Matson v The Attorney-General of the Commonwealth of Australia
[2022] HCATrans 120
[2022] HCATrans 120
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B28 of 2022
B e t w e e n -
BARON PHILLIP MATSON
Applicant
and
THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent
Application for leave to appeal
Office of the Registry
Brisbane No B33 of 2022
B e t w e e n -
BARON PHILLIP MATSON
Plaintiff
and
THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Defendant
Application for Constitutional Writs
EDELMAN J
GLEESON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON THURSDAY, 14 JULY 2022, AT 12.00 PM
Copyright in the High Court of Australia
____________________
EDELMAN J: In accordance with the Court’s protocol for remote hearings I will announce the appearances of the parties.
MR B.P. MATSON appears in person in both matters.
MR D. McKECHNIE appears in both matters for the Attorney‑General of the Commonwealth of Australia. (instructed by Australian Government Solicitor)
EDELMAN J: Mr Matson, it would be convenient to hear from you on your application for leave to appeal together with your application for adjournment and consolidation application, as each of those is interrelated.
MR MATSON: Thank you, your Honours. In respect of the application for adjournment, it is my respectful submission that it would be expedient in the interests of justice for the application for a constitutional or other writ filed – I believe the filing date for B33 was 11 July 2022 – if that were to be heard concurrently with the present application for leave. I expressed in correspondence to the Court that it was my opinion that if the respondent’s response in the application for leave and my applicant or appellant’s reply, if orders were made timetabling those over the next week or possibly two weeks depending upon the time required by the respondent in
the application for leave, I believe it would assist the Court in determining whether or not leave should be granted.
If, in the Court’s wisdom, it would proceed to hear that matter today without the prior filing of a response and reply, I would be willing to do so, but I believe that it would be expedient and efficient to conjoin the matters, allow for a response and reply in respect of both the application for leave and the new application for constitutional or other writ, and for those matters to be heard on the same day, together, at a date agreeable primarily with the respondent and that of the Court.
GLEESON J: Justice Edelman, you seem to be muted.
EDELMAN J: Yes. Mr Matson, are there any other reasons that you seek adjournment of the application for leave to appeal other than for the consolidation of that matter with matter B33?
MR MATSON: Only in the sense that, as the Court is aware, I am presently without legal representation and without what I would describe as access to proper or full legal resources in respect of the application for leave and that of the new constitutional writ application, and it is on that basis, primarily, that, if there was the opportunity to consider the respondent’s response, there would be authority there which, if the Court made an order for me to be provided with those, there would be, I guess, a fairer opportunity for me to be able to articulate as to why the Court should grant leave and, in respect of the constitutional writ application, why the Court should make orders in my favour in respect of that separate application.
That is accentuated, or heightened, in the sense that there presently is not, in my submission, any authority or a case where this Court has previously considered whether or not the scope of section 22(3)(f) of the Act and that of Article V of the Treaty on extradition between Australia and the United States encompasses ‑ ‑ ‑
EDELMAN J: So, Mr Matson, just before you – I think you are now getting into the merits of your application for leave to appeal ‑ just before you do so, I will just confirm with Mr McKechnie whether the application for an adjournment is opposed, because in the event that it is, the Court’s view would be that we hear the substantive merits of your leave application at the same time as having heard your submissions on the application for an adjournment and consolidation. Mr McKechnie?
MR McKECHNIE: It is opposed, your Honour.
EDELMAN J: Yes. All right. Well, Mr Matson, I think you can proceed now to make your submissions in relation to the application for leave to appeal.
MR MATSON: Thank you, your Honours. Primarily, I will make three propositions to the Court. I will just say, in concluding what I was raising there, is that I do not believe, to my knowledge, that the Court has – this Court, the High Court, has previously considered the scope of the obligation for mandatory relevant considerations under section 22(3)(f) or under Article V of the Treaty. So, in view that that is – if that is correct, which I understand that it is, I believe that although there is some authority in respect of the cases of Snedden and Rivera, which have stated to the effect that the Attorney can consider no matters or any matters in respect of exercising that discretion, it would by my submission that, therefore, if I am to argue that there is, on the true construction of the Act and the Treaty, based upon the subject, scope and purpose of the Act, that there can, in certain circumstances, arise mandatory relevant considerations. It is my submission that, particularly in view of the gravity and the – I guess, the distinguishing factors of this case, as opposed to the cases of Rivera and Snedden, be my submission that the Court should grant leave to appeal and consider these questions of law, noting that there is no . . . . . So it is my submission that the Court ‑ ‑ ‑
EDELMAN J: Mr Matson, there was an application for special leave to appeal, at least in Rivera, and this Court concluded that none of the arguments that were raised for special leave in Rivera – I think there were eight arguments and none of them had any reasonable prospect of success.
