What were the facts of Lobban’s case?

In Lobban v Minister for Justice [2016] FCAFC 109, Mr Lobban, an Australian citizen, was subject to an extradition request by the United States. The United States alleged that Mr Lobban had committed sexual offences against the laws of Florida over the internet from his home in Perth, Australia.

Under the Extradition Act 1988 (Cth) there are four stages to the extradition process. After Mr Lobban’s arrest (first stage) the Minister issued a section 16(1) notice (second stage) directing a magistrate to conduct an extradition hearing pursuant to section 19 (third stage). The Minister then made a surrender determination under section 22 (fourth stage) and issued a surrender warrant in order to enable Mr Lobban’s extradition to the United States.

Mr Lobban complained that the Minister’s decision under section 22 was affected by judicial error. The grounds of appeal relate to the proper construction of Articles V and XIII of the Treaty on Extradition Between Australia and the United States of America in the context of sections 11 and 22 of the Extradition Act 1988 (Cth) and Regulation 4 of the Extradition (United States of America) Regulations.


What were the main arguments raised by the appeal?

Article V Ground

Under Article V the Minister may refuse the extradition of an eligible person if that person is an Australian citizen.  However, the Minister has a discretionary power to deliver up Australian citizens if the Minister considers it proper to do so.

Mr Lobban contended that the fact that he was an Australian citizen mandated the Minister to refuse extradition unless the Minister came to a positive decision that he was not to do so. He claimed the fact that he was an Australian citizen should be given “stand alone importance”.

The Court’s Decision

The Full Court of the Federal Court of Australia rejected Mr Lobban’s argument and held that the fact that Mr Lobban was an Australian citizen was one of a number of relevant considerations the decision-maker is to have regard in exercising his or her discretion whether to make the surrender determination.

Article VIII Ground

Article XIII provides that a State subject to an extradition request may request additional information to enable the Minister to decide on the request for extradition. If the person subject to an extradition request is under arrest and the additional information is not received within the period requested by the State or is not sufficient the person shall be discharged from custody.

When the Minister was considering whether to exercise his discretion under section 22(2) to make a surrender determination, the State requested additional information to be provided by 28 September 2012 from the United States Department of Justice.  The United States Department of Justice failed to respond to the State’s request for information until 16 November 2012.

Mr Lobban contended that Article XIII applied to all stages of the extradition process leading up to the surrender determination. Therefore, as a consequence of the delay Mr Lobban claimed he was entitled to be released from custody.


Decision of Siopis and Barker JJ

Siopis and Barker JJ held that the reference to additional information in Article XIII

applies only at the second stage of the extradition process. This interpretation is supported by sections 16 and 17 which emphasise the need for expedition at the second stage of the extradition process. This is in contrast to section 22 which does not provide for the release of a person in custody if the Minister’s determination under section 22 is delayed. The effect of this decision is that the provisions of Article XIII have no application to the making of a surrender determination under section 22.


Decision of Charlesworth J

Charleworth J held that it is implied under the law of Australia that persons subject to an extradition request are afforded procedural fairness. There is no reason why Article XIII should be construed to exclude the Minister from considering information requested by the State at the fourth stage of the extradition process.

The appeal was dismissed and Mr Lobban was extradited to the United States on 2 January 2017.


What was the outcome in the High Court?

On 10 November 2016 Mr Lobban’s application for special leave to the High Court was refused.