What is a provisional arrest request?
A provisional arrest request is an urgent mechanism used to arrest a person pending the receipt of a formal extradition request. This measure is particularly useful when there’s a belief that the fugitive may flee the jurisdiction if not promptly detained.
Making a provisional arrest request to a foreign country
For Australia to make a provisional arrest request, several documents are typically required, as stipulated by the specific extradition treaty with the foreign country. These documents generally include:
- A list of offences for which the person’s arrest is sought.
- A statement detailing the acts or omissions constituting the offence(s).
- Copies of the legal provisions outlining the offence(s) and their penalties.
- A copy of the arrest warrant issued in Australia.
- A statement affirming that Australia will seek extradition within the period mandated by the foreign country’s laws.
- A physical description of the person, including nationality, photograph, and fingerprints (if available).
- A statement explaining the urgency of the request.
Treaty requirements for provisional arrest requests
Australia does not need an extradition treaty with a foreign country to make a provisional arrest request. While treaty partners are obligated to consider these requests, non-treaty countries handle such requests based on their domestic laws.
Accepting provisional arrest requests from foreign countries
Australia only accepts provisional arrest requests from countries recognised as “extradition countries” under the Extradition Act 1988 (Cth). Upon receiving a request, the Attorney-General’s Department evaluates whether to apply for an extradition arrest warrant.
For a magistrate to issue an arrest warrant, they must be satisfied that:
- An arrest warrant exists in the foreign country or the person has been convicted of an offence there.
- The offence qualifies as an “extradition offence”, meaning it carries a penalty of at least 12 months’ imprisonment (some regulations specify a minimum of two years).
- The person is believed to be outside the requesting foreign country.
If the warrant is issued, Australian police execute it. Following the arrest, the person appears before a magistrate and may be remanded in custody or released on bail under “special circumstances”. The foreign country then has a limited timeframe, typically 45 to 60 days, to submit a formal extradition request. Failure to do so allows the person to seek release from custody.
Interpol Red Notices and provisional arrest requests
Interpol Red Notices are often mischaracterised by the media as “international warrants”. However, in Australia, these notices do not directly result in arrests. Australian law enforcement officers are only authorised to arrest individuals for offences against Australian law. To detain someone based on an Interpol Red Notice, the procedures outlined in the Extradition Act must be followed. This involves obtaining an extradition arrest warrant from an Australian magistrate.
Key takeaways
Provisional arrest requests are a critical tool in international law enforcement, allowing for the urgent detention of individuals pending formal extradition requests. Understanding the specific procedures and requirements for these requests helps ensure that they are handled correctly and in accordance with international and domestic laws.