MR MATSON: Yes. And it would be my respectful submission, your Honour, that the distinguishing factor in this case is the aspect of Aboriginality, which is obviously distinguishable from the cases of Rivera and Snedden.
Now, if the proposition that, on the true construction, there can arise mandatory considerations in respect of section 22(3)(f) – and I will seek to develop that, why I believe that is the case, noting the Court has previously considered that in Rivera on an application for special leave – that the second proposition would be that does a person’s Aboriginal status and the fundamental incidence of Aboriginality, would they give rise to warrant the status of there being a mandatory relevant consideration in the exercise of the discretion there at section 22(3)(f) and Article V? And, accepting that proposition, the final third step that I would argue is that the acting Attorney-General’s reasons in respect of the decision in my case, particularly the reasons separately in respect of the discretion at Article V and at section 22(3)(f), that they evince that my Aboriginal status were not given proper genuine or realistic consideration and that, in respect of section 22(3)(f), the reasons evince that there was no reference at all, and therefore in the sense that no weight or no consideration was given to that in the exercise of that discretion. So, they would be the three propositions that I would seek to satisfy the Court exist today. On that note, I should also add that the submissions that I filed yesterday set out a number of questions of law which, although put together in somewhat of a piecemeal fashion, they are, in effect, relevant to those three propositions.
So, just returning to the first proposition, if I may, in respect of whether or not there can be implied mandatory relevant considerations in respect of the exercise of that discretion at section 22(3)(f) and at Article V, it is my submission that it is clear that if that is going to be established, it is going to have to be derived from the subject, scope and purpose of the Act itself. That is where, for example, we look at the cases of Peko-Wallsend, where his Honour the Chief Justice Mason – at the time Justice Mason – stated that in – I believe at paragraphs 39 and 40 that if it is an unfettered discretion, the mandatory implied considerations can be derived, but they would be from the subject, scope and purpose of the Act.
Now, in previous comments made in earlier litigation, it has been stated by the respondent that the subject, scope and purpose of the Extradition Act is quite simply for Australia to comply with its international relations. Now, in my respectful submission – and I will refer to the express terms of the Act itself, the Treaty, and the judgment of Charlesworth J in Lobban v Minister for Justice and also, most recently, the judgment of Logan J of 24 June in Matson v Attorney‑General. Now, it is clearly from those judgments and, in my submission, the express terms of the Act and the Treaty, that not only does the subject, scope and purpose encompass Australia’s international obligations and compliance with those, but it further indicates that the subject, scope and purpose includes consideration is properly given to the person’s circumstances and their rights and interests in determining whether or not they should be extradited. I refer the Court to what was said by Justice Charlesworth at paragraph 103 of the judgment in Lobban, where she said to the effect that if the person’s interests are going to be affected:
the Attorney-General must –
Emphasis on that word of “must”:
take into account the effect the determination may have –
GLEESON J: Justice Charlesworth was dissenting in that judgment, was she not?
MR MATSON: I believe that in respect of that particular point, that the court was in – that she was in the majority in respect of that section of her judgment. I do not believe that her critique of Article V of the Treaty and section 22(3)(f) was in dissent. Maybe the respondent will be able to assist in confirming that, but that has been my prior understanding.
EDELMAN J: Mr Matson, is there a difference, though, between saying that a mandatory consideration is to have regard to a person’s circumstances and saying that any one of those particular circumstances, no matter how important, is itself a mandatory relevant consideration?
MR MATSON: I am sorry, your Honour, I did not quite grasp that question.
EDELMAN J: So it may be one thing to say that the Act, the subject matter, the scope, and the purpose of the Act requires a consideration for the purposes of extradition decisions of a person’s circumstances – that is circumstances generally – but it may be quite another thing to say that the subject matter, scope and purpose of the Act requires consideration of any particular individual circumstance, whether that be one as important as children, or one as important as Aboriginal links to the territory of Australia and so on.
