Attorney-General decisions under the Extradition Act

The limited reviewability of a section 22(2) decision under the Extradition Act 1988 (‘the Act’) was evident in the recent decision of Alexander v Attorney-General (Cth) [2019] FCA 1829 before the Federal Court.

 

Case Background

There are four stages to the Australian extradition process, the final being the Attorney-General’s determination as to whether to surrender an eligible person for an extradition offence.

In this matter, the United Kingdom sought the extradition of the applicant, Mr Alexander, for offences relating to the physical and sexual abuse of six complainants. In the final stage of the proceedings, the Attorney-General made a decision pursuant to section 22(2) of the Act to surrender the applicant to the U.K. and issued a warrant.

The Applicant sought judicial review pursuant to section 39B of the Judiciary Act. The Applicant’s submissions primarily turned on evidence of the applicant’s severe ill health, which prevented travel without risk of serious deterioration, and consequences for his life span and capacity to defend himself.

 

Decision

In his decision, Lee J stressed that the power under section 22 is one of executive discretion. Thus, the judicial review was not an opportunity to consider the merits of the Attorney-General’s decision, but rather confined to assessing the legality of the decision, and whether it was one the decision-maker was authorised to make.

On review, the applicant put forward three submissions which Lee J addressed separately.

 

Weight Submission

The weight submission, which Lee J characterised as a legal unreasonableness argument, contended that the medical evidence was so overwhelming that no reasonable decision maker could have made the decision to extradite Mr Alexander. In his considerations Lee J noted that for an error of legal unreasonableness, the result must be “so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances”.

As such, a determination of unreasonableness must begin with an examination of the scope, purpose and object of the legislative scheme. In this respect, the general discretion of the Attorney-General under Section 22 is very broad. He is not bound to take any particular matter into account. Bearing in mind the breadth of the power and the legislative landscape, Judge Lee found that the decision to extradite was not one which lacked any intelligible justification; it was one, under the circumstances, which a decision-maker could reasonably make.

 

Unjust Submission

The applicant argued that the decision to surrender was “unjust or oppressive”, language drawn from now-repealed extradition regulations. Judge Lee noted that there was no longer any express requirement that the Attorney-General have regard to unjustness or oppressiveness, nor did any particular matters have to be taken into account. It could not therefore be claimed that the Attorney-general had invalidly exercised his power under the Act.

 

Delayed Submission

The applicant submitted that there had been inordinate delay between the commission of the offence and the making of the request, a delay of up to 49 years. In this respect Lee J again noted that delay was not the subject of a pre-condition to the exercise of power in 22(2), and thus not a submission which has merit.

Based on this reasoning Lee J found that no relevant error in the legality of the decision had been identified, and dismissed the application.

 

Conclusion

Despite the severity of the applicant’s deteriorating health, the judge in this matter found no grounds on which to review the decision to surrender. As an executive power, a judicial review of a Section 22(2) decision cannot stray into the merits or whether the decision was correct. The review must focus on whether the decision was made within the limits of his power. The recent decision in Alexander v Attorney-General confirms that the power conferred by the Act is extensive, thus severely limiting an applicant’s ability to seek review.

Nyman Gibson Miralis provides expert advice in transnational cases involving extradition proceedings.

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