Extradition cases involving the United States can be complex, with courts needing to carefully look both at Australian law and international instruments such as the US/Australian Treaty on Extradition.
One such case, Lobban v Minister for Justice FCAFC 109, involved a sexual offence extradition request made by the United States.
A complex extradition process
In the case of Lobban, Mr Lobban, an Australian citizen, was subject to an extradition request by the United States. The United States alleged that Mr Lobban had committed sexual offences under the laws of Florida over the internet from his home in Perth, Australia.
Under the Extradition Act 1988 (Cth) there are four stages to the extradition process. After Mr Lobban’s arrest (first stage) the minister issued a section 16(1) notice (second stage) directing a magistrate to conduct an extradition hearing under section 19 (third stage). The minister then made a section 22 surrender determination (fourth stage) and issued a surrender warrant in order to enable Mr Lobban’s extradition to the United States.
Appealing the section 22 surrender determination
Mr Lobban complained that the minister’s decision under section 22 was affected by judicial error. The grounds of appeal related to the intersection between the Treaty, the Act, and relevant regulations in the United States. Under Article V of the Treaty, the minister may refuse the extradition of an eligible person if that person is an Australian citizen. However, the minister has a discretionary power to enable extradition to the United States if he or she considers it proper to do so.
Mr Lobban contended that the fact that he was an Australian citizen mandated the minister to refuse extradition unless the minister came to a positive decision that he was not to do so. Mr Lobban claimed the fact that he was an Australian citizen should be given “stand-alone importance”.
Hard questions for the Federal Court
The Full Court of the Federal Court of Australia rejected Mr Lobban’s argument and held that the fact that Mr Lobban was an Australian citizen was just one of a number of relevant considerations before the decision-maker in exercising his or her discretion regarding the section 22 surrender determination.
However, in an additional argument, Mr Lobban raised the following point: Article XIII of the Treaty provides that a state subject to an extradition request may request additional information to enable the minister to make a decision. Importantly, if the person subject to an extradition request is under arrest and the additional information is not received within the period requested by the state – or is not sufficient – the person shall be discharged from custody.
Could late documents prevent extradition to the US?
When the minister was considering whether to exercise his discretion under section 22(2) to make a surrender determination, the state requested additional information to be provided by September 28, 2012 from the United States Department of Justice. The United States Department of Justice failed to respond to the state’s request for information until November 16, 2012.
Mr Lobban contended that Article XIII of the Treaty applied to all stages of the extradition process leading up to the surrender determination. Therefore, as a consequence of the delay, Mr Lobban claimed he was entitled to be released from custody.
Differing stages in the extradition process
Justices Siopis and Barker held that the reference to additional information in Article XIII applies only at the second stage of the extradition process. This interpretation is supported by sections 16 and 17, which conjointly emphasise the need for expedition at the second stage of the extradition process. Conversely section 22 does not provide for the release of a person in custody if the minister’s determination under section 22 is delayed. The effect of this decision is that the provisions of Article XIII have no application to the making of a section 22 surrender determination.
Surrender determinations – sufficient procedural fairness?
Justice Charleworth held that it is implied under the law of Australia that those subject to an extradition request are afforded procedural fairness. His Honour noted that Article XIII does not prevent the minister from considering information requested by the state at the fourth stage of the extradition process.
The appeal was dismissed. Mr Lobban’s application for special leave to the High Court was refused on November 10, 2016. Mr Lobban was extradited to the United States on January 2, 2017.
It is clear from the case of Lobban that a complex cross-section of laws can create more than a little confusion around extradition requests and surrender determinations between Australia and the United States.
Nyman Gibson Miralis provides expert advice and representation in complex transnational cases involving extradition and mutual legal assistance.
Contact us if you require assistance.