3AB) If an Act confers on a person or authority the power to make an instrument (except a legislative instrument, a notifiable instrument or a rule of court): (a) specifying, declaring or prescribing a matter; or (b) doing anything in relation to a matter; then, in exercising the power, the person or authority may identify the matter by reference to a class or classes of matters. Note: This provision has a parallel, in relation to legislative instruments, and notifiable instruments, in section 13 of the Legislation Act 2003 . (3AC) For the purposes of subsections (3A) and (3AB), matter includes thing, person and animal. (3B) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall not be taken, by implication, not to include the power to make provision for or in relation to a particular aspect of a matter by reason only that provision is made by the Act in relation to another aspect of that matter or in relation to another matter. Power to make appointment to an office or place (4) Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall be construed as including a power to appoint a person to act in the office or place until: (a) a person is appointed to the office or place; or (b) the expiration of 12 months after the office or place was created or became vacant, as the case requires: whichever first happens, and as also including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place: Provided that where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power to make an appointment to act in an office or place or such power of removal shall only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority. Power to make instrument prescribing penalties (5) Where an Act confers a power to make, grant or issue an instrument (including rules, regulations or by-laws) prescribing penalties not exceeding a specified amount or imprisonment for a specified period, that limitation on the penalties that may be prescribed does not prevent the instrument from requiring the making of a statutory declaration. 20 In Snedden v Minister for Justice for the Commonwealth (2014) 230 FCR 82 (Snedden), Middleton and Wigney JJ describe, at [6] - [17], and following, a four-stage scheme for which the Extradition Act materially provides: 6 The Act codifies the law relating to the extradition of persons from Australia to other countries. It establishes a detailed and tightly structured scheme or process pursuant to which a person may be surrendered to another country. The process involves a number of distinct stages. Each stage involves a decision of a binary nature based on stated criteria. If the relevant criteria are satisfied, the extradition process continues. If they are not, the process comes to an end. 7 The first stage involves the decision to issue a warrant for the arrest of a person. Section 12 of the Act provides that where an application is made on behalf of an extradition country to a magistrate for the issue of a warrant for the arrest of a person, the magistrate shall issue a warrant if satisfied that the person is "an extraditable person in relation to the extradition country". 8 An extradition country is any country (or colony, territory or protectorate of a country) that is declared by the regulations to be an extradition country (s 5). An extraditable person is a person who has been convicted of an offence in another country, or who is the subject of an arrest warrant in respect of an offence in another country, the offence is an extraditable offence in relation to that country and the person is outside that country (s 6). An extradition offence in relation to another country is, in general terms, an offence against a law of the country which either carries a serious penalty (death or imprisonment for more than 12 months) or is otherwise required to be treated as an extradition offence in a relevant extradition treaty between Australia and the other country (s 5). 9 If an arrest warrant is issued under s 12 of the Act, a consequence is that the person may be arrested (s 13) and brought before a magistrate and either remanded in custody or on bail (s 15). 10 The second stage of the extradition process involves the issue of a notice by the Attorney-General under s 16 of the Act. Where the Attorney-General receives an extradition request from an extradition country in relation to the person, he or she may issue a notice, directed to a magistrate, stating that the request has been received. An extradition request is a request in writing by an extradition country for the surrender of a person to the country (s 5). 11 The Attorney-General can only give such a notice if he or she forms an opinion about two matters. First, the Attorney-General must be of the opinion that the person is an extraditable person in relation to an extradition country and that if the conduct the subject of the offence had occurred in Australia it would have constituted an extradition offence in relation to Australia (s 16(2)(a)). An extradition offence in relation to Australia is essentially an offence against a law of Australia for which the maximum penalty is death or imprisonment for not less than 12 months (s 5). 12 Secondly, the Attorney-General cannot give the notice if he or she is of the opinion that there is an extradition objection in relation to the extradition offence (s 16(2)(b)). The Act lists (in s 7) five categories of extradition objection. It is unnecessary to describe them in detail. They include: requests that involve political offences; requests where the surrender is sought for the purposes of prosecuting the person on account of his or her race, religion, nationality or political opinion; requests where the person would not receive a fair trial on account of his or her race, religion, nationality or political opinion; requests where the conduct would constitute an offence under the military law, but not the ordinary criminal law of Australia if it had occurred in Australia; and requests where the person has been acquitted, or pardoned, or already punished in respect of the relevant extradition offence or another offence constituted by the same conduct. 