In Matson v Attorney-General [2020] FCA 1558 Baron Matson (aka Baron Bronstein, Philip Fletcher and Lincoln Robert Marshall) has unsuccessfully relied on Magna Carta - quelle surprise - and Love and Thoms in seeking to prevent his extradition to the United States on charges regarding conspiracy to commit mail and wire fraud, mail fraud, wire fraud and conspiracy to commit money laundering.
Matson argued
(a) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations create a “conflict of interest” and fail to sufficiently protect the fundamental human rights and constitutional implied rights of Australian citizens by empowering the Executive Government to determine the surrender outcome and assess the fundamental human rights of persons subject to extradition while at the same time assisting the governments of foreign states requesting extradition in their legal proceedings, such as Mr David Reed and Mr Stephen Bouwhuis have done in the case of the US Government. In their current form and practice the Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations are profoundly unjust and inconsistent with international law, and are inconsistent and beyond the power provided under s 61 of the Constitution;
(b) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations subject the resident of one State to a disability or discrimination in another State which would not be equally applicable to him or her if he or she were a resident in such other state by reason of the application of different rules of evidence in contravention of section 117 of the Constitution. Further, the varying application of Human Rights Law in different States and Territories, as the State of Victoria and the ACT have incorporated legislation to incorporate fundamental human rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) while the other States and Territories have not, resulting in a contravention of section 117 of the Constitution;
(c) The Extradition Act 1988 (Cth) and the Extradition (United States of America) Regulations infringe the Magna Carta , common law rights and accepted principles of international customary law, so fundamental they cannot be overturned by legislation:
(i) Magna Carta Paragraph 29: “No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny or delay right or justice”;
(ii) common law rights such as procedural fairness, natural justice, liberty, speedy trial, duty of fairness, due process, protection from excess of power and the common law principle which requires relevant considerations to be taken into account and the decision not to be Wednesbury unreasonable;
(iii) the common law sufficed on its own to indicate that a “legitimate expectation” was generated by the UDHR, ICCPR, ICERD and CAT as accepted part of international customary law. The UDHR, ICCPR, ICERD and CAT are all now internationally accepted and entrenched as part of international customary law; and
(iv) the principle of international customary law that treaties will be interpreted in good faith and that Governments will uphold both the “Rule of Law” and respect fundamental human rights of all people including its own citizens.
(d) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are beyond power and not for the peace, order and good government of the Commonwealth with respect to external affairs within the meaning of section 51 xxix of the Constitution by reason of the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations being inconsistent with:
(i) the Australian Human Rights Commission Act 1986 (Cth), Schedule II - International Covenant on Civil and Political Rights (ICCPR) Articles 2, 5, 7, 9, 10, 14 and 26;
(ii) the Human Rights Act 2004 (ACT), sections 8(1), 8(2) and 8(3), 10(1) and 10(2) and 22(1) and 22(2)(a) and 22(2)(b) of the Act;
(iii) the Racial Discrimination Act 1975 (Cth), sections 9 and 10 of the Act; and Schedule I - International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Articles 1, 2, 5, 6 and 7;
(iv) the United Nations Declaration of the Rights of Indigenous People, Articles 2, 7, 15, 17, 19, 25, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 4; and
(v) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). ...
(e) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the requirements of Chapter III of the Constitution by reason of the Act and Regulations conferring non-judicial powers on the courts thereby forcing Chapter III courts to perform administrative quasi-judicial functions without due consideration of the inherent characteristics of a Chapter III court as intended by those whom framed the Constitution. Further, the Chapter III courts must in reality and by appearance be independent or separate from the executive and the Parliament. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent the Constitution because an “abuse of process” has been deemed as an unavailable option under the Extradition Act 1988 (Cth) legislation which is against the traditional conceptions of any Chapter III court.
(f) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate from universally accepted fundamental human rights and fail to provide for the United Nations ICCPR Article 14 minimum guarantees in criminal proceedings, fail to ensure a fair extradition process and fail to respect the “Rule of Law” which is an over reach of the power conferred on Parliament. In particular, there is no requirement for legal representation at any stage of the extradition proceedings under the Extradition Act 1988 (Cth) despite the serious nature and consequences of extradition. Moreover, the Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations require arbitrary punishment and arbitrary abrogation of fundamental human rights without the fair and impartial application of the relevant law to facts which have been properly ascertained and is also inconsistent with the Governments representations, long established practice and published policy regarding:
(i) Indigenous human rights protection;
(ii) Anti-discrimination and equality;
(iii) Constitutional implied rights;
(iv) Government accountability;
(v) Freedom of Information and transparent Government; and
(vi) Extradition and mutual assistance in criminal matters;
(g) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are inconsistent with the constitutional implied rights under the Constitution, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment;
(h) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are also inconsistent with international customary law including the international peremptory norms of international extradition law and extradition treaties: (i) United Nations Model Treaty on Extradition 1990, Article 3 and 4; and (ii) Vienna Convention on the Law of Treaties 1969, Article 19, 26, 31, 53, 62 and 64;
(i) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations derogate traditional common law rights and enshrined constitutional principles derived from the UK “Bill of Rights” by providing for arbitrary arrest and arbitrary abrogation of fundamental human rights without a fair hearing. This arbitrary arrest and arbitrary abrogation of fundamental human rights is potentially indefinite with no reasonable or genuine opportunity of a person subject to extradition proceedings being granted bail or being able to challenge the legality of their detention, contrary universally accepted standards established by international customary law and the traditional common law right of liberty;
(j) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail to sufficiently protect the rights of Australian citizens, particularly the fundamental human rights of indigenous Australians, which is inconsistent with recognising the human dignity of a person subject to extradition as a full member of the human community, and in its current form and practice is profoundly unjust and inconsistent with international law. In 2015 the United Nations Human Rights Committee (UNHRC) in communication 1973/2010 gave a strong recommendation to the Commonwealth of Australia to change the current form and practice of the Extradition Act 1988 (Cth), so that all Australians can fully enjoy ICCPR human rights. The UNHRC also found the Commonwealth in breach of ICCPR Articles 9(1) and 9(4) because of the arbitrary detention of Mr Hew Griffiths while he contested his extradition to the US. In a clear snub to the United Nations Human Rights Committee the Commonwealth has taken no steps to change the Extradition Act 1988 (Cth).
