Matson v Attorney-General
[2020] FCA 1558
•28 October 2020
FEDERAL COURT OF AUSTRALIA
Matson v Attorney-General [2020] FCA 1558
File number: QUD 107 of 2019 Judgment of: RANGIAH J Date of judgment: 28 October 2020 Catchwords: EXTRADITION – application for judicial review under s 39B of the Judiciary Act 1903 (Cth) – decision of Acting Attorney-General under s 22 of the Extradition Act 1988 (Cth) – application dismissed
ADMINISTRATIVE LAW – application for recusal based on apprehended bias – whether a reasonable person might apprehend bias – application dismissed
PRACTICE AND PROCEDURE – application for adjournment of hearings – consideration of interests of justice – applications dismissed
PRACTICE AND PROCEDURE – application for discovery – applications made after close of evidence – whether discovery will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible – applications dismissed
PRACTICE AND PROCEDURE – applications for reopening of evidence – consideration of nature and probative value of further evidence – whether reopening is in the interests of justice – applications dismissed
Legislation: Constitution ss 51(xix), 51(xxix), 62 and 64
Evidence Act 1995 (Cth) s 76
Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) rr 2.32, 20.11, 20.13, 20.14 and 20.15
Freedom of Information Act 1982 (Cth)
Judiciary Act 1903 (Cth) ss 39B and 78B
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Extradition Act 1988 (Cth) ss 3, 7, 11, 12, 15, 16, 19 and 22
Extradition (United States of America) Regulations 1988 (Cth) Sch 1
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
International Covenant on Civil and Political Rights Arts 2, 7, 9, 14 and 26
Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651
Borkovic v Minister for Immigration and Ethnic Affairs (1981) 39 ALR 186
Bromby v Offenders’ Review Board (1990) 22 ALD 249
Commonwealth Minster for Justice v Adamas (2013) 253 CLR 43
Craig v South Australia (1995) 184 CLR 163
Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Foster v Minister for Customs and Justice (2000) 200 CLR 442
Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530
Granitgard Pty Ltd ACN 007 427 590 v Termicide Pest Control Pty Ltd ACN 093 837 337 (No 3) [2009] FCA 82
Hala v Minister for Justice (2015) 145 ALD 552; [2015] FCAFC 13
Hamod v State of New South Wales (No 11) [2008] NSWSC 967
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Harris v Attorney-General (Cth) (1994) 52 FCR 386
Hawthorn Glen Pty Ltd (ACN 004 061 214) v Aconex Pty Ltd (ACN 091 376 091) (No 1) [2007] FCA 2010
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Inspector General in Bankruptcy v Bradshaw [2006] FCA 22
Jilani v Wilhelm (2005) 148 FCR 255
Johnson v Johnson (2000) 201 CLR 488
Kakis v Government of the Republic of Cyprus [1978] l WLR 779
Kioa v West (1985) 159 CLR 550
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Lobban v Minister for Justice (2016) 244 FCR 76
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3
Matson (Baron) v Keenan [2016] FCA 1550
Matson v United States of America [2016] FCA 1245
Matson v United States of America (2018) 260 FCR 187
Medical Board of Queensland v Freeman [2010] QCA 093
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v Wong [2002] FCAFC 327
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505
NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
Re Polites; Ex Parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78
Rivera v Minister for Justice and Customs (2007) 160 FCR 115
Rivera v United States of America [2004] FCAFC 154
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467
SBAP v Refugee Review Tribunal [2002] FCA 590
SBAU v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 70 ALD 72; [2002] FCA 1076
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51
Singh v Minister for Home Affairs (2019) 267 FCR 200
Smith v NSW Bar Association (1992) 176 CLR 256
Snedden v Minister for Justice (2014) 230 FCR 82
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZTOR v Minister for Immigration and Border Protection [2019] FCA 349
The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100
Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87
United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Vakauta v Kelly (1989) 167 CLR 568
Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614
Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167
Zanker v Kupsch [2014] SASCFC 13
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 488 Date of last submissions: 23 October 2020 (Applicant)
16 October 2020 (Respondent)Date of hearing: 18 November 2019 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr G Del Villar QC with Mr M McKechnie Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 107 of 2019 BETWEEN: BARON MATSON
Applicant
AND: THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
28 OCTOBER 2020
THE COURT ORDERS THAT:
1.The applicant have leave to file an Amended Originating Application in the form of the draft filed on 7 November 2019 subject to the deletion of Particulars (k), (l), (m), (n), (bb), (dd) and (rr).
2.The application for discovery filed on 11 March 2020 is dismissed.
3.The application for adjournment made on 25 June 2020 is dismissed.
4.The application for discovery and other orders filed on 6 July 2020 is dismissed.
5.The application for recusal filed on 30 June 2020 is dismissed.
6.The application for reopening and other orders filed on 16 July 2020 is dismissed.
7.The application for stay of the proceedings and other orders filed on 5 August 2020 is dismissed.
8.The application for adjournment of the hearing listed on 28 August 2020 and other orders filed on 19 August 2020 is dismissed.
9.The application for reopening and other orders filed on 15 September 2020 is dismissed.
10.The application for reopening filed on 25 September 2020 is dismissed.
11.The Amended Originating Application is dismissed.
12.The applicant pay the respondent’s costs of the proceedings.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Background
[5]
Procedural history
[21]
The hearing on 18 November 2019
[28]
Applications made after the hearing on 18 November 2019
[45]
The Hearing on 28 August 2020
[63]
Further applications made after the hearing on 28 August 2020
[65]
The Extradition Act
[70]
Relief under s 39B of the Judiciary Act
[75]
Order of consideration of the substantive and interlocutory applications
[79]
Consideration of the Draft Amended Originating Application
[82]
Non-compliance with s 22 of the Extradition Act
[90]
Failure to accord natural justice
[100]
Denial of Procedural Fairness
[132]
Unreasonableness
[188]
Irrational, illogical or arbitrary
[230]
Failure to take into account relevant considerations
[257]
Taking into account irrelevant considerations
[283]
Due Process
[286]
Bad Faith
[289]
Improper Purpose
[296]
Actual Bias
[301]
Apprehended Bias
[304]
Improper exercise of power
[312]
Abuse of Process
[317]
Failure to make enquiries
[321]
Failure to ask the right question
[324]
Other grounds
[328]
Grounds in support of paragraph 10
[339]
Conclusion
[349]
Consideration of the 25 June Adjournment Application
[352]
Consideration of the 11 March Discovery Application
[357]
Consideration of the 6 July Discovery Application
[386]
Consideration of the 30 June Recusal Application
[404]
Consideration of the 16 July Reopening application
[423]
Consideration of the 5 August Stay Application
[427]
Consideration of the 19 August Adjournment Application
[435]
Consideration of the 15 September Reopening Application
[455]
Consideration of the 25 September Reopening Application
[476]
Conclusion
[487]
RANGIAH J:
On 1 February 2019, the Acting Attorney-General of the Commonwealth of Australia (the Attorney-General) determined, pursuant to s 22(2) of the Extradition Act 1988 (Cth), that the applicant, Baron Matson, was to be surrendered to the United States of America (USA) in relation to certain qualifying offences (the Surrender Decision).
The substantive proceeding before the Court is an application for relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Surrender Decision. The hearing of that application was conducted on 18 November 2019.
The determination of the substantive proceeding has been delayed by a series of interlocutory applications brought by Mr Matson after the hearing had been completed and judgment reserved. These reasons will address both the interlocutory applications and the substantive proceeding.
It is necessary to begin by setting out the background and procedural history of the matter at some length in order to explain the issues that arise.
Background
On 26 October 2005, a grand jury in the USA returned an indictment charging Mr Matson, Roger Matson (his father), and another person with the following offences, carrying the following maximum terms of imprisonment:
·one count of conspiracy to commit mail fraud and wire fraud – 5 years;
·five counts of mail fraud – 20 years;
·nine counts of wire fraud – 20 years.
On 21 December 2005, another grand jury returned a superseding indictment charging Mr Matson and the others with the original offences and an additional count of conspiracy to commit money laundering, which carries a maximum penalty of 20 years imprisonment.
The USA alleges that between September 1997 and January 2001, Mr Matson and his co-conspirators conspired and induced persons in the USA to invest in a fraudulent investment scheme, and that they then vanished with the investors’ money.
On 21 January 2015, Australia received a request from the USA for the extradition of Mr Matson. On 4 September 2015, the former Minister for Justice issued a notice under s 16(1) of the Extradition Act stating that an extradition request had been received for Mr Matson. A Magistrate issued an extradition warrant pursuant to s 12 of the Extradition Act, and Mr Matson was subsequently arrested on 26 October 2015 and remanded in custody.
On 15 January 2016, a Magistrate determined that Mr Matson was eligible for surrender to the USA in relation to the alleged offences, and ordered that he be committed to prison under s 19(9)(a) of the Extradition Act to await surrender or release.
On 1 February 2016, Mr Matson filed an application for judicial review of the Magistrate’s decision to find him eligible for surrender (the First Instance Proceeding). Mr Matson was initially self-represented. In May 2016, I ordered that a pro bono referral certificate be issued. Mr Matson was briefly represented by pro bono counsel, but his legal representative withdrew shortly before the hearing, and Mr Matson appeared self-represented. On 21 October 2016, I dismissed the application: Matson v United States of America [2016] FCA 1245.
Mr Matson appealed from that judgment. He also mounted a collateral challenge to his extradition by applying pursuant to s 39B of the Judiciary Act to set aside the Minister’s decision under s 16(1) and the Magistrate’s decision to issue a warrant pursuant to s 12 of the Extradition Act. The Chief Justice directed that the application be heard by a Full Court. On 21 February 2017, I issued a pro bono referral certificate in respect of that application.
On 16 December 2016, I refused an application for bail brought by Mr Matson: Matson (Baron) v Keenan [2016] FCA 1550. Mr Matson sought leave to appeal against that judgment, although the application was not ultimately pursued.
Mr Matson was represented by Anthony Morris QC on a pro bono basis before the Full Court (the Full Court Proceeding). On 13 April 2018, the Full Court dismissed both the appeal and the s 39B application: Matson v United States of America (2018) 260 FCR 187.
On 16 April and 22 May 2018, the Attorney-General’s Department (the Department) wrote to Mr Matson inviting him to make representations in relation to the decision proposed to be made under s 22(2) of the Extradition Act. On 7 June 2018, Mr Morris QC responded on behalf of Mr Matson, asking that the Department “have appropriate regard” to all of the material and submissions from the Full Court Proceeding and the reasons of that Court. It is important to note that Mr Morris QC’s letter constituted the only representation made by or on behalf of Mr Matson.
A submission was provided by the Department to the Attorney-General on 10 January 2019 (the Departmental Submission). The Departmental Submission consisted of a front page for the recording of the Attorney-General’s decision, and attachments which included the Department’s advice upon the decision to be made (the Departmental Advice).
The Departmental Submission also attached Mr Matson’s submissions in respect of the First Instance Proceeding (which were in the form of an affidavit) and the Full Court Proceeding. It also attached the reasons for judgment at first instance and of the Full Court.
The Departmental Advice recommended that the Attorney-General determine that Mr Matson be surrendered.
The front page of the Departmental Submission read, relevantly, as follows:
Extradition - Determination whether to surrender Baron Matson (also known as Baron Bronstein, Philip Fletcher and Lincoln Robert Marshall) to the United States of America
Deadline: While there is no statutory deadline for your decision, subsection 22(2) of the Extradition Act 1988 (Cth) (the Act) requires you to make your determination whether to surrender Mr Matson to the United States of America (US) as soon as reasonably practicable.
Recommendation: The department recommends that you:
(i)consider the advice at Attachment C and determine under subsection 22(2) of the Act that Mr Matson is to be surrendered to the US for the qualifying extradition offences set out in the warrant at Attachment A, and
Agreed/ Not Agreed/ Discuss
(ii)if you agree to (i), sign and date the warrant at Attachment A under section 23 of the Act for the surrender of Mr Matson to the US for the qualifying extradition offences stated in the warrant.
Signed/Not Signed/ Discuss
A/g Attorney-General
/ /2019
Key Issues: The US has sought the extradition of Mr Matson, an Australian citizen, to face prosecution for the offences of conspiracy to commit mail and wire fraud, mail fraud, wire fraud and conspiracy to commit money laundering.
…
A person is only to be surrendered under section 22 of the Act if you are satisfied that certain criteria are met and if, in your discretion, you consider that the person should be surrendered. For the reasons outlined at Attachment C the department considers it open to you to be satisfied that the preconditions for surrender are met in this case. The department further considers it is open to you to determine, and recommends that you determine, that Mr Matson should be surrendered to the US. If you so determine, section 23 of the Act requires you to issue a warrant for his surrender to the US. A surrender warrant in the statutory form is at Attachment A.
Attachments:
•Attachment A - Surrender warrant in statutory form.
•Attachment B - Magistrate’s report and order under subsection 19(9) of the Act
•Attachment C - Departmental advice on the preconditions to, and grounds for refusal of, surrender.
•Attachment D - Submissions filed by Mr Matson for the purposes of an application for review under s.21 of the Act
•Attachment E - Submissions filed by Mr Matson for the purposes of an application for review of Rangiah J’s decision
•Attachment F - US’ response to Mr Matson’s representations dated 14 August 2018
•Attachment G - Matson v United States of America [2016] FCA 1245
•Attachment H - Matson v United States of America [2018] FCAFC 57
On 1 February 2019, the Attorney-General circled the words “Agreed” and “Signed” and signed the document in the space provided for his signature. He also signed and dated the Surrender Warrant on the same day. The Attorney-General, accordingly, determined under s 22(2) of the Extradition Act that Mr Matson be surrendered to the USA for the qualifying offences set out in the Surrender Warrant.
The Attorney-General did not expressly state his reasons for making the Surrender Decision. However, as he adopted the Department’s recommendation that Mr Matson should be surrendered, and as the Department’s reasons for that recommendation were contained in the Departmental Advice, the Attorney-General apparently adopted that advice. It should be inferred that the Departmental Advice reflects the Attorney-General’s reasons for making the Surrender Decision.
Procedural history
On 11 February 2019, Mr Matson filed his present application under s 39B of the Judiciary Act, seeking, inter alia, that the Surrender Decision be quashed and the Attorney-General be prohibited from giving effect to that decision. The application was prepared by Mr Morris QC, again acting pro bono.
A case management hearing was held on 1 March 2019. Mr Matson was represented by Mr Morris QC. I made orders for the exchange of material and setting down the matter for hearing on 22 July 2019.
