Clarke, Ex parte- Re Cth Attorney-General- Clarke v Att--Gen

[1999] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Registry  No C5 of 1999

In the matter of -

An application for a Writ of Mandamus against THE COMMONWEALTH ATTORNEY-GENERAL

Respondent

Ex parte -

PETER DANIELS CLARKE

Prosecutor

Registry  No C6 of 1999

B e t w e e n –

PETER DANIELS CLARKE

Plaintiff

and

COMMONWEALTH ATTORNEY-GENERAL

Defendant

McHUGH J  

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 APRIL 1999, AT 2.15 PM

Copyright in the High Court of Australia

______________________

MR P.D. CLARKE appeared in person.

MR H.C. BURMESTER, QC:   I appear for the Attorney-General for the Commonwealth.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Clarke.

MR CLARKE:   What I had proposed today was very quickly giving your Honour a short background of the circumstances of my case; to put forth an argument as to why I am seeking an abridgment of the proper notice requirements of this Court; to establish why I believe I have standing in this particular matter; to establish why I believe this Court has jurisdiction to hear my case; and, as your Honour pleases, to make certain submissions and then I would seek directions from this Court.

HIS HONOUR:   Before you seek to embark on that, I have read the papers; the important parts closely, other parts such as transcripts which are annexures I have skimmed through, but it seems to me that your present application is misconceived and I will tell you why in a moment. That is not to say that you may not have certain rights here but your difficulty, as it appears to me, having regard to the way you have currently framed your case, Mr Clarke, is this. You rely on section 145 of the Migration Act as founding the cause of action which you seek to bring before this Court. 

However, upon its proper analysis, it appear to me that what the section does is to confer a power on the Attorney-General subject to his considering that certain conditions have been satisfied, one of them being that satisfactory arrangements have been made to make sure that the relevant person will meet the cost of bringing the non‑citizen to Australia or keeping the non-citizen.

If the Attorney-General considers that those conditions are made out, then he is empowered to issue the relevant certificate. Now, if he has erred in his consideration of the matter, for example, taking into account matters he should not have taken into account, not directed himself to the relevant question, it may be that his exercise of power was of no effect. But I do not see, in the section, any obligation on him to meet your costs of living in this country. It seems to me, and I will ask Mr Burmester about this, that a more fertile field of inquiry for you may be not section 145 of the Migration Act but an implied duty arising under the terms of section 44 of the Extradition Act.  Under that section the Attorney-General is under an obligation – I assume it applies to you and I will find out from Mr Burmester what he has to say about it – but it requires a person such as yourself to “be kept in custody as the Attorney-General orders in writing” and it would appear by necessary implication to impose upon the Attorney-General an obligation to provide reasonable means of support for any such person while that person is in Australia.

That may mean that you have a statutory cause of action which has nothing to do with mandamus or anything else but an action on the case.  But I will give you a full opportunity to speak afterwards, but at the moment I would like to hear what Mr Burmester has got to say in respect of this matter.  So if you would kindly take your seat.

MR CLARKE:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Burmester.

MR BURMESTER:   Your Honour, we would submit that your construction of section 145 of the Migration Act is correct, that it does not impose an obligation on the Attorney-General as rather the Attorney-General satisfying himself that somebody else is prepared to meet the costs of a particular persons.

HIS HONOUR:   Yes.

MR BURMESTER:   In this case, it was the Director of Public Prosecutions ‑ ‑ ‑

HIS HONOUR:   Yes, but questions may arise as to whether or not the Attorney has not misdirected himself in terms of his consideration of whether satisfactory arrangements have been made. Certainly, the letter that he wrote to Mr Duncan Kerr, which seems to be based on an earlier letter of the DPP, would seem to indicate that there is no obligation to meet these expenses if the person has his own or her own means of support. That seems to be a mistaken view of what section 145 requires.

MR BURMESTER:   Your Honour, I think it is certainly the view which has been acted upon.  Let me put it this way:  the terms of the undertaking which I understand the Director of Public Prosecutions gave was that they would meet the expenses of Mr Clarke if he did not otherwise have reasonable means of support and, having given that sort of undertaking to the Attorney-General, the Attorney-General then said he was satisfied and issued his certificate.

