McGrath v The Minister of Justice

JurisdictionNew Zealand
JudgeMANDER J
Judgment Date17 December 2014
Neutral Citation[2014] NZHC 3279
Docket NumberCIV-2014-409-580
CourtHigh Court
Date17 December 2014
Between
Bernard Kevin Mcgrath
Plaintiff
and
The Minister Of Justice
Defendant

[2014] NZHC 3279

Mander J

CIV-2014-409-580

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

Application for judicial review of the decision of the Minister for Justice (the Minister) that there were no restrictions that applied to the surrender of the applicant to the Commonwealth of Australia — Australia sought the applicant's extradition to face trial on 250 charges of sexual offending — District Court referred the case to the Minister for consideration of whether there were compelling or extraordinary circumstances making unjust or oppressive to surrender the applicant — applicant alleged bias and procedural breaches by Minister in her decision there were no were compelling or extraordinary circumstances — whether the threshold for bias for a member of the Executive was actual bias or apparent bias — whether the Minister had to obtain further information for herself relating to the charges — whether, because of the subject matter, the test for unreasonableness was higher than the general test — whether in making her decision the Minister had been entitled to take into account the fact that the matters raised could be raised in an Australian Court in support of a stay.

Appearances:

P N Allan for Plaintiff

M J Lillico and C J Hurd for Defendant

JUDGMENT OF MANDER J
1

The Commonwealth of Australia seeks the extradition of the plaintiff, Mr Bernard McGrath, to face trial on 250 charges of sexual offending. The offences are alleged to have been committed against 35 complainants whilst Mr McGrath was employed […] in Australia, between 1977 and 1986. The complaints were made between 2001 and 2007. Mr McGrath is a New Zealand citizen.

2

Requests by Australia for extradition are governed by Part 4 of the Extradition Act 1999 (the Act). Broadly, this part of the Act provides for a simplified extradition procedure, reflecting the high degree of comity between New Zealand and Australia. 1 Part 4 is designed to provide a streamlined procedure for extradition,

whereby a person will be eligible for surrender if a warrant for the arrest of the person issued in a designated country complies with the requirements of the Act. If the Court is satisfied that the person is an extraditable person in relation to the extradition country and the offence is an extradition offence in relation to that extradition country, the person is eligible for surrender. 2
Procedural background
3

In November 2012, Judge Farish endorsed the Australian warrants for the arrest of Mr McGrath, and in June the following year found Mr McGrath eligible for surrender under s 45 of the Act. 3 In September 2013, the matter was referred back to the District Court as a result of an appeal by Mr McGrath regarding Judge Farish's assessment of her discretion under s 48(4) to refer the case to the Minister of Justice (the Minister) because of compelling or extraordinary circumstances relating to the affected person. 4 Whata J was concerned that Judge Farish may have unduly restricted her analysis of Mr McGrath's personal circumstances by reference to the Australian judicial system. 5

4

In April 2014, Judge Farish delivered her decision regarding the issue of whether Mr McGrath's case should be referred to the Minister. 6 It appeared to the District Court that because there were compelling or extraordinary circumstances it would be unjust or oppressive to surrender Mr McGrath, and she exercised her discretion to refer the matter to the Minister.

5

On 18 August 2014, having reviewed the mandatory and discretionary restrictions on surrender in relation to the extradition request, the Minister, the Honourable Judith Collins, decided that none of those restrictions applied in Mr McGrath's case and that he should be surrendered to the Commonwealth of Australia. It is in respect of that decision which this application for judicial review lies.

The law
6

Where a case is referred to the Minister, he or she must determine, in accordance with the grounds set out subs (2) to (4) of s 30, whether the person is to be surrendered. 7 Section 30(3) provides, so far as it is relevant to the present case, as follows:

  • (3) The Minister may determine that the person is not to be surrendered if –

  • (d) …, it appears to the Minister that compelling or extraordinary circumstances of the person including, without limitation, those relating to the age or health of the person, exist that would make it unjust or oppressive to surrender the person; or

7

While the Minister's decision had regard to all the grounds set out in subs (2) to (4) of s 30, it is this ground under s 30(3)(d) which Mr McGrath relied upon and is the focus of his challenge to the Minister's decision that he be surrendered.

