O'Donoghue v Attorney-General for the Commonwealth of Australia

JUDGE: MCKERRACHER J DATE: 8 APRIL 2013 PLACE: PERTH

INTRODUCTION 1 These are edited ex tempore reasons for judgment following the hearing of an urgent interlocutory application.

THE NATURE OF THE APPLICATION 2 There is before me an originating application pursued by the applicant (Mr O'Donoghue) and in particular an urgent application for an injunction to restrain the respondents from taking any action to remove or permit his removal from the Commonwealth of Australia before the hearing and final determination of several proceedings which are listed in his application, including PTW 3650 of 2011 and WA 26 of 2012 in the Family Court of Australia, CIV 2049 of 2012 in the District Court of Western Australia (transferred to the Supreme Court of Western Australia) as well as WAD 67 of 2013 and the present proceeding before me in this Court. 3 Refusal of Mr O'Donoghue's application for leave to appeal the Full Court's most recent judgment was given by the High Court of Australia on the papers on 26 February 2013. 4 The respondents to the application are the Attorney-General for the Commonwealth of Australia (the Attorney-General), the Superintendent of the Hakea Prison and the Minister for Immigration and Citizenship (the Minister). 5 Mr O'Donoghue's application is supported by an affidavit sworn by him on 28 March 2013 which confirms a number of matters including his incarceration since April 2009 pursuant to the extradition proceedings. 6 This application for an interlocutory injunction was filed by Mr O'Donoghue last Thursday, 4 April and part-heard the following day, at which point the Commonwealth in response to my request filed and spoke to written submissions in opposition. 7 The second respondent (the State) also appeared indicating that it would submit to the orders of the Court and would not seek to be heard on costs unless costs orders were sought against it. It also sought to amend the name of the second respondent to read 'Ian Johnson, Commissioner of the Department of Corrective Services Western Australia'. Mr O'Donoghue consented to that amendment which I made. 8 Mr O'Donoghue also made an application to adjourn his urgent application until 28 May which is when proceeding WAD 67 of 2013 which he is presently pursuing is listed before me. In light of the urgency of the matter and the considerable period which has elapsed since the generation of all of these pieces of litigation, I refused to grant the adjournment application. I proceeded to hear the Commonwealth but explained to Mr O'Donoghue that I would give him an opportunity to consider the arguments over the weekend so that he could respond to those arguments. He also made oral submissions in response on Friday.

EVIDENCE AND ARGUMENTS IN SUPPORT OF AN INJUNCTION 9 In Mr O'Donoghue's supporting affidavit the various proceedings are described. In relation to the Family Court proceedings there is some emphasis on the fact that the interests of Mr O'Donoghue's four children are involved. Mr O'Donoghue deposes to the fact that one of the many adverse outcomes of his incarceration has been the destruction of the family as a unit notwithstanding its special place in society 'as guaranteed and acknowledged in the Australian Human Rights Commission Act 1986 (Cth)'. In particular he says the further adverse outcome of his incarceration has been the alienation of his children 'contrary to the provisions of the International Convention on the Rights of the Child'. He goes on in his affidavit to describe in detail the circumstances of his arrest and incarceration which he says has been for an indefinite period 'contrary to the United Nations Charter on Human Rights'. He says that the interests of justice are best served by affording him every opportunity to seek to protect his right of access to the courts 'given that [his rights] can only be exercised whilst [he is] in Australia'. He contends that his children have an equal right to natural justice, procedural fairness and due process and that they require him to protect those rights. He also foreshadows seeking to further petition the Commonwealth to refuse extradition given that neither the common good nor public interest would be served by his extradition which has to date attracted a high cost. He repeats his submissions concerning the breach or potential breach of various international covenants. 10 Over the weekend Mr O'Donoghue prepared another application. It is not before me in any sense that I am required to determine anything regarding it today. It is a detailed application seeking various forms of relief against the Attorney-General and other respondents including the Minister for Justice, the Minister for Immigration and Citizenship, the State, the Commissioner of the Department of Corrective Services Western Australia and Dr Philip Hames. 11 The last reference to Dr Hames concerns Federal Court proceeding WAD 67 of 2013, in which Mr O'Donoghue claims that inadequate dental treatment during his period of incarceration has been discriminatory against him. He claims relief in respect of that discrimination. Again that is not a matter which is before me at the moment.