HIS HONOUR:   I will hear you at length if it becomes necessary, but prima facie, that would seem to indicate to me that the Attorney-General did not direct his mind to the correct issue under the section.  There is an obligation – well, there is not an obligation – he has to consider that:

satisfactory arrangements have been made to make sure that the relevant person or organisation…..will meet the cost –

of keeping the non-citizen in the country.  Now, whether that is the cost brought about by a penal authority or by the individual himself, there seems to be an absolute obligation for the person requiring the extradition or the bringing of the non-citizen into the country to meet the cost of keeping that person in the country.  And it does not matter whether the person is Warren Buffet or William Gates, it does not matter what the wealth of the person is.

MR BURMESTER:   Your Honour, all I can submit today is that that is certainly not my understanding of the basis on which the Attorney proceeded.

HIS HONOUR:   Quite obviously it is not the way that the ‑ ‑ ‑

MR BURMESTER:   And it is not the way in which, as you have indicated, the case is at present formulated.

HIS HONOUR:   No, I appreciate that.  There is no attack on the exercise of the power and, indeed, it may or may not lead very far, from Mr Clarke’s point of view because, if the certificate is invalid, it does not necessarily mean the visa is invalid, although it may be a ground for revoking the visa.  But that is another question.

But what do you say to the point I raised with Mr Clarke that under section 44 of the Extradition Act there is an implied obligation on the Attorney-General to provide the means of support of a person wanted in this country, that is the person extradited to this country?

MR BURMESTER:   Yes, your Honour.  Given that that is the first time I have heard this argument, I do not have instructions on it.  May I say, your Honour, that it would need some further analysis on behalf of the Attorney-General.  It was in relation to the second matter, the second action, C6, in which he seeks certain sums – my contention was that it is not clear on what basis that is being made, but it may be that the suggestion you have made would provide a basis on which that action could be examined and taken further.

HIS HONOUR:   That is so, and that will need some amendment perhaps.

MR BURMESTER:   It may, your Honour.

HIS HONOUR:   It may need some amendment.

MR BURMESTER:   Your Honour, what my submissions were essentially going to be was that the mandamus action is misconceived and displays no arguable basis.  Therefore, on that basis alone, the order nisi ought to be refused.  As to the other action, it was a question of seeking to clarify the particular basis on which it was brought and that might then determine what happened to it in terms of its future handling.

HIS HONOUR:   Mr Clarke, you have heard the discussion with Mr Burmester on what I said to you earlier.  It seems to me, with respect, that the application for mandamus is misconceived but you may have this other basis for relief, namely that there is an implied obligation on the Attorney-General to provide reasonable means of sustenance and support for a person who is extradited to this country, but it arises not under the Migration Act but under the Extradition Act. 

Now, I am prepared to hear you for a little while if you want to put an argument that there is an obligation under 145.  I have carefully studied the matter.  It does not seem to me to be the case but my mind can be changed if you can provide a persuasive argument to me.  So if you would like to put some submissions in respect of that section, I will hear you.  Otherwise, the course I would propose would be to dismiss the application for a mandamus, give you leave to amend your statement of claim to perhaps put it on a different basis, and remit the matter to perhaps the Supreme Court of the Australian Capital Territory for determination.  That is not going to give you any relief today, but at least it might put the case on a legally arguable basis.  Now, do you want to put anything further to me?

MR CLARKE:   Yes, your Honour.  In the first instance, I am generally troubled by section 475 of the ‑ ‑ ‑

HIS HONOUR:   You do not have to worry about it in this particular case ‑ when I say in this particular case, I mean in this case in this Court. Section 475 has got – it cannot oust the constitutional jurisdiction of this Court under section 75(v) of the Constitution. But ‑ ‑ ‑

MR CLARKE:   It appears to me that that ouster clause is inappropriate in the first instance. It conflicts with 77(i) of the Constitution. But if I may go back, clearly I do not know if the argument that I have should be framed, based upon section 44 of the Extradition Act or the relevant sections of the Migration Acts.  At the end of the day, I simply maintain that there probably is some statutory obligation upon the Minister to provide for my subsistence in the way that your Honour set forth.  I am troubled, though, about other matters, too.