13 The decision by the Attorney-General to issue, or not issue, as the case may be, a notice under s 16 is important. If the Attorney-General decides not to issue a notice, he or she must then give a notice, directing the magistrate to release the person from custody or discharge any recognisances on which bail was granted (s 17(1)). The extradition process is then at an end. If the Attorney-General issues a notice, the person may either consent to being surrendered to the extradition country (s 18), or the process moves to the next stage, the third stage. 14 The third stage concerns the determination of the person's eligibility for surrender by a magistrate pursuant to s 19 of the Act. Section 19 provides, in essence, that a person is only eligible for surrender to an extradition country in relation to an extradition offence if: first, the relevant supporting documents in relation to the offence (as set out in s 19(3)) have been produced to the magistrate; secondly, the magistrate is satisfied that double criminality exists in relation to the offence (meaning, in general terms, that, if committed in Australia, the offence would have been an extradition offence in relation to Australia); and thirdly, the magistrate is not satisfied that there are substantial grounds for believing that there is an extradition objection in relation to the offence. It is again unnecessary here to descend into the detail of these requirements. 15 If the magistrate determines that the person is eligible for surrender, the magistrate is required to order that the person be committed to prison to await the determination that constitutes the fourth stage of the process (s 19(9)). If the magistrate determines that the person is not eligible for surrender, the magistrate is to order the release of the person and advise the Attorney-General accordingly (s 19(10)). Subject to review, the extradition process is then at an end. 16 The magistrate's determination of a person's eligibility for surrender is subject to review by the Federal Court or (at the relevant time) the Supreme Court of a State or Territory (s 21). A review application may be made by either the person or the extradition country, depending on the order made by the magistrate. There is then a right of appeal to this Court. 17 The fourth stage, which as earlier indicated occurs if the person is found to be eligible for surrender under s 19, is the determination by the Attorney-General under s 22(2) of the Act that the person either is, or is not, to be surrendered in relation to a qualifying extradition offence. The determination under s 22(2) can, by reason of s 19 of the Acts Interpretation Act 1901 (Cth), be made by any Minister: Attorney-General (Cth) v Foster (1999) 84 FCR 582 (Foster); Mokbel v Attorney-General (Cth) (2007) 162 FCR 296. 21 As in Snedden, the focus of the present proceeding is on the fourth stage, that of the surrender decision and consequential surrender warrant. I describe the warrant as consequential in light of the terms of s 23 of the Extradition Act. 22 Also in Snedden Middleton and Wigney JJ refer to the meaning of s 22(3)(f) of the Extradition Act as follows, at [150] and [151]: 150 In Rivera v Minister for Justice and Customs (2007) 160 FCR 115, Emmett J (with whom Conti J agreed) described the general discretion in s 22(3)(f) in the following terms (at [14]): Finally, under s 22(3)(f), the Minister must consider that the person should be surrendered in relation to the offence. Thus, the Minister has a general discretion whether to surrender an eligible person or not. The discretion is unfettered and the Minister may, in the exercise of the discretion, take into account any matters, or no matters, provided that the discretion is exercised in good faith and consistently with the objects, scope and purpose of the Act. 151 It follows that the Minister is not bound to take any particular matter into account in the exercise of his general discretion in s 22(3)(f) of the Act. The fact that a particular matter is the subject of a submission or representation does not mean that the Minister is bound to consider it. It is entirely a matter for the Minister to decide whether to take any such submission into account and, if so, in what way: Brock v Minister for Home Affairs [2010] FCA 1301 at [63] (Foster J - an appeal from Foster J was dismissed). There is no obligation to accept any particular submission: Foster v Attorney-General (Cth) (1998) 158 ALR 394 at 413 (Spender J - an appeal from Spender J was allowed but in relation to an unrelated issue). On the other hand, if the Minister does take a submission into account, it does not mean that it thereby becomes a mandatory consideration. 23 It is possible to find applications of what is there stated in Snedden in earlier litigation as between Mr Matson and the Attorney-General. It is not necessary to refer to those particular applications, only to recognise that the statements made by Middleton and Wigney JJ in the Full Court are binding upon me sitting in the original jurisdiction. 24 It necessarily follows from the application in this case of what is stated in Snedden at [150] and [151] that, assuming for the moment that there is a power to revoke the 2019 surrender decision, nothing in Mr Matson's letter of 11 August 2020 constituted a subject which the Attorney-General was bound to take into account. Yet, further, it also follows, in my view, from what is stated in that joint judgment, at [151], in citing with approval a statement to that effect by Foster J in Brock v Minister for Home Affairs [2010] FCA 1301, that it would have been open to the Attorney-General not to have considered Mr Matson's letter of 11 August 2020 at all and to have made no reply to that letter. But that is not what occurred. 