Matson v The Attorney-General of the Commonwealth of Australia

[2022] HCATrans 119

[2022] HCATrans 119

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

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 11 JULY 2022, AT 2.00 PM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.P. MATSON appears in person.

MR M.D. McKECHNIE appears for the respondent, the Attorney‑General of the Commonwealth of Australia.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Matson, if it is convenient, I might just first hear from Mr McKechnie as to the questions of urgency and what the Commonwealth’s position is, because that may shape the issues that have to be determined this afternoon.  Mr McKechnie.

MR McKECHNIE:   Thank you, your Honour.  The urgency remains essentially the same as it did in the proceedings before Justice Gageler, and that is that the Act has a two‑month time limit imposed, and that expires on 28 July.

HIS HONOUR:   So, the surrender warrant has to be executed by 28 July, is that right?

MR McKECHNIE:   Yes.  And whilst that is the statutory deadline, practical matters that need to be undertaken such as making arrangements for United States persons to come out here and give effect to that surrender warrant have a lead time built in.  So, where the Commonwealth is at, on my instructions, is noting the indication that the Court provided last week that this matter could be heard on Thursday – provided the matter was heard and determined on Thursday, that would be sufficient to not disrupt the timetable.

HIS HONOUR:   Yes.

MR McKECHNIE:   There is no further wiggle room in place.  Pushing it any later jeopardises that 28 July date.

HIS HONOUR:   Yes.  I certainly give no undertakings about a determination of the matter, but a hearing is possible on Thursday.  I will hear from Mr Matson now as to his position.  Mr Matson, I have before me at the moment your application for a stay, interlocutory injunction, bail and various other issues, and your affidavit in support as well as your application for leave to appeal from the primary judgment of Justice Gageler, and the primary decision for a surrender warrant.  Is that – that is all of the materials on the present applications, is that right?

MR MATSON:   Yes, your Honour, that is correct.

HIS HONOUR:   On those materials, I do have your brief submissions that you have made in support of the application for leave to appeal, as well as the transcript of the hearing before Justice Gageler.  With the undertaking by the Commonwealth not to execute the surrender warrant before a hearing on Thursday, is there any further material that you would seek to put before the Court before a hearing on Thursday, or any other reason why further orders need to be made before that?

MR MATSON:   If I may, your Honour, your reference to submissions, short submissions in respect of the application for leave, I am not aware of any submissions.

HIS HONOUR:   In your application for leave to appeal there are grounds of appeal, and then in Part III there is a brief statement of your argument in support of the grant of leave.  That is at page 8 of your application for leave to appeal.  Now, I appreciate, obviously, that you would want to supplement that brief statement, which may be reason for an oral hearing on Thursday, as well as anything that you wish to put in before then in writing.

MR MATSON:   Yes, your Honour.  Can I just confirm that the Court has received the urgent correspondence of 7 July 2022?

HIS HONOUR:   No, I do not have any of the correspondence before me.  Are there any issues in that which I need to be made aware of?

MR MATSON:   Yes, your Honour.  The main, or principal issue raised in the correspondence is the present lack of legal representation and the fact that I have had no legal advice in respect of the application for leave to appeal as presently drafted, or in respect of the judgment provided by Justice Gageler.  In my respectful submission, although I acknowledge the statutory scheme and the respondent’s desire to have the application for leave determined as expeditiously as possible – and that is also my position in some respect – but it is, in my view, also important that this matter is properly heard and that there is, in the circumstances where there are complex questions of law where there is not authority in respect of some of the issues that are raised, that there should be an order made for the assistance of pro bono counsel, not only from the standpoint of advice in respect of the appeal as presently drafted, but there is also a proposition for – or a prayer for – an order of meditation, and I believe that in the circumstances where the Court has not previously considered the questions of the scope of the obligation of the AG at section 23 of the Extradition Act, particularly in a context that involves an Aboriginal Australian, it is my submission that there would be a question of law that could give rise to an agreement by the respondent and an application for leave or a grant of leave being provided by a Justice of the Court for a special case.