In an affidavit sworn on 15 July 2019, Mr Matson deposed that upon reading the submissions prepared by Mr Morris QC, he had become concerned that certain arguments had not been formally raised in the grounds of the application or in the submissions. Mr Matson sought to have the hearing adjourned so that he could file an amended originating application and submissions. On 22 July 2019, I made orders relisting the hearing for 30 September 2019.
At the commencement of the hearing on 30 September 2019, Mr Morris QC indicated that he had been instructed to raise a range of issues, but was not satisfied he could properly advance allegations of bias and misconduct on the part of officers of the Department. Mr Morris QC sought a further adjournment of the hearing. He also sought orders granting leave to file two sets of submissions, one containing arguments he felt he could properly advance and another to be drafted by Mr Matson containing the other arguments. He also sought leave to file an amended originating application. Over the respondent’s objection, I adjourned the hearing to 18 November 2019 and ordered that Mr Matson file and serve the two sets of submissions proposed and a proposed amended originating application.
The orders made on 30 September 2019 for the filing of material were not complied with, and the Attorney-General’s lawyers had the matter listed for a case management hearing on 21 October 2019. Mr Morris QC appeared for Mr Matson, and I made an order requiring the proposed amended application and submissions be filed by 28 October 2019, and a further order that if Mr Matson failed to comply the matter would proceed to hearing on the basis of the originating application and the submissions already filed.
On 29 October 2019, Mr Morris QC provided the Attorney-General’s solicitors with a draft proposed amended originating application.
On 7 November 2019, Mr Matson filed another draft amended originating application (the Draft Amended Originating Application). The Draft Amended Originating Application was prepared by Mr Matson himself and significantly expanded the relief sought and the grounds of the originating application. The document contains in excess of 60 “particulars” in support of the grounds of relief. The particulars are in fact separate grounds, alleging denial of natural justice or procedural fairness, bad faith, improper purpose, actual and apprehended bias, unreasonableness, irrationality and illogicality and other grounds. As that document was not filed within the time allowed under the order of 21 October 2019, it will be necessary to consider whether leave should be granted to file that document.
The hearing on 18 November 2019
The hearing of the substantive proceeding took place on 18 November 2019. At the commencement of the hearing, Mr Morris QC stated that he had just seen the Draft Amended Originating Application prepared by Mr Matson, and that he was not willing to agitate those grounds. Mr Morris QC applied for leave to withdraw, and that leave was granted. Mr Matson represented himself for the remainder of the hearing.
Mr Matson requested an adjournment of the hearing on the basis that certain documents had not been disclosed to him under a number of Freedom of Information (FOI) requests. In order to understand this issue, a brief history of Mr Matson’s FOI requests is required.
In 2018, Mr Matson made approximately 12 FOI requests under the Freedom of Information Act 1982 (Cth) with respect to documents and communications in the possession of the Department referring to him and his father, Roger Matson. Relevantly, the Department determined that 108 documents existed in relation to Mr Matson and his father in FOI Requests FOI18/023, FOI18/082, FOI18/202 and FOI18/203, a number of which were disclosed to Mr Matson (the 2018 FOI Documents). Mr Matson was dissatisfied, and sought review of the FOI decisions by the Office of the Australian Information Commissioner (the OAIC). Whilst the OAIC was conducting those reviews, the Attorney-General made the Surrender Decision on 1 February 2019. The Attorney-General had not been asked by Mr Matson to refrain from making that decision pending the completion of the review process.
On 4 July 2019, Mr Matson was provided with four Revised FOI Decisions from the Department, which indicated that fresh searches had revealed 181 documents relevant to his FOI Requests, a number of which were disclosed to Mr Matson, albeit in a heavily redacted form (the 4 July FOI Documents). Mr Matson alleges that the 4 July FOI Documents included over 70 additional documents, the existence of which had not been disclosed to him in the various FOI decisions made in 2018. I will adopt Mr Matson’s description of these over 70 additional documents as the “Withheld Documents”. He also asserts that the 4 July FOI Documents were provided with different descriptions, different dates and different page numbering compared to the 2018 FOI Documents, such that he could not determine which documents he had already received. Mr Matson subsequently requested that the Department provide him with the 4 July FOI Documents in chronological order, and indicate which of those documents comprised the Withheld Documents.
A letter dated 6 November 2019 from the Department to Mr Matson attached the 4 July FOI Documents, but now with a footer that included the FOI decision reference and pagination (the 6 November FOI Documents). At the hearing, Mr Matson claimed to have only received the documents on 15 November 2019, three days prior to the hearing. He claimed that he was not able to determine which documents had already been provided to him in 2018, such that he could not ascertain which documents were the Withheld Documents.
Mr Matson submitted that he should have received the Withheld Documents prior to the making of the Surrender Decision on 1 February 2019, and that the failure of the Department to provide him with those documents was a denial of procedural fairness. I questioned whether the fact that Mr Matson had not received the Withheld Documents under the FOI process prior to the making of the Surrender Decision was relevant to the issue before me, namely the legality of the Surrender Decision. Mr Matson submitted that it was relevant because he may have been able to use the Withheld Documents in submissions to the Attorney-General, and that may have influenced the Attorney-General’s conclusion regarding his extradition.
Mr Matson sought to tender the 6 November FOI Documents at the hearing, but I did not allow the tender at that stage. I indicated that it was for Mr Matson to identify the documents which he contended might have assisted his submissions to the Attorney-General, and it was not for the Court to trawl through the documents to determine which, if any, might assist his case.
Mr Matson requested an adjournment of the hearing on the basis that the 6 November FOI Documents were different from the 4 July FOI Documents, and he required time to compare them. The Attorney-General contended that the 6 November FOI Documents were the same as the 4 July FOI Documents, the only difference being that the 6 November FOI Documents included a footer with the FOI decision reference and were paginated. Mr Matson accepted that was the case. The Attorney-General opposed the application for an adjournment.
I refused the adjournment. I considered that as Mr Matson had the same documents since 4 July 2019, he should have been able to identify the documents he wished to make use of for his argument by the time of the hearing. Despite this, I indicated that I would allow Mr Matson to make written submissions and provide an affidavit after the hearing concerning any specific documents he wanted to rely on. I considered that this would allow him adequate additional time to correlate the documents with schedules of documents he had been provided with by the Department.
Mr Matson then sought an adjournment of the hearing until two matters before the High Court of Australia had been decided. Judgment in those matters was later published on 11 February 2020 as Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3 (Love and Thoms). Mr Matson had filed and served a notice under s 78B of the Judiciary Act, and submitted that a significant constitutional issue arose in relation to the, “unique obligation of protection owed by the Crown to an Aboriginal society and requiring it to protect each member of that society”. The relevance of the High Court proceedings was stated to be that Mr Matson identifies as an Aboriginal person, and that the Attorney-General had an implied obligation to consider his Indigenous heritage when making the Surrender Decision as Mr Matson may be permanently separated from Australia and his community if extradited to the USA. The proceedings in the High Court in Love and Thoms were concerned with whether Indigenous Australians are within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. I did not allow the adjournment because I was not satisfied that those proceedings had sufficient relevance to the matter in this Court. However, I indicated that Mr Matson could make written submissions if the High Court’s judgment was handed down prior to the delivery of my judgment.
Mr Matson did not rely upon the draft amended application prepared by Mr Morris QC, but sought to rely on the Draft Amended Originating Application that he had prepared himself. The Attorney-General opposed leave being granted to file that document in view of Mr Matson’s non-compliance with the guillotine order made on 21 October 2019. I indicated that I would allow Mr Matson to make submissions upon the merits of the grounds in the Draft Amended Originating Application, and that I would reserve my judgment as to whether leave should be granted to rely upon it.
Mr Matson then objected to the substantive hearing proceeding on that day as he said he was under the impression that the matter had only been listed for a directions hearing. That asserted impression was misplaced, as the matter had clearly been set down for a substantive hearing. The matter had originally been listed for a substantive hearing on 30 September 2019, but on that day Mr Morris QC had applied for an adjournment. I then made an order that, “The hearing of the matter be adjourned to 10.15am on 18 November 2019”. Mr Matson was present in Court when the order was made. Having regard to the context of the submissions that had been made by Mr Matson’s counsel on that day, I did not accept that Mr Matson could reasonably have thought the matter had been listed for directions, rather than hearing of the substantive matter, on 18 November 2019.
Mr Matson also claimed that with the withdrawal of Mr Morris QC, he had been, “suddenly thrust to the Bar and then asked to take over the whole matter with no notice”. I did not accept that claim because on 30 September 2019, Mr Morris QC had said that he was only prepared to argue certain issues, and it was clear that Mr Matson would himself have to argue other issues he wished to pursue. On 30 September 2019, I had made orders requiring the filing of two sets of written submissions, one containing submissions Mr Morris QC felt he was able to argue, and the other containing other submissions Mr Matson wished to argue. Mr Morris QC filed a set of written submissions (which Mr Matson later adopted) and Mr Matson also prepared written submissions in support of the grounds of the Draft Amended Originating Application. Those submissions were contained in Mr Matson’s affidavits sworn on 4, 9, 11, 20, 23 and 24 September, 21 October and 4 November 2019. I did not accept that Mr Matson could reasonably claim to have been taken by surprise by the necessity to present his case concerning the grounds in the Draft Amended Originating Application at the hearing on 18 November 2019.
Mr Matson’s affidavits largely consisted of submissions in support of his Draft Amended Originating Application. The Attorney-General objected to these affidavits on the basis that they contained submissions, and in addition were, “at best, Mr Matson’s opinions and at worst, pure speculation”. The Attorney-General also objected to an unsworn affidavit of Mr Matson dated 16 September 2019 which he sought to rely upon at the hearing. I indicated during the hearing that I would consider and rule upon these objections in my reasons for judgment and will do so now.
Section 76(1) of the Evidence Act 1995 (Cth) provides that, “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. Mr Matson’s affidavits substantially consist of passages beginning “I verily believe” or “I believe”. These expressions generally precede either submissions about matters of law, or inferences that Mr Matson seeks to have drawn from asserted facts. Although expressed as opinions, I think they are better recorded as submissions or assertions. Apart from referring to paragraph numbers, the Attorney-General did not indicate precisely which passages he objected to. I consider that the most expedient way to proceed is to reject the objections and to simply treat the submissions contained in the affidavits as submissions. I will consider the inferences contended for by Mr Matson, but will not draw such inferences where they are unsupported by the facts. I do not consider that this course will disadvantage the Attorney-General. If I were to simply rule that large parts of the affidavits are inadmissible and refuse to take the affidavits into account, procedural fairness would, in my opinion, require that Mr Matson, as a self-represented litigant, be given an opportunity to file further affidavits and separate submissions. The course I propose to take will allow his affidavits to be considered in full and used for such purposes, and given such weight, as is appropriate.
Mr Matson also made oral submissions at the hearing. At the conclusion of the hearing, I made orders allowing Mr Matson to file a further affidavit limited to addressing the 6 November FOI Documents, as well as further submissions (not exceeding ten pages), and allowing the Attorney-General to file any affidavit in reply and further submissions.
On 24 December 2019, Mr Matson filed submissions which exceeded the page limit. He also filed three affidavits, sworn on 19 and 20 December 2019 and 2 January 2020, the first of which was over 300 pages in length. The submissions also went beyond the scope of the orders, and raised arguments unrelated to the 6 November FOI Documents. Despite that, bearing in mind that Mr Matson was by then self-represented, I consider that the interests of justice require that I should consider these submissions and affidavits. The Attorney-General has had the opportunity to respond to them.
Applications made after the hearing on 18 November 2019
On 13 January 2020, after judgment had been reserved, Mr Matson notified the Court that Julian Burnside QC had expressed an interest in providing him with legal advice and representation. Mr Matson wrote to the Court to request that a pro bono referral certificate be issued and that the matter be listed for a further final substantive hearing. An affidavit sworn on 29 January 2020 was filed by Mr Matson in support of this request. Mr Matson was advised that I did not intend to issue a pro bono referral certificate, and was not willing make any other orders in the absence of any application.
Mr Matson filed an interlocutory application on 10 February 2020 seeking a temporary stay of the proceedings until an instructing solicitor could be engaged to brief Mr Burnside QC, an order that the matter be listed for a further final substantive hearing and other orders.
The interlocutory application was accepted for filing and listed for mention on 4 March 2020. Mr Matson was self-represented at that hearing. He handed up a draft amended interlocutory application, which was prolix. Mr Matson also sought to make a bail application. I made orders allowing the filing of an amended interlocutory application which succinctly set out the orders he sought, as well as affidavits and submissions which addressed the interlocutory application and the bail application.
On 11 March 2020, Mr Matson filed an amended interlocutory application dated 5 March 2020 (the 11 March Discovery Application). The interlocutory application sought orders, inter alia, for the listing of the matter for a further final substantive hearing, the production of a number of documents and discovery.
The interlocutory application and the bail application were listed for hearing on 8 April 2020. Prior to the hearing date, Mr Matson secured legal representation. The parties reached agreement upon orders adjourning the hearing of the 11 March Discovery Application and the bail application to 25 June 2020.
The interlocutory hearing was conducted on 25 June 2020. Mr Matson was represented by Mr Burnside QC and Damien Freeman of counsel. Mr Burnside QC indicated that the application for bail was not pursued.
Mr Burnside QC commenced by applying for an adjournment of the hearing (the 25 June Adjournment Application). That application was based upon Mr Matson having an application on foot in the Administrative Appeals Tribunal (the AAT) that might produce disclosure of the FOI documents being sought in the discovery application. The adjournment was opposed by the Attorney-General. I refused the adjournment application. I indicated that I would provide my reasons at a later date.
Mr Burnside QC then proceeded to make submissions upon the 11 March Discovery Application. Mr Burnside QC submitted that the application for discovery was not an application to reopen the proceeding. I refused the application for discovery. I indicated that I would provide my reasons for that refusal when I delivered judgment in respect of the substantive proceeding (which, at that stage, I anticipated would be within a fairly short time).
However, on 29 June 2020, the Court received correspondence from Mr Matson indicating that he would be proceeding again as a self-represented litigant, and seeking to file a further interlocutory application and supporting affidavit. This interlocutory application, dated 29 June 2020 and filed on 6 July 2020 (the 6 July Discovery Application), was substantially the same as the 11 March Discovery Application that had been decided on 25 June 2020, except that it also sought discovery of some additional documents. I made orders on 3 July 2020 requiring Mr Matson to file written submissions as to whether the interlocutory application should be accepted for filing, and indicated that I would deal with that issue on the papers.
The Court received correspondence from Mr Matson dated 30 June 2020 seeking that I recuse myself from the matter and raising various other matters. I considered that the correspondence should be treated as an application for my recusal (the 30 June Recusal Application).