MR MATSON: Yes. Well – that is really the second proposition that I would like to move to, but I – in response to your answer, I believe that it is clear from the subject, scope and purpose that it does encompass an obligation and an intention from Parliament in bringing the Extradition Act into force that there was a clear intention that the person, the circumstances, rights and interests be considered. Now, depending upon the importance of what those factors were, in my submission, is what is going to determine whether or not that issue arises to a level that becomes a mandatory relevant consideration, but I would say that the express terms of, for example, section 22(3)(f) where it says that the person is not to be extradited unless:
the Attorney‑General, in his or her discretion –
is satisfied that:
the person should be surrendered –
That is a caveat in the sense that it is clear that Parliament intended that the Attorney‑General reach that belief or opinion that the person should be surrendered, and that if they are not satisfied of that, that the person should not be surrendered. That is also reflected in the judgment of Justice Charlesworth.
GLEESON J: Mr Matson, the Act itself does make provisions that have regard to particular interests of individuals. For example, in 22(3)(c) it makes particular . . . . . for provisions:
where the offence is punishable by a penalty of death –
So, would that not be an indication that, if the legislature intended the scheme to deal with a person’s rights, it did that by explicitly identifying the relevant right or interest?
MR MATSON: Yes, I am grateful for you raising that issue, your Honour, because it is clear that Parliament, in drafting the legislation, did try to address a number of issues such as race – for example, it could be some sort of political offence. There are a number of issues there – if the Torture Convention was in breach – so there are a number of issues there that the Parliament has, in a sense, anticipated that could occur in an extradition context, but as you would be aware, there are all number of matters that can arise, and it is often more convenient and, I guess, more accessible for the Court to recognise some of these issues once a matter has come before the Court, and what I would say is that the reason that section 22(3)(f) has been put there is, effectively, as a catch‑all in circumstances where, for example, there was an issue that was not addressed, for example, in section (22)(7)(c) there, or in the express section on torture or if there was a death penalty to be enforced.
So, we have a number of issues which are addressed by the Act, but I say that section 22(3)(f) is – and this supports the proposition that Parliament definitely intended that someone was not to be extradited if there was some concern for their safety or that it was going to have such a significant impact that it was to cause harm, and that is why that catch‑all at section 22(3)(f) is there, and is why the terms of section 22(3)(f) are stated in terms such that the Attorney‑General formed the opinion or belief that the person should be surrendered, and if they are not satisfied, that that person is not to be surrendered.
Now, the analogy that I would like to use there is that harm to an individual, or significant harm to their interests, does not always occur just upon someone’s extradition, so, for example, arriving in a state where they might be tortured or subject to some situation which would give rise to the Attorney‑General refusing. That same harm can happen in circumstances where the person is removed. So, that is why, for example, in respect of Aboriginality and connection to country, community, culture, by removing an individual from Australia, although it may not have the danger or harm upon arrival in the foreign state, it is the sense of removal that gives rise to the concern as to whether or not the person should be surrendered, and whether or not it was proper in the circumstances.
So, I believe that, if we accept the proposition that Parliament did clearly intend on legislating such that, if there was going to be harm to the individual, or, in other terms, if it was not proper for them to be surrendered, then surrender should not occur, and the terms of the Treaty further support that, because there is an avenue there to refuse surrender if they do not believe that it is proper to do so on the basis of nationality, and Article V section 2 provides that the person can then be prosecuted in Australia.
So, that again supports the proposition that Parliament wanted to make sure that, if the extradition of a person was going to have a significant impact such that surrender was not proper, or the person should not be surrendered, then there was still an avenue there to ensure that the foreign state’s interests, who requested extradition, could be satisfied, and, as your Honours may be aware, when legislation is put into force, they cannot always foresee or anticipate every scenario that might arise and, to my knowledge, I am not aware of any extradition case involving the removal of an Aboriginal Australian, that has certainly come before the High Court.
It is my submission that, in exercising the discretion under section 22(3)(f), that that particular section of the Act was put in place to make sure that, if the issues were not addressed in the other parts of the legislation, then that section 22(3)(f) had a more general discretion, just to make sure that surrender of a person, of an Australian, or even a non‑Australian, if there was an issue that was not covered in the legislation – I mean, for example, someone might have a stroke close to a decision being made, that, for example, is not covered in the section we spoke of, section 22(3), that your Honour raised in respect of section (7)(c), that is more about political or race or prejudice on those bases.
