Author: Nyman Gibson Miralis
Keywords: challenging extradition, Extradition Act, Attorney-General, Magistrate, extradion objections
An extradition proceeding consists of four stages that place requirements on the Attorney-General or Minister administering the extradition; Harris v Attorney–General (Cth) (1994).
These requirements allow contestations to be brought forward to question the validity of the extradition being considered.
Stage 1 – When the Attorney-General receives an extradition request.
A request may only be considered by a country that is considered to be an ‘extradition country’ within the Extradition Regulations 1988 as per section 5 of the Extradition Act 1988. The person requested must also be an ‘extraditable person’ which is defined in section 6 of the Extradition Act 1988 to mean a person convicted of a crime in a foreign country or have an arrest warrant issued against them by the foreign country.
Commencement of a proceeding occurs when a provisional warrant is issued under section 12(1) or notice given under 16(1) of the Extradition Act 1988.
A provisional warrant under section 12(1) is made by a Magistrate on the basis of information given if satisfied that the person is an extraditable person. Such a warrant may be cancelled under section 12(3) if the Attorney-General decides not to issue a notice under section 16(1) or considers that the warrant should be cancelled.
Notice under section 16(1) can also commence proceedings if the Attorney-General , in his or her discretion, states that the request has been received. Requirements for the notice are that the person be an extraditable person in relation to an extradition country.
The notice shall not be issued if the Attorney-General is of the opinion that there exists an extradition objection in relation to the offence. The decision made by the Attorney-General can be subject to judicial review.
Stage 2 – When the Magistrate determines whether the person is eligible for surrender
The person will be remanded by the Magistrate in custody or to the conditions of bail under section 15 of the Extradition Act 1988. This is done in order to run the hearing that will establish whether the person is eligible for surrender under section 19. The Magistrate will consider numerous things when making this decision which double as grounds for objections if not appropriately considered.
The considerations are listed below:
- Whether the necessary documents are produced.
- If there are any additional requirements imposed by regulations.
- Whether there is dual criminality: this questions whether the conduct constituting the offence would also amount to an offence both in Australia and the foreign country.
- Whether there have been any extradition objections.
An extradition objection can be raised with the Magistrate during the hearing. If the Magistrate is satisfied that there are grounds for believing an extradition objection exists, then the person will not be eligible for surrender.
Stage 3 – What are the extradition objections?
The extradition objections are:
- If the person’s extradition is sought for a political or military offence.
- If the person has been acquitted, pardoned or already undergone punishment for the offence.
- Where the person’s extradition is sought for the purpose of prosecuting or punishing the person on the basis of his/her race, sex, sexual orientation, religion, nationality, or political opinions.
- Where the person may be prejudiced at trial, punished, or detained on the basis of his/her race, sex, sexual orientation, relation, nationality, or political opinions.
If the decision of the Magistrate is that the person is eligible for surrender, an application can be made under section 21 to review the decision in the Supreme Court or the Federal Court of Australia within 15 days of the Magistrates order. Following this, there are further provisions for appeal to the Full Federal Court and then to the High Court of Australia.
It is crucial that all possible objections to evidence are raised with the Magistrate because section 21(6)(d) of the Extradition Act 1988 limits the court in which an appeal is filed to material that was before the Magistrate: Zoeller v Federal Republic of Germany (1989) 23 FCR 282.
An exception exists where it was evidence excluded by the Magistrate in the decision making. It would constitute material that was “before the Magistrate””: Dutton v O’Shane (2003) 132 FCR 352.
Stage 4 – When the Attorney-General or Minister decide if the person should be surrendered
If it is determined that the person is eligible for surrender, the Attorney-General under section 22 of the Extradition Act 1988 can determine the person is to be surrendered only if satisfied of the following:
- That there are no extradition objections, and
- There are no substantial grounds for believing that the person would be in danger of being subjected to torture, and
- If the offence is punishable by death, an undertaking has been given by the extradition country that (i) the person will not be tried for the offence (ii) if tried, the death penalty will not be imposed (ii) if imposed, the death penalty will not be carried out, and
- The extradition country has given a specialty assurance, and
- The particular treaty requirements with the extradition country are taken into account.
The Attorney-General’s or the Minister’s surrender determination can be subject to judicial review.
If the person is not removed from Australia within two months from the surrender warrant being issued, the person can apply to the courts to be released.
What is the duration of the extradition request?
There is a requirement within section 15 of the Extradition Act 1988 that a person remanded be taken before a Magistrate ‘as soon as practicable’. When the person is taken to the Magistrate, their eligibility for surrender will be assessed.
If the Magistrate determines that the person is eligible then they will await either in prison or on bail for the surrender determination of the Attorney-General or Minister.
Review of the Magistrate’s decisions can be sought which may delay the proceedings – hearings often involve complex transnational evidence being admitted concerning the extradition country.
The Attorney-General or Minister must decide ‘as soon as practicable’ whether to surrender the person. This surrender determination can also be subject to judicial review.
If it is decided that the person will be surrendered, the person must be removed from Australia within two months or the person can apply to the courts for release.
Because the decisions of the Magistrate, Attorney-General or Minister can be reviewed, there is the possibility that the process will be extended.
In this regard, extradition hearings may be quite heavily contested and therefore are usually complex and lengthy proceedings.
Nyman Gibson Miralis specialise in all aspects of extradition and mutual legal assistance (MLA) law, and have expertise in complex transnational investigations. If you require assistance, contact one of our expert criminal defence lawyers