Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

Frequently asked questions

 For more information, please see extradition and extradition and provisional arrest.

1) Why won’t the Australian Government confirm whether it has made or received an extradition request?

Extradition requests are made in the course of an ongoing law enforcement operation.  The Australian Government does not usually disclose whether it has made or received an extradition request before the person is arrested.  This avoids giving the person who is the subject of an extradition request an opportunity to flee the jurisdiction.

After a person has been arrested, the Australian Government is able to confirm that the arrest was in response to an extradition request made by Australia to a foreign country or in response to an extradition request made by a foreign country to Australia.

It is possible that any media comment in Australia on the possible extradition arrest of someone in Australia or in a foreign country could enable that person to flee and avoid arrest.  This would defeat the purpose of extradition.  This could mean that a person wanted for serious criminal offences in Australia or the foreign country - such as child sex offences, terrorism, murder or major corruption - could avoid prosecution.  This is clearly undesirable and is why no media comment is given on whether Australia has made or received an extradition request until after the person is arrested.

2) Why won’t the Australian Government comment on individual extradition cases?

The Australian Government does not usually comment on individual extradition cases before arrest to avoid giving the person who is the subject of a request an opportunity to flee the jurisdiction and thereby defeat the purpose of the extradition process.  See further the answers to FAQ 1 above.

3) Who makes Extradition decisions? Is it the Attorney-General or the Minister for Home Affairs?

In practice, the Minister for Home Affairs makes most extradition decisions. 
 
The Extradition Act provides that the Attorney-General makes extradition decisions.  However, the Attorney-General and the Minister for Home Affairs share responsibilities in the Attorney-General's portfolio and the Minister for Home Affairs has primary responsibility for extradition. 

The Attorney-General is responsible for some extradition cases, such as those involving terrorism.

Section 19A of the Acts Interpretation Act 1901 allows the Minister to exercise the Attorney General’s power under the Extradition Act 1988 (Cth).

4) On what basis does the Australian Government make a provisional arrest request in extradition matters?

The Australian Government normally makes provisional arrest requests to other countries in cases of urgency, including where the fugitive is a flight risk.

For example, Australian law enforcement officers might have tracked down an alleged murderer who fled to London to escape investigation.  During the course of preparing an extradition request - which can require substantial paperwork and Ministerial approval - Australian law enforcement might find out that the alleged murderer is about to leave London.  The Australian Government would contact the United Kingdom authorities and request that the alleged murderer be ‘provisionally arrested’, pending Australia making an extradition request. 

For further information, see extradition and provisional arrest.

5) On what basis does the Australian Government accept a provisional arrest request from a foreign country in extradition matters?

Australia can only accept provisional arrest requests from countries which are ‘extradition countries’ under the Extradition Act.

After receiving a provisional arrest request, the Australian Government Attorney General's Department, as the Australian Central Authority for Extradition, decides whether to apply for a provisional arrest warrant.

For further information, see extradition and provisional arrest.

6) Does Australia need a treaty with a country to make an extradition request?

No, Australia does not need a treaty with a country to make an extradition request to that country.  Australia is able to make an extradition request to any country. 

Australia’s treaty partners have obligations to consider Australia’s requests.  In the absence of a treaty, it is a matter for the domestic law in the foreign country to determine whether the country can agree to Australia’s extradition request.

The Extradition Act sets out a number of mandatory requirements, which must be met before Australia can make an extradition request to another country.  Those requirements may be supplemented by mandatory requirements contained in a multilateral or bilateral treaty.

7) Does Australia need a treaty with a country to receive an extradition request?

No, Australia does not need a treaty with a country to receive an extradition request.  Australia is able to receive an extradition request from any country that is an ‘extradition country’ under the Extradition Act. An extradition country is defined in the Extradition Act and includes any country that is declared by the regulations to be an extradition country.  See extradition and mutual assistance relationships with other countries.

8) With which countries does Australia have extradition relationships and treaties?

Australia has 34 bilateral treaties on extradition.  Australia also has 17 inherited extradition treaties.  Australia is also a party to 19 multilateral treaties which include extradition obligations.

9) When Australia receives an extradition request, how long does it take to complete the extradition process?

When Australia receives a provisional arrest request that meets the requirements of the Extradition Act and treaty (if one exists), the person who is the subject of the request is often arrested within one week of Australia receiving the request.

If a formal extradition request satisfies all of the relevant Extradition Act and Treaty requirements, the Attorney-General or the Minister for Home Affairs usually decides whether to sign a notice formally acknowledging receipt of the request (section 16) within one month of Australia receiving the request.  If further documentation is required, the timeframe largely depends on the requesting country.

Arrest of the person who is the subject of the extradition request usually occurs within one to two weeks of the section 16 notice being signed (if the person has not already been arrested under a provisional arrest request).

A hearing by a magistrate to determine if the person is eligible for surrender (section 19) usually occurs within one to six months of a section 16 notice being signed.  The timing of this hearing is largely dependent on the courts.

If the person consents to their surrender, the Attorney-General or the Minister for Home Affairs usually determines within two to three months whether the person shall be surrendered.

If the person does not consent and/or pursues the avenues of review available in the extradition process, the timeframe varies significantly in each case.  It varies from a few months in consent cases to several years in contested cases.

10) When Australia makes an extradition request, how long does it take to complete the extradition process?

The Attorney-General's Department liaises with the central authority in the other country about the progress of the request until the person is surrendered and returned to Australia.

The timeframe varies significantly in each extradition case and is dependent on the laws and processes for extradition in the other country and any treaty requirements.

11) Is extradition the same as deportation?

No, extradition is different from deportation.  Extradition is a process countries use to force a person to face a criminal process in a particular country.    Deportation is one of the ways used to remove a person from a country for immigration purposes.