THE ISSUE 12 The central questions for my determination in the present application, as in any injunction application, are first whether Mr O'Donoghue has established that he has an arguable case, secondly whether the balance of convenience favours the granting of injunctive relief to restrain his extradition surrender and thirdly the interests of justice.

AN IMMIGRATION ISSUE 13 There is an immigration issue in addition to the primary extradition argument. Mr O'Donoghue has placed reliance upon the High Court decision of Moti v The Queen (2011) 245 CLR 456. That case arose in connection with, as indicated by the majority (at [2]), whether further prosecution of charges laid in an indictment should be stayed as an abuse of process. The High Court decided that those charges should be stayed. The appellant had been brought to Australia from the Solomon Islands without his consent in that an official from the Solomon Islands Government deported him from the Solomon Islands by putting him on an aircraft bound for Brisbane without the power to do so. Having regard to the involvement Australian officials played in connection with the appellant being brought to the country, the further prosecution of the charges was held by the High Court to be an abuse of process. 14 The main reason Mr O'Donoghue raises the immigration question is because he has joined the Minister as a third respondent in light of the fact that Mr O'Donoghue says there is uncertainty or a debate about whether he currently holds a valid visa. While Mr O'Donoghue places emphasis on this issue, clear assurances have been given by the Commonwealth that there are no present plans to act on the absence of a visa. According to the evidence from the Commonwealth, the visa expired in December last year. Whilst Mr O'Donoghue contests this fact, all that matters is whether he has established there is an imminent threat of the Commonwealth acting on the absence of a visa in order to pursue deportation proceedings. On the face of the evidence given by the Commonwealth through its instructing solicitor, there is no such imminence. That being the case, the High Court decision of Moti has little bearing on the resolution of the dispute.

PROCEDURAL MATTERS 15 Before dealing with the detailed arguments, I should first refer to some procedural matters raised by counsel for the first and third respondents. There are three procedural issues raised. Whilst they are all probably technically correct, Mr Macliver does not advance the submission that they are or should be determinative. It is right, nevertheless, that those matters be raised. 16 The first of those points is that there no primary cause of action raised by way of substantive relief to support the interlocutory application. Counsel specifically accepted that this was something capable of being cured. For present purposes it does not stand in the way of the issues being resolved one way or the other. 17 The second point is more substantive. It is that the first respondent is effectively functus officio in the sense that the warrant which was required to be issued under s 23 of the Extradition Act 1988 (Cth) (the EA) has already been issued. There is nothing more that the Attorney-General has to do and therefore nothing to restrain the Attorney-General from doing. No mandatory injunction is sought. 18 The third point is that there is no cause of action articulated against the third respondent. Although the Commonwealth says the visa has expired, there is no present intention to act on that issue.