The Court received further correspondence from Mr Matson dated 7 July 2020, which enclosed an application seeking leave to appeal from my judgment made on 25 June 2020, and a draft notice of appeal. This application was provided to the National Operations Registrar for allocation to another judge.
The Court then received another bundle of correspondence from Mr Matson dated 10 July 2020, enclosing submissions prepared under the orders made on 3 July 2020 and an affidavit in support of the 6 July Discovery Application. It also enclosed a new interlocutory application dated 10 July 2020 filed on 16 July 2020 seeking that the 11 March Discovery Application be reopened and relisted for hearing and bail (the 16 July Reopening Application).
On 30 July 2020, I decided to make orders revoking the orders made on 3 July 2020, and listing the 6 July Discovery Application, the 30 June Recusal Application and the 16 July Reopening Application for hearing on 28 August 2020.
Mr Matson then sent an originating application dated 28 July 2020 to the Court for filing. The relief sought is similar to that sought in the Draft Amended Originating Application, although it also seeks the issue of writs of habeas corpus and mandamus. It also seeks a stay of the proceedings in this matter. Some new grounds are also alleged, although a number are substantially similar to grounds relied upon in the Draft Amended Originating Application. The originating application was referred to the National Operations Registrar for allocation to another judge.
The Court received further correspondence from Mr Matson enclosing a new interlocutory application dated 2 August 2020, filed on 5 August 2020, which sought vacation of the procedural orders made on 30 July 2020, and a temporary stay of these proceedings and each of the applications filed by Mr Matson following the hearing on 25 June 2020 (the 5 August Stay Application).
Mr Matson was notified that I did not intend to vacate the orders made on 30 July 2020. The remainder of the 5 August Stay Application was listed for hearing with the other applications on 28 August 2020.
The Court received further correspondence from Mr Matson enclosing a further interlocutory application dated 13 August 2020, filed on 19 August 2020 (the 19 August Adjournment Application), which sought, inter alia, an adjournment of the hearing listed on 28 August 2020 and an extension of time for compliance with the orders made on 30 July 2020. The 19 August Adjournment Application was listed for hearing with the other applications on 28 August 2020.
On 21 August 2020, the Court received further correspondence from Mr Matson enclosing ten requests for leave to issue subpoenas. Mr Matson was notified that the subpoena requests would be addressed at the hearing on 28 August 2020.
The Hearing on 28 August 2020
Mr Matson was self-represented at the hearing on 28 August 2020. Mr Matson commenced by addressing the 19 August Adjournment Application, and sought an adjournment on ten grounds. I refused the adjournment. I will provide my reasons for refusing the adjournment later in these reasons.
Mr Matson then proceeded to argue his remaining interlocutory applications, save that he did not seek to have his bail application determined that day and did not address the subpoenas. I reserved judgment in respect of those applications, and will consider them later in these reasons.
Further applications made after the hearing on 28 August 2020
The Court received further correspondence from Mr Matson on 10 September 2020 enclosing a new interlocutory application dated 10 September 2020, filed on 15 September 2020, seeking that the substantive proceeding and various interlocutory applications be stayed until an originating application dated 6 September 2020 was heard and determined; that the substantive proceeding be “reopened” due to fresh evidence coming to light; and that further discovery be ordered (the 15 September Reopening Application). I note that an originating application dated 6 September 2020 has not been received by the Court, although an originating application dated 1 September 2020 has been filed (seeking judicial review of a decision of the OAIC concerning Mr Matson’s request for review of an FOI Decision) and allocated to another judge. In the absence of any indication as to whether an originating application dated 6 September 2020 actually exists, I infer that the 15 September Reopening Application was intended to refer to the originating application dated 1 September 2020.
I made orders for the filing of submissions in relation to the 15 September Reopening Application, and indicated that following the receipt of submissions, I would determine whether the application should be determined on the papers, or whether there should be an oral hearing. I consider that the matter should be determined on the papers, and will do so later in these reasons.
On 18 September 2020, Peter Bubendorfer of counsel filed a notice of acting which indicated that he had been appointed to represent Mr Matson in the proceedings to bring an interlocutory application to hear further submissions and make an application for bail. An application for bail had already been brought before another judge in the proceedings filed on 28 July 2020.
A further interlocutory application prepared by Mr Bubendorfer and dated 25 September 2020 was filed, seeking an order granting Mr Matson leave to reopen the proceedings and leave to make further submissions as to error of law on the part of the Attorney-General (the 25 September Reopening Application). The application was not accompanied by a supporting affidavit or any particulars. I made orders for the filing of submissions and indicated that following the receipt of submissions I would determine whether the application should be determined on the papers. I consider that the application should be determined on the papers, and will do so later in these reasons.
Given the number of interlocutory applications filed by Mr Matson in these proceedings following the final hearing, I considered it appropriate to make an order on 2 October 2020 that no further interlocutory applications be filed without the leave of the Court until judgment was delivered.
The Extradition Act
In Harris v Attorney-General (Cth) (1994) 52 FCR 386 at 389, the Full Court explained that there are four stages in extradition proceedings under the Extradition Act. The first stage is commencement, either by the issue of a provisional warrant under s 12(1), or by the giving of a notice under s 16(1). The second stage is remand, in that, once arrested, s 15 requires that the person be taken before a Magistrate and remanded in custody or on bail. The third stage is determination by a Magistrate of eligibility for surrender pursuant to s 19 of the Act. The fourth stage is executive determination pursuant to s 22 as to whether the person is to be surrendered. The decision under challenge was made by the Attorney-General at the fourth stage.
Section 22 of the Extradition Act provides, relevantly:
(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 Federal Circuit Court 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.
The phrase “extradition objection” referred to in s 22(3)(a) is defined in s 7 of the Extradition Act as follows:
7Meaning of extradition objection
For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if:
(a) the extradition offence is a political offence in relation to the extradition country; or
(b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, sex, sexual orientation, religion, nationality or political opinions or for a political offence in relation to the extradition country; or
(c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, sex, sexual orientation, religion, nationality or political opinions; or
(d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or
(e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence.
Section 22(3)(e) refers to s 11, which provides:
11 Modification of Act in relation to certain countries
(1) The regulations may:
(a)state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b)make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, conditions, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.
The Extradition (United States of America) Regulations 1988 (Cth) (the USA Extradition Regulations) give effect to a bilateral extradition treaty between Australia and the USA. The “Treaty on extradition between Australia and the United States of America” (the USA Extradition Treaty) is contained in Sch 1 of the USA Extradition Regulations.
Relief under s 39B of the Judiciary Act
Mr Matson’s Draft Amended Originating Application seeks relief under s 39B of the Judiciary Act. That section provides, relevantly:
39B Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
(1)…the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
…
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
…
The Draft Amended Originating Application seeks a writ of prohibition against the Attorney-General, as well as other relief. A writ of prohibition cannot be issued unless jurisdictional error is established: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [70].
In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the plurality at [24] described jurisdictional error as, “a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”. The plurality held at [29] that where a statute confers decision-making authority, “The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”. Their Honours stated at [30]:
…the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made…
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the plurality confirmed at [45] that, “A breach is material to a decision only if compliance could realistically have resulted in a different decision”.
Order of consideration of the substantive and interlocutory applications
These reasons require consideration of the grounds for review of the Attorney-General’s decision under s 22(2) of the Extradition Act contained in the Draft Amended Originating Application (ie the substantive application) and each of the interlocutory applications filed since the hearing of the substantive application took place on 18 November 2019.
I propose to consider the applications in chronological order, as follows:
·The Draft Amended Originating Application;
·The 11 March Discovery Application;
·The 25 June Adjournment Application;
·The 6 July Discovery Application;
·The 30 June Recusal Application;
·The 16 July Reopening Application;
·The 5 August Stay Application;
·The 19 August Adjournment Application;
·The 15 September Reopening Application; and
·The 25 September Reopening Application.
I will provide my reasons for judgment in respect of the substantive application first because that will assist to place the subsequent interlocutory applications in context. However, I emphasise that the order in which my reasons are set out does not reflect the order in which I decided the applications. I decided the interlocutory applications before deciding the substantive application.
Consideration of the Draft Amended Originating Application
At the hearing on 18 November 2019, Mr Matson made oral submissions upon the grounds in the Draft Amended Originating Application, as well as relying upon the written submissions filed by Mr Morris QC and the written submissions contained in his own affidavits dated 15 July, 4, 9, 11, 16, 20, 23 and 24 September, 21 October and 4 November 2019. Mr Matson also relied on affidavits filed after the hearing dated 19 and 20 December 2019 and 2 January 2020.
The Draft Amended Originating Application sets out four grounds in support of the relief sought. The application then sets out some 60 particulars of the ground relied upon. Although stated to be particulars, they amount to separate grounds of judicial review. I will treat them as comprising grounds of review.
The Draft Amended Originating Application was filed on 7 November 2019. The Attorney-General submitted that Mr Matson should not be allowed to rely on the Draft Amended Originating Application because of his non-compliance with orders made on 21 October 2019 requiring the document to be filed by 28 October 2019. I indicated at the hearing that, despite the non-compliance, I would allow Mr Matson to rely on the Draft Amended Originating Application if the grounds had sufficient merit.
The grounds raised in the Draft Amended Originating Application are set out below:
A.that procedures that were required by law to be observed in connection with the making of the Surrender Decision and issuing of the Surrender Warrant were not observed;
B. that the Surrender Decision and issuing of the Surrender Warrant were not authorised by the enactment in pursuance of which they were purported to be made;
C.that the Surrender Decision and issuing of the Surrender Warrant involved an error of law; and
D. that the Surrender Decision and issuing of the Surrender Warrant were otherwise contrary to law, in that:
The Applicant contends in support of paragraphs 1 through 9:
Particulars
(a)Contrary to subsection 22(2) of the Act, the decision that the Applicant be surrendered to the United States of America in purported pursuance of section 22 of the Act:
(i) was not made as soon as was reasonably practicable, having regard to the circumstances, after the Applicant became an eligible person; and
(ii) was not made, or not made exclusively, in relation to a qualifying extradition offence or qualifying extradition offences.
(b)The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a “failure to accord natural justice” on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts (such argument may also be referred to as ‘material’, ‘evidence’ or ‘information’), namely the Applicant’s argument ‘put on record’ that any surrender order would be “unjust, oppressive or too severe a punishment”...by reason of delay...and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because of the Applicant’s indigenous heritage that would have an effect on him being incarcerated for any lengthy period there…;
(c)The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a “failure to accord natural justice” on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant’s specific argument that “a sense of false security engendered in the defendant is also a relevant consideration” in determining whether extradition was unjust or oppressive, which argument was clearly raised in the Applicant’s affidavit filed in QUD 89 of 2016.
(d)The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a “failure to accord natural justice” on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant’s argument that there was the potential of “torture, cruel and unusual punishment” in violation of the Applicant’s fundamental human rights protected under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) which was clearly raised in the Applicant’s affidavit filed in QUD 89 of 2016 and raised in the Applicant’s further amended originating application filed in QUD 569 of 2016.
(e)The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a “failure to accord natural justice” on the basis that the Acting Attorney-General overlooked a substantial clearly articulated argument relying upon established facts, namely the Applicant’s argument that his constitutional implied rights protected under the Constitution were being violated, including the constitutional implied right to protection from cruel and unusual punishment, particularly in consideration of the total charges amounting to 305 years and the real likelihood of the Applicant receiving a disproportionately excessive sentence if convicted in the US...The constitutional implied rights argument was clearly raised in the Applicant’s affidavit filed in QUD 89 of 2016 and also raised in the Applicant’s further amended originating application filed in QUD 569 of 2016.
(f)The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness “hearing rule” on the basis that over 180 documents containing “new” material that was adverse to the Applicant and that was “credible, relevant and significant” to the Surrender Decision were not provided to the Applicant prior to the Acting Attorney-General’s Surrender Decision of 1 February 2019, which documents the Applicant had sought access to well before the Surrender Decision of 1 February 2019 via the correct legal process provided under the Freedom of Information Act 1982 (Cth)…
(g)The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness “hearing rule” on the basis that other additional documents in relation to the Applicant were also withheld, including extradition related documents…in relation to the Applicant from 2005; and one (1) additional previously withheld document provided by a foreign state in relation to the Applicant for during the period of 2007 to 2009 which were “critical” to the Acting Attorney-General’s Surrender Decision, as such documents also contained “new” material that was adverse to the Applicant, and that was “credible, relevant and significant” to the Surrender Decision;
(h) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness “hearing rule” on the basis that the Applicant was provided twenty ‘misleading official communications’ throughout his dealings with the Attorney-General’s Department, mainly in relation to his FOI requests. Significantly, most often such communications were provided to the Applicant by the “Unit Head” of the International Cooperation Unit, Stephen Bouwhuis, Assistant Secretary;
(i) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness “hearing rule” on the basis that “all submissions and material” the Applicant had filed for the purposes of his judicial review applications before the Full Federal Court were not annexed to or adequately summarised in the ‘Ministerial brief’ put before the Acting Attorney-General…This would include all applications and amended applications, notices of appeal, submissions and affidavits filed in QUD 89, 569 and 844 of 2016 and QUD 51 of 2017. The “Appeal Books” filed for QUD 844 of 2016 and QUD 51 of 2017 were both also omitted from the “Ministerial brief” put before the Acting Attorney-General;
(j) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by a denial of the procedural fairness “hearing rule” on the basis that the Applicant’s “representations” prepared on his behalf by Anthony J. H. Morris QC, dated 7 June 2018 were not put before the Acting Attorney-General in the ‘Ministerial brief’ as was indicated would happen in the Attorney-General’s Department “Invitation” letter dated 16 April 2018…;
(k) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘bad-faith’ and ‘improper purpose’; and or ‘actual bias’ or alternatively an ‘apprehension of bias’ on the basis that there was an undisclosed ‘conflict of interest’, namely that David Reed did not disclose his longstanding prior involvement as the Attorney-General’s Department Legal Case Officer handling the Attorney-General’s Department files ‘Roger Matson and others’ during the period of 2003 to 2005, which files were in relation to the Australian domestic prosecution and investigation of the Applicant and his father…;
(l) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘bad-faith’ and ‘improper purpose’; and or ‘actual bias’ or alternatively an ‘apprehension of bias’ on the basis that there was another undisclosed ‘conflict of interest’, namely that Stephen Bouwhuis did not consider that he had a longstanding involvement in multiple FOI communications, FOI decisions and FOI internal review decision in relation to the Applicant during 2018, and then gave legal advice and made recommendations in the ‘Ministerial brief’ in relation to the Applicant’s surrender determination…;
(m) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘bad-faith’ and ‘improper purpose’; and or ‘actual bias’ or alternatively an ‘apprehension of bias’ on the basis that the Applicant was provided twenty ‘misleading official communications’ throughout his dealings with the Attorney-General’s Department, mainly in relation to his FOI requests and most often such communications were from Unit Head of the International Cooperation Unit, Stephen Bouwhuis, Assistant Secretary;
(n) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘bad-faith’ and ‘improper purpose’; and or ‘actual bias’ or alternatively an ‘apprehension of bias’ on the basis that the “misleading official communications” from Mr Bouwhuis not only informed the Applicant that credible, relevant and significant documents did not exist when in fact those documents did exist, but also informed the Applicant that credible, relevant and significant documents did exist (namely 400 documents in relation to to the Applicant for during the period of 2007 to 2011) when in fact those documents did not exist...