The challenge to the Minister's decision
8

Mr McGrath challenges the Minister's decision under a number of headings. They are as follows:

  • (a) Apparent bias.

  • (b) The Minister breached principles of natural justice in making her decision.

  • (c) Material errors of fact were made by the Minister.

  • (d) The Minister's decision constituted an error of law.

  • (e) The Minster's decision was in all the circumstances unreasonable.

  • (f) The Minister “abdicated her responsibilities”.

9

In the course of oral argument, Mr Allan on behalf of Mr McGrath acknowledged that the challenges based upon error of law and unreasonableness were substantially the same.

Bias
10

Mr McGrath submitted that there have been breaches of suppression orders relating to the extradition proceedings committed by Mr Cameron Slater, an individual with whom the Minister is friendly, and to whom Mr McGrath in his pleading alleged the Minister had previously provided information. 8 He contends that in those circumstances an appearance of bias arises on the basis that a fair- minded lay observer might reasonably apprehend that the Minister might not bring an impartial mind to her decision. Mr McGrath relies upon recent publicity regarding the Minister's association or relationship with Mr Slater.

11

Mr McGrath in his affidavit referred to an incident on an unspecified date when he and an associate were accosted by an unknown person in a public place. A photograph was taken of Mr McGrath, which he identified as one posted on a blog operated by Mr Slater. The blog referred to him as a paedophile and contained other matters that breached suppression orders. Mr McGrath expressed concern that Mr Slater may have given information about him to the Minister.

12

In response, the Minister acknowledged that Mr Slater was a family friend, which was a matter of public knowledge, and that she was aware of alleged breaches of suppression orders as they were identified in Mr McGrath's own submissions to her. Those breaches however were referred to only generically as having been committed by both individuals and the media. It was submitted that the matters relied upon provided an insufficient basis upon which to allege bias, or the appearance of bias.

The test for bias
13

Mr McGrath's claim raises the issue of what is the threshold for bias that a member of the Executive must exhibit before there is a breach of natural justice. Mr McGrath submitted that a Minister exercising a statutory decision-making power in the circumstances of the present case will be disqualified from making a decision where there is apparent bias.

14

The Minister submitted that apparent bias is not the appropriate standard to be applied. Mr Lillico on behalf of the Minister submitted that Ministers will necessarily approach decisions influenced by policy and political considerations. 9 The test to be applied is not one of apparent bias but actual bias. The party alleging disqualification would need to establish that the decision-maker was not open to persuasion and did not address themselves to the particular criteria but simply went through the motions. It would need to be proven that the decision-maker approached the decision-making exercise with a closed mind. 10

15

There is no absolute standard to which a decision-maker must adhere. 11 The standard of impartiality required of a decision-maker is likely to turn in any given circumstance on the need to achieve the dual aims of accuracy in public decision- making and the need for public confidence in the decision-making process. It follows therefore, in the context of judicial decisions, that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. 12

16

In Zaoui v Greig, 13 it was not disputed that because of the nature of the task of the Inspector-General of Intelligence to review a certificate issued by the Director

of Security that Mr Zaoui was a security risk, the test was one of apparent bias. Salmon and Harrison JJ observed that it may have been appropriate in the circumstances of that case to hold the Inspector-General to a higher “standard” of impartiality given Mr Zaoui's reliance on the office holder's “objectivity and fairness”, and the high stakes to Mr Zaoui of an adverse decision. 14 Mr Allan on behalf of Mr McGrath did not argue that such an approach applied in the present circumstances, but the case is illustrative of a situation where office holders will be held to a similar, if not greater, standard than those sitting in a judicial capacity
17

In Moxon v The Casino Authority, 15 Fisher J sought to distinguish the standard of impartiality required by decision makers in the following terms:

  • [48] Subject to counter-indications in the statute, and any other qualifications such as jury confidentiality, relatively little...

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