What is extradition?
Extradition is the process of one country sending a person to another country for criminal prosecution. Extradition ensures that criminals cannot evade law enforcement by simply crossing borders.
For example, if a person commits a murder in Australia and flees to the United States, they may be extradited back to Australia to face prosecution.
A treaty between states is usually the legal basis for an extradition request. No country in the world has an extradition treaty with all other countries. For example, the U.S. lacks extradition treaties with several nations including China, Namibia, the United Arab Emirates and North Korea.
Australian extradition law
The Extradition Act 1988 (Cth) provides Australia’s legislative basis for extradition, setting out several mandatory requirements which must be met before Australia can make or accept an extradition request. These may be supplemented by requirements contained in a multilateral or bilateral treaty.
There is also a system of streamlined interstate extradition within Australia which is governed by the Service and Execution of Process Act 1992 (Cth). Under this Act, a warrant in one state can be enforced in another state without formal endorsement by a magistrate.
Bars to extradition
By enacting laws and entering into international treaties, countries determine the conditions under which they may approve or deny extradition requests. Common bars to extradition include:
- Dual criminality: Generally, the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested countries.
- Political offence: Most countries refuse to extradite suspects accused of political crimes.
- Possibility of the death penalty or torture: Some countries refuse extradition on the grounds that if extradited, the person may face capital punishment, torture, or violations of human rights. Other countries may refuse extradition where the person might face punishments that they themselves would not administer.
- Citizenship: Some nations refuse to extradite their own citizens, holding trials for the persons themselves.
The extradition process in Australia
Australia’s extradition process follows five key steps:
- Extradition requested: Australia receives an extradition request from a foreign country.
- Request accepted: The Attorney-General notifies a Magistrate that the request has been received if he/she is satisfied that the person is an extraditable person in relation to the extradition country.
- Arrest and bail: The magistrate issues an arrest warrant, and decides whether there are any “special circumstances” which might authorise bail. Bail will not be granted unless there are special circumstances.
- Eligibility for surrender: A magistrate determines whether the person is eligible for surrender.
- Surrender: The Attorney-General determines whether the person should be surrendered to the requesting state.
The person or country can seek review of the magistrate’s decision on the person’s eligibility for surrender. The magistrate’s decision can be reviewed by the Federal Court or the Supreme Court of the state or territory within 15 days. A decision of a Federal Court judge can be appealed further to the Full Federal Court again within 15 days. Any application for special leave to the High Court must also be made within 15 days of the Full Federal Court’s decision.
An individual can also seek judicial review of the magistrate’s decision on bail or the Attorney General’s final decision on whether the person should be surrendered. However, there is limited scope for such a review, and the expertise of an experienced defence lawyer is recommended.
Mutual Legal Assistance (MLA)
What is mutual legal assistance?
Mutual Legal Assistance (MLA) is the formal process through which countries request assistance with criminal investigations or prosecutions. Countries can ask foreign authorities to:
- Transfer evidence,
- Conduct witness interviews, or
- Help recover proceeds of crime.
The process ensures that criminals cannot evade prosecution simply because the evidence is located across international borders.
Most countries rely on Mutual Legal Assistance Treaties (MLATs) to govern the MLA process. An MLAT is an agreement between states outlining the terms for managing cross-jurisdictional requests for evidence.
Australia’s mutual legal assistance regime is governed by the Mutual Assistance in Criminal Matters Act 1987 (Cth).
The mutual legal assistance process
The MLA process follows three key steps:
- Once evidence is identified overseas, law enforcement agencies make a request to their central authority (in Australia, this is the International Crime Cooperation Central Authority).
- If the central authority approves the request, the evidence is sent to the foreign country.
- If the foreign country approves the request, the evidence will be delivered to the requesting country.