EVIDENCE IN OPPOSITION 19 The opposition to the application is supported by an affidavit of Peter John Corbould, solicitor for the first and third respondents, sworn on 5 April 2013. Mr Corbould's affidavit sets out much of the history of proceedings and, in particular, paragraphs [4] to [26] as follows: 4. The applicant is a citizen of the Republic of Ireland (Ireland) who first arrived in Australia on 12 July 2002 as the holder of a Subclass 956 temporary visa. Annexed hereto and marked 'PJC1' are copies of screen dumps from DIAC's computer records which confirm the applicant's arrival date and list the visas that have been granted to him. 5. On 14 November 2003 the applicant applied for an Employee Nomination (Residence) (Class BW) (Subclass 856) visa. Following the expiration of his previous visa on 30 November 2004, the applicant was granted a bridging visa while awaiting the outcome of his application for a Subclass 856 visa. 6. On or about 26 May 2004 Ireland submitted a request to Australia for the extradition of the applicant for prosecution in relation to eight offences of obtaining property by false pretences and, in the alternative, eight offences of fraudulent conversion (the extradition offences). 7. On 21 December 2004 a provisional arrest warrant was issued under s 12(1) of the Extradition Act 1988 (Cth) (the Extradition Act). The applicant was arrested in Perth on 21 December 2004... 8. On 5 January 2005 the Attorney-General signed a notice under s 16 of the Extradition Act stating that a request had been received from Ireland for the extradition of the applicant. 9. By application dated 18 November 2005, the applicant brought a Constitutional challenge in the Federal Court to the exercise of powers by a magistrate under the Extradition Act. On 12 September 2006 Siopis J dismissed the application and an appeal to the Full Court of the Federal Court was dismissed on 16 April 2007. The applicant was granted special leave to appeal and the High Court, in O'Donoghue v Ireland [2008] HCA 14, ultimately dismissed the applicant's appeal on 23 April 2008. 10. Following dismissal of the High Court appeal, proceedings under s 19 of the Extradition Act were conducted before Magistrate G M Calder. On 3 April 2009 Magistrate Calder determined, pursuant to s 19(2) of the Extradition Act, that the applicant was eligible for surrender to Ireland and issued a warrant committing the applicant to prison pursuant to s 19(9) of the Extradition Act. The applicant has remained in prison since that date. 11. On 3 April 2009 the applicant sought review of the Magistrate's decision pursuant to s 21(1) of the Extradition Act and applied for immediate bail pending review, pursuant to s 21(6)(f)(iv) of the Extradition Act. On 6 April 2009 Barker J dismissed the applicant's interlocutory application for bail and published reasons for judgment in O'Donoghue v Ireland [2009] FCA 394. 12. On 9 June 2009 Barker J dismissed the applicant's application for review of the Magistrate's decision and published reasons for judgment in O'Donoghue v Ireland [2009] FCA 618. On 19 June 2009 the applicant instituted an appeal from Barker J's judgment to the Full Court of the Federal Court. 13. On 26 August 2009 a delegate of the Minister for Immigration and Citizenship made a decision refusing to grant a Subclass 856 visa to the applicant. The applicant applied to the Migration Review Tribunal (the Tribunal) for review of the delegate's decision on 21 September 2009 and on 15 December 2009 the Tribunal affirmed the decision to refuse the applicant the grant of a Subclass 856 visa (the Tribunal decision). 14. The applicant's appeal from the decision of Barker J in relation to the Magistrate's s 19 decision was dismissed by the Full Court of the Federal Court on 22 December 2009. The Court published reasons for judgment in O'Donoghue v Ireland [2009] FCAFC 184. 15. On 17 June 2010 the High Court dismissed the applicant's application for special leave to appeal from the Full Court's decision and published reasons for decision in O'Donoghue v Ireland [2010] HCASL 152. 16. On 11 January 2010 the applicant commenced proceedings in the Federal Magistrates Court for review of the Tribunal decision. 17. On 27 July 2010 Raphael FM dismissed the applicant's application for review of the Tribunal decision and published reasons for judgment in O'Donoghue v Minister for Immigration and Citizenship (No 4) [2010] FMCA 513. 18. On 6 August 2010 the applicant instituted an appeal to the Federal Court from Raphael FM's judgment of 27 July 2010 (the migration appeal). 19. On 23 March 2011 the Minister for Justice made a determination, under s 22(2) of the Extradition Act, that the applicant be surrendered to Ireland in relation to the extradition offences (the s 22 decision) and issued a surrender warrant under s 23 of the Extradition Act (the s 23 warrant)... 20. On 25 March 2011 the applicant commenced proceedings in the Federal Court for review of the s 22 decision. 21. On 13 June 2011 McKerracher J dismissed the applicant's migration appeal and published reasons for judgment in O'Donoghue v Minister for Immigration and Citizenship and Citizenship (No 3) [2011] FCA 668. 22. On 11 July 2011 the applicant applied for special leave to appeal to the High Court from McKerracher J's decision dismissing his migration appeal. The application was dismissed by the High Court on 6 October 2011 which published reasons for judgment in O'Donoghue v Minister for Immigration and Citizenship and Citizenship [2011] HCASL 158. 23. On 29 August 2011 Gilmour J dismissed the applicant's application for review of the s 22 decision and published reasons for judgment in O'Donoghue v Honourable Brendan O'Connor (No 2) [2011] FCA 985. By notice of appeal filed on 16 September 2011, the applicant appealed from Gilmour J's judgment to the Full Court of the Federal Court (the extradition appeal). 24. On 2 April 2012 the Full Court of the Federal Court (Keane CJ, Rares and Besanko JJ) dismissed the extradition appeal and published reasons for judgment in O'Donoghue v Honourable Brendan O'Connor [2012] FCAFC 47. 25. On 27 April 2012 the applicant applied for special leave to appeal to the High Court from the Full Federal Court's decision dismissing his extradition appeal. The application was dismissed by the High Court on 26 February 2013 which published reasons for judgment in O'Donoghue v The Honourable Brendan O'Connor, Minister for Justice [2013] HCASL 12. 26. On 4 April 2013 the applicant filed the present application in the Federal Court for an injunction restraining the respondents from taking any action to remove him from Australia pending the determination of other proceedings brought by the applicant in various Courts, including the Federal Court. 20 Suffice it to say that the point is made that there have been many proceedings pursued by Mr O'Donoghue in relation to both the extradition matters and other causes of action.