For example, if someone had a stroke and they were incapacitated, the Attorney would have to, in my submission, in exercising the discretion under section 22(3)(f), it would – such a serious scenario would give rise to an obligation to consider that in exercising that discretion, and it is my submission that Aboriginality and the fundamental incidence of Aboriginality, unique rights and interests, special connection, that those issues are of such a serious weight that they would give rise to it being a mandatory relevant consideration.
It is clear, moving to the third proposition, that, if we look at the advice that was before the Attorney‑General in respect of section 22(3)(f), noting that there is advice specifically on that section – I do not have the paragraph numbers of that at hand, but there is no reference to my Aboriginality or to any of the fundamental incidence of Aboriginality referred to in section 22(3)(f), so it is clear that that was not given consideration by the acting Attorney‑General in exercising that discretion.
EDELMAN J: Mr Matson, that proposition is dependent upon success of your first proposition, though, is it not? I mean, if that were not a mandatory relevant consideration, then the failure to consider it, on your submission, cannot invalidate the decision.
MR MATSON: What we could say, your Honour, with respect, is that, if your Honour was minded to find that there was not an implied mandatory consideration, I would say that still, in exercising that discretion, there must be the opinion or belief formed that surrender is proper to do so, or the person should be surrendered, and in so doing, I believe it is clear that Parliament intended that the Attorney‑General exercise that discretion reasonably and according to logic and reason. If there was no reference, or no consideration, given to an Aboriginal Australian’s Aboriginality in exercising that discretion, and there was no other – well, there is no other express section of the Act that requires consideration of Aboriginality, so, where would the Aboriginal person’s obligation – where would the obligation arise to consider Aboriginality in extradition of an Aboriginal Australian?
It does not arise anywhere else except, possibly, at Article V, unless the person has raised at section (7)(c), as I did, a concern about prejudice in a foreign state. But, the point being is that, accepting that that is a factor of great importance to any Aboriginal Australian being removed from Australia, it is my submission that the Attorney‑General, if he was to exercise and form that opinion or belief reasonably, and exercise that discretion at section 22(3)(f), there would have to be some consideration. That is where Justice Gageler erred, in the sense that he looked at the specific advice at Article V of the Treaty, which was provided, which he cited by saying that it said:
“the department does not consider that [the plaintiff’s] Australian citizenship or indigenous heritage warrants the exercise of your discretion to refuse to surrender him to the US”.
But that advice was specifically in respect of the discretion at Article V, not the discretion at section 22(3)(f), and if the advice had stated something to that effect in section 22(3)(f), then his decision would be unreviewable and would hold water, but there was no reference at all to Aboriginality or my indigenous descent in that section 22(3)(f), so it is for that basis that that specific section of the advice, there was no reference at all. So, no consideration was given to Aboriginality or the effects of removal from Australia in exercising that discretion at 22(3)(f).
So, even if it was found that it was not a mandatory consideration, which I say that it is, even if the Court found that it was not, the exercise of the discretion could still be challenged on a basis of reasonableness, and whether proper genuine discretion consideration was given to a factor, a relevant factor, a permissible factor of great importance, and I do not think anyone could question any view of the case law on special connection, et cetera, the importance of an Aboriginal person’s connection to Australia and whether or not that would be impacted or affected by removal from Australia.
So, it is on that basis, your Honour, that – and it is clear that the Attorney‑General did accept that advice and relied upon that as his reasons, and I refer to Justice Rangiah’s decision at paragraph 20, where he found that to be the case, that, because he adopted the advice, he proceeded to rely upon that advice, and, as Justice Logan said in the case of Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability, Environment, Water, Population and Communities (No 2) (2014) 225 FCR 97 at 124, that:
a Minister who acts on departmental advice adopts whatever are the virtues and vices of that advice.
Now, because he exercised that discretion at section 22(3)(f) on the exact terms that were there, they are his reasons. There was no consideration given to my Aboriginality or the effects that removal would have on me in exercising that discretion of section 22(3)(f). So, Justice Gageler erred in finding that, just because there was advice at Article V of the Treaty, he cannot simply just piggyback that advice over to a completely separate section.