HIS HONOUR:   Those matters are not before me and if you are talking about various matters that you have set out in the affidavit that is in the book that was here, none of those matters are before me on those summons and it would require some ingenuity to bring them before this Court at this stage of those proceedings.

MR CLARKE:   I will certainly apologise to the Court for filing late a supplementary order nisi and an affidavit today.  However, it is my submission that not only does the Attorney-General have an obligation to provide for the costs of my subsistence and medical care whilst I am in Australia pursuant to domestic statute, but that he has an obligation pursuant to international law.  The concern is that during the process of my extradition proceedings, neither the magistrate nor the US Attorney’s Office acting on behalf of the Commonwealth of Australia were ever told that, number one, I would not be provided with effective assistance of counsel here ‑ ‑ ‑

HIS HONOUR:   Yes, but look, that has really nothing to do with this Court and it does not seem to me to be a justiciable issue in any event.

MR CLARKE:   I would respectfully submit that I did have some reasonable expectation when I was in Federal Prison in the United States, based upon the Teoh doctrine, that I would receive not just counsel, which your Honour has commented on, but also that I would receive reasonable medical care, given my understanding that this country is a liberal democracy.  Therefore, I frame an argument based upon the recognition by this Court of treaty law, when it is not clearly enunciated in domestic municipal law.

HIS HONOUR:   All that Teoh does, decides that in making a decision, an Australian decision maker or, arguably, a Commonwealth decision maker, is required to take into consideration matters that may arise under a particular treaty but only to the extent of giving the person an opportunity to put submissions if the decision maker intends to depart from it.  But I do not see how that helps you.  The document that has been put in this book today, that has been sent today, has that writ been filed in this Court?

MR CLARKE:   Yes, sir, and I assume by “the document” you refer to a long-form affidavit headed “C5” dated April 6, 1999?

HIS HONOUR:   No, I refer to a document at page 1. The first paragraph called on the Attorney to show cause why pursuant to section 145 he was not under some obligations. The document that I have says:

Pursuant to, inter alia, numerous international treaties, the common law –

et cetera, et cetera.

MR CLARKE:   Yes.

HIS HONOUR:   Now, it is a very different document.  Has that document been filed in this Court?

MR CLARKE:   Well, I filed it with the Registry but my understanding was that it was not accepted, from what I understand from the Deputy Registrar just now.  It was filed at approximately 11 am this morning.

HIS HONOUR:   There seems to be some procedural irregularity.  This document, I am told, there, has been filed in matter C5 but it, itself, purports to contain an order nisi which really requires a separate action altogether.

MR CLARKE:   Again, that is why I wanted to apologise to the Court for the non-compliance with the notice requirements of the High Court Rules.  What I filed this morning was an affidavit including correspondence from the United States.

HIS HONOUR:   I have read all that.

MR CLARKE:   All right.  A long-form affidavit, if I may call it that.  Along with that, another draft order nisi seeking relief under different grounds, including reasonable expectation grounds, what I will call “Teoh” grounds, as well as common law - - -

HIS HONOUR:   Teoh grounds are meaningless. You have to point to some particular obligation - nothing in this document points to any particular obligation – for the Attorney-General to pay the costs of keeping you in Australia, apart from – there is a reference to section 145.

MR CLARKE:   That would be a statutory obligation which, as your Honour has pointed out, I may well have misapplied.  I would also point out though that there is a common law obligation, some kind of implied right obligation, pursuant to treaty and also the decisions of this Court.

HIS HONOUR:   Treaties, as such, are not binding in this country unless they are given the force of law by statute.  Unlike the United States Constitution which specifically makes treaties part of the law of the land, there are no treaties binding in this country, as a matter of domestic law, unless they are picked up by statute.

MR CLARKE:   However, the common law can be interpreted in this land by cognisance of those international treaties and, certainly, Dietrich is authority about that.

HIS HONOUR:   But what common law are we talking about?

MR CLARKE:   The basic right to subsistence.

HIS HONOUR:   Well, I do not know of any common law doctrine that there is a basic right of subsistence.