25 The view voiced by the Attorney-General in his letter in reply as to an absence of power was, as Mr Matson highlighted in his careful and succinct submissions, at odds with the view evidently held by a predecessor in Mr Porter's office at the time when that predecessor or, strictly, a person acting on behalf of that predecessor, made decisions in relation to Mr Peter Clarence Foster with respect to his extradition to the United Kingdom. So much is apparent from the recitation of background history in that case to be found in the judgment of Kirby J in Foster v Minister for Customs and Justice (2000) 200 CLR 442 (Foster), at [59]. Kirby J's judgment was, in that case, a minority judgment. But to record that is nothing to the present point. There is no gainsaying of the accuracy of his Honour's recitation of earlier procedural history in the judgments of the majority. His Honour records, at [59]: 59 The Minister then received from officers of the Attorney-General's Department a further memorandum of 28 March 1999 concerning the appellant's submissions. This memorandum also omitted any indication about the range of sentences to which the applicant was actually exposed. The Minister decided to make a new determination under the Act and did so on 30 March 1999. By it, she revoked the earlier warrant of July 1998. She determined that the appellant should be surrendered to the United Kingdom on three counts of using a false instrument. She thereupon issued a new warrant under the Act. It is the execution of that warrant which is the subject of the present proceedings. 26 It might be said of the present proceedings that it is the subject of the execution of the 2019 warrant which is the subject of the present proceeding in terms of whether there is power to revoke that warrant and, by implication, its related surrender decision. 27 The procedural history related in Foster certainly gives pause for thought about the institutional memory of the Commonwealth Attorney-General's department and those in that department who, some two decades later, tendered advice to Mr Porter that he had no power, even though a Minister acting for his predecessor had apparently unremarkably, acted on the basis that there existed such power. Interesting though that inconsistency in public administration may be, it by no means follows that there is such a power. The existence or otherwise of a power to revoke both the surrender warrant and the related anterior surrender decision was not an issue in Foster. 28 That there is power to revoke surrender warrant was not controversial. So much necessarily follows from the reference in s 26(1A) to s 33(3) of the Acts Interpretation Act. It is accepted that the effect of that reference is that perforce of s 33(3), there is power to "repeal, rescind, revoke, amend or vary" a surrender warrant. It is accepted, further, that a surrender warrant is an administrative instrument for the purposes of s 33(3). 29 Mr Matson did not in terms in his letter of 11 August 2020 seek the revocation of the surrender warrant. It is, however, tolerably clear, reading that letter as a whole, that what he sought was that he not be surrendered to the United States pursuant to the surrender decision, and that that 2019 surrender decision be revisited. 30 With reference to s 33(1) of the Acts Interpretation Act, the High Court in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 noted that a controversy exists in this court as to whether s 33(1) of the Acts Interpretation Act carries with it a power to revoke. Their Honours refer in turn in that regard to Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31 as to whether there exists any power, perforce of s 33(1), to revoke. Reference might additionally be made on this subject to the judgment of Gummow J, then a member of this Court, in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. 31 In the present case, and in the particular context of the Extradition Act, I do not find it necessary to embark upon a consideration of whether s 33(1) of the Acts Interpretation Act carries with it in any application to s 22 of the Extradition Act a power to revoke a surrender decision. That is because, in my view, a necessary implication of the power to revoke a surrender warrant is a power to revoke the surrender decision. 32 It is always necessary in matters of statutory construction to commence with the text of a statute having regard to subject matter, scope, purpose and context. As I have indicated, it is plain that there is a power to revoke a surrender warrant. To revoke a surrender warrant in particular circumstances, but to leave in place a surrender decision, would leave a person subject to that surrender decision in an odd legal limbo in relation to their personal liberty were there not, as a matter of necessary implication, a power also to revoke a surrender decision. 33 Section 22(2) of the Extradition Act requires the Attorney-General, as soon as 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 offences. 34 Necessarily, that person will be someone in respect of whom at an earlier stage in extradition a magistrate or judge has determined, pursuant to s 19, that they are eligible for surrender to the extradition country in relation to the extradition offence or offences, and, pursuant to s 19(9), ordered that person to be committed to prison to await surrender under a surrender warrant or release or discharge on recognisances on which bail was granted under an order under s 22(5). 