It is a separate discretion at section 22(3)(f), in my submission, and it cannot be simply superimposed. He had to consider Aboriginality at section 22(3)(f), he failed to do so, and if the Court would please consider the questions that have been articulated and the submissions filed yesterday, I think the Court will be satisfied that there is a question before the Court, a judicable controversy, that warrants leave being granted, and I am grateful for the Court’s indulgence to allow me to go over the time limit. Thank you.
EDELMAN J: Yes. Thank you, Mr Matson. The Court will adjourn briefly to decide on the course that it will take.
AT 12.30 PM SHORT ADJOURNMENT
UPON RESUMING AT 12.36 PM:
EDELMAN J: Mr McKechnie, the Court does not need to hear from you in relation to the amended application for leave to appeal, or the consolidation or adjournment applications.
This Court has before it an amended application by Mr Matson for leave to appeal from a decision of a single judge of this Court, Justice Gageler, and applications by Mr Matson to adjourn the hearing of this amended application for leave to appeal and to consolidate the application for leave to appeal with another matter filed in this Court on 11 July 2022, being matter B33/2022. In that other matter, there are also applications for urgent interlocutory relief. In light of the multiplying applications by Mr Matson, and in circumstances in which the urgency of these matters requires some certainty for the parties, these reasons are more fulsome than would ordinarily be the case on an application for leave to appeal and associated interlocutory relief.
On 1 February 2019, acting under ss 22(2) and 23 of the Extradition Act 1988 (Cth), the then Acting Attorney‑General of the Commonwealth made a determination that Mr Matson was to be surrendered to the United States of America and issued a warrant for Mr Matson’s surrender to the United States where he has been charged with offences relating to mail fraud, wire fraud, and money laundering.
Between February 2019 and May 2022, Mr Matson brought numerous proceedings in the Federal Court of Australia and the Full Court of the Federal Court of Australia in relation to the surrender determination. During this period, and until 27 May 2022, Mr Matson was provided with various assurances by the Australian Government Solicitor, as the solicitor on record, that steps would not be taken to extradite him or that the Attorney‑General would not execute the surrender warrant.
Under s 26(5) of the Extradition Act, if a person is in custody in Australia under a surrender warrant or under the Act for more than two months after the day on which the warrant was first liable to be executed then, after various steps are taken and subject to limited exceptions, the Federal Court of Australia is required to order that the person be released from custody. The surrender warrant was first liable to be executed on 28 May 2022. The two‑month deadline expires on 28 July 2022. A solicitor for the Australian Government Solicitor has deposed that any delay following 14 July 2022 would jeopardise the Attorney-General’s ability to ensure that Mr Matson’s surrender takes place before 28 July 2022. Given the urgency arising from these circumstances, the Court did not follow the usual procedure of considering the amended application for leave on the papers following written submissions by the parties but, as foreshadowed to Mr Matson and the Attorney‑General last week, granted Mr Matson an oral hearing of his application today.
On 1 July 2022, acting under r 25.09.1 of the High Court Rules 2004 (Cth), in the original jurisdiction of this Court, Gageler J dismissed as disclosing no arguable basis an application by Mr Matson for a constitutional or other writ, by which Mr Matson had sought relief to quash and prevent the enforcement of the surrender determination and warrant.
As Gageler J explained in his reasons, Mr Matson had essentially two arguments in support of quashing and preventing the enforcement of the surrender determination and warrant. Each argument referred to a subject matter that under s 22(3)(f) of the Extradition Act or Art V of the Treaty on extradition between Australia and the United States of America (annexed to and given effect by the Extradition (United States of America) Regulations 1998 (Cth)) the Acting Attorney‑General was said to be required to take into account but which, it was submitted, had not been taken into account. The first was the effect that surrender would have upon Mr Matson, as an Aboriginal Australian, and in light of various aspects of Mr Matson’s unique connection with Australia as an Aboriginal Australian. The second was the absence of a formal written assurance from the United States that the time Mr Matson had spent in custody in Australia while contesting extradition would be deducted from any custodial sentence imposed in the United States for the offences for which extradition was sought.
Mr Matson seeks leave to appeal on 16 grounds. Some of those grounds involve unsupported and unparticularised claims, such as that Gageler J erred in finding that Mr Matson’s case comprised two main arguments or that his Honour erred in finding that there was no arguable basis for Mr Matson’s application. In any event, none of the substantive arguments made by Mr Matson in respect of any of the grounds on which he seeks leave to appeal can succeed unless he establishes that Gageler J erred in concluding that s 22(3)(f) of the Extradition Act, alone or in combination with Art V of the Treaty on extradition between Australia and the United States of America, did not require the Acting Attorney‑General to consider the matters to which Mr Matson referred as mandatory considerations.