(o) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘unreasonableness’ or was ‘seriously irrational and illogical’ on the basis that the Acting Attorney-General failed to give sufficient weight to the Applicant’s Indigenous heritage and to the consequences and likely hardship caused to the Applicant and his family as First Nations people by surrendering him to the US, potentially permanently separating him from his family, community, culture and country;
(p) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘unreasonableness’ or was ‘seriously irrational and illogical’ on the basis that the Acting Attorney-General misconstrued Article V of the Treaty by failing to properly form the opinion or requisite state of satisfaction that surrendering the Applicant to the US was in fact “proper to do so” in his particular circumstances…
(q) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘unreasonableness’ or was ‘seriously irrational and illogical’ on the basis that the Acting Attorney-General relied upon the department’s ‘Ministerial brief’ which specifically raised the Applicant’s Indigenous heritage in the context of Article V of the Treaty, and therefore required the Acting Attorney-General to give proper, genuine and realistic consideration to the Applicant’s Indigenous heritage in determining whether or not to exercise his discretion under Article V of the Treaty to refuse the Applicant’s surrender on grounds of “Nationality”, which the Acting Attorney-General did not do. The Acting Attorney-General rigidly and inflexibly applied the Government’s policy of not refusing extradition on grounds of “Nationality” without fairly or properly considering the merits of the Applicant’s individual case, particularly his Indigenous heritage and his “special connection” to Australia;
(r) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘unreasonableness’ or was ‘seriously irrational and illogical’ on the basis that the Acting Attorney-General failed to consider that the US Government failed to provide, and the Commonwealth failed to request the US Government to provide a formal written assurance that the over 3 years already served in maximum security prison would be guaranteed to be deducted from any finite sentence imposed upon the Applicant if he was convicted in the US…;
(s) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘unreasonableness’ or was ‘seriously irrational and illogical’ on the basis that the Acting Attorney-General in totality of the circumstances, failed to properly consider all of the facts and circumstances of the Applicant’s case and thereby failed to discharge his statutory duty to exercise his discretion reasonably;
(t) The Surrender Decision was affected by and reflects jurisdictional error because the decision was tainted by either ‘unreasonableness’ or was ‘seriously irrational and illogical’ on the basis that the Acting Attorney-General failed to consider that the US Government failed to provide, and the Commonwealth failed to request the US Government to provide a further formal written assurance that the Applicant would not be exposed to receive a disproportionately excessive sentence from the Florida Federal Judge the Applicant would come before, particularly as the Applicant’s charges amount to some 305 years in total and the US sentencing regime which allows and has a tendency to accumulate sentencing;
(u) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General failed to consider any analysis of the applicable ‘Australian Standard’ in the circumstances of the Applicant’s individual case, including the fair trial Australian standard or from a likely punishment if convicted Australian standard, and in consideration of the Applicant’s Indigenous heritage, which because of his Indigenous heritage it would have an effect on him if he was incarcerated for any lengthy period of time in the US. This is particularly relevant in view of the US sentencing regime which has a tendency to accumulate sentences and in circumstances where the Applicant had previously raised his concerns and ‘put on record’ his belief that any surrender order would be unjust, oppressive or too severe a punishment;
(v) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) acted unreasonably in the exercise of his discretion, or constructively failed to exercise jurisdiction by failing to exercise his discretion or failing to consider whether to exercise his discretion to refuse extradition on grounds of “Nationality” under Article V(1) of the Treaty, or alternatively to exercise his general discretion to refuse extradition under s 22(3)(f) of the Extradition Act1988 (Cth) particularly in consideration of the Applicant’s indigenous heritage and “special connection” to Australia.
(w) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) excluded or completely discounted factual material from the evidence proffered by the Applicant on the incorrect basis that it was irrelevant, thereby committing an error of law;
(x) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) his exclusion of factual material was wholly irrational and arbitrary, and was tantamount to a refusal to consider a matter, thereby committing an error of law;
(y) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) failed to comply with his statutory “duty to consider” all of the Applicant’s evidence and arguments which was an implied mandatory consideration derived from the scope, subject-matter and purpose of the Extradition Act1988 (Cth);
(z) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) misconstrued the meaning of the word “proper” as an ordinary English word in the context of Article V of the Treaty, thereby committing an error of law;
(aa) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) his conclusion that it was “proper” to surrender the Applicant to the US was, on the material before him, a view of the facts that could not “reasonably be entertained” and amounted to an error of law;
(bb) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) was for an improper purpose and was an “abuse of process” on the basis that the delay in seeking the Applicant’s provisional arrest and the delay in formally requesting the Applicant’s extradition was unjustified and attributable to the US Government, and that there was a lack of candour and obfuscation in explaining the delay, specifically in view that the US Department of Justice had been provided the Applicant’s fathers address in 2003, and had access to the Applicant and his father’s location at any time via the Australian Federal Police and/or via the Attorney-General’s Department;
(cc) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) his evaluation or judgment went beyond the range where it could have permissibly gone either way, thereby committing an error of law;
(dd) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) constructively failed to exercise jurisdiction by failing to think about mandatory considerations, deciding for an improper purpose, deciding irrationally and by failing to engage with the Applicant’s evidence, arguments and contentions, thereby committing an error of law;
(ee) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) treated express and implied mandatory factors irrationally and illogically, and upon the evidence that was before the Respondent, no reasonable decision-maker would have made the same factual inferences or conclusions, amounting to jurisdictional error;
(ff) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) did not direct himself or ask himself the right question in relation to the legal consequences and the likely hardship to be caused to the Applicant and his family by surrendering the Applicant to the US, particularly in consideration of the Applicant’s indigenous heritage and his “special connection” to Australia, thereby committing an error of law;
(gg) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) failed to make an obvious inquiry about a critical fact, namely the sentencing regime in the US, the existence of which could have been easily ascertained, particularly as there was evidence that such an enquiry would have made a difference to his requisite state of satisfaction required to be formed under Article V(l) of the Treaty that in the circumstances it was “proper” to surrender the Applicant, and in exercising his general discretion under 22(3)(f) of the Extradition Act1988 (Cth);
(hh) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) rigidly and inflexibly applied a policy position resulting in the Respondent failing to give proper, genuine and realistic consideration to the Applicants indigenous heritage and “special connection” to Australia; and further failed to consider the legal option provided for under Article V(l) of the Treaty of refusing extradition on grounds of “Nationality” and that the very existence of the discretion provided under Article V(l) of the Treaty is a reflection of an expectation that some Australian citizens in light of their individual circumstances, should not be surrendered to the US and should alternatively be prosecuted in Australia as provided under Article V(2) of the Treaty;
(ii)The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) adopted a wrong legal test and took account of irrelevant considerations including knowingly incorrect facts and other knowingly false, misleading, inadequate and incorrect legal advice outlined in the department’s ‘Ministerial brief’;
(jj) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) erred when assessing the consequences and likely hardship faced by the Applicant including the “relative risk” of the Applicant receiving a custodial sentence in the US that was grossly disproportionate, amounting to cruel and unusual punishment in violation of the Applicant’s fundamental human rights under Article 7 of the ICCPR and in violation of the Applicant’s constitutional implied right to be protected from cruel and unusual punishment under the Constitution;
(kk) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act1988 (Cth) constructively failed to exercise jurisdiction by failing to take account of relevant/mandatory considerations:
(i) arguments, evidence and contentions raised in the material and submissions filed in the Applicant’s judicial review applications QUD 89, 569 and 844 of 2016 (including evidence and material filed in the Applicant’s bail application on 16 December 2016 in matter QUD 569 of 2016), referred to in the Applicant’s representations dated 7 June 2018 which were omitted from the legal advice and analysis outlined in the department’s ‘Ministerial brief’;
(ii) the historical Attorney-General’s Department, Australian Federal Police, US Department of Justice, F.B.I. and INTERPOL documents, files, communications and correspondence between 1997 to 2019 in relation to the Applicant and his father’s extradition matter;
(iii) the Applicant’s contentions ‘put on record’ during the Applicant’s s 19 hearing that any surrender order would be unjust and oppressive...by reason of delay...and further that any punishment in the US would be likely to be unjust and oppressive and too severe a punishment by virtue of the maximum penalties set there and also the sentencing regime, which has a tendency to accumulate sentences; and because he is of indigenous heritage and that would have an effect on him being incarcerated for any lengthy period there;
(iv) the established principal that when the requesting government can be shown to have been inexcusably dilatory in taking steps to bring the defendant to justice, then this may serve to establish the necessary injustice and oppressiveness, whereas the issue may be left in some doubt if the only known fact relates to the passage of time. A sense of false security engendered in the defendant is also a relevant consideration. If actions of the Government have led him to believe that he will not be extradited then it may be oppressive if the government then proceeds to try to do so…;
(v) implied mandatory considerations derived from the scope, subject matter and purpose of the Extradition Act1988 (Cth), including Australia’s non-refoulment obligations under the ICCPR and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which the Respondent was ‘bound’ to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR on the basis of the potential 305 years prison sentence in the US, and the likelihood of “solitary confinement” in the US which has been found to constitute “torture” and “cruel and unusual punishment” in the US; and
(vi) that the Applicant had already served over three years on remand in a maximum security prison in Australia while contesting extradition, which had cost the Applicant his livelihood, his home, his relationships and his reputation in the North Stradbroke Island community, which was unjust and oppressive. The Respondent was ‘bound’ consider any hardship that potentially affected the interests of the Applicant;
(ll) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General failed to accord the Applicant ‘due process’, by not considering the arguments, evidence and contentions raised in the Applicant’s material and submissions he filed for the purposes of his judicial review applications QUD 89, 569 and 844 of 2016 and QUD 51 of 2017 referred to in the Applicant’s representations dated 7 June 2018, which representations had specifically asked the Respondent to have appropriate regard to such material and submissions in support of why the Applicant should not be surrendered to the US. The failure to accord ‘due process’ effectively denied the Applicant a “meaningful” opportunity to advance his case, and further denied the Applicant the opportunity to put information, evidence and make arguments to the Minister…;
(mm) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General’s decision was unreasonable:
(i) in the Wednesbury sense, on the basis ‘... that no reasonable person could ever have come to it, and that no sensible decision maker acting with due appreciation of his responsibility would so decide’;
(ii) on the basis that the Respondent failed to properly deliberate in the exercise of his discretion and thereby failed to discharge his statutory duty to properly consider all of the facts and circumstances of the Applicant’s case in making his decision;
(iii) in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) the Respondent oppressively and gratuitously interfered with the Applicant’s fundamental rights in a way that could not be reasonably justified…;
(iv) on the basis that the Respondent failed to show respect for the dignity of the Applicant as an Indigenous Australian citizen, or show respect for the dignity of the Applicant’s family by giving no consideration to the Applicant’s “special connection” to Australia; or to the grave consequences and hardship likely to occur if the Applicant was surrendered to the US; and
(v) on the basis that the Respondent accepted the department’s recommendation to surrender the Applicant, without seeking further information or requesting to “discuss” the Applicant’s indigenous heritage and “special connection” to Australia, particularly when the department’s ‘briefing paper’ (which the Respondent relied upon), failed to provide any analysis of the relevant factors to take into account when considering the grave consequences and hardship likely to occur to an indigenous Australian citizen if permanently separated from family, community, culture, land and country. The self evident fact that Australia is the “spiritual place” of the Applicant, was a significant issue that was not considered in the department’s legal advice, nor was it considered by the Acting Attorney-General in making the Surrender Decision.
(nn) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General’s decision was seriously “irrational” and “illogical” as in making the decision he failed to give sufficient weight to a number of factors, including:
(i) inadequate or insufficient “weight” was given to the Applicant’s evidence, arguments and contentions raised in all material and submissions filed in the Applicant’s judicial review applications before the Full Federal Court QUD 89, 569 and 844 of 2016 and UD 51 of 2017 including the material and submissions filed by the Applicant for the purpose of his “bail application” made in matter QUD 569 of 2016 which was on appeal before the Full Federal Court in matter QUD 51 of 2017. The Applicant’s representations dated 7 June 2018 specifically requested the Respondent have appropriate regard to all material and submissions filed by the Applicant for the purposes of his judicial review applications, however the majority of the material and submissions filed by the Applicant for the purposes of his judicial review applications were omitted from the legal advice and analysis outlined in the department’s ‘Ministerial brief’…;
(ii) inadequate or insufficient “weight” was given to the Applicant’s indigenous heritage and “special connection” to Australia, or to the Applicant’s contentions ‘put on record’ at his s 19 hearing that any surrender order (emphasis added) would be unjust, oppressive or too severe a punishment, or incompatible with “humanitarian considerations” (namely because of the Applicant’s indigenous heritage and that any lengthy sentence would have an effect on him);
(iii) no consideration or “weight” was given to the applicable ‘Australian standard’ as to whether extradition of the Applicant would in the circumstances be unjust, oppressive or too severe a punishment, or incompatible with “humanitarian considerations” namely because of the Applicant’s indigenous heritage and that any lengthy sentence would have an effect on him. No legal advice or analysis was provided in the department’s ‘Ministerial brief’ of the applicable ‘Australian standard’…;
(iv) inadequate or insufficient “weight” was given to the Applicant’s fundamental human rights protected under international law, including the US Government’s “flagrant” violation of the Applicant’s fundamental human rights protected under Article 14(3)(a) and (c) of the ICCPR in handling of the Applicant’s substantive criminal proceedings in the US which required the US Government to “promptly notify” the Applicant of the nature and cause of the charges laid against him, and to ensure there was no “undue delay” in bringing the Applicant’s matter to trial; and
(v) inadequate or insufficient “weight” was given to the Applicant’s right to a fair trial in the US or to the applicable ‘Australian Standard’ of a fair trial, including to the prejudice faced by the Applicant in the US, which can be presumed after such a lengthy delay. The concept of ‘fairness’ and its underlying principles have continued to be developed and established by the High Court of Australia, notwithstanding, irretrievable prejudice and unfairness is now faced by the Applicant because of the almost 20 year delay, which was caused by the US Government’s decision not to promptly seek the Applicant’s provisional arrest and the US Government’s further decision not to promptly formally request the extradition of the Applicant;
(vi) no consideration or “weight” was given to Australia’s non-refoulment obligations under the ICCPR and CAT which the Respondent was ‘bound’ to consider in circumstances where the Applicant had specifically raised evidence, arguments and contentions of torture, cruel and unusual punishment under Article 7 of the ICCPR and the CAT on the basis of the potential 305 years prison sentence in the US, and the likelihood of “solitary confinement” in the US which has been found to constitute “torture” and “cruel and unusual punishment” in the US.