MR CLARKE:   All I can say is the only - - -

HIS HONOUR:   Indeed, the history of the poor laws in England shows the contrary, that because there was not such a doctrine at common law, poor laws had to be enacted to provide for the sustenance of poor people and putting obligations on counties to keep people in certain situations or to sustain them in certain situations.

MR CLARKE:   If, then, there is no basic right to food and shelter and so on in the common law, my argument would fail.

HIS HONOUR:   I think that is so.  It seems to me that your best line of attack is the Extradition Act and if the Attorney-General extradites a person, then, arguably, the Attorney-General has an obligation to keep that person while in this country.  But C5 does not, in my view, raise any issue upon which you could succeed but C6, your statement of claim action, with some amendment, may do so.  You will need to amend the statement of claim to identify what the relevant statutory provision is.  Are you getting any legal assistance from anybody, formal or informal?

MR CLARKE:   I am.  I am getting the legal assistance from some law students but I did want to ask the Court if it would consider appointing a lawyer for me under Order 16 rule 33.  As your Honour is aware from my affidavits, I am indigent and I am ill and also conducting my committal proceedings on a full-time basic and Legal Aid has denied me any funds.

HIS HONOUR:   Before the Court can make such an order, it has to be satisfied of various matters and one of them is that you are not worth a sum exceeding $200.  There is some evidence that would suggest that you are worth more than $200, even if those funds are not here in Australia.

MR CLARKE:   If I may just make submissions on that.  That is a very, very important point I would like to counter, your Honour.  In the first instance, in the affidavit which I swore, I affixed to that affidavit a statutory declaration as to my current position which shows a negative net worth, meaning the amount of cash on hand that I have is substantially less than the bills that I owe, and these are basic bills like telephone, et cetera. 

The further matter is that in respect of any funds overseas, those funds are frozen by virtue of court orders and will not be freed up, if at all, until the outcome of certain civil litigation is resolved.

HIS HONOUR:   That may or may not be relevant to that provision.  But the first – it seems to me such a provision would require a substantive application and at the moment it is not a matter that is going to exercise my mind because my present inclination is to accede to your request that you make in your statement of claim, subject to hearing Mr Burmester, to remit this matter to the Supreme Court of the Australian Capital Territory.

MR CLARKE:   Excuse me, your Honour, I did not understand something.  When you say “this matter”, do you mean C5 or C6?

HIS HONOUR:   C5, it seems to me, has to be dismissed.

MR CLARKE:   Yes.

HIS HONOUR:   C6 is in a different category.  It may require some amendment.  It does require some amendment, I think, but subject to that, it can be remitted.  But I would like to hear Mr Burmester on this.  Yes, Mr Burmester.

MR BURMESTER:   Your Honour, it would be our submission that, if the matter is to be remitted, it ought to be remitted to the Federal Court rather than the Supreme Court. It would clearly fall under section 44(2A):

Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth –

and there is power to remit that to the Federal Court in express provision.  It is not clear that it is really a suit in contract or anything like that against the Commonwealth.   While there may be an argument that the Supreme Court would have jurisdiction, it is not entirely clear in our mind.

HIS HONOUR:   Yes.

MR BURMESTER:    It would also seem that if, in some way, the matter could still be said to be involving a decision relating to the certificate by the Attorney-General, to wit, section 485 of the Migration Act applies ‑ ‑ ‑

HIS HONOUR:   I think that is a long bow.  If there is an obligation under the Extradition Act it is very difficult to say that that relates to - - -

MR BURMESTER:    I think that is correct, your Honour, if the extradition applies.  But if it was in the alternative, then section 485 of the Migration Act would still allow section 44 to operate and it could be said that this was a suit in which the Commonwealth was a party and, on that basis, we would prefer to have it remitted to the Federal Court, your Honour.

HIS HONOUR:   Well, Mr Clarke, unless there is something you want to put to me, what I propose to do is just give a very short judgment dealing with your application for a writ of mandamus and remitting the other matter to the Federal Court.

MR CLARKE:   Yes, your Honour.  I think that, certainly, the ACT Supreme Court has the jurisdiction to hear this particular matter, ie, C6.