Mr Matson’s written and oral submissions do not demonstrate any prospect of establishing error in that reasoning of Gageler J. Indeed, the reasoning of Gageler J was plainly correct. Section 22(3)(f) and Art V are open‑textured provisions. As Emmett J correctly said in Rivera v Minister for Justice and Customs[1] of s 22(3)(f), which provides that a condition for extradition is that “the Attorney‑General, in his or her discretion, considers that the person should be surrendered in relation to the offence”, the Attorney‑General 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”. Assuming that the objects, scope and purpose of the Act or Treaty requires consideration of the person’s circumstances generally, there is nothing in the objects, scope, or purpose of the Act or the Treaty which could make mandatory the consideration of either of the particular matters raised before Gageler J. Rather, the scheme of the Act and the Treaty involves identification and separate treatment of particular matters where that is considered necessary, such as issues concerning the death penalty in Art VIII of the Treaty.
[1](2007) 160 FCR 115 at 119 [14].
In oral submissions, Mr Matson asserted that a failure to consider issues of Aboriginality meant that the decision was legally unreasonable. This was not an issue raised before Gageler J. But, in any event, the same objects, scope, and purpose of the Act or the Treaty cannot have the effect that the decision was unreasonable, particularly in circumstances in which the Minister acted upon advice that referred to Mr Matson’s Aboriginal heritage.
Mr Matson sought the adjournment of this hearing for one to two weeks to enable the amended leave application to be determined concurrently with the application for a constitutional writ in B33/2022 and to obtain legal assistance and advice for that purpose. In the usual course, where a substantive application had only recently been filed, such an adjournment might readily be granted without any assessment of the merits of the substantive application. Even in the circumstances of urgency surrounding this case, which, on any view, required considerable expedition to ensure that Mr Matson was given an opportunity to be heard, an adjournment to an expedited date more suitable to Mr Matson might have been appropriate if the amended application for leave had any prospects of success warranting an adjournment to obtain further legal assistance. But it has none.
Mr Matson supported his application for an adjournment with a separate application to consolidate this amended application for leave to appeal with the further proceeding, B33 of 2022, that he filed on 11 July 2022. That further proceeding seeks constitutional and other relief concerning a decision of the Attorney‑General on 7 July 2022 to refuse to revoke the surrender determination and the surrender warrant. That further proceeding involves a separate determination which, even if it were invalid, would not invalidate the surrender determination and the issue of the warrant. It is not appropriate to consolidate the two proceedings.
Accordingly, the applications for an adjournment and for consolidation are refused. The amended application for leave to appeal is dismissed. The grounds upon which Mr Matson seeks to resist an order for costs – impecuniosity after a lengthy period in prison and emotional and financial hardship – are not sufficient to displace the usual order for costs.
Since Mr Matson’s amended application for leave to appeal has no prospects of success and must be dismissed, to the extent that Mr Matson still seeks interlocutory relief, that relief must also be refused, including refusal of his claims for a stay of the surrender warrant, an interlocutory injunction to restrain various parties from giving effect to the surrender decision and executing the surrender warrant, mediation orders, orders for pro bono legal assistance, and bail.
The orders are:
The oral application for an adjournment of the hearing of the amended application for leave to appeal made on 14 July 2022 be refused.
The application for interlocutory relief filed 6 July 2022 be dismissed.
The amended application for leave to appeal filed 11 July 2022 be dismissed.
The applicant pay the costs of the respondent, including the costs reserved on 11 July 2022.
Those are the reasons and orders of the Court. Mr Matson, the Court also has before it the directions which you sought listed in matter B33/2022. Subject to the views of Mr McKechnie, the Court is not presently minded to hear substantive argument in the absence of any opportunity yet for the Attorney‑General to make any written submissions or, perhaps, put on any evidence that might be required. That is, unless Mr McKechnie is of the view that that matter ought to be heard immediately. Mr McKechnie, what is the position of the Attorney‑General?