35 That person may have sought subsequently the review under s 21 of that decision, but if the review court confirms the determination under s 19 and decides that the person should remain in jail, there they remain, pending the decision of the Attorney-General. The Attorney-General's surrender decision in turn provides authority for the issuing under s 23 of a surrender warrant. 36 That surrender warrant requires, if a person has been committed to prison earlier, the eligible person - Mr Matson, here - to be held in custody. Were the person at large, the surrender warrant enables the arrest of the person and requires them to be brought before a magistrate or eligible judge or court who must discharge any earlier recognisance on which bail was granted and commit the person to prison to await surrender under the warrant. 37 The long and the short of it is, if it were not, by implication, lawfully possible to revoke not just the surrender warrant, but as well as the surrender decision, a person might find themselves remaining in custody pursuant to the surrender decision. 38 It was put that an answer to this apparent limbo was to be found in s 26(5) of the Extradition Act, which provides a regime for application to this court for release if the person in custody under the surrender warrant or otherwise under the Act has not, more than two months after the day on which the warrant was first liable to be issued, been surrendered or unless conditions as set out in s 26(6) persuade the court that the person should not be released. That particular regime would still leave in place, even if it is applicable, the surrender decision. 39 In my view, the better construction of the Extradition Act is that the Attorney-General, by implication, does have power to revoke the surrender decision at the same time as the Attorney revokes the surrender warrant. That is not to say that, in each and every case, revocation of a warrant would require revocation of a surrender decision; there are many permutations and combinations. But if the Attorney were persuaded that a person should not be surrendered such that the warrant authorising surrender should be revoked, it would seem to me, necessarily, to follow that the surrender decision should be able also to be revoked. 40 One might test that particular view by reflecting upon circumstances which might arise as between an initial surrender and surrender warrant decision and a time when a person fell to be surrendered. 41 The question then becomes whether in the circumstances prevailing, and although Mr Matson has established the existence of a power to revoke a surrender decision, there is any case for the granting of injunctive relief? In the ordinary course of events there would be no such case, for the reasons set out in Snedden, at [151]. But in the present case, the Attorney did consider Mr Matson's letter. But his consideration was affected by an error or law. 42 Other circumstances might arise where some modification of a surrender decision was necessary; Foster, it seems to me, is an example of that. 43 For these reasons, therefore, I conclude that the Attorney-General was in error in expressing the view to Mr Matson, in the context of considering his letter, that he had no power to reconsider the earlier surrender decision. 44 In the course of submissions, I put to each of the parties one such scenario. That was if the requesting country had been the Weimar Republic - assuming the Extradition Act then to be in force - and, in between the surrender and surrender warrant decision, a change of government had occurred in Germany such that the Nazi Party under Adolf Hitler was in power. It seems to me an unlikely construction of the Extradition Act that Australia's Attorney-General would, in the face of a letter which said, "I'm a Jew", be without power to revoke both the warrant and the surrender decision but, rather, as the Attorney-General put in the present case - contrary to the view to his predecessor - compelled to surrender a Jew to Nazi Germany, even though it may be perfectly apparent that that person was to suffer a fate most unpleasant and lethal indeed. 45 Having chosen to consider the letter, it seems to me that the Attorney-General is obliged to complete that consideration with the benefit of declaratory relief granted by this Court as to the existence of a power to revoke the 2019 surrender decision. That is not to say that the Attorney-General need do anything other than note the existence of that power and decide not to exercise it. That is because, for reasons set out in Snedden, at [151], none of the matters set out in Mr Matson's letter could be a mandatory relevant consideration. They are nothing more than matters which the Attorney might, if he chooses, take into account. But in the events which have transpired, having chosen to consider the letter, he is obliged, in my view, to complete that consideration, if only to the point of deciding one way or the other whether he is going to take anything at all of what is there said into account. 46 For these reasons, then, I propose to grant declaratory relief in the following terms: (1) On the true construction of s 22 and s 26 of the Extradition Act, and s 33(3) of the Acts Interpretation Act: (a) the respondent has power, by necessary implication, to revoke a surrender decision in conjunction with a decision to revoke a surrender warrant; and (b) the respondent is not subject to an obligation to consider whether to exercise that power. 47 In light of an undertaking proffered to the Court with respect to not surrendering Mr Matson pending further consideration of his letter of 11 August 2020, there is no basis upon which any injunctive relief falls to be granted.

Matson v Attorney-General

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Judgment (5 paragraphs)

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