In those circumstances, as desirable as it may be to have the matter resolved on Thursday, I do not think it would be in the interests of justice to proceed in that fashion, rather, I think the appropriate course would be for the direction sought in the interlocutory application to be made such that counsel could be afforded the opportunity to consider the existing appeal as drafted and filed, and for the opportunity for counsel acting on behalf of the respondent to communicate with counsel and for there to be advice provided, and that initial direction in respect of pro bono counsel could be limited solely to legal advice in respect of that, and possibly to the drafting or preparation of materials in response or in reply to any response provided to the respondent.

But I should just note that if the Court, in its wisdom, decided to proceed in that fashion, that it may well be that an amended application for leave would need to be filed, and there would also be the necessity for a sufficient period of time for counsel to get across the material, although I think the issues in dispute could be narrow and got across quite quickly, the question is then – I appreciate the issue and the concerns raised by counsel acting on behalf of the respondent in respect of the 60‑day time limit and the practical concerns that he raised about US Marshals travelling, et cetera, but I think in a sense that is really to put the cart before the horse.

I think it is apparent from section 26(1)(a) of the Extradition Act that, although the surrender is meant to occur within 60 days from the date of the eligibility of the execution of the warrant, if that 60 days expires in no way does that prohibit or invalidate the surrender warrant, and that is in express terms there at 26(1)(a), and in circumstances where there is a judicable controversy before the Court, I think the respondent’s submissions in respect of pressing this matter through this week or next week are possibly a little premature in circumstances that are before the Court at the moment.

HIS HONOUR:   Yes.  Mr Matson, the usual course in respect of pro bono counsel in this Court would be for this Court to request the assistance of pro bono counsel when, after consideration of the materials, the Court forms the view that there is an arguable case, or sometimes a very strongly arguable case in light of the circumstances, that would require the assistance of pro bono counsel.  Of course, in any circumstance, counsel’s representations are always preferable to a lack of representation, but in the circumstances of urgency and having had regard to the materials that are presently before me – admittedly only, so far, on a preliminary basis – even accepting, for the present purposes, that expiry of 60 days would not invalidate the surrender warrant, I am not inclined, at this stage, to make any request of

the Registrar for pro bono counsel, and certainly not to issue any direction for pro bono counsel to be appointed.

Now, that may change after the hearing of the leave to appeal if the Full Court is satisfied that there are arguable grounds or even that there might be arguable grounds with the assistance of pro bono counsel, but at this stage I think the more efficient course is for the matter to move to a hearing of the application for leave to appeal, admittedly with the less‑desirable position of a lack of legal counsel, on the Thursday of this week.  As for the question of mediation that you raise, unless the Commonwealth sees any advantage in mediation, and it may be that some issues may fall away as a result of mediation, or that there is a prospect of the entirety of the matter being resolved in mediation, I would not be inclined to order an urgent mediation between now and Thursday, but I will hear from Mr McKechnie as to questions of mediation.

MR McKECHNIE:   Your Honour, the Commonwealth is not intending to mediate any aspect of this matter.  It is simply not appropriate.  There is a decision that has been made that has, to date, been held to be valid by the various courts, and it is meant to take effect in ‑ ‑ ‑ 

HIS HONOUR:   There are many, many matters which mediation will ordinarily be almost a starting point before litigation, but the circumstances of this case do not present, in my view, as one of those cases.  Mr Matson, is there any reason why the Commonwealth’s undertaking not to take any further steps toward executing a surrender warrant before the hearing of the application for leave to appeal ‑ ‑ ‑ 

MR McKECHNIE:   I am sorry, your Honour, just – I would not interrupt, but just to be very clear, the wording of the undertaking is to not execute the warrant.

HIS HONOUR:   Yes.

MR McKECHNIE:   I have no instructions to not take any steps, because steps are being taken.

HIS HONOUR:   Steps, in terms of ‑ ‑ ‑ 

MR McKECHNIE:   In terms of preliminary ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ flights and so on.

MR McKECHNIE:   Yes.  So, the wording of the undertaking as given to the Court previously was not to execute the warrant.