MR McKECHNIE: Your Honour, the immediate concern of the Attorney‑General with regards to proceedings B33 was the interlocutory relief preventing the execution of the surrender warrant. Given the reasons that your Honour just handed down, that is no longer a live issue, as I take it, so it does not need to be considered. Everyone is aware of the situation and the timeframes that are involved, but just to be very, very clear, it is certainly the position of the Attorney, consistent with the orders and the reasons that your Honour just made, that the questions involved in proceedings B33 cannot possibly affect the validity of the surrender warrant, and cannot prevent actions being taken to execute the surrender warrant.
EDELMAN J: Mr Matson, the only remaining issue then would be, to make directions for B33/2022, which is still an extant matter, although you have heard what Mr McKechnie has said, the effect of which, broadly, is that, given the dismissal of your applications in B28/2022, any relief that you are able to obtain in B33/2022 would not be able to invalidate the surrender determination or the warrant. All it would do – if you are correct on everything – is permit a reconsideration by the Minister on the basis that the reconsideration had been established by you to be invalid.
That is, as I understand the point that Mr McKechnie is making, and that point would not merely create difficulties for your substantive application, but it would cause serious difficulty for any interlocutory application in B33/2022.
MR MATSON: Your Honour, in my submission that the substantive relief in respect of B33 is such that it would compel the current Attorney‑General to revoke, reconsider, and remake the existing surrender determination, so in that effect, it is my submission that it would impinge upon the existing validity of the existing warrant and decision that has been the subject of the application for leave which has just been dismissed ‑ ‑ ‑
EDELMAN J: Mr Matson, in those circumstances – I mean, do you wish to proceed with submissions on the urgent application for interlocutory relief now, in relation to B33/2022?
MR MATSON: Yes, I would, your Honour.
EDELMAN J: Perhaps you could focus, then, on addressing that point and any other points you wish to make as to why any of those matters of urgent interlocutory relief that you seek in B33/2022 should be granted.
MR MATSON: I think it is probably plainly apparent, on the interlocutory relief, that an urgent stay of the warrant is really the nub of the interlocutory relief. In circumstances where if, for example, there was no undertaking or the Court did not make an order to stay the warrant, it is clear upon the indications given by the respondent that the surrender warrant will likely be executed imminently, and potentially within 48, 72 hours. It could be at any time.
In those circumstances, without the Court having received the response and a reply and heard the application, the substantive application, as to why the current Attorney‑General’s decision is tainted by jurisdictional error and an error of law, and why relief should lie such that the existing surrender decision and warrant should be revoked and remade, clearly, the substantive relief would impinge upon the current validity of the existing warrant and decision, and in those circumstances, it is my respectful submission that the Court should grant the interlocutory relief, expedite a timeframe that the respondent is content with for a response and reply.
I would certainly need no more than 48 hours to prepare my plaintiff’s reply to the respondent’s response, and I would be eager, myself, to have the matter listed for hearing in very short order thereafter. I believe that there is merit to the application, a view that there was no procedural fairness provided to me, so there is a clear denial of natural justice in the decision made by the current Attorney‑General on 7 July, and in those circumstances, and considering the liberty of myself and the effect, the gravity and nature of the effect if the Court was not to hear the application, it is in the interests of justice that the Court either make an order for a stay pending the filing of a response in reply and hearing, or seek an undertaking from the respondent to that effect.
EDELMAN J: Thank you, Mr Matson. Just one point of clarification. As I understand it, on the substantive application, your proposed directions are for the filing of the defendant’s response by 21 July 2022 and the filing of a reply by 28 July 2022.
MR MATSON: That is what I indicated in my correspondence to the Court, however, I am respectful and cogent of the respondent’s anxiety and, I guess, desire to have all matters resolved in the most expeditious fashion possible, so, as I said, I would be happy to work within a timeframe of 48 hours from the time that I am provided the respondent’s response, but I am in the Court’s hands. If the Court felt it was appropriate to work with those timeframes indicated in my correspondence of 13 July, then I would comply with whatever orders the Court puts in place.
EDELMAN J: The Court will adjourn briefly to consider the interlocutory application, and then we will hear, potentially, from the parties in relation to programming matters relating to the substantive matter. Adjourn the Court, please.
AT 12.56 PM SHORT ADJOURNMENT
UPON RESUMING AT 12:59 PM:
EDELMAN J: Mr McKechnie, we do not need to hear from you on the interlocutory application. I will ask Justice Gleeson to give the reasons of the Court on the interlocutory applications.