(oo) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under s 22 of the Extradition Act 1988 (Cth) infringed the constitutional implied rights of the Applicant protected under the Constitution, including the Applicant’s constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment…;
(pp) The Surrender Decision was affected by and reflects jurisdictional error because it was an improper exercise of power as the Acting Attorney-General failed to observe implied limitations of its exercise imposed by the Constitution, international customary law and the common law, including the implication the power be exercised in good faith and with respect for the dignity of the Applicant and First Nations people;
(qq) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to observe the “Public Interest” in the fair administration of justice, Government integrity, accountability and transparency, particularly when an indigenous Australian citizen is facing the largest potential prison sentence ever faced by an Australian citizen in Australian legal history, some 305 years.
(rr) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) violated the Applicant’s constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution by failing to consider the lack of good faith (or alternatively the lack of bona fides) of both the US Government and the Commonwealth Attorney General’s Department ICCCA and ICU, particularly evidence of “bad faith”, “wilful neglect of duty”, “collusion”, “abuse of process”, “abuse of power” and “executive lawlessness” relating to:
(i) the US Governments deliberate delay in duly notifying the Applicant of the charges, and decision not to request the Applicant’s provisional arrest or to request the Applicant’s extradition within a reasonable period of time;
(ii) the Commonwealth Attorney-General’s Department ICCCA deliberate delay in duly notifying the Applicant of the US charges and in ensuring that provisional arrest was requested by the US after foreign arrest warrants had been issued for the Applicant in 2005, so as to give the Applicant fair notice that he had been charged with serious offences and to enable the Applicant to defend those charges in a timeous manner...;
(iii) knowingly false, incomplete, misleading and incorrect information provided by the US Government to the Commonwealth Attorney-General’s Department ICCCA and ICU in relation to the Applicant and his father’s whereabouts;
(iv) that the knowingly false, incomplete, misleading and incorrect information provided by the US Government was known to be false by the Commonwealth Attorney-General’s Department ICCCA and ICU, yet was still willingly provided to the Respondent in the department’s ‘Ministerial brief’;
(v) the US Government’s deliberate attempts to “cover-up” the true nature of the delay and the true extent of the lengthy involvement of the AFP, F.B.I., INTERPOL, USDOJ and Commonwealth Attorney-General’s Department ICCCA during 16 years of mutual assistance and international joint investigation since early 2000;
(vi) the Commonwealth Attorney-General’s Department ICCCA deliberate attempts to “cover-up” the true nature of the delay and the true extent of the lengthy involvement of the AFP, F.B.I., INTERPOL, USDOJ and the Commonwealth Attorney-General’s Department ICCCA during 16 years of mutual assistance and international joint investigation;
(vii) that the knowingly false, incorrect, misleading and contradictory information had been provided by the USDOJ to the United States District Court for the Middle District of Florida in relation to the whereabouts of the Applicant and his father, which plainly contradicts the legal advice, analysis and information provided in the department’s ‘Ministerial brief’;
(viii) that two (2) Senior Officers at the Attorney-General’s Department had an apparent ‘conflict of interest’ in their significant involvement in the extradition process, namely Mr David Reed, ICCCA Director of Litigation and Mr Stephen Bouwhuis, Assistant Secretary, “Unit Head” International Cooperation Unit; and
(ix) the multiple ‘misleading official communications’ provided to the Applicant from the Attorney-General’s Department in relation to the Applicant’s FOI requests during the period of 2017 to 2019 which misled the Applicant in relation to the number of relevant documents that were captured by the scope of the Applicant’s FOI requests, and also denied the Applicant the opportunity to employ such documents in his representations to the Attorney-General in support of his argument as to why he should not be surrendered to the US;
(x) that a “litigation strategy” has been put in place by Stephen Bouwhuis “Unit Head” of the Attorney-General’s Department International Cooperation Unit to obstruct the Applicant’s access to relevant documents in relation to himself, and his father and the extradition proceedings, which denied the Applicant equality before the law and has resulted in a practical injustice, substantial unfairness and violated the Applicant’s constitutional implied rights, and fundamental human rights protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR).
(ss) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to observe the Commonwealth of Australia’s international obligations as a United Nations member and under international treaties Australia has ratified, and the “legitimate influence” they have on Australia’s common law and on Australia’s modern interpretation of the Constitution, including:
(i) United Nations Charter: Preamble [United Nations Charter Act];
(ii) International Covenant on Civil and Political Rights (ICCPR): Preamble and Articles 2, 5, 7, 9, 14, and 26 [Australian Human Rights Commission Act 1986 Schedule II - ICCPR];
(iii) ICCPR First Optional Protocol;
(iv) International Convention on the Elimination of All Forms of Racial Discrimination (ICERD): Preamble and Articles 1, 2, 5, 6 and 7 [Racial Discrimination Act 1975 Schedule I - ICERD];
(v) United Nations Declaration of the Rights of Indigenous People: Preamble and Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46.
(vi) United Nations Model Treaty on Extradition 1990: Article 3 and 4…;
(vii) Universal Declaration of Human Rights (UDHR): Preamble and Articles 1, 2 and 7…; and
(viii) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(tt) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) amounted to “impermissible discrimination”, failing to treat like persons in a like manner, and also failing to give a proper account to genuine differences in the circumstances of the US Government’s extradition request, in comparison to every other previous extradition request from the United States of America since the Extradition Act 1988 (Cth) came into force. Particularly the Indigenous heritage of the Applicant, which violated the Applicant’s constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment protected under the Constitution;
(uu) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) gave the stamp of approval to ‘unconscionable government conduct’ and ‘executive lawlessness’, thereby contravening section 64 of the Constitution relating to “responsible government” and ministerial accountability;
(vv) The Surrender Decision was affected by and reflects jurisdictional error because the Acting Attorney-General in exercising his discretion under section 22 of the Extradition Act 1988 (Cth) failed to consider “...the United States Government has a Constitutional duty to make a diligent and good faith effort to locate defendants and bring them to trial” which the US Government had failed to observe in the handling of the Applicant’s substantive US criminal proceedings. Furthermore, the Acting Attorney-General failed to consider the Attorney-General’s Department’s non-disclosure and withholding of documents relating to the 16 years of mutual assistance and international joint investigation which confirmed the US Department of Justice had knowledge of both the Applicant and his father’s whereabouts and had tangible leads to their locations at any time via the Australian Federal Police. This non-disclosure and withholding of documents, which documents the Applicant had legitimately sought access to prior to the Surrender Decision, contravened implications derived from international law and the Constitution;
The Applicant contends in support of paragraph 10:
Particulars
(a) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations create a “conflict of interest” and fail to sufficiently protect the fundamental human rights and constitutional implied rights of Australian citizens by empowering the Executive Government to determine the surrender outcome and assess the fundamental human rights of persons subject to extradition while at the same time assisting the governments of foreign states requesting extradition in their legal proceedings, such as Mr David Reed and Mr Stephen Bouwhuis have done in the case of the US Government. In their current form and practice the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are profoundly unjust and inconsistent with international law, and are inconsistent and beyond the power provided under s 61 of the Constitution;
(b) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations subject the resident of one State to a disability or discrimination in another State which would not be equally applicable to him or her if he or she were a resident in such other state by reason of the application of different rules of evidence in contravention of section 117 of the Constitution. Further, the varying application of Human Rights Law in different States and Territories, as the State of Victoria and the ACT have incorporated legislation to incorporate fundamental human rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) while the other States and Territories have not, resulting in a contravention of section 117 of the Constitution;
(c) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations infringe the Magna Carta, common law rights and accepted principles of international customary law, so fundamental they cannot be overturned by legislation:
(i) Magna Carta Paragraph 29: “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice”;
(ii) common law rights such as procedural fairness, natural justice, liberty, speedy trial, duty of fairness, due process, protection from excess of power and the common law principle which requires relevant considerations to be taken into account and the decision not to be Wednesbury unreasonable;
(iii) the common law sufficed on its own to indicate that a “legitimate expectation” was generated by the UDHR, ICCPR, ICERD and CAT as accepted part of international customary law. The UDHR, ICCPR, ICERD and CAT are all now internationally accepted and entrenched as part of international customary law; and
(iv) the principle of international customary law that treaties will be interpreted in good faith and that Governments will uphold both the “Rule of Law” and respect fundamental human rights of all people including its own citizens.
(d) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are beyond power and not for the peace, order and good government of the Commonwealth with respect to external affairs within the meaning of section 51 xxix of the Constitution by reason of the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations being inconsistent with:
(i) the Australian Human Rights Commission Act 1986 (Cth), Schedule II - International Covenant on Civil and Political Rights (ICCPR) Articles 2, 5, 7, 9, 10, 14 and 26;
(ii) the Human Rights Act 2004 (ACT), sections 8(1), 8(2) and 8(3), 10(1) and 10(2) and 22(1) and 22(2)(a) and 22(2)(b) of the Act;
(iii) the Racial Discrimination Act 1975 (Cth), sections 9 and 10 of the Act; and Schedule I - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 2, 5, 6 and 7;
(iv) the United Nations Declaration of the Rights of Indigenous People, Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 4; and
(v) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
…
(e) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the requirements of Chapter III of the Constitution by reason of the Act and Regulations conferring non-judicial powers on the courts thereby forcing Chapter III courts to perform administrative quasi-judicial functions without due consideration of the inherent characteristics of a Chapter III court as intended by those whom framed the Constitution. Further, the Chapter III courts must in reality and by appearance be independent or separate from the executive and the Parliament. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent the Constitution because an “abuse of process” has been deemed as an unavailable option under the Extradition Act 1988 (Cth) legislation which is against the traditional conceptions of any Chapter III court.
(f) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate from universally accepted fundamental human rights and fail to provide for the United Nations ICCPR Article 14 minimum guarantees in criminal proceedings, fail to ensure a fair extradition process and fail to respect the “Rule of Law” which is an over reach of the power conferred on Parliament. In particular, there is no requirement for legal representation at any stage of the extradition proceedings under the Extradition Act 1988 (Cth) despite the serious nature and consequences of extradition. Moreover, the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations require arbitrary punishment and arbitrary abrogation of fundamental human rights without the fair and impartial application of the relevant law to facts which have been properly ascertained and is also inconsistent with the Governments representations, long established practice and published policy regarding:
(i) Indigenous human rights protection;
(ii) Anti-discrimination and equality;
(iii) Constitutional implied rights;
(iv) Government accountability;
(v) Freedom of Information and transparent Government; and
(vi) Extradition and mutual assistance in criminal matters;
(g) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the constitutional implied rights under the Constitution, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment;
(h) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are also inconsistent with international customary law including the international peremptory norms of international extradition law and extradition treaties:
(i) United Nations Model Treaty on Extradition 1990, Article 3 and 4; and
(ii) Vienna Convention on the Law of Treaties 1969, Article 19, 26, 31, 53, 62 and 64;
(i) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate traditional common law rights and enshrined constitutional principles derived from the UK “Bill of Rights” by providing for arbitrary arrest and arbitrary abrogation of fundamental human rights without a fair hearing. This arbitrary arrest and arbitrary abrogation of fundamental human rights is potentially indefinite with no reasonable or genuine opportunity of a person subject to extradition proceedings being granted bail or being able to challenge the legality of their detention, contrary universally accepted standards established by international customary law and the traditional common law right of liberty;
(j) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail to sufficiently protect the rights of Australian citizens, particularly the fundamental human rights of indigenous Australians, which is inconsistent with recognising the human dignity of a person subject to extradition as a full member of the human community, and in its current form and practice is profoundly unjust and inconsistent with international law. In 2015 the United Nations Human Rights Committee (UNHRC) in communication 1973/2010 gave a strong recommendation to the Commonwealth of Australia to change the current form and practice of the Extradition Act 1988 (Cth), so that all Australians can fully enjoy ICCPR human rights. The UNHRC also found the Commonwealth in breach of ICCPR Articles 9(1) and 9(4) because of the arbitrary detention of Mr Hew Griffiths while he contested his extradition to the US. In a clear snub to the United Nations Human Rights Committee the Commonwealth has taken no steps to change the Extradition Act 1988 (Cth).
(k)The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail the “Proportionality Test” as they both infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment, and further deny fundamental human rights of those persons subject to extradition proceedings, and are not reasonably or appropriately adapted to achieve the ends that lie within the limits of constitutional power, and are inconsistent with recognising the “human dignity” of a person as a full member of the human community, particularly for First Nations people whose recognition, constitutional implied rights and fundamental human rights have all long been denied and ignored under the Constitution.
(l) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as they infringe upon the implied “religious freedoms” and the “cultural practices” of First Nations people provided under section 116 of the Constitution, by failing to recognise the importance of First Nations peoples “special connection” with Australia and the spiritual significance of “Dreaming” and being connected with the land. The effects of permanently separating an Indigenous Australian citizen from their family, culture and country are plainly oppressive and unjust not only for the individual but also for the extended family and community of the individual subject to extradition. Australia is the “Spiritual Place” of First Nations people, and the Applicant therefore has a constitutional implied right, a fundamental human right and an un-extinguished common law right to stay, live and die in Australia as has happened for over 60,000 years. Not only does the land belong to First Nations people, but they belong to it - now and forever. They have belonged to it in the past, the now, and in the future when they will die and return in spirit and in substance to their “Dreaming-place”. Any legislation that purports to sever this constitutional implied right, fundamental human right and an un-extinguished common law right, of First Nations people to live and die in Australia, is beyond power and invalid under any modern interpretation of the Constitution.
It may be noted that the particulars, or grounds, are set out in two tranches. First, the particulars described as (a)-(vv) are provided in support of paragraphs 1 to 9 of the relief sought. Second, particulars (a)-(l) are in support of paragraph 10 of the relief sought.
I will first consider each of the particulars in support of paragraphs 1 to 9 of the relief sought. I will then separately consider each of the particulars in support of paragraph 10 of the relief sought.
I proceed on the basis that the particulars are intended to either particularise or replace the grounds set out at A–D of the Draft Amended Originating Application.