HIS HONOUR:   But from the point of view of Mr Matson’s direct interests, his direct interests will be affected by the execution of the warrant, not by the matters that go on behind the scenes.

MR McKECHNIE:   Absolutely.  The effect of the undertaking is that he is not going to be extradited until the undertaking expires.

HIS HONOUR:   Mr Matson, is there anything further that is required by your applications for a stay and interlocutory injunction, or any of those other matters, that would not be covered by that undertaking?  The undertaking does protect your interests in respect of the execution of the warrant prior to the hearing of your application for leave to appeal on Thursday.

MR MATSON:   Yes.  Your Honour, I do not know whether or not you have made a firm decision that this hearing will proceed on Thursday, because I do have a couple of other issues I would wish to raise with you before a final decision is made on that point.

HIS HONOUR:   Certainly.

MR MATSON:   That is that there has been a significant development in this matter in respect of the compliance with the orders of Justice Logan of the Federal Court on 7 July, which was a decision by the respondent, the Honourable Mark Dreyfus QC, the Attorney‑General, not to revoke the existing decision, and not to revoke the existing surrender warrant.  Now, in respect of that decision, I sought the assistance of a pro bono counsel, Ms De Ferrari SC, who previously provided pro bono assistance in a limited sense, and she indicated that the best course would be for me to write to the Attorney‑General asking for an opportunity to make representations in respect of whether or not he should revoke the existing surrender warrant, noting that the letter of Christian Porter subject of Justice Logan’s orders was tainted by an error of law, that almost two years had elapsed since that letter had been written, and that the circumstances had changed, including the period of time I have spent in incarceration.

Now, on the 7th, the Attorney‑General made – Ms De Ferrari recommended that I write to the Attorney‑General requesting the opportunity to make additional representations in respect of whether or not he should exercise his new‑found power to revoke the existing surrender decision, and Ms De Ferrari further emailed – I am informed by Ms De Ferrari that she emailed the Attorney‑General’s email advising that she was available and willing to assist in respect of preparing those representations.  Now, that was on 4 July, Ms De Ferrari’s email.  On the 7th – I was only provided the decision letter from the Attorney‑General on Friday, the 8th – the Attorney‑General proceeded to make that decision notwithstanding my request to make those representations, and noting that, in fact, he was not actually obliged to proceed to make the decision that he did, but nonetheless he has made a decision, and that decision is now the subject of an application for a constitutional writ which has been forwarded to the Court on my provision to Arthur Gorrie Centre’s management today.

Now, further to that, in conversations that I had with Ms De Ferrari, I indicated to her the intention of the respondent to have this matter heard on Thursday, and that this directions hearing was occurring today, noting that it was school holidays, et cetera, so it was not the most ideal time to be inconveniencing senior counsel in that respect, but she has indicated to me that she would be available on the 21st, which is the following Thursday, in circumstances where – if she thought that there was merit in respect of the application.

In addition to that, there has been a long‑ongoing application with Legal Aid for a funding grant in respect, initially, of an application for special leave to the High Court from decisions of the Federal Court which have been processed for well over six months, and I have today spoken for the first time with Ms Natasha Bates of Legal Aid Queensland, who has now progressed to the stage of briefing Saul Holt QC in respect of – and she has been provided with the application for leave as presently filed, and she has arranged for a legal visit with me on Wednesday.  Mr Saul Holt QC is in trial all this week, and she is across all of the developments, including the most recent decision of the Attorney‑General refusing to revoke, which, as I said, is now the subject of an originating application for a constitutional writ.

Now, it was my intention to try and get that application to the Court as soon as possible so that at today’s directions hearing we could speak on the possibility of – I know it is an option in the Federal Court, where they can move an application out of the original jurisdiction of the Court into an appellate jurisdiction.  I do not know whether or not, in the interests of justice and expedience, noting the concerns of the respondent, whether or not that would be the most expeditious way to resolve this application at the same time as hearing, conjoining the application in respect of the decision now, the question of review application, to conjoin those matters and they be heard together.

