Brock v Minister for Home Affairs

Link copied
Case Copied 17 min read

FEDERAL COURT OF AUSTRALIA

Brock v Minister for Home Affairs [2011] FCAFC 167

Citation: Brock v Minister for Home Affairs [2011] FCAFC 167
Appeal from: Brock v Minister for Home Affairs [2010] FCA 1301
Parties: GEORGE PAUL BROCK v MINISTER FOR HOME AFFAIRS
File number: NSD 1708 of 2010
Judges: DOWNES, YATES, KATZMANN JJ
Date of judgment: 21 December 2011
Catchwords: EXTRADITION – surrender decision – s 16 notice claimed invalid – minister not misdirected – no lack of procedural fairness – decision-maker not required to reveal nuances of considerations for comment – s 16 notice sufficiently described conduct – s 16 notice valid
Legislation: Extradition Act 1988 (Cth) ss 16, 19, 22, 23
Cases cited: Brock v Minister for Home Affairs [2008] FCAFC 165; (2008) 170 FCR 434
Brock v Minister for Justice and Customs [2007] FCA 2091; (2007) 243 ALR 315
Brock v United States of America [2007] FCAFC 3; (2007) 157 FCR 121
Calvin v Carr [1980] AC 574
Coulton v Holcombe (1986) 162 CLR 1
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
O’Connor v Zentai (2011) 195 FCR 515
Richardson v The Queen (1974) 131 CLR 116
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Williams v Minister for Justice and Customs [2007] FCAFC 33; (2007) 157 FCR 286
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
Appellant

AND:

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
Appellant

AND:

MINISTER FOR HOME AFFAIRS
Respondent

JUDGE:

DOWNES, YATES, KATZMANN JJ

DATE:

21 DECEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

DOWNES J

SUMMARY

  1. When an extradition request is made by an extradition country the Minister for Justice and Customs “may… by notice in writing… state that the request has been received” (s 16(1) of the Extradition Act 1988 (Cth). The Minister shall not, however, give the notice unless “of… opinion… that, if the conduct of the person constituting the extradition offence… had taken place in Australia… the conduct would have constituted an extradition offence in relation to Australia”(s 16(2)).

  2. Where, amongst other things, a notice has been given under s 16 and an application made to a magistrate “the magistrate shall conduct proceedings to determine whether the person…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Brock v Minister for Home Affairs and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] FCAFC 167
Decision Date

CaseChat Overview and Summary

The case of Brock v Minister for Home Affairs involved the appellant, Brock, challenging the decision of the Minister for Home Affairs to surrender him to the United States for prosecution on drug-related offences. The appellant argued that the statutory notice provided to him under section 16 of the Extradition Act 1988 (Cth) was invalid, and consequently, the Minister's decision to surrender him was flawed. The legal issues before the court included whether the statutory notice was a necessary precondition for the Minister's decision to order extradition, and whether there was a procedural unfairness in the Minister's consideration of the surrender decision.

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

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

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