A number of the particulars make similar or overlapping allegations, so I will attempt to group them together. I will describe the “particulars” as “grounds”, since they are in effect separate grounds.
Non-compliance with s 22 of the Extradition Act
Mr Matson alleges in Ground (a) that, contrary to s 22(2) of the Extradition Act, the decision that Mr Matson be surrendered to the USA:
(i) was not made as soon as was reasonably practicable, having regard to the circumstances, after the Applicant became an eligible person; and
(ii) was not made, or not made exclusively, in relation to a qualifying extradition offence or qualifying extradition offences.
The first of these allegations relies upon the requirement in s 22(2) that the Attorney-General “shall” determine whether a person is to be surrendered, “as soon as is reasonably practicable, having regard to the circumstances”.
This ground relies upon the written submissions prepared by Mr Morris QC. The submissions assert that the Surrender Decision was not made as soon as reasonably practicable, having regard to the elapse of 9 ½ months between the judgment of the Full Court and the Surrender Decision, during which time Mr Matson was incarcerated on remand. The submissions assert that the Surrender Decision contravened s 22(2) of the Extradition Act and that the delay was a mandatory relevant consideration which the Attorney-General failed to take into account. Further, it is alleged that the decision was “fraud on the statutory power”, in the sense that, “the power has been exercised for a purpose, or with an intention, beyond the scope of or not justified by the instrument creating the power”: see SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51 at [29].
The Attorney-General submits that it has not been demonstrated how mere delay could result in a “fraud on the statutory power”. The Attorney-General also emphasises that Full Court authorities establish that delay in making the decision is not a matter which gives rise to jurisdictional error under s 22(2).
The judgments in Snedden v Minister for Justice (2014) 230 FCR 82 at [107], Hala v Minister for Justice (2015) 145 ALD 552; [2015] FCAFC 13 at [35]-[37] and Lobban v Minister for Justice (2016) 244 FCR 76 at [38] establish that a mere failure by the Attorney-General to make a decision under s 22(2) of the Extradition Act as soon as reasonably practicable does not amount to jurisdictional error. The submission that the Surrender Decision contravened s 22(2) of the Extradition Act because the decision was not made as soon as reasonably practicable must be rejected.
Any failure by the Attorney-General to make the decision as soon as reasonably practicable does not, of itself, demonstrate that the power was exercised for a purpose, or with an intention, beyond the scope of, or not justified by, s 22 of the Extradition Act. Section 3 states that the principal objects of the Extradition Act include enabling Australia to carry out its obligations under extradition treaties. The Surrender Decision was made in response to a request made by the USA under the USA Extradition Treaty. The delay does not demonstrate that the Surrender Decision was made for any other purpose, or with any other intention.
The ground of failure to take into account a relevant consideration was considered by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39–41. His Honour’s conclusions may be summarised as follows:
(a)The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
(b)What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.
(c)Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
(d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
Delay in making the decision whether to surrender a person is capable of being taken into account under the discretion in s 22(3)(f) of the Extradition Act. However, the discretion was described in Rivera v Minister for Justice and Customs (2007) 160 FCR 115 by Emmett J (with whom Conti J agreed) in the following terms at [14]:
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.
Therefore, there was no express or implied obligation upon the Attorney-General to take into account delay in making the Surrender Decision. That the decision has not been made as soon as reasonably practicable is not a mandatory relevant consideration. Ground (a)(i) has not been established.
Ground (a)(ii) was not addressed in submissions. In the absence of further particularisation, I find that this ground has not been established.
Failure to accord natural justice
Grounds (b), (c), (d) and (e) of the Draft Amended Originating Application allege that the Attorney-General overlooked substantial clearly articulated arguments which relied upon established facts.
These grounds are founded upon a letter written by Mr Morris QC to the Department dated 7 June 2018:
Last year, I appeared for Mr Baron Matron [sic] in proceedings in the Full Federal Court, pursuant to a “Court referral for legal assistance” under Division 4.2 of the Federal Court Rules.
Although that engagement has now ended, Mr Matson — who is otherwise unrepresented — has asked me to respond to your letter of 22 May 2018.
I trust that your office has all of the material and submissions from the proceedings in the Full Federal Court, along with the Court’s Reasons for Judgment, and will have appropriate regard to that material in considering the position of Mr Matson. In particular, I have every expectation that your office give close scrutiny to those aspects identified by the Full Federal Court as appropriate matters for consideration by the Attorney−General at (what is now) the current stage of proceedings.
Beyond drawing these matters to your attention — which I feel sure is unnecessary — I cannot see that there is anything further which I can usefully say on behalf of Mr Matson at this point in time.
I might add, however, that throughout my dealings with Mr Matson I have found him at all times to be an honest and conscientious young man (which appears to be in stark contrast with the case alleged against him in the United States), and by no means unintelligent if somewhat naive.
From my observation, there appears to be considerable weight in the proposition that he was the innocent “stooge” in a fraud conceived and perpetrated by his father; a conclusion which is reflected in the dearth of evidence showing mens rea in the otherwise comprehensive brief of evidence supplied by US authorities. One might ask, rhetorically, which of us would pause to question whether one’s father is a fraudster, when he offers an opportunity to participate in an apparently genuine business enterprise?
Confident in the knowledge that all extradition matters receive the most careful and sedulous consideration by the First Law Officer of the Crown, I feel able to commend Mr Matson to the Attorney−General for the most favourable consideration which may be found to be consistent with the Attorney’s onerous responsibilities in such cases.
If I can be of any assistance to your office or the Attorney−General in dealing with this matter, I shall be very pleased to continue and (if necessary) extend my limited pro bono involvement on Mr Matson’s behalf.
It may be noted that Mr Morris QC’s letter, the entirety of which is extracted above, was the only representation that Mr Matson made in response to the invitations by letters dated 16 April and 22 May 2018 from the Department to make representations.
Mr Matson submits that if the arguments that were overlooked by the Attorney-General had been accepted, they, “would or could have [been] dispositive of the surrender decision, which resulted in a practical injustice”.
Mr Matson relies upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26, where Gummow and Callinan JJ stated at [24] that, “To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord…natural justice”.
The Attorney-General, relying upon migration cases, submits that it must be shown that the argument was raised squarely or clearly on the material available to the decision-maker: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]–[60]; SZTOR v Minister for Immigration and Border Protection [2019] FCA 349 at [37]. The Attorney-General’s function under s 22(2) of the Extradition Act does not appear, in this respect, to be distinguishable.
For Mr Matson to establish jurisdictional error on the basis of a failure to take into account the arguments set out in Grounds (b), (c), (d) and (e), it must be established that the arguments:
(1)were articulated in, or arose clearly from, the material before the Attorney-General;
(2)were not considered by the Attorney-General when making the Surrender Decision;
(3)were material, in the sense that they might realistically have resulted in a different decision.
It must first be considered what material was requested by Mr Matson to be placed before the Attorney-General for consideration. Mr Matson alleges that the Attorney-General had been asked to consider, “all material and submissions Mr Matson had filed for the purpose of his judicial review applications”. The Attorney-General submits that, “A request in such wide terms was never made”. The Attorney-General submits that Mr Morris QC’s letter only requested that the Department “have appropriate regard to” material consisting of, “all of the material and submissions from the proceedings in the Full Federal Court, along with the Court’s Reasons for Judgment”.
The Departmental Submission provided the Attorney-General with an affidavit sworn by Mr Matson on 24 June 2016 (which contained his written submissions at first instance in his application for review under s 21 of the Extradition Act); his written submissions on appeal; and the reasons for judgment at first instance and on appeal. In addition, the Department placed before the Attorney-General its advice upon the preconditions to surrender and the grounds for refusal of surrender, which addressed a number of the submissions that had been made by Mr Matson in the judicial review applications.
Ground (b) sets out three separate allegations. The first is that the Attorney-General failed to consider Mr Matson’s argument that any surrender order would be unjust, oppressive or too severe a punishment by reason of delay. I accept that this argument was advanced by Mr Matson. It was raised squarely in Mr Matson’s affidavit of 24 June 2016.
The Departmental Advice to the Attorney-General addressed Mr Matson’s contentions concerning the USA’s delay and its consequences. In particular, the Department addressed Mr Matson’s submissions that the delay would cause him prejudice in the conduct of a trial and prejudice or hardship on the basis that he will now be exposed to a more onerous legislative regime as a result of the delay. Therefore, I do not accept that the Attorney-General failed to take into account the first allegation in Ground (b).
The second allegation in Ground (b) is that the Attorney-General failed to consider Mr Matson’s argument that any punishment in the USA would likely be unjust and oppressive and too severe a punishment by virtue of the maximum penalties and sentencing regime in the USA.
The Attorney-General disputes that this argument was raised squarely by Mr Matson. Mr Matson repeatedly mentioned in his affidavit sworn on 24 June 2016 that there was a “real chance of…prejudice in punishment” if he were surrendered to the USA. I find that this argument was clearly articulated by Mr Matson.
However, the Departmental Advice specifically addressed the punishment that could potentially be imposed in respect of the extradition offences. In particular, it was noted that, “The qualifying extradition offences in relation to Mr Matson carry a maximum sentence of between five years and 20 years’ imprisonment”. The Departmental Advice also addressed human rights considerations, concluding that, “The department is satisfied that a number of protections and guarantees, similar to those applying in Australia, would be observed if Mr Matson were to be surrendered to and tried in the US”. The Attorney-General therefore took into account the punishment that could be imposed upon Mr Matson in the USA. I do not accept that there was a failure to consider the second allegation in Ground (b).
The third allegation in Ground (b) is that the Attorney-General failed to consider Mr Matson’s argument that his Indigenous heritage would have an effect on him being incarcerated in the USA for any lengthy period. The Attorney-General disputes that this argument was raised squarely by Mr Matson.
I accept that Mr Matson advanced an argument that his Indigenous heritage would have an effect on his incarceration in the USA. In Matson v United States of America at [35], I noted that it had been submitted on behalf of Mr Matson that any surrender order would be unjust and oppressive, “because he is of Indigenous heritage and that would have an effect on him being incarcerated for any lengthy period over there”.
Mr Matson made separate submissions in his affidavit dated 23 September 2019 that the “special connection” that Indigenous people have to Australia, as enunciated in the Uluru Statement from the Heart, was a significant part of his third argument in Ground (b), which the Attorney-General failed to consider. However, this “special connection” was not raised in any of the material before the Attorney-General, nor in the material filed in any of the other proceedings before the Court, and so I do not accept that it was raised squarely by Mr Matson.
The effect of Mr Matson’s Indigenous heritage on his incarceration in the USA was addressed in the Departmental Advice to the Attorney-General, including as follows:
35.The department does not consider that there is a direct casual connection between any of the other factors identified by Mr Matson and the prejudice suffered at trial or punishment by way of race or nationality. In particular, the department notes the following:
a.it is not apparent to the department that there is an established history in the US of persons being prejudiced at trial or punishment, detention or restriction in personal liberty by reason of their Australian nationality or indigenous heritage.
Therefore, I do not accept that there was a failure to take into account the third allegation described in Ground (b).
The allegation in Ground (c) is that the Attorney-General overlooked the argument “that ‘a sense of false security engendered in the defendant is also a relevant consideration’ in determining whether extradition was unjust or oppressive”.
The Attorney-General disputes that this argument was raised squarely by Mr Matson. I accept that the argument was clearly advanced by Mr Matson, as he had stated in his affidavit dated 24 June 2016 that:
A sense of false security engendered in the defendant is also a relevant consideration. If the actions of the government have led him to believe that he will not be extradited then it may be oppressive if the government then proceeds to try to do so. Kakis v Government of Cyprus [1978] l WLR 779, 790 per Lord Scarman.
While the phrase “false sense of security” was not used in the Departmental Advice, the content of this argument was addressed in the context of delay. Both Mr Matson’s affidavit and the issue of the consequences of delay were put before the Attorney-General. Further the Departmental Advice specifically addressed Kakis v Government of the Republic of Cyprus [1978] l WLR 779, the authority cited by Mr Matson, as follows:
94.…In New Zealand v Moloney, the Full Court of the Federal Court considered the concepts of injustice and oppression by virtue of purported delay by the requesting country. In particular, the Full Court noted that it would be unjust to require a person to be surrendered if, by reasons of the time that has elapsed since the commission of the alleged offence, a fair trial cannot be had. Similarly, in Kakis v Government of the Republic of Cyprus, Lord Diplock noted “... what matters is not so much the cause of the delay as its effect.”
95.While there is no requirement for the purported delay to amount to injustice or oppression suffered by Mr Matson, the commentary in New Zealand v Moloney and Kakis v Government of the Republic of Cyprus as extracted at paragraph 95 [sic] above provides helpful guidance on the relevant factors to take into account when considering an allegation of purported delay.
Therefore, the Attorney-General considered the effects and consequences of the delay, which included the false sense of security described by Mr Matson. I do not accept that the Attorney-General overlooked the argument described in Ground (c).
Ground (d) alleges that the Attorney-General overlooked the argument that there was the potential for torture or cruel and unusual punishment in violation of Mr Matson’s fundamental human rights protected under Art 7 of the International Covenant on Civil and Political Rights (the ICCPR).
The Attorney-General disputes that this argument was raised squarely by Mr Matson. I accept that this argument was clearly advanced by Mr Matson, as his affidavit dated 24 June 2016 raises a number of arguments relating to the potential for torture or cruel and unusual punishment.
However, the Departmental Advice specifically addressed human rights considerations, Australia’s obligations under the ICCPR and the issue of torture, stating:
47. The department is not aware of any information suggesting Mr Matson will be in danger of being subjected to torture within the meaning of paragraph 22(3)(b) in the event that he is surrendered to the US. Further, the department notes that the US is a party to the following multilateral instruments containing a prohibition on torture:
…
•International Covenant on Civil and Political Rights.
48. Accordingly, in light of the above, the department considers that you may be satisfied that there are no substantial grounds for believing that, if surrendered to the US, Mr Matson would be in danger of being subjected to torture within the meaning of paragraph 22(3)(b) of the Extradition Act.
…
138. The department is satisfied that a number of protections and guarantees, similar to those applying in Australia, would be observed if Mr Matson were to be surrendered to and tried in the US.
These allegations include that I appeared visibly disturbed and angered towards Mr Matson during one hearing and, during another hearing, appeared furious and was cold and unsympathetic towards his application for a pro bono referral certificate. His apparent perception that I was angry, emotional, furious, cold and unsympathetic reflects a misperception, misapprehension or misunderstanding of my demeanour, mood and emotions. I consider that I have treated Mr Matson with fairness throughout the proceeding. I do not think that there could be any reasonable perception other than that I have treated him dispassionately.