Now, in circumstances where we have senior counsel indicating availability from the 21st, and also what appears to me to be a very likely grant of aid from Legal Aid, noting that it has now progressed to Mr Saul Holt QC being briefed, noting those matters and that it appears that we could have counsel either from the perspective of Ms De Ferrari on a pro bono basis or Saul Holt QC briefed by Legal Aid Queensland, I think, in view of that, I would ask for the indulgence of the Court and the agreeance of the respondent to allow for – not a lengthy adjournment from the time they are requesting, but possibly a week, just to engage and have that representation available so that this application for leave and potentially the original application for relief in respect of the Attorney‑General’s decision not to revoke on 7 July, those matters could be heard together.

At the resolution of that, I think the respondent would be in – all the parties would be in a good position, including the Court, because I think it would be clear at the resolution of that hearing as to whether or not there was going to be a special case or whether or not all matters were dismissed, and obviously my extradition would follow in those circumstances, but I believe that with the pending appointment and grant of aid from Legal Aid and the availability of Ms De Ferrari if that does not eventuate, I ask for the Court’s indulgence and consideration as to whether or not we could ask for a week’s grace to allow that legal representation to be put in place.

HIS HONOUR:   Thank you, Mr Matson.  I am not inclined at the moment to adjourn the hearing on the 14th, but I would make orders, if it is possible to facilitate through the prison, for you to put in any affidavit material that you wish to put before the Court, filing it, if possible, by close of business on 13 July, deposing to any of these matters, for why the hearing on the 14th, you say, ought to be adjourned, say, to the 21st or thereafter.  The Full Court, which, in matters of applications for leave to appeal, is usually constituted by two justices, on the 14th, would then consider that affidavit material and your application for an adjournment together with the underlying merits of the application for leave in light of any further oral submissions that you want to make in addition to the very brief submissions in the leave to appeal application.

The Full Court could also consider at that time any further application that has been filed in the Court’s original jurisdiction to which you have referred.  The only remaining matter, then, arising from the points that you raise, is – and again, all of this is subject to any submissions that Mr McKechnie wishes to make – the question of Legal Aid funding for the special leave applications.  But from the point of view of the application for leave to appeal, and your proposed originating application, that stands separately from any special leave application, and I do not think it is convenient at this stage to try to make orders in relation to any proposed special leave application that may or may not eventuate.  Mr McKechnie, are there any – yes, Mr Matson?

MR MATSON:   I should just clarify there, your Honour, that I obviously, at the time of filing the originating application at the time of Justice Gageler delivering judgment, I updated Ms Natasha Bates via email and Mr Saul Holt QC and advised that my request that the funding be extended to cover the originating application and the application for special leave to appeal from the judgment of Justice Gageler and that the brief would be extended to cover those.

In view, or in light of the fact that the original funding application, in essence, because, it was dismissed at the case management stage of the appellate jurisdiction of the Federal Court, it effectively evolved into an originating application before the High Court, so, in essence, what we are talking about is fundamentally similar issues, noting that they are – that the questions of law that are now before the Court, the question of the application for special leave, are distinguishable from the questions of law that were before, and certainly are framed in a different way to what was before the Federal Court.

I guess what my concern is, your Honour, if I can be frank, about proceeding on Thursday without having had legal advice or any legal assistance in the preparation of that application – I have done that to the best of my ability with the access to the one administrative law book that I have got and the existing authorities, but there are questions of legal principle and a question of authority that are unavailable for me – I do not have access to the internet, you cannot have any case authority sent in, because it has got another person’s name on, cases that are refused from prison, so we have a situation where I am unable to properly prepare.

So, my submission to you, your Honour, is that the Commonwealth judicial power is presently being frustrated, and that to proceed on Thursday without having had legal advice and the assistance of counsel in the preparation – and legal advice in respect of those questions as to whether or not the cases of Snedden and Rivera are binding or distinguishable from the case presently before the Court, because – I think, effectively, although there are quite separate questions in respect of the treaty itself, noting there are complexities with treaty law, but the question in respect of the general discretion under section 22(2)(f) of the Act and whether or not a mandatory obligation can ever arise, and effectively the submission from the respondent is that under no circumstances can a mandatory obligation ever arise.

This is something that – it needs to look at the scope and purpose of the Act to see if there can be some implication on the true construction of the Act that indicates that there can arise a mandatory obligation, particularly when there is an Aboriginal person subject of that decision.  Does the importance of that fact give rise to a mandatory obligation?  Now, I wish to articulate that argument as best I can, but without access to authorities, without access to legal articles on legal principle, et cetera, I believe that the Commonwealth judicial power is being frustrated in the sense that I will not be able to properly make out my argument, I do not have the authorities or the legal principle to make out that argument, and I

believe that with the assistance of counsel, they would either one, turn around and say, we have looked at all those issues and, in fact, there is no and can be, ever, no mandatory obligation ever arise under section 22(3)(f).  Or, in the alternative, they may advise that there is legal principle and authority that supports a proposition that a mandatory obligation can arise under section 22(3)(f).  Now, what my concern is, if I am proceeding before the Court on Thursday, the obligational onus is upon me to make out the argument, but I do not have the resources or the access to legal assistance to do so, so it is, I guess, there is a responsibility on me to raise that with your Honour.

HIS HONOUR:   Yes.

MR MATSON:   I do not feel comfortable to proceed on Thursday.  I think we are very close to having legal representation in place, and I will proceed to prepare the affidavit material, but I will certainly be making application for that adjournment on Thursday, but my preference would be that, to seek your Honour’s indulgence, just to simply list the matter for the 21st, and if legal representation is appointed in that time we proceed, if there is not legal representation in place, well – well, if there is, obviously, the matter can be ventilated and the Court can determine whether or not we have grounds for leave or – and I think that we could also list the originating application, and I have sought the funding extension, or will be seeking the funding extension, in respect of that latest application filed today, and I have already raised that matter with Natasha Bates on the phone not some two hours ago, and she was very interested in that point and has noted all the details, so – and she has got the video link scheduled with me on Wednesday at 10.30 am, and my view – my request to her will be that, if we can have Mr Saul Holt QC briefed for the following Thursday, then, providing he is available and pending the availability of the respondent’s counsel, I think that would be the most expedient and fairest way for us to proceed.

HIS HONOUR:   Yes.  Thank you, Mr Matson.  I appreciate all of the issues that you have raised quite – if I may say so – eloquently, however, without making any determination as to whether the matter would be further advanced by the provision of legal assistance, and being very conscious of the fact that, in many cases, a case that might seem slightly arguable can become very strongly arguable with the assistance of legal practitioners, these are matters which would be appropriately considered by the Full Court on Thursday in light of a consideration of all of the materials, and, taking into account, as courts always do when considering whether there is an arguable case, the fact that an applicant is unrepresented and that arguments that may be made by an applicant without representation may not refer to many of the authorities, or some of the authorities, that may strongly assist an applicant.  Those are matters which the Full Court will consider on Thursday and in light of your foreshadowed application for an adjournment at that time.

The orders – and, Mr McKechnie, I will hear from you in a moment, but the orders that I would propose, then, would be that:

1. By 13 July 2022, that is this Wednesday, the applicant file any affidavit evidence or submissions in relation to the application for leave to appeal or adjournment of the application for leave to appeal; and

1. by 10.00 am on 14 July 2022 – that is Thursday – the respondent file any affidavit evidence or submissions in response.

I appreciate, Mr McKechnie, that that proposed timeline would not leave you with very much time, but, after all, it is the Commonwealth’s urgency that is bringing this matter on.  Mr McKechnie, is there anything that you want to say in relation to those proposed orders – I should say, including:

1. The matter be listed for hearing of the application for leave to appeal and any application for an adjournment on Thursday 14 July.

Is there anything that you want to add to that, or any difficulties you have with any of those proposed orders?

MR McKECHNIE:   No concerns, your Honour.  The Commonwealth Attorney‑General is content with those orders.  I should just confirm that, and put on the record, that I have instructions to give an undertaking not to execute the surrender warrant until that Thursday – until that date.  I do not have instructions to extend it any further beyond that.  In particular, I do not have instructions to extend it to any determination of the matter, if that happens afterwards, but I suspect that matters about what happens next can be dealt with by the Full Court on Thursday.

HIS HONOUR:   That is right, and it may be that, if the Full Court is of the view that the matter either is reasonably arguable or sufficiently arguable such that the assistance of legal counsel might lead the matter to be strongly arguable, then, even accepting the position of the Commonwealth, concerning urgency and the potential expiry of the period for the surrender warrant, that that may affect the orders that are made.  But, subject to that, at the moment, they are the three orders that I propose, and, fourthly, to reserve costs.  The only other matter that remains, I think, in Mr Matson’s application, is just the application for bail.  Is that still pursued in light of the hearing of the leave to appeal and any application for adjournment on Thursday, Mr Matson?

MR MATSON:   Your Honour, it was going to be my request of the Court today that the question as to bail – I think the Court would be better assisted with the assistance of counsel in respect of any application for bail, so it was going to be, really, in my mind, a question, today, of the assurance or undertaking in respect of the surrender warrant and the issue of an order in respect of counsel, and, obviously, timetabling.  Just so I am – so, as far as the question of bail, what I would like to do is, rather than have that issue dealt with today, I am not proposing to have it dealt with on Thursday either, what I would propose is that if, in the Court’s wisdom, it decides that there is some potential merit to the application as it presently stands, and orders were made, that an application for bail could follow, pending the determination of the actual appeal itself, if it proceeds that far.  I am slightly concerned, though – I would just wish to clarify exactly what the terms of this present undertaking are.  As far as I understand the undertaking as given at the moment is simply that, between now and Thursday, the warrant will not be executed, and that any further undertaking or application for stay will have to be dealt with by the Full Court on Thursday.  Is that my understanding?

HIS HONOUR:   Yes, it is.  It will be Thursday at 5.00 pm, by which time the hearing of the application for leave to appeal will have been concluded, and any issues arising from that will then be dealt with by the Full Court.  So, if, for example, there is going to be prejudice to you, in the view of the Full Court, by the expiry of the undertaking at 5.00 pm, then it may be necessary for the Full Court to make further orders.  That is, if the Full Court has not already determined the matter.

MR MATSON:   Yes.  As far as the application for the adjournment, I will be strongly pressing that, is that going to require me to file a separate form 21 interlocutory application in respect of the adjournment application?

HIS HONOUR:   Given the position you are in at the moment, and the amount of documents that you need to file, I think it is sufficient for you to foreshadow that that application will be made orally on Thursday, but any facts that you wish to rely upon in that application should be referred to in the affidavit, which you can file in the application for leave to appeal on Thursday.

MR MATSON:   Yes.  I will be sure to – the written correspondence that I have, and I will seek to get further written correspondence from both Ms De Ferrari and from Ms Natasha Bates in respect of where the legal representation presently stands, and I will try and put that as best I can before the Court on Thursday, and I guess I will be in the Court’s hands as to whether or not they wish to proceed there and then.  Yes.  Unless I can be of any further assistance, that is all that, I think, needs to be dealt with for today.

HIS HONOUR:   Thank you, Mr Matson.  I should make clear, just for your assistance, that one of the issues that the Court may wish to consider on Thursday is the arguability or the strength of any argument, to the extent that you can make it, of the application for leave to appeal, because that will be one of the factors that is considered in assessing whether or not there should be a further adjournment.

MR MATSON:   Yes, your Honour.

HIS HONOUR:   Mr McKechnie, I take it there is no prejudice to the Commonwealth in that application for an adjournment being made orally on Thursday, particularly given Mr Matson’s situation and difficulty with filing materials through the prison system?

MR McKECHNIE:   No prejudice, your Honour.

HIS HONOUR:   Thank you.  All right.  Unless there are any further issues, I will make those four orders that I had mentioned earlier, and the Court will adjourn to a time to be fixed after 10.00 am on Thursday 14 July 2022.  Thank you both very much.  The Court will adjourn.

AT 2.42 PM THE MATTER WAS ADJOURNED