SUBSTANTIVE ARGUMENTS 21 The substantive points arising in the arguments advanced for the first and third respondents as I understand them as follows: 1. The first is that the provisions of s 23 of the EA impliedly repeal a power in the Court under s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA) to grant an injunction in circumstances where there is a specific code laid down in the EA and all avenues of challenge legitimately open under the EA have been fully explored. Section 23 of the EA is as follows: 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. Section 23 of the FCA relevantly reads: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate. 2. The second argument (in the alternative) is that if there is a power under s 23 of the FCA to prevent frustration of its own court processes, such a power does not extend to prevent frustration of the processes of other courts in this case, a Supreme Court and a Family Court. 3. The third substantive submission is that in any event even if there is power to grant an injunction the Court could not be satisfied that: a. the mere existence of litigation should stand in the way of extradition given that all possible legitimate avenues of challenge under the EA have been exhaustively pursued without success and that no other legitimate avenues of challenge remain open; and b. in any event, there is no evidence to establish that the applicant would be unable to pursue his various claims if he were extradited.

No power 22 Mr Macliver makes the argument that determination by the Minister for Justice under s 22(2) of the EA for surrender of Mr O'Donoghue to the Republic of Ireland (Ireland) (which was the foundation of the issue of the surrender warrant under s 23 of the EA) was subject to the various appeal processes which have been described in detail in Mr Corbould's affidavit. The appeal proceedings brought by Mr O'Donoghue against the determination by the Minister for Justice under s 22(2) concluded with the application for special leave to appeal from the Full Federal Court's decision being refused by the High Court of Australia on 26 February 2013. 23 The Attorney-General's Department has advised that arrangements have now been made for Mr O'Donoghue's surrender to Ireland in accordance with the surrender warrant. The issue of the surrender warrant under 23 of the EA is a mandatory statutory process for the implementation of a surrender decision made under s 22(2) of that Act. In Rivera v Minister for Justice and Customs [2007] FCA 1693 Cowdroy J said (at [23]): When a valid surrender determination is made under s 22(2) of the [EA], mandatory statutory provisions then operate for the implementation of the extradition process and pursuant to s 23 of the [EA], a warrant must issue for the surrender of a person. There is no opportunity for any further decision to be made by the Minister. It follows that there is no decision by the Minister, other than that which the applicant has already unsuccessfully challenged in relation to which a writ of prohibition can apply. 24 Again, the point is made for the Commonwealth that there is nothing to restrain or prohibit because the duty the Attorney-General is required to carry out has been exercised. 25 It is argued that to the extent that the Court otherwise has power under s 23 of the FCA to issue the interlocutory injunctions sought by Mr O'Donoghue, the express and mandatory provisions of s 23 of the EA have impliedly repealed s 23 of the FCA to the extent that it would otherwise permit an injunction preventing the applicant's surrender and removal from Australia in accordance with the surrender warrant. The Commonwealth relies on the seminal work by Pearce DC and Geddes RS, Statutory Interpretation of Australia (7th ed, LexisNexis Butterworths, 2011) (at [7.9]-[7.13]). 26 It is unnecessary to determine this interesting question. I am satisfied for the purpose of the urgent injunction application that it is arguable that I have jurisdiction and in those circumstances while there may ultimately be some force in the Commonwealth's argument, it seems to me for present purposes I should accept that there must in some cases remain a residual jurisdiction under s 23 of the FCA regardless of the expiry of the challenges to the extradition process. Whether this is such a case is of course another question. 27 Mr O'Donoghue in his affidavit swears that if he is extradited to Ireland before the determination of the proceedings it will not be possible to prosecute matters properly, adequately or in accordance with the laws of Australia or the International Covenant on Civil and Political Rights (ICCPR). The Commonwealth goes on to submit that the injunction is not sought to ensure the effective exercise of jurisdiction, but rather to ensure that proceedings can be effectively prosecuted.