I did interrupt and question Mr Matson at times during the hearing of 18 November 2019. I did so in order to try to understand his arguments. In particular, while he focussed upon non-disclosure of material under his FOI applications, allegations of misconduct by Departmental officers in relation to those applications and deficiencies in the 6 November FOI Documents, it was difficult to understand the precise relevance of his allegations to his assertion of invalidity of the Surrender Decision. Further, it was difficult to understand the relevance of documents he wished to tender concerning the FOI process. I consider that a reasonable observer would recognise that I was attempting to understand Mr Matson’s case and to encourage him to address issues I considered to be relevant and significant. It may be noted that I gave him the opportunity to file an affidavit and written submissions after the hearing concerning the 6 November FOI documents he wished to tender.
During the course of the hearing on 18 November 2019, I did say that Mr Matson knew about an order that had been made on 21 October 2019 requiring Mr Matson’s amended originating application to be filed by a certain date. Mr Matson was not present at that hearing on 21 October 2019, Mr Morris QC having appeared on his behalf. My comment was made because I assumed that Mr Morris QC must have informed Mr Matson about the order, as would usually be expected. However, Mr Matson claimed he had not been informed of that order. I later indicated during the hearing that, despite non-compliance with the order, I would consider Mr Matson’s application for leave to file his Draft Amended Originating Application and that if I considered it had sufficient merit, I was likely to allow it to be filed. I cannot see how that course of events demonstrates apprehended bias.
I did refer to Mr Matson’s proposed amended application as a “mess” at the hearing on 4 March 2020. That is because that was my perception of the document, which failed to succinctly and clearly articulate the orders Mr Matson was seeking. However, I gave Mr Matson leave to file another version that more succinctly set out the orders he sought. Again, I cannot see that this demonstrates apprehended bias.
The third category of allegations of apprehended bias relates to more favourable treatment of the Attorney-General. Mr Matson claims that he was not allowed an extension of time to file written submissions, whereas the Attorney-General was granted an extension. Mr Matson asserts that on 11 December 2019, he wrote to the Court asking for an extension of time to file written submissions that had been ordered on 18 November 2019, but that the request was ignored. He asserts that, on the other hand, the Attorney-General was readily granted an extension. Mr Matson’s letter did not come to my attention (and in fact the Registry has not been able to locate any record of that letter being received). Mr Matson was given the opportunity to make submissions upon the Attorney-General’s request for an extension, and indicated by letter that he made no objection to the request. Mr Matson’s submission that there was differential treatment cannot be accepted.
I cannot see any substance in Mr Matson’s allegations of apprehended bias, whether the allegations are taken individually or in combination. The application for my recusal will therefore be dismissed.
The Attorney-General submitted that Mr Matson had waived his right to seek my recusal by failing to instruct Mr Burnside QC to raise the issue at the hearing on 25 June 2020, given that the allegations related to the conduct of hearings on 18 November 2019 and 4 March 2020. The Attorney-General submitted that it was merely opportunistic to raise the allegation after I had dismissed Mr Matson’s application for discovery.
If I were to decide upon the issue of waiver, I would have to do so upon the hypothetical basis of my acceptance that I should recuse myself for apprehended bias. On that hypothesis, it would be inappropriate for me to consider whether Mr Matson should nevertheless be taken to have waived his right to object. I will therefore refrain from deciding the issue.
Consideration of the 16 July Reopening application
Mr Matson filed an application on 16 July 2020 seeking, inter alia, that the 11 March Discovery Application be “reopened”, production of further documents and bail.
The further documents sought are unredacted copies of the “Confidential Information” referred to in the letter from the AGS dated 23 June 2020 and unredacted copies of emails from the Department to the OAIC dated 12 and 25 March 2020.
The 16 July Reopening application was heard on 28 August 2020. Mr Matson did not seek to have his bail application dealt with on that day. Mr Matson relied on his written submissions and his affidavits sworn on 21 October and 4 November 2019, and 29 January, 19 February, 1 April, 22 April, 9 June, 20 June, 29 June, 10 July, 14 August, 17 August and 25 August 2020.
I cannot see any substantive difference between the 16 July Reopening application and the 6 July Discovery Application. I am unable to see that the documents sought may be directly relevant to Mr Matson’s case. For the reasons given in relation to the 6 July Discovery Application, the 16 July Reopening application must be dismissed.
Consideration of the 5 August Stay Application
Mr Matson filed an application on 5 August 2020 seeking that my orders made on 30 July 2020 listing Mr Matson’s various interlocutory applications for a hearing on 28 August 2020 be vacated. It also sought a temporary stay of the interlocutory proceedings and the substantive proceedings until Mr Matson’s originating application of 28 July 2020, which was allocated to another judge, was heard and determined. It also sought the provision of transcripts of various hearings.
Mr Matson was informed that I declined to vacate the orders made on 30 July 2020. He had not raised any adequate basis for the vacation of those orders. Mr Matson was provided with a copy of such of the transcripts he had requested as had been received by the Court.
The remainder of the 5 August Stay Application was heard on 28 August 2020. Mr Matson relied on his written submissions and his affidavits dated 14 August, 17 August and 25 August 2020.
Mr Matson submits that his own substantive and interlocutory applications should be stayed until his originating application dated 28 July 2020 is heard and determined. The 28 July 2020 originating application substantially overlaps with the grounds set out in the Draft Amended Originating Application relied upon in this proceeding.
The grounds upon which Mr Matson seeks his stay are that:
·He does not have access to legal representation and is prejudiced and disadvantaged in his ability to present the case until that situation is remedied.
·There has been a significant development in that a letter from the AGS dated 31 July 2020 indicated that the Department was unable to prepare schedules of documents that cross reference the 2018 FOI Documents with the 6 November FOI Documents. This leads Mr Matson to conclude that the 6 November FOI Documents are inaccurate and incomplete and cannot be reconciled against the original decision.
·There has been a significant development in respect of the “Confidential Information”, referred to in the letter from the AGS dated 23 June 2020, that has come to light in the AAT proceedings.
·COVID-19 is rampant in the USA, so that Mr Matson’s surrender would be prima facie unlawful, in breach of fundamental human rights and would violate the constitutional implied right to protection from cruel and unusual punishment.
·Mr Matson is now in his sixth year of detention and seeks a speedy resolution to his application for habeas corpus in his 28 July 2020 originating application.
·The Department has recently provided Mr Matson with a new FOI decision, which again provides evidence in support of Mr Matson’s claim that the Department continues to employ an ongoing litigation strategy against him by denying him access to relevant documents and providing misleading and erroneous FOI decisions.
There is no entitlement to legal representation in respect of an extradition proceeding: Rivera v United States of America [2004] FCAFC 154 at [23]–[29]. Mr Matson has previously obtained pro bono legal representation from lawyers who ceased to be willing to represent him. Mr Matson has had the benefit of preparation of written submissions by Mr Morris QC in respect of those arguments he considered it appropriate to make. I am not satisfied that he is likely to secure further pro bono representation in respect of all of his interlocutory and substantive applications within a reasonable time (Mr Bubendorfer is now representing him for limited purposes and advances limited arguments).
Mr Matson also continues to place great emphasis upon what he complains is the inadequacy or incompleteness of the bundle of FOI documents provided to him on 6 November 2019. However, he has not explained precisely how any such inadequacy or incompleteness affects the validity of the Surrender Decision. He also emphasises the difficulty that the Department seems to have in reconciling schedules of the FOI documents. Again, it has not been explained how this affects the validity of the Surrender Decision.
I am not satisfied that these grounds, individually or collectively, provide an adequate basis for staying, or adjourning, the interlocutory and substantive applications. The 5 August Stay Application must be dismissed.
Consideration of the 19 August Adjournment Application
Mr Matson filed an interlocutory application on 19 August 2020 seeking an adjournment of the hearing listed for 28 August 2020. The application was supported by his written submissions and his affidavits sworn on 13 and 14 August 2020. The application also seeks orders that:
·The Court provide Mr Matson with a DVD comprising all material filed in the proceeding and all correspondence forwarded to the Court by the parties and by the Court to the parties in the proceeding.
·The direction made under s 20(1A) of the Federal Court of Australia Act by Allsop CJ in relation to QUD 569 of 2016 be provided to him.
·His correspondence to the Court of 29 and 30 June, 7, 10, 28, 29 and 31 July and 2, 10 and 13 August 2020 be forwarded to the Chief Justice.
·The Court purchase transcripts of the hearings of 22 July and 27 September 2019 and provide copies to him.
·The Court provide information and assistance to him as to the correct processes and procedure for filing an appeal in relation to the decision made by a Judicial Registrar on 15 November 2019 refusing his request for leave to issue a subpoena.
At the hearing on 28 August 2020, Mr Matson made submissions in support of his application for an adjournment. He argued that the hearing should be adjourned for the following reasons:
·Mr Matson seeks the opportunity to engage legal representation and obtain legal advice in relation to his applications, and to receive a response from the Attorney-General from whom he had requested special funding.
·He had sent an affidavit of 25 August 2020 to the Court annexing a number of documents, including articles, correspondence, and documents obtained under the FOI process. The volume of documents was too large for the jail authorities to scan, and the originals were sent to the Court by post, but had not yet been received.
·He wanted to have time to obtain and consider the “Confidential Information” in his AAT proceeding. Some further documents were to be provided to him in the following week.
·He required time to prepare a subpoena in relation to the “Confidential Information” held by the Department.
·He wanted time to engage pro bono counsel in relation to the cross-examination of Departmental officers and officers of the OAIC, as well as the Attorney-General and the Acting Attorney-General.
·He wanted an opportunity to receive a response from the Attorney-General to his letter of 11 August 2020 requesting that the Surrender Decision be reconsidered in light of the COVID-19 pandemic in the USA and in light of the Withheld Documents that had come to light.
·He wanted an opportunity for the Department to complete two remaining annotated schedules of documents for his FOI requests and to prepare a submission as to the inaccuracy and incompleteness of the 6 November FOI Documents.
·He wished to make an urgent bail application.
·He wanted to allow the Department to provide their decision in relation to another FOI request.
·He wanted to allow the Department time to complete the internal review of another FOI application which sought important documents.
The Attorney-General opposed the application for adjournment.
I declined the application for an adjournment. I was not satisfied that Mr Matson had adequately demonstrated the relevance of the alleged inaccuracies and discrepancies in the FOI disclosures, or of the further documents or unredacted documents that he sought to obtain, to the Surrender Decision.
I was not satisfied that Mr Matson was likely to obtain further pro bono representation within a reasonable time, particularly given that he previously had two sets of lawyers who were no longer willing to act for him. I was not satisfied that there was any reasonable prospect that the Attorney-General would approve special funding.
I was not satisfied that Mr Matson’s request that the Attorney-General reconsider the Surrender Decision was an adequate reason to adjourn the proceedings.
I was not satisfied that Mr Matson’s intention to bring a bail application was a reason to adjourn the hearing of the applications.
I was not satisfied that the fact that Mr Matson had not kept copies of the annexures to his affidavit dated 25 August 2020 was a sufficient reason to adjourn the hearing of the applications. In any event, I allowed Mr Matson to provide written submissions with respect to the annexures.
The Attorney-General would be prejudiced, at least as to costs, if the hearings were adjourned.
Section 37M(1) of the Federal Court of Australia Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and “as quickly, inexpensively and efficiently as possible”. Even though Mr Matson seems willing to remain in custody while his various applications wind their way slowly through the Court and the AAT, the public interest in the timely disposition of proceedings cannot be ignored.
I was not satisfied that any of the matters relied on by Mr Matson, either individually or in combination, provided an adequate basis for adjourning the hearings. I refused Mr Matson’s application for adjournment of the applications.
On 19 August 2020, a Judicial Registrar of the Court wrote to Mr Matson stating that he declined to provide Mr Matson’s correspondence to the Chief Justice on the basis that there was nothing in the correspondence that warranted that course. The Judicial Registrar also refused Mr Matson’s application for a DVD containing all filed documents.
Mr Matson submits that he should be provided with a DVD containing all of the material filed in the proceeding. He said that he did not have all of the material. He did not explain why he does not have all of the material, or which material he does not have.
I am not prepared to make an order that Mr Matson be provided with a DVD containing all of the material that has been filed, and all of the correspondence between the parties and the Court. The material that has been filed is voluminous and will require the expenditure of substantial time and resources to scan all of the material. Mr Matson has not explained why he has not simply requested copies of those documents that he does not have copies of. Such a request might be more manageable. I am not prepared to make an order in the form he has sought.
I am not prepared to make an order that copies of Mr Matson’s correspondence be provided to the Chief Justice. If Mr Matson wishes to send correspondence to the Chief Justice, that is a matter for him. However, I cannot see any reason why there should be an order directing the provision of Mr Matson’s correspondence to the Chief Justice.
Mr Matson submitted that the reason the Chief Justice made a direction under s 20(1A) of the Federal Court of Australia Act to remove the proceeding in QUD 569 of 2016 from the original jurisdiction into the appellate jurisdiction is because the matter was “of sufficient significance and importance to justify doing so”. The direction is submitted to be of relevance to the present proceedings because it supports Mr Matson’s argument that the material and submissions filed in QUD 569 of 2016 were “important documents”, and as such should have been put before, and considered by, the Attorney-General in making the Surrender Decision. However, I am not satisfied that the direction moving the proceeding from the original to the appellate jurisdiction has any relevance to the application for review of the Surrender Decision. I decline to order that Mr Matson be provided with a copy of that direction. However, under r 2.32(1) of the Federal Court Rules, a party is entitled to inspect any document in the proceeding, subject to presently irrelevant exceptions. As Mr Matson’s circumstances make it impractical for him to inspect documents, I will ask the District Registrar to provide him with a copy of the Chief Justices direction.
Mr Matson has sought an order that the Court purchase transcripts for the hearings on 22 July and 27 September 2019 and provide him with copies of the transcripts. Mr Matson was present at the hearing on 22 July 2019, and was also represented by counsel. Whilst Mr Matson was not present at the case management hearing on 27 September 2019, he was again represented by counsel, and no orders were made. Mr Matson has not explained the relevance of these transcripts to his conduct of the substantive proceeding. I am not satisfied that it is appropriate that public resources should be expended in purchasing these transcripts. I decline to make an order in the form sought by Mr Matson.
I decline to make any order that the Court provide information and assistance to Mr Matson as to the correct process and procedure for filing an appeal in relation to a decision made by the Judicial Registrar on 15 November 2019 refusing leave to issue a subpoena. Mr Matson has not asserted that he has been unable to ascertain the correct procedure. He has shown great resourcefulness in bringing and prosecuting a myriad of other applications. I am not satisfied that it is appropriate for the Court to make an order of the type sought by Mr Matson. However, if he has questions about the appropriate procedure, he can approach the Registry.