(k) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as the exercise of legislative power is not proportional to, nor is it appropriately adapted to section 51 xxix external affairs head of power in the Constitution. The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations fail the “Proportionality Test” as they both infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years; due process, equality before the law, fairness [or not to be treated unfairly] and protection from cruel and unusual punishment, and further deny fundamental human rights of those persons subject to extradition proceedings, and are not reasonably or appropriately adapted to achieve the ends that lie within the limits of constitutional power, and are inconsistent with recognising the “human dignity” of a person as a full member of the human community, particularly for First Nations people whose recognition, constitutional implied rights and fundamental human rights have all long been denied and ignored under the Constitution.
(l) The Extradition Act 1988 (Cth) and Extradition (United States of America) Regulations are invalid as they infringe upon the implied “religious freedoms” and the “cultural practices” of First Nations people provided under section 116 of the Constitution, by failing to recognise the importance of First Nations peoples “special connection” with Australia and the spiritual significance of “Dreaming” and being connected with the land. The effects of permanently separating an Indigenous Australian citizen from their family, culture and country are plainly oppressive and unjust not only for the individual but also for the extended family and community of the individual subject to extradition. Australia is the “Spiritual Place” of First Nations people, and the Applicant therefore has a constitutional implied right, a fundamental human right and an un-extinguished common law right to stay, live and die in Australia as has happened for over 60,000 years. Not only does the land belong to First Nations people, but they belong to it - now and forever. They have belonged to it in the past, the now, and in the future when they will die and return in spirit and in substance to their “Dreaming-place”. Any legislation that purports to sever this constitutional implied right, fundamental human right and an un-extinguished common law right, of First Nations people to live and die in Australia, is beyond power and invalid under any modern interpretation of the Constitution.
In contrast the Court states, at [345] onwards
In Vasiljkovic v The Commonwealth of Australia [2006] HCA 40; (2006) 227 CLR 614, a majority of the High Court held that Pt II of the Extradition Act (which includes s 22) and regulations with respect to an extradition treaty between Australia and Croatia were supported by the external affairs power in s 51(xxix) of the Constitution and did not offend the separation of powers inherent in the structure of the Constitution. Chief Justice Gleeson observed at [36]–[37]:
36. The Regulations, and Pt II of the Act, are supported by s 51(xxix) of the Constitution: the external affairs power. As French J said in Hempel v Attorney-General (Cth): “[T]he subject matter of extradition is directly concerned with international relations ... The nature of extradition is such that a law with respect to it is likely to be a law with respect to external affairs whether or not there is in existence any supporting treaty”. The external affairs power is not confined to the implementation of treaties. Making arrangements, by treaty or otherwise, for the extradition of alleged fugitive offenders, and giving effect to those arrangements, are matters that directly concern Australia’s relations with other countries and are part of that aspect of its external affairs.
37. The conferral of power in s 51(xxix) is subject to the Constitution. Is the deprivation of liberty necessarily involved in the extradition process, or the particular scheme of Pt II of the Act, contrary to the Constitution? It may be accepted that, subject to qualifications, “the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts”. However, as Gaudron J pointed out in Kruger v The Commonwealth, there are well-known exceptions to that general proposition and, further, those exceptions do not fall within precise and confined categories. They include, for example, arrest and custody pending trial, and detention by reason of mental illness or infectious disease. They also include the process of extradition. (See also [87], [222])
Accordingly, the High Court has held that the Extradition Act, and by extension the Extradition Regulations, are supported by the external affairs power and do not infringe the Constitution. Therefore, Grounds (a)-(l) of the particulars in support of paragraph 10 relating to their inconsistency with international customary law, common law rights and the Magna Carta cannot succeed.
In Ground (k), Mr Matson alleges that the Extradition Act and the Extradition Regulations, “infringe constitutional implied rights of those persons subject to extradition proceedings, including the constitutional implied rights to stay, live and die in Australia as First Nations people have done for over 60,000 years”. Mr Matson indicated at the hearing on 18 November 2019 that he relied upon arguments raised in Love and Thoms (which was concerned with the “aliens” power). The judgment in Love and Thoms was delivered after I had reserved my judgment, and I indicated to Mr Matson at the hearing on 18 November 2019 that he could make submissions on the relevance of that judgment once handed down.
The written submissions prepared by Mr Burnside QC and Mr Freeman for the purpose of the interlocutory hearing on 25 June 2020 stated with respect to Love and Thoms, “The Applicant concedes that his argument that the constitutional validity of the Extradition Act 1988 (Cth), as it applies to him is without foundation”. Mr Matson later purported to withdraw this concession in written submissions filed for the purpose of the interlocutory hearing on 28 August 2020. However, Mr Matson has not otherwise made submissions regarding any implied constitutional right for Indigenous people to not be removed from Australia that is said to arise from the decision in Love and Thoms. I therefore consider this argument to be abandoned, and will not consider it.