Discretionary considerations 28 It is now convenient to consider the third point as it is also unnecessary to resolve what I have described as the second point concerning injunctive relief to prevent frustration of proceedings in other courts. The Commonwealth submits that even if there is a basis for granting relief to enable a person the subject of a surrender warrant to pursue civil claims, the Court should not be satisfied that the applicant will be unable to prosecute the other proceedings in the event that he is removed from Australia. 29 The case which seems to me to be most clearly in point is a Full Court decision which is both correct, with respect, and binding on me, Rivera v Minister Administering the Extradition Act 1988 (Cth) (2007) 164 FCR 116. A very similar question was considered in that case by Gyles, Rares and Flick JJ. Dealing first with the decision of Gyles J, his Honour made the point (at [4]) that the affidavit in support of that application for an injunction dealt with various United Nations conventions and dealt with other proceedings which the appellant had commenced in the Supreme Court of New South Wales and in the Federal Court which were unresolved at the time of the proceedings. It contended that both Chapter III of the Constitution and Article 14 of the ICCPR protected the right of access to the Courts and that the removal of the appellant from the country would be inconsistent with that obligation. 30 Gyles J specifically dealt with both arguments which arise here. His Honour said: [9] The principal question for determination is whether his Honour was correct in his construction of the Act. In my opinion, his Honour was, in the circumstances of this case at least, correct in his construction and application of s 23. It does not purport to give any discretion to the Attorney-General. Where it says that the Attorney-General shall issue a warrant for the surrender of the person to the extradition country under the section, it means what it says. "Shall" means "shall". It is not necessary for the purposes of this case to explore the position in which an Attorney-General may find himself or herself if there is a significant change of circumstance. That issue can be left for another day. In my opinion, it is quite clear that neither basis advanced by the present appellant gives rise to any claim by him entitling him to prohibition or an injunction. The Minister was under no obligation to consider the matters raised by him in a manner which would be enforceable by any right of action against the Minister. The Parliament has laid down that once the gateways in s 22(2) have been closed, extradition must follow. [10] In any event, I was not persuaded that the reference to the United Nations is of any significance, having in mind the terms of s 22, particularly s 22(3)(b), of the Act. The legislature has considered the topic of torture. Indeed, it is clear from the definition of "political offence" that the legislature had in contemplation the Convention to which appeal is now made, although it appears that at that time the Convention against Torture had not been ratified. I am also not persuaded that the existence of collateral proceedings in Australia would amount to any proper basis for qualifying the obligation under s 23. It may be that a person who is extradited would find great difficulty in pursuing litigation in Australia for practical reasons. However, extradition does not in itself lead to impossibility of presentation of such a case. In any event, the filing of a proceeding by a person can hardly be seen as a basis for intervening in relation to the operation of s 23. [11] It must be borne in mind that the appellant must establish a cause of action entitling him to this relief. We are not considering what an Attorney-General may do confronted with other particular situations. I would dismiss the appeal with costs. (Emphasis added.) 31 Rares J agreed with Gyles J. Flick J also agreed and made the further point (at [26]): In my opinion, the execution of the warrant would not be any act or conduct not in conformity with the Convention and would not be inconsistent with any provision of the Convention. No breach of the Convention in my view has been established. No provision of the Convention purports to impose any constraint upon the Executive to act otherwise then in accordance with the domestic law of a signatory State. 32 This case, as I say, is precisely on point and requires the interlocutory application to be dismissed.