HIS HONOUR:   Well, there may be problems about it and, as a matter of practice, I think these matters should go to the Federal Court.  Ordinarily, matters involving Commonwealth statute should go to the Federal Court.

MR CLARKE:   I respect your Honour’s decision.  The only reason I was pressing for the ACT Supreme Court is that I submit I have filed many applications there and so the judges are more across my circumstances based upon previous applications than possibly the Federal Court might be, that is all.

HIS HONOUR:   It might be to your advantage to have a fresh mind look at it, Mr Clarke.  Thank you.

MR CLARKE:   Thank you, your Honour.

HIS HONOUR:   I have before me an application in matter C5 of 1999 for the issue of an order nisi for a writ of mandamus to be directed to the Commonwealth Attorney-General. 

The applicant has been extradited to Australia to face a number of criminal charges.  At present the charges are part-heard.  It appears that the Department of Immigration or the Minister for Immigration would not allow his entry into the country without the granting of a criminal justice visa pursuant to the Migration Act 1958. The issue of such a visa requires a certificate from the Attorney-General and one was given pursuant to section 145 of the Migration Act. It is upon that section that the present applicant contends that the Attorney-General has an obligation to pay the costs of keeping him in Australia. Section 145 provides:

“If the Attorney-General considers that:

(a)  the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of:
(i)  the Extradition Act 1988;
…..
(b)  the presence of the non-citizen in Australia for the relevant purposes would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; and

(c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia;

the Attorney-General may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice.”

The Director of Public Prosecutions, who is prosecuting the criminal charges against the applicant, Mr Clarke, has given the Attorney‑General an undertaking that he will meet the cost of bringing the applicant to, and keeping him in, and removing him from Australia. 

The applicant contends that this section, that is to say section 145, imposes an obligation on the Attorney-General to meet the cost of keeping him while he is in Australia and that the Attorney-General is in breach of that obligation. In my view, section 145 does not impose any obligation on the Attorney-General to provide maintenance or sustenance for a non‑citizen in Australia.

Section 145 confers on the Attorney-General a power if he considers that certain conditions, including that set out in paragraph (c), has been satisfied. He is empowered to “give a certificate that the presence of the non‑citizen in Australia is required for the administration of criminal justice”. That is all the section does. It imposes no obligation on the Attorney-General. Nor, in my view, does it impose any obligation on any other person.

More fertile ground for the claim of the applicant appears to me to be section 44 of the Extradition Act 1988 which provides that:

“(1) Where a person is surrendered by a country to Australia pursuant to an undertaking by the Attorney-General of Australia in relation to:

(a)  the trial of the person in Australia in respect of a particular offence or offences;

(b)  the return of the person to the country; and

(c)  the custody of the person while travelling to and from, and while in, Australia:

the following provisions have effect:

(d)  the person shall, while travelling to and from, and while in, Australia pursuant to the undertaking, be kept in such custody as the Attorney-General orders in writing…”

It may be that either section 44 or some other provision of the Extradition Act impliedly imposes an obligation on the Attorney-General to provide for the reasonable cost of keeping an extradited person in Australia.  If it does, it may well give rise to an action on the case for breach of the statutory obligation.

In addition to matter C5 of 1999, the applicant has issued a statement of claim in matter C6 of 1999 in which he seeks, among other relief:

“That the Defendant pay to the Plaintiff the amount of $1,458.50 representing subsistence for the period September 25, 1998 to October 30 inclusive.”

He also seeks an order that the defendant pay to the plaintiff sums for certain medical treatment and reimbursement for medical fees. 

The statement of claim, on its face, appears to rely on the Migration Act 1958 and the Migration Reform Act 1992 to impose the relevant obligations on the Attorney-General. However, with suitable amendments, the plaintiff may be able to put his cause of action on some other statutory basis and, in particular, the Extradition Act. 

The course I propose to take is to remit the statement of claim to the Federal Court of Australia and to dismiss the application for a writ of mandamus.  I make those orders.

Anything further?  Very well.  Adjourn the Court until 10.15 am tomorrow.

AT 2.53 PM THE MATTER WAS CONCLUDED