FEDERAL COURT OF AUSTRALIA
Brock v Minister for Home Affairs [2011] FCAFC 167
Date of hearing: 11 November 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Mr S Lloyd SC with Ms J Gleeson Solicitor for the Respondent: Blake Dawson
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1708 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GEORGE PAUL BROCK
AppellantAND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
DOWNES, YATES, KATZMANN JJ
DATE OF ORDER:
21 DECEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Appeal dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1708 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: GEORGE PAUL BROCK
AppellantAND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
DOWNES, YATES, KATZMANN JJ
DATE:
21 DECEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
DOWNES J
SUMMARY
When an extradition request is made by an extradition country the Minister for Justice and Customs “may… by notice in writing… state that the request has been received” (s 16(1) of the Extradition Act 1988 (Cth). The Minister shall not, however, give the notice unless “of… opinion… that, if the conduct of the person constituting the extradition offence… had taken place in Australia… the conduct would have constituted an extradition offence in relation to Australia”(s 16(2)).
Where, amongst other things, a notice has been given under s 16 and an application made to a magistrate “the magistrate shall conduct proceedings to determine whether the person…
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- Case
- [2011] FCAFC 167
- Decision Date
CaseChat Overview and Summary
The court found that the statutory notice was not a necessary precondition for the Minister's decision to order extradition, as this was rejected by the Full Court in O'Connor v Zentai. The court held that the Minister was entitled, but not bound, to consider the validity of the notice. Furthermore, the court rejected the argument that the Minister's consideration of the surrender decision was procedurally unfair, as the appellant had abandoned this argument during the proceedings. The court held that the appellant was ably represented by a pro bono barrister and that the decision to abandon the argument had no reasonable prospects of success.
The court concluded that the appeal must be dismissed with costs. The s 16 notice was found to be valid, as it sufficiently described the conduct constituting the extradition offence. The court also held that it would not be appropriate to make a declaration to the effect that the notice was flawed, as it would defeat the purpose of the notice having served its function. The appeal was dismissed, and the appellant's costs were awarded.
Orders
Orders of the court
1. Appeal dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It is not necessary for me to consider whether, or to what extent, duties of procedural fairness applied in connection with the Minister’s consideration of whether Mr Brock should be surrendered, because, if an obligation existed, it was satisfied. NO DECLARATION SHOULD BE MADE In answer to the claim that the s 16 notice became spent at the time of the making of the s 16 determination and that there would be no utility in declaring it to be invalid Mr Brock argues that a declaration might assist his position if he is extradited and that a declaration should be made for that reason alone. The problem with this argument is that it defeats the very reason which is behind the notice becoming spent. That notice served the purpose, for a limited time, of constituting a lawful administrative determination which validated the taking of a further step, namely the making of a further administrative determination in a curial setting on the same topic, to replace the temporary determination. Once the earlier determination ceased to be operative, because a more thorough process had confirmed it, there was no purpose in revisiting it. Indeed, the possibility that the earlier determination may have been flawed, is one very good reason not to revisit it after a later determination has replaced it and, at the same time, cured any defect. The situation is analogous to the position in Calvin v Carr [1980] AC 574 in which the Privy Council found that the provision of natural justice on appeal within a domestic tribunal cured its denial at first instance. Even if I considered that, at the time it was given, the notice was flawed it would not, therefore, be appropriate to make a declaration to that effect. I would decline to do so in the exercise of my discretion. To the extent to which Mr Brock may be assisted, if extradited, by the decisions in the proceedings he has brought in this court, the reasons for judgment of the various judges who have dealt with his matters will fully inform any authorities in the United States. THE SECTION 16 NOTICE WAS NOT FLAWED The following material was before the Minister when the s 16 notice was issued:(a)Under the heading Background, in the first attachment to the covering memorandum, the following was said:2.Brock is wanted for prosecution in the USA state of Illinois for offences relating to drug distribution and importation between March 1980 and February 1987, contrary to Title 21 of the United States Code. Brock is charged with the following offences:(a)Engaging in a continuing criminal drug enterprise as a principal administrator, which distributed and possessed with intent to distribute, imported, and conspired to distribute approximately 30,000 kilograms of marijuana, and(b)Conspiracy to distribute more than 1,000 pounds (equivalent to approximately 453 kilogram) of marijuana. No material of this kind was before the Minister whose determination was considered in Williams. The material disclosed the conduct, although not the evidence, constituting the extradition offence. In my opinion, the s 16 notice was, in any event, valid. CONCLUSION