The delay in execution of the warrant 33 I should address one new argument raised this morning by Mr O'Donoghue. This particular warrant is now well over two months of age in contrast to the suggested age in the EA. There is a provision in s 26 of the EA which would suggest that in normal circumstances a warrant should be executed within a period of two months from the date it bears. In this case the warrant bears the date 23 March 2011. 34 In an appropriate circumstance there may be scope under subs 26(5) for an application to be brought to the Court by an affected person subject to subs 26(6) for the person to be released from custody if he or she is in custody in Australia under the warrant, or otherwise under the EA for a period of more than two months after the date on which the warrant was first liable to be executed. 35 However subs 26(6) spells out that where the Federal Court is satisfied that the person has not been conveyed out of Australia or under the warrant within the two month period, for any reasonable cause (other than a cause under subs 26(6)(a)), then the Federal Court shall not order that the person be released from custody (emphasis added). 36 In this instance it is clear that the considerable and extensive delays in resolving the extradition of Mr O'Donoghue have arisen because of the significant number of challenges which he has pursued, to date unsuccessfully. The Commonwealth has acted promptly following the High Court's refusal of special leave in February. In those circumstances this would not be an appropriate situation for an order for a release from custody. 37 I would not act under that provision even if the matter had been properly brought before me by an appropriate application. I note in any event that no application for release has been made.

Lack of evidence 38 Finally (and as identified by Sackville J in Li v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 667 (at [21]-[25]) and Emmett J in Li v Minister for Immigration & Multicultural Affairs [2001] FCA 1414 (at [44]-[47])), there is an absence of evidence of inability to conduct proceedings from Ireland. There is merely assertion as to the inability to do so. While it may be difficult, I am far from satisfied that the inconvenience of pursing the proceedings from Ireland, if they are to be pursued, outweighs the high public interest in Australia finally being able to meet its obligations under the Treaty with Ireland for extradition.

CONCLUSION 39 There is no inherent right to continue pursuing proceedings against the Government in its various emanations so as to avoid the operation of the EA. All avenues for challenge under that Act having been exhaustively pursued by Mr O'Donoghue and having failed, that is an end to the matter. Were it otherwise, the EA would have no effective operation. It follows therefore that the interlocutory application against all respondents must be dismissed with costs orders in favour of the first and third respondents. 40 The orders are as follows: 1. The applicant's interlocutory application for an injunction dated 4 April 2013 is dismissed. 2. The applicant pay the costs of the first and third respondents, to be taxed if not agreed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.