For these reasons, I dismiss the 19 August Adjournment Application.
I note that Mr Matson was informed by correspondence dated 25 August 2020 that his applications for the issue of subpoenas to various Departmental and OAIC officers and Ministers would be considered at the hearing on 28 August 2020. However, Mr Matson did not make submissions in support of those applications. Accordingly, I have not considered the applications for leave to issue the subpoenas.
Consideration of the 15 September Reopening Application
Mr Matson filed an interlocutory application on 15 September 2020, seeking that the substantive proceedings be reopened due to fresh evidence coming to light. The application also sought orders that:
·a copy of the transcript of the hearing on 28 August 2020 and a copy of the orders made on 28 August 2020 be provided to Mr Matson;
·a copy of Mr Matson’s affidavit sworn on 25 August 2020 be provided to Mr Matson;
·the orders made on 28 August 2020, the substantive proceedings and the interlocutory applications filed on 6 July, 30 June, 16 July, 5 August and 19 August 2020 be stayed until the originating application dated 1 September 2020 is heard and determined;
·documents “associated and relevant” to alleged “third party fraud” be produced to the Court;
·further discovery be ordered;
·leave be granted to adduce evidence prepared by an “expert witness” on government computer systems and record keeping policy and procedure;
·leave be granted to further amend his Draft Amended Originating Application dated 7 November 2019 to raise the new ground of “third party fraud”;
·the Court provide information and assistance to properly prepare a pleading and particulars for a case of “third party fraud”;
·leave be granted to issue subpoenas;
·leave be granted to adduce further “fresh evidence”;
·the proposed orders contained in the interlocutory application filed on 6 July 2020 be made;
·bail be granted.
I made orders for the filing of submissions, and requested that the parties indicate whether an oral hearing was sought, or whether the matter should be decided on the papers. Mr Matson indicated that an oral hearing was sought. The Attorney-General submitted that the interlocutory application should be determined on the papers. I do not consider that it would be in the interests of justice to allow a further oral hearing in this matter. Judgment was reserved on 18 November 2019. Since that date, Mr Matson has filed nine interlocutory applications, some of which merely seek to re-agitate matters that were dealt with at the hearing on 18 November 2019. Mr Matson has also had the opportunity to be heard twice since judgment was reserved, on 25 June 2020 and 28 August 2020. Mr Matson has filed detailed written submissions with respect to the 15 September Reopening Application. There is substantial overlap with issues upon which he has already been heard. I consider that it is appropriate to decide this application on the papers.
In support of the 15 September Reopening Application, Mr Matson relies on his written submissions, and his affidavits dated 25 and 26 August, 24 September and 6 October 2020.
The 15 September Reopening Application primarily seeks to reopen the substantive proceedings to allow “fresh evidence” to be adduced. The fresh evidence is stated to have come to light via FOI decisions dated 28 August and 10 September 2020. The FOI decisions are stated to disclose “important email communications made between the OAIC and the Department” which demonstrate “third party fraud”. It is submitted that the evidence contained in these email communications is credible and highly probative as it demonstrates that there was an unlawful and deliberate attempt by Departmental officers to prevent relevant material from being provided to Mr Matson and being placed before the Attorney-General, and that this relevant material was deliberately destroyed “in an attempt to bullet-proof the existing surrender decision…from the present judicial review proceeding”. Mr Matson submits that this fresh evidence could not have been reasonably foreseen at the hearing on 18 November 2019, and has only come to light in the FOI decisions dated 28 August and 10 September 2020.
Mr Matson submits that this is a situation which clearly qualifies as one of the recognised classes of cases in which a court may grant leave to reopen, namely where there is fresh evidence which has become available, and where there has been a misapprehension of the facts. It is also submitted that in view of the new ground of “third-party fraud” sought to be relied upon, the interests of justice are better served by allowing the matter to be reopened.
The Attorney-General submits that the interests of justice are not served by allowing the substantive proceeding to be reopened. Particular emphasis is placed on the importance of achieving finality in proceedings and the need to avoid unnecessary cost and delay, which are submitted to be “powerful considerations which weigh against leave being granted to reopen this case”. The Attorney-General notes that judgment has been reserved for close to 11 months, and that the matter has been on foot since February 2019. The Attorney-General emphasises that there have been multiple adjournments, vacated hearings and applications for leave granted to file further submissions even after judgment was reserved.
The Attorney-General also submits that this application is no more than an attempt to re-agitate arguments regarding fraud, “litigation strategy” and delay purportedly causing prejudice. It is submitted that Mr Matson should not be permitted to re-argue something that was already argued by him both during the hearing on 18 November 2019 and the hearing on 25 June 2020. That is said to be inconsistent with the requirements of s 37M(1) of the Federal Court of Australia Act.
The Attorney-General relies on the principles relevant to an application to reopen summarised by Kenny J in Bradshaw at [24]. The Attorney-General also relies on Hawthorn Glen Pty Ltd (ACN 004 061 214) v Aconex Pty Ltd (ACN 091 376 091) (No 1) [2007] FCA 2010, where Goldberg J stated at [48]:
The interests of justice require that commercial litigation of the type in this proceeding should be conducted expeditiously and that parties should only be able, after judgment has been reserved, to re‑visit tactical decisions they have made in exceptional circumstances where injustice might otherwise result… There needs to be a finality to the process of litigation and a limit on the number of times a party can re‑visit issues which have arisen in the course of a trial and have been addressed.
As I said with respect to the 6 July Discovery Application, the nature of the proceeding, being one in which the liberty of Mr Matson is at stake, favours a liberal approach. However, in this case, the most significant factor is the nature and probative value of the further evidence sought to be led by Mr Matson. He submits that the relevance of the emails is that they make out a prima facie case of “third-party fraud”, and confirm that Departmental officers not only withheld relevant material from Mr Matson and the Attorney-General, but also deleted or did not save specific files and documents which were critical to Mr Matson’s case, being documents within the scope of his FOI requests.
The ground of “third-party fraud” seems to be similar to the allegations made in the Draft Amended Originating Application that various Departmental officers perpetrated a fraud on the Attorney-General that vitiates the Surrender Decision. I refer to my discussion earlier in these reasons of the High Court’s decision in SZFDE, where it was found that a tribunal, by reason of fraud perpetrated by a third-party, was disabled from the due discharge of its imperative statutory functions, including the requirement to provide natural justice.
Mr Matson’s submissions draw a number of far-fetched inferences that the acts of Departmental officers in not saving or deleting certain documents was “a deliberate attempt to ensure the “relevant material”…would never be disclosed or able to be identified”. The evidence goes nowhere near demonstrating fraudulent conduct by Departmental officers. The alleged “fresh evidence” is not sufficiently probative to allow the substantive proceedings to be reopened.
Mr Matson’s submissions in reply also pointed to other “fresh evidence” that was provided to him in the AAT process which supports his application for reopening, including a document which indicated the extradition process has been on-foot since as early as 2006. Mr Matson made submissions about the relevance and probative value of this evidence as follows:
This extradition related document was relevant material that was favourable to the Applicant's argument of egregious delay and abuse of process; and such important material should have been weighed on the scales and properly considered by the Acting Attorney-General as part of the surrender decision process as it proved that the Applicant was not beyond the reach of law enforcement and that the US Government was clearly not diligent in attempting to locate the Applicant and bring him to trial by way of an extradition request...
Mr Matson submits that this material had the capacity to influence the outcome of the Surrender Decision, and as such the substantive proceeding should be reopened to allow this fresh evidence to be tendered. However, as I discussed earlier in these reasons, the Departmental Advice considered Mr Matson’s allegations of delay by the USA, including delay between the alleged offences and the issuing of an indictment, and then delay in making the extradition request. The Department ultimately concluded that:
93.In respect of Mr Matson’s assertion there has been a purported delay of approximately 10 years since the issuance of the superseding indictment to Australia's receipt of the extradition request, the department concedes that this delay is not ideal. However, the department does not accept that there was egregious delay as alleged…
…
96.…The department therefore does not consider that the US’ purported delay in seeking Mr Matson’s extradition will result in unfairness or prejudice in the conduct of his trial.
I do not consider that the “fresh evidence” sought to be tendered by Mr Matson would have made any difference to the outcome of the Surrender Decision. The alleged “fresh evidence” is not sufficiently probative to allow the substantive proceedings to be reopened.
It is also relevant to take into account the public interest in the conclusion of the litigation.
The interests of justice are best served by refusing the application to reopen the evidence. I decline to make proposed Orders 6 to 17.
The 15 September Reopening Application also seeks orders that the substantive proceeding and various interlocutory applications be stayed until the originating application dated 1 September 2020 against the OAIC is heard and determined. Mr Matson’s submissions do not address this point. It is not apparent why these matters cannot be determined while a separate originating application is on foot. I decline to make proposed Orders 3 to 5.
Mr Matson also seeks orders for the provision of a transcript and orders, and a copy of his affidavit dated 25 August 2020. The Registry provided the documents sought in proposed Orders 1 and 2 to Mr Matson on 15 September 2020, and as such there is no need for those orders to be made.
The 15 September Reopening Application also seeks that Mr Matson be granted bail. Mr Matson has separately made an application for bail in a related proceeding before another judge. That application has already been heard and judgment reserved. It is not appropriate to separately consider another application for bail.
It may be noted that on 27 October 2020, the Court received correspondence from the Attorney-General’s lawyers, making further submissions with respect to the 15 September Reopening Application. As these further submissions were not made under the authority of any order, I have ignored them.
The 15 September Reopening Application is dismissed.
Consideration of the 25 September Reopening Application
An interlocutory application was filed on 25 September 2020 by Mr Bubendorfer, acting on behalf of Mr Matson. The application seeks an order granting Mr Matson leave to reopen the proceedings, and leave to make further submissions as to error of law on the part of the Attorney-General.
I made orders for the filing of submissions, and requested that the parties indicate whether an oral hearing was sought, or whether the matter should be decided on the papers. Mr Bubendorfer indicated that an oral hearing was sought. The Attorney-General submitted that the interlocutory application should be determined on the papers. For the reasons I have given with respect to the 15 September Reopening Application, I do not consider that it would be in the interests of justice to allow a further oral hearing in this matter. I will therefore decide this application on the papers.
In support of the 25 September Reopening Application, Mr Matson relies on the written submissions prepared by Mr Bubendorfer, and his affidavit dated 6 October 2020. Mr Bubendorfer did not file submissions in reply.
Mr Bubendorfer submits that the substantive proceeding should be reopened, “for the purposes of further submissions as to whether the failure of the respondent to take into account the presumptive prejudice appearing on the face of the record amounted to an error of law, such that the respondent was precluded by want of jurisdiction from making a determination pursuant to s 22(2) of the Extradition Act”.
The Attorney-General submits that the interests of justice are not served by allowing the substantive proceeding to be reopened. The Attorney-General also submits that Mr Bubendorfer’s submissions have not made any attempt to engage with the legal issues which must be considered before leave is granted to reopen proceedings, and merely attempt to rehash arguments that were raised by Mr Matson at the hearing on 18 November 2019. The Attorney-General further submits that to the extent that arguments advanced by Mr Bubendorfer are a “new development or new approach to the issue of delay”, no explanation has been offered as to why such arguments were not advanced at the previous hearings, when Mr Matson was represented by senior counsel. It is ultimately submitted that the case which Mr Matson seeks to advance if leave is granted to reopen lacks merit.
The most significant factor is the nature and probative value of the further evidence sought to be led by Mr Matson. Mr Bubendorfer argues that the delay of the USA in seeking Mr Matson’s extradition gives rise to “presumptive invalidity” under USA law. This is said to arise from the Sixth Amendment to the US Constitution which states that, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”. Mr Bubendorfer submits that the Attorney-General should have known that a rebuttable presumption of constitutional invalidity had arisen and that he was required to ascertain whether the USA had provided sufficient evidence by which that presumption might be rebutted.
The Attorney-General considered the delay of the USA authorities. There was no submission made by or on behalf of Mr Matson prior to the making of the Surrender Decision that the warrant was invalid by reason of the Sixth Amendment. In these circumstances, Mr Bubendorfer has not explained how or why the Attorney-General had an obligation under s 22(2) of the Extradition Act to investigate the presumptive invalidity that is now asserted. In Rivera, the Full Court indicated at [14] that the Attorney-General is not bound to take into account any particular matters. Further, in Foster v Minister for Customs and Justice, the High Court rejected an argument that, an issue as to the law of the United Kingdom having been raised, the Minister was bound to seek advice or information from some person familiar with the law of that country. The High Court at [30] and [46] held that there was no statutory obligation which bound the Minister to undertake further investigation or enquiry.
In addition, s 22(2) of the Extradition Act requires the Attorney-General to determine whether the person is to be surrendered in relation to a “qualifying extradition offence”. The expression “qualifying extradition offence” is defined in s 22(1) to mean, relevantly, any extradition offence in relation to which the Magistrate who made the order under s 19(9) determined that the person was eligible for surrender within the meaning of s 19(2). In this case, a Magistrate determined that Mr Matson was eligible for surrender for the offences which the Attorney-General later determined to be “qualifying extradition offences”. The challenge to the Magistrate’s decision was ultimately rejected by the Full Court. Mr Bubendorfer’s argument seems to assert that the Attorney-General should have determined, in effect, that the Magistrates decision under s 19(9) of the Extradition Act was wrongly made. Mr Bubendorfer has not indicated how the failure of the Attorney-General to do so, particularly where no submission was made to the Attorney-General that the Magistrate’s decision was wrong, demonstrates error on the part of the Attorney-General.
Further, the content of the law of the USA is required to be proved by expert evidence: see Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at [115]. No such evidence has been advanced to support Mr Bubendorfer’s submissions concerning the content and effect of USA law.
Given the significant lapse of time since judgment was reserved on 18 November 2019, I do not consider that the interests of justice would be served by allowing the proceeding to be reopened. I again emphasise the importance of achieving finality in proceedings and the need to avoid unnecessary cost and delay. I do not consider that allowing Mr Matson to reopen the proceedings to litigate the issues raised in this application would comply with the purpose of civil practice and procedure provisions stated in s 37M(1) of the Federal Court of Australia Act, of facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible.
The 25 September Reopening Application is dismissed.
Conclusion
For the reasons I have given, I dismiss each of the interlocutory applications filed by Mr Matson after the final hearing on 18 November 2019, and I dismiss the substantive proceeding.
I will order that Mr Matson pay the Attorney-General’s costs of the proceeding.
I certify that the preceding four hundred and eighty-eight (488) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 28 October 2020
17
23
11