GLEESON J: In matter B33/2022, Mr Matson seeks to challenge the legality of two decisions made on 7 July 2022 by the defendant, being decisions not to exercise the defendant’s power to revoke the surrender determination made on 1 February 2019 and the surrender warrant issued on the same date. Mr Matson seeks interlocutory relief pending determination of his application for constitutional or other writ. The interlocutory relief comprises: (1) an urgent stay of the surrender warrant; (2) an injunction restraining the defendant and others from giving effect to the decisions to refuse to revoke the surrender determination and surrender warrant, the surrender decision itself and from executing the surrender warrant; (3) bail orders; (4) a referral for specified pro bono assistance; (5) general or specific discovery; (6) an order that the parties be referred to mediation or other alternative dispute resolution process.
Mr Matson’s materials filed in support of the interlocutory application at his oral submissions do not justify granting any of the proposed interlocutory relief. As to (1) and (2), the validity of the surrender warrant and the surrender determination are not in issue in this proceeding. Accordingly, there is no basis for staying the surrender warrant, or restraining any person from executing the surrender warrant. In those circumstances, it would also be futile to restrain any person from giving effect to any of the other decisions in respect of which an injunction is sought.
As to (3), Mr Matson has not identified any power to grant bail. Assuming that there is a power to grant bail in this Court’s original jurisdiction, such as under rule 8.07.1 and 8.07.2(c) of the High Court Rules, the circumstances of the case must, at the very least, be special and there must be no real risk of flight, see United Mexican States at 191 paragraph 61. We are not presently satisfied of either matter.
As to (4), the application for constitutional or other writ does not demonstrate sufficient prospects on its face to warrant orders of the kind sought. In particular, the application does not set out any arguable basis for the grounds of the application, namely, any basis for contending: (a) that the Attorney‑General was required to follow the procedures that he allegedly failed to follow; (b) that the decisions involved jurisdictional error in the nature of apprehended bias or breach of the requirements of procedural fairness; (c) that the Attorney‑General made an error of law by “continuing the process” commenced by the former Attorney‑General Christian Porter or by proceeding upon the basis of the validity of the surrender determination and the surrender warrant; (d) that the Attorney‑General was required to take into account alleged mandatory relevant considerations; or (e) that the Attorney‑General was required to make the “obvious enquiries” allegedly not made.
As to (5), Mr Matson has not demonstrated the apparent relevance of the discovery sought.
As to (6), there is no utility in referring the matter to alternative dispute resolution in the absence of any agreement by the defendant and in the face of the extant surrender warrant.
Accordingly, Mr Matson’s applications for interlocutory relief in paras 7 to 13 of the application for constitutional or other writ and the Form 21 application should be refused with costs.
The order of the Court is that those applications are refused with costs.
EDELMAN J: Mr McKechnie, the only remaining matter, then, is the directions that are sought by Mr Matson in relation to the substantive matter. Is there any reason why the directions that he seeks for filing of the defendant’s response by 21 July 2022 and the filing of a plaintiff’s reply by 28 July 2022 should not be made?
MR McKECHNIE: No, your Honour. My submissions would be, then, the appropriate course would be for this Court to consider the merits of substantive application and consider dismissing it as being without merit in the same way that Justice Gageler did with regards to the proceeding.
EDELMAN J: Well, there is power for this Court to consider those matters on the papers if and when necessary. The real issue of immediate concern really relates to the interlocutory application that Mr Matson has brought and that has just been disposed of.
MR McKECHNIE: Yes. That has been disposed of. So, there is no – I have got no problem with the orders that your Honour just proposed, other than to note that there, of course, may be some difficulties for Mr Matson in terms of him being absent from the jurisdiction.
EDELMAN J: That is why I said that the issue of real urgency and importance is the stay application. But, given the fact that matter B33/2022 still remains live before the Court despite whatever arrangements the parties wish to take themselves, the programming orders sought by Mr Matson, I think, ought to be made, and if issues overtake that then the Court can be advised by the Australian Government Solicitor of what course is proposed. But, in the meantime, the Court will make directions as follows:
For the defendant to file a response to the plaintiff’s application in B33/2022 by 21 July 2022; and
For the plaintiff to file a reply by 28 July 2022.
Unless there is anything further, the Court will adjourn.
MR McKECHNIE: No. Thank you, your Honour.
MR MATSON: Thank you, your Honours.
AT 1:06 PM THE MATTERS WERE CONCLUDED
2
0
0