Matson v The Attorney-General of the Commonwealth of Australia [2022] HCATrans 117 (1 July 2022)

Last Updated: 4 July 2022

[2022] HCATrans 117

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B20 of 2022

B e t w e e n -

BARON PHILLIP MATSON

Plaintiff

and

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 1 JULY 2022, AT 12.00 PM

Copyright in the High Court of Australia
HIS HONOUR: In this matter I make the following orders:

1. The principal application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff is to pay the defendant’s costs.

I publish my reasons, and I direct that those reasons be incorporated into the transcript.

The plaintiff is an Australian citizen. He is of indigenous descent. He deposes that he identifies as such and is accepted as indigenous by the community in which he lives.

In 2005, the plaintiff was charged in the United States with offences relating to mail fraud, wire fraud and money laundering. On 21 January 2015, Australia received a request from the United States for his extradition. He was arrested on 26 October 2015 and has since been held on remand.

On 1 February 2019, the then Acting Attorney-General of the Commonwealth determined under s 22(2) of the Extradition Act 1988 (Cth) that the plaintiff was to be surrendered to the United States in relation to the alleged offences and issued a warrant under s 23 of the Act for the plaintiff’s surrender.

By principal application for a constitutional or other writ filed in the original jurisdiction of the High Court on 27 May 2022, the plaintiff seeks relief to quash and prevent the enforcement of the surrender determination and warrant, and to compel the current Attorney-General to remake the decision under s 22(2) of the Extradition Act according to law.

The plaintiff filed an interlocutory application on 14 June 2022 seeking orders pending the resolution of the principal application, including orders to facilitate pro bono legal representation. I indicated at the directions hearing on 16 June 2022 that I considered the appropriate course to be to first examine whether the principal application disclosed an arguable basis for the relief sought within the meaning of r 25.09.1 of the High Court Rules 2004 (Cth). I indicated that I considered, having regard to the plaintiff’s application and the written submissions filed in draft in support of it, that it was not necessary to take the extraordinary step of making orders to facilitate pro bono legal representation in order to determine whether the principal application disclosed an arguable basis for the principal relief sought. And if the principal application failed to disclose an arguable basis for the principal relief sought, it would not be necessary to consider the balance of the interlocutory application.

The principal application is expressed to rely on four grounds: that procedures that were required by law to be observed in making the surrender determination and issuing of the surrender warrant were not observed; that the surrender determination and surrender warrant were affected by jurisdictional error; that the surrender determination and surrender warrant involved an error of law; and that the surrender determination and surrender warrant were otherwise contrary to law.

Particulars provided in that application, as elaborated by the plaintiff in written submissions in chief and in reply, reveal that the case which the plaintiff seeks to make for relief on those grounds comes down to two main arguments.

The first argument focuses on the plaintiff’s indigenous descent, and in particular on his special connection with Australia by virtue of being an Aboriginal Australian. He argues that the effect that surrender would have on that special connection with Australia was a consideration which the Acting Attorney-General was bound to have regard to under s 22(3)(f) of the Extradition Act and under Article V of the Treaty on Extradition between Australia and the United States, which is given force by Extradition (United States of America) Regulations 1998 (Cth), but in fact failed to have regard. In support of the argument, the plaintiff refers to Love v The Commonwealth [2020] HCA 3; (2020) 270 CLR 152.

Variations of this first argument were advanced by the plaintiff in an earlier application for judicial review in the Federal Court of Australia challenging the surrender determination under s 39B of the Judiciary Act 1903 (Cth). They were rejected by Rangiah J at first instance: Matson v Attorney-General [2020] FCA 1558 at [114]- [118], [191]-[203]. They were further assessed to be lacking in merit by Collier J on an attempt to reinstate an appeal from that first instance decision: Matson v Attorney-General (Cth) [2022] FCA 461 at [73]- [99]. I agree with that assessment.

The first argument is not tenable. The broad discretion conferred on the Attorney-General by s 22(3)(f) of the Extradition Act cannot, alone or in combination with Article V of the Treaty, be read to be circumscribed in the manner for which the plaintiff contends. In any event, in making the surrender determination and in issuing the surrender warrant, the Acting Attorney-General was in fact made aware by a departmental brief of the plaintiff’s indigenous descent and can be taken to have agreed with the view expressed in the brief that “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”.

The second argument, which does not appear to have been relied on in the challenge to the surrender determination in the Federal Court, focuses on the absence of a formal written assurance from the United States that the time the plaintiff has spent in custody in Australia while contesting extradition would be deducted from any custodial sentence imposed on the plaintiff in the United States with respect to the alleged offences. The plaintiff argues that to be another consideration to which the Acting Attorney-General was bound to, but did not, have regard under s 22(3)(f) of the Extradition Act.

The second argument is also untenable. There is nothing in the terms of the Extradition Act to indicate that the Acting Attorney‑General was obliged to consider whether the plaintiff’s incarceration in Australia would be deducted from any custodial sentence imposed in the United States, much less seek an assurance from United States authorities to that effect. Neither does it appear that the plaintiff made any submissions on this matter prior to the surrender determination being made. The plaintiff’s argument is not assisted by reference to the New Zealand Court of Appeal’s decision in Kim v Minister of Justice of New Zealand [2019] NZCA 209. That decision arose in a different legislative context and has since been overturned by the Supreme Court: Minister of Justice v Kim [2021] NZSC 57; [2021] 1 NZLR 338.

As the plaintiff’s principal application discloses no arguable basis for the relief sought, it must be dismissed pursuant to r 25.09.1. Further consideration of the plaintiff’s interlocutory application is therefore unnecessary.

As to costs, the plaintiff says that he has now been incarcerated in excess of six years and does not have the financial means to comply with a costs order made against him. Those circumstances alone do not provide a basis from which to depart from the ordinary approach to costs.

I therefore make the following orders:

1. The principal application is dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff is to pay the defendant’s costs.

The Court will now adjourn.

AT 12.01 PM THE MATTER WAS CONCLUDED