What is extradition?
The process in which one country arrests and transfers a suspect to another country for the purpose of facing criminal prosecution is called extradition.
Laws that govern extradition operate at both the domestic and international level. In Australia, the domestic legislation governing extradition is the Extradition Act 1988 (Cth). This Act has three primary objectives:
- To codify the law relating to the extradition of persons from Australia to other countries and in particular, to provide for proceedings by which courts may determine whether a person is to be, or is eligible to be, extradited, without determining the guilt or innocence of the person of the relevant offence,
- To facilitate the making of requests for extradition by Australia to other countries, and
- To enable Australia to carry out its obligations under extradition treaties.
It is important to note that without a treaty at the international level, the Extradition Act has no effect. Two countries must agree to cooperate with each other for the purpose of apprehending and extraditing the accused person. That agreement is the extradition treaty. Such treaties create reciprocal obligations for each country to assist the other in the extradition process.
When can extradition occur?
In an Australian context, extradition can occur:
- When a person flees Australia, or
- When a person flees their home country to Australia.
What happens when a person flees Australia to a foreign country?
Every now and then, there will be a major news story about an Australian citizen who has fled the country to evade criminal proceedings. A recent example is Malka Leifer, the principal of the Adass Israel school in Melbourne who is charged with 70 counts of sexual offences. Leifer fled to Israel in 2008 and was extradited back to Australia in January 2021 after a long and drawn-out process.
Not many Australians flee to Israel, however. Australia has lodged a majority of its extradition requests with the United States. We will therefore use the United States to illustrate how extradition works.
How does a person in the United States get extradited back to Australia?
First, we shall identify the applicable domestic legislation and international treaty.
In Australia, the Extradition (United States of America) Regulations 1988 (Cth) governs the process of requesting the extradition of a person in the United States. This Regulation codifies the Treaty on Extradition Between Australia and the United States of America (“the Treaty”) which states:
Australia and the United States, [desire] to make more effective the cooperation of the two countries for the reciprocal extradition of offenders.
Together, both laws provide the framework by which a person is extradited back to Australia. The same laws govern the process when a person is to be extradited from Australia to the United States (see below).
The extradition process is long and protracted. Once Australian police have confirmed that the person has fled the country, they will obtain an arrest warrant and lodge a request with the Commonwealth Attorney-General to have that person returned to Australia. If the Attorney-General is satisfied with that draft request, it will approve it under section 40 of the Extradition Act.
Under Article XI of the Treaty, that request must be supported by the following:
- Documents, statements or other types of information which describe the identity and probable location of the person,
- A description of the offence,
- A statement of the law describing the essential elements of the offence, and
- A statement of the law describing the punishment of the offence.
This request is then forwarded to U.S. law enforcement bodies via appropriate diplomatic channels. From here on, the extradition process is out of Australian hands. How the United States deals with that extradition request is a matter for the United States and its courts. If the United States were to grant Australia’s request, the person will be brought into Australia to be dealt with according to law under section 41 of the Extradition Act. Also, since Australia is the requesting country, it must pay for the costs of transporting the person back here.
What happens when a person flees to Australia from another country?
This second scenario occurs when a person who has committed an offence in another jurisdiction comes to Australia. Suppose an American is charged with murder and has fled to Australia to escape prosecution. In this case, U.S. law enforcement bodies will seek to have that person extradited from Australia.
How does a person in Australia get extradited back to the United States?
The process here is also long and drawn-out. However, since the extradition proceedings are happening in Australia, the person has a lot more control over the entire process.
In this instance, the US Central Authority will send an extradition request to the Commonwealth Attorney-General. Once received, the Attorney-General may issue a Written Notice and forward that Notice to the Federal Circuit Court under section 16 of the Extradition Act. The purpose of this Notice is to facilitate the issue of an extradition arrest warrant pursuant to section 12 of the Act.
Once the person is arrested, he or she is brought before a Judge of the Federal Circuit Court of Australia who will determine whether the person is capable of being transported back to the United States. In making that determination, the Judge must consider the following:
- Whether the offence carries the death penalty in the United States. Under Article VII of the Treaty, Australia may refuse to extradite the person unless the United States gives an undertaking that the death penalty will not be imposed.
- Whether the offence is also criminal in Australia. The principle of dual criminality requires the conduct to also be an offence in Australia. For example, conduct that is an offence in the United States but not Australia will not be an extraditable offence.
- Whether there are any extradition objections as defined by section 7 of the Extradition Act. An extradition objection is a legitimate reason to refuse extradition. Examples are: political offences, prosecution on the grounds of sex, sexual orientation, religion and political opinion, the person will not receive a fair trial, or when the person has already been punished for the same offence in Australia.
If the Judge finds that the person is capable of surrender, they will be held in remand under section 15 of the Act. Under section 21, the person can apply to the Federal Court of Australia to review this determination within 15 days.
Who has the final say in extradition cases?
The Attorney-General has the final say as to whether a person ought to be surrendered. The Attorney-General can only surrender the person if he or she is satisfied of the following six factors:
- There are no extradition objections,
- The person will not be in danger or be subjected to torture,
- The death penalty will not be imposed,
- The United States has given a specialty assurance in relation to the person,
- Other mandatory grounds for refusal do not apply, and
- The Attorney-General considers that the person should be surrendered.
If satisfied of these six pre-conditions, the Attorney-General will authorise the surrender of the person and liaise with the appropriate U.S. law enforcement authorities.
With which countries does Australia have an extradition treaty?
At present, Australia has extradition treaties with the following countries:
| Argentina | Hong Kong | Malaysia | Spain |
| Austria | Hungary | Mexico | Sweden |
| Belgium | India | Monaco | Switzerland |
| Brazil | Indonesia | Netherlands | Turkey |
| Chile | Ireland | Norway | United Arab Emirates |
| Ecuador | Israel | Paraguay | United States of America |
| Finland | Italy | Philippines | Uruguay |
| France | Korea | Poland | Venezuela |
| Germany | Latvia | Portugal | Vietnam |
| Greece | Luxembourg | South Africa |
What is Australia’s extradition relationship with New Zealand?
In recognition of the close relationship between Australia and New Zealand, the extradition process between them is similar to that between the States and Territories of Australia.
A New Zealand warrant will need to be indorsed (approved) by an Australian magistrate to authorise the execution of the warrant in Australia by an Australian police officer (as per section 28 of the Extradition Act). Because of this, the process is sometimes referred to as the “backing of warrants”.
There is no requirement for a surrender request to be made and the Attorney-General is not involved in the extradition process between Australia and New Zealand.
Once remanded, a request can be made to the magistrate for a surrender warrant under section 34(1) of the Act.
Extradition to New Zealand must be refused if a magistrate is satisfied of one of the following grounds in section 34(2) of the Extradition Act:
- The offence is trivial in nature, or
- The accusation was not made in good faith or in the interest of justice, or
- A lengthy delay has elapsed since the offence was committed, or
- Any other reason it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand.
In making a decision under section 34(2), the magistrate must not exercise discretion. If the court is satisfied on the balance of probabilities that the person seeking to prove oppression or injustice has met their onus of proof, they must be released.
Australia’s extradition relationship with the United Kingdom
The United Kingdom is declared an “extradition country” for the purposes of the Extradition Act within the Extradition (United Kingdom) Regulations 2004 and relevant extradition rules and processes as outlined above will be followed.
What if I’m being extradited?
It is important to seek legal advice as soon as possible. Whilst extradition is a long and protracted procedure, there is little you can do once the matter is transferred into the hands of the other country. By having the process remain in Australia until all avenues are exhausted, you maintain as much control as possible over your matter. If you leave it to the last minute, it might be too late.
Nyman Gibson Miralis provides expert advice and representation in complex transnational cases involving extradition and mutual legal assistance.
Contact